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

This case involved a dispute between the Medical Defence Association of Western Australia Inc and the Australian Securities and Investments Commission. The applicant sought a declaration that it could transfer its incorporated status to become a company registered under the Corporations Act 2001. The respondent argued that it did not have the power to register the transfer because there was no express provision for such a transfer in the legislation of Western Australia. The court was required to determine whether the absence of such an express provision precluded the applicant from meeting the evidentiary requirements of s 601BC(8)(d) of the Corporations Act. The parties presented their views and the court concluded that the absence of express provision did not preclude the evidentiary requirements from being met. The court agreed with the applicant that the absence of such provision did not prevent the applicant from providing evidence of consent of its members in accordance with sub-section 601BC(8)(f) of the Corporations Act. However, the court found that the respondent's draft declaration was too broad and that it could not say that the evidentiary requirements would be met by the evidence referred to in the respondent’s draft declaration. The court was not in a position to say that the requirements would be met because other requirements of State law or of the applicant’s constitution may need to be met in order to authorise the transfer and to satisfy ASIC on the point. The court's negative conclusion did not support such a positive declaration.

The applicant was ordered to pay the respondent’s costs incurred up to and including 2 November 2004, and thereafter the respondent pay the applicant’s costs.