FEDERAL COURT OF AUSTRALIA

Blair v First Nations Bailai, Gurang, Gooreng Gooreng, Taribelang Bunda People Aboriginal Corporation RNTBC [2022] FCA 1520

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the applicants to file an amended originating application to include, by way of final relief, the following order:

An injunction be granted to the effect that until after judgment in these Proceedings, or further order, the first respondent, whether by itself, its officers, servants, agents or otherwise be restrained from considering at any annual general meeting or other general meeting or permitting to be decided upon or passed at such a meeting the resolution contained in the Notice of Special General Meeting for the first respondent proposed to be held on 18 December 2022.

2.    An interim injunction be granted to the effect that until after judgment in these Proceedings, or further order, the first respondent, whether by itself, its officers, servants, agents or otherwise be restrained from considering at any annual general meeting or other general meeting or permitting to be decided upon or passed at such a meeting the resolution contained in the Notice of Special General Meeting for the first respondent proposed to be held on 18 December 2022.

3.    The first respondent is to pay the applicants’ costs of and incidental to the hearing of the interlocutory application dated 2 December 2022.

4.    Liberty to apply on 3 days’ notice.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HALLEY J:

INTRODUCTION

1    The applicants sought an urgent interlocutory injunction in these proceedings on 13 December 2022 preventing the first respondent from:

(a)    conducting a consultation and consent meeting scheduled to take place on 17 December 2022 (Authorisation Meeting);

(b)    conducting a special general meeting of the first respondent on 18 December 2022 (Special General Meeting); and

(c)    considering at any annual general meeting or other general meeting any resolution which amends the first respondent’s rule book (Rule Book) or impacts members’ rights.

2    The first respondent, the First Nations Bailai, Gurang, Gooreng Gooreng, Taribelang Bunda Aboriginal Corporation ICN8650 (PBC), holds native title in trust on behalf of the Bailai, Gurang, Gooreng Gooreng and Taribelang Bunda Peoples following the determination made by consent on 28 November 2017 in Blackman on behalf of the Bailai, Gurang, Gooreng Gooreng, Taribelang Bunda People v State of Queensland (No 3) (2017) 360 ALR 392; [2017] FCA 1637 (Determination).

3    The substantive relief that the applicants seek in these proceedings is declarations that they meet the eligibility requirements for membership of the first respondent and an order that the respondents enter their names on the first respondent’s register of members.

4    The applicants contend that they will suffer irreversible prejudice if the Court does not restrain the holding of the Authorisation Meeting and Special General Meeting until the determination of their applications for membership of the first respondent.

5    The first respondent contends that the proposed amendments to its Rule Book are urgently needed to ensure that its membership structure complies with recent amendments to the Corporations (Aboriginal and Torres Strait Islander Act) 2006 (Cth) (CATSI Act).

6    On 14 December 2022, I granted the applicants an interlocutory injunction in the following terms:

An interim injunction be granted to the effect that until after judgment in these Proceedings, or further order, the first respondent, whether by itself, its officers, servants, agents or otherwise be restrained from considering at any annual general meeting or other general meeting or permitting to be decided upon or passed at such a meeting the resolution contained in the Notice of Special General Meeting for the first respondent proposed to be held on 18 December 2022.

7    These are my reasons for granting the interlocutory injunction.

EVIDENCE

8    The applicants relied on three affidavits of their solicitor, Mr James Beresford Loel, and two affidavits from Mr Richard Wayne Johnson. Mr Johnson is an elder of the Gooreng Gooreng nation, an ATSIC regional councillor for the Gladstone Region and an executive director of the Gooreng Gooreng Apical Families Aboriginal Corporation ICN 9277.

9    The respondents relied on two affidavits of Mr Matthew Wayne Cooke. Mr Cooke is the fourth respondent in this proceeding and a director of the first respondent.

10    The respondents also sought to rely on a short affidavit of Ms Jade Ritchie. Given its late service, the applicants objected to the affidavit being read. I initially admitted the affidavit into evidence on a provisional basis, but given the supplementary affidavit of Mr Johnson that was subsequently filed, I am satisfied that there is no relevant prejudice to the applicants and therefore the provisional qualification can be removed.

11    Moreover, I note that at the conclusion of the hearing of the application for the interim injunction on 13 December 2022, I gave the parties leave to file short supplementary affidavits and submissions by 8.00 am on 14 December 2022 before I delivered judgment at 10.15 am on that day. The applicants and the first respondent filed supplementary submissions and second affidavits of Mr Johnson and Mr Cooke, respectively. There was no objection to the second affidavits of Mr Johnson and Mr Cooke and I confirmed to the parties prior to making orders on 14 December 2022 that I had received and read those two supplementary affidavits.

12    None of the deponents of the affidavits were cross-examined.

13    The two most relevant affidavits were the first affidavit of Mr Cooke and the second affidavit of Mr Johnson.

14    In his first affidavit, Mr Cooke provided a factual background to the decision by the directors of the first respondent to pursue an indirect representation membership model for the first respondent. He gave evidence that the aim of the proposed structure was to ensure that all four clan groups had equal representation within the first respondent, the directors of the first respondent had determined that this aim would best be achieved if each clan group established its own corporate entity to represent it and to receive a portion of the monies from the native title benefits. Mr Cooke also gave evidence that: the proposed structure had been considered and discussed with common law holders over an extended period; three of the four clan groups had established their own corporate entities for the purpose of the corporate representative model; the fourth clan group [the Gooreng Gooreng clan group] had expressed its intention in the course of community consultations to establish a corporate entity; and the applicants’ applications for membership would be determined on 18 December 2022.

15    In his second affidavit, Mr Johnson explained the extent of his involvement with and responsibilities relating to the Gooreng Gooreng clan group. He gave evidence that the Gooreng Gooreng clan group represented 13 of the 17 apical families related to the Determination. Mr Johnson detailed how moving to a corporate model was a matter of concern for the applicants as it would disenfranchise the applicants, entrench distinctions and inequalities between native title holders contrary to the Determination and reduce oversight by the office of the Registrar of Indigenous Corporations (ORIC) as a result of corporate members not being regulated by ORIC.

16    Mr Johnson also responded to the affidavit of Ms Ritchie, including by denying that there had been any vote at a meeting of the Gooreng Gooreng families in Gladstone on 3 December 2022 to create a Gooreng Gooreng corporate entity and stating that he saw no need for such a vote as the Gooreng Gooreng Apical Families Aboriginal Corporation ICN 9277 already existed.

BACKGROUND

Applications for membership of the first respondent

17    Between about 18 January 2022 and 24 March 2022, each of the applicants in the substantive proceeding (44 in total) made written applications to become members of the first respondent. In each case the applicants completed the relevant application form and, as required:

(a)    gave a declaration that they were 18 years of age or older; and

(b)    gave a declaration that they were a member of one of the relevant native title holding clan groups.

18    Prior to the commencement of this proceeding, the directors of the first respondent did not acknowledge nor apparently consider those applications.

19    On 20 September 2022, the following additional information in relation to each of the applicants was filed:

(a)    affidavits by twenty-three of the applicants which included information regarding their descent, many identifying their relevant apical ancestor from amongst those recognised in the Determination as the forebears of the native title holders; and

(b)    an affidavit by Richard Wayne Johnson deposing to the clan identification of each applicant and verifying that each applicant also appears in the database maintained by Port Curtis Coral Coast Limited ACN 166 697 669.

20    The first case management conference in this proceeding occurred on 23 September 2022, and resulted in the matter being referred to mediation in November 2022. The mediation process is ongoing.

Proposed October 2022 Special General Meeting of the first respondent

21    On or about 1 October 2022, the respondents issued a notice for a special general meeting scheduled on 22 October 2022 (October SGM Notice) with a view to passing amendments to the Rule Book, including amendments to the membership structure, at that meeting (First Proposed Membership Restructure).

22    The applicants’ solicitors wrote to the solicitors for the respondents raising concerns that the proposed amendments to the membership structure the subject of the October SGM Notice would: prevent the applicants from being recognised as members of the first respondent; preclude them from being involved in the decision on whether to approve the amendments; circumvent them from being able to obtain the relief they sought in these proceedings; shut them out of participating in the affairs of the first respondent; and take advantage of the respondents’ ongoing breach of duties.

23    In response to those concerns and a request for an undertaking from the applicants’ solicitors that no further meeting notice with respect to any proposed amendment to the Rule Book be circulated without giving 14 days’ notice to the applicants, the respondents’ solicitors confirmed that:

Our clients confirm they are willing to give 14 days' notice of any intention to issue a notice of special general meeting, or bring on an adjourned meeting, to consider a special resolution to alter the rule book of ICN 8650

Proposed December 2022 Special General Meeting of the first respondent

24    On 24 November 2022, the solicitors for the applicants were advised by Queensland South Native Title Services that the respondents had issued a notice of consultation and consent meeting (Consultation Notice), indicating the respondents were intending to pass amendments to the Rule Book in December 2022 to give effect to an alternative new membership structure, in a modified form to that of the First Proposed Membership Restructure (the Second Proposed Membership Restructure).

25    On 30 November 2022, the solicitors for the respondents provided a copy of a notice for the Special General Meeting scheduled on 18 December 2022 to the solicitors for the applicants (December SGM Notice).

26    The December SGM Notice outlined the Second Proposed Membership Restructure which envisaged that:

(a)    the Common Law holders would be able to apply for “Class B Membership”;

(b)    before a person could become a “Class B Member”, the directors of the first respondent would need to be satisfied that the person:

(i)    was of good character and standing in the community;

(ii)    had not engaged in any personal attacks, bullying or abusive behaviour with respect to other Common Law Holders, Members, Officers, Registered Observers or employees of the Corporation;

(iii)    had not behaved in a manner that had significantly interfered with the operation of the Corporation or of Corporation meetings; and

(iv)    had not acted in a manner contrary to the best interests of the Bailai, Gurang, Gooreng Gooreng, Taribelang Bunda People or the Corporation.

(c)    Class B Members would not be entitled to vote at general meetings;

(d)    voting would be reserved for up to four companies (one for each clan), who would be admitted as “Class A Members” in accordance with undisclosed “PBC Regulations” and at the discretion of the directors of the first respondent. Each of the companies would have two votes each;

(e)    alternatively, if the directors declined to admit a Class A Member for a particular clan, the directors themselves would exercise those votes instead; and

(f)    the Consultation Notice would contain the following statement:

The PBC is proposing to amend its Rule Book to:

•    Implement the corporate structure previously presented to members and common law holders; and

•    Make the Rule Book compliant with requirement resulting from the amendment of Corporation (Aboriginal and Torres Strait Islander) Act 2006.

27    The briefing note, which was referred to in the Consultation Notice and subsequently obtained by the applicants (Briefing Note), included the following statement:

New Rules 5.1, 5.2, 5.3 and 5.14 - Under the changes to the CATSI Act there must be a mechanism for all Common Law Holders to be represented in the membership of the PBC. Prior to the CATSI Act changes coming into effect, the PBC operated upon the basis of trying to preserve the principle of equal membership of the four Nations. This is no longer an option. However, the equality of the four Nations is something that was originally agreed when the PBC was established, and the directors believe it is important to preserve this to facilitate cooperation amongst the four Nations. Therefore, the PBC is proposing to introduce three classes through which all the Common Law Holders may be represented but still maintain equality of voting for the four Nations.

Amendments to the Native Title Act 1993 (Cth) and CATSI Act

28    On 25 March 2021, amendments to the Native Title Act 1993 (Cth) (NTA) and the CATSI Act came into effect (2021 Amendments). The 2021 amendments require all registered native title bodies corporate to ensure their rule books meet new requirements for membership and disputes.

29    The minimum requirements involved amendments:

(a)    to the rule about member eligibility, which must allow for all common law holders to be represented in the membership of the corporation;

(b)    to how membership is cancelled with a requirement that the process set out in s 150-22 of the CATSI Act is followed;

(c)    to the way in which directors must decide and accept applications for membership;

(d)    ensuring the only reasons to cancel a membership are those set out in the CATSI Act; and

(e)    requiring a dispute resolution process between the Registered Native Title Body Corporate and its common law holders.

30    The amendments to the Rule Book must take place by 24 March 2023. This is the date by which ORIC approves the amendments. This process can take some time. The first respondent submits that it must deliver the proposed accepted Rule Book to ORIC by approximately 24 February 2023.

31    The current Rule Book does not meet the requirements of the 2021 Amendments for all common law holders to be represented in the membership. Consequently, amendments are required to the Rule Book that will affect or impact on the rights, benefits, eligibility or categories of members of the first respondent.

RELEVANT PRINCIPLES

Interim Injunctions

32    Section 581-30 of the CATSI Act confers exclusive jurisdiction on the Federal Court in dealing with a civil matter relating to a registered native title body corporate.

33    Section 576-25(1) of the CATSI Act provides that if a person has engaged in conduct that constitutes, among other things, a contravention of the CATSI Act, the Court may, on the application of a person whose interests have been, are, or would be affected by the conduct, grant an injunction restraining the person from engaging in the conduct. Section 576-25(4) of the CATSI Act empowers the Court to make an interim injunction pending determination of an application under s 576-25(1).

34    In considering analogous provisions under s 1324 of the Corporations Act 2001 (Cth) (Corporations Act) it was stated in Australian Securities and Investments Commission v Mauer-Swisse Securities Ltd (2002) 42 ACSR 605; [2002] NSWSC 741 at [36] (Palmer J) that:

(a)    the jurisdiction which the Court exercises is a statutory jurisdiction and not the Court’s traditional equitable jurisdiction;

(b)    Parliament has made it increasingly clear that the Court, in exercising its statutory jurisdiction, is not to be confined by considerations which would be applicable if it were exercising its equitable jurisdiction;

(c)    among the considerations which the Court must take into account for a statutory injunction is the question of whether the injunction would have some utility or would serve some purpose within the contemplation of the legislation; and

(d)    although the questions of whether there is a serious question to be tried and where the balance of convenience lies will not circumscribe the Court’s consideration in an application for an interim injunction under s 1324(4) of the Corporations Act, the interests of justice will always require that those questions be examined carefully when restrictions are sought to be imposed before the case has been properly examined by the Court.

Eligibility requirements for membership of native title boards

35    Section 144-10(3A) of the CATSI Act was introduced as part of the Native Title Legislation Amendment Bill 2020. The Explanatory Memorandum for the bill relevantly stated at [74]:

The measures that relate to membership will improve the accountability and transparency of RNTBCs. In particular, the measures include: … removing the discretion of directors of RNTBCs to refuse membership when the applicant applies in the required manner and meets the eligibility requirements;

36    In Pat v Yindjibarndi Aboriginal Corporation (ICN 4370) [2011] WASC 354 (Pat v Yindjibarndi) the Court ordered an injunction until judgment or further order which, among other things, restrained any other resolution purporting to alter the eligibility requirements for membership or the grounds upon which membership could be cancelled. Relevantly, Sanderson M stated at [23] to [26]:

It was further argued the proposed amendments were contrary to the interests of members, oppressive and attract statutory remedies under s 166.1 of the Act. It is unnecessary to summarise fully the arguments which were advanced in support of this proposition. Suffice it to say it was submitted the thrust of the amendments would exclude from membership of the corporation, individuals who were properly entitled to remain as members. It was said it was oppressive to require all of the members of the corporation to comply with all of the requirements as proposed. If the amendments were passed it could allow for persons to be excluded as members of the corporation despite the fact they fell within the broad rubric of native title holders.

In answer to these submissions, counsel for the defendants pointed to the fact if the resolutions were passed, it was still necessary for the registrar to consider whether or not the proposed amendments ought be registered. Rule 22.4 of the Constitution provides that any alteration “shall not take effect unless and until registered by the registrar”. It was submitted the order sought by the plaintiffs asked the court to pre-empt the exercise of power given to the registrar to determine whether or not the proposed alteration should be registered.

On balance I was satisfied the order as sought by the plaintiffs ought be granted. I was satisfied for reasons advanced by the plaintiffs it was arguable the proposed changes to the Constitution were oppressive. In my view, it is arguable the changes would exclude from the corporation persons who would otherwise be members and may have an interest in the native title. Again, I emphasise I make no final determination on this question. However, I am satisfied there is a serious question to be tried.

It also seems to me the balance of convenience favours granting the injunction. It may well be the case the registrar would not register the amendments. However, the procedure adopted by the registrar is not set out in the Act and it is unclear whether and what the registrar does involves any inquiry or is simply an administrative determination. In other words, if the resolutions were carried, the position of the plaintiffs could be adversely affected because the amendments may be registered potentially excluding them from participation in the affairs of the corporation.

37    In Sandy v Yindjibarndi Aboriginal Corp RNTBC (No 4) (No 4) (2018) 126 ACSR 370; [2018] WASC 124 (Sandy v Yindjibarndi), 52 membership applications were submitted to the registered native title body corporate in June 2011 and were rejected by the directors in July 2011. The 52 applications were refused because they were viewed by the directors as part of an attempt to obtain control of the board of directors and influence decisions of the corporation. There was no evidence to suggest that each membership application was individually considered on its merits.

38    The Court found that directors’ rejection of the 52 applications was conduct which was contrary to s 265-5 of the CATSI Act, in that the directors’ power to deny membership was not exercised for a proper purpose. The Court also found the directors’ conduct contravened s 166-1(1)(d) of the CATSI Act, in that it was conduct which was contrary to the interests of the members of the body corporate as a whole.

SERIOUS QUESTION TO BE TRIED

39    The directors of the first respondent have not, to date, formally considered the membership applications submitted by the applicants.

40    The applicants contend that by the conduct complained of in this proceeding, the directors are in breach of their obligations pursuant to:

(a)    their responsibilities under rr 5.2.4, 9 and 10 of the Rule Book;

(b)    s 144-10(3A) of the CATSI Act, to accept membership applications, where the applicant has applied for membership in the required manner and the applicant meets the requirements for eligibility for membership of the corporation;

(c)    s 265-1(1) CATSI Act, to exercise their powers and discharge their duties with reasonable care and diligence; and

(d)    s 265-5(1) CATSI Act, to exercise their powers and discharge their duties in good faith in the best interest of the corporation and for a proper purpose (collectively, the Duties).

41    The first respondent submits that the determination of the matter will turn on whether the applicants are able to produce sufficient evidence to establish their entitlement to membership of the first respondent. It accepts, however, for the purposes of this application for an interim injunction that there is a serious question to be tried.

42    In the circumstances, I am satisfied that the applicants have established that there is a serious question to be tried in the substantive proceedings brought by the applicants.

BALANCE OF CONVENIENCE

Submissions of the applicants on balance of convenience

43    The applicants submit that the balance of convenience weighs heavily in favour of the grant of an injunction.

44    The applicants submit that s 144-10(3A) of the CATSI Act was intended to place a positive obligation on the directors to admit members. They submit that the Court should have legitimate concerns as to whether the directors have acted in good faith and for a proper purpose with respect to the applicants’ membership applications given their lack of responsiveness prior to the commencement of this proceeding, their failure to raise any specific concerns as to the eligibility of any particular applicant and their “blanket approach” in refusing to process any of the applications.

45    The applicants submit that the Court should also take into account the following conduct of the respondents since the commencement of the proceedings:

(a)    seeking to pass the Second Proposed Membership Restructure before considering the applications for membership made by the applicants in this proceeding;

(b)    having “rushed” to pass resolutions with a view to barring the applicants from being granted the final relief sought in this proceeding in circumstances where the parties are currently involved in a mediation process in which they are required to act in good faith; and

(c)    misleading common law holders by stating that they would give 14 days’ notice before issuing any notice of a special general meeting to consider alterations to the Rule Book and by publishing materials which conflate the Second Proposed Membership Restructure with the Compliance Purpose.

46    The applicants submit that if an injunction is not granted then they will suffer irreparable prejudice because, had the applicants been properly admitted, they would be entitled to vote on any special resolutions, including those which seek to restructure the first respondent to fundamentally alter the balance of power between directors, members and common law holders. They submit that it would be likely to have a material impact on whether the directors could command the 75% of the votes needed to pass a special resolution.

47    Further, the applicants submit that it would not be in the interests of justice for the Court to allow the Second Proposed Membership Restructure be put to a vote whilst the applicants are, prima facie, being denied their rights to vote as members of the first respondent. They submit that they stand to suffer irreparable prejudice if they are not entitled to vote on the special resolution to pass the Second Proposed Membership Restructure, and further that they will never be in a position to pass a new special resolution undoing the Second Proposed Membership Restructure.

48    Moreover, the fundamental nature of the Second Proposed Membership Restructure is to remove the capacity for members in a general meeting to exercise any degree of oversight over the Board. It is not in the best interests of common law holders, nor the members of the first respondent, nor is it consistent with the objects of the first respondent, for the directors of the first respondent to be able to exercise unfettered power by controlling who can and cannot vote in a general meeting.

Submissions of the first respondent on balance of convenience

49    The first respondent submitted that the following matters weigh against the grant of an interim injunction.

50    First, the applicants had not offered any undertaking as to damages in circumstances where the first respondent faced a potential fine if it did not amend its Rule Book and it had incurred costs in paying for common law holders to attend the Authorisation Meeting and the Special General Meeting.

51    Second, it was in the public interest that the entire interested public group, namely all common law holders, be permitted to be heard on the proposed amendments to the Rule Book, rather than a process be implemented by which the amendments could only be passed if the applicants being a small group of people, decided that they could, irrespective of the views of the common law holders as a whole.

52    Third, the applicants would not suffer irreparable harm if the injunctions sought by them were not granted because: they could still vote on the proposed amendments to the Rule Book at the Authorisation Meeting; the respondents are bound to follow the decision of the common law holders; the first respondent is required to ensure pursuant to the CATSI Act that all common law holders are represented in the membership structure of the first respondent and the first respondent acts as trustee of native title rights; and there had been no allegation of any mismanagement of those rights. The first respondent submits, however, that if an injunction were granted it would not meet the necessary time frames under the CATSI Act to amend its Rule Book, common law holders would lose the ability to make a decision on the Second Proposed Membership Restructure of the first respondent and the direction of the first respondent, in practice, would be limited to the consent and control of the applicants.

53    Fourth, the applicants are protected by their status as common law holders and their right to participate under reg 8 of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (Regulations).

The balance of convenience favours the grant of an interim injunction

54    On balance, I consider that the balance of convenience weighs in favour of the grant of an interim injunction restraining the first respondent, prior to judgment in these proceedings or further order, from considering at any meeting the resolution contained in the December SGM Notice providing for the Second Proposed Membership Restructure of the first respondent for the following reasons.

55    First, if such an interim injunction is not granted, the applicants will likely be deprived of the ability to obtain the relief they have sought in this proceedings, subject to any decision by ORIC not to register the proposed amendments to the Rule Book of the first respondent. If the Second Proposed Membership Restructure is approved and registered, the applicants will lose any ability to become members of the first respondent. I accept that this would lead to irreparable prejudice to the applicants in circumstances where the applicants, by reason of the lengthy and largely unexplained delay in determining the applications for membership, will be deprived of the ability to vote as members of the first respondent on whether the formal adoption of an indirect representation membership model should be adopted by the first respondent.

56    I do not accept that the ability to attend and vote at a meeting of common law holders for the purposes of an authorisation meeting is an equivalent right to membership of the first respondent. It is only membership of the first respondent that provides a person with the ability to vote on the special resolution seeking approval of the resolution to amend the Rule Book to provide for the implementation of the Second Proposed Membership Restructure of the first respondent.

57    I am satisfied that the exclusion of the applicants (assuming for present purposes that they have satisfied the requirements for membership of the first respondent and there has been a breach by the respondents of their obligations to admit them to membership without undue delay) from being able to vote on the resolution the subject of the December SGM Notice is prima facie oppressive. In related contexts, it has been held that excluding a member of a company from management contrary to a company’s constitution may be oppressive: Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 at [176] (Gummow, Hayne, Heydon and Kiefel JJ) and excluding members from attending and exercising their rights at an annual general meeting was oppressive, contrary to s 166-1(1)(e) of the CATSI Act: Sandy v Yindjibarndi at [253]-[254] (Pritchard J).

58    The process by which a vote might be taken at an authorisation meeting of common law holders and a vote at a meeting of members of the first respondent are fundamentally different. The differences between the two procedures were summarised by the applicants in their supplementary written submissions as follows:

59    Most significantly, unlike the unregulated position at an authorisation meeting, providing consent to a Native Title Proscribed Body Corporate (PBO) making a Native Title Decision under s 69-5(1)(a) of the CATSI Act requires a corporation to pass a special resolution. Hence any change to the Rule Book of a PBO requires the support of 75% of the members of the PBO entitled to vote.

60    Second, as submitted by the applicants, the interests of third parties are also likely to be irreparably affected by the proposed amendments to the Rule Book to introduce the indirect representation membership model for the first respondent. The correspondence exhibited to Mr Loel’s affidavit filed on 12 December 2022 reveals that the 25 people who had sought to be joined to the proceedings pursuant to r 9.05 of the Federal Court Rules 2011 (Cth) (and have now joined) had also submitted applications for membership of the first respondent, as had the 38 people who have submitted the membership applications annexed to Mr Cooke’s first affidavit.

61    Third, contrary to the submissions advanced by the first respondent, I do not accept that the directors of a PBO are bound to pass a special resolution if a consent to a Native Title Decision under the Regulations is obtained from common law holders. The consent of the common law holders might authorise the members of a PBO to make a Native Title Decision but it does not mandate or require that the decision be made by the PBO. The members of the PBO, having regard to the duties that they might owe as trustees, remain free to consider and vote in accordance with their honestly held views on the merits of the proposed Native Title Decision.

62    Fourth, I do not accept that an interim injunction directed at the consideration by the first respondent of the resolution in the December SGM Notice at any meeting of the first respondent will cause any irreparable prejudice to the common law holders. The Authorisation Meeting can still proceed and common law holders will be given an opportunity to be heard and express their collective views on the Second Proposed Membership Restructure of the first respondent.

63    Fifth, I do not accept that the potential for a Registrar to refuse an amendment to a PBO’s rule book pursuant to s 69-30 of the CATSI Act provides a compelling basis to decline to grant an injunction. It was held not to provide such a basis in Pat v Yindjibarndi at [26] (Sanderson M). The procedure to be adopted by the Registrar is not set forth in the CASTSI Act. In particular, it is not clear whether some merits-based scrutiny or review is involved or whether it is intended to be simply an administrative determination.

64    Sixth, I do not accept, as somewhat colourfully claimed by the first respondent in its supplementary written submissions, that the effect of granting an injunction would have the impact of a hostile takeover of the first respondent on the basis that it would result in decisions only being approved and passed if the applicants believed it to be in their best interests. The submission appears to proceed on the premise that the proposed restructure to be effected by the amendments to the Rule Book is necessary to prevent any person who can satisfy their eligibility for membership from becoming a member of the first respondent because the effect of admitting them to membership is that this would be akin to a takeover. It is not a premise I can accept and rather reinforces concerns that the failure to determine the applicants’ membership applications to date is driven by an improper purpose, namely a refusal on the basis that the applications for membership were viewed as an attempt to obtain control of the “board of directors” and influence decisions of the corporation: Sandy v Yindjibarndi at [341], [344] and [352].

SCOPE OF THE INTERIM INJUNCTION

65    I am ultimately not satisfied that the applicants have established that the balance of convenience favours the grant of an injunction that would extend to the Authorisation Meeting.

66    I accept that some of the explanations of the proposed amendments to the Rule Book that were provided by the respondents to common law holders, including the Briefing Note, might objectively have had the tendency to suggest that the introduction of the indirect representation membership model was necessary to comply with the amendments to the CATSI Act and there remained some ambiguity as to whether the applicants would be recognised as common law holders. I do not consider, however, that these matters are sufficient to justify restraining the holding of the Authorisation Meeting and depriving common law holders from expressing their views on the proposed restructure of the first respondent. Any particular or residual concerns about the extent of consultation and deficiencies in notification requirements for the Authorisation Meeting are matters that can be considered and taken into account by the members of the first respondent when and if the interim injunction is subsequently discharged.

67    Further, concerns about any inconsistency between the proposed amendments to the Rule Book of the first respondent and the 2021 Amendments, in particular the introduction of good character tests for determining eligibility for membership, can also be addressed by the members of the first respondent when and if the interim injunction is subsequently discharged.

68    Nor am I satisfied that it is necessary or desirable at this stage to seek to restrain the first respondent from considering any alternative proposals to restructure its membership in order to comply with the 2021 Amendments.

69    I have for these reasons limited the interim injunction to a restraint on what I presently regard as the improperly constituted first respondent from considering the resolution contained in the December SGM Notice.

AMENDED ORIGINATING APPLICATION AND UNDERTAKING AS TO DAMAGES

70    In the course of the hearing of the application for the interim injunction on 13 December 2022 it became evident that the applicants were moving under s 576-25(4) of the CATSI Act for an interim injunction. The Court’s power to grant an interim injunction under s 576-25(4) of the CATSI Act is only enlivened if an injunction is sought by way of final relief pursuant to s 576-25(1). No such relief is currently sought in the Originating Application.

71    I raised this issue with counsel for the applicants in Court prior to making orders on 14 December 2022 and also raised the need, given the clarification that the applicants were seeking to rely on s 576-25(4), for the provision of the usual undertaking for damages if an injunction were to be granted. Counsel confirmed that leave would be sought, which I indicated I was prepared to give, to file an amended originating process to include by way of final relief an injunction in the form that I was prepared to grant by way of interim relief. Counsel also confirmed that she had now been instructed by the applicants to provide the usual undertaking as to damages if an injunction were granted.

DISPOSITION

72    For the reasons outlined above, and given the proffering of the usual undertaking for damages by the applicants, I made orders granting leave to file an Amended Originating Process and granting an interim injunction.

73    Given there was significant opposition to the granting of any interim injunction and the length of the oral hearing and written submissions, including supplementary submissions relied upon by the parties, I considered that costs should follow the event rather than being costs in the cause.

Associate:

Dated:    15 December 2022

SCHEDULE OF PARTIES