Ugle v South West Aboriginal Medical Service Limited (No 2) - Oppression Action Proxy Voting AGM Orders

Original Word Document (81.4 KB) Federal Court of Australia

Ugle v South West Aboriginal Medical Service Limited (No 2) [2026] FCA 448

| File number: | WAD 455 of 2025 |

| Judgment of: | COLVIN J |

| Date of judgment: | 13 April 2026 |

| Date of publication of reasons: | 16 April 2026 |

| Catchwords: | CORPORATIONS – oppression action - application for variation of orders restricting company from taking action outside ordinary course of business pending annual general meeting to elect member directors - issues as to procedure for appointing proxy for annual general meeting– where orders require election to be supervised by Western Australian Electoral Commission- where corporation has proceeding about termination of former CEO - whether a statement about former CEO should be given to members before or at annual general meeting – whether orders concerning proxy voting procedures should be made – limited orders made |

| Legislation: | Corporations Act 2001 (Cth) ss 233(1), 250A(1) |

| Cases cited: | Cellos Software Ltd v Wong [2017] FCA 95

Northwest Capital Management v Westate Capital Ltd [2012] ASC 121 |

| Division: | General Division |

| Registry: | Western Australia |

| National Practice Area: | Commercial and Corporations |

| Sub-area: | Corporations and Corporate Insolvency |

| Number of paragraphs: | 18 |

| Date of hearing: | 13 April 2026 |

| Counsel for the Plaintiffs: | Mr L Warnick SC with Ms N Wakelin |

| Solicitor for the Plaintiffs: | Kerrin Anderson Consultant Lawyer |

| Counsel for the Defendant: | Mr JS Slack-Smith |

| Solicitor for the Defendant: | MinterEllison |
ORDERS

| WAD 455 of 2025 |

| BETWEEN: | LESLEY ANNE UGLE

First Plaintiff

MICHELLE RAYE MUNNS

Second Plaintiff

DONNA LEANNE TURVEY

Third Plaintiff

GAVIN FLYN MCGUIRE

Fourth Plaintiff | |
| AND: | SOUTH WEST ABORIGINAL MEDICAL SERVICE LIMITED

Defendant | |

| order made by: | COLVIN J |
| DATE OF ORDER: | 13 APRIL 2026 |
THE COURT ORDERS THAT:

1. In determining the validity of the appointment of a proxy to vote on behalf of a member at the 2025 Annual General Meeting of the Defendant, the following principles are to be applied in addition to those set out in the constitution of the Defendant (the Constitution) (as varied by paragraph 4(c) of the Court’s orders made on 26 February 2026) and the Corporations Act 2001 (Cth):

(a) The appointment document must be lodged with the Western Australian Electoral Commission.

(b) The appointment document must contain all of the information required by section 250A(1) of the Corporations Act, including the full address of the member, notwithstanding any decision to the contrary made by the Directors of the Defendant under clause 23.1 of the Constitution.

1. The eligible nominees for election by poll at the 2025 Annual General Meeting of the Defendant will be:

(a) Jenny WALLAM

(b) Maxine WILLIAMS

(c) David Bert WILLIAMS

(d) Rhonda NORMAN

(e) Robyn MCCREANOR

(f) Phillip UGLE

(g) Michelle MUNNS

(h) Ernie HILL

(i) Lesley Anne UGLE

(j) Patricia HEYWARD

1. Order 2(c) of the orders made on 20 March 2026 is vacated.

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

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

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

5. The costs of and incidental to today’s proceeding be reserved.

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

REASONS FOR JUDGMENT

(edited from the transcript)

COLVIN J:

1 The plaintiffs are members of the defendant, South West Aboriginal Medical Service Limited (SWAMS). The plaintiffs alleged that the affairs of SWAMS were being conducted in a manner that was contrary to the interests of the members as a whole. They also alleged that in certain respects, the affairs were being conducted contrary to the constitution of the defendant. On 17 February 2026, I upheld substantial aspects of the claims by the plaintiffs: Ugle v South West Aboriginal Medical Service Limited [2026] FCA 101.

2 On 26 February 2026, orders were made pursuant to section 233(1) of the Corporations Act 2001 (Cth). Those orders provided for the holding of an annual general meeting of SWAMS. They also provided that at that AGM, an election was to be conducted for a number of positions as directors of the defendant. Orders were also made for an independent person to chair the meeting and for the election to be supervised by the Western Australian Electoral Commission.

3 On 20 March 2026, on the application of the plaintiffs, I made further orders on the application. Those orders were principally directed to ensuring that, pending the annual general meeting, no steps were taken by SWAMS defendant, other than in the ordinary course of its usual day-to-day operations. Those orders were intended to maintain the status quo until the election of directors had been conducted at the annual general meeting and the affairs of the defendant would then be under the conduct of the newly elected board.

4 Since then, two further matters have been raised by the parties.

Proposed statement to members concerning former chief executive officer

5 The first matter concerns whether there should be a variation of the orders made for the purpose of ensuring that no steps were taken by SWAMS otherwise in the course of its ordinary day-to-day operations. What is now proposed by SWAMS is a variation of the previous orders to allow a notice to be sent to members concerning the outcome of an investigation that was conducted into the former chief executive officer of the defendant. That investigation was concluded in March 2025 and resulted in the termination of the chief executive officer in November 2025. Proceedings have been brought against SWAMS by the chief executive officer in relation to that termination. They are ongoing.

6 SWAMS says that questions have been raised by its members as to the circumstances relating to the termination of the chief executive officer. They say that SWAMS is under duties to be appropriately accountable to its members and to provide members with an opportunity appropriately to raise questions at an annual general meeting in relation to the affairs of the company. Those matters may be accepted in general terms. However, those obligations sit alongside other obligations of the directors to conduct the affairs of the company in the interests of members as a whole. Those interests extend to ensuring that appropriate action is taken having regard to the fact that SWAMS is the subject of ongoing litigation.

7 The position of SWAMS is that an appropriate form of notice should be sent to members before the annual general meeting. It has proposed a draft form of notice. As to the form of the notice, I make two comments. Firstly, the notice, as proposed, includes statements about the for an opportunity to given to members to raise questions and receive answers at the annual general meeting. Those statements, indicate a view as to the manner in which the annual general meeting should proceed. In my view, the preferable course is for the annual general meeting to be under the supervision of the chairman of the meeting, who has been appointed independently in the circumstances of oppression that have been found. Secondly, in certain respects, the tone in which the document is expressed suggests that there has been some aspect of what has occurred, which has not led to appropriate communication to members. In the context of the findings that have been made in these proceedings, I do not consider those aspects of the notice to be appropriate.

8 The position of the plaintiffs is that the appropriate course is for an agreed statement to be provided to the annual general meeting as the full extent of any appropriate response to questions raised at the meeting. They say that it is not appropriate for there to be a communication to the members, as a whole, prior to the conduct of the annual general meeting. In part, they say that a communication of that kind is not appropriate in the context of the orders that have been made for an election to be conducted for positions as directors and for that election to be supervised independently. They say that such a course is appropriate having regard to the responsibilities for the proper management of the company having regard to the ongoing litigation with SWAMS' former chief executive officer. If the course proposed by the plaintiffs is to be followed then it seems to me that such a statement might appropriately be read by the independent chairman at the meeting.

9 The position of the plaintiffs is that any document to be read to members at the annual general meeting should contain the full extent of what is considered to be appropriate, having regard to the proper balancing of the responsibilities of providing information to members generally whilst, at the same time, protecting the interests of SWAMS in the context of existing litigation.

10 The plaintiffs also question the motives of certain of the directors who currently in control of SWAMS in seeking to communicate about such matters to the members at this time. They say that if there was a real issue about appropriate accountability, then it would be expected that there would have been a communication to members well before now. They submit, in effect, that the raising of the issue at this time is really a cover for an attempt to raise matters with members before the election in order to affect, in a way that is not appropriate, the conduct of that election. In my view, it is not necessary to resolve whether that is the motive for what is occurring, at least not for present purposes. Irrespective of the motives of those in control of SWAMS, it is appropriate, in the interests of accountability to members, in the context of questions that may be raised at the annual general meeting, for a statement to be provided. That is the course that would be consistent with usual practice in relation to a matter of this kind. Otherwise, further questions that may be raised on the topic should be answered by referring to the statement.

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

12 For that purpose, the parties should confer and seek to agree the terms of an appropriate statement. If agreement cannot be reached then the court can reconvene to resolve any differences between the parties as to the terms of the statement.

Proposed orders as to proxies for the annual general meeting

13 The second matter that has arisen concerns the arrangements in relation to proxies for the annual general meeting. It is common ground that an order should be made to deal with the fact that the course proposed by orders previously made was for the supervision of the electoral process, including as to proxies, was to be conducted by the Electoral Commission. Those orders would make clear that it is a matter for the Electoral Commission to determine whether proxies are valid, and I am satisfied that an order of that kind should be made. It should make clear that the powers that would otherwise be conferred upon directors as to whether a proxy should be accepted are not to apply.

14 The next issue is whether there should be a requirement that proxies must be submitted by members, themselves, to the Commission. There is no such requirement at general law: Cellos Software Ltd v Wong [2017] FCA 95 at [19]-23 and Northwest Capital Management v Westate Capital Ltd [2012] WASC 121; (2012) 264 FLR 424 at [108]-116.

15 I am not persuaded that it is appropriate, in the context of this matter, to impose such a requirement. Therefore, it will be a matter for the Western Australian Electoral Commission to supervise whether proxies have been provided in accordance with the legal requirements that apply.

16 The final issue is whether further guidance should be provided, by way of orders, to the Commission as to the process to be applied in supervising the proxies. Having regard to the different circumstances that might pertain to individual proxies and the fact that the process of proxies being lodged has been underway for some time and a number of proxies have already been received, it seems to me that the appropriate course is for that process to continue on the basis that the ordinary statutory provisions apply, subject only to the particular orders that I have already foreshadowed in relation to ensuring that that process is supervised by the Western Australian Electoral Commission.

17 Finally, in the course of submission, senior counsel for the plaintiffs raised a concern that employees of SWAMS were involved in soliciting proxies in favour of some existing directors. That course would be inappropriate. However, as I indicated during oral submissions, I am not persuaded that the evidence before the court would support a conclusion being reached that such conduct is occurring. Accordingly, I am not satisfied that there should be any particular orders made on that basis.

18 There will be orders accordingly.

| I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin. |
Associate:

Dated: 16 April 2026

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