Federal Court of Australia

Ugle v South West Aboriginal Medical Service Limited (No 3) [2026] FCA 508

ORDERS

THE COURT ORDERS THAT:

1.    Order 4 of the orders made on 13 April 2026 does not apply to the publication to members of the Defendant at the 2025 Annual General Meeting to be conducted pursuant to the orders of this Court in these proceedings of a statement in terms notified to the parties by the associate to the case managing judge by email on 23 April 2026, such statement to be read to the meeting by the Chairman of the meeting.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The plaintiffs are members of the defendant, South West Aboriginal Medical Service Limited (SWAMS). On 17 February 2026, I upheld substantial aspects of the claims by the plaintiffs that the affairs of SWAMS were being conducted in a manner that was contrary to the interests of the members as a whole: Ugle v South West Aboriginal Medical Service Limited [2026] FCA 101. I made orders, amongst other things, requiring SWAMS to convene an annual general meeting and for the process to be followed at that meeting for the election of directors.

2    An issue arose as to the terms of a proposed statement to members concerning the circumstances in which the employment of the chief executive officer of SWAMS had been terminated. I determined that the appropriate course was for an agreed statement to be read to members by the Chairman of the annual general meeting: Ugle v South West Aboriginal Medical Service Limited (No 2) [2026] FCA 448. As I explained at the time (see, at [11]):

The statement should balance the interests of the company in the circumstances of current litigation, on the one hand, and the need for accountability, on the other. In my view, having regard to the circumstances in which the annual general meeting was ordered, the appropriate course is for an agreed statement to be prepared to be read by the independent chairman at the meeting in response to any questions and for that statement to be the full extent of the answers provided to members at the meeting. I am not satisfied that it is appropriate, in the context of the orders that have been made, for a statement to be circulated to members prior to the meeting.

3    Relevantly for present purposes the following orders were made:

4.    Until further order of the Court, the Defendant whether by its directors, officers, employees or agents be restrained from releasing to third parties any report, report recommendations or report annexures about the investigation of Lesley Nelson.

5.     Order 4 does not apply to the publication to members of the Defendant at the 2025 Annual General Meeting to be conducted pursuant to the orders of this Court in these proceedings, of a statement agreed between the Plaintiff and the Defendant as to the circumstances of the termination of employment of the former CEO of the Defendant, such statement to be read to the meeting by the Chairman of the meeting.

6.     There be liberty to apply as to the terms of the agreed statement.

4    The parties did not agree the terms of the statement contemplated by the above orders. On 22 April 2026 the parties provided competing versions of the proposed statement. I was invited to resolve the difference between the parties on the papers.

5    There were two main differences between them. First, whether the statement should include a description of the nature of the findings that had formed the basis for the decision to terminate the chief executive officer. Second, whether the statement should include information about the extent of the costs incurred. For the following reasons, I settled a version of the statement that did not include with the findings or the information about costs and made orders to allow it to be read to the annual general meeting as contemplated by my earlier orders.

6    As to the findings, I formed the view that it was not appropriate for them to be detailed in circumstances where litigation was pending. I did not accept the suggestion that the need for accountability to members required information about the nature of the findings to be provided to members. I did not accept that there was a greater risk to the interests of SWAMS if a general statement was made compared to the proposed statement with information about the nature of the findings. As matters presently stand, the position that the employment of the former chief executive officer was terminated based upon findings made in a report is already publicly known. The chief executive officer has commenced proceedings against SWAMS. The proposed statement of details of the findings would be a further statement concerning specific conduct that was made and authorised by its directors. In the context of pending litigation, a statement of that kind is likely to create further litigation risk for SWAMS.

7    Further, in circumstances where the orders requiring the annual general meeting to be convened were made because of a conclusion that the affairs of the company were not being conducted in the best interests of its members, it was not appropriate for those directors currently in control to exercise their authority to place contentious information before the members. The more appropriate course, having regard to the basis upon which the orders had been made convening the annual general meeting, was for any decision about further steps concerning the former chief executive officer to be made by the new board convened after the annual general meeting.

8    As to the costs, I did not regard information about the costs that have been incurred by SWAMS to be the subject of the continuing order limiting the information that may be published. Therefore, it was not a matter that it was appropriate to include in the proposed statement to be read by the Chairman of the annual general meeting.

Associate:

Dated:    23 April 2026