Australian Securities and Investments Commission v Medical Defence Association of Western Australia Inc

The Australian Securities and Investments Commission (ASIC) appealed against a decision of the primary judge in the Federal Court, who had declared that the Medical Defence Association of Western Australia Inc (the Association) could apply to ASIC for registration under the Corporations Act. The dispute arose under Part 5B.1 of the Corporations Act, which deals with the registration of a body corporate as a company when it is not already a company under the Act. The primary judge had determined that the Association could comply with the requirements of s 601BC(8)(d) of the Corporations Act by providing evidence of the consent of its members in accordance with s 601BC(8)(f), or, if Western Australian law requires that the consent of the members be obtained, in accordance with that law. The primary judge made a declaration and orders for costs.

The legal issue before the court was whether the Association was required to provide evidence of authorisation from Western Australia in order to comply with s 601BC(8) of the Corporations Act. The court considered whether the Associations Act, which governs incorporated associations in Western Australia, provided a mechanism for the transfer of incorporation. The court also considered whether the Association could rely on s 13 of the Associations Act, which gives an incorporated association the power to do all things necessary or convenient for carrying out its objects and purposes. The court concluded that the Association could comply with the requirements of s 601BC(8)(d) of the Corporations Act by providing evidence of the consent of its members in accordance with s 601BC(8)(f), or, if Western Australian law requires that the consent of the members be obtained, in accordance with that law.

The appeal was allowed and the orders made by the primary judge were set aside. The court held that the Association was required to provide evidence of authorisation from Western Australia in order to comply with s 601BC(8) of the Corporations Act. The court found that the Associations Act did not provide a mechanism for the transfer of incorporation and that the Association could not rely on s 13 of the Associations Act to satisfy the requirements of s 601BC(8) of the Corporations Act. The court held that the primary judge had erred in law in making the declaration and orders for costs. The court ordered that the appeal be allowed, that the respondent pay the appellant’s costs of the appeal, that the orders made by Stone J be set aside, and that proceedings NSD 1217 of 2004 be dismissed.