[2025] SASCA 32

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE CHIEF JUSTICE KOURAKIS) [2023] SASC 51 Appellant: RANGELEA HOLDINGS PTY LTD AS TRUSTEE OF THE ADNYAMATHANHA MASTER TRUST Counsel: MR I ROBERTSON SC WITH MR A DAL CIN - Solicitor: TOWNSENDS First Respondent: ADNYAMATHANHA TRADITIONAL LANDS ASSOCIATION (ABORIGINAL CORPORATION) RNTBC ICN 3743 (UNDER SPECIAL ADMINISTRATION) Counsel: MR D O’LEARY SC WITH MR T MCFARLANE - Solicitor: LK LAW Second Respondent: REGINALD JAMES WILTON Counsel: MR D O’LEARY SC WITH MR T MCFARLANE - Solicitor: LK LAW Third Respondent: SARAH FLORENCE TAYLOR Counsel: MR D O’LEARY SC WITH MR T MCFARLANE - Solicitor: LK LAW Fourth Respondent: IVAN CLYDE MCKENZIE Counsel: MR D O’LEARY SC WITH MR T MCFARLANE - Solicitor: LK LAW Hearing Date/s: 10/10/2023 File No/s: CIV-23-005386 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. RANGELEA HOLDINGS PTY LTD v ADNYAMATHANHA TRADITIONAL LANDS ASSOCIATION & ORS [2025] SASCA 32 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David) 28 March 2025 EQUITY - TRUSTS AND TRUSTEES - CLASSIFICATION OF TRUSTS - GENERALLY EQUITY - TRUSTS AND TRUSTEES - PROCEEDINGS BETWEEN TRUSTEES AND BENEFICIARIES OR THIRD PARTIES EQUITY - TRUSTS AND TRUSTEES - POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES The parties to this appeal have fallen into dispute over whether the appellant trustee, Rangelea Holdings Pty Ltd (Rangelea), should be required to provide trust documents and be subjected to the appointment of an inspector for the purposes of reviewing the administration of the Adnyamathanha Master Trust (the Trust), settled by a deed dated 22 July 2003 (the Trust Deed). The Trust Deed confers a discretion on Rangelea to make distributions to those named as members of various traditional owner “sub-groups” set out in a schedule to the Trust Deed. There was evidence that more than $4 million had been paid into the Trust during 2020 pursuant to native title mining agreements with Heathgate and Quasar, but there was little to no information -- 1 of 101 -- available as to how much native title compensation monies had been received into the Trust nor how those monies had been administered or what had happened to them. Rangelea refused requests to provide Trust documents and records. The first respondent is the Adnyamathanha Traditional Lands Association (ATLA), an Aboriginal and Torres Strait Islander corporation incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (the CATSI Act). ATLA is also an agent prescribed body corporate and a registered native title body corporate under the Native Title Act 1993 (Cth) (the Native Title Act), and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (the Native Title PBC Regulations). Following the determination of native title in 2009 in favour of the Adnyamathanha people, ATLA was bound by s 57(3) of the Native Title Act to perform any functions conferred under that Act, together with any further functions conferred by the Native Title PBC Regulations. By reg 7, ATLA assumed the function of acting as the agent of the “common law holders” concerning matters relating to their native title. ATLA is currently under “special administration” pursuant to a determination made by the Registrar of Aboriginal and Torres Strait Islander Corporations under s 487-1 of the CATSI Act, as extended from time to time. Mr Peter McQuoid was first appointed special administrator of ATLA on 17 April 2021. The second, third and fourth respondents (the respondents) are Adnyamathanha people who are “common law holders” of native title in Adnyamathanha land, as defined by s 56(1)(a) of the Native Title Act and Schedule 2 of the 2021 ATLA Rule Book. They are also members of a sub-group of traditional owners identified in the Schedule to the Trust Deed. Their names appear on the Traditional Owners Register, which is required to be maintained pursuant to the Trust Deed. Though Rangelea disputes it, they also claim to be beneficiaries of the Trust. That is to say, they say that they are people whom it is intended should benefit and receive payments from the Trust. Rangelea has appealed against the orders made by the primary judge which upheld their application to the Supreme Court which permitted ATLA and the respondents to obtain access to certain trust documents regarding the administration of the Trust. These were granted on the basis that they had satisfied various statutory and general law criteria concerning access to trust documents. In so far as the application was based on statute, the respondents relied on s 84B of the Trustee Act 1936 (SA) (the Trustee Act). The primary judge also appointed an inspector to investigate and report on the administration of the Trust under s 84C of the Trustee Act. In seeking to set aside these orders, Rangelea contended that ATLA had no standing to seek relief (appeal grounds 4 and 6); that the primary judge erred in finding that the Trust was a private discretionary trust rather than a charitable trust, with the result that the respondents had no entitlement to the information sought (appeal grounds 2 and 3); and there was, in any event, no basis for the appointment of an inspector (appeal ground 7). HELD (the Court) dismissing the appeal with costs: 1. The primary judge made no material error in connection with the finding that ATLA had standing. There is an important distinction between what may be said to be “related” to native title and native title rights and interests (under ss 57(3) and 58 of the Native Title Act and reg 7(1)(a) of the Native Title PBC Regulations), and acts which “affect” native title and native title rights and interests (under s 227 of the Native Title Act and reg 8 of the Native Title PBC Regulations). The distinction is essentially between a matter that “relates” to native title and an act which “affects” native title. The result is that the statutory agency under which ATLA operated generally permitted it to act for the common law holders concerning matters “relating” to their native title, unless the matter comprised an act which “affected” their native title, in which case consultation, consent and certification under regs 8 and 9 of the Native Title PBC Regulations were required. [103]-[104], [110]-[112], [132] 2. An act “affecting” a native title right as recognised by s 227 of the Native Title Act must be one which extinguishes native title rights and interests or is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise. The request for trust -- 2 of 101 -- documents and the commencement of the Supreme Court application did not involve the extinguishment or surrender of native title rights and interests. Those matters were, on the contrary, concerned with ATLA striving to ensure that the common law holders would continue to benefit from those rights, together with the “royalty” payments made under the native title mining agreements relating to those rights. Reg 8(1) does not apply, and consultation and consent were not required, because ATLA was not relevantly engaged in “making a native title decision” when seeking documents or making its application to the Supreme Court. [122]-[130] 3. The Trust is a private discretionary trust and not a charitable trust within the fourth of the categories identified by Lord Macnaghten in Commissioners for Special Purposes of Income Tax v Pemsel, and the respondents as beneficiaries had statutory and general law rights to seek trust documents and records and the appointment of an inspector. When one stands back and looks at the terms of the Trust Deed, it is a Trust intended to benefit people rather than a purpose. [223]-[227], [258]-[260] 4. There was a proper basis for the appointment of an inspector under the Trustee Act. [332]-[342] 5. Observations made about construing trust deeds [146]-[151], whether the Trust has vested [215]-[221], the statutory and general law rights of beneficiaries seeking trust documents and records in South Australia [311]-[317], and the Trustee Act provisions concerning the appointment of an inspector [320]-[330]. 6. Were it necessary to do so, the alternative contentions of ATLA and the respondents should be upheld. [345], [357], [361]-[362] Aboriginal and Torres Strait Islander Act 2005 (Cth) s 191B; Aboriginal Councils and Associations Act 1976 (Cth); Charitable Trust Act (NSW) s 23; Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth); Law of Property Act 1936 (SA) s 61; Local Government Act 1995 (WA) s 6.26; Mining Act 1971 (SA); Native Title Act 1993 (Cth) ss 15, 17, 20, 22D, 22G, 22L, 23J, 24GB, 24GE, 24HA, 24KA, 24ID, 24MD, 48, 55, 56, 57, 58, 61, 87, 87A, 94, 223, 224, 225, 227, 238, 253; Native Title Amendment Act 1998 (Cth); Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) regs 3, 7, 8, 8A, 9; Trustee Act 1936 (SA) ss 4, 36, 58, 59B, 59C, 60, 67, 84B, 84C, 84D, 84E, 84F; Trustee Regulations 2011 (SA) reg 5, referred to. Anthony R Cant v Kirby [2011] NSWSC 1193; Darkinjung Pty Ltd v Darkinjung Local Aboriginal Land Council (2006) 203 FLR 394; Groote Eylandt Aboriginal Trust Incorporated v Deloitte Touche Tohmatsu (No 2) (2017) 169 NTR 1; Shire of Derby-West Kimberley v Yungngora Association Inc [2007] WASCA 233, distinguished. Avanes v Marshall (2007) 68 NSWLR 595; Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405; Re Compton [1945] 1 Ch 123; Rouse v IOOF Australia Trustees Ltd (1999) 73 SASR 484; Schmidt v Rosewood Trust Ltd [2003] 2 AC 709; Spellson v George (1987) 11 NSWLR 300; Trustees of the Kean Memorial Trust Fund v Attorney-General (SA) (2003) 86 SASR 449; Walmbaar Aboriginal Corporation v State of Queensland (2009) 177 FCR 42; Webster v Murray Goulburn Co- Operative Co Ltd (No 3) [2018] FCA 990, discussed. Aboriginal Hostels Ltd v Darwin City Council (1985) 75 FLR 197; Aboriginal Housing Office v Jacky [2022] NSWSC 916; Adnyamathanha No 1 Native Title Claim Group v The State of South Australia [2009] FCA 358; Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359; Adnyamathanha People v State of South Australia [2003] FCA 211; Adnyamathanha Traditional Lands Association & Others v Rangelea Holdings Pty Ltd [2023] SASC 51; Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353; Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570; Aid/Watch Inc v FCT (2010) 241 CLR 539; AIT Investments Group Pty Ltd v Markham Property Fund (No 2) Pty Ltd [2015] NSWSC 216; Akiba v The Commonwealth (2013) 250 CLR 209; Alice Springs Town Council v Mpweteyerre Aboriginal Corp & Ors (1997) 115 NTR 25; Attorney-General v Eastlake (1853) 11 Hare 205; Attorney-General (NSW) v Perpetual Trustee Co Ltd (1940) 63 CLR 209; Australian Broadcasting Corp v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540; Baptist Churches of South Australia v Attorney-General (SA) [2018] SASC 14; Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647; Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622; Bond v Ramsay (1993) 27 ATR 479; Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR -- 3 of 101 -- 153; Breen v Williams (1996) 186 CLR 71; Byrnes v Kendle (2011) 243 CLR 253; Cant (liquidator of Billa Downs Aboriginal Corporation (in liq)) v Kirby [2011] NSWSC 1193; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; Colton v Hunter [2009] SASC 299; Commissioner of Taxation (Cth) v Bargwanna (2012) 244 CLR 655; Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531; Commonwealth v Yunupingu [2025] HCA 6; Central Bayside General Practice Association Ltd v Commissioner of State Revenue (2006) 228 CLR 168; Danbol Pty Ltd v Swiss Re International SE [2020] VSCA 274; Davies v Perpetual Trustee Co Ltd [1959] AC 439; Dingle v Turner [1972] AC 601; Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; Gibson v Rivers-McCombs [2014] FCA 144; GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631; Hancock v Reinhart (2015) 13 ASTLR 1; Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68; Hunter v Colton [2009] SASC 129; In Re Compton [1945] 1 Ch 123; In re Scarisbrick [1951] Ch 622; Kauter v Hilton (1953) 90 CLR 86; Kayler Thomson v Colonial First State Investments Ltd (No 2) [2021] FCA 854; Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62; Latimer v Commissioner of Inland Revenue (NZ) [2004] 1 WLR 1466; Mabo v Queensland (No 2) (1992) 175 CLR 1; McDonald v Ellis (2007) 72 NSWLR 605; McPhail v Doulton [1971] AC 424; Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; Mercanti v Mercanti [2014] WASC 64; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109; Murray v Schreuder (2009) 1 ASTLR 340; Northern Territory v Griffiths (2019) 269 CLR 1; Nunawading Shire v Adult Deaf & Dumb Society of Victoria (1921) 29 CLR 98; Offshore Oil NL v Southern Cross Exploration NL (1985) 3 NSWLR 337; Oppenheim v Tobacco Securities Trust Co Ltd [1951] AC 297; O’Rourke v Darbishire [1920] AC 581; Oxer v Astec Paints Australia Pty Ltd (2005) 240 LSJS 109; Peat v Walsh [1965] Ch 594; Queensland v Central Queensland Land Council Aboriginal Corporation (2002) 125 FCR 89; Queensland v Congoo (2015) 256 CLR 239; Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989; Re Cowin (1886) 33 Ch D 179; Re Fairbairn (deceased) [1967] VR 633; Re Income Tax Acts [No 1] [1930] VLR 211; Re Gillespie (dec’d) [1965] VR 402; Re Maguire (deceased) [2010] 2 NZLR 845; Re Mills (1981) 27 SASR 200; Moon v London County Council [1931] AC 151; Re Muir (dec’d) [1964] VR 529; Re Londonderry’s Settlement [1965] 1 Ch 918; Re Scarisbrick's Will Trusts [1951] Ch 622; Re Simersall; Blackwell v Bray (1992) 35 FCR 584; Retail Employees Superannuation Pty Ltd v Pain (2016) 139 SASR 401; R (Independent Schools Council) v Charity Commission for England and Wales [2012] Ch 214; Robinson v Stuart (1891) 12 LR (NSW) Eq 47; Salvation Army (Vic) Property Trust v Shire of Fern Tree Gully (1952) 85 CLR 159; Schreuder v Murray (No 2) (2009) 41 WAR 169; Scottish Burial Reform and Cremation Society v Glasgow Corporation [1968] AC 138; Silkman v Shakespeare Haney Securities Ltd (2011) 8 ASTLR 117; Smorgon v ES Group Operations Pty Ltd (2021) 64 VR 146; South Australian Employers’ Chamber of Commerce & Industry Inc v Commissioner of State Taxation [2017] SASC 127; South Australian Employers’ Chamber of Commerce & Industry Inc v Commissioner of State Taxation (2019) 135 SASR 64; Stratton v Simpson (1970) 125 CLR 138; Thompson v Federal Commissioner of Taxation (1959) 102 CLR 315; TG Bullen Nominees v Bullen [2024] SASC 95; Tipperary Developments Pty Ltd v Western Australia (2009) 38 WAR 488; Vancouver Society of Immigrant and Visible Minority Women v Minister of National Revenue 1999 CanLII 704; Verge v Somerville [1924] AC 496; Wang v Cai [2021] NSWSC 1162; Western Australia v Brown (2014) 253 CLR 507; Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373; Western Australia v Ward (2002) 213 CLR 1; Whitworth Street Estates Ltd v Miller [1970] AC 583; Wik Peoples v Queensland (1996) 187 CLR 1; Wright v Stevens [2018] NSWSC 548; Youyang Pty Ltd v Minter Ellison Morris Fletcher (2003) 212 CLR 484; Yungngora Association [2007] WASCA 233, considered. -- 4 of 101 -- RANGELEA HOLDINGS PTY LTD v ADNYAMATHANHA TRADITIONAL LANDS ASSOCIATION & ORS [2025] SASCA 32 Court of Appeal – Civil: Livesey P, Bleby and David JJA THE COURT: Introduction 1 The Adnyamathanha people were first recorded as living in the region of the Flinders Ranges in South Australia during the nineteenth century, but they have maintained a connection with the land from a time long before British settlement in South Australia in 1836. This connection with the Adnyamathanha land was an important element of the native title determination made by the Federal Court in favour of the Adnyamathanha people in 2009.1 2 Disputes have arisen concerning the entities established to represent the interests of the Adnyamathanha people, including in connection with the receipt and management of monies received from native title mining agreements. The evidence before the primary judge included a settlement deed which resolved some of the disputes and led to appearances in the Federal Court and the payment into court of monies received under a native title mining agreement. The settlement terms included that the monies would be paid into a trust established to receive all “Royalty Payments” from native title mining agreements.2 3 Since then, the parties to this appeal have fallen into dispute over whether the appellant trustee, Rangelea Holdings Pty Ltd (Rangelea) should be required to provide trust documents and be subjected to the appointment of an inspector for the purposes of reviewing the administration of the trust through which those monies are received, managed and distributed. 4 Rangelea is the trustee of the Adnyamathanha Master Trust (the Trust), settled by a deed dated 22 July 2003 (the Trust Deed).3 The Trust Deed confers a discretion on Rangelea to make distributions to those named as members of various traditional owner “Sub-Groups” set out in a schedule to the Trust Deed. 5 The first respondent is the Adnyamathanha Traditional Lands Association (ATLA), an Aboriginal and Torres Strait Islander corporation incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (the CATSI Act). ATLA is also an agent prescribed body corporate and a registered native title body corporate under the Native Title Act 1993 (Cth) (the Native Title 1 Adnyamathanha No 1 Native Title Claim Group v The State of South Australia [2009] FCA 358 (Mansfield J). Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359 (Mansfield J). 2 Trial tender book, item 4, page 29 and following. 3 And referred to in the settlement deed, trial tender book, item 4, page 32. -- 5 of 101 -- [2025] SASCA 32 The Court 2 Act), and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (the Native Title PBC Regulations). 6 Following the determination of native title in 2009 in favour of the Adnyamathanha people, ATLA was bound by s 57(3) of the Native Title Act to perform any functions conferred under that Act, together with any further functions conferred by the Native Title PBC Regulations. By reg 7, ATLA assumed the function of acting as the agent of the “common law holders” concerning matters relating to their native title, as well as the function of managing the rights and interests of the common law holders as authorised by them. 7 In accordance with these arrangements, ATLA became the authorised agent and representative of the common law holders, as provided for by s 57(2) of the Native Title Act and the 2021 ATLA “Rule Book”.4 8 For the purposes of s 58 of the Native Title Act, reg 7(1)(c) the Native Title PBC Regulations stipulates that ATLA’s agency extended to matters “in relation to native title rights and interests of common law holders”, including holding “in trust money connected with the native title rights and interests”, such as payments “received as compensation or otherwise related to” their native title rights and interests.5 9 The native title mining agreements entered into by ATLA record that ATLA directed that the payments or royalties due to ATLA from the mining companies were to be paid to the Trust.6 10 The second, third and fourth respondents (the respondents) are Adnyamathanha people who are “common law holders” of native title in Adnyamathanha land, as defined by s 56(2)(a) of the Native Title Act and Schedule 2 of the 2021 ATLA Rule Book. They are also members of a Sub-Group of traditional owners identified in the Schedule to the Trust Deed. Their names appear on the Traditional Owners Register, which is required to be maintained pursuant to the Trust Deed. 11 Though the appellant disputes it, they also claim to be beneficiaries of the Trust. That is to say, they say that they are people whom it is intended should benefit and receive payments from the Trust. 12 ATLA is currently under “special administration” pursuant to a determination made by the Registrar of Aboriginal and Torres Strait Islander Corporations (the Registrar) under s 487-1 of the CATSI Act, as extended from 4 Being ATLA’s “internal governance rules”, see the 2021 ATLA Rule Book, preamble and cl 3.1(1). See also s 29-15(1)(c) of the CATSI Act. 5 And the 2021 Rule Book, see cll 3.1(1), (2) and (3) and Sch 2. 6 The native title mining agreement with ATLA, being the Beverley 2010 Agreement, dated 12 May 2010 (with Heathgate Resources), cl 12.1, AB 224; and the Four Mile Native Title Mining Agreement, dated 12 May 2010 (with Quasar Resources), cl 12.1, AB 267. -- 6 of 101 -- [2025] SASCA 32 The Court 3 time to time. Mr Peter McQuoid (Mr McQuoid) was first appointed special administrator of ATLA (Special Administrator) on 17 April 2021. 13 On appointment, Mr McQuoid became responsible for the conduct of the affairs of, and able to exercise any powers belonging to, ATLA. He must answer to, as well as report to, the Registrar regarding his conduct of the administration. He aims to restore ATLA to “financial and organisational health” so that control can be returned to the common law holders.7 14 These reasons are set out as follows: The Rangelea appeal and the notice of contentions ....................................................................... 3 Disposition of the appeal................................................................................................................ 4 Relevant background...................................................................................................................... 4 Rangelea’s contentions on appeal ................................................................................................ 13 Appeal grounds 4 and 6 – ATLA’s standing ............................................................................... 14 The determination of appeal grounds 4 and 6 .............................................................................. 25 Appeal grounds 2 and 3 – the Trust: a private discretionary trust or a charitable trust? ............. 35 The determination of appeal grounds 2 and 3 .............................................................................. 39 Appeal ground 7 – Was there was a basis for the appointment of an inspector?......................... 65 The determination of appeal ground 7 ......................................................................................... 72 The notice of alternative contentions ........................................................................................... 91 Conclusion ................................................................................................................................... 96 The Rangelea appeal and the notice of contentions 15 Rangelea has appealed against the orders made by the primary judge which permitted ATLA and the respondents to obtain access to certain trust documents regarding the administration of the Trust.8 These were granted on the basis that they had satisfied various statutory and general law criteria concerning access to trust documents. In so far as the application was based on statute, the respondents relied upon provisions in the Trustee Act 1936 (SA) (the Trustee Act).9 16 The primary judge also appointed an inspector to investigate and report on the administration of the Trust.10 17 In seeking to set aside these orders, Rangelea contended that ATLA had no standing to seek relief (appeal grounds 4 and 6); that the primary judge erred in finding that the Trust was a private discretionary trust rather than a charitable trust, with the result that the respondents had no entitlement to the information sought 7 Second McQuoid affidavit dated 22 December 2021, paragraph 6, AB 2113. 8 Adnyamathanha Traditional Lands Association & Others v Rangelea Holdings Pty Ltd [2023] SASC 51 (Kourakis CJ) (Reasons). 9 Principally, though not exclusively, the Trustee Act, ss 84B and 84C, as well as ss 60 and 67, in the event that the Trust was properly to be regarded as a charitable trust. 10 Pursuant to the Trustee Act, s 84C. -- 7 of 101 -- [2025] SASCA 32 The Court 4 (appeal grounds 2 and 3); and there was, in any event, no basis for the appointment of an inspector (appeal ground 7).11 18 The appellant contended that the appeal should be allowed, and the applications made by ATLA and the respondents should be dismissed. 19 By a notice of alternative contentions, ATLA and the respondents submitted: 1. that the finding that the Trust was a private discretionary trust was open solely by reference to the terms of the Trust Deed (alternative contention 1); 2. that relief under the Trustee Act under ss 84B and 84C was open even if the Trust was a charitable trust (alternative contention 2); and 3. the appointment of an inspector was supported by the desirability of enabling the Special Administrator to complete his report to the common law holders regarding the administration of the native title compensation paid into the Trust, as well as the means by which to appropriately address the significant disputation regarding the administration of the Trust and the monies paid to it (alternative contention 3). Disposition of the appeal 20 For the reasons that follow, the primary judge made no material error in connection with the findings that ATLA had standing, the Trust is a private discretionary trust and not a charitable trust, and the respondents as beneficiaries had statutory and general law rights to seek trust documents and records, and statutory rights to seek the appointment of an inspector. There was a proper basis for the appointment of an inspector. 21 It follows that the appeal should be dismissed. Relevant background 22 There have been disputes amongst the Adnyamathanha people in connection with native title claims for over twenty years. 23 On 18 March 2003, Mansfield J delivered reasons for judgment which recorded that the principal application before the Federal Court was an application or claim for the determination of native title by the Adnyamathanha people regarding land in the Flinders Ranges and surrounding areas, excluding the Flinders Ranges National Park. That application represented an amalgamation of several earlier proceedings under the Native Title Act which had been instituted before the Native Title Amendment Act 1998 (Cth). 24 The earlier proceedings and the principal application were all made on behalf of the Adnyamathanha people. Mansfield J recorded that Heathgate Resources Pty 11 Appeal ground 5, which complained about the adoption of the 2021 Rule Book, was abandoned at the hearing of the appeal. -- 8 of 101 -- [2025] SASCA 32 The Court 5 Ltd (Heathgate) proposed to carry out mining operations on part of the claim area and that one of the registered native title claimants, a Ms Anderson, had undertaken negotiations with Heathgate regarding the terms upon which it might do so. An agreement resulted, which provided for certain payments including a six-monthly “royalty” payment.12 25 That agreement recognised that there were other native title claims affecting part of the claim area which Heathgate proposed to mine. It was acknowledged by Ms Anderson that Heathgate intended to enter into agreements with other registered claimants. Mansfield J referred to the Adnyamathanha Community Trust, provided for by deed dated 24 March 2000, the trustees of which included Ms Anderson. The trustees had determined that it was appropriate to expend trust fund monies to pay the costs and expenses incurred in prosecuting the native title claim. 26 Nonetheless, Mansfield J noted “some discord” amongst the nine native title applicants who had been joined as authorised persons to maintain the principal application. Ms Anderson was separately represented but supported by, amongst others, Mr Gordon Coulthard. Mr Vincent Coulthard and Mr Mark McKenzie were also separately represented. 27 At that time, Mr Vincent Coulthard was Chair of ATLA, which had been incorporated on 12 February 2001 under the Aboriginal Councils and Associations Act 1976 (Cth). The purpose of ATLA was to benefit the community of Adnyamathanha people. The objects of ATLA included being a registered native title body to manage the native title rights and interests of the Adnyamathanha people, whether as claimed or as held following any determination of native title. These objects included holding on trust any monies (including monies received by way of compensation) payable in relation to the native title rights and interests of the Adnyamathanha people. 28 On 16 March 2001, ATLA resolved to direct its Chair to instruct its legal representatives to take all reasonable steps to restrain the mining companies from distributing funds to individual members of the Adnyamathanha people, because it wished to secure those payments for the benefit of the Adnyamathanha people as a communal group.13 29 This led to a Notice of Motion filed in the Federal Court on 21 August 2001, amended on 19 June 2002, seeking orders removing Ms Anderson as an applicant and trustee of the trust. 30 After ATLA wrote to Heathgate on 15 January 2002, advising Heathgate about its resolution made on 16 March 2001, and threatening to call Heathgate to account if it paid any further royalties to Ms Anderson, Heathgate applied by interpleader summons to the District Court of South Australia on 12 Adnyamathanha People v State of South Australia [2003] FCA 211. 13 Adnyamathanha People v State of South Australia [2003] FCA 211, [17] (Mansfield J). -- 9 of 101 -- [2025] SASCA 32 The Court 6 13 February 2002. Heathgate sought directions as to how it should continue to make payments under its agreement. An interim order was made that Heathgate’s payments be paid to the District Court. Subsequently, this order was vacated and payments were made into the Federal Court. 31 On 19 June 2002, Mansfield J ordered that the royalty payments be paid into the Federal Court. That order was made “as a matter of temporary practicality”.14 32 By the time of the ruling made by Mansfield J in 2003, there were substantial funds in court. Ms Anderson and others sought access to those funds to pay for legal representation to resist the application for her removal. Mr Vincent Coulthard and others, as well as ATLA, were represented by the Aboriginal Legal Rights Movement. They opposed any funds being used by Ms Anderson and others for the purpose of resisting the motion for removal.15 Mansfield J explained:16 It is plain that the applicants in the principal proceeding are no longer a cohesive group. There are at least three separate groups. The evidence before me indicates that the Adnyamathanha People as a community may also be divided. That remains to be seen. Ms Anderson and Mr Anderson claim that the existing applicants are the proper and authorised applicants to maintain the principal applications and that ATLA is not authorised to represent, nor is it properly representing, the interests of the Adnyamathanha People. They claim that the decision-making processes in ATLA are flawed, both procedurally by virtue of the way in which meetings have been conducted, and substantively because they do not represent decisions made as to who should be the authorised persons to maintain the current application for a determination of native title in accordance with s 251B of the [Native Title] Act. Those allegations are of course disputed by Mr V Coulthard on behalf of ATLA and the putative substituted applicants. Mr V Coulthard for his part makes significant allegations about the way in which Ms Anderson and the other trustees of the Trust have conducted the Trust and have applied the moneys received under it. 33 Justice Mansfield found that there was conflicting evidence on various matters, including the “rights and wrongs of the claim”, and he declined to interfere with the trustees of the trust in fulfilling their functions. In the exercise of his discretion, Mansfield J proposed to allow the trustees of the trust access to the funds to meet the legal costs and expenses incurred by Ms Anderson and Mr Anderson.17 34 By 22 July 2003, the settlement described at the outset of these reasons was effected and the Trust had been settled and Rangelea was appointed trustee. The Trust was settled for the purposes of benefiting the traditional owners. Under item 1 of the Schedule to the Trust Deed, the traditional owners were each identified by Sub-Group. It will be necessary to return to the terms of the Trust Deed. 14 Adnyamathanha People v State of South Australia [2003] FCA 211, [19] (Mansfield J). 15 Adnyamathanha People v State of South Australia [2003] FCA 211, [20] (Mansfield J). 16 Adnyamathanha People v State of South Australia [2003] FCA 211, [24] (Mansfield J). 17 Adnyamathanha People v State of South Australia [2003] FCA 211, [30] (Mansfield J). -- 10 of 101 -- [2025] SASCA 32 The Court 7 35 Later, by orders made on 30 March 2009, Mansfield J approved the consent determination that there were native title rights and interests over various areas in the Flinders Ranges, including the area known as the Angepena Pastoral Station, pursuant to s 61 of the Native Title Act on behalf of specified Adnyamathanha people.18 The orders made by the court reflected an agreement with the State of South Australia that native title existed within certain parcels of land and that native title had been extinguished, at least partly, in other parts of the claim areas. That agreement extended to the nature and extent of the native title rights and interests. 36 The application for determinations by consent had been made under ss 87 and 87A of the Native Title Act. It is not presently necessary to go into detail about the findings made by Mansfield J regarding a range of matters such as “the relationship between the claim group’s society and the society in the determination area at sovereignty”, nor the continued use of Adnyamathanha language and the substantially uninterrupted observance of traditional laws and customs since sovereignty.19 His Honour found that there was contemporary evidence of various laws and customs, including the ongoing knowledge of muda (also mura) or Dreaming traditions, as well as of other matters, such as the traditional way to butcher and cook kangaroo.20 37 Justice Mansfield was satisfied that the material relied on by the parties in support of the proposed consent determination adequately addressed the requirements of ss 223 and 225 of the Native Title Act,21 as explained by the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria.22 His Honour concluded that the parties likely to be affected by the proposed consent determination had had sufficient access to independent legal representation, and that the State of South Australia had given appropriate consideration to the evidence and to the interests of the community generally when providing its consent.23 38 Justice Mansfield recorded that the determination envisaged that native title was not to be held in trust,24 and there was a timetable for ATLA to amend its constitution so that it could perform the role of a prescribed body corporate under 18 Adnyamathanha No 1 Native Title Claim Group v The State of South Australia [2009] FCA 358, [2]-[3]; Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359. 19 Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359, [27]-[28] (Mansfield J). 20 Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359, [29]-[30] (Mansfield J). 21 Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359, [35] (Mansfield J). 22 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422. 23 Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359, [36], citing Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109, [29]. 24 Cf ss 55 and 56(1) of the Native Title Act. -- 11 of 101 -- [2025] SASCA 32 The Court 8 s 57 of the Native Title Act.25 Order 6 defined the native title holders and order 7 identified the bundle of rights and interests which comprised native title. 39 Attached to the orders made by the court were very extensive annexures and schedules addressing matters such as the terms of the consent determination, the description and map of the determination area, the identification of the native title holders as well as their native title rights and interests, the nature and extent of other interests, as well as a table identifying in some detail the land excluded. 40 By May 2010, ATLA, as agent for the Adnyamathanha people, had entered into native title mining agreements with Heathgate and Quasar.26 41 These native title mining agreements were similar in form, acknowledging the validity of certain mining tenements, as well as agreeing to grant further tenements on condition that certain payments were made to the Trust. By clause 12 these were termed “production payments”. They were calculated, for example, on 2 per cent of the “Beverley Mine Gate Value”. The payments were made semi-annually in arrears, and at the same time as the royalty payments made to the State government under the Mining Act. The primary judge recorded that these payments, also referred to as “royalty” payments, approximated $4 million per annum by 2020.27 42 Mr McQuoid’s evidence was that during 2020 more than $4 million had been paid into the Trust.28 43 The “Rule Book” earlier mentioned complies with the CATSI Act and identifies the native title holders, being the named living Aboriginal people who are descendants of named “apical ancestors”.29 The Rule Book describes ATLA as the registered native title body corporate, or RNTBC,30 intended in each of the consent determinations made by Mansfield J as the intended Prescribed Body Corporate.31 The dictionary set out in Schedule 2 and the other schedules to the Rule Book form part of the Rule Book. It will be necessary to return to some of the terms of the Rule Book including its objectives under clause 3, and its powers and duties under clause 4. For present purposes, it is sufficient to observe that members must be at least 18 years, a person who is Aboriginal and identifies as Adnyamathanha, and one of the common law holders.32 25 Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359, [38]. 26 Reasons, [4]-[5]. These were made under the Mining Act 1971 (SA) and one was known as the Beverley 2010 Agreement with Heathgate. A similar native title mining agreement was made with Quasar Resources Pty Ltd (Quasar). 27 Reasons, [7]. 28 Second McQuoid affidavit dated 22 December 2021, paragraph 33, AB 2117. 29 2021 Rule Book, preamble. 30 2021 Rule Book, cll 1 and 2. 31 2021 Rule Book, preamble. 32 2021 Rule Book, cl 5.1. -- 12 of 101 -- [2025] SASCA 32 The Court 9 44 In the period May to August 2021, ATLA (through Mr McQuoid), and each of the respondents, made separate written requests to Rangelea seeking access to inspect and make copies of trust documents concerning the administration of the Trust covering the period 2018 to 2021. Townsends, the solicitors for Rangelea, refused each request. So far as ATLA was concerned, Rangelea maintained: 1. ATLA was neither a member of Rangelea nor an “eligible beneficiary” of the Trust; 2. Rangelea had no financial role or interest in the affairs of ATLA; 3. neither ATLA nor the Special Administrator had any power to seek access to the trust documents of the Trust, and Mr McQuoid had no investigative powers concerning third parties and was not authorised to look into the affairs of Rangelea or the Trust; and 4. any attempt by Mr McQuoid to investigate the affairs of Rangelea exceeded his statutory powers as Special Administrator. 45 So far as the requests made by each respondent were concerned, Rangelea refused access on the grounds that: 1. the Trust was a charitable trust. This was apparently the first time this assertion had been made; 2. the Trust had no beneficiaries; 3. section 84B of the Trustee Act did not apply to the Trust; 4. the respondents were not permitted by s 84B of the Trustee Act to make a request for documents; and 5. the provisions of the Trustee Act did not apply to the Trust, and they were not entitled to have access to the documents of the Trust. 46 Before this Court, ATLA and the respondents contended that Rangelea appeared to be contending that no-one, and certainly neither ATLA nor the respondents, was permitted to access any documents relating to the administration of the Trust, and it was unclear if anyone other than the Trustee was permitted to have access to trust documents. 47 ATLA and the respondents applied for relief from the Supreme Court, relying on the following grounds as alternatives: 1. Pursuant to the provisions of Part 5A of the Trustee Act (“Records to be kept by trustees and investigations”) namely ss 84B and 84C; 2. Under the general law; and -- 13 of 101 -- [2025] SASCA 32 The Court 10 3. Only in the event that a determination was made that the Trust is a charitable trust, pursuant to Part 4 of the Trustee Act (“Charitable trusts procedure”), being ss 60 and 67. Whilst service on the Attorney-General is required in connection with relief under Part 4, it was common ground that no formal service had been effected. 48 By late May 2021, Mr McQuoid had written to Heathgate and Quasar asking that payments to the Trust be stopped. These payments were initially suspended before being paid into the Supreme Court.33 The correspondence from Townsends showed that Rangelea was concerned that the conduct of Mr McQuoid had brought about a breach of the native title mining agreements because payments were not being made as agreed.34 On appeal Rangelea submitted that Mr McQuoid wanted to coerce Rangelea into compliance with his demands. 49 Affidavit evidence filed in late 2021 from Mr McQuoid, and various Adnyamathanha people, outlined their concerns about the management of Rangelea and the administration of the Trust. They spoke about the cessation of their receipt of royalty payments in around 2014, what they regarded as unequal payments thereafter, and the ongoing requests that they had been making for records of royalty monies received by the Trust. 50 In his second affidavit dated 22 December 2021, Mr McQuoid referred to the appointment of former special administrators of ATLA which ended in April 2021, after which he was appointed, initially for a few days, but his period of appointment was extended from time to time. When describing the operation of ATLA and Rangelea, he described Mr Vincent Coulthard as “the dominant individual behind both entities”.35 51 Mr McQuoid described concerns regarding a “lack of transparency surrounding the management and distribution of the native title compensation monies” paid pursuant to the native title mining agreements entered into between ATLA and Heathgate and Quasar.36 Mr McQuoid explained that the monies were paid by the mining companies directly to the Trust. Mr McQuoid said that he had become aware that there had been draft resolutions circulated by the former special administrators by which it was proposed to remove Rangelea as trustee but these resolutions had never been put to a vote. According to Mr McQuoid:37 My own view was that the preparation of those proposed resolutions and their being put to the ATLA members was not an appropriate course of action for the special administrator of ATLA to pursue. Rather, I took the view that the more prudent course, acting consistently with the special administrator’s statutory duties and obligations, was to seek 33 See, for example, the Notice of Payment into Court in the amount of approximately $1.46 million, AB 2102. 34 See, for example, correspondence from Townsends Solicitors dated 28 June 2021, AB 1282; the notices of payment into court from AB 2098. 35 Second McQuoid affidavit dated 22 December 2021, paragraph 13, AB 2115. 36 Second McQuoid affidavit dated 22 December 2021, paragraph 25, AB 2116. 37 Second McQuoid affidavit dated 22 December 2021, paragraph 28, AB 2116. -- 14 of 101 -- [2025] SASCA 32 The Court 11 out and obtain all relevant information concerning the administration of the Master Trust so as to provide the Common Law Holders with greater transparency on those matters. That would then enable the Common Law Holders to be appropriately informed as to the management of their native title compensation monies before making any decision in relation to the future administration of ATLA. 52 Mr McQuoid went on to explain that although he was aware that more than $4 million had been paid into the Trust during 2020 pursuant to the native title mining agreements, there was little to no information available to him or to the common law holders as to how much native title compensation monies had been received into the Trust nor how those monies had been administered or what had happened to them.38 53 Mr McQuoid explained that he decided to direct Heathgate and Quasar to temporarily suspend royalty payments because Rangelea had not been transparent and had refused to release any financial information as to how the payments had been allocated or used. His purpose, he explained, was to protect the rights and interests of the common law holders.39 54 Finally, Mr McQuoid referred to the receipt by the Office of the Registrar of Indigenous Corporations (ORIC) of a number of complaints from Adnyamathanha people about Rangelea and its directors over a number of years.40 Some of these complaints had been forwarded to Federal Members of Parliament. 55 In her affidavit dated 22 December 2021, the respondent Ms Sarah Taylor referred to the haphazard receipt of royalty payments following contact with her uncle, Mr Vincent Coulthard, as well as her request for access to trust records. She explained that she was concerned that an ATLA newsletter described large payments being made by the mining companies but that she and other Adnyamathanha people had only been getting “scraps”.41 56 Ms Taylor explained that some family members left the Sub-Group associated with Mr Vincent Coulthard and joined a different Sub-Group and, as a result, it became apparent that different Sub-Groups were getting different amounts and that, even within the same Sub-Group, people were getting different royalty payment amounts.42 57 In her affidavit of 23 December 2021, Ms Jillian Marsh, an Adnyamathanha woman and a member of the Yura community of the northern Flinders Ranges, referred to attendances made at ATLA meetings and requests made for records of royalty monies and being constantly told that “this was Rangelea business, not ATLA business”.43 38 Second McQuoid affidavit dated 22 December 2021, paragraph 33, AB 2117. 39 Second McQuoid affidavit dated 22 December 2021, paragraph 36, AB 2117. 40 Second McQuoid affidavit dated 22 December 2021, paragraph 44, AB 2118. 41 Affidavit of Sarah Taylor dated 22 December 2021, paragraphs 14-15, AB 2139. 42 Affidavit of Sarah Taylor dated 22 December 2021, paragraphs 18, AB 2139. 43 Affidavit of Jillian Marsh dated 23 December 2021, paragraph 6, AB 2108. -- 15 of 101 -- [2025] SASCA 32 The Court 12 58 In his affidavit dated 23 December 2021, the respondent Mr Reginald Wilton referred to correspondence with Townsend Lawyers, as well as the requests made from time to time to attend Rangelea meetings. He said that they were told that these were only for directors and that what happened at them was “all confidential”.44 He explained that there were no meetings for the Trust. He described not seeing any financial statements for any of the relevant entities and becoming frustrated because he “wasn’t getting paid properly”.45 59 In his affidavit dated 22 December 2021, the respondent Mr Ivan McKenzie described receiving royalties, which he had “always received” but that people seemed to get paid “all different amounts”.46 Mr McKenzie said that the amounts he received varied. On one occasion he received $6,000, whereas on another occasion he received $700, and this was without any contact from Mr Vincent Coulthard. The monies just appeared in his bank account. He thought that he was getting paid “pretty well compared to other people” but he wanted to “know why everyone doesn’t get paid the same”.47 60 Mr McKenzie spoke about attending a meeting convened by special administrators during which there were discussions about a lack of transparency concerning ATLA money, and that he wanted new administration.48 61 Mr McKenzie described going to see solicitors during 2007 and 2009 and trying to get an investigation into why there was secrecy surrounding the handling of the money, and why there was no explanation for why the payments were all different, but that his solicitors could not provide much help.49 According to Mr McKenzie:50 I need to see fairness. There is heaps of money being paid out by mining companies and why is it going to the claimants and then issued out? Why can’t we get an organisation going where everyone gets an equal amount? I want to know more about how Rangelea has been managing the Master Trust and where the money’s been going. We need more information about how the Rangelea directors have been managing things. I tried to take some action years ago when I went to see the lawyers, but nothing came of it. I am really happy that we are starting to get somewhere now. 62 Mr McKenzie spoke of his concern that there may be people managing the Trust who were directly benefiting from it. He said that he had seen Mr Vincent Coulthard interviewed on the ABC, and he was recorded as saying words to the effect that if people wanted information, “why don’t you just ask?”. 44 Affidavit of Reginald Wilton dated 23 December 2021, paragraph 16, AB 2144. 45 Affidavit of Reginald Wilton dated 23 December 2021, paragraphs 12-21, AB 2144. 46 Affidavit of Ivan McKenzie dated 22 December 2021, paragraphs 4 and 5, AB 2149. 47 Affidavit of Ivan McKenzie dated 22 December 2021, paragraphs 7-9, AB 2149. 48 Affidavit of Ivan McKenzie dated 22 December 2021, paragraph 15, AB 2150. 49 Affidavit of Ivan McKenzie dated 22 December 2021, paragraph 22, AB 2150. 50 Affidavit of Ivan McKenzie dated 22 December 2021, paragraphs 25-27, AB 2150-2151. -- 16 of 101 -- [2025] SASCA 32 The Court 13 Mr McKenzie said, “Well, we are asking for information now and they won’t give it to us”.51 63 In his affidavit dated 24 January 2022, Mr Vincent Coulthard provided an extensive history of the Adnyamathanha people and their native title claims, and the establishment of ATLA and Rangelea. He described the establishment of the Trust as well. Representatives from each of the eight Sub-Groups representing the claimants for native title became the directors and shareholders of Rangelea. He explained that every Adnyamathanha person can be a member of a Sub-Group, and that each Sub-Group has representation on the Board of Rangelea.52 64 Mr Coulthard described concerns about expenditures during 2019, and a SAPOL investigation concerning the possibility of criminal activity.53 It would seem that it was soon after this that ORIC appointed special administrators to ATLA. 65 Mr Coulthard then described the administration of the Trust since its inception in 2003, and he estimated the total number of common law holders at about 3,000, which was substantially more than the membership of ATLA, which was in the order of 900.54 Mr Coulthard described the appointment of special administrators and the concerns that soon developed despite a number of meetings. According to Mr Coulthard, some of those who attended the meetings were not ATLA members nor even native title holders.55 66 Mr Coulthard described a further meeting conducted in Hawker in late November 2021 at which concerns were again aired regarding a lack of confidence in the special administrators.56 67 Mr Coulthard described concerns about the conduct of Mr McQuoid as well as what he regarded as the offensive and unfounded allegations made against him in the affidavits filed with the Supreme Court.57 68 Apart from addressing the management of Rangelea, ATLA and the Trust in a general way, as well as the receipt of the requests for information, Mr Coulthard did not attempt to answer those requests nor provide any detailed information. Rangelea’s contentions on appeal 69 Whilst accepting that the appeal appeared complex, Rangelea submitted that the appeal devolved to two fundamental questions. The first was whether ATLA could proceed at all without “consultation and consent” from the common law holders. This was said to be essential to ATLA’s authority as agent. It was 51 Affidavit of Ivan McKenzie dated 22 December 2021, paragraph 35 and 36, AB 2151. 52 Affidavit of Mr Vincent Coulthard dated 24 January 2022, paragraphs 40-42, AB 2158. 53 Affidavit of Mr Vincent Coulthard dated 24 January 2022, paragraphs 83-90, AB 2162. 54 Affidavit of Mr Vincent Coulthard dated 24 January 2022, paragraph 119, AB 2164. 55 Affidavit of Mr Vincent Coulthard dated 24 January 2022, paragraph 147, AB 2166. 56 Affidavit of Mr Vincent Coulthard dated 24 January 2022, paragraphs 155-164, AB 2167-2168. 57 Affidavit of Mr Vincent Coulthard dated 24 January 2022, paragraphs 165-171, AB 2168. -- 17 of 101 -- [2025] SASCA 32 The Court 14 submitted that there had been no consultation with the common law holders, and they had not provided their consent to the request for documents and the appointment of an inspector, nor to the commencement of Supreme Court proceedings seeking relief. The absence of consultation and consent appeared to be common ground. 70 Rangelea submitted that three things flowed from the absence of consultation and consent. First, all of ATLA’s claims must fail and the orders made by the primary judge on 27 April 2023 must be set aside. Secondly, all of the alternative contentions concerning ATLA must also fail. Finally, the appeal against ATLA must therefore succeed on all of the pursued grounds. 71 Rangelea submitted that the second fundamental question at the heart of the appeal was whether the Trust was a charitable trust. If the Trust was a charitable trust, then the respondents are not beneficiaries of a private discretionary trust as the primary judge found. Rangelea submitted that the respondents had no rights pursuant to ss 84B and 84C of the Trustee Act, because they are not relevant “beneficiaries” for the purposes of those provisions. 72 Rangelea submitted that the respondents had no rights under s 60 of the Trustee Act either, because the pre-conditions for an application to be made concerning a charitable trust under that provision had not been established. In particular, it had not been established that there was “a breach of any trust or supposed breach of any trust created for charitable purposes”, as s 60(1) required. In addition, for the alternative under s 60(1), Rangelea submitted that it had not been demonstrated that a direction or order of the Supreme Court was “necessary for the administration or management or to the advantage or benefit” of the Trust. 73 Speaking generally, Rangelea did not challenge any factual finding made by the primary judge. It should also be noted that Rangelea put no argument against the scope of relief, or the documents sought, if its arguments failed. 74 Rangelea developed its submissions by reference to its grounds of appeal. It is convenient to address those submissions, the grounds of appeal, and the findings of the primary judge to which they relate, in the order in which they were addressed on the hearing of this appeal. Appeal grounds 4 and 6 – ATLA’s standing 75 The finding by the primary judge that ATLA was authorised to commence proceedings as agent for the common law holders without first consulting them and obtaining their consent is set out in the following passage:58 I find that ATLA is authorised pursuant to regulation 8 of the [Native Title] PBC Regulations to bring this application as agent of the common law holders in order to obtain information on the administration of the … Trust to put before the common law holders so that they might make informed decisions about the assignment of income derived from 58 Reasons, [14]. -- 18 of 101 -- [2025] SASCA 32 The Court 15 their native title rights and interests. ATLA has standing to bring this application for an order under the general law that it be permitted to inspect and copy trust account records, by reason of its statutory functions and status as agent of both those common law holders who are beneficiaries and those who are not. I will make orders to that effect in favour of ATLA and the Adnyamathanha applicants. 76 Later, after considering the terms of the Native Title PBC Regulations, the primary judge found that reg 7(1)(a) authorised prescribed registered native title bodies corporate to act as the agent of common law holders without requiring consultation or consent unless that was otherwise required by those regulations.59 77 The primary judge held that he would make an order for the inspection of the trust records prescribed by reg 5 of the Trustee Regulations in favour of ATLA for two reasons.60 The first reason was that ATLA had a statutory function as agent for the common law holders who are beneficiaries. In consequence, ATLA should be accorded the standing of a beneficiary to seek an order for the purposes of providing that information to its principals. Though there was evidence that a number of ATLA’s members and common law holders (who were also beneficiaries) opposed the application, that was not a reason to decline to make the orders. The primary judge was not satisfied that this opposition was “universal or fully informed”.61 78 The second reason for making the order was that the primary judge accorded ATLA standing to bring the application in its capacity as the holder of the native title rights and interests from which the income of the Trust is derived. In that capacity, the primary judge accorded ATLA an entitlement under the general law to access the trust records prescribed by reg 5 of the Trustee Regulations. The primary judge found that ATLA was entitled to know how Rangelea had distributed the income ATLA had assigned to it so that it might consider whether that should continue.62 79 Rangelea accepted that ATLA was a prescribed body corporate agent for the purposes of the Native Title Act. As Rangelea submitted, ATLA existed to enable the common law holders to advance claims, defend claims and to negotiate. It had no independent objects but those of the common law holders. It was not a member of Rangelea nor was it an eligible beneficiary of the trust. In addition, Rangelea was not a member of ATLA. 80 Rangelea submitted that the Federal Court had recognised that the native title of the common law holders was held by ATLA “but not as a trustee”. Rangelea 59 Reasons, [37]. 60 Reasons, [254]. Although the primary judge referred to reg 5B, in context his Honour must have meant reg 5. 61 Reasons, [254]. 62 Reasons, [254]. -- 19 of 101 -- [2025] SASCA 32 The Court 16 submitted that the primary judge had failed to give that matter the legal significance that it required.63 81 Because this was not a case where the native title was to be held in trust,64 s 57(2) of the Native Title Act applied. It was that provision under which ATLA was appointed, and by s 57(3) it was required to perform any functions given to it as a registered native title body corporate under the Act as well as any functions given to it under the Native Title PBC Regulations. Under reg 8(1) of those regulations, ATLA was required, for any “native title decision”, to “consult, and obtain consent in relation to the decision” in accordance with regs 8 or 8A “before making a native title decision”. 82 As will be seen, the application and operation of the relevant regulations depends to a significant extent on what is meant by a “native title decision” under the Native Title PBC Regulations. Rangelea referred to, without addressing in any detail, the discussion about consultation with the common law holders of native title in the textbook ‘Australian Native Title Law’.65 83 Before addressing the balance of Rangelea’s submissions concerning these grounds, it is necessary to address the relevant provisions and regulations to which it referred in argument. 84 By s 253 of the Native Title Act, the term “common law holders” has the meaning given by s 56: by s 56(2), reference is made to “the native title holders” as the “common law holders” of native title. This is in a context where the Federal Court may require a representative to indicate whether the common law holders intend to have their native title held in trust. Alternatively, under ss 56(2), 57(2) and 57(3), if the common law holders do not nominate a trustee, the Federal Court must determine that the rights and interests are to be held by the common law holders, and functions are conferred on a nominated prescribed body corporate, as happened in this case. 85 By s 224 of the Native Title Act, the term “native title holder” is defined to mean the prescribed body corporate who holds native title on trust, or those persons who hold native title: 224 Native title holder The expression native title holder, in relation to native title, means: (a) if a prescribed body corporate is registered on the National Native Title Register as holding the native title rights and interests on trust—the prescribed body corporate; or 63 See Reasons, [34]; Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359, Annexure C [16] (Mansfield J), AB 205. 64 Cf Native Title Act, s 56(1). 65 Melissa Perry and Stephen Lloyd, ‘Australian Native Title Law’, 2nd ed, Lawbook Co 2018, [57.30]. -- 20 of 101 -- [2025] SASCA 32 The Court 17 (b) in any other case—the person or persons who hold the native title. 86 By s 253 of the Native Title Act, the term “agent prescribed body corporate” is relevantly defined as follows: agent prescribed body corporate, in relation to native title rights and interests, means: (a) a prescribed body corporate that is determined under section 57 in relation to the native title; or (b) a prescribed body corporate that, under regulations made for the purposes of paragraph 56(4)(e), is to perform the functions referred to in subsection 57(3) in relation to the native title; … 87 Section 57 of the Native Title Act provides, by s 57(2), for the arrangements which must be implemented where a prescribed body corporate does not hold native title on trust and, after becoming a registered native title body corporate, it is to perform the functions set out in s 57(3): 57 Determination of prescribed body corporate etc. Where trustee (1) If the determination under section 56 is that the native title rights and interests are to be held in trust by a prescribed body corporate, the prescribed body corporate, after becoming a registered native title body corporate (see the definition of that expression in section 253), must also perform: (a) any other functions given to it as a registered native title body corporate under particular provisions of this Act; and (b) any functions given to it as a registered native title body corporate under the regulations (see section 58). Where not trustee (2) If the determination under section 56 is not as mentioned in subsection (1) of this section, the Federal Court must take the following steps in determining which prescribed body corporate is, after becoming a registered native title body corporate, to perform the functions mentioned in subsection (3): (a) first, it must request a representative of the common law holders to: (i) nominate, in writing given to the Federal Court within a specified period, a prescribed body corporate for the purpose; and (ii) include with the nomination the written consent of the body corporate; (b) secondly, if a prescribed body corporate is nominated in accordance with the request, the Federal Court must determine that the body is to perform the functions; -- 21 of 101 -- [2025] SASCA 32 The Court 18 (c) thirdly, if no prescribed body corporate is nominated in accordance with the request, the Federal Court must, in accordance with the regulations, determine which prescribed body corporate is to perform the functions. Functions where not trustee (3) After becoming a registered native title body corporate, the body must perform: (a) any functions given to it as a registered native title body corporate under particular provisions of this Act; and (b) any functions given to it under the regulations (see section 58). 88 Section 58 provides for the making of regulations concerning a registered native title body corporate (see s 57(3)(b) above): 58 Functions under regulations The regulations may make provision for a registered native title body corporate to do all or any of the following: (a) if it does not hold the native title on trust under section 56, or regulations made for the purposes of that section—to act as agent or representative of the common law holders in respect of matters relating to the native title; (b) to perform in a specified way any functions in relation to the native title given to it under other provisions of this Act; (ba) to perform in a specified way any functions, in relation to a compensation application, given to it under other provisions of this Act; (c) to hold on trust, or perform functions in relation to, compensation under this Act; (d) to consult with, and act in accordance with the directions of, the common law holders, or persons entitled to compensation under this Act, in performing any of its functions; (e) if it does not hold the native title on trust—to enter into agreements in relation to the native title that are binding on the common law holders, provided the agreements have been made in accordance with processes set out in the regulations; (f) to perform any other functions in relation to the native title, or compensation under this Act. 89 As can be seen from s 58(a) above, and reg 7(1)(a) below, the Native Title Act and the Native Title PBC Regulations assume the authority of a registered native title body corporate to act as “the agent or representative” of the common law holders, in respect of “matters relating to the native title” of those common law holders. -- 22 of 101 -- [2025] SASCA 32 The Court 19 90 Regulations 7, 8, 8A and 9 of the Native Title PBC Regulations are as follows, noting that Rangelea gave particular emphasis to reg 8(1), which stipulates the requirement to “consult and obtain consent”: 7 Functions of registered native title body corporate not acting as trustee Body corporate that does not hold native title rights and interests (1) For the purposes of section 58 of the Act, a registered native title body corporate that is an agent prescribed body corporate in relation to native title rights and interests of common law holders has the following functions: (a) to act as agent of the common law holders in respect of matters relating to the native title; (b) to manage the rights and interests of the common law holders as authorised by the common law holders; (c) to hold in trust money connected with the native title rights and interests (including payments received as compensation or otherwise related to those rights and interests); (d) to invest or otherwise apply the money held in trust as directed by the common law holders; (e) to consult with the common law holders in accordance with regulations 8, 8A and 8B; (f) to perform any other function relating to those rights and interests as directed by the common law holders. Body corporate that makes compensation application in relation to extinguished area (1A) For the purposes of section 58 of the Act, a registered native title body corporate that: (a) does not hold native title rights and interests in trust; and (b) makes a compensation application on behalf of all the persons who claim to be entitled to the compensation; has the following functions: (c) to consult with the persons who claim to be entitled to the compensation in accordance with regulation 8B; (d) to hold in trust payments received as compensation; (e) to invest or otherwise apply the money held in trust as directed by the persons entitled to the compensation; (f) to perform any other function relating to the compensation as directed by the persons entitled to the compensation. -- 23 of 101 -- [2025] SASCA 32 The Court 20 General (2) Without limiting subregulation (1) or (1A), in order to perform its functions, a registered native title body corporate may, on behalf of the common law holders or persons entitled to, or who claim to be entitled to, the compensation: (a) consult other persons or bodies; and (b) enter into agreements; and (c) exercise procedural rights; and (d) accept notices required by any law of the Commonwealth, a State or a Territory to be given to the common law holders or persons entitled to, or who claim to be entitled to, the compensation. Note: An agent prescribed body corporate is also subject to regulations 8 to 10. 8 Consultation with, and consent of, common law holders in relation to native title decisions Consultation and consent required before a native title decision is made (1) Before making a native title decision, a prescribed body corporate that: (a) holds native title rights and interests in trust for the common law holders; or (b) is an agent prescribed body corporate that has become a registered native title body corporate; must consult and obtain consent in relation to the decision: (c) if the decision is a high level decision—in accordance with this regulation; or (d) if the decision is a low level decision—in accordance with this regulation or regulation 8A. No need to consult or obtain consent in relation to a standing instructions decision if covered by approval (2) However, the prescribed body corporate does not need to consult and obtain consent in relation to a standing instructions decision covered by an approval under subregulation (8). Consultation and consent processes (3) If there is a particular process of decision-making that, under the Aboriginal or Torres Strait Islander traditional laws and customs of: (a) if the native title determination in relation to the prescribed body corporate identifies classes of common law holders—the classes of common law holders on whom the proposed native title decision would have an effect; or -- 24 of 101 -- [2025] SASCA 32 The Court 21 (b) in any other case—the common law holders; must be followed in relation to the giving of the consent mentioned in subregulation (1), the consent must be given in accordance with that process. (4) If subregulation (3) does not apply, the consent must be given in accordance with the process of decision-making agreed to, or adopted, for the proposed native title decision, or for decisions of the same kind as that decision, by: (a) if the native title determination in relation to the prescribed body corporate identifies classes of common law holders—the classes of common law holders on whom the proposed native title decision would have an effect; or (b) in any other case—the common law holders. Effect of failure to consult or obtain consent (6) An agreement that gives effect to a native title decision of a prescribed body corporate has no effect to the extent that it applies to the decision, if the body corporate does not comply with this regulation. (7) Subregulation (6) does not apply to an indigenous land use agreement of a kind described in section 24EB or 24EBA of the Act. Approval for standing instructions decisions (8) A standing instructions decision is covered by an approval under this subregulation if: (a) the prescribed body corporate has the approval of the following to make decisions of that kind without needing to consult and obtain further consent: (i) if the native title determination in relation to the prescribed body corporate identifies classes of common law holders—the classes of common law holders on whom the decision would have an effect; (ii) in any other case—the common law holders; and (b) any conditions imposed by the common law holders mentioned in subparagraph (a)(i) or (ii) on the approval have been met in relation to the decision. (9) The common law holders mentioned in subparagraph (8)(a)(i) or (ii) may give or revoke an approval, and impose, vary or revoke conditions on an approval: (a) if the approval relates to low level decisions—using a relevant consultation process in the constitution of the prescribed body corporate; or (b) in any case: -- 25 of 101 -- [2025] SASCA 32 The Court 22 (i) if there is a particular process of decision-making that, under the Aboriginal or Torres Strait Islander traditional laws and customs of those common law holders, must be followed in relation to giving the approval—in accordance with that process; or (ii) if subparagraph (i) does not apply—in accordance with the process of decision-making agreed to, or adopted, by those common law holders in relation to giving the approval. 8A Alternative consultation processes in relation to native title decisions (1) This regulation applies to the making of a low level decision if the prescribed body corporate has in its constitution one or more consultation processes to which the following have consented: (a) if the native title determination in relation to the prescribed body corporate identifies classes of common law holders—the classes of common law holders on whom the decision would have an effect; (b) in any other case—the common law holders. (2) Before making a native title decision, the prescribed body corporate must consult and obtain consent in relation to the decision using the relevant consultation process in its constitution. 9 Certificate in relation to consultation and consent (1) As soon as practicable after: (a) a native title decision is made by a prescribed body corporate that: (i) holds native title rights and interests in trust for the common law holders; or (ii) is an agent prescribed body corporate that has become a registered native title body corporate; or (b) a registered native title body corporate decides to make a compensation application; the body corporate must prepare a certificate in writing. (2) The certificate must certify that: (a) for a high level decision other than a standing instructions decision— the body corporate has consulted and obtained consent in relation to the decision in accordance with regulation 8; or (b) for a high level decision that is a standing instructions decision: (i) if the decision is covered by an approval under subregulation 8(8)—the decision is of that kind; or -- 26 of 101 -- [2025] SASCA 32 The Court 23 (ii) in any case—the body corporate has consulted and obtained consent in relation to the decision in accordance with regulation 8; or (c) for a low level decision: (i) if the decision is covered by an approval under subregulation 8(8)—the decision is of that kind; or (ii) in any case—the body corporate has consulted and obtained consent in relation to the decision in accordance with regulation 8 or 8A; or (d) for a decision to make a compensation application—the body corporate has consulted and obtained consent in relation to the making of the compensation application in accordance with regulation 8B. Note: The Registrar of Aboriginal and Torres Strait Islander Corporations has functions in relation to certificates prepared under this regulation: see section 55A of the Corporations (Aboriginal and Torres Strait Islander) Regulations 2017. (3) The certificate must include the following: (a) the date of the certificate; (b) details of the process of making the decision; (c) details (including names) of the persons who participated in the process of making the decision; (d) if the certificate is of a kind mentioned in subparagraph (2)(b)(i) or (c)(i)—details of the process of approval under subregulation 8(8); (e) if paragraph (d) does not apply—details of the consultation and consent process. (4) The certificate must be: (a) executed by the body corporate in accordance with subsection 99-5(1) or (2) of the Corporations (Aboriginal and Torres Strait Islander) Act 2006; or (b) signed by the chief executive officer of the body corporate. (5) The body corporate may collect (within the meaning of the Privacy Act 1988) personal information (within the meaning of that Act) about common law holders or persons who claim to be entitled to compensation for the purposes of preparing a certificate. (6) A certificate prepared in accordance with this regulation in relation to a native title decision is prima facie evidence that the body corporate has consulted and obtained consent in relation to the decision as required by regulation 8. (7) A certificate prepared in accordance with this regulation in relation to a decision to make a compensation application is prima facie evidence that the -- 27 of 101 -- [2025] SASCA 32 The Court 24 body corporate has consulted and obtained consent in relation to the making of the compensation application as required by regulation 8B. 91 The operation of reg 8(1) is predicated on the prospect of a “native title decision”, which is defined in reg 3(1) of the Native Title PBC Regulations as follows: native title decision means a decision: (a) to surrender native title rights and interests in relation to land or waters; or (b) to enter an indigenous land use agreement under Subdivision B, C or D of Division 3 of Part 2 of the Act or an agreement under Subdivision P (right to negotiate) of that Division; or (c) to allow a person who is not a common law holder, or a class of persons who are not common law holders, to become members of a prescribed body corporate; or (d) to include one or more consultation processes in the constitution of a prescribed body corporate; or (e) to do, or to agree to, any act that would otherwise affect the native title rights or interests of the common law holders (other than a decision to make a compensation application). 92 In Gibson v Rivers-McCombs, this statutory and regulatory scheme, as well as the significance of a certificate under reg 9, were explained:66 Regulations 7, 8 and 9 of the PBC regulations and reg 6 of the ILUA regulations are parts of a quite complex statutory and regulatory regime. Section 58(b) of the Native Title Act authorizes regulations specifying the way in which a prescribed body corporate may perform certain functions. Regulations 7, 8 and 9 of the PBC regulations seem to be regulations of that kind. The obligation to consult and obtain consent of the traditional owners must be considered in light of the fact that the traditional owners will not necessarily comprise or constitute a formal association with rules and formal structures for decision-making, other than those applicable to the prescribed body corporate itself. For present purposes the relevant decisions were not decisions of prescribed bodies corporate, but rather they were decisions of clan groups which seem to have had no formal structure and rules, save to the extent that they were derived from traditional law and custom. Hence the process of consultation and that of giving consent may appear to be quite informal. No doubt reg 9 was designed to deal with that situation by providing a mechanism for demonstrating that the relevant processes had occurred. To some extent, the certificate contemplated by reg 9(2) may reflect the opinion of a signatory as to whether there has been consultation and consent. The relative informality of the process may result in differences of opinions concerning these matters. If it were open to other traditional owners to dispute such a certificate, the process prescribed by reg 9 would have little purpose. It may be that the involvement of the prescribed body corporate and, in many cases, a representative Aboriginal/Torres Strait Islander body was thought to be likely to minimize the risk that some traditional owners might falsely sign reg 9(2) certificates. ... 66 Gibson v Rivers-McCombs [2014] FCA 144, [73]-[74] (Dowsett J). -- 28 of 101 -- [2025] SASCA 32 The Court 25 93 By reference to these various provisions and regulations, particularly reg 8(1)(b), together with the requirement that a certificate in writing be prepared under reg 9(1), Rangelea submitted that consultation and consent was required but had not been undertaken, obtained or certified. On that basis, Rangelea submitted that ATLA had no authority to make its requests or institute Supreme Court proceedings. In the absence of consultation and consent, Rangelea submitted that the request and the proceedings were both “ultra vires ATLA”. 94 Rangelea also submitted that the reliance placed by the primary judge on regs 8(7) and (8) was misplaced, and it was only if reg 8 did not apply that ATLA could argue that it was not required to consult and obtain consent. Indeed, it was contended that it was not self-evident how reg 8 could have authorised ATLA’s conduct.67 95 By reference to the definition of “native title rights” in reg 3, and the definition of an “interest” in s 253 of the Native Title Act, Rangelea contended that there was “no doubt” that on its “proper construction” the request made and the application commenced by ATLA involved a “native title decision” because it “affected” the common law holders by bringing an action purportedly on their behalf. The determination of appeal grounds 4 and 6 96 The resolution of these grounds can be approached by keeping the following matters in mind. 97 First, whilst the Native Title Act assumes that native title may be held on trust by a prescribed body corporate, where it is not held on trust, it is held by those who hold the native title,68 being the native title holders or “common law holders” the subject of a native title determination.69 Whether or not those common law holders are also members of a prescribed body corporate or a registered native title body corporate that does not detract from their “native title” or their “native title rights and interests”. 98 Secondly, where native title is not held on trust, a prescribed body corporate must be nominated, with its written consent, to become a registered native title body corporate. That corporation must perform the functions specified under the Native Title Act and under the Native Title PBC Regulations.70 That is the role ATLA has assumed in this case. In so doing, it acts as the “agent or representative of the common law holders in respect of matters relating to the native title”,71 to be described as the “agent prescribed body corporate”.72 67 Cf Reasons, [14]. 68 Native Title Act, s 224(b). 69 Native Title Act, ss 253, 56 and 57. 70 Native Title Act, ss 57(2), 57(3) and 58. 71 Native Title Act, s 58(a). 72 Native Title Act, s 253. -- 29 of 101 -- [2025] SASCA 32 The Court 26 99 In connection with acting as the agent of the common law holders, the Native Title PBC Regulations may make provision for a registered native title body corporate to do all or any of a number of functions, which include that it will “hold on trust, or perform functions in relation to, compensation under this Act”,73 as well as consult with, and act in accordance with the directions of, the common law holders, in performing any of its functions.74 As has been seen, regs 8 and 3 address the way in which that consultation must be undertaken. 100 Thirdly, a distinction must be drawn between what is properly to be regarded as “native title” or “native title rights and interests”,75 and the monies paid in connection with native title, including under a native title mining agreement (as in this case) or as compensation under the Native Title Act. Those monies are not to be conflated with native title rights and interests, though they may be paid for and received in respect of those rights and interests. They are, thereby, “related” to those rights and interests, and generally within the authority of the agent prescribed body corporate. 101 Fourthly, the receipt of monies related to native title rights and interests may therefore be undertaken by the agent prescribed body corporate or, as in this case, at its direction to a nominee, here the Trust. That is to say, the monies paid for or in respect of native title rights and interests may be directed by the agent to be held on trust for relevant beneficiaries, such as the common law holders. 102 Fifthly, and as will be developed, there is an important distinction between what may be said to be “related” to native title and native title rights and interests (see ss 57(3), 58 and reg 7(1)(a) above), and acts which “affect” native title and native title rights and interests (see the references to s 227 below). The relevant distinction to be drawn is essentially between a matter that “relates” to native title and an act which “affects” native title. That which “relates” to native title is a much broader concept with a larger area of operation than an act which “affects” native title, particularly as defined by s 227 of the Native Title Act. 103 As will be seen, the result is that the statutory agency under which ATLA operated generally permitted it to act for the common law holders concerning matters relating to their native title, unless the matter comprised an act which affected their native title, in which case consultation, consent and certification under regs 8 and 9 of the Native Title PBC Regulations were required. 104 Finally, there is in consequence a distinction to be drawn between what is a “native title decision” as defined by the Native Title PBC Regulations, and the matters and concerns expressed by ATLA and the respondents about the proper administration of the Trust and the fate of the monies received by it under the native title mining agreements which included, but were not confined to, the way in which those monies had been managed and distributed. Although Rangelea took 73 Native Title Act, s 58(c). 74 Native Title Act, s 58(d). 75 Native Title Act, s 223. -- 30 of 101 -- [2025] SASCA 32 The Court 27 issue with it in argument, there is also a distinction to be drawn between the interests which may be the subject of a trust and the proper administration of that trust. 105 In order to explain how Rangelea’s arguments failed to keep these matters and distinctions in mind, it is helpful to commence with Division 2 of Part 15 of the Native Title Act and, particularly, the definition of “native title” in s 223: 223 Native title Common law rights and interests (1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. Hunting, gathering and fishing covered (2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests. Statutory rights and interests (3) Subject to subsections (3A) and (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression native title or native title rights and interests. Note: Subsection (3) cannot have any operation resulting from a future act that purports to convert or replace native title rights and interests unless the act is a valid future act. 106 When one reads this provision, together with the definitions of “common law holders” or a “native title holder” in ss 253 and 56, the rights and interests of those who hold native title are clearly identified as referable to “the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters”.76 76 Native Title Act, s 233(1). -- 31 of 101 -- [2025] SASCA 32 The Court 28 107 Native title rights and interests are essentially “usufructuary” rights and interests.77 In the case of land, they may be exclusive in the sense that the native title holders have what amounts to exclusive possession which permits controlling access to land. Alternatively, native title rights and interests may be non-exclusive and co-exist with non-native title rights and interests, such as pastoral leases and mining leases.78 Non-exclusive native title rights and interests can be wholly or partly suppressed and, in some cases,79 the “non-extinguishment principle” in s 238 of the Native Title Act applies to preserve the native title rights and interests but render them ineffectual until any suppressing act comes to an end, such as the end of a mining lease of definite duration. 108 Reference has already been made to the functions imposed on ATLA by the Native Title Act and the Native Title PBC Regulations. As the primary judge found, a registered native title body corporate that is an agent prescribed body corporate in relation to the native title rights and interests of common law holders has the function of acting as the agent for the common law holders in respect of matters “relating” to their native title. By reg 7(1)(c) that agency explicitly extends to holding in trust money connected with the native title rights and interests (including payments received as compensation or otherwise related to those rights and interests). It cannot be doubted – and it was not suggested otherwise – that the agent’s authority extended to directing another entity to hold those monies on trust for the common law holders. 109 The same conclusion is supported by the relevant provisions of the 2021 Rule Book.80 The Rule Book contains provisions that relevantly mirror reg 7 of the Native Title PBC Regulations.81 For example, under cll 3.1, 4.1 and 4.2 appear the following: 3.1 Land where Corporation is a registered native title body corporate Following an approved determination of native title in favour of members of the Corporation in respect of the Adnyamathanha Lands or any part of them, to be a registered native title body corporate in relation to the native title rights and interests concerned for the purposes of section 57(2) of the Native Title Act and to have the functions of a registered native title body corporate under that Act, including the following: 77 Northern Territory v Griffiths (2019) 269 CLR 1, [69] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ); Akiba v The Commonwealth (Akiba) (2013) 250 CLR 209, [9], [29] (French CJ and Crennan J). 78 Wik Peoples v Queensland (1996) 187 CLR 1, 122 (Toohey J), 200, 203-204 (Gummow J); Western Australia v Ward (2002) 213 CLR 1 (Ward), [179]-[186], [417], [422] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Western Australia v Brown (2014) 253 CLR 507, [38], [44]-[46], [55], [57] (French CJ, Hayne, Kiefel, Gageler and Keane JJ). 79 See, for example, Category C and Category D past acts – s 15(1)(d) – or valid future acts – ss 24GB(6), 24GE(3), 24HA(4), 24KA(4), 24ID(1)(c), 24MD(3) of the Native Title Act. 80 2021 Rule Book, AB 1157. 81 2021 Rule Book, cll 3.1(1) and (3), AB 1161. -- 32 of 101 -- [2025] SASCA 32 The Court 29 (1) to act as agent or representative of the Common Law Holders (as defined in the Dictionary in Schedule 2 in respect of matters relating to the native title rights and interests); (2) to manage the rights and interests of the Common Law Holders as authorised by the Common Law Holders; (3) to hold money (including payments received as compensation or otherwise related to the native title rights and interests) in trust; (4) to invest or otherwise apply the money held in trust as directed by the Common Law Holders; (5) to consult with, and obtain the consent of, the Common Law Holders in accordance with Regulation 8 of the PBC Regulations; and (6) to perform any other functions in relation to the native title rights and interests as directed by the Common Law Holders. … 4.1 General powers of the Corporation (1) To the extent necessary or convenient to carry out, or incidental to carrying out, the Corporation’s objects and subject to the provisions of the Act, the Native Title Act, the PBC Regulations and sub-rules 4.1(3) and 4.2, the Corporation has all the powers of a body corporate, including but not limited to the following: (a) to raise funds by way of public appeal, grants, bequests gift or otherwise, in such terms and in such manner as the Corporation considers appropriate; (b) manage and account for the funds of the Corporation and invest any funds not immediately required for the purpose of the Corporation; … 4.2 When acting in the capacity of a prescribed body corporate on behalf of the Common Law Holders, the Corporation must consult with, and obtain the consent of, the Common Law Holders in accordance with the PBC Regulations before making a “native title decision” (as defined in the PBC Regulations). … 110 As ATLA had authority to represent the common law holders concerning their monies relating to native title held in trust, it is but a short step to accept and find that ATLA therefore had authority as agent to seek documents and commence an application in the Supreme Court because these matters “related” to their native title and the matters specified by both the Native Title PBC Regulations and the Rule Book. 111 The next issue is whether that agency was restricted, as Rangelea contends, because of an absence of consultation and consent. That depends on whether what -- 33 of 101 -- [2025] SASCA 32 The Court 30 ATLA did “affected” the native title of the common law holders. That way of putting the issue follows from the way in which the point was argued by Rangelea, but it is also raised by sub-regulation 3(1)(e) and the definition of a “native title decision” in the Native Title PBC Regulations. 112 Before addressing that definition, it is first helpful to consider the scheme of the Native Title Act. Before embarking on this, it is necessary to recognise that what has already been said demonstrates that ATLA acted within its authority and therefore had standing. This aspect of Rangelea’s case is therefore concerned with an attempt to restrict the scope of the agency otherwise apparent and supportive of ATLA’s conduct to date. 113 By s 227 the Native Title Act, an “act affects” native title if it “extinguishes the native title rights and interests” or if it is otherwise “wholly or partly inconsistent with their continued existence, enjoyment, or exercise”:82 227 Act affecting native title An act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise. 114 The Act then sets out the statutory consequences that follow, including from partial acts of inconsistency. 115 That the concepts of “existence, enjoyment or exercise” in s 227 are directed to the bundle of rights recognised in a determination is manifest not only from Mabo v Queensland (No 2),83 where the foundation proposition of acts interfering with the exercise of native title rights was addressed by Brennan J,84 but it is also apparent from the cases that have since addressed the impairment of the enjoyment of native title rights and interests more generally.85 The notion of “enjoyment or exercise” is therefore tied to the native title rights and interests which may be specified for the purposes of a determination, see s 225(b) of the Native Title Act. 116 The distinction to be drawn between native title rights and interests, and matters which may “relate” to those rights and interests but not “affect” them, is recognised in the decision of Walmbaar Aboriginal Corporation v State of Queensland.86 In that case, Greenwood J found that a decision to file and prosecute a claim for compensation under the Native Title Act was not a “native title decision” for the purposes of reg 8, because it did “not involve the surrender of native title rights and interests in relation to land or waters, nor is it an act which 82 The word “act” in this context is very broadly defined by s 226 of the Native Title Act. 83 Mabo v Queensland (No 2) (1992) 175 CLR 1. 84 Mabo v Queensland (No 2) (1992) 175 CLR 1, 68-69 (Brennan J). 85 See, for example, Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373, 418, 452-453, 474-475 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ); Queensland v Congoo (2015) 256 CLR 239, [17]-[29], [33], [38] (French CJ and Keane JJ), [57], [63] (Hayne J, in dissent as to the result but not on the point of principle), [158] (Gageler J). 86 Walmbaar Aboriginal Corporation v State of Queensland (2009) 177 FCR 42. -- 34 of 101 -- [2025] SASCA 32 The Court 31 would impinge on or change the native title rights or interests of the common law holders”:87 Walmbaar is the registered native title body for the Dingaal People under the Hopevale determination. The common law native title holders of the Dingaal People nominated Walmbaar to be the prescribed body corporate to perform the functions described in s 57(3) of the Act. Thus, Walmbaar acts with the authority of the common law native title holders as agent for the Dingaal People. The authorisation process prescribed by s 251B of the Act does not apply, it is said, to a compensation application by a prescribed body corporate. The s 251B process is said to be required where there is no prescribed body corporate and the section is addressed only to individual persons who require authorisation to act as applicants for, relevantly here, a compensation claim group. The functions of Walmbaar as a prescribed body corporate and agent for the Dingaal People are set out in the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (“NT (PB) Regulations”). Regulation 8(2) of those regulations provides that Walmbaar must consult with and obtain the consent of the common law holders in accordance with the decision-making process agreed or adopted by them for making a “native title decision”, as defined by reg 8(1). The decision-making process adopted by the common law holders for Walmbaar when it makes a native title decision is set out in clause 9(1) of Walmbaar’s Rules which provides that Walmbaar shall convene a meeting of common law holders and obtain the consent of 75% of them if “decisions regarding native title” are to be made. Walmbaar's decision to commence an application for a compensation determination is not a “decision regarding native title” or a “native title decision”. The Rules of Walmbaar should be so understood by reference to reg 8(1). The decision to file and prosecute a compensation application does not involve a decision falling within reg 8 of the NT (PB) Regulations as the decision does not involve the surrender of native title rights and interests in relation to land or waters, nor is it an act which would impinge on or change the native title rights or interests of the common law holders, which, it is said, are the integers defining a native title decision for the purposes of reg 8 and Walmbaar’s Rules. The claim for compensation does not affect native title rights and interests but simply seeks compensation for the effect of other acts upon those rights. Thus, the decision to commence and prosecute an application for a compensation determination, fell to be decided by the Committee of Walmbaar pursuant to its powers in clauses 7 and 12(1) of Walmbaar’s Rules. The Committee met on 4 July 2006 at Mantaka and passed a resolution to proceed with a compensation claim. The compensation application was then filed on 28 November 2006. These propositions represent Walmbaar’s position. 117 That the Native Title PBC Regulations were in a slightly different form at the time of this decision does not undermine the reasoning employed. The approach taken by Greenwood J conforms with the High Court’s approach, already mentioned, as well as other Federal Court decisions. For example, in Queensland v Central Queensland Land Council Aboriginal Corporation, Kiefel J (as her Honour then was) addressed s 227 in the context of a case involving the removal of a right to negotiate, explaining:88 The amendments to the MRA did not effect a grant of the permits. They provided for such a right or interest to be created by administrative action. The grant of that interest might itself be a future act under the [Native Title Act] attracting the freehold test, but it is not necessary to consider that further. The critical question on this part of the cross-appeal is 87 Walmbaar Aboriginal Corporation v State of Queensland (2009) 177 FCR 42, [41] (Greenwood J). 88 Queensland v Central Queensland Land Council Aboriginal Corporation (2002) 125 FCR 89, [153] (Kiefel J, with whom Beaumont J at [89] and Lee J at [109] agreed, respectively). -- 35 of 101 -- [2025] SASCA 32 The Court 32 whether the amendments can be said to affect native title in the way described in s 227, so as to amount to “future acts”. Clearly they had none of the effects referred to in that section. When the CQLCAC spoke of there being a partial inconsistency with their continued existence, enjoyment or exercise it could only have been referring to the removal of the right to negotiate. There is a further difficulty in the contention that the means by which a right to negotiate is removed can be described as an act which “affects native title” in the way described in s 227, although it is not strictly necessary to deal with it. It treats procedural rights under the NTA (defined in s 253) as if they were part of the bundle of rights which are native title rights. Clearly that is not correct: see s 223 of the NTA, which defines “native title” and “native title rights and interests” and Western Australia v Ward at 1109 [17]-[18]; 16-17 [17]-[18]. 118 The operation of the Native Title Act when acts “affect” the enjoyment or exercise of native title rights or interests was addressed by the High Court in Akiba.89 Relevantly, French CJ and Crennan J explained the interaction of ss 227, 238 (the non-extinguishment principle) and 211 (the preservation of certain native title rights and interests):90 [The distinction between extinguishment of native rights and interests and partial inconsistency], which is made in s 227, is also brought out in s 238, which “sets out the effect of a reference to the non-extinguishment principle applying to an act”. The non- extinguishment principle is applied to various classes of “act” by the [Native Title] Act. If an “act” to which it applies affects any native title in relation to the land or waters concerned, then “the native title is nevertheless not extinguished, either wholly or partly”. Section 238(4) provides: “If the act is partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety, but the rights and interests have no effect in relation to the act to the extent of the inconsistency.” The “non-extinguishment” principle is a statutory construct. It is nevertheless underpinned by a logical proposition of general application: that a particular use of a native title right can be restricted or prohibited by legislation without that right or interest itself being extinguished. The distinction between the existence and exercise of a right appears in s 211 of the [Native Title] Act. … The distinction between native title rights and their exercise is made explicit in s 211 and was noted by the plurality in Yanner v Eaton [(1999) 201 CLR 251 at 373 [39]]. Their Honours said that: “the section necessarily assumes that a conditional prohibition of the kind described [in s 211(1)(b)] does not affect the existence of the native title rights and interests in relation to which the activity is pursued.” 89 Akiba (2013) 250 CLR 209. 90 Akiba (2013) 250 CLR 209, [26]-[29] (French CJ and Crennan J). Similar observations about the relationship between non-native title rights and the enjoyment and exercise of native title rights are evident in the reasons of Hayne, Kiefel and Bell JJ at [61]-[64]. -- 36 of 101 -- [2025] SASCA 32 The Court 33 There is a tension between that observation and an element of the reasoning in Western Australia v The Commonwealth (Native Title Act Case) [(1995) 183 CLR 373] in which the plurality Justices appeared to equate each broadly stated “class of activity” described in s 211(3) [hunting, fishing, gathering] with a usufructuary right or interest, being an incident of a more broadly stated native title [183 CLR 373 at 474]. That will be so in many, if not most, cases. Whether it is a proposition that emerges from the construction of s 211 was not a question whose resolution formed any part of the reasoning which led their Honours to hold that s 211 was a valid exercise of Commonwealth power. The existence of the distinction between the exercise of a native title right for a particular purpose or in a particular way, and the subsistence of that right, is relevant to the construction of statutes said to effect the extinguishment of native title rights. Put shortly, when a statute purporting to affect the exercise of a native title right or interest for a particular purpose or in a particular way can be construed as doing no more than that, and not as extinguishing an underlying right, or an incident thereof, it should be so construed. That approach derives support from frequently repeated observations in this Court about the construction of statutes said to extinguish native title rights and interests. (Citations omitted.) 119 The necessary act “affecting” a native title right as recognised by s 227 must therefore be one which impedes the exercise of a right specified in a determination, such as a right to fish, or to hunt, or to conduct a ceremony, or to camp or to occupy or move across land. The act which may be said to affect native title will therefore not comprise any subsidiary or other incidental activity, such as the curtailing of a right to negotiate concerning native title rights and interests,91 because it does not, as defined, “affect” native title rights and interests. 120 Similarly, and relevantly, the Native Title Act treats the various statutory entitlements to compensation separately,92 providing for applications permitting compensation claims to be made, as well as for the determination of those claims by the Federal Court.93 Those claims may relate to or derive from native title, but they cannot be conflated with it. 121 The “royalty” payments made by the mining companies under the native title mining agreements in this case are different to statutory compensation but stand in a similar category. They are matters “relating” to native title, not acts which “affect” native title or native title rights and interests. Those payments are made because of the rights the common law holders have in rem, which include their capacity to permit access to the land for the purposes of mining. It is for that access that monies are paid, rather than by way of statutory compensation under the 91 See Akiba (2013) 250 CLR 209 and Queensland v Central Queensland Land Council Aboriginal Corporation (2002) 125 FCR 89, [153] (Kiefel J; with whom Beaumont J at [89] and Lee J at [109] agreed, respectively). 92 See, for example, ss 17, 20, 22D, 22G, 22L, and 23J of the Native Title Act. 93 See s 48ff in Division 5 of Part 2, as well as s 61ff in Division 1 of Part 3 of the Native Title Act. See also the scope for non-monetary compensation under s 79 and the provision dealing with orders that compensation is payable under s 94 of the Native Title Act. -- 37 of 101 -- [2025] SASCA 32 The Court 34 Native Title Act of the kind recognised in Northern Territory v Griffiths.94 The payments made by the mining companies in this case are, in a sense, parasitic for they are a consequence of the determination of native title rights and interests under the Native Title Act. Having said that, their receipt, management and payment through the medium of the Trust cannot be conflated with those rights and interests, nor can their receipt, management and distribution properly be said to involve acts which “affect” native title rights and interests. 122 These kinds of matters do not affect the bundle of rights recognised in a native title determination and they are not the acts to which s 227 is directed or with which it is otherwise concerned. The same may be said about an application for records relating to payments made by the mining companies under native title mining agreements held by a corporate trustee. 123 Rangelea’s case was that consultation and consent were nonetheless required because the request for documents and the Supreme Court application to obtain them and appoint an inspector involved a “native title decision” as defined by reg 3 of the Native Title PBC Regulations. 124 That submission must be rejected. When one looks at the definition of a “native title decision” in reg 3 of the Native Title PBC Regulations, above, none of the limbs in regs 3(1)(a) through to 3(1)(d), inclusive, assist this argument. The only limb of potential application is reg 3(1)(e), namely: [T]o do, or to agree to, any act that would otherwise affect the native title rights or interests of the common law holders (other than a decision to make a compensation application). 125 The use of the words “any act that would otherwise affect … native title rights or interests” necessarily invites reference back to s 227 of the Native Title Act. The reference to “affect the native title rights or interests” in paragraph 3(1)(e) of the definition of “native title decision” in reg 3(1) of the Native Title PBC Regulations must be read conformably with the same phrase which is used in s 227 of the Native Title Act.95 126 There can be no suggestion that the requests made by ATLA, or the proceedings it commenced, extinguished native title rights and interests, nor were they otherwise wholly or partly inconsistent with their continued existence, enjoyment, or exercise. Quite the contrary. 127 The request for trust documents and the commencement of the Supreme Court application did not involve the extinguishment or surrender of native title rights and interests. Those matters were, on the contrary, concerned with ATLA 94 Northern Territory v Griffiths (2019) 269 CLR 1, [25]-[55] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). See also Commonwealth v Yunupingu [2025] HCA 6, [4]-[6] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ). 95 That is, “expressions used in any [legislative] instrument so made have the same meaning as in the enabling legislation”, Legislation Act 2003 (Cth), s 13(1); Acts Interpretation Act 1901 (Cth), s 46(1). That regulations are “legislative instruments”, see ss 8(5) and 10(1)(a) of the Legislation Act 2003 (Cth). -- 38 of 101 -- [2025] SASCA 32 The Court 35 striving to ensure that the common law holders would continue to benefit from those rights, together with the “royalty” payments made under the native title mining agreements relating to those rights. 128 Indeed, even if one confined the analysis to reg 3(1)(e), it is fallacious to view the request for documents and the Supreme Court application made by ATLA as amounting to acts which would “otherwise affect the native title rights or interests of the common law holders”. This limb must be read in context, and together with the preceding limbs. To do otherwise would give no work to the words “would otherwise affect” appearing in reg 3(1)(e) in the definition of a “native title decision”. None of the preceding limbs is concerned with the proper administration of any trust which receives, manages and distributes monies from native title mining agreements. In any event the proper administration of that kind of trust – particularly a trust that does not hold native title rights – cannot affect the native title rights or interests of the common law holders. 129 The submission that an application for the records of a trust that receives payments of “royalties” under a contract between ATLA and a mining company amounts to an act impeding the exercise or enjoyment of a native title right or interest of the Adnyamathanha people must be rejected. The same may be said of the application for the appointment of an inspector. 130 So understood, reg 8(1) does not apply, and consultation and consent were not required, because ATLA was not relevantly engaged in “making a native title decision” when seeking documents or making its application to the Supreme Court, because these did not “affect” the native title or the native title rights and interests determined by the Federal Court in 2009. 131 On this basis, a basis admittedly a little different to that which was relied on by the primary judge, there was no requirement for ATLA to consult and obtain consent under reg 8. 132 It follows that ATLA had standing and appeal grounds 4 and 6 should be dismissed. Appeal grounds 2 and 3 – the Trust: a private discretionary trust or a charitable trust? 133 The primary judge found that the Trust was a private discretionary trust:96 … I find that the Master Trust is a private discretionary trust. I am satisfied that the Adnyamathanha applicants, as beneficiaries of the Master Trust, are entitled to orders allowing them to inspect and make copies of the trust account records showing the receipt of any income, the expenditure on administrative costs and the making of distributions for the financial years ending 2018 to 2022 under the general law as adapted by s 84B of the Trustee Act. 96 Reasons, [13]. -- 39 of 101 -- [2025] SASCA 32 The Court 36 134 Rangelea submitted that, in making that finding, the judge had gone beyond an analysis of the Trust Deed and had considered the manner in which the Trust had been conducted since it was settled. In order to understand that submission, it is necessary to set out a lengthy extract from the primary judge’s reasons on the topic:97 Clause 28 provides that the trust created by the deed is ‘discretionary in nature and except to the extent that the Trustee may otherwise specifically determine and declare in writing in accordance with this Deed, no Traditional Owner has a vested interest in any portion of the Trust Fund and no Traditional Owner is entitled to call for the Trust Fund or any part thereof’. The conferral on the trustee of a power to vest an interest in the Trust Fund on any one of more members of a group is difficult to reconcile with a classification of the Master Trust as a charitable trust. No provision of the Trust Deed describes the trust as a charitable trust or identifies any particular charitable purpose. No clause of the Trust Deed requires the trustee to have regard to the needs which the members of the Sub-Group may have for a relief from poverty, to be educated, or to engage in spiritual or cultural observances. Indeed, the Board of Rangelea did not appear to consider at least some members of the Sub-Group as mere objects of benefaction. For example on 15 July 2017, it was resolved by majority against ‘strong protest’ to stop royalty payments to one member, and ‘remove’ another from the Adnyamathanha members list for posting culturally offensive material on social media and disrespecting elders, respectively. It was also resolved that letters be written to both members informing them that they would be re-instated if they publicly apologised. I have identified in my summary of the clauses of the Trust Deed those terms which are indicative of a private discretionary trust, the absence of any express reference to charitable purpose except insofar as a payment may by made into the Master Charitable Trust, and the absence of any guiding principle in clause 5 which directs the attention of the trustee to consider a charitable purpose which may be served by a distribution to a particular member of a Sub-Group or the Sub-Group as a whole. Indeed, there is no provision which limits the power of Rangelea to make distributions to the members of Sub-Groups or to their Eligible Entities for non-charitable purposes. Those features unequivocally support the conclusion that the Master Trust is a private discretionary trust and I so find. If there were any ambiguity, it is necessarily dispelled by the undisputed context in which the Master Trust was constituted. The Trust Deed itself recognises the Trust Fund is comprised largely of monies received under NTMAs and it is common ground that the Master Trust was established to distribute amongst the Traditional Owners income derived from the exploitation of their property rights. There are several consequences of my finding which should be noted. First, as beneficiaries of a private trust, each of the named group members are entitled to the due administration of the Master Trust by Rangelea. The due administration of the Master Trust includes: • making distributions to the Sub-Groups in proportion to their membership; • making distributions as soon as practicable after receipt of significant payments; and 97 Reasons, [102]-[110]. -- 40 of 101 -- [2025] SASCA 32 The Court 37 • having regard to the aspirations of Traditional Owners for self-determination when making decisions. If the group members were only objects of benefaction they could not seek the assistance of this Court to ensure that Rangelea administered the Master Trust in that way. Secondly, it is likely that Rangelea has administered the Master Trust on the premise that it is a charitable trust. Rangelea’s solicitor, Townsends, asserted as much in denying the personal applicants’ requests for access to trust records. I set out the circumstances of the denial of those requests in paragraphs [156], [165] and [169] below. That is also the position it has put in these proceedings. In the absence of any clear evidence that Rangelea has been duplicitous in denying access on the basis that the Master Trust is a charitable trust I find that it has administered the Trust, including the treatment of taxation matters, on the basis that it is a charitable trust. Thirdly, and as a necessary consequence of my last finding, there may be adverse consequences for Rangelea and the members of the Sub-Groups and any of their Eligible Entities who have received monies from Rangelea because of the mistaken premise on which the Master Trust has been administered. … 135 It will be necessary to return to the significance of the primary judge’s concern that, after it was settled, the Trust may have been administered as a charitable trust. 136 On this part of its case, Rangelea relied on the fourth Pemsel category (set out below).98 Rangelea submitted that the primary judge failed to properly address whether this trust came within that fourth category. Rangelea submitted that the primary judge formulated the question he was required to answer as:99 … whether the common law holders named in the schedule to the Trust Deed have ‘rights as discretionary objects of [the Master Trust]’ to its due administration or whether they are ‘no more than the potential objects of benefaction out of [the Master Trust]’. … 137 Rangelea submitted that, in so doing, the primary judge addressed the wrong question from the very start of his analysis. Rangelea submitted that the question his Honour should have addressed was: Whether the trust declared in the deed (that is at cl 2) is a trust for a purpose which falls within the fourth Pemsel category, being a purpose which is beneficial to the public or a section of the public. 138 According to Rangelea, it followed that the primary judge erroneously found that the Trust was a trust for the distribution of money to individuals or Sub-Groups, and not a trust for the purpose of benefitting the traditional owners as 98 Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531 (Pemsel), 583 (Macnaghten LJ). 99 Reasons, [65]. -- 41 of 101 -- [2025] SASCA 32 The Court 38 a section of the public.100 This error was, it was said, manifested in the following passage:101 No provision of the Trust Deed describes the trust as a charitable trust or identifies any particular charitable purpose. No clause of the Trust Deed requires the trustee to have regard to the needs which the members of the Sub-Group may have for a relief from poverty, to be educated, or to engage in spiritual or cultural observances. 139 According to Rangelea, this passage reveals that the primary judge approached the task of the characterising the Trust erroneously:102 1. With a view to identifying whether the trustee is required to consider the needs of persons to be benefited for relief from poverty, to be educated or to engage in spiritual or cultural observances, that is, by reference to the first three Pemsel categories; and 2. Without addressing whether benefitting the traditional owners is a charitable purpose within the fourth Pemsel category. 140 Rangelea nonetheless submitted that the primary judge found, correctly, that the traditional owners of the Adnyamathanha lands, as defined, are “a sufficiently large group of people to be a constituent element of Australia’s multicultural society and may, therefore, be the object of benefaction of a charitable trust”.103 141 Rangelea called in aid other cases where it suggested that it had been found that benefitting an Aboriginal community had been recognised as comprising a charitable purpose.104 Rangelea submitted that if the Court was satisfied that, upon its proper construction, the Trust is a trust for a purpose, and that purpose is benefitting the Traditional Owners, then it must be found to be a charitable trust. 142 It will be necessary to return to the other cases on which Rangelea relied. 143 Rangelea accepted that a feature of the Trust Deed establishing the Trust was that it directed the trustee to make distributions principally to the Sub-Groups, as defined in the Trust Deed, and that it included machinery to determine the membership of each Sub-Group and the maintenance of a register of names of the traditional owners. 144 Rangelea submitted that, however, the primary judge’s approach to construction was “impermissibly driven by [these] machinery provisions” of the Trust Deed. Rangelea submitted that the identification of a purpose and its 100 Reasons, [13], [106]. 101 Reasons, [103]. 102 This error is also said to feature at Reasons, [71], [78], [79], [80] and [105]. 103 Reasons, [72]. 104 Darkinjung v Darkinjung (2006) 203 FLR 394, [182]-[185] (Barrett J); Shire of Derby-West Kimberley v Yungngora Association Inc [2007] WASCA 233, [53]-[57] (Newnes AJA, with whom Buss JA and Miller JA agreed); Anthony R Cant v Kirby [2011] NSWSC 1193, [45]-[47] (Gzell J); and Groote Eylandt (Groote Eylandt) (2017) 169 NTR 1; [2017] NTSC 4, [171] (Hiley J). -- 42 of 101 -- [2025] SASCA 32 The Court 39 charitable nature is not to be confused with the machinery for giving effect to it, “however imperfect”,105 because “the choice of bad or unworkable machinery is not, alone or in conjunction with other elements in the case, sufficient to cause the alternative view of construction to prevail”.106 The determination of appeal grounds 2 and 3 145 As might be expected, there was broad agreement between the parties about the approach to construction. 146 The Court must start with the terms of the Trust Deed. The identification of the character of a trust turns upon the proper construction of the trust instrument and,107 potentially, on the circumstances in which the instrument was intended to operate.108 Moreover, the principles relating to the construction of commercial contracts apply, including the limitations associated with the use of extrinsic evidence.109 For example:110 However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding “of the genesis of the transaction, the background, the context [and] the market in which the parties are operating”.111 It may be necessary in determining the proper construction where there is a constructional choice. Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the 105 In re Scarisbrick [1951] Ch 622, 633-634. Rangelea also relied on Baptist Churches of South Australia v Attorney-General (SA) [2018] SASC 14, [25] (Stanley J). 106 In re Scarisbrick [1951] Ch 622, 633-634. 107 Byrnes v Kendle (2011) 243 CLR 253 (Byrnes v Kendle), [102]-[105] (Heydon and Crennan JJ). See also Commissioner of Taxation (Cth) v Bargwanna (2012) 244 CLR 655 (Bargwanna), [8] (French CJ, Gummow, Hayne and Crennan JJ). 108 JD Heydon and MJ Leeming, Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths) at [10-04] (“Jacobs’”) citing R (Independent Schools Council) v Charity Commission for England and Wales [2012] Ch 214; [2012] 1 All ER 127, [187] where the Upper Tribunal held that “It was clear, we think, under the law prior to the 2006 Act, that whether a trust or institution which had a written constitution was a charity was to be ascertained by reference to that constitution. It was not permissible to look at the subsequent activities of the institution to ascertain its status.” See also Groote Eylandt (2017) 169 NTR 1, [89] (Hiley J); Byrnes v Kendle (2011) 243 CLR 253, [104] (Heydon and Crennan JJ). 109 Byrnes v Kendle (2011) 243 CLR 253, [102]-[118] (Heydon and Crennan JJ); see also Groote Eylandt (2017) 169 NTR 1, [90]-[95] (Hiley J) citing Byrnes v Kendle (2011) 243 CLR 253 and Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 (Mount Bruce Mining), [48]-[50] (French CJ, Nettle and Gordon JJ). 110 Mount Bruce Mining (2015) 256 CLR 104, [49]-[50] (French CJ, Nettle and Gordon JJ). 111 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640, 657 [35] (French CJ, Hayne, Crennan and Kiefel JJ), citing Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 350, in turn citing Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989, 995-996; [1976] 3 All ER 570, 574. -- 43 of 101 -- [2025] SASCA 32 The Court 40 market in which the parties were operating. What is inadmissible is evidence of the parties’ statements and actions reflecting their actual intentions and expectations.112 147 Whether a trust’s purposes are properly regarded as charitable does not depend upon the subjective intentions of the settlor in establishing the trust, nor the source of the property, but the legal effect of the language used in the trust instrument. What is relevant is the way in which the trust instrument describes the purpose to which the property or assets of the trust are to be applied.113 148 These objective considerations are prospective in nature. The proper construction of a trust instrument does not normally depend on how the trust may have been administered after it was settled. As with commercial contracts, reviewing what has happened with the benefit of hindsight is of limited significance, generally confined to whether the relevant instrument has come into existence or operation.114 It does not enable any determination to be made regarding the proper meaning and effect of the instrument.115 149 In this case, the references made by the primary judge to the way in which the Trust had been administered were, Rangelea submitted, indicative of an error in approach, vitiating his conclusion that the trust was not a charitable trust. 150 It seems unlikely that the primary judge would have made such an obvious error in the application of settled principles of construction. Rather, the better view of the passage earlier extracted and, indeed, of this section of the reasons generally, is that the primary judge was addressing a number of issues in the one section without necessarily signposting each. The primary judge was addressing the 112 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 352; Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 at 995-996; [1976] 3 All ER 570, 574. 113 In Bargwanna (2012) 244 CLR 655, [8] (French CJ, Gummow, Hayne and Crennan JJ), the High Court adopted the observations of the Judicial Committee in Latimer v Commissioner of Inland Revenue (NZ) [2004] 1 WLR 1466, 1475; Jacobs’ at [10-04], citing Robinson v Stuart (1891) 12 LR (NSW) Eq 47, 49-50, where Owen CJ in Eq cited the decision of Sir William Page Wood VC in Attorney-General v Eastlake (1853) 11 Hare 205; 68 ER 1249, that “the purpose to which the funds were to be applied was the real criterion whether there was a charitable use or not”. See also Groote Eylandt (2017) 169 NTR 1, [93] (Hiley J), applying Bargwanna. 114 Danbol Pty Ltd v Swiss Re International SE [2020] VSCA 274. It may be that the conduct must be known to both parties, Tipperary Developments Pty Ltd v Western Australia (2009) 38 WAR 488, [120] (McLure JA). 115 While post-contractual conduct is not usually admissible on the question of what a contract means, it is relevant and admissible on the question of whether a binding contract was formed, Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68, 77 (Griffith CJ); Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647, 668, 669 and 672 (Higgins J); Whitworth Street Estates Ltd v Miller [1970] AC 583, 603 (Lord Reid) “it is not legitimate to use as an aid in the construction of [a] contract anything which the parties said or did after it was made”, repeated by Gibbs J in Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353, 446; Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622, 626-627 (McLelland J); GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631, 636-637 (McHugh JA, with whom Kirby P and Glass JA agreed); Australian Broadcasting Corp v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540; Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153, 164 (Heydon JA); Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570, [35] (Gummow, Hayne and Kiefel JJ); Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407, [323]-[327] (Campbell JA). -- 44 of 101 -- [2025] SASCA 32 The Court 41 proper construction of the Trust Deed, his findings about the evidence of Mr Coulthard, and the case for an inspector based in part on the way in which the Trust had been administered as a charitable trust. 151 This aspect of Rangelea’s complaints should be rejected. 152 This case concerns an express discretionary trust. Express trusts are classified as either a trust for one or more persons, or a trust for one or more purposes. The people the subject of the first kind of trust are usually described as “beneficiaries”. These trusts are “ordinary” or “private trusts” and, in order to be valid, they must satisfy the “three certainties”, being: (1) certainty of intention to create a trust, (2) certainty as to the property which is subject to the trust, and (3) certainty as to those people who are the beneficiaries of the trust.116 153 The second kind of trust comprise “charitable trusts”, otherwise called “public trusts”, together with a small miscellany of other “purpose trusts”.117 These trusts have as their focus a community or social benefit. Under a charitable trust, no one or more individuals will usually, or strictly, be identified as the “beneficiaries” of the trust. This key difference between a private trust and a charitable trust was explained in Attorney-General (NSW) v Perpetual Trustee Co Ltd:118 A charitable trust is a trust for a purpose, not for a person. The objects of ordinary trusts are individuals, either named or answering a description, whether presently or at some future time. To dispose of property for the fulfilment of ends considered beneficial to the community is an entirely different thing from creating equitable estates and interests and limiting them to beneficiaries. In this fundamental distinction sufficient reason may be found for many of the differences in treatment of charitable and ordinary trusts. As a matter of reason, if not of history, it explains the differences between the interpretation placed on declarations or statements of charitable purposes and the construction and effect given to limitations of estates and interests. 154 Similarly, in Latimer v Commissioner of Inland Revenue, Lord Millett later explained:119 … It is of the essence of a charitable trust that it is a trust for the promotion or advancement of social purposes rather than a trust for individual beneficiaries. Of course, individuals may benefit from the application of trust moneys, but they are not, as individuals, the beneficiaries of the trust and may not enforce its terms. If the purposes of the trust are charitable, they may be enforced by the Attorney-General; if they are not charitable then, with certain anomalous exceptions, they are not enforceable and the trust is not valid. Whether the purposes of the trust are charitable does not depend on the subjective intentions or motives of the settlor, but on the legal effect of the language he has used. The question 116 Kauter v Hilton (1953) 90 CLR 86, 97 (Dixon CJ, Williams J and Fullagar J); Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62, [7]. See, for example, Aboriginal Housing Office v Jacky [2022] NSWSC 916, [34] ff (Richmond J). 117 See Jacobs’ at [10-01] ff. 118 Attorney-General (NSW) v Perpetual Trustee Co Ltd (1940) 63 CLR 209, 222-223 (Dixon and Evatt JJ). 119 Latimer v Commissioner of Inland Revenue [2004] 1 WLR 1466 (Latimer), 1475 (Lord Millett), approved in Bargwanna (2012) 244 CLR 655, [8] (French CJ, Gummow, Hayne and Crennan JJ). -- 45 of 101 -- [2025] SASCA 32 The Court 42 is not what was the settlor’s purpose in establishing the trust, but what are the purposes for which trust money may be applied. 155 This does not mean that individuals do not benefit from a charitable trust, nor that they may not sometimes be called or defined as the “beneficiaries” of a charitable trust.120 The point is that a charitable trust is not settled for the benefit of individuals as beneficiaries, for that kind of trust would properly be regarded as a private trust. Individuals benefit from a charitable trust only as a consequence of the charitable purpose or purposes of the trust, as defined by the trust deed, being put into effect by the trustee.121 156 Charitable trusts are addressed under Part 4 of the Trustee Act. Relevantly, s 60(1) of the Trustee Act refers to any “trust created for charitable purposes”. There is no definition of “charitable purposes”. This phrase must be construed in accordance with its meaning under the general law.122 Namely:123 … that is, as defined by Lord Macnaghten in Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531 by reference to the spirit and intendment of the preamble to the Statute of Charitable Uses Act 1601. That assumption reflected the general rule that, the word “charitable” being a word that has a technical legal meaning, when it is used in a statute it should be understood in its legal sense unless a contrary intention appears. … 157 Under the general law, when determining whether a trust is a charitable trust, it is therefore usual to determine whether it falls within one or other of the four categories identified by Lord Macnaghten in Commissioners for Special Purposes of Income Tax v Pemsel,124 being: 1. trusts for the relief of poverty; 2. trusts for the advancement of education; 3. trusts for the advancement of religion; or 4. trusts for other purposes beneficial to the community, not falling under any of the preceding heads. 120 In Re Compton [1945] 1 Ch 123 (Re Compton), 129 (Lord Greene MR). 121 Stratton v Simpson (1970) 125 CLR 138, 144 (Windeyer J). 122 South Australian Employers’ Chamber of Commerce & Industry Inc v Commissioner of State Taxation [2017] SASC 127; (2017) 106 ATR 305, [92]-[96] (Blue J) where it was held that the respondent was not exempt from payroll tax under the charitable purpose exemption in s 48 of the Payroll Tax Act 2009 (SA). Justice Blue addressed the history of charitable trusts, including the preamble to the Statute of Charitable Uses 1601 (Eng), between [97] and [107]. The taxpayer’s appeal was dismissed by the Full Court: South Australian Employers’ Chamber of Commerce & Industry Inc v Commissioner of State Taxation (2019) 135 SASR 64 (Parker J, with whom Kourakis CJ and Stanley J agreed). 123 Central Bayside General Practice Association Ltd v Commissioner of State Revenue (2006) 228 CLR 168, [18] fn 28 (Gleeson CJ, Heydon and Crennan JJ), see [60]-[61], [70]-[71], [85]-[135] (Kirby J), and [169]-[176] (Callinan J). 124 Pemsel [1891] AC 531, 583 (Macnaghten LJ). -- 46 of 101 -- [2025] SASCA 32 The Court 43 158 The scope for the development over time in the meaning of what is “charitable” was addressed by the High Court in Aid/Watch Inc v FCT:125 … But even in 1891, the case law which gave the term “charitable” its technical meaning had developed considerably since the time of the British income tax statute of 1799. The case law may be expected to continue to do so as the cases respond to changed circumstances. As Lord Wilberforce put it, the law of charity is a moving subject which has evolved to accommodate new social needs as old ones become obsolete or satisfied. (Citations omitted.) 159 As has been seen, for a charitable trust to be valid, it must be “of a public nature, that is, for the benefit of the public” and the carrying out of its objects must be of benefit to the public, or a section of it, as distinct from having a “private” purpose confined to identified beneficiaries.126 160 There are two cumulative requirements before a purpose will be characterised as a charitable purpose:127 1. The purpose must be to provide a public benefit as opposed to private advantage or benefit (the public interest element). 2. The purpose must fall within a recognised category of charitable purpose by reference to principle and authority (the recognised category element). 161 That is, the requisite charitable purpose exists where there is a trust for the purpose of benefitting the public or a section of it, and the purpose falls within one of the categories outlined in Pemsel. Of course, where the case does not come within one of the first three recognised categories in Pemsel, as in this case, particular attention will be given to the public interest element. 162 When determining the public interest element, namely, whether the purpose of the trust is to provide a public benefit as opposed to a private benefit or advantage, it may be helpful to consider whether those whom it is intended will be 125 Aid/Watch Inc v Federal Commissioner of Taxation (2010) 241 CLR 539 (Aid/Watch v FCT), [18] (French CJ, Gummow, Hayne, Crennan and Bell JJ), citing Scottish Burial Reform and Cremation Society v Glasgow Corporation [1968] AC 138, 154 (Lord Wilberforce) and Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566, 582 [34] (Gaudron, McHugh, Gummow, Hayne and Callinan JJ). See also the discussion by Blue J in South Australian Employers Chamber of Commerce & Industry Inc v Commissioner of State Taxation [2017] SASC 127; (2017) 106 ATR 305, [133]-[142]. 126 Groote Eylandt (2017) 169 NTR 1; [2017] NTSC 4, [99] (Hiley J), citing JD Heydon and MJ Leeming, Jacobs’ Law of Trusts in Australia, Lexis Nexis Butterworths Australia, 8th ed, 2006, [10-04], [10-06] and [10-10]. 127 South Australian Employers’ Chamber of Commerce & Industry Inc v Commissioner of State Taxation [2017] SASC 127, [106]-[107] (Blue J), relying on the decision of the Supreme Court of Canada in Vancouver Society of Immigrant and Visible Minority Women v Minister of National Revenue 1999 CanLII 704 (SCC), (1999) 169 DLR (4th) 34. -- 47 of 101 -- [2025] SASCA 32 The Court 44 benefited comprise the public, or a section of it, as opposed to a private body of individuals. As has been suggested:128 To comprise a charitable purpose, the purpose must be to provide a public benefit as opposed to a private benefit or advantage. If an institution’s purpose is to advance the partisan interests of its members or of a group to which its members belong or which they represent or is to confer benefits on persons in a private capacity rather than providing a general public benefit, it is not charitable. One guide to whether a purpose is to provide a public benefit is whether the recipients of benefits from the institution comprise the public or a section of the public as opposed to a private body of individuals … 163 The cases show that this distinction can sometimes descend into questions of degree.129 Accordingly, it is best seen as a guide, and not necessarily decisive of the ultimate question, which is whether the purpose of the trust is to provide a public benefit or a private benefit. That consideration is reinforced by the attention paid to the composition and size of the section of the public or the beneficial class in question. A group may constitute a section of the public under a charitable purpose trust even though the number of group members is quite small, so long as the number is not numerically “negligible”:130 The potential beneficiaries must not, however, be negligible numerically. The character that marks the potential beneficiary must not be a relationship to a particular person or persons such as one of blood or employment. … 164 By contrast, a class of beneficiaries under a private trust may be very large and fluctuating. 165 The cases usually commence with Re Compton, where Lord Greene MR drew a distinction between benefaction by virtue of membership of a specified, impersonal class, being something “into which … status as individuals does not enter” (under a charitable trust) or, alternatively, benefaction by virtue of the beneficiaries’ character as individuals (under a private trust):131 In the case of many charitable gifts it is possible to identify the individuals who are to benefit, or who at any given moment constitute the class from which the beneficiaries are to be selected. This circumstance does not, however, deprive the gift of its public character. Thus, if there is a gift to relieve the poor inhabitants of a parish the class to benefit is readily ascertainable. But they do not enjoy the benefit, when they receive it, by virtue of their 128 South Australian Employers’ Chamber of Commerce & Industry Inc v Commissioner of State Taxation [2017] SASC 127, [108]-[109] (Blue J). 129 South Australian Employers’ Chamber of Commerce & Industry Inc v Commissioner of State Taxation [2017] SASC 127, [109] (Blue J). 130 Aboriginal Hostels Ltd v Darwin City Council (1985) 75 FLR 197 (Aboriginal Hostels), 209 (Nader J). 131 Re Compton [1945] 1 Ch 123, 129-131 (Lord Greene MR, with whom Finley and Morton LJJ agreed). The “Re Compton test” has been followed many times across Australia: see Davies v Perpetual Trustee Co Ltd, (1959) AC 439, 455; Thompson (1959) 102 CLR 315, 322; Re Evans (dec’d) [1957] St R Qd 345, 350-351; Re Muir (dec’d) [1964] VR 529, 534-535; Re Mills (1981) 27 SASR 200, 208; Re Gillespie (dec’d) [1965] VR 402, 404; Alice Springs Town Council v Mpweteyerre Aboriginal Corp & Ors (1997) 115 NTR 25 (Alice Springs), 40-41; Shire of Derby-West Kimberley v Yungngora Association Inc [2007] WASCA 233, [50]. See generally Jacobs’ at [10-06]. -- 48 of 101 -- [2025] SASCA 32 The Court 45 character as individuals but by virtue of their membership of the specified class. In such a case the common quality which unites the potential beneficiaries into a class is essentially an impersonal one. It is definable by reference to what each has in common with the others, and that is something into which their status as individuals does not enter. Persons claiming to belong to the class do so not because they are A.B., C.D. and E.F. but because they are poor inhabitants of the parish. If, in asserting their claim, it were necessary for them to establish the fact that they were the individuals A.B., C.D. and E.F., I cannot help thinking that on principle the gift ought not to be held to be a charitable gift, since the introduction into their qualification of a purely personal element would deprive the gift of its necessary public character. It seems to me that the same principle ought to apply when the claimants, in order to establish their status, have to assert and prove, not that they themselves are A.B., C.D. and E.F., but that they stand in some specified relationship to the individuals A.B., C.D. and E.F., such as that of children or employees. … I come to the conclusion, therefore, that on principle a gift under which the beneficiaries are defined by reference to a purely personal relationship to a named propositus cannot on principle be a valid charitable gift. 166 Later, in Oppenheim, Lord Simonds took a similar approach:132 These words “section of the community” have no special sanctity, but they conveniently indicate first, that the possible (I emphasize the word “possible”) beneficiaries must not be numerically negligible, and secondly, that the quality which distinguishes them from other members of the community, so that they form by themselves a section of it, must be a quality which does not depend on their relationship to a particular individual. It is for this reason that a trust for the education of members of a family or, as in In Re Compton, of a number of families cannot be regarded as charitable. A group of persons may be numerous, but, if the nexus between them is their personal relationship to a single propositus or to several propositi, they are neither the community nor a section of the community for charitable purposes. 167 The focus of these tests is ultimately on how one defines the objects of benefaction. That is, on whether “the nexus” between those who are the apparent object of the trust is represented by their: (1) membership of a class which it is intended will be benefited by a charitable purpose which is the beneficial object of the trust; or (2) membership of a class which is defined by the relationship of the beneficiaries to one or more people who are explicitly the beneficial object of the trust (“a single propositus or to several proposition”).133 168 If the former, they benefit because they come within the relevant charitable class. If the latter, they benefit because their connection with one or more identifiable beneficiaries puts them within the requisite class of beneficiaries and they are “neither the community nor a section of the community for charitable purposes”.134 132 Oppenheim [1951] AC 297, 306 (Simonds LJ). 133 Oppenheim [1951] AC 297, 306 (Simonds LJ). 134 Oppenheim [1951] AC 297, 306 (Simonds LJ). -- 49 of 101 -- [2025] SASCA 32 The Court 46 169 Whilst the Re Compton test may not represent the only test as to when a group will be regarded as a section of the community,135 the parties did not dwell on any other approach. Though Rangelea also relied on the decision of Dixon CJ in Thompson,136 that was a case concerned with whether the relevant class could be regarded as a section of the public for charitable purposes, and the High Court held that the children of certain Freemasons were not relevantly a section of the public:137 Much turns in this case, needless to say, upon the fact that the schools and hostels are restricted to the children of freemasons and for that reason the rules governing admission to the craft in New South Wales are annexed to the case stated. For the purpose of the question raised it is enough to say that a candidate for membership must be nominated by two master masons, and his qualifications and moral and general character are inquired into by a committee and his admission is determined by a ballot of the lodge. To be qualified he must be in reputable circumstances and he must have resided in New South Wales for twelve months and be of full age. The rule as to residence is not absolute: exceptions may be made by dispensation of the Grand Master. 170 This case does not raise for consideration the “poor relations” exception to the Re Compton test, under which the public purpose requirement may be eroded.138 171 The requirement that a charitable trust be for the benefit of the community, or a section of it, ultimately depends on the articulation of a public purpose, and that essential element of a charitable trust must be discerned from a proper construction of its terms, when read objectively and in context.139 172 It is convenient to next address the terms of the Trust Deed, before considering the other cases on which Rangelea relied. 173 The Adnyamathanha Master Trust between the Founder and the Trustee was made on 22 July 2003.140 From page 39 of the Trust Deed, and as part of Chapter Six, the Dictionary contains the meaning of a large number of terms. These include the meaning of “Adnyamathanha People” or “Community”, which are defined to have the same meaning as the “Traditional Owners”. By Recital B: 135 Re Income Tax Acts [No 1] [1930] VLR 211; Thompson (1959) 102 CLR 315, 323-324 (Dixon CJ). 136 Thompson (1959) 102 CLR 315. 137 Thompson (1959) 102 CLR 315, 319-320 (Dixon CJ). 138 Under the exception, the distinction that is drawn between a charitable trust and a private trust depends on whether as a matter of construction the gift is for the relief of poverty amongst a particular description of poor people who are identified by reference to a relationship with particular individuals (in which case it will be a charitable trust) or it is merely a gift to particular poor persons, the relief of poverty among them being the motive of the gift (in which case it will not be a charitable trust): see Dingle v Turner [1972] AC 601, 617, 623 (Cross LJ); Re Scarisbrick’s Will Trusts [1951] Ch 622, 639-640 (Evershed MR), 649 and 655 (Jenkins LJ). 139 Pemsel [1891] AC 531, 580 (Macnaghten LJ); Verge v Somerville [1924] AC 496, 499 (Wrenbury LJ); Oppenheim [1951] AC 297, 305-306 (Lord Simonds); Davies v Perpetual Trustee Co Ltd [1959] AC 439, 454-455 (Morton LJ); Thompson (1959) 102 CLR 315, 321-322 (Dixon CJ). 140 Adnyamathanha Master Trust, AB 43ff. -- 50 of 101 -- [2025] SASCA 32 The Court 47 This Trust has been created for the purposes of benefiting the Traditional Owners in the manner set out herein. 174 The term “Traditional Owners” is defined in clause 30 to mean: [Those] persons who are members of the Adnyamathanha Native Title Claim Group as referred to in the Adnyamathanha Native Title Claim Federal Court No. SG6001/98 as described at the date of creation of this Trust. 175 It will be necessary to return to the way in which Mansfield J determined who were the “Native Title Holders” in 2009. It would seem that the terms “Native Title Holders” and “Traditional Owners” are comparable. 176 The term “Trust Fund” is defined in clause 30 to include any monies from time to time received under any native title or other agreements entered into by or on behalf of all or any section of the Adnyamathanha People and Heathgate Resources Pty Ltd, the proponent of the Beverley Uranium Mine. This definition extends to any monies from time to time paid under any agreement with any mining or exploration companies, together with the accumulation of income and all accretions and additions thereto from any source including from investments and property. The monies received from Quasar are included. 177 The term “Distributable Funds” in clause 30 is defined to mean the funds from time to time held by the Trustee and available for distribution to the Sub-Groups. In the same clause, the term “Sub-Group” is defined to mean the Sub-Grouping of the Adnyamathanha People referred to in clause 7 (as set out in the Schedule). 178 By clause 7.1, the Traditional Owners are, as at the date of the settlement of the Trust, divided into the Sub-Groups described in the Schedule. At item 1 of the Schedule there are eight lists of Traditional Owners identified by Sub-Group as follows (together with the number of their members in July 2003:141 Villa Mulka Trust Group (Angelina Stuart’s Group) (109 members) Stewart & Beverley Patterson Group (191 members) Geraldine Anderson Group (103 members) Gordon Coulthard Group (74 members) May’s Group (103 members) Vince Coulthard (ATLA) Group (427 members) Aunty Gertie’s Group (76 members) 141 Reasons [85]. -- 51 of 101 -- [2025] SASCA 32 The Court 48 Kuyani Group (292 members) 179 Under each Sub-Group, the names of each of the Traditional Owners is listed. From time to time there are notes adjacent to the names listed, such as “Children to be added”. 180 On page 4 at the commencement of Chapter One, under the heading “Trustee’s Role”, appears the following: This Chapter summarises the role of the Trustee in administering the Adnyamathanha Master Trust. It describes what the Trust is for and how it is to be managed. The Chapter describes the Guiding Principles for the Trust. These Guiding Principles contain the general agreement of the Adnyamathanha people as to how the monies in the Trust are to be managed and shared. 181 By clause 2 appears the declaration and creation of the Trust: The Founder has requested the Trustee to act as trustee of the Trust Fund and the Trustee has agreed to the request and the Founder HEREBY DECLARES that the Trustee shall and the Trustee HEREBY DECLARES that it will henceforth stand possessed of the Trust Fund and of the income thereof upon the trusts for the benefit of the Traditional Owners and subject to the powers and provisions hereinafter expressed concerning the same to be dealt with in accordance with the terms of this Deed. 182 At clause 3 appear the “Objects of Trust”, being: 3.1 The Trust is established for the objects of benefiting the Traditional Owners living at the Trust Commencement Date and their descendants. 3.2 To the extent practical the Distributable Funds from time to time in the Trust Fund will be periodically distributed amongst the Sub Groups as contemplated by this Deed to be managed or distributed by those Sub Groups or their Eligible Entities. 183 The term “Eligible Entities” is defined in clause 30 to mean an “Eligible Corporation or Eligible Trust” nominated by a Sub-Group to receive all or any portion of that Sub-Group’s Allocated Share from time to time. The term “Eligible Corporation” is defined to mean any corporation in which all the issued shares are beneficially owned or held by Traditional Owners in a Sub-Group. The term “Eligible Trust” is defined to mean any trust or settlement (including charitable and non-charitable trusts) established for the benefit of the Traditional Owners or of the Traditional Owners of any Sub-Group. 184 By clause 4 the Trustee is appointed, being Rangelea. The Trust Fund is vested in the name of the Trustee upon the terms and conditions of the Trust Deed (clause 4.2). By clause 4.3, the Trustee in performing its functions is at all times and, to the extent consistent with the Objects (being the matters set out in clause 3), endeavour to: (1) have due and proper regard to the aims and aspirations of the Traditional Owners; -- 52 of 101 -- [2025] SASCA 32 The Court 49 (2) have due regard to the desire of the Traditional Owners to work towards self-determination (being the control, protection and development of their own culture and lives) and in that regard, the Trustee will endeavour to ensure that to the extent practicably possible, decision making in relation to the Trust occurs only after proper consultation with the Traditional Owners; (3) have due regard to the desire of the Traditional Owners to work towards self-determination and self management within their own respective Sub-Groups; (4) have due and proper regard to the Guiding Principles. 185 Clause 4.5 is important. Clause 4.5 explicitly provides for the establishment of a charitable trust: The Trustee may from time to time, if so directed by all representatives on the Advisory Committee, distribute part of the Trust Fund to a Master Charitable Trust (being a charitable trust established for the benefit of the Community as a whole). 186 There is no suggestion that a charitable trust has been established under this clause. 187 The Guiding Principles are set out in clause 5.1 and, “to the extent consistent with the Objects” in clause 3.1, they are: (1) Certain people have as at the date hereof been recognised by the respective Sub- Groups as having traditional ownership or custodianship of the Traditional Lands (“the Identified Traditional Owners”). It is intended that to the extent practicable the Sub-Groups will, through the Advisory Committee, assist the Trustee from time to time in determining which other people are Traditional Owners (as defined in this Deed) for the purposes of establishing and maintaining the Traditional Owner Register and the Sub-Group Registers. (2) If at any time there are any Traditional Owners who are not members of a Sub-Group, it is intended that to the extent practicable that the Trustee and the Sub-Groups, through the Advisory Committee, determine how such Traditional Owners may with their consent be included in a Sub-Group. (3) Except to the extent expressly contemplated by these Guiding Principles the Trust will be impartial in sharing benefits between the Sub-Groups and will not favour any Sub-Group over another. However, it is recognised that the Sub-Groups will not necessarily receive their benefits at the same time for administrative or other reasons. For example, if one Sub-Group delays in advising the Trustee how to apply its Allocated Share then it may experience a delay in receiving its benefits. (4) In sharing benefits between the Sub-Groups, the Traditional Owner members of each Sub-Group will generally be treated equally in the sense that each Sub-Group will participate in benefits in proportion to the size its Traditional Owner membership bears to the total number of Traditional Owners in all Sub-Groups at the time of distribution. For example, if the Traditional Owner members of a particular Sub- Group number 100 persons and the total number of Traditional Owners in all Sub- Groups is 1,000, then the Allocated Share of that particular Sub-Group will, in general terms, be 10% of the Distributable Funds. -- 53 of 101 -- [2025] SASCA 32 The Court 50 (5) The general intent is that all income comprising Distributable Funds received by the Trust will be distributed between the Sub-Groups on a regular basis and as soon as practicable after receipt of any significant payments. (6) The views of the Traditional Owners as determined through the Advisory Committee and through such other consultations as the Trustee may consider appropriate will be considered in the administration of the Trust. 188 When applying the Guiding Principles, clause 5.2 requires that the Trustee give due consideration to them, but it has the authority and discretion to make and implement decisions which further the Objects, though they do not accord strictly with the Guiding Principles. 189 By clause 5.3, the Trustee has the discretion to pay all or part of the benefits to which a Sub-Group is entitled directly to the Representative Corporation of a Sub-Group (whether in its own capacity or as a trustee) for administration and distribution on behalf of a Sub-Group. By clause 30, “Representative Corporations” are defined to mean any Aboriginal corporations or other corporations or incorporated associations set up pursuant to clause 11.1. By that clause, the separate incorporated bodies represent individual Sub-Groups in relation to the Trust and they assist the Trustee in implementing the Objects of the Trust. 190 By clause 6, the Trustee must consult regularly with the Traditional Owners in the discharge of its duties. This includes for the purposes informing the Traditional Owners of the activities of the Trust, gathering information as to the aims and aspirations of the Traditional Owners, seeking proposals and ideas from the Traditional Owners as to how funds should be distributed amongst them, and seeking the views of the Traditional Owners as to present and proposed activities of the Trust. For these purposes, the Trustee has power to convene and pay or contribute towards the reasonable expenses of meetings of the Traditional Owners or Sub-Groups (clause 6.2). 191 As has been seen, and as the primary judge accepted, these consultations have not occurred.142 192 Clause 7 addresses the Sub-Groups. These represent the way in which the Traditional Owners are divided as described in the Schedule, already mentioned. By clause 7.2, the Trustee may recognise the creation of additional Sub-Groups or the amalgamation or division of existing Sub-Groups, having regard to the wishes of the Traditional Owners affected. Clause 7 refers to the Allocated Share of each Sub-Group. The term “Allocated Share” is defined by clause 30 to mean the share of the Distributable Funds from time to time held by the Trustee allocated in accordance with the Deed for distribution to or for the benefit of a Sub-Group. 142 Reasons, [153], [177], [180]-[183]. -- 54 of 101 -- [2025] SASCA 32 The Court 51 193 By clause 7.5, the Sub-Groups may direct the Trustee to pay their Allocated Shares in any way they determine through their own internal processes, and these may include payment to: (a) designated members of the Sub-Group; (b) Eligible Entities nominated by the Sub-Group; (c) Eligible Trusts nominated by the Sub-Group; (d) a mixture of the above. 194 By clause 7.7, the Trustee is entitled to accept and rely upon any advice or direction provided by a Sub-Group’s representative on the Advisory Committee as if it were a decision of that Sub-Group. The term “Advisory Committee” is defined in clause 30 to mean a committee of Traditional Owners representing Sub-Groups formed under clause 10.2. 195 Clause 7.7 provides that in the absence of a specific written notice to the Trustee to the contrary, a Sub-Group’s representative will be deemed to have full authority to advise the Trustee as to how the Sub-Group wants the Trustee to apply the Allocated Share. 196 By clause 8.1, the Trustee will endeavour to distribute Distributable Funds as soon as possible after receipt. 197 At page 12 at the commencement of Chapter Two, under the heading “Traditional Owner Register and Representative Corporations”, appears the following: This Chapter talks about how the Traditional Owners are to be identified and their names put in a register. The Chapter also talks about how the register is to be kept up to date. The Chapter also talks about the possibility of Representative Corporations for Sub-Groups and their roles. 198 By clause 10, the Trustee is to compile and maintain a register to be known as the Traditional Owner Register. This is to contain information as to the names and addresses of the Traditional Owners, the Sub-Group to which each belongs, and such other information as the Trustee considers necessary or practical. 199 By clause 10.6, each Sub-Group is to nominate the persons who it determines should be treated as Traditional Owners in respect of its own Sub-Group. Importantly, clause 10.6 provides: Except as otherwise provided in this clause 10, if a particular Sub-Group accepts that a person is a member and that person regards themselves as being a member of the particular Sub-Group, then that person is prima facie entitled to be a member of that Sub-Group. -- 55 of 101 -- [2025] SASCA 32 The Court 52 200 By clause 10.7, a person cannot be a member of more than one Sub-Group, but a person may change Sub-Groups from time to time. 201 Clause 10.8 provides that the Advisory Committee shall meet as often as the Trustee deems necessary. That clause records that it is intended that meetings of the Advisory Committee should, to the extent practicable, be held in the month prior to any proposed distribution of Allocated Shares in order that the Register can be updated before the distribution occurs. The Advisory Committee was initially to meet biannually so that the Register could be updated on June 30 and December 31 each year (clause 10.8). 202 On page 16 at the commencement of Chapter Three, under the heading “Meetings of Traditional Owners”, appears the following: This Chapter talks about how meetings of Traditional Owners are to be held and about how resolutions are to be passed at meetings. It contains provisions designed to protect the rights of minority Sub-Groups. If the Trustee considers it appropriate an Annual General Meeting can be held and other meetings can also be held as appropriate. 203 Again, the evidence from ATLA and the respondents demonstrated that there had been no regular meetings.143 204 Clause 14.1 addresses the obligation of the Sub-Group, or Sub-Groups, being in a majority to not exercise their voting power at General Meetings in a manner which may be oppressive, prejudicial or discriminatory concerning any Sub-Group, that is in a minority. 205 In order to give effect to this, clause 14.2 may require the approval of a Special Sub-Group resolution passed by each minority Sub-Group to be materially adversely affected by any particular proposal. These proposals include any proposed distribution of benefits to Sub-Groups other than in proportion to their membership numbers provided for under clause 5.1(4) (set out above). It will be recalled that distributions were to be made to each Sub-Group in proportion to the size of its Traditional Owner membership, as a proportion to the total number of Traditional Owners in all Sub-Groups. 206 On page 21 at the commencement of Chapter Four, under the heading “Trustee’s Powers and Remuneration”, appears the following: This Chapter describes the Trustee’s investment powers and how the Trustee is to be paid for its work. It also talks about some other general rights of the Trustee. 207 By sub-clause 15(38), the Trustee must distribute in any year all or part of the monies from time to time forming the Trust Fund to the trustee of any trusts established for the benefit of Sub-Groups or any part thereof as though the 143 Reasons, [153], [177], [180]-[185]. -- 56 of 101 -- [2025] SASCA 32 The Court 53 Sub-Group trusts were themselves a Traditional Owner and therefore “a beneficiary” under the Deed of Trust. 208 By clause 22, the Trustee is obliged to keep complete and accurate books of account and records of all receipts and expenditure on account of the Trust Fund. Promptly after the close of each Accounting Period the Trustee is to prepare a written accounting report. 209 In addition, by clause 23, the Trustee may appoint an Auditor to audit the financial affairs of the Trust at least once in every accounting period. 210 By clause 30 an “Accounting Period” is defined to mean each 12-month period ending on the 30th day of June each year except: … first that the period commencing on the date hereof and ending on the 30th day of June next shall be an Accounting Period and secondly that the period commencing on the first day of July prior to the Vesting Day and ending on the Vesting Day shall be an Accounting Period. 211 On page 31 at the commencement of Chapter Five, under the heading “Changes to the Trustee or the Trust”, appears the following: This Chapter talks about how the Trust Deed can be changed. It also talks about when the Trustee can be removed and how to appoint a new Trustee. For information on how to appoint or remove the individual Directors of the Trustee, it is necessary to read the Constitution for the Trustee as well as this Chapter. 212 On page 36 at the commencement of Chapter Six, under the heading “The Trust Generally”, appears: This Chapter contains some general legal provisions about the Trust which address technical issues under the laws relating to Trusts. 213 By clause 28, the discretionary nature of the Trust is made explicit: The Trust created by this Deed is discretionary in nature and except to the extent that the Trustee may otherwise specifically determine and declare in writing in accordance with this Deed, no Traditional Owner has a vested interest in any portion of the Trust Fund and no Traditional Owner is entitled to call for the Trust Fund or any part thereof. 214 As ATLA and the respondents submitted, it is not easy to see why a clause such as this would have been required if this was a charitable trust without beneficiaries. 215 By clause 29 appear the following sub-clauses concerning the “Vesting Day”: As from the Vesting Day the Trustee shall stand possessed of the Trust Fund and the income thereof in trust for the Traditional Owners for such interests and in such proportions consistent with clause 5.1(4) for their respective benefit maintenance advancement and education as the Trustee may on instruction from the General Meeting in a General Meeting -- 57 of 101 -- [2025] SASCA 32 The Court 54 Directive by instrument in writing as far as possible consistent with the Objects and without offending the rule against Perpetuities before the Vesting Day appoint. During the period of 10 years prior to the Vesting Date, the Trustee may after consultation with the Traditional Owners and having regard to clause 5.1(4) vest by irrevocable Deed the Trust Fund or any part thereof at any time prior to the Vesting Date in one or more Eligible Entities (which may include the Representative Corporations) and upon such Deed becoming effective, the Trust Fund or part thereof (as the case may be) will cease to be subject to the trusts of this Deed. 216 In addition, the Schedule contains at item 2 what amounts to the definition of the “Vesting Day”. That is defined as “one day less than 21 years from and including Trust Commencement Date”. The Trust Commencement Date is the date of the Trust Deed, being 22 July 2003. 217 This definition tends to suggest that the Trust has vested and clause 29.1 has, at least to some extent, taken effect. The definition of the Vesting Day is in an unusual form. Whether this represents an error in drafting was not the subject of any consideration, whether before the primary judge or on appeal. 218 There are four further points to be made about this. First, the parties did not address the Court about the Vesting Day or its significance, if any. Secondly, it is, at the least, unusual for a charitable trust to have a vesting date. That does not mean that the inclusion of a vesting date would necessarily be inconsistent with a trust being a charitable trust. For example, if a charitable trust was established in connection with the Brisbane Olympic Games in 2032, it might be appropriate to specify a vesting date associated with the date those games are held, or a date soon after. One would ordinarily expect clear words if a charitable trust were to require a vesting date.144 Thirdly, the parties did not address the Court about whether there remains any scope for application of the rule against perpetuities where the Trust appears to post-date the relevant provision in the Law of Property Act.145 219 Finally, if the Trust has vested, that tends to diminish the significance of the Sub-Groups because Rangelea as trustee holds the Trust Fund for the Traditional Owners in the proportions specified by clause 5.1(4) “for their respective benefit maintenance advancement and education”. That is apparently subject to any instruction by the General Meeting and “as far as possible consistent with the Objects”, as well as “without offending the rule against Perpetuities before the Vesting Day appoint”. 220 Whilst benefitting the maintenance, advancement and education of the Traditional Owners might be said to be consistent with a charitable object, it is 144 It is, at the least, unusual to see a Vesting Day defined in this way in circumstances where there is no similar end date in the Native Title Mining Agreements which, speaking generally, can only be terminated by mutual written agreement, see, for example, in relation to Heathgate, clause 1.2 (AB 216) and, in relation to Quasar, clause 1.2 (AB 259). 145 See Law of Property Act 1936 (SA), s 61. -- 58 of 101 -- [2025] SASCA 32 The Court 55 nonetheless directed to the benefit of a circumscribed and identifiable group of people. 221 To reiterate, no submissions were received about the significance, if any, of these matters. 222 Whilst it may readily be accepted that other trusts may be intended to benefit an Aboriginal community as a section of the community as part of a charitable purpose, whether that is so inevitably depends on the terms of the trust. 223 As has been seen, clause 3.1 demonstrates that the Trust was “established for the objects of benefiting the Traditional Owners living at the Trust Commencement Date”, together with their descendants. The term “Traditional Owners” is defined, in clause 30, to mean those persons who were members of the Adnyamathanha Native Title Claim Group as referred to in the Adnyamathanha Native Title Claim, Federal Court No. SG6001/98 “as described at the date of creation of this Trust”. 224 Under Annexure A to the orders made by Mansfield J in 2009, the “Native Title Holders” were defined by reference to a group of named people, being “those living Aboriginal people who”: (a) are the descendants (whether biologically or by adoption) of the following apical ancestors: i. Mt Serle Bob ii. Polly, wife of Mt Serle Bob iii. Quartpot Tommy iv. Mt Serle Bob’s sister, wife of Quartpot Tommy v. Willy Austin Snr vi. Nicholas Demell vii. Emily McKenzie, wife of Nicholas Demell viii. Sydney Ryan ix. Mary, wife of Sydney Ryan x. the siblings Angepena Billy or Mary xi. Fanny, wife of Angepena Billy xii. the siblings Sara Johnson, Matilda Johnson, Fred Johnson, Natalie Johnson, Jessie Johnson or Sydney Jackson, and (b) identify as Adnyamathanha; and -- 59 of 101 -- [2025] SASCA 32 The Court 56 (c) are recognised by other Native Title Holders under the relevant Adnyamathanha traditional laws and customs as having maintained an affiliation with, and continuing to hold native title rights and interest in, the Determination Area. 225 Accordingly, the list comprises the descendants of 12 people – the apical ancestors – and the requirements are cumulative. That is to say, the Native Title Holders are the descendants of those 12 people, and they must identify as Adnyamathanha, and they must be recognised by the other Native Title Holders under the relevant traditional laws and customs. 226 When one stands back and looks at the terms of the Trust Deed three things are clear: 1. The beneficial objects and purpose of the Trust were the Adnyamathanha People, as specified in the 2009 determination made by the Federal Court of Australia, represented by the Traditional Owners, being the descendants of the twelve “apical ancestors”. 2. The Trust Fund was explicitly intended to benefit those people, or other Traditional Owners whom it was agreed by the Traditional Owners should be named in the Traditional Owner Register and be a member of an identified Sub-Group. In that regard it is noteworthy that most of the Sub-Groups are referable to particular people. 3. Whilst there are incidental references to charitable objects, or at least objects consistent with a charitable purpose, these are generally in connection with arrangements that do not form part of the ordinary operation of the Trust. For example, and as mentioned, by clause 4.5 the Trustee may be directed to distribute to a separately constituted “Master Charitable Trust”, to be a “charitable trust established for the benefit of the Community as a whole”. Clause 30 defines “Community” as the Adnyamathanha people. That trust does not appear to have been constituted. 227 These features of the Trust are, when viewed as a whole, suggestive of a Trust intended to benefit people rather than a purpose.146 228 It is next appropriate to consider the other cases on which Rangelea relied. 229 In Shire of Derby-West Kimberly v Yungnora Association Inc, the Shire appealed from the decision of the State Administrative Tribunal to grant the respondent an exemption from the obligation to pay rates regarding certain land under s 6.26 of the Local Government Act 1995 (WA), due to the finding that the land was exclusively used for charitable purposes. The appeal was allowed on the 146 Cf Attorney-General (NSW) v Perpetual Trustee Co Ltd (1940) 63 CLR 209, 222 (Dixon and Evatt JJ). -- 60 of 101 -- [2025] SASCA 32 The Court 57 basis that the relevant land had not been used exclusively for charitable purposes.147 Newnes AJA reduced the appeal to the central proposition that: 148 [T]he Tribunal erred in law in concluding that the Land was used exclusively for charitable purposes, in that the Tribunal failed to have regard to the actual use to which the Land was substantially put, namely to operate a commercial pastoral enterprise, and instead had regard to charitable purposes which the Association sought to achieve as a consequence of conducting the pastoral enterprise on the Land. 230 The Western Australian Court of Appeal consequently considered whether the respondent used the land exclusively for charitable purposes.149 The Court was required to determine the purpose or purposes for which the land was used, focusing “on what is done on the land, not on what use is made, or is going to be made, of what is done on or derived from the land”.150 In this way, the Court recognised a distinction between using land for a charitable purpose and the use of what is derived from the land for charitable purposes.151 231 The Court determined that the land was not used exclusively for charitable purposes within the meaning of s 6.26 of the Local Government Act 1995 (WA). The Court applied the test for determining whether land is used for exclusively charitable purposes expressed by the High Court of Australia in Salvation Army (Vic) Property Trust v Shire of Fern Tree Gully.152 Newnes AJA, after discussing the various benefits to the community flowing from the pastoral enterprise, concluded that the land was not used exclusively for charitable purposes:153 In my view, however, those benefits to the community and its members are not sufficient for a finding that the Land is used exclusively for charitable purposes. It is not sufficient that the pastoral enterprise provides funds or other resources which the Association uses for charitable purposes or that any profits which are ultimately derived from the business will be used by the Association for charitable purposes through other measures aimed at improving the lot in life of the members of the community. Nor is it sufficient, either alone or in combination with the other benefits, that the existence of the pastoral enterprise offers 147 Shire of Derby-West Kimberley v Yungngora Association Inc [2007] WASCA 233 (Yungngora Association), [85] (Newnes AJA, with whom Buss P and Miller JA agreed). 148 Yungngora Association [2007] WASCA 233, [35] (Newnes AJA, with whom Buss P and Miller JA agreed). 149 Yungngora Association [2007] WASCA 233, [44]-[85] (Newnes AJA, with whom Buss P and Miller JA agreed). 150 Yungngora Association [2007] WASCA 233, [61] (Newnes AJA, with whom Buss P and Miller JA agreed), referring to Moon v London County Council [1931] AC 151 and Nunawading Shire v Adult Deaf & Dumb Society of Victoria (1921) 29 CLR 98. 151 Yungngora Association [2007] WASCA 233, [65] (Newnes AJA, with whom Buss P and Miller JA agreed). 152 Yungngora Association [2007] WASCA 233, [35] (Newnes AJA, with whom Buss P and Miller JA agreed), summarising the test stated expressed in Salvation Army (Vic) Property Trust v Shire of Fern Tree Gully (1952) 85 CLR 159, 172 (Dixon, Williams and Webb JJ) as follows: “[I]f land is used for a dual purpose, then it is not used exclusively for charitable purposes although one of the purposes is charitable. But if the use of the land for a charitable purpose produces a profitable by-product as a mere incident of that use, the exclusiveness of the charitable purpose is not thereby destroyed”. 153 Yungngora Association [2007] WASCA 233, [83]-[84] (Newnes AJA, with whom Buss P and Miller JA agreed). -- 61 of 101 -- [2025] SASCA 32 The Court 58 employment and training to some members of the community or facilitates the pursuit of other objectives of benefit to the members of the community. The fact that the activities on the Land are a source of funds or other resources used by the Association for charitable purposes, or that the object of the pastoral business is to provide the resources by which those purposes might be achieved, does not, in my view, alter the nature of the use to which the Land is currently put. The Land is not, except to a small degree, used for charitable purposes; rather it is used essentially for the non-charitable purpose of operating a pastoral business, albeit with the object of providing resources which may be used for charitable purposes. Indeed, even if that non-charitable purpose were not the main purpose for which the Land were used, it would nevertheless be a distinct purpose so that, at the least, the Land would be used for a dual purpose. 232 This case was not concerned with determining whether a trust was a charitable trust, intended to benefit an Aboriginal community. 233 In Anthony R Cant v Kirby, the respondents, by cross-claim, sought a declaration “that Billa Downs Station is held in trust for members of the Aboriginal community of New South Wales who consider themselves to have a traditional connection with Billa Downs Station arising upon the making of an unconditional deed of grant dated 12 November 2001 between the Land Corporation and the Aboriginal Corporation”.154 234 The Aboriginal Corporation was taken to be registered as an Aboriginal and Torres Strait Islander Corporation under the CATSI Act. 235 The respondents contended that clause 2.1 of the Deed of Grant “created a trust over Billa Downs station in favour of them and other members of the Aboriginal Corporation as beneficiaries”.155 Gzell J ultimately rejected that contention:156 In my view, Mr and Mrs Kirby and the other members of the Aboriginal Corporation are not beneficiaries of the trust created by cl 2.1 of the deed of grant. What it created was a purpose trust the terms of which were that the Aboriginal Corporation should hold Billa Downs Station to provide economic, environmental, social and cultural benefits to its members. That was its object under Rule 7.1 and that mirrored the purpose of the Land Corporation in section 191B of the 2005 Act. A purpose trust is void unless it be for a charitable purpose (Morice v Bishop of Durham (1804) 9 Ves Jun 399 at 404-405 [32 ER 656 at 658] per Sir William Grant MR) The assistance of Aboriginal persons is a charitable purpose. In Re Mathew (decd); Trustees Executors & Agency Co Ltd v Mathew [1951] VLR 226 the testator directed his trustee to pay or transfer his residuary estate to a named person to be used by him at his discretion for the benefit of the Australian Aborigines. It was held to be a valid charitable gift. 154 Anthony R Cant v Kirby [2011] NSWSC 1193, [2] (Gzell J). 155 Anthony R Cant v Kirby [2011] NSWSC 1193, [34] (Gzell J). 156 Anthony R Cant v Kirby [2011] NSWSC 1193, [44]-[48] (Gzell J). -- 62 of 101 -- [2025] SASCA 32 The Court 59 In Re Bryning Deceased [1976] VR 100 the testatrix gave the whole of her estate to her trustee upon trust to pay it to the Australian Aboriginal League to be applied for the benefit of Aboriginal women in Victoria. The gift was held to be charitable. In my view, the trust created by cl 2.1 of the deed of grant is valid as a charitable purpose trust. This construction avoids the difficulty of the rule against perpetual trusts. Section 16(4) of the Perpetuities Act provides that it does not apply to a disposition that is charitable. 236 Justice Gzell held that, on the proper construction of the Deed of Grant, a charitable trust was established and the respondents were not the beneficiaries of that trust, so that the respondents had no entitlement to possession of Billa Downs Station.157 As the specific grant of land was for a purpose, namely, to foster the objects of the Aboriginal Corporation under r 7.1(b) of the Corporation’s Rule Book, reflecting the purpose of the “Land Corporation” in s 191B of the Aboriginal and Torres Strait Islander Act 2005 (Cth), the land was available to the liquidator when the corporation failed to pay land rates. The interest in the land was required to be re-transferred to the Land Corporation that had earlier made the grant. 237 This case is not authority for the proposition that all trusts that may benefit Aboriginal people must necessarily be regarded as a charitable trust intended to benefit a section of the public. 238 In Darkinjung Pty Ltd v Darkinjung Local Aboriginal Land Council,158 the Court was required to determine the validity of a trust as a charitable trust by construing clause 3.1 of the Trust Deed. This was undertaken in a context where, to the extent that the purposes were not charitable, the question was whether s 23 of the Charitable Trust Act (NSW) operated to save that part of the trust that was charitable and sever those that were not. Clause 3.1 provided: Purpose The purpose for which the Trust is established is to improve, protect and foster the best interests of Aboriginal persons within the Relevant Area and other persons who are members of the Council by doing any act that the Council had the power to do as at the Commencement Date, or has the power to do from time to time (and at the relevant time), which as at the Commencement Date includes, without limitation: (a) relieving poverty of Aboriginal persons in the Relevant Area; (b) improving the health of the Aboriginal persons in the Relevant Area; (c) educating and training the Aboriginal persons in the Relevant Area; (d) addressing the welfare of the Aboriginal persons in the Relevant Area; (e) acquiring, constructing, upgrading or extending residential accommodation for Aboriginal persons who are in necessitous circumstances in the Relevant Area; 157 Anthony R Cant v Kirby [2011] NSWSC 1193, [61]-[62] (Gzell J). 158 Darkinjung Pty Ltd v Darkinjung Local Aboriginal Land Council (Darkinjung) [2006] NSWSC 1008. -- 63 of 101 -- [2025] SASCA 32 The Court 60 (f) protecting the interests of Aboriginal persons in the Relevant Area in relation to the acquisition, management, use, control and disposal of the Council’s land; (g) promoting the protection of Aboriginal culture and the heritage of Aboriginal persons in the Relevant Area; and (h) acquiring, establishing and operating enterprises for the benefit of the community to the extent that the acquisition, establishment and operation of such enterprises is not inconsistent with paragraphs (a) to (g). 239 Clause 3.1 of the Trust Deed stated that the class of persons whose welfare was envisaged were those “Aboriginal persons within the Relevant Area and other persons who are members of the Council”.159 240 Justice Barrett considered clause 3.1 of the Trust Deed pursuant to two possible approaches to construction.160 According to the first approach, upon the correct construction of clause 3.1 of the Trust Deed, “the purpose for which property is to be held on trust is a purpose corresponding with and comprehending all the objects functions and powers of DLALC [Darkingung Local Aboriginal Land Council], as a local Aboriginal land council”.161 Pursuant to the second approach, “clause 3.1, upon its proper construction, specifies a purpose which includes the elements in paras (a) to (h) whether or not they are properly regarded as reflective of objects, functions and powers of DLALC at the Commencement Date”.162 241 Justice Barrett concluded that on either approach the correct construction of the clause was that “the question whether a valid charitable trust exists would be answered in the affirmative”.163 242 It is perhaps unsurprising that the Court held that clause 3.1 identified charitable purposes where these explicitly included relieving poverty, improving health, improving education and training, and the like. 243 That this Aboriginal Corporation was found to have charitable purposes which came within Pemsel obviously did not mean that all trusts established for the benefit of Aboriginal people are necessarily charitable. 244 Finally, it is appropriate to consider Groote Eylandt.164 245 In that case, the Groote Eylandt Aboriginal Trust Inc was appointed the trustee of a fund established to receive mining royalty payments. The trustee as plaintiff sued an accounting firm and a solicitors’ firm, amongst others, concerning 159 Darkinjung (2006) 203 FLR 394, [173] (Barrett J). 160 See Darkinjung (2006) 203 FLR 394, respectively applying the first approach at [181]-[186] and the second approach at [187] (Barrett J). 161 Darkinjung (2006) 203 FLR 394, [181] (Barrett J). 162 Darkinjung (2006) 203 FLR 394, [187] (Barrett J). 163 Darkinjung (2006) 203 FLR 394, [188] (Barrett J). 164 Groote Eylandt (2017) 169 NTR 1 (Hiley J). -- 64 of 101 -- [2025] SASCA 32 The Court 61 the loss of monies held by the trustee. The plaintiff contended that the trust was established for charitable purposes, including for the relief of poverty and for a public benefit. 246 The solicitors’ firm contended that the trust was not a valid charitable trust because its purposes included non-charitable purposes such as the promotion of sport and social facilities. 247 This issue arose in connection with the pleadings which put into issue whether the trust was entitled to protection and enforcement by the Attorney-General of the Northern Territory as parens patriae. If the solicitors’ firm was correct in its contention that the trust was not a valid charitable trust, then it apparently followed that the plaintiff could not recoup its losses. This was not a case where it had to be determined whether the trust was a charitable trust or a private discretionary trust. It would seem that the assumption was that the trust was either a valid charitable trust or it was invalidated, and not able to bring proceedings.165 248 The trust deed in Groote Eylandt contained a number of recitals.166 The recitals included that the settlor, the Church Missionary Society Trust Ltd, had become beneficially entitled to various royalty payments due under a mining agreement. Ultimately these became the property of BHP and one of its subsidiaries. Recitals B, C, D, E and F provided:167 B. It is and always has been the desire and intent of the Settlor that all Royalty Payments to which it is or may become entitled be used to establish a permanent Trust for the education, benefit welfare, comfort and general advancement of certain Aboriginal people resident upon Groote Eylandt and Bickerton Island. C. On 28 August 1969, the Groote Eylandt Aboriginal Trust Incorporate (‘Association/Trustee’) was formed for the purpose of acting as trustee of the Trust. D. On 7 March 1989, the Settlor and the Trustee entered into a deed of trust (‘the Old Trust’) to give effect to the charitable trusts originally contemplated with the establishment of the Trustee on 28 August 1969 (with effect from 25 May 1965). E. The Settlor, for the purpose of giving effect to such desire, has throughout transferred to the Trust all Settled Property and the Trustee consented to become the trustee thereof subject to the powers and provisions hereinafter expressed. F. Following consultation, recommendation and discussion amongst the people of Groote Eylandt and Bickerton Island, certain amendments to the Old Trust were made to better reflect the then present day circumstances of the Trust. During 1995 165 Groote Eylandt Aboriginal Trust Incorporated v Deloitte Touche Tohmatsu (No 2) (2017) 169 NTR 1 (Groote Eylandt) (Hiley J). 166 At common law, the recitals are subject to the doctrine of estoppel by convention and are treated as established facts, see for example, Offshore Oil NL v Southern Cross Exploration NL (1985) 3 NSWLR 337 (Clarke J) and Bond v Ramsay (1993) 27 ATR 479, 499 (Gummow J, with whom Ryan J agreed). 167 Groote Eylandt (2017) 169 NTR 1, 5-6 (Hiley J). -- 65 of 101 -- [2025] SASCA 32 The Court 62 the Members of the Trustee agreed to amend the terms of the Old Trust to those contained in a new deed of trust dated 25 June 1996 (‘the New Trust’). 249 The balance of the recitals demonstrated that after consultation a new trust was established, and amendments were approved by the Attorney-General of the Northern Territory in 2005. 250 Clause 1.1 of the Groote Eylandt trust deed defined as “beneficiaries” all Aboriginal people who are members of the traditional clans of and permanently resident on Groote Eylandt or Bickerton Island and their successor generations. 251 Significantly, clause 2 of the trust deed was as follows:168 The Trust The Trustee shall hold and apply the Trust Fund exclusively for such charitable purposes (in the strict legal sense) as may be served by the provision of money property or other advantages for the benefit welfare and advancement of the Beneficiaries. 252 Clause 6.3 of the trust deed provided for a charitable grant fund to be allocated from the income of the trust fund for the purpose of providing benefits to the beneficiaries, as defined. Hiley J found that:169 At the time of European settlement it is likely that Groote Eylandt, Bickerton Island and nearby waters were occupied by a group of people more recently known as Anindilyakwa people under laws and customs pursuant to which they and their successors held rights of possession in the land to the exclusion of all others.170 253 Whilst it was accepted that a charitable trust may be settled for the benefit of Aboriginal people,171 the solicitor’s firm argued that the tests in Re Compton and Oppenheim were not satisfied and the trust was “invalidated”:172 Counsel for the [solicitors’ firm] contended173 that unlike those charitable trusts which have been held to be valid for the benefit of certain Aboriginal people, this Trust adds the additional qualifier that the beneficiaries be those permanently resident on the islands, who are members of the traditional clans, and their successor generations. This expression has the consequence that the Compton-Oppenheim principles will apply to invalidate the trust regardless of whether the beneficiaries are identified as either: 168 Groote Eylandt (2017) 169 NTR 1, [12] (Hiley J). 169 Groote Eylandt (2017) 169 NTR 1, [33] (Hiley J). 170 Mabo v State of Queensland [No 2] (1992) 175 CLR 1, 57-62 and 70[6]. 171 Groote Eylandt (2017) 169 NTR 1, [104] (Hiley J), relying on Aboriginal Hostels Ltd v Darwin City Council (1985) 33 NTR 1, 13-18 (Nader J); Alice Springs, (1997) 139 FLR 236, 253-254 (Mildren J, with whom Martin CJ agreed); Cant (liquidator of Billa Downs Aboriginal Corporation (in liq)) v Kirby [2011] NSWSC 1193, [18]-[19]; [46]-[47] (Gzell J); Shire of Derby-West Kimberley v Yungngora Association Inc [2007] WASCA 233, [50]-[57] (Newnes AJA, with whom Buss and Miller JJA agreed). 172 Groote Eylandt (2017) 169 NTR 1, [209] (Hiley J). 173 Third Defendant’s Written Submissions at [84]-[88]. -- 66 of 101 -- [2025] SASCA 32 The Court 63 (a) members of the traditional clans of, and permanently resident on, Groote Eylandt or Bickerton Island, at the time of the settlement of the trust, and the descendants of those individuals; or (b) members of the traditional clans of Groote Eylandt or Bickerton Island, and their descendants, who permanently live on Groote Eylandt or Bickerton Island. 254 In rejecting this approach, Hiley J relied on the evidence led and its effect in the case before him:174 Whilst one would normally identify one or more particular “ascertainable” persons as ancestors through whom one belongs to the relevant group, whether it be described as a “native title holding group” (under the [Native Title Act]), a “local descent group” (under [Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)]) or a “clan”, it is not one’s descent from that particular person or persons that permits and defines one’s membership of the group. In the case of the traditional clans the members of which comprise the Beneficiaries under the Trust, the “rules” that define them and their membership are much more complicated than descent from one or more particular ascertainable persons. Not only are the “rules” based upon descent from one or more persons who have belonged to and owned a particular area of land on a communal basis (sometimes referred to as an “estate”) from time immemorial (and could never be “ascertainable”), they are also based upon mythical ancestors some of whom are believed to have created the land and its features and bestowed the rights in the land and features to others who are now described as clans. Unlike the circumstances such as those in many of the cases relied upon by the third defendant, including Compton, Oppenheim, Davies, Thompson and In re Income Tax Act (No 1), the description of the class or the rules for membership of the class cannot be altered arbitrarily, for example by a testator changing his will or by an association altering its membership rules or having the ability to include or exclude particular people from the class. (Citations omitted.) 255 Apart from what might be inferred about the Sub-Groups, there was no evidence of clans or about mythical ancestors led in this case. Hiley J concluded that the class before him comprising the clans and their members was a relevant section of the public:175 As I have pointed out above, the clans and their members are much more than a group of people defined by reference to one or more persons or one or more particular events. Not only are they the people whose traditional rights and interests in the land have been recognised since the land become Aboriginal land in 1978 under [Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)], they are the people who have always been regarded as holding the traditional rights and interests in the land from time immemorial. They are, without doubt, “an appreciably important class of the community” and clearly fall within the scope of the test identified in Verge v Somerville. 174 Groote Eylandt (2017) 169 NTR 1, [222]-[224] (Hiley J). 175 Groote Eylandt (2017) 169 NTR 1, [239]-[242] (Hiley J). -- 67 of 101 -- [2025] SASCA 32 The Court 64 Moreover, the common quality which unites the potential beneficiaries into a class is essentially an impersonal one. They are not constituted and defined by reference to some personal or quasi-contractual attribute. They are nothing like a “fluctuating body of private individuals” receiving some “private advantage”. The clans are a section of the public in much the same way as are the Maori groups discussed in Latimer’s case. (Citations omitted.) 256 The solicitors’ firm also argued that the inclusion of purposes relating to sporting and social facilities, and a market garden, were not charitable purposes.176 Hiley J rejected the argument, accepting that the provision of sport and social facilities, and a market garden, may be charitable purposes.177 257 In this case, the terms of the Trust Deed already set out may be compared and distinguished. The effect of the evidence before Hiley J may be compared with the terms of the 2009 determination made by Mansfield J concerning the descendants of the twelve apical ancestors. 258 On its face, the Trust appears to manifest the intention that it should operate as a private discretionary trust, intended to benefit named, identifiable beneficiaries.178 The purpose of the Trust was to benefit the Traditional Owners and their descendants, who are listed by name and otherwise readily identifiable in both the Schedule to the Trust Deed and the Traditional Owner Register, as updated from time to time. In that setting, the absence of any explicit charitable purposes, and the means by which the beneficiaries are identified, tend to demonstrate that the Trust does not have a public purpose, and certainly not the purposes of relieving poverty, advancing education or religion or any other purpose generally beneficial to the community or a section of it. 259 Whilst Rangelea criticised the approach taken by the primary judge, it is difficult in a case such as this to disentangle the beneficial objects of the Trust and the means by which those individuals are identified and benefited. In the circumstances of this case those provisions, even if they might be described as administration or machinery provisions, demonstrate an intention revealed by the terms of the Trust Deed to benefit an identifiable class of Adnyamathanha people. 260 The primary judge made no error in observing that there was an absence of any objective intention to address the relief of poverty, the advancement of education or the advancement of religion, or other public purposes. The primary judge did so in the context of considering a number of the relevant authorities when endeavouring to identify whether any public purpose could properly be discerned. 176 Groote Eylandt (2017) 169 NTR 1, [282]ff (Hiley J). 177 Groote Eylandt (2017) 169 NTR 1, [299]-[301], [305]-[306] (Hiley J). 178 See the Schedule, by which each of the beneficiaries is listed by name. -- 68 of 101 -- [2025] SASCA 32 The Court 65 261 The absence of a reference in one passage of the primary judge’s reasons to the fourth Pemsel category is a very narrow point.179 It must be rejected. It ignores his Honour’s general inquiry into whether the requisite public purpose could be discerned from a reading of the Trust Deed as a whole.180 262 In these circumstances, appeal grounds 2 and 3 should be dismissed. Appeal ground 7 – Was there was a basis for the appointment of an inspector? 263 The finding by the primary judge that ATLA and the respondents are entitled to seek the appointment of an inspector pursuant to s 84C of the Trustee Act is set out in the following passage:181 I also find that the Adnyamathanha applicants and ATLA have a proper interest in the Master Trust entitling them to seek the appointment of an inspector pursuant to s 84C of the Trustee Act. On the evidence of a director of Rangelea, Mr Vincent Coulthard, there are grounds to suspect that the production of those records alone may not reveal how much of the fund which was distributed to the Sub-Groups was disseminated between the members of the Sub-Groups, and in what proportions. An inspector is likely to discover more information in that respect. I will therefore so order. 264 Later, the primary judge referred to the matters he took into account, in a section which included his ruling on whether the Trust was a charitable trust.182 There, the primary judge referred to paragraphs [105]-[111], most of which have been reproduced above. Only paragraph [111] was not reproduced. In the course of his consideration of the evidence concerning the administration of the Master Trust by Rangelea, the primary judge explained:183 Fourthly, the distribution of the Allocated Share of each Sub-Group by a single payment for a member of a Sub-Group or an Eligible Entity means that there is no transparency as to any further distribution. In exercising such discretions as Rangelea may have as to the entity to which the payment is made, or in determining whether to seek the assistance of the Court in the administration of the Master Trust, Rangelea was bound by the fiduciary duty it owed all members of the Sub-Groups to seek and maintain records of the way in which the recipient of the payment for the Sub-Group dealt with the funds. Rangelea’s refusal to provide any information as to its management of the Master Trust deprives members of the Sub-Groups of information they would require to determine whether to bring an action against the member of the Sub-Group or an Eligible Entity who received trust funds from Rangelea. 265 The primary judge was satisfied that there was “strong reason” to exercise such discretions as there may be in favour of making the trust accounts of the Trust available and for the appointment of an inspector.184 179 Reasons, [103]. 180 See, for example, Reasons, [63] ff as well as the first sentence of [103] and [104] to [106] inclusive. 181 Reasons, [15]. 182 Reasons, [256]. 183 Reasons, [111]. 184 Reasons, [113]. -- 69 of 101 -- [2025] SASCA 32 The Court 66 266 As part of his conclusion, the primary judge explained that it was proper to appoint an inspector to investigate the administration of the Trust so that the dissemination of the distributions made to Sub-Groups could be identified.185 In addition, the primary judge was satisfied that an inspector should be appointed to investigate the allegations of mismanagement about which Mr Coulthard complained in his evidence, together with the reasons for ATLA’s apparently strained financial state.186 267 Although the primary judge acknowledged that there was no claim for the removal of Rangelea as trustee, he thought that a consideration of the provision concerning removal assisted an understanding of the provisions of the Trustee Act which hold trustees accountable for their administration of trusts. On that basis his Honour considered s 36 of the Trustee Act: 36—Power of the Court to appoint new trustee (1) The Supreme Court may, on the application of a person referred to in subsection (1c), make— (a) an order removing one or more of the trustees of a trust; or (b) an order replacing one or more of the trustees of a trust; or (c) an order appointing a trustee or trustees, or an additional trustee or trustees, of a trust; or (d) any other order that in its opinion is necessary or desirable. (1a) The Court may make the order if it is satisfied that the order is desirable— (a) in the interests of the persons (whether identified or not) who are to benefit from the trust; or (b) to advance the purposes of the trust. (1b) There is no need for the Court to find any fault or inadequacy on the part of the existing trustees before making an order under this section. (1c) The following persons may apply for an order under this section: (a) the Attorney-General; or (b) a trustee of the trust; or (c) a beneficiary of the trust; or (d) in the case of a trust established wholly or partly for charitable purposes the following persons may apply for an order in addition to those referred to in the other paragraphs of this subsection: 185 Reasons, [256]. In this passage his Honour referred to his earlier findings at [105]-[111] inclusive. 186 Reasons, [256]. -- 70 of 101 -- [2025] SASCA 32 The Court 67 (i) a person who is named in the instrument establishing the trust as a person who is entitled to, or may, receive money or other property for the purposes of the trust; or (ii) a person who is named in the instrument establishing the trust as a person who must, or may, be consulted by the trustees before distributing or applying money or other property for the purposes of the trust; or (iii) a person who in the past has received money or other property from the trustees for the purposes of the trust; or (iv) a person of a class that the trust is intended to benefit; or (e) any other person who satisfies the Court that he or she has a proper interest in the trust. (2) An order under this section, and any consequential vesting order or conveyance shall not operate further or otherwise as a discharge to any former or continuing trustee than an appointment of new trustees under any power for that purpose contained in any instrument would have operated. (3) Nothing in this section shall give power to appoint an executor or administrator. 268 Later, his Honour considered ss 84B, 84C, 84D and 84E of the Trustee Act, which provide: 84B—Records to be kept by trustee (1) A trustee shall keep such records relating to his administration of the trust property as may be prescribed. Maximum penalty: $500. (2) A trustee shall, at the request of— (a) the Public Trustee; or (b) another trustee of the trust; or (c) a beneficiary under the trust, produce the records kept by the trustee in pursuance of this section for inspection and permit the Public Trustee, the other trustee or the beneficiary (as the case may be) to examine and make copies of those records. Maximum penalty: $500. 84C—Appointment of inspector (1) The Supreme Court may, on its own initiative, or on the application of any person who has, in the opinion of the Court, a proper interest in the matter, appoint an inspector to investigate the administration of any trust. (2) An inspector must be a person who holds prescribed qualifications. -- 71 of 101 -- [2025] SASCA 32 The Court 68 (3) The Supreme Court may make orders for the payment of the whole or part of the costs of an investigation under this Part— (a) by the applicant for the investigation; or (b) by a trustee or beneficiary of the trust; or (c) out of the trust estate. 84D—Powers of an inspector (1) For the purpose of investigating the administration of a trust, an inspector may— (a) require any person to produce documents relevant to the administration of the trust; and (b) take copies of, or extract from, any such documents; and (c) require any person to answer any question relevant to the administration of the trust; and (d) exercise any other power conferred on him by the Court. (2) A person who— (a) refuses or fails to produce documents in his custody or power when required to do so by an inspector; or (b) refuses or fails to answer to the best of his knowledge, information and belief any question put to him by an inspector under this section; or (c) hinders an inspector in the exercise of his powers, shall be guilty of an offence and liable to a penalty not exceeding $2,000 or imprisonment for six months or both. (3) A person may decline to answer a question put to him by an inspector under this section if the answer to the question would tend to incriminate him of an offence. 84E—Reports to be made to Attorney-General (1) Upon completing an investigation under this Part, an inspector shall make a report in writing to the Supreme Court and to the Attorney-General upon the results of the investigation. (2) An inspector shall make such interim reports to the Supreme Court and to the Attorney-General in relation to an investigation under this Part as the Court may direct. 269 The primary judge also referred to the terms of reg 5 of the Trustee Regulations 2011 (SA):187 187 Reasons, [126]. -- 72 of 101 -- [2025] SASCA 32 The Court 69 5—Records to be kept by trustee (1) For the purposes of section 84B of the Act, the records that a trustee must keep relating to administration of the trust property are as follows: (a) each document authorising the trustee to act as trustee; (b) each letter received by the trustee and a copy of each letter sent by the trustee; (c) a copy of each statutory declaration and each affidavit made in the course of the administration of the trust; (d) each deed, agreement or other instrument varying distribution of the trust property or a stamped duplicate of any such deed, agreement or instrument; (e) a copy of all returns made as to any form of duty, charge or tax imposed on the trust by the Commonwealth or any State or Territory of the Commonwealth (including trust income tax returns and personal tax returns for beneficiaries where applicable); (f) all written instructions for the sale or transfer of any trust property or any asset which forms or formed part of the trust property and any independent valuations obtained in relation to those assets; (g) minutes of the proceedings of all meetings relating to administration of the trust at which the trustee was or was entitled to be present; (h) a record of any insurance cover in respect of the assets which form or formed part of the trust property; (i) any report received from an investment adviser and a record of all decisions made in relation to such report; (j) a record of all reviews of investments; (k) other records that would enable the receipt and disposition of trust property to be conveniently and properly audited, including the following: (i) a register of securities recording the following information in respect of all securities received and disposed of: (A) the date of receipt or disposition; (B) a description of the securities; (C) the consideration passing for receipt or disposition; (D) brief particulars of the purpose of the transaction; (ii) a property register recording the following information in respect of all other property received and disposed of: (A) the date of receipt or disposition; (B) a description of the property; -- 73 of 101 -- [2025] SASCA 32 The Court 70 (C) the consideration passing for receipt or disposition; (D) brief particulars of the purpose of the transaction; (iii) a register of all investments of income and capital funds (including redemptions and income accretions) recording the following information in respect of each investment: (A) the date of investment; (B) the amount of the funds invested; (C) brief particulars of the investment; (iv) a cash receipt book recording the following information in respect of each receipt of trust money: (A) the date and reference number of each receipt; (B) the name of the person from whom the money is received; (C) the trust name or reference to which the transaction relates; (D) brief particulars of the purpose of the receipt; (E) the amount of the receipt; (F) the date the cash receipted is deposited in an ADI account (where applicable); (v) a cash payments book recording the following information in respect of each payment of trust money: (A) the date of the payment; (B) if the payment was made by cheque—the cheque number; (C) the name of the payee; (D) the trust name or reference to which the transaction relates; (E) brief particulars of the purpose of the payment; (F) the amount of the payment; (vi) each ADI statement and passbook issued in relation to trust ADI accounts; (vii) trust statements, prepared not less than annually, showing the following for the period from the end of the last period for which a statement was prepared: (A) cash receipts and payments; (B) other property received or transferred; -- 74 of 101 -- [2025] SASCA 32 The Court 71 (C) assets and liabilities as at the last day of the statement period. (2) Where the trustee administers more than 1 trust, separate records must be kept, in accordance with this regulation, in relation to each trust administered by the trustee. (3) All records referred to in this regulation must be retained by the trustee, in a legible written form or so as to be readily convertible into such a form, for at least 5 years after the termination of the trust. 270 In substance, Rangelea submitted that the primary judge failed to have regard to the particular requirements of the provisions of the Trustee Act and failed to set out any satisfactory basis for an appointment to be made in this case. 271 The attack made by Rangelea at this part of its case commenced with the proposition that s 84C is limited in its operation to the appointment of inspectors to private discretionary trusts. 272 Contrary to the finding made by the primary judge, Rangelea submitted that if it succeeded in its contention that the Trust was a charitable trust then the decision to make an appointment of an inspector pursuant to s 84C must be set aside because the supervisory powers of the Supreme Court regarding charitable trusts were only addressed by s 60 of the Trustee Act. 273 Whilst this contention has been addressed in connection with appeal grounds 2 and 3, it will be necessary to return to aspects of it in connection with the notice of alternative contentions. 274 On the assumption that the Trust is a private discretionary trust, Rangelea contended that the primary judge erred in the exercise of his discretion because he took into account two irrelevant considerations, and he failed to take into account relevant considerations.188 275 The first irrelevant consideration was that the appointment of an inspector was appropriate so as to enable investigation of the secondary dissemination by Sub-Groups of distributions made to them. The second irrelevant consideration was said to be that the appointment of an inspector was appropriate to investigate the alleged mismanagement about which Mr Coulthard complained, as well as the reasons for ATLA’s apparently strained financial state. 276 As to the first, Rangelea submitted that the role of the Trustee was concluded once it had made a distribution as directed by a Sub-Group.189 Rangelea submitted that the suggested fiduciary duty in Rangelea to seek and maintain records of the ways in which recipients of payments from a Sub-Group had dealt with funds190 188 Referring to Reasons, [256]. 189 Reasons, [89], [99] and cll 3.2 and 7.7 of the Trust Deed. 190 Reasons, [111], set out above. -- 75 of 101 -- [2025] SASCA 32 The Court 72 was without any basis. Rangelea submitted that this finding was inconsistent with the terms of the Trust Deed.191 277 As for the second irrelevant consideration, Rangelea submitted that Mr Coulthard’s evidence was directed to the mismanagement of the affairs of ATLA and not the Trust. Whether there had been mismanagement of the affairs of ATLA was, Rangelea submitted, entirely irrelevant to whether it was appropriate to appoint an inspector to investigate the Trust. The same could be said, Rangelea submitted, about any strained financial state of ATLA. Rangelea submitted that this had “nothing whatever to do with the affairs of the Master Trust”.192 Rangelea submitted that the primary judge had erroneously conflated the affairs of ATLA with the affairs of the Trust. 278 Relying upon amendments made to appeal ground 7, Rangelea submitted that the primary judge ought also to have relied upon relevant considerations in dismissing the application for the appointment of an inspector, being:193 1. the Master Trust is administered by a Board of directors who meet twice yearly to deal with the administration of the Trust; 2. the trustee retains external accountants and solicitors to advise in respect of the administration of the Master Trust; 3. the accounts of the Master Trust are maintained by external accountants and the annual accounts are audited by independent auditors, which audits not raised matters of concern. 279 Rangelea submitted that in circumstances where the evidence established these matters, and where the distributions to the Sub-Groups were authorised by the Trust Deed, the only appropriate order was to refuse the appointment of an inspector. The determination of appeal ground 7 280 It is clear that the request for the appointment of an inspector is ancillary to the request made for trust documents. Accordingly, it is appropriate to consider this aspect of the case in connection with the law relating to requests for trust documents and records made of trustees by beneficiaries. 281 The provisions of the Trustee Act concerning the appointment of an inspector form part of a suite of arrangements by which beneficiaries, whether under statute or at general law, may obtain information about a trust, including trust documents and records. A feature of these arrangements is that s 84B(1) mandates that a 191 Referring to cll 3.2 and 7.7 and the undoubted proposition that the Trustee was bound by the terms of the Trust Deed, Youyang Pty Ltd v Minter Ellison Morris Fletcher (2003) 212 CLR 484, [32]. 192 Written submissions of the appellant, [130]. 193 See the additional sub-paragraphs 7.5, 7.6 and 7.7 added to appeal ground 7 for which leave to amend was granted. -- 76 of 101 -- [2025] SASCA 32 The Court 73 trustee shall keep prescribed trust records, and s 84B(2) requires that the trustee, at the request of the Public Trustee, another trustee or a beneficiary, produce those prescribed trust records for inspection and permit them to be examined and copied. The cases addressing the avenues available to beneficiaries at general law must therefore be reviewed, in this jurisdiction at least, with an eye on the statutory obligations and entitlements arising under s 84B of the Trustee Act. 282 As will be seen, the view at general law that the right of beneficiaries to seek the disclosure of trust documents is a proprietary right has been criticised, and it may be preferable to view it as one aspect of the Court’s inherent jurisdiction to supervise and, where appropriate, intervene in the administration of trusts.194 283 In Spellson v George,195 Powell J held that a person who was one of the potential objects of the exercise of a discretionary power of appointment concerning a trust fund had the right to seek and obtain from the trustee information about the trustee’s management of the trust fund. He did not regard the issue as constrained by the fact that some of the authorities contained statements to the effect that a beneficiary, whose interest is vested, has a proprietary right of access to trust documents.196 As Powell J explained the preferred approach, it was an adjunct to “the fundamental nature of a trust”:197 It seems to me, with respect, that the answer to the question with which I am concerned to deal is to be found, not in some attempt to reconcile the various passages in the authorities to which I have been referred, but upon a consideration of the fundamental nature of a trust, the duties to which a trustee is subjected by the very nature of his office, and the correlative rights against the trustee, which are conferred upon a cestui que trust. At the risk of being regarded as overly simplistic, it is as well to start with the fundamental proposition that one of the essential elements of a private trust, be it a discretionary trust or some other form of trust, is that the trustee is subject to a personal obligation to hold, and to deal with, the trust property for the benefit of some identified, or identifiable, person or group of persons: see, eg, Jacobs, op cit pars 108-111 at 8-9. It is, so it seems to me, a necessary corollary of the existence of that obligation that the trustee is liable to account to the person, or group of persons for whose benefit he holds the trust property, (see, eg Manning v Federal Commissioner of Taxation (1928) 40 CLR 506 at 509 per Knox CJ) and, that being so, the trustee is obliged not only to keep proper accounts and allow a cestui que trust to inspect them, but he must also, on demand, give a cestui que trust information and explanations as to the investment of, and dealings with, the trust property: see, eg, re Tillott; Ford and Lee, Principles of the Law of Trusts (1983) at 404 et seq; Jacobs, op cit pars 1713 et seq; at 391 et seq; Pettit, Equity and the Law of Trusts, 3rd ed (1974) at 330 et seq. 194 Schmidt v Rosewood Trust Ltd [2003] 2 AC 709 (Schmidt) (Privy Council), [66]-[67], referring to McPhail v Doulton [1971] AC 424 (Lord Wilberforce) and Re Cowin (1886) 33 Ch D 179 (North J). And see Avanes v Marshall (2007) 68 NSWLR 595, [5]-[15] (Gzell J). 195 Spellson v George (1987) 11 NSWLR 300. 196 See O’Rourke v Darbishire [1920] AC 581, 626 (Lord Wrenbury); Re Londonderry’s Settlement [1965] 1 Ch 918; Peat v Walsh [1965] Ch 594, 932-933, 935 and 937; Re Fairbairn (deceased) [1967] VR 633, 637-640 (Gillard J). 197 Spellson v George (1987) 11 NSWLR 300, 315-316 (Powell J). -- 77 of 101 -- [2025] SASCA 32 The Court 74 This being the essential nature of the position of a trustee, and the liability to account being an essential ingredient in it, it seems to me that it is inescapable that the cestuis que trust, or any one of the cestuis que trust, have, or has, a correlative right to approach the Court for its assistance in enforcing the personal obligation of the trustee, and, in particular, in enforcing the trustee’s obligation to account. … 284 Justice Powell concluded that it was not necessary for the beneficiary to allege that the trustee had been guilty of fraud or any other breach of trust because the trustee was under a duty to furnish information.198 285 In Re Simersall, Gummow J explained the arrangements applicable between a trustee and beneficiaries in the following way, referring with approval to the passage set out from Spellson v George: 199 One of the essential elements of a private trust is that the trustee is subject to a personal obligation to hold and deal with the trust property for the benefit of the beneficiaries, and a necessary incident of that obligation is the liability of the trustee to account to the beneficiaries for his stewardship of the trust property. That being so, a further necessary incident of the control of the trust property by the trustee is the trustee’s obligation to keep proper accounts and to allow inspection of them by the cestui que trust: see Spellson v George (supra) (at 315-316). Hence, the description of Lord Wrenbury [in O’Rourke v Darbishire [1920] AC 581 at 626] of the right of inspection as “proprietary” in character, annexed as it is to the beneficial interest of the beneficiary in the trust property. … It follows, in my view, that as a matter of general law, in relation to the documents of Bray & Co here in question, Barroile has a right of access for inspection. That access, in Lord Wrenbury’s phrase, is “upon a proprietary right” because, in a sense, the documents are those “of” Barroile. 286 A somewhat similar approach was later taken by a majority of the New South Wales Court of Appeal in Hartigan Nominees Pty Ltd v Rydge.200 The issue in that case was whether the beneficiary of a discretionary trust could access a memorandum of wishes, which was intended to guide the trustees in the exercise of their powers. By a majority, the New South Wales Court of Appeal held that it was not a document which the trustees were obliged to disclose, even on a confidential basis. Kirby P (as his Honour then was), in dissent, rejected the proposition that the beneficiary needed to demonstrate anything akin to a proprietary right in the documents sought:201 Much of the law on the subject of access to documents has conventionally been expressed in terms of the “proprietary interest” in the document of the party seeking access to it. Thus, it has been held that a cestui que trust has a “proprietary right” to seek all documents relating to the trust: see O’Rourke v Darbishire (at 601, 603). This approach is unsatisfactory. Access should not be limited to documents in which a proprietary right may 198 Spellson v George (1987) 11 NSWLR 300, 316C-D (Powell J). 199 Re Simersall; (1992) 35 FCR 584, 588-590 (Gummow J). 200 Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 (Hartigan Nominees), 419-422 (Kirby P, diss), 432-433 (Mahoney JA), 442-445 (Sheller JA). 201 Hartigan Nominees (1992) 29 NSWLR 405, 421-422. -- 78 of 101 -- [2025] SASCA 32 The Court 75 be established. Such rights may be sufficient; but they are not necessary to a right of access which the courts will enforce to uphold the cestui que trust’s entitlement to a reasonable assurance of the manifest integrity of the administration of the trust by the trustees. I agree with Professor H A J Ford’s comment, in his book (with Mr W A Lee) Principles of the Law of Trusts, 2nd ed (1990) Sydney, Law Book Co, at 425, that the equation of rights of inspection of trust documents with the beneficiaries’ equitable rights of property in the trust assets “gives rise to far more problems than it solves” (at 425): “… The legal title and rights to possession are in the trustees: all the beneficiary has are equitable rights against the trustees. … The beneficiary’s rights to inspect trust documents are founded therefore not upon any equitable proprietary right which he or she may have in respect of those documents but upon the trustee’s fiduciary duty to keep the beneficiary informed and to render accounts. It is the extent of that duty that is in issue. The equation of the right to inspect trust documents with the beneficiary's equitable proprietary rights gives rise to unnecessary and undesirable consequences. It results in the drawing of virtually incomprehensible distinctions between documents which are trust documents and those which are not … 287 Later, Kirby P adopted the following statement of principle:202 In Scott on Trusts, vol IIA, 4th ed (1987) Boston, Little, Brown and Co at 462, the principle, in terms which I accept, is stated thus (at 462-465): The trustee is under a duty to the beneficiaries to give them on their request at reasonable times complete and accurate information as to the administration of the trust. The beneficiaries are entitled to know what the trust property is and how the trustee has dealt with it. They are entitled to examine the trust property and the accounts and vouchers and other documents relating to the trust and its administration. Where a trust is created for several beneficiaries, each of them is entitled to information as to the trust. Where the trust is created in favour of successive beneficiaries, a beneficiary who has a future interest under the trust, as well as a beneficiary who is presently entitled to receive income, is entitled to such information, whether his interest is vested or contingent. A beneficiary is entitled to inspect opinions of counsel procured by the trustee to guide him in the administration of the trust. 288 Justice Mahoney described the two main bases for giving access as: (a) the right of a beneficiary to have access to the documents of the trust; and (b) the right of a beneficiary as a party to litigation to have information, as on discovery or interrogatories, relevant to the litigation. As for the first, he explained:203 In general, a trustee is not obliged to volunteer documents or information to beneficiaries or possible beneficiaries. However, if a beneficiary requests it, a trustee is in general obliged to provide documents and information to the beneficiary, at his cost, in relation to the trust property and to provide an accounting in respect of the administration of it. These principles have been long recognised: see, eg, Walker v Symonds (1818) 3 Swans 136 ER 751. A number of the decided cases are reviewed in Re Fairbairn, deceased [1967] VR 633 at 636 et seq. A beneficiary may make such a request even though his interest be only contingent: Re Dartnall; Sawyer v Goddard [1895] 1 Ch 474. Notwithstanding cases such as Chaine-Nickson v Bank of Ireland [1976] IR 393; it may be that such a right does not 202 Hartigan Nominees (1992) 29 NSWLR 405, 422-423 (Kirby P). 203 Hartigan Nominees (1992) 29 NSWLR 405, 431-432 (Mahoney JA). -- 79 of 101 -- [2025] SASCA 32 The Court 76 exist where the request is made by a person who is only a possible beneficiary under a discretionary trust. At least, I would reserve the question whether one of a large number of possible beneficiaries may make such a request. 289 Justice Mahoney took a slightly narrower approach than the approach favoured by Kirby P, based on the proposition that a beneficiary’s entitlement to information was grounded in a “proprietary interest”:204 … the right of a beneficiary to have on request inspection of documents or disclosure of information in relation to the trust is, in general, limited to documents and information which is – or is in the sense here relevant – the property of trust. It does not extend to documents or information as to which, as a beneficiary, he has no proprietary interest. It is not necessary that he have in it a present proprietary interest quantifiable in nature in a specific asset. A beneficiary may have an interest in it as part of an unadministered fund. But that which is sought must, in the relevant sense, be the property of the trust. 290 Later, Mahoney JA recognised that considerations of confidentiality may limit what could be made available.205 Mahoney JA concluded that the decision in Re Londonderry’s Settlement206 should be followed in New South Wales:207 … It is both correct in principle and in accordance with commonsense. The right of a beneficiary to disclosure is ordinarily based upon the beneficiary’s proprietary interest in the documents in question: but, by virtue of the fiduciary nature of the obligations of a trustee, it extends, I think, to information of a non-documentary kind. But, even on such an extended basis, it should not extend to that which the trustee has prepared, or which has been prepared, not for the purposes of the beneficiary but for the trustee’s own purposes. Distinctions of this kind are familiar in other areas of the law. Thus, a solicitor may, in the course of or for the purpose of acting for a client, bring into existence documents which are not the client’s but are the solicitor’s own property … 291 The approach of Sheller JA was closer to that of Kirby P in rejecting the requirement for a proprietary interest, though he agreed with Mahoney JA that the appeal should be allowed. For example, the question of an equitable proprietary interest was raised in the following way:208 It can no doubt be said of at least some documents in the hands of trustees that they, as chattels, are held by the trustees in trust for the beneficiaries: see generally, Gillard J’s judgment in Re Fairbairn, deceased [1967] VR 633, where the cases are reviewed. On the other hand the beneficiaries of discretionary trusts cannot claim to have an equitable proprietary interest in trust assets. There are accordingly difficulties in applying the proprietary analysis as a basis for their right to inspect documents: Ford and Lee (at 425); compare Spellson v George (1987) 11 NSWLR 300 at 315-316. 204 Hartigan Nominees (1992) 29 NSWLR 405, 432-433 (Mahoney JA). 205 Hartigan Nominees (1992) 29 NSWLR 405, 433-434 (Mahoney JA). 206 In Re Londonderry’s Settlement [1965] 1 Ch 918 (Re Londonderry’s Settlement). 207 Hartigan Nominees (1992) 29 NSWLR 405, 435-436 (Mahoney JA). 208 Hartigan Nominees (1992) 29 NSWLR 405, 443F-G (Sheller JA). Sheller JA at 445A: “With respect to the conclusion in Re Londonderry’s Settlement I think material upon which reasons were or might have been based cannot generally be withheld, unless it reveals the reasons themselves or the reasoning process.” -- 80 of 101 -- [2025] SASCA 32 The Court 77 292 Ultimately, however, that test was rejected by Sheller JA:209 In my opinion, in determining the nature of documents which the trustee is bound to disclose, an inquiry as to whether or not a beneficiary or in this case the respondent has what can be described as a proprietary interest is, if not a false, an unhelpful trail. 293 In Rouse v IOOF Australia Trustees Ltd, Doyle CJ considered an application seeking trust documents which was, as here, ancillary to an application to appoint an inspector.210 He identified two approaches to the right of a beneficiary to inspect trust documents.211 The first depended on an equitable proprietary right,212 and the other depended on the fiduciary duty of a trustee to keep the beneficiary informed and render accounts.213 Without deciding which was to be preferred and, either way, there was an issue whether there were circumstances under which a trustee could refuse to permit inspection of trust documents.214 294 Whilst the former Chief Justice accepted that the right of a beneficiary to inspect trust documents is not unqualified, and there may be circumstances in which a “limited discretion” to refuse inspection may arise, for example on the grounds of confidentiality or privilege, that was as an exception to the right of beneficiaries at general law to inspect trust documents.215 As Doyle CJ explained:216 Ultimately, I would rest the existence of the relevant discretion upon the need to reconcile the undoubted duty of a trustee to make disclosure to beneficiaries of information about the trust, and the undoubted duty to permit the inspection of trust accounts and trust documents, with the equally fundamental obligation of a trustee to conduct the affairs of a trust, and particularly a trust which involves the conduct or management of a business, in the interests of the beneficiaries as a whole. I consider that on occasions the reconciliation of these interests may entitle a trustee to decline to provide information to particular beneficiaries, when the trustee has reasonable grounds for considering that to do so will not be in the interests of the beneficiaries as a whole, and will be prejudicial to the ability of the trustee to discharge its obligations under the trust. It may be that the ultimate foundation of the discretion is the obligation of the trustee to discharge its duties to manage the affairs of the trust in the interests of the beneficiaries. 209 Hartigan Nominees (1992) 29 NSWLR 405, 444B. 210 Rouse v IOOF Australia Trustees Ltd (1999) 73 SASR 484. 211 Rouse v IOOF Australia Trustees Ltd (1999) 73 SASR 484, [88]-[92] (Doyle CJ, with whom Perry and Marin JJ agreed). 212 Citing O’Rourke v Darbishire [1920] AC 581, 626 (Lord Wrenbury), though Doyle CJ doubted that this is what was meant, preferring the view in Breen v Williams (1996) 186 CLR 71, 89 (Dawson and Toohey JJ) that “the right of access of a beneficiary to trust documents arises because of the beneficial interest of the beneficiary in the trust property and it is in that sense that the right may be described as proprietary.” See Re Simersall (1992) 35 FCR 584, 588 (Gummow J). 213 Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405, 421-422 (Kirby P, diss), 442-445 (Sheller JA). 214 Citing In Re Londonderry’s Settlement [1965] Ch 918, where the Court of Appeal of England held that trustees were not bound to disclose to a beneficiary the reasons for exercising their discretionary powers, and accordingly were not obliged to disclose trust documents that would disclose those reasons. 215 Rouse v IOOF Australia Trustees Ltd (1999) 73 SASR 484, [97]-[103] (Doyle CJ, with whom Perry and Martin JJ agreed). See also H Stanke & Sons Pty Ltd v Von Stanke (2006) 95 SASR 425, [60] (White J). 216 Rouse v IOOF Australia Trustees Ltd (1999) 73 SASR 484, [101] (Doyle CJ, with whom Perry and Martin JJ agreed). -- 81 of 101 -- [2025] SASCA 32 The Court 78 295 Those considerations are not raised in this case. In Jacobs’ Law of Trusts in Australia the authors explained the “the prima facie right” of beneficiaries in cases “of strict as distinct from discretionary trusts”:217 The traditional law was that in the case of strict as distinct from discretionary trusts, where beneficiaries have vested or contingent interests, beneficiaries have a prima facie right – a right subject to exceptions – at reasonable times to inspect any property forming part of the trust estate in which they are beneficially interested, including trust documents used by trustees in the administration of the trust. (Citations omitted.) 296 Over the last twenty years two conflicting approaches have emerged in Australia regarding the basis at general law upon which a beneficiary may access trust documents and information, which may be described as the Londonderry proprietary approach and the Schmidt discretionary approach. 297 In Schreuder v Murray (No 2), Buss JA (as his Honour then was) explained these two approaches and observed that there was “some uncertainty” regarding which applied in Australia:218 Two different approaches are discernible from the case law in relation to the right (if any) of a beneficiary to inspect “trust documents” or receive information: see Rouse (at [88]). One approach is based on the observations of Lord Wrenbury in O’Rourke (at 626), as explained by Gummow J in Re Simersall (at 588) and by Dawson and Toohey JJ in Breen (at 89): see [72]-[75] above. The other approach is based on a trustee’s fiduciary duty to keep the beneficiaries informed and to render accounts: see Hartigan Nominees (at 421-422) (Kirby P, dissenting); at 438-447 (Sheller JA). Traditionally, there has been a distinction between strict trusts on the one hand and discretionary trusts on the other in relation to access to “trust documents” or information. In Schmidt, however, the Privy Council held that a beneficiary’s right to inspect “trust documents” or receive information in the possession of the trustee was merely a procedural right for the court to make an order in its discretion as part of its supervisory jurisdiction in relation to trusts. The decision in Schmidt was followed by Gzell J in Avanes. However, in McDonald and in Schaverien v Jones [2007] NSWSC 1429, Bryson AJ declined to follow Schmidt and Avanes: see, generally, Jacobs’ Law of Trusts in Australia (7th ed, 2006) at [1716]. The current state of the non-statutory law on this issue is attended by some uncertainty. 298 The Western Australian Court of Appeal ultimately considered that it was “unnecessary” to express “an opinion on these issues (including whether the approach of the Privy Council in Schmidt represents the law of Australia)” because the cause of action in that case was not based on an alleged breach of duty in failing to provide a beneficiary with access to trust documents or information.219 299 In Schmidt v Rosewood Trust Ltd, the appellant sought “to obtain trust accounts and other information” from the trustees of two Isle of Man settlements.220 The Privy Council considered whether a beneficiary’s right or claim to disclosure 217 Jacobs’ at [17-16]. 218 Schreuder v Murray (No 2) (2009) 41 WAR 169, [93] (Buss JA, with whom McLure JA agreed). 219 Schreuder v Murray (No 2) (2009) 41 WAR 169, [93] (Buss JA, with whom McLure JA agreed). 220 Schmidt [2003] 2 AC 709, 716. -- 82 of 101 -- [2025] SASCA 32 The Court 79 of trust documents should be regarded as a proprietary right. After considering the authorities on the subject,221 the Privy Council endorsed the approach of Kirby P and Sheller JA in Hartigan Nominees:222 Their Lordships consider that the more principled and correct approach is to regard the right to seek disclosure of trust documents as one aspect of the court’s inherent jurisdiction to supervise, and if necessary to intervene in, the administration of trusts. The right to seek the court’s intervention does not depend on entitlement to a fixed and transmissible beneficial interest. The object of a discretion (including a mere power) may also be entitled to protection from a court of equity, although the circumstances in which he may seek protection, and the nature of the protection he may expect to obtain, will depend on the court’s discretion: see Lord Wilberforce in Gartside v Inland Revenue Comrs [1968] AC 553, 617–618 and in In re Baden [1971] AC 424, 456–457, Templeman J in In re Manisty’s Settlement [1974] Ch 17, 27–28 and Warner J in Mettoy Pension Trustees Ltd v Evans [1990] 1 WLR 1587, 1617–1618. Mr Brownbill’s submission to the contrary effect tends to prove too much, since he would regard the object of a discretionary trust as having a proprietary interest even though it is not transmissible (except in the special case of collective action taken unanimously by all the members of a closed class). Their Lordships are therefore in general agreement with the approach adopted in the judgments of Kirby P and Sheller JA in the Court of Appeal of New South Wales in Hartigan Nominees Pty Ltd v Rydge 29 NSWLR 405. … 300 In Jacobs’ Law of Trusts in Australia, the authors questioned the Privy Council’s reliance on the views of Kirby P and Sheller JA, observing that Hartigan Nominees Pty Ltd v Rydge “was a case in part on discretionary trusts, and Kirby P’s judgment was in most respects a dissenting one”.223 301 Ultimately, whilst Schmidt suggests that it may be “incorrect to speak of a “right” of a beneficiary to inspect trust documents, subject to exceptions …, because the matter lies within the court’s discretion by balancing competing interests”,224 and the Privy Council allowed that the right to access documents is “sometimes not inappropriately described as a proprietary right”, the issue was better viewed as “one aspect of the court’s inherent jurisdiction to supervise, and where appropriate intervene in, the administration of trusts”:225 Their Lordships have already indicated their view that a beneficiary’s right to seek disclosure of trust documents, although sometimes not inappropriately described as a proprietary right, is best approached as one aspect of the court’s inherent jurisdiction to supervise, and where appropriate intervene in, the administration of trusts. There is therefore in their Lordships’ view no reason to draw any bright dividing line either between transmissible and non-transmissible (that is, discretionary) interests, or between the rights of an object of a discretionary trust and those of the object of a mere power (of a fiduciary character). The differences in this context between trusts and powers are (as Lord Wilberforce demonstrated in In re Baden [1971] AC 424, 448–449) a good deal less 221 Schmidt [2003] 2 AC 709, [43]-[50]. 222 Schmidt [2003] 2 AC 709, [51]-[52]. 223 Jacobs’, 353. 224 GE Dal Pont, Equity and Trusts in Australia (8th ed), 602. 225 Schmidt [2003] 2 AC 709, [66]-[67]. -- 83 of 101 -- [2025] SASCA 32 The Court 80 significant than the similarities. The tide of Commonwealth authority, although not entirely uniform, appears to be flowing in that direction. However, the recent cases also confirm (as had been stated as long ago as In re Cowin 33 Ch D 179 in 1886) that no beneficiary (and least of all a discretionary object) has any entitlement as of right to disclosure of anything which can plausibly be described as a trust document. Especially when there are issues as to personal or commercial confidentiality, the court may have to balance the competing interests of different beneficiaries, the trustees themselves, and third parties. Disclosure may have to be limited and safeguards may have to be put in place. Evaluation of the claims of a beneficiary (and especially of a discretionary object) may be an important part of the balancing exercise which the court has to perform on the materials placed before it. In many cases the court may have no difficulty in concluding that an applicant with no more than a theoretical possibility of benefit ought not to be granted any relief. 302 The authors of Lewin on Trusts have summarised the general principles stated in Schmidt v Rosewood Trust Ltd as follows:226 (1) A beneficiary has a right to seek disclosure of trust documents.227 (2) That right, although sometimes not inappropriately described as a proprietary right, is best approached as an aspect of the court’s inherent jurisdiction to supervise, and where appropriate intervene in, the administration of trusts.228 This jurisdiction is referred to in this chapter as the trust supervisory jurisdiction. (3) A proprietary right is neither sufficient nor necessary to entitle a beneficiary to disclosure of trust documents.229 (4) A proprietary right is not sufficient to entitle a beneficiary to disclosure because there may be circumstances (especially of confidentiality) in which even a vested and transmissible interest is not a sufficient basis for requiring disclosure of trust documents.230 (5) A proprietary right is not necessary because a discretionary beneficiary, including an object of a fiduciary power, though he does not have a transmissible interest (save in the case of collective action by a closed class231), may be entitled to protection from a court under the trust supervisory jurisdiction. But the circumstances in which he may seek protection, and the nature of the protection which he might expect to obtain, will depend on the court’s discretion.232 (7) The differences between discretionary trusts and fiduciary powers are a good deal less significant than the similarities between them.233 There is no reason to draw any bright dividing line between them in the context of rights to seek disclosure; nor 226 Lewin on Trusts (19th ed), 919. 227 Schmidt [2003] 2 AC 709, [66]. 228 Schmidt [2003] 2 AC 709, [51] and [66]. 229 Schmidt [2003] 2 AC 709, [54]. 230 Schmidt [2003] 2 AC 709, [54] and [67]. 231 As to which see Schmidt [2003] 2 AC 709, [40]. 232 Schmidt [2003] 2 AC 709, [51]. 233 Schmidt [2003] 2 AC 709, [37]-[42] and [66]. -- 84 of 101 -- [2025] SASCA 32 The Court 81 between fixed transmissible and non-transmissible discretionary interests in the context of rights to seek disclosure.234 (8) Re Londonderry’s Settlement235 and more recent cases have begun to work out in some detail the way in which the court should exercise its discretion in cases where disclosure is sought.236 (9) There are three areas in which the court may have to form a discretionary judgment: (i) whether a discretionary object (or some beneficiary with only a remote or wholly defeasible interest) should be granted any relief at all, (ii) what classes of documents should be disclosed, either completely or in redacted form, and (iii) what safeguard should be imposed (whether by undertakings to the court, arrangements for professional inspection, or otherwise) to limit the use which may be made of documents or information disclosed under the order of the court.237 303 In Avanes v Marshall, Gzell J followed Schmidt but determined that “trust accounts” constitute a class of documents that are not affected by the decision in Schmidt,238 referring to Justice Millett’s statement in Armitage v Nurse that “[e]very beneficiary is entitled to see the trust accounts, whether his interest is in possession or not”.239 Although the documents considered by Gzell J in Avanes v Marshall were preparatory to the preparation of the trust accounts, and not trust accounts, his Honour explained:240 In Armitage v Nurse [1998] Ch 241 at 253–254, Millett LJ said there are irreducible trust obligations, and at 261 he indicated that the result of one such obligation is that every beneficiary is entitled to trust accounts. In my view, those principles are unaffected by the decision of Schmidt. But the documents numbered 2 to 3 and 5 to 9 are preparatory to the preparation of the trust accounts. They comprise requests for advice by the accountants of the solicitors on matters of law and advice by the accountants to the solicitors on matters of accounting affecting the presentation of the accounts and the presentation to the solicitors of draft accounts and explanations of how they were compiled. In my view, these documents go to the deliberations of trustees. This includes the accountants’ presentation of a reconciliation of work undertaken for consideration by the trustees in arriving at a decision as to what fees should be paid. Again for deliberation and not as part of the final accounts. Since deliberations by the trustees precede their determination to have trust accounts drawn up, I see the balancing process as coming down in favour of protecting the trustees from scrutiny of their deliberations leading up to the drawing up of the accounts. That part of their administration should not become the subject of a fishing expedition by beneficiaries. 234 Schmidt [2003] 2 AC 709, [66]. 235 [1965] 1 Ch 918. 236 Schmidt [2003] 2 AC 709, [54]. 237 Schmidt [2003] 2 AC 709, [54]. 238 Avanes v Marshall (2007) 68 NSWLR 595, [22] (Gzell J). 239 Armitage v Nurse [1998] Ch 241, 261. 240 Avanes v Marshall (2007) 68 NSWLR 595, [22]-[26] (Gzell J). -- 85 of 101 -- [2025] SASCA 32 The Court 82 In my view, none of the documents is discoverable under the principle in Londonderry excluding from inspection the reasoning process of the trustees or under the balancing process enunciated in Schmidt. 304 The view that the discretion of the court does not extend to a denial of access to “trust accounts” has found favour in the High Court of New Zealand.241 However, Professor Dal Pont has warned that it is “no foregone conclusion” that the Privy Council in Schmidt “intended to segregate trust accounts from the court’s discretionary purview” given that no distinction between “trust accounts” and “other information” was drawn.242 305 The discretionary approach adopted in Schmidt has been endorsed in several Australian decisions,243 though it has been questioned in others.244 The differing views on the approach to be adopted regarding access to trust documents by beneficiaries have been the subject of extra-curial and academic commentary; for example, according to Professor Dal Pont:245 Yet the application in Schmidt was, in the words of Lord Walker, both ‘to obtain trust accounts and other information from the trustees of the two settlements’.246 As the reasons do not distinguish ‘trust accounts’ from ‘other information’, it is no foregone conclusion that his Lordship intended to segregate trust accounts from the court’s discretionary purview. If he did – and there are, as noted above, indeed compelling justifications for making this distinction should the Schmidt approach represent Australian (and NZ) law – it requires the law to differentiate a ‘trust account’ (to which beneficiaries are entitled) from other documents (any entitlement to which rests upon a favourable exercise of the court’s discretion). If so, when it comes to beneficiaries’ claims to information regarding the trust, there is a difference in the law’s response between, on the one hand, financial accounts (such as a profit and loss statement or balance sheet) and, on the other hand, documents of a different kind (say, the trust deed, title documents to trust property, trust resolutions, etc). 306 In Webster v Murray Goulburn Co-Operative Co Ltd (No 3), Beach J discussed the “continuing debate” regarding the Londonderry proprietary approach and the Schmidt discretionary approach to determining whether a beneficiary may inspect trust documents and information:247 241 See Re Maguire (deceased) [2010] 2 NZLR 845, [30] (Asher J). 242 GE Dal Pont, Equity and Trusts in Australia (8th ed), 603 fn 18; See Schmidt v Rosewood Trust Ltd [2003] 2 AC 709, [3]. 243 See Avanes v Marshall (2007) 68 NSWLR 595, [11] (Gzell J); Silkman v Shakespeare Haney Securities Ltd (2011) 8 ASTLR 117, [27] (Hammerschlag J); Mercanti v Mercanti [2014] WASC 64, (Le Miere J); AIT Investments Group Pty Ltd v Markham Property Fund (No 2) Pty Ltd [2015] NSWSC 216, [90] (Bergin CJ in Eq); Wright v Stevens [2018] NSWSC 548, [286] (Hallen J); Webster (Trustee) v Murray Goulburn Co-Operative Co Ltd (No 3) [2018] FCA 990, [110]-[117] (Beach J); Smorgon v ES Group Operations Pty Ltd (2021) 64 VR 146, [139]-[159] (M Osborne J). 244 See McDonald v Ellis (2007) 72 NSWLR 605, [48]-[51] (Bryson AJ); Murray v Schreuder (2009) 1 ASTLR 340, [57] (Newnes J). 245 GE Dal Pont, ‘Beneficiaries and Trust Information’ (2014) 39 Australian Bar Review 46, 61; See Schmidt [2003] 2 AC 709, [3]. 246 Schmidt [2003] 2 AC 709, [3]. 247 Webster v Murray Goulburn Co-Operative Co Ltd (No 3) [2018] FCA 990, [107] and [109]-[110] (Beach J). -- 86 of 101 -- [2025] SASCA 32 The Court 83 There have been two approaches in the authorities to whether a beneficiary may inspect documents held by a trustee. The first approach is referred to as the “proprietary” approach. The second approach is referred to as the “discretionary” approach. The “proprietary” approach can be traced to Re Londonderry’s Settlement [1965] 1 Ch 918. The “discretionary” approach can be traced to the advice of the Privy Council in Schmidt v Rosewood Trust Ltd [2003] 2 AC 709. In Australia, some judges have followed the proprietary approach, for example Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 at 435E per Mahoney JA (but cf Kirby P at 421G to 422A and Sheller JA at 444B); McDonald v Ellis (2007) 72 NSWLR 605 at [46] to [52]; and Deutsch v Trumble at [66] to [73]. Other judges have followed the discretionary approach, for example Avanes v Marshall (2007) 68 NSWLR 595 at [15]; Silkman v Shakespeare Haney Securities Ltd (2011) 5 BFRA 483; [2011] NSWSC 148 at [17] to [27]; and AIT Investment Group Pty Ltd v Markham Property Fund No 2 Pty Ltd [2015] NSWSC 216 at [66] to [90]. The different approaches also remain the subject of academic debate. For example, Jacobs’ Law of Trusts at [17-16] states that “there are undoubted difficulties in both the proprietary approach and more modern approaches offered in substitution for it”. Ford and Lee: The Law of Trusts (Thomson Reuters, online) at [9.7230] refers to the proprietary approach as a “largely discredited principle” and notes that one objection to it is that it “justifies argument that beneficiaries under strict trusts have the right to see not only the trust accounts but also all other documents in the possession or under the control of the trustees. This is not supported by case law”. … Further, even on the proprietary approach it is recognised that the so-called right of a beneficiary to inspect trust documents is not unqualified but admits of a discretion to refuse access to documents having regard to the circumstances of the particular case, including the need to ensure that the trustee is able to discharge its obligations to the beneficiaries as a whole; see Rouse v IOOF Australia Trustees Ltd (1999) 73 SASR 484 at [92] to [103] per Doyle CJ. Let me say now that I prefer the “discretionary” approach of Lord Walker of Gestingthorpe as he expressed the position in Schmidt v Rosewood Trust Ltd. And I do not consider that such an approach is to be limited to the scenario where the interest of the beneficiary is no higher than an actual or potential object of a discretionary trust. 307 Justice Beach remarked that “it is surprising that one still needs to debate these matters”, observing that the Schmidt discretionary approach presented a “commercial and workable solution”.248 Beach J ultimately determined:249 Further, and for completeness, I should say that I do not consider that there is dicta in Breen v Williams (at 89) per Dawson and Toohey JJ of a type that compels me to adopt the proprietary approach, although even if I took such an approach the plaintiff’s application still fails as I have said. The passage prayed in aid by the plaintiff is preceded by discussion making it plain that the appellant in that case was not making any trust claim over documents. And indeed their Honours said “[No] analogy can be drawn between her situation and that of a beneficiary under a trust”. Further, their Honours’ observations concerning Re Londonderry’s Settlement of course pre-date Schmidt v Rosewood Trust Ltd. Further, their Honours were referring to the fact that Re Londonderry’s Settlement had been accepted by some lower courts. I do not consider that their Honours’ observations go 248 Webster v Murray Goulburn Co-Operative Co Ltd (No 3) [2018] FCA 990, [115] (Beach J). 249 Webster v Murray Goulburn Co-Operative Co Ltd (No 3) [2018] FCA 990, [116] (Beach J). -- 87 of 101 -- [2025] SASCA 32 The Court 84 anywhere close to the scenario that the High Court was contemplating in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [134] and [135]. 308 In Kayler-Thomson v Colonial First State Investments (No 2), Colvin J agreed with Beach J’s observation that it is surprising that these matters are still debated, whilst noting that the debate is extensive:250 Some of the authorities would confine the right of a beneficiary to inspect documents concerning the management and administration of a trust to the extent of the proprietary interest. Others relate the right to the supervisory jurisdiction of the Court when it comes to the administration of trusts. The debate is extensive: see, for example, Spellson v George (1987) 11 NSWLR 300 at 315–7; Re Simersall at FCR 587–8; ALR 378–9; Avanes v Marshall (2007) 68 NSWLR 595; [2007] NSWSC 191 at [11]; McDonald v Ellis (2007) 72 NSWLR 605; [2007] NSWSC 1068 at [52]; Fay v Moramba Services Pty Ltd [2009] NSWSC 1428 at [99]; Silkman v Shakespeare Haney Securities Ltd (in its capacity as responsible entity of the Shakespeare Haney Premium Income Fund) [2011] NSWSC 148 at [27]; Re Estate Late Chow Cho-Poon [2013] NSWSC 844 at [208]; Hancock v Rinehart [2013] NSWSC 1402 at [24]; Mercanti v Mercanti [2014] WASC 64 at [33]-[34]; Schreuders v Grandiflora Nominees Pty Ltd [2014] VSC 310 at [43]; Fast v Rockman (infants by Rockman, their litigation guardian) [2015] VSCA 61 at [45]; AIT Investment Group Pty Ltd v Markham Property Fund No 2 Pty Ltd [2015] NSWSC 216 at [74]; Guest v Guest [2015] VSC 761 at [71]-[72]; Deutsch v Trumble (2016) 52 VR 108; [2016] VSC 263 at [73]; Wright v Stevens [2018] NSWSC 548 at [252]-[286]; Sayour Holdings Pty Ltd (atf Sayour 2 Family Trust) v Combined Projects (Arncliffe) Pty Ltd [2018] NSWSC 649 at [29]; and Chan v Valmorbida Custodians Pty Ltd [2020] VSC 590 at [71]. However, the supervisory jurisdiction extends to being able to compel a trustee to provide information, as was recognised by Gageler J in Palmer v Ayres (in their capacities as liquidators of Queensland Nickel Pty Ltd (in liq) (2017) 259 CLR 478; 341 ALR 18; 118 ACSR 380; [2017] HCA 5 at [103]. It may be that for parties with a proprietary interest there is a right to access the documents and for parties with a lesser interest the Court will require access to be provided where it is persuaded that it is necessary or appropriate to do so in the exercise of its supervisory jurisdiction. There is much to be said for the observation of Beach J in Webster (Trustee) v Murray Goulburn Co-Operative Co Ltd (No 3) [2018] FCA 990 at [115] that ‘it is surprising that one still needs to debate these matters’. 309 In this case, the primary judge observed that the general law must conform to the statutory duty under the Trustee Act:251 Section 84B(2) of the Trustee Act renders it an offence not to produce and allow inspection of the prescribed records. It does not expressly empower the Court to order access to those records. The failure may, of course, constitute strong grounds to exercise other of the powers which are conferred on the Court. Additionally, the exercise of this Court’s inherent general law jurisdiction to supervise trusts and order production of trust records must conform to the statutory duty imposed by s 84B of the Trustee Act. 250 Kayler Thomson v Colonial First State Investments Ltd (No 2) [2021] FCA 854, [62]-[64] (Colvin J). 251 Reasons, [124]. -- 88 of 101 -- [2025] SASCA 32 The Court 85 310 The primary judge reviewed at length the cases that considered the jurisdiction of the court to order access to trust records,252 and appeared to adopt the approach of Gzell J in Avanes v Marshall, before concluding:253 The entitlement accorded by the general law to trust account records is reinforced by the obligation conferred by s 84B of the Trustee Act such that in the absence of exceptional countervailing considerations an order will generally be made on the application of a beneficiary granting access to records prescribed for the purposes of that section. 311 Whether the Schmidt approach or the Londonderry approach represents the law in Australia does not appear to have been decided by the High Court or any intermediate appellate court. In the circumstances of this appeal it is not necessary to come to a concluded view. 312 The approach taken in Schmidt as summarised by Lewin on Trusts, or at the least a version of it, is to be preferred provided the obligations and entitlements imposed by s 84B of the Trustee Act are recognised. 313 The principle that beneficiaries have a right to seek the disclosure of trust documents and accounts, and have information about trust property, subject to the exercise of the court’s discretion as part of its role in supervising the administration of trusts and overseeing the conduct of trustees, better aligns with the approach reflected in Part 5A of the Trustee Act and with the approach taken by Kirby P and Sheller JA in Hartigan Nominees Pty Ltd v Rydge,254 and by the Full Court in Rouse v IOOF Australia.255 314 That is to say, in the ordinary case, it is an aspect of the trustee’s fiduciary duty to keep beneficiaries informed and to furnish them with trust documents and records concerning the administration of the trust prescribed by s 84B of the Trustee Act and reg 5 of the Trustee Regulations. Indeed, no criticism could reasonably be made regarding the disclosure of trust documents and records concerning the receipt, management and distribution of trust funds to beneficiaries. This approach acknowledges that there may be occasions for the exercise of the court’s discretion, balancing the competing interests for and against disclosure. There may be cases where documents cannot be produced where, for example, there are issues of confidentiality or privilege, issues not raised by this appeal.256 315 It follows that the right of beneficiaries to see trust documents and records, and the exercise of the court’s discretion, will be clearest in cases dealing with documents prescribed by s 84B of the Trustee Act and reg 5 of the Trustee Regulations. In that connection it is difficult to see why there should usually be any real constraint on the capacity of the beneficiaries to view and take copies of 252 Reasons, [127]-[146]. 253 Reasons, [146]. 254 Hartigan Nominees (1992) 29 NSWLR 405, 421-423 (Kirby P); 438-447 (Sheller JA). GE Dal Pont, Equity and Trusts in Australia (8th ed), 603. 255 Rouse v IOOF Australia Trustees Ltd (1999) 73 SASR 484, [97]-[103] (Doyle CJ). 256 TG Bullen Nominees v Bullen [2024] SASC 95 (Bleby J). -- 89 of 101 -- [2025] SASCA 32 The Court 86 those trust documents and records which it is a trustee’s duty to keep as part of the administration of the trust, whether under statute or at general law.257 Each case will, however, depend on its particular facts and circumstances. The need to balance the competing interests in the exercise of the court’s discretion as part of its supervisory jurisdiction in the manner described in Schmidt may, however, arise in other cases where the documents sought are not prescribed and the trustee raises a principled objection to production. 316 That leaves to one side what comprises trust documents and records, as well as trust accounts, an issue not raised by this appeal. In South Australia, that is an issue which must start with the trust documents and records prescribed by s 84B of the Trustee Act and reg 5 of the Trustee Regulations. Relatively recently, Ward CJ in Eq (as her Honour then was) considered carefully and in some detail in Wang v Cai whether or to what extent documents beyond those concerning the terms of the trust, or concerning trust property, or concerning the accounts of the trust, were liable to disclosure.258 Her Honour observed that the “documents of the trust” may go well beyond the concept of trust documents to which it has been said that, as a general rule, a beneficiary will have a prima facie right to inspect.259 317 By contrast, it has also been suggested that it is inappropriate for a beneficiary to seek to examine or obtain any document which is in any way, however remotely, connected with the administration of a trust. On this appeal, no criticism has been made regarding the breadth of the documents sought. 318 Against this background, the role of an inspector appointed under the Trustee Act becomes clearer. In this case the appointment of an inspector is properly to be regarded as ancillary to and in aid of any call made by the beneficiaries on the trustee to produce trust documents and records. 319 Before addressing Rangelea’s particular complaints about the appointment of an inspector, it is first appropriate to observe that s 84C confers a broad discretion on the Supreme Court when determining whether or not to appoint an inspector.260 320 It is clear that the inclusion of s 84C of the Trustee Act significantly extends the general law avenues available to a beneficiary, or anyone else with “a proper interest in the matter”, to gather information about a trust. The presence of s 84C recognises that a beneficiary or other applicant seeking the appointment of an 257 Cf Avanes v Marshall (2007) 68 NSWLR 595, [15] (Gzell J), where his Honour held “there should no longer be an entitlement as of right to disclosure of any document. It should be for the Court to determine to what extent information should be disclosed”. See also Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405, 421-423 (Kirby P); Rouse v IOOF Australia Trustees Ltd (1999) 73 SASR 484, [97]-[103] (Doyle CJ). 258 Wang v Cai [2021] NSWSC 1162, [188]ff. 259 Wang v Cai [2021] NSWSC 1162, [285] (Ward CJ in Eq) referring to Hancock v Reinhart (2015) 13 ASTLR 1; [141]-[142] (Brereton J) and Avanes v Marshall (2007) 68 NSWLR 595, [3] (Gzell J). 260 Rouse v IOOF Australia Trustees Ltd (1999) 73 SASR 484, [63] (Doyle CJ), followed in Oxer v Astec Paints Australia Pty Ltd (2005) 240 LSJS 109; [2005] SASC 192, [7] (Judge Lunn). -- 90 of 101 -- [2025] SASCA 32 The Court 87 inspector will at times be at a significant disadvantage because they have neither the knowledge nor the documents and records necessary to acquire knowledge about the operation and administration of a trust. Section 84C recognises that these applicants may therefore require assistance beyond the access to trust documents that may be permitted under s 84B of the Trustee Act or at general law. 321 The requirements under s 84B(2) to provide documents, and under s 84D(1) to provide documents to the inspector and to answer questions, are bolstered by the inclusion of criminal law sanctions under ss 84B(2) and 84D(2) of the Trustee Act. If these obligations are contravened, there is exposure to a fine or, in the case of s 84D(2), to conviction for an offence together with a $2,000 fine and imprisonment for six months, “or both”. 322 The application of s 84C involves three stages. The first is the identification of the relevant “matter”. Usually, but perhaps not invariably, the matter referred to in s 84C(1) will be a reference to the matter which is to be investigated. In this case, the matter is framed by the complaints made by ATLA and the respondents in their application and pleadings before the Supreme Court. 323 The second stage is to determine whether the applicant is a proper applicant. It is significant that the power of appointment may be exercised by the Supreme Court on its own initiative, as well as on the application of any person who, in the opinion of the Court, has “a proper interest in the matter”, which must necessarily be a bona fide interest.261 That will often be demonstrated by the identification of the reason, which one would expect will be a good reason, why the applicant requires information about the matter to be investigated. Here the proper interests of ATLA and the respondents are not difficult to identify, bound up as they are in ATLA’s agency and its interest in the native title mining agreements, and the payments made under those agreements to a trust of which the respondents are beneficiaries, and the difficulties they have all encountered in obtaining information about the administration of the Trust and the questions they have raised about the payments made from the Trust. 324 The third stage is the exercise of the statutory discretion. That is the principal area of contention on this appeal. In many cases a balancing exercise will be involved, not only in determining whether to make an order, but also as to the terms of that order. There is much to be said for the view of the primary judge that an important consideration will be to ensure the due administration of the trust.262 325 Whilst the grounds sufficient to justify the appointment of an inspector are not confined to cases of wilful misconduct or fraud, or a reasonable suspicion about those kinds of issues, some proper reason for the appointment must normally be demonstrated. In that respect there is no specific threshold required to justify the appointment of an inspector, and the exercise of the court’s broad discretion should 261 See Trustee Act, s 84C(1). 262 See Reasons, [148]. -- 91 of 101 -- [2025] SASCA 32 The Court 88 not be “unduly circumscribed”.263 Examples are provided by cases where there have been irregularities in compliance with record keeping obligations,264 and where a trustee has apparently preferred the interest of one beneficiary over another or apparently failed to act impartially.265 326 It is for the court to decide whether the appointment of an inspector is the appropriate means by which to obtain the information and documents sought by the beneficiary or any other proper applicant. Without in any way being exhaustive, the relevant matters that might be weighed when determining whether to appoint an inspector under s 84C of the Trustee Act might include whether: (1) the appointment of an inspector and the inspector’s investigation, or any likely disclosure made to the inspector, would involve confidential or privileged material, and whether concerns about those issues cannot be properly managed, for example, under s 84F (which imposes conditions of confidentiality); (2) the appointment of an inspector or compliance with an inspector’s requests and questions would likely be unduly disruptive to the proper administration of the trust and involve excessive delay or expense; (3) the appointment of the inspector is thought to be disproportionate to the applicant’s proper interest or difficulty in obtaining information about the matter. 327 There is no basis for any of these kinds of concerns in this case. 328 Where the applicant establishes a proper interest in the matter, and the existence of some difficulty or disadvantage in acquiring information about that matter, these will often represent powerful reasons to exercise the statutory discretion in favour of making an order. 329 Once a proper basis has been made out for the appointment of an inspector it will usually, but not invariably, be the case that the order will be for the investigation of the administration as a whole concerning a defined period.266 330 Following appointment, an inspector has the broad powers identified in s 84D(1), subject only to a person’s right to decline to answer an inspector’s question where the answer may tend to incriminate.267 Moreover, an inspector is 263 Oxer v Astec Paints Australia Pty Ltd (2005) 240 LSJS 109; [2005] SASC 192, [11] (Judge Lunn). See also Hunter v Colton [2009] SASC 129, [9] (Judge Lunn). It is noteworthy that in Colton v Hunter [2009] SASC 299, the parties appear to have agreed that an appeal against Judge Lunn’s decision should be allowed. When this was questioned by Layton J, it was ultimately determined that the appeal should be dismissed, and the parties explained to her Honour that information had been supplied which demonstrated that it was no longer necessary to continue the appointment of an inspector. 264 Hunter v Colton [2009] SASC 129, [19] (Judge Lunn). 265 Oxer v Astec Paints Australia Pty Ltd (2005) 240 LSJS 109; [2005] SASC 192, [12] (Judge Lunn). 266 Hunter v Colton [2009] SASC 129, [9]. 267 Trustee Act, s 84D(3). -- 92 of 101 -- [2025] SASCA 32 The Court 89 obliged to report to the Attorney-General and to the Supreme Court, as well as to make interim reports as directed.268 The inspector is subject to the imposition of conditions of confidentiality.269 331 Whilst ATLA and the respondents contended that these provisions were not confined in their operation to a private trust, including a private discretionary trust, it is not presently necessary to address the contention that they apply equally to a charitable trust.270 332 The contention by Rangelea that the primary judge did not take into account relevant considerations must be rejected. It is, of course, necessary to read the reasons as a whole. The primary judge made it clear that the production of documents concerning the administration of the Trust was, standing alone, unlikely to reveal how much of the fund that had been distributed to the Sub-Groups was then disseminated between members of each Sub-Group or in what proportions.271 The primary judge held that an inspector appointed to investigate the administration of the Trust was likely to discover more information than might be disclosed merely by the production of trust documents and records. That conclusion is not challenged. 333 There can be no complaint about the primary judge having regard to the distribution of trust funds to the Sub-Groups, and then the beneficiaries, as relating to the administration of the Trust. Whilst each Sub-Group was to an extent independently managed, this was done under the umbrella of the Trust and the arrangements it established and which Rangelea as trustee supervised. There can be no sharp cleavage between the operation of the Sub-Groups and the Trust more generally. They are necessarily intertwined, particularly as the starting point should be an equality in treatment amongst the beneficiaries, see cl 5.1(4) discussed above. 334 The evidence from ATLA and the respondents that there was an unexplained disparity in the monies received by the beneficiaries is a matter that calls for explanation and, ultimately, investigation. 335 The issue could be tested in this way: the trustee has the power to address any failure to adhere to the terms of the Trust Deed by any Sub-Group in connection with the operation of that Sub-Group and its management of Trust Funds. That is the kind of issue that might be addressed under cl 5.1(4), as well as at any regular meeting of the Traditional Owners under clause 6, when the Trustee must consult with the Traditional Owners regarding the discharge of its duties. 268 Trustee Act, ss 84E(1) and 84E(2). 269 Trustee Act, s 84F. 270 In part, the alternative contention was premised on the breadth of the definition of a trust for the purposes of the Trustee Act, see s 4(1). 271 Reasons, [15]. -- 93 of 101 -- [2025] SASCA 32 The Court 90 336 Indeed, the apparent absence of regular meetings might be thought to provide additional reason to question the way Rangelea has operated, and the way the Trust has been administered, and to provide additional support for the appointment of an inspector. 337 Whilst the primary judge referred back to paragraphs [105] to [111] at [256] of his reasons, this appears to be a typographical error. When one has regard to [113] it would seem clear enough that the correct reference should have been to the matters set out at [107] to [112]. This way of reading the reasons of the primary judge demonstrates that he had regard to a range of relevant considerations and not simply the distribution of trust funds to the Sub-Groups or an Eligible Entity. 338 In addition, the primary judge referred to other considerations.272 It is apparent from a reading of the reasons of the primary judge that his Honour had regard to the following matters as providing “strong reason” to favourably exercise his discretion to appoint an inspector: 1. The primary judge found that the Trust was a private discretionary trust and the beneficiaries, being the named group members or Traditional Owners specified in the Register, had an entitlement to the due administration of the Trust in accordance with the provisions of the Trust Deed.273 2. The primary judge had regard to the potential consequences flowing from the finding that the proper characterisation of the Trust was that of a private discretionary trust in circumstances where it had presumably been administered as a charitable trust.274 3. The primary judge had regard to the absence of any transparency for the members of each Sub-Group regarding the distribution of trust funds, including the allocated share of each Sub-Group, whether to each Sub-Group or an Eligible Entity, together with a further application or distribution of those funds.275 4. The primary judge had regard to the erroneous treatment of the Trust by Rangelea as a charitable trust and any consequences that may have for the after-tax value of the payments made to it under the native title mining agreements, being a matter about which the Traditional Owners and ATLA (as their agent) had a proper interest.276 339 Similarly, the “mismanagement” to which Mr Coulthard referred, which is referred to at [256], is not necessarily confined to ATLA but, even if it was, these 272 Reasons, [113]. Here, the primary judge was clearly referring to Reasons [107]-[112]. 273 Reasons, [106]-[108]. 274 Reasons, [109]-[110]. 275 Reasons, [111]. 276 Reasons, [112]. -- 94 of 101 -- [2025] SASCA 32 The Court 91 additional considerations do not detract from the strength of the matters already and earlier identified by the primary judge. 340 In so far as Rangelea referred to the evidence given by a director regarding the administration of the Trust and the preparation of audited financial accounts, this does not demonstrate that an inspector is not required. It is significant that this evidence was not supported by any contemporaneous trust records. The result was that what was the subject of evidence could not be checked and the requests made by ATLA and the respondents remained unanswered. This evidence did not meet the evidence given by Mr McQuoid and the respondents about their concerns and the evident problems concerning the administration of the Trust more generally. 341 Finally, and even if it were thought that there was some error in the reasons of the primary judge, or with his exercise of discretion, the evidence of ATLA and the respondents, together with the matters to which reference has been made in these reasons, demonstrate that there was here a strong case made out for the appointment of an inspector. Without being exhaustive, these matters include the absence of regular meetings and information, the disparity in payments to beneficiaries, the conduct of the Trust as a charitable trust, the consequences of these matters for the proper administration of the Trust and the interests of its beneficiaries, and the likelihood that an inspector exercising statutory powers will be better able to gather information and report effectively, compared with simply ordering the production of documents. 342 Accordingly, there was a proper basis for the appointment of an inspector, and appeal ground 7 should be dismissed. The notice of alternative contentions 343 As each of the particular challenges made by Rangelea have been rejected, it is not necessary to address the notice of alternative contentions. It is nonetheless convenient to address some of the points made. 344 As has been seen, the better view of the findings made by the primary judge is that the determination as to whether the Trust is a private discretionary trust is determined solely by reference to the terms of the Trust Deed. His Honour did not rely on the subsequent administration of the Trust for this purpose. 345 However, even if he had done so, for the reasons earlier given, a consideration of the terms of the Trust Deed alone demonstrates that it is properly viewed as a private discretionary trust. Accordingly, and were it necessary to do so, alternative contention 1 should be upheld. 346 As for alternative contention 2, ATLA and the respondents pleaded: 2. Were the Master Trust [Trust] determined to be a charitable trust, contrary to the finding made by the learned Trial Judge [primary judge] ([Reasons] [13] and [106]): -- 95 of 101 -- [2025] SASCA 32 The Court 92 2.1. sections 84B and 84C of the Trustee Act 1936 (SA) (Trustee Act) would equally apply, such that it would still be open to the Court to grant the same relief to the Applicants under those provisions of the Trustee Act; 2.2. it would still be open to the Court to grant the same or similar relief pursuant to the Court’s exercise of its supervisory jurisdiction; and/or 2.3. alternatively, it would still be open to the Court to grant the same or similar relief pursuant to sections 60 and 67 of the Trustee Act. 347 Sections 60 and 67 of the Trustee Act provide: 60—Applications to Supreme Court (1) In every case of a breach of any trust or supposed breach of any trust created for charitable purposes, or whenever the direction or order of the Supreme Court shall be deemed necessary for the administration or management or to the advantage or benefit of any trust created for charitable purposes, it shall be lawful for a person referred to in subsection (2) to apply to the Supreme Court, stating such breach or supposed breach, or the grounds upon which such direction or order is necessary, as the case may be, and seeking such relief as the nature of the case may require. (2) An application may be made by any of the following persons: (a) the Attorney-General; or (b) a trustee of the trust; or (c) a person who is named in the instrument establishing the trust as a person who is entitled to, or may, receive money or other property for the purposes of the trust; or (d) a person who is named in the instrument establishing the trust as a person who must, or may, be consulted by the trustees before distributing or applying money or other property for the purposes of the trust; or (e) a person who has in the past received money or other property from the trustees for the purposes of the trust; or (f) a person of a class that the trust is intended to benefit; or (g) any other person who satisfies the Court that he or she has a proper interest in the trust. … 67—Powers of court in dealing with application The court may make such order on the application as to it seems just, or may refuse to make any order, or may direct that the right to the relief sought be determined in an action to be brought for that purpose. 348 If this Court had found that the proper view was that the Trust is a charitable trust, there was scope to rely upon these provisions. -- 96 of 101 -- [2025] SASCA 32 The Court 93 349 The principal impediments would have been the need for a finding to be made that there was, at the least, a supposed breach of trust or, alternatively, that an order or direction of the Court was deemed necessary for the administration or management or to the advantage or benefit of the Trust, as s 60(1) requires. A finding under the second limb, at the least, was open on the bases already outlined given the findings made that trust documents should be produced and an inspector should be appointed.277 350 Those findings could have been made in a context where ATLA and the respondents satisfied the requirements for standing under s 60(2) because, at the very least, they have a “proper interest” in the Trust. ATLA’s interest arises out of its role as a party to the native title mining agreements and its direction that the monies otherwise due to ATLA be paid to the Trust. The respondents are named in the instrument establishing the Trust, in the past they have received money from the Trust, and they come within a beneficial class that the Trust is intended to benefit. 351 Therefore, and if it were necessary to do so, findings in favour of ATLA and the respondents could have been made under Part 4 of the Trustee Act and the issue of service on the Attorney-General addressed.278 352 Nonetheless, there is much to be said for the proposition that whilst Parts 4 and 5A of the Trustee Act might suggest different areas of operation, there is potential for them to overlap and, if it were to be suggested that there was some deficiency in the remedies available under the general law, or to those with a “sufficient interest” in the administration of a charitable trust under Part 4, it is difficult to see why provisions such as ss 84B and 84C under Part 5A of the Trustee Act ought not be available. 353 It has been held that the term “beneficiaries” in s 59B of the Trustee Act is not confined to those entitled to benefit from a private trust, or as necessarily excluding charitable trusts from the reach of the provision.279 In The Kean Memorial Trust Fund, Besanko J rejected a submission by the Attorney-General that s 59B of the Trustee Act did not apply to charitable trusts:280 It is well-established in other jurisdictions that the powers contained in sections equivalent to s 59B (for example, s 57 of the Trustee Act 1925 (UK); s 81 of the Trustee Act 1925 (NSW)) may be invoked in the case of charitable trusts (Re Shipwrecked Fishermen and Mariners Royal Benevolent Society Charity [1959] Ch 220; Re Dutton [1968] SASR 295; Freeman v Attorney-General (NSW) [1973] 1 NSWLR 729; Meagher and Gummow, 277 That these matters were effectively agitated below appears from the pleadings and the opening before the primary judge, marked A, and the factual issues addressed in the memorandum prepared by ATLA and the respondents, marked C, at the hearing of the appeal. 278 Including by relieving ATLA and the respondents from having to serve the Attorney-General in circumstances where the Attorney was apparently kept informed about this application, see the affidavit of Ms Lisa Loechel dated 9 October 2023 exhibiting a bundle of correspondence, marked C. 279 Trustees of the Kean Memorial Trust Fund v Attorney-General (SA) (2003) 86 SASR 449, (The Kean Memorial Trust Fund) [44]-[45] (Besanko J). 280 The Kean Memorial Trust Fund (2003) 86 SASR 449, [45] (Besanko J). -- 97 of 101 -- [2025] SASCA 32 The Court 94 Jacobs’ Law of Trusts in Australia (6th ed, 1997), at [1706]). However, the Attorney-General refers to certain observations of Legoe J in City of Burnside v Attorney-General (SA) (1993) 61 SASR 107 at 141 to the effect that s 59B does not apply in the case of charitable trusts. The other members of the Full Court (Perry and Duggan JJ) did not make similar observations in their respective reasons for judgment. The trial judge in that case (Debelle J) did not hold that s 59B did not apply to charitable trusts (Burnside City Council v Attorney-General (SA) (No 2) (1992) 76 LGRA 226). With respect, I would not follow Legoe J on this point. There is nothing in the words of s 59B which suggests it does not apply in the case of charitable trusts. I do not think that the reference to “beneficiaries” in s 59B(1) and (2) limits, or was intended to limit, the operation of the section to private trusts. Furthermore, there is well-established authority in other jurisdictions that the equivalent to s 59B applies to charitable trusts as well as private trusts. I would so hold. 354 Under Part 3 of the Trustee Act, “Powers of the Court”, appears s 59B: 59B—Advantageous dealings (1) Where in the management or administration of any property vested in a trustee, any sale, lease, mortgage, surrender, release, or disposition, or any purchase, investment, acquisition, expenditure, or transaction, is in the opinion of the Supreme Court expedient, but cannot be effected by reason of the absence of or defect in any power for that purpose vested in the trustee by the instrument, if any, creating the trust, or by law, the Supreme Court— (a) may by order confer upon the trustee, either generally or in any particular instance, the necessary power for the purpose, on such terms, and subject to such provisions and conditions, including adjustment of the respective rights of the beneficiaries, as the Supreme Court may think fit; and (b) may direct in what manner any money authorised to be expended, and the costs of any transaction, are to be paid or borne as between capital and income. (2) Subsection (1) of this section shall be deemed to empower the Supreme Court, where it is satisfied that an alteration whether by extension or otherwise of the trusts or powers conferred on the trustee by the trust instrument, if any, creating the trust or by law is expedient, to authorise the trustee to do or abstain from doing any act or thing which if done or omitted by them without the authorisation of the Supreme Court or the consent of the beneficiaries would be a breach of trust, and in particular the Supreme Court may authorise the trustee— (a) to sell trust property notwithstanding that the terms of or the consideration for the sale may not be within any statutory powers of the trustee, or within the terms of the instrument, if any, creating the trust, or may be forbidden by that instrument; (b) to postpone the sale of trust property; (c) to carry on any business forming part of the trust property during any period for which a sale is postponed; (d) to employ capital money subject to the trust in any business which the trustee is authorised by the instrument, if any, creating the trust or by law to carry on; (e) to borrow money on such terms and conditions as the court orders. -- 98 of 101 -- [2025] SASCA 32 The Court 95 (3) The Supreme Court may from time to time rescind or vary any order made under this section, or may make any new or further order. (4) The powers of the Supreme Court under this section shall be in addition to the powers of the Supreme Court under its general administrative jurisdiction and under this or any other Act. (5) This section applies to trusts created either before or after the commencement of the Trustee Act Amendment Act 1941. 355 This provision is within Division 5 “Miscellaneous” and includes s 58, concerning the power to give judgment in the absence of a trustee, as well as s 59C, which addresses the power of the Supreme Court to authorise variations of the deed of trust.281 It is significant that by s 59B(4) the Court’s powers are in addition to those available “under its general administrative jurisdiction” as well as “under this or any other Act”. 356 The view of Besanko J in The Kean Memorial Trust Fund is the preferable view, and should be followed. Whilst it is not determinative of the point raised here, it tends to suggest that the broad powers made available under the Trustee Act should not be circumscribed except where necessary. As with s 59B, there is no good reason to narrowly circumscribe the reach of Part 5A of the Trustee Act, particularly when viewed in combination with this court’s broad power of oversight of the administration of trusts.282 357 In these circumstances, and were it necessary to do so, alternative contention 2 should be upheld. 358 Finally, ATLA and the respondents amended alternative contention 3 so that it read: 3. The Court’s exercise of the discretion to grant an order for the appointment of an inspector ([Reasons][15], [113] and [256]) was equally open by reference to the following additional relevant considerations: 3.1. to enable the Special Administrator to complete his reporting function to the Common Law Holders as to the administration of the native title compensation payments into the Trust; and/or 3.2. as the means by which the significant amount of disputation regarding the administration of the Trust, and the monies paid under the Agreements, might most appropriately be addressed. 281 See, for example, Retail Employees Superannuation Pty Ltd v Pain (2016) 139 SASR 401, [156] ff (Blue J). In that case his Honour observed that by s 59C(5) the trust the subject of the application cannot be a charitable trust. 282 For example, in Baptist Churches of South Australia Inc v Attorney-General for the State of South Australia [2018] SASC 14, [41] Stanley J relied on the powers conferred upon the court by ss 59B and 69B of the Trustee Act, and its inherent jurisdiction, when making an order for a trust variation scheme concerning a charitable trust established by a will. The bequest was insufficient to establish a hospital and the alternative, not opposed by the Attorney-General, of a primary health care centre was held to be consistent with the spirit and intention of the deceased. -- 99 of 101 -- [2025] SASCA 32 The Court 96 359 It is clear from the foregoing that there is a close inter-relationship between the operation of ATLA and the operation of the Trust as administered by Rangelea. Whilst each has an identifiable area of operation, there is a degree to which those areas can, and do at times, overlap. For example, it is undoubtedly an aspect of the proper function of the Special Administrator that he be in a position to report to the common law holders regarding the ways in which the payments made under the native title mining agreements have, at the direction of ATLA, been administered. 360 Whether that direction ought to continue, or be modified in some way, is but one of a number of issues which the Special Administrator may wish to consider. Associated with that, it is necessary for the Special Administrator to obtain some understanding about the way in which the Trust has been administered so as to determine whether or to what extent there have been deficiencies in that administration, as ATLA and the other respondents fear. 361 The appointment of an independent inspector to scrutinise the administration and management of the Trust, particularly as to whether the interests of the beneficiaries have been appropriately recognised and met in accordance with the terms of the Trust Deed, will be of particular interest to the Special Administrator and likely to assist him in connection with the reports he must furnish to the common law holders. The same may be said about the extent to which the income and assets of the Trust have been appropriately administered in accordance with the terms of the Trust Deed. 362 It would have been relevant and appropriate for the primary judge to have regard to this close inter-relationship when determining to appoint an inspector who must comply with the reporting requirements under the Trustee Act and furnish the Special Administrator (and others) with information likely to be of interest to the common law holders and which will equip him with the material necessary to make his reports. Likewise, it would have been appropriate for the primary judge to view the appointment of an inspector as the most appropriate means of addressing the very significant level of disputation regarding the due administration of the Trust, observing that there is an inter-relationship between that and the proper operation and management of Rangelea and ATLA. 363 For these reasons also, the orders made for the appointment of an inspector were justified. Conclusion 364 The particular criticisms made by Rangelea should each be rejected and, were it necessary, the alternative contentions upheld. 365 It is clearly in the interests of the Adnyamathanha people, particularly the traditional owners and common law holders, that the management and distribution of trust monies received under the native title mining agreements be reviewed with -- 100 of 101 -- [2025] SASCA 32 The Court 97 the benefit of the production of trust documents and the appointment of an inspector in accordance with the orders made by the primary judge. 366 The appeal should be dismissed with costs. -- 101 of 101 --