Greenwood J
In this matter, Greenwood J heard an application brought against Mr Larry Woosup and Ms Beverley Tamwoy for alleged breach of fiduciary duties owed by them to the Ankamuthi people native title holding group as members of the applicant.
[1] The application was brought by the remaining members of the applicant, Mr Mark Gebadi, Ms Tracey Ludwick, Ms Catherine Salee, Mr Benjamin Tamwoy, Mr Asai Pablo, Mr Charles Woosup and Mr Nelson Stephen, in a representative capacity on behalf of the Ankamuthi people. The Court’s declaration and orders made by the Court are set out paragraphs [1] and provided at the conclusion of this case note.
[4] The Court made a determination of native title in favour of the Ankamuthi people in July 2017: Woosup on behalf of the Ankamuthi People #1 v State of Queensland [2017] FCA 831. [6] The prescribed statutory corporate trustee pursuant to s 56(2)(a) NTA was the nominated and ordered by the Court to be the Seven Rivers Aboriginal Corporation (ICN 8522). The proceedings against Mr Woosup and Ms Tamwoy were commenced in April 2016. As originally filed, Gulf Alumina Limited (Gulf) and the State of Queensland were joined as the third and fourth respondents. An order for the dismissal of the proceeding as against the third and fourth respondents was obtained in December 2016.
Greenwood J emphasised at paragraph [20]: ‘Those individuals who become or who are constituted as the applicant prosecute each application for and on behalf of all members holding the common or group rights and interests comprising the particular native title or, where relevant, those persons comprising the compensation claim group (apart from revocation or variation applications). In doing so, the Act contemplates that those individuals constituting the applicant act in the interests of the group members and also in their own interests but, in respect of their own interests, they do so only in their capacity as members of the group, and not in furtherance of their private interests which in any way conflict with the interests of the relevant group. These arrangements under the Act reflected in ss 13 and 61, and all of the provisions of the Act relating to those sections, have been enacted by the Parliament of Australia in order to give effect to the Preamble to the Act and the main objects of the Act.’
Background
[46] Firstly, on 4 December 2013, Mr Larry Woosup and Ms Beverley Tamwoy entered into an agreement (the ancillary agreement) with Gulf for the purposes of s 31 of the Native Title Act 1993 (Cth) (NTA), permitting Gulf to conduct the Skardon River Bauxite Mining Project (SRBM Project). Mr Woosup and Ms Tamwoy made the agreement on their own behalf and on behalf of the Ankamuthi people, defined as the native title claim group in the Ankamuthi native title determination application. The payments to be made to the Ankamuthi people under the agreement were as follows:
$20,000 upon execution of the agreement;
$350,000 upon execution of the deeds;
$30,000 upon commencement of production of the [SRBM Project].
At the time the agreement was entered into, Mr Woosup and Ms Tamwoy were the only living members of the applicant for the Ankamuthi claim. In December 2014, meetings of the Ankamuthi people were held to authorise the seven applicants together with Mr George Mamoose, Mr Michael Toby and Ms Ella Hart (Deemal) to become individuals constituting the Ankamuthi applicant. Mr Larry Woosup and Ms Beverley Tamwoy were authorised to continue to be individuals constituting the Ankamuthi applicant along with the new appointees.
Contentions
[47] Secondly, the applicants in this proceeding submitted that Mr Woosup and Ms Tamwoy failed to submit a proposal to a meeting of the Ankamuthi people enabling the Ankamuthi people to decide whether to enter into the ancillary agreement with Gulf or not, and failed to disclose the agreement to the other members of the applicant consequent upon the reconstitution of the applicant in December 2014, or the claim group.
[48] Thirdly, it was further submitted that Mr Woosup and Ms Tamwoy owed fiduciary obligations to the Ankamuthi people as members of the native title claim group, which they breached by entering into the agreement with Gulf.
[49]–[50] The applicants argued that by receiving financial benefits under the Gulf agreement; by not advising the members of the native title claim group of the payments; by retaining and using the monies paid under that agreement for his own benefit; and by not paying the financial benefits to the native title claim group, Mr Woosup breached particular fiduciary obligations he owed to the Ankamuthi native title claim group and [51] Mr Woosup was required to account to the Ankamuthi native title claim group for the financial benefits he received.
[52] The Court observed: ‘It can be seen therefore that the central contention in these proceedings is that Mr Woosup and Ms Tamwoy owed fiduciary obligations to the Ankamuthi native title claim group when acting as applicant and that they failed to discharge those obligations. In the case of Mr Woosup, it is said that he has taken for his own benefit, benefits payable under the Gulf agreement for and on behalf of the Ankamuthi native title claim group.’
The essential questions for the Court were:
Whether Mr Woosup and/or Ms Tamwoy owe fiduciary obligations to the Ankamuthi native title claim group, that is to say, are they in a fiduciary relationship with that group?
If fiduciary obligations are owed by either of them to the claim group, what are the obligations so owed?
Have either of them failed to discharge those obligations?
The relevant procedural matters to this proceeding are set out by the Court in paragraphs [56] to [78]. The relevant factual matters are set out at paragraphs [74] to [95].
The Court considered that it would be inconsistent with the statutory scheme for some persons, amongst a group of persons constituting an applicant for the purposes of a s 61 native title determination application, to 1) enter into a s 31(1)(b) agreement with a person or entity, 2) not disclose the fact of it to the claim group or the other persons constituting the applicant, and 3) cause payments made under the agreement to be applied and used for the personal benefit of those persons within the applicant who had struck the agreement. The payments under such an agreement do not become the 'applicant’s money' personally. The payments retain their character as payments made to and for the benefit of those persons who hold the common or group rights and interests comprising the particular native title as claimed. An applicant, when exercising any aspect of the right to negotiate and bring into existence a s 31(1)(b) agreement, does so as applicant for those persons who hold the common law group rights and interests comprising the native title as claimed.
Fiduciary obligations
The Court noted that: [96] ‘In accepting a role (as a member of the Ankamuthi People), of acting as persons constituting the Ankamuthi applicant so as to make the native title claim for the native title claim group, Mr Woosup and Ms Tamwoy accepted and undertook to act for and on behalf of the members of the claim group in the exercise of any right, power or discretion affecting the interests of the Ankamuthi native title claim group in either a legal sense or a practical sense. The principles which lead to that result in the context of the role of persons who constitute the applicant in a native title determination application are the essential principles which determine whether a person has accepted or assumed fiduciary obligations to another. The context in the case of Mr Woosup and Ms Tamwoy, in accepting and undertaking to act as persons constituting the applicant, is the relevant context but the principles to be applied in determining whether they owed fiduciary obligations to the native title claim group are the same principles determined in our jurisprudence for deciding whether a person has, in all the circumstances, assumed particular fiduciary obligations to another.’
[97] In Oliver Hume South East Queensland Pty Ltd v Investa Residential Group Pty Ltd [2017] FCAFC 141, the Full Court (Dowsett, Greenwood and White JJ) considered the question of whether particular parties owed fiduciary obligations to another. In determining that question, the Court analysed the principles to be applied, within the relevant factual matrix, in answering that question. Greenwood J (with White J in agreement) identified the principles to be applied. Dowsett J differed as to the application of the principles to the facts in issue but did not depart from the expressions of principle of Greenwood J (and White J in agreement), although his Honour set out the relevant principles in his own terms.
[98] The following principles identified by Greenwood J (White J concurring) of relevance to the present proceedings are these.
It is worth setting out Greenwood J’s observations in Oliver Hume South East Queensland Pty Ltd v Investa Residential Group Pty Ltd [2017] FCAFC 141 in this case note in detail:
236. In developing his seminal analysis of the coherent body of law developed by Equity in identifying “certain and distinct” obligations which define their own “fiduciary” for their own respective purposes, Dr Finn expressed this observation in Fiduciary Obligations 1977 (described by Millett L.J. in the Court of Appeal in Bristol v Mothew at p 18 as “his classic work”), at p 2:
[Equity] has evolved a series of self-contained obligations – obligations which are themselves certain and distinct, and which individually define their own “fiduciary” for their own respective purposes. These obligations attribute no large significance to the term used to describe the persons to whom each individually applies. In some instances he is referred to as a fiduciary: in others as a confidant. The term used is unimportant. It is not because a person is a “fiduciary” or a “confidant” that a rule applies to him. It is because a particular rule applies to him that he is a fiduciary or confidant for its purposes. [original emphasis of the author]
237. The point of emphasis adopted by Dr Finn in the above passage is that a person to whom the relevant rule applies is a fiduciary for the purposes of the applied rule and not necessarily for all rules, as all rules might not apply although, plainly enough, more than one rule might apply to a person. The relevant rules, however, do not apply to a person by simply attaching a taxonomic label “fiduciary” to the person. In Bristol v Mothew, Millett L.J. at p 18 recognised the force of the point of principle identified by Dr Finn but detached it from the specific relativity of the relationship between the application of the particular rule to a person and the fiduciary relationship of trust and confidence thus arising simply for the purposes of the particular rule applied in all the relevant circumstances.
238. The matrix of fact and contextual circumstances will determine whether a relevant rule applies and if it does, the person will be a fiduciary for the purposes of the rule. Once a person is a fiduciary for the purposes of a relevant rule, remedies peculiar to the equitable jurisdiction apply which are primarily restitutionary or restorative rather than compensatory. The nature of the obligation will also determine the nature of the breach.
239. In Fiduciary Obligations 1977, Dr Finn took the approach at p 2 that particular obligations will be “imposed” upon particular persons in Equity because those persons might be carrying on particular activities which “require the law’s regulation”. In Bristol v Mothew, Millett L.J. observed, at p 18AB, that the application of the relevant rule rendering a person a fiduciary of another for the purposes of the rule is a function of someone having “undertaken” to act “for or on behalf of another” in a particular matter in circumstances which give rise to a relationship of trust and confidence. These duties are “special to fiduciaries”: Millett L.J. at p 18AB.
240. In Edelman J’s 2010 LQR Article, Edelman J expounds a thesis that the essential unifying theme emerging from the corpus of cases involving fiduciary duties is that the “scope of those obligations” depends upon the “scope of an express or implied undertaking”, that is, a “voluntary undertaking” of one to another. However, in that article, Edelman J expressly “does not enter the debate about which duties must be owed in a voluntary undertaking before a person can be said to be a ‘fiduciary’”: the 2010 LQR Article at p 316.
241. In the McPherson Articles, McPherson J describes the nature of the “undertaking” as either express, implied or inferred and cautions against the analytical sloppiness inherent in finding “constructive undertakings”: 72 ALJ 289; CLC Papers, Vol 5.4, Paper No. 2, p 2. McPherson J contends that the underlying explanation of “most of the decisions” is that the transaction in question is shown to be one in which “a person is expected to act in the interests of the other party”: an expectation we would now describe as reflecting an obligation derived from an undertaking, express or implied, by one to the other to so act, arising out of the forensic circumstances of the transaction between the relevant participants.
242. McPherson J put his view of the principle this way (72 ALJ 290; CLC Papers, Vol 5.4, Paper No. 2 at p 4):
Approaching the matter in this way is capable of explaining most of the decisions which have been vexing the minds of so many for so long. Solicitors, agents, company directors and employees are precluded from acting in their own interests from the moment they assume the conduct of another’s affairs, or a segment of those affairs. So also with an investment counsellor who advises me where to put my money. The question is one of degree. How far have I surrendered my affairs to the control of someone else?
243. In Hospital Products, Mason J at p 96 sought to “distil the essence or the characteristics” of a relationship which might be described as a “fiduciary relationship”.
244. That became necessary, “[b]ecause [a] distributor – manufacturer is not an established fiduciary relationship”: Mason J at p 96. His Honour observed at pp 96 and 97 that the “critical feature” of “accepted fiduciary relationships” is that a person (the fiduciary) “undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense” [emphasis added]. If that be so, the “relationship” between the parties is “therefore” one which gives the first person a “special opportunity” to exercise the power or discretion “to the detriment of that other person who is accordingly vulnerable to abuse by [the first person] of his position”: Mason J at p 97. Thus, the first person is understood to be a fiduciary of the second and the two stand in a “fiduciary relationship”. Although referred to as a relationship of “trust and confidence”, this “essence” or characterising “feature” so described by Mason J is “critical” to each such relationship: Mason J at pp 96 and 97.
245. A person agreeing or undertaking to act “for” or “on behalf of” or “in the interests of” another signifies that the fiduciary acts in a “representative” character in the exercise of “his responsibility”: Mason J at p 97. Mason J also observes at p 97 that it is “partly” because the first person’s exercise of the power or discretion “can adversely affect the interests” of the second person and also because the second person is “at the mercy of” the first person that the first person “comes under a duty” to exercise the power or discretion “in the interests of the person to whom the duty is owed”.
246. See also the observations of Gibbs CJ at pp 6869 and 72; Dawson J at p 142 in Hospital Products.
248. In Hospital Products, Mason J made two further observations of importance.
249. The first concerns the coexistence of contractual and fiduciary relationships. Often, the existence of a basic contractual relationship provides “a foundation for the erection of a fiduciary relationship”: Mason J at p 97. In Hospital Products, Mason J was, of course, considering a bilateral contract between a manufacturer and a distributor. Where there is a contract, “it is the contractual foundation which is all important because it is the contract that regulates the basic rights and liabilities of the parties”: Mason J at p 97. Mason J also said this at p 97:
... The fiduciary relationship, if it is to exist at all, must accommodate itself to the terms of the contract so that it is consistent with, and conforms to, them. The fiduciary relationship cannot be superimposed upon the contract in such a way as to alter the operation which the contract was intended to have according to its true construction. [emphasis added]
251. The second is that although Hospital Products International Pty Ltd’s (“HPI”) capacity to make decisions and take action in some matters by reference to its own interests was inconsistent with the existence of a “general fiduciary relationship”, that circumstance did not “exclude the existence of a more limited fiduciary relationship for it is well settled that a person may be a fiduciary in some activities but not in others”: Mason J at p 98.
252. In Hospital Products, Mason J concluded that a limited fiduciary obligation sprang from the United States Surgical Corporation (“USSC”) having “entrusted” the Australian distributor, HPI, with the “protection, promotion and custodianship of its product goodwill in Australia”. This gave rise to USSC’s “vulnerability” to the distributor’s abuse of its position which enabled HPI (and its controller, Mr Blackman) to “take every opportunity to enrich themselves at USSC’s expense”: as explained by the High Court in John Alexander’s Club at [93].
258. In John Alexander’s Club, French CJ, Gummow, Hayne, Heydon and Kiefel JJ observed at [88] that phrases such as acting “for or on behalf of” and “in the interests of”, another person, must be understood “in a reasonably strict sense, lest the criterion they formulate becomes circular”. That caution follows because although, no doubt, undertaking to act in such a way is, as their Honours say, “inherent” in the position of a trustee administering a trust or a director participating in the control and management of a company (as two examples among other often recited “accepted fiduciary relationships” to use the phrase adopted by Mason J in Hospital Products at p 96) and although such an undertaking “may be found in the facts of a particular case” ad hoc, the task of isolating whether a person has undertaken to act for another especially in the context of a coexisting contract with a multiplicity of interests may be very difficult to determine.
261. In his UNSW 1989 Article, Dr Finn observes at p 85 that the received judicial wisdom is that it is “unwise” and perhaps “unhelpful” to attempt to provide a general answer to that most basic question: “when and why will a relationship be a fiduciary one?”. Dr Finn acknowledges that this may be prudent because a “useful jurisdiction should not be fettered” and the “perennially repeated observation” is that the “categories of fiduciary relationship are not closed”. Dr Finn observes, however, that, in the end, these observations are “an endorsement of uncertainty, not of understanding”.
262. Dr Finn adds this at p 85: To the extent that judges of recent times have attempted to isolate general characteristics common to fiduciary relationships, they have focussed unevenly on two phenomena: first the capacity (the power or discretion) one party has to affect the interests of the other and the corresponding vulnerability of that other; secondly, the reliance one party has upon the other because of the trust or confidence reposed in, or because of the influence or ascendancy enjoyed by, that other. The seeds, but only the seeds, of understanding are to be found here. [emphasis added]
263. Dr Finn observes at p 87 that “[t]he critical matter is our evaluation [that is, on the facts] of the nature and purpose of a relationship (or of a part of it) and of the roles to be ascribed to one or both parties in it: whose interests is the relationship structured or contrived to serve and who in the relationship is responsible for serving them?”.
264. Dr Finn also says this at p 87:
The cases suggest that there are two distinct approaches to relationship characterisation, though they overlap in some factual contexts. They entail quite different inquiries. The first requires an analysis of the actual legal incidents [original emphasis] of a relationship itself in the setting in which it occurs and from this a conclusion is arrived at as to the purpose to be attributed to the relationship and to a party’s role in it. Thus the Restatement, Second, Agency, for example, asserts unequivocally of the principal and agent relationship that “an agent is a fiduciary with respect to matters within the scope of the agency”. The second approach focuses upon the presence (actual or presumed) of factual phenomena [original emphasis] in a relationship – an ascendancy or influence acquired, a dependence or reliance conceded, a trust or confidence given – and from these a conclusion is arrived at as to the character to be attributed to the relationship and as to the role of the ‘superior’ party in it. [emphasis added]
265. Dr Finn also observes at p 93 that the fiduciary question is “essentially factual in character” and “if we entrust our interests to another person’s care, we should be entitled to expect that that other will act in our interests – at least where that other knows or has reason to know we are so doing and apparently accepts this”. Dr Finn also observes at p 93 that the difficulty in examining the “factual phenomena in relationships” lies in isolating whether “something more” is present in a relationship so as to characterise a person as a “fiduciary” of another. Although Dr Finn was examining these matters of “relationship characterisation” in the context of whether something more is present between parties to an existing contractual relationship so as to render one person the fiduciary of another, the quoted opinions expressed at pp 85, 87 and 93 go to matters of essential principle which determine the question of appropriate characterisation in all the circumstances of the essential forensic factual enquiry.
266. Reminiscent of some of the observations of Mason J in Hospital Products is this observation at p 93:
Though the raw materials of a fiduciary finding here are a trust and confidence reposed, a dependence or reliance conceded, or an ascendancy or influence acquired, the important matter is the character to be attributed to the role the alleged fiduciary has, or should be taken as having, in the circumstances of the relationship. It must so implicate that person in the conduct of the other’s affairs or so align him with the protection and promotion of that other’s interests (or their joint interest) that “foundation” exists for the fiduciary expectation: it must be such as could properly entitle that other to expect that he will act in that other’s interests (or their joint interests) – at least to the extent that he is practically enabled to affect those interests by action, recommendation, advice or otherwise. [emphasis added]
267. In Tate v Williamson, Lord Chelmsford put the principle this way at p 61:
Whenever two persons stand in such a relation that, while it continues, confidence is necessarily reposed by one, and the influence which naturally grows out of that confidence is possessed by the other, and this confidence is abused, or the influence is exerted to obtain an advantage at the expense of the confiding party, the person so availing himself of his position will not be allowed to retain the advantage, although the transaction could not have been impeached if no such confidential relation had existed.
268. Dr Finn in The Fiduciary Principle 1989 took up the notion of abuse of confidence in this way at p 46:
The shape of any country’s fiduciary law will turn in the end on the preparedness of the courts of that country to acknowledge the role of Lord Chelmsford’s “abuse of confidence” in fiduciary law’s scheme of things ... [T]he courts of Canada, Australia and New Zealand, at different paces, are according it explicit recognition. If the fiduciary principle is not to suffer artificial curtailment then, in the writer’s view, that recognition must be given. If, from whatever combination of factual conditions, the parties in their relationship are so circumstanced that one is reasonably entitled to expect that the other is acting or will act in his interests, then that person should be entitled, on bare grounds of public policy, to have that expectation protected.
This said, the critical question is when will parties be found to be so circumstanced? It is obviously not enough that one is in an ascendant position over another: such is the invariable prerequisite for the unconscionability principle. It is obviously not enough that one has the practical capacity to influence the other: representations are made, information is supplied (or not supplied) as of course with the object of, and in fact, influencing a host of contractual dealings. It is obviously not enough that the other party is in a position of vulnerability: such is the almost inevitable state in greater or lesser degree of all parties in contractual relationships. It is obviously not enough that some degree of trust and confidence are there: these are commonly placed in the skill, integrity, fairness and honesty of the other party in contractual dealings. It is obviously not enough that there is a dependence by one party upon the other: as the good faith cases illustrate, a party’s information needs can occasion this. Indeed elements of all of the above may be present in a dealing – and consumer transactions can illustrate this – without a relationship being in any way fiduciary.
[emphasis added]
269. What is it that renders one person a fiduciary of another and places the two of them in a fiduciary relationship? Dr Finn answers that question in this way at p 46:
What must be shown, in the writer’s view, is that the actual circumstances of a relationship are such that one party is entitled to expect that the other will act in his interests in and for the purposes of the relationship. Ascendancy, influence, vulnerability, trust, confidence or dependence doubtless will be of importance in making this out, but they will be important only to the extent that they evidence a relationship suggesting that entitlement. The critical matter in the end is the role that the alleged fiduciary has, or should be taken to have, in the relationship. It must so implicate that party in the other’s affairs or so align him with the protection or advancement of that other’s interests that foundation exists for the “fiduciary expectation”. Such a role may generate an actual expectation that the other’s interests are being served. This is commonly so with lawyers and investment advisers. But equally, the expectation may be a judicially prescribed one because the law itself ordains it to be that other’s entitlement. This may be so either because that party should, given the actual circumstances of the relationship, be accorded that entitlement irrespective of whether he had adverted to the matter or because the purpose of the relationship itself is perceived to be such that to allow disloyalty in it would be to jeopardise its perceived social utility. [emphasis added]
In this proceeding at paragraph [100] the Court also had regard to the following authorities: Re Wadi Wadi Peoples (1995) 124 FLR 110 at 124 per French J; Weribone v Queensland (No 2) [2013] FCA 485 at [44][46] per Rares J; Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 at [58], [60][62] per Rares J. See also, as to matters of fundamental principle, the observations of Brennan CJ in Breen v Williams (1996) 186 CLR 71 at pp 82 and 83. In Wik Peoples v Queensland (1996) 187 CLR 1 at 95, Brennan CJ considered submissions of the Wik People which asserted the existence of a fiduciary duty owed by the Crown to the indigenous inhabitants of the leased area. Although that was the context of the discussion by Brennan CJ, nevertheless the statement of general principle remains important. Brennan J said this at pp 95 and 96:
‘[In order to establish]...the existence of a fiduciary duty… [i]t is necessary to identify some action or function the doing or performance of which attracts the supposed fiduciary duty to be observed. The doing of the action or the performance of the function must be capable of affecting the interests of the beneficiary and the fiduciary must have so acted that it is reasonable for the beneficiary to believe and expect that the fiduciary will act in the interests of the beneficiary (or, in the case of a partnership or joint venture, in the common interest of the beneficiary and fiduciary) to the exclusion of the interest of any other person or the separate interest of the beneficiary.’
The Court held at [101] that 'there can simply be no doubt that Mr Woosup and Ms Tamwoy, as persons constituting the applicant at any time, undertook or agreed to act for and on behalf of and in the interests of the native title claim group in the exercise of any and all powers, responsibilities and discretions affecting the interests of the claim group in a legal or practical sense. Mr Woosup and Ms Tamwoy, by reason of that role, enjoyed a special opportunity to exercise any such powers or discretions to the detriment of the claim group, and the claim group was, plainly enough, vulnerable to any abuse of position by Mr Woosup and Ms Tamwoy. Mr Woosup and Ms Tamwoy thus stood in a fiduciary relationship, often described as a relationship of “trust or confidence” with the members of the Ankamuthi native title claim group. The members of the Ankamuthiclaim group were entitled to expect that Mr Woosup and Ms Tamwoy would act in the best interests of the claim group in exercising any of the functions, powers, responsibilities or discretions conferred upon an applicant.'
[102] The Court found that the obligations or duties Mr Woosup and Ms Tamwoy owed to the members of the Ankamuthi native title claim group were:
an obligation to not place themselves in a position where their private or personal interests came into conflict with the interests of the members of the Ankamuthi native title claim group: a conflict of interest and duty;
an obligation to not pursue and secure a personal benefit: a conflict of interest and duty;
an obligation to not make a profit from their position of trust unless expressly permitted to do so with the informed consent of the Ankamuthi native title claim group: a conflict of interest and duty;
an obligation to not place themselves in a position where their personal interests or duties conflicted with duties owed to the Ankamuthi native title claim group: a conflict of interest and duty, and a conflict of duty and duty.
When Mr Woosup and Ms Tamwoy entered into the ancillary agreement with Gulf on 4 December 2013, they owed those duties to the Ankamuthi native title claim group.
[108] Mr Gebadi deposed that he first became aware of the SRBM Project involving Gulf during negotiations with the new owner of Gulf, Metro Mining Limited in 2014. He was a member of the negotiating committee for the Ankamuthi people in negotiations concerning Metro’s proposed projects on Ankamuthi country and during those meetings it was mentioned that Gulf had already commenced their project on Ankamuthi country. He says that he had 'no previous knowledge of the agreement or negotiations for the agreement before it was signed', nor was he aware of the money paid under the agreement, at paragraphs [6] and [7].
[108] Mr Gebadi outlined the decision-making process of the Ankamuthi people: ‘When Ankamuthi People need to make a decision about something that will happen on Ankamuthi Country we hold a community authorisation meeting. There is a clear understanding that the negotiating committee does not have authority to make a decision until they go back to their people at an authorisation meeting. At that meeting the negotiating committee make[s] a presentation about the negotiations from start to finish, there is an open for discussion and people can ask questions, and then we see if there is a consensus.
Similarly, if there is a decision to be made about what to do with payments from a mining company we would hold a community authorisation meeting, some options would be presented; everyone gets to have their say; and the people present will vote on the options.’
[109]–[113] The evidence of Ms Tracey Ludwick, Ms Catherine Salee, Mr Nelson Stephen, Mr Benjamin Tamwoy, Mr Charles Woosup reflected that of Mr Gebadi.
[117] The applicants also relied on the evidence of Mr Wone, an accountant that provided advice to Mr Woosup about the establishment of a trust to manage the payments under the agreement. The Ankamuthi Western Cape Community Trust was established in June 2010, with Mr Larry Woosup as trustee. Clause 4.1 of the trust deed provides that no later than one calendar month after the date of the deed, the trustee is to appoint a steering committee comprised of five persons to represent the interests of the Ankamuthi Western Cape Community in respect of the trust. This did not occur.
[124]–[126] Mr Wone deposed, 'during the time I acted for Mr Woosup, he frequently said to me that he was the only decision maker for the Ankamuthi people...On many occasions I strongly cautioned Mr Woosup about making decisions on behalf of the Ankamuthi people, and frequently told him about matters which needed to go to a full community meeting for approval. As I was not a legal advisor, I did not advise in detail about this, but I understand that Chalk & Fitzgerald did so...'
[129]–[141] The payments were made in the form of bank cheques payable to the Ankamuthi Western Cape Community Trust and were received into the control of Mr Woosup (either directly or into accounts operated by him in the name of the Ankamuthi Western Cape Community Trust) or paid to a party in discharge of obligations owed by Mr Woosup and Ms Tamwoy to that party:
an amount of $20,000 paid by Gulf by bank cheque dated 28 November 2013 made out to the Ankamuthi Western Cape Community Trust and paid into a National Australian Bank account on 6 December 2013 in the account name Ankamuthi Western Cape Community Trust, operated by Mr Larry Woosup;
an amount of $95,000 paid by Gulf by bank cheque dated 27 February 2014 made out to the Ankamuthi Western Cape Community Trust and paid into a Queensland Country Credit Union Account in the name of the Ankamuthi Western Cape Community Trust also operated by Mr Woosup;
an amount of $150,000 paid by Gulf by bank cheque into the Supreme Court of Queensland on 31 March 2014 (as part of the payment by Gulf of $255,562.56 into Court) and paid out of Court to Chalk & Fitzgerald;
an amount of $75,000 paid by Gulf into Court by bank cheque on 31 March 2014 (as part of the $255,562.56 payment) and paid out of Court into an account operated by Mr Woosup in the name of the Ankamuthi Western Cape Community Trust at the CBA on 7 August 2014;
an amount of $30,000 paid by Gulf into Court by bank cheque on 31 March 2014 (as part of the $255,562.56 payment) and paid out of Court to MacDonnells Law for and on behalf of Mr Woosup and Ms Tamwoy;
an amount of $1,267.25 paid from the trust account of MacDonnells Law on 12 January 2015 to the Ankamuthi Western Cape Community Trust (which amount formed part of the amount of $31,267.25 paid out of Court to MacDonnells Law for the benefit of Mr Woosup and Ms Tamwoy)
The bank statements produced on subpoena show that an account was opened at the Commonwealth Bank branch at 76 Lake Street, Cairns in the name ‘Larry Joe Woosup as trustee for the Ankamuthi Western Cape Community Trust’ on 28 January 2014. On 29 January 2014, there was a cash withdrawal of $50,000 at Cairns from that account and a further cash withdrawal at Cairns from that account of $50,000 on 31 January 2014. By 31 January 2014, the account was overdrawn by an amount of $100,160 with a temporary excess limit of $135,000. It is not clear what happened to the $50,000 cash withdrawal from the CBA Woosup Trust Account 188 on 29 January 2014. However, the $50,000 cash withdrawal from that account on 31 January 2014 was paid into the CBA Woosup Personal Account 343 on 31 January 2014.
[137] In all, these amounts constitute total payments of $371,267.25 paid either into the hands of Mr Woosup, by payment into accounts controlled and operated by him in the name of the Ankamuthi Western Cape Community Trust or to him personally, or payments made in discharge of obligations owed by Mr Woosup and Ms Tamwoy to Chalk & Fitzgerald and then to MacDonnells Law. Of that sum of $371,267.25, an amount of $370,562.56 was paid by Gulf. The remaining amount of $1,267.25 represents the accretions on Gulf’s payment into Court of $255,562.56.
[247] Greenwood J accepted the evidence given by all of the deponents relied upon by the applicants and at paragraph [248] apart from accepting the evidence of the deponents relied upon by the applicants. The Court found as facts all of those matters of fact described in these reasons.
[154] The Court made the following findings:
Mr Woosup and Ms Tamwoy entered into the Gulf Ancillary agreement without prior disclosure to the Ankamuthi native title claim group of the outcome of the negotiations. They also failed to disclose to the Ankamuthi native title claim group, prior to entering into the agreement, the terms of any proposed agreement with Gulf or a draft of a proposed agreement. In particular, they also failed to disclose to the Ankamuthi native title claim group, prior to entering into the agreement, the arrangements for the payment of royalties, prepayments and other benefits payable by Gulf under the agreement. They also failed to disclose to the Ankamuthi native title claim group prior to entering into the agreement, the rights they purported to confer upon Gulf in consideration of Gulf performing the terms of the agreement and, in particular, in consideration of Gulf paying the prepayments and the royalty payments contemplated by the agreement.
By engaging in the conduct described at, Mr Woosup and Ms Tamwoy deprived the Ankamuthi native title claim group of the opportunity of considering any proposed agreement with Gulf at a meeting of the members of the Ankamuthi People, consistent with their cultural traditions. Mr Woosup engaged in the conduct described above, despite having been told by Mr Wone and Chalk & Fitzgerald Lawyers that he, in undertaking discussions with Gulf, was acting for and on behalf of the Ankamuthi people as a whole and acting on behalf of the Ankamuthi native title claim group as a whole and owed his people 'strict duties'.
Mr Woosup and Ms Tamwoy did not disclose to the Ankamuthi native title claim group the fact of the agreement or details of the receipt of payments from Gulf pursuant to that agreement. Rather, representatives of the Ankamuthi native title claim group became aware of the terms of the agreement during the course of these proceedings.
Mr Woosup appropriated for his own benefit all of the payments and failed to deal with those monies for and on behalf of his people. Mr Woosup treated his people’s money, benefits and compensation, as his own, and has entirely failed to account for the way in which it was used.
Mr Woosup has acted in breach of the fiduciary obligations he owed to his own people. He has preferred his own interests to their interests. All of the monies paid by Gulf have been used and applied by Mr Woosup in furtherance of his own interests and in derogation and disregard of the interests of his people, the Ankamuthi native title claim group.
The monies paid by Gulf under the Ancillary agreement to the Ankamuthi Western Cape Community Trust, were held on trust by Mr Woosup (whether in his own capacity or in his contended capacity as trustee of the Western Cape Community Trust) for and on behalf of the Ankamuthi native title claim group. Once banked, the monies were held in those accounts (in either capacity in which Mr Woosup held the monies) on trust for the Ankamuthi native title claim group as beneficiaries.
Every day that Mr Woosup and Ms Tamwoy failed to fully disclose the terms of the Ancillary agreement with Gulf and the payment to Mr Woosup either personally or in his capacity as trustee of the Western Cape Community Trust (a trust controlled by him), of any benefits payable by Gulf under the agreement, constituted a continuing breach of duty owed to the Ankamuthi native title claim group by them.
Every transaction by which Mr Woosup applied the monies received by him from Gulf, to his own use, constituted a breach of fiduciary duty owed to the Ankamuthi native title claim group and a breach of trust by applying the monies to his own use rather than applying the monies for and on behalf of the Ankamuthi native title claim group.
[160] The total amount paid to or for the benefit of Mr Woosup is $371,267.25 as described in these reasons and, in particular, the matters set out at [128][137]). However, the applicants abandon any claim in relation to the accretions and thus they confine their claim on behalf of the Ankamuthi people to recovery from Mr Woosup of an amount of $370,000.00.
[161] The Court stated that by the well settled doctrines of equity, a constructive trust arises whenever one party has obtained money which does not equitably belong to him and which he cannot in good conscience retain or withhold from another who is beneficially entitled to it as, for example, when money has been paid by accident, mistake of fact, or fraud, or has been acquired through a breach of trust, or violation of fiduciary duty, and the like. His Honour made a declaration that he held the monies on a constructive trust from the moment in time that Mr Woosup received any part of the benefits.
[163]–[171] Greenwood J granted the following relief:
‘First, a declaration that Larry Woosup and Beverley Tamwoy (also known as Beverley Mamoose) breached the duties they owed to the native title claim group for the Ankamuthi native title determination application QUD 6158 of 1998 being a native title claim group as described at [4] of the reasons for judgment published today by entering into an agreement described as an “Ancillary agreement” with Gulf Alumina Limited without first obtaining the authority of the native title claim group for the Ankamuthi native title determination application QUD 6158 of 1998.
Second, a declaration that the financial benefits set out in the schedule to the declaration paid by Gulf Alumina Limited pursuant to the Ancillary agreement dated 4 December 2013 and received by Larry Woosup whether in his own capacity or in purported exercise of a capacity as trustee of the Ankamuthi Western Cape Community Trust were at all relevant times benefits held by Larry Woosup for and on behalf of the native title claim group for the Ankamuthi native title determination application QUD 6158 of 1998 being a native title claim group as described at [4] of the reasons published today.
Third, a declaration that as to the benefits described in Declaration 2, Mr Woosup held those benefits on a constructive trust for and on behalf of the Ankamuthi native title claim group (the “beneficiaries”) being the native title claim group described at [4] of the reasons for judgment published today, from the moment Mr Woosup received those benefits represented by each payment whether he received them by bank cheque in the way described or whether the monies were received from Gulf by payment of the monies into the Supreme Court of Queensland and then paid out in the way described in these reasons.
Fourth, an order that Larry Woosup account for the financial benefits derived by him or under his control identified in Declaration 2 and the schedule to Declaration 2, to the native title claim group for the Ankamuthi claim being a native title claim group as described at [4] of the reasons published today.
Fifth, an order that Larry Woosup pay to and for the benefit of the native title claim group being a native title claim group as described at [4] of the reasons published today an amount of $370,000 by paying that sum to Seven Rivers Aboriginal Corporation (ICN 8522).
Sixth, an order that Larry Woosup pay the monies contemplated by the above order by paying those monies into Court by 6 February 2018.
Seventh, Larry Woosup and Beverley Tamwoy pay the costs of the applicants of and incidental to these proceedings.
Greenwood J made an order that the proceeding be adjourned to a date to be nominated by the Court after 6 February 2018.’
[173] The Court deemed it appropriate to act to protect the interests of the beneficiaries of the constructive trust, the Ankamuthi people, by making an order, returnable when the proceeding is listed at a date after 6 February 2018, directing that Mr Woosup be prevented from exercising any power or authority to effect transactions on any account held by the PBC as trustee for the native title holders to which any monies are deposited by Gulf or any other party for and on behalf of the native title holders. To the extent that the beneficiaries are potentially exposed to the adverse consequences of any conduct by Mr Woosup, by reason of his position within the PBC, which may provide him with an opportunity to act to the detriment of the native title holders, the jurisdiction in equity is sufficiently broad to enable the Court to protect the interests of the beneficiaries by making the order contemplated by [172] of these reasons.