Qube Holdings Ltd v Residents Against Intermodal Development Moorebank Inc

[2017] NSWCA 250

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Qube Holdings Ltd v Residents Against Intermodal Development Moorebank Inc [2017] NSWCA 250
Hearing dates:	27 September 2017
Decision date:	09 October 2017
Before:	Macfarlan JA at [1]; Meagher and Payne JJA at [53]
Decision:	(1)   Leave to appeal granted. (2)   Appeal dismissed with costs.
Catchwords:	VOLUNTARY ASSOCIATIONS – Associations Incorporation Act 2009 (NSW) s 6(2)(b) and Schedule 2 – meaning of “unincorporated body” – whether an “unincorporated body” must have a constitution or set of rules making provision for membership and voting, and a list or register of members – description of unincorporated bodies given in Kibby v Registrar of Titles [1999] 1 VR 861 applied VOLUNTARY ASSOCIATIONS – Associations Incorporation Act 2009 (NSW) s 39 – “special resolution” – whether the procedure for passing a special resolution prescribed in s 39 is applicable to an unincorporated body not yet registered under the Associations Incorporation Act – meaning to be given to “special resolution” as it is used in s 6(2)(b) of the Act
Legislation Cited:	Associations Incorporation Act 2009 (NSW) ss 4, 6, 7, 8, 39, Sch 2 Environmental Planning and Assessment Act 1979 (NSW) ss 4, 79(5), 98 Interpretation Act 1987 (NSW) s 6
Cases Cited:	Benbrika v The Queen (2010) 29 VR 593; [2010] VSCA 281 Cometa United Corporation and Tradewood Shipping Company v Canterbury Regional Council [2007] NZCA 560; [2008] NZAR 215 Conservative Office v Burrell [1982] 1 WLR 522 In re Duomatic Ltd [1969] 2 Ch 365 Kibby v Registrar of Titles [1999] 1 VR 861; [1998] VSC 148 MYT Engineering Pty Ltd v Mulcon Pty Ltd (1999) 195 CLR 636; [1999] HCA 24 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Category:	Principal judgment
Parties:	Qube Holdings Ltd (Applicant) Residents Against Intermodal Development Moorebank Inc (First Respondent) NSW Minister for Planning (Second Respondent)
File Number(s):	CA 2017/282788
Decision under appeal	Court or tribunal: Land and Environment Court New South Wales Jurisdiction: Class 1 Citation: [2017] NSWLEC 115 Date of Decision: 12 September 2017 Before: Preston CJ at LEC File Number(s): 2017/81889

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 12 December 2016 the Planning Assessment Commission of New South Wales (the “PAC”), acting as delegate for the Minister for Planning, decided to grant consent to the development application for Stage 1 of the SIMTA Moorebank Intermodal facility. The first respondent, Residents Against Intermodal Development Moorebank Inc (“RAIDM Inc”), filed an appeal against the PAC’s decision. The applicant, Qube Holdings Ltd, is the proponent of the development and a respondent to that appeal. Qube filed a notice of motion seeking summary dismissal of RAIDM Inc’s appeal upon the basis that RAIDM Inc has no standing to appeal against the decision.

Section 98 of the Environmental Planning and Assessment Act 1979 (NSW) confers on an “objector” a right of appeal to the Land and Environment Court (“LEC”) against the determination of a consent authority to grant consent to a development application. “Objector” is defined in s 4 of that Act to mean “a person who has made a submission under s 79(5) by way of objection to a development application for consent to carry out designated development”. “Person” is defined in the same section to include “an unincorporated group of persons or a person authorised to represent that group”.

Qube argued that as RAIDM Inc did not lodge an objection to the development, s 98 did not confer a right of appeal on it. Further, it argued that RAIDM Inc did not acquire such a right from its predecessor unincorporated body, Residents Against Intermodal Development Moorebank (“RAID Moorebank”).

RAIDM Inc accepted that it did not make an objection to Qube’s application. It however contended that RAID Moorebank made a relevant objection and that, by operation of the Associations Incorporation Act 2009 (NSW) (“AI Act”), RAIDM Inc acquired RAID Moorebank’s right of appeal upon RAIDM Inc’s incorporation.

By a decision of 12 September 2017 Preston CJ of the LEC found that RAIDM Inc has standing to pursue its appeal ([2017] NSWLEC 115) and dismissed Qube’s notice of motion.

Qube sought leave to appeal to the Court of Appeal against that interlocutory decision. Its application, and the appeal that would lie if leave were granted, were heard concurrently.

Qube’s principal submission was that, as a matter of construction, RAID Moorebank was not “an unincorporated body” as described in s 6(2)(b) and Schedule 2 of the AI Act. It argued that the AI Act contemplates that an “unincorporated body” necessarily has “a constitution or set of rules making provision for membership and voting, and a list or register of members”, and that the provisions of the Act (in particular s 6(2)(b) and s 39) indicate that these are essential characteristics of an “unincorporated body”. Section 6(2)(b) states that an application for registration of an association made on behalf of an unincorporated body “must be authorised” by “a special resolution passed by the members of the body”. Section 4 provides a signpost definition of “special resolution”, namely “see Section 39”. Section 39 prescribes the procedure by which “[a] resolution is passed by an association as a special resolution”.

Alternatively, Qube submitted that general law authority leads to a similar conclusion as to the essential characteristics of an unincorporated body.

Held, granting leave to appeal but dismissing the appeal (per Macfarlan JA, Meagher and Payne JJA agreeing and making additional observations):

(1) On its proper construction, s 39 does not apply to an unincorporated body such as RAID Moorebank which is yet not registered under the AI Act: [31]-[33]; [64].

(2) For present purposes, it is sufficient to accept that an unincorporated body or association is one that consists of “some form of combination of persons (with a common interest or purpose) with a degree of organisation and continuity at least sufficient to distinguish the combination from an amorphous or fluctuating group of individuals and with some clear criteria or method for the identification of its members”. The AI Act does not assume, nor require, the existence of any greater formality in the structure or organisation of an “unincorporated body” as the term is used in s 6(2)(b) and Schedule 2 of the Act: [39]-[41]; [64].

Kibby v Registrar of Titles [1999] 1 VR 861; [1998] VSC 148 at [50] applied. Cometa United Corporation and Tradewood Shipping Company v Canterbury Regional Council [2007] NZCA 560; [2008] NZAR 215 at [23]; Benbrika v The Queen (2010) 29 VR 593; [2010] VSCA 281 at [73] referred to.

(3) RAID Moorebank met the above description of an unincorporated body. It undoubtedly had a degree of organisation and continuity, and its members were identifiable and united by their common interest in opposing the subject development. By operation of Schedule 2 to the AI Act, RAID Moorebank’s right of appeal therefore passed to RAIDM Inc upon its incorporation: [42]-[43]; [64].

Per Macfarlan JA:

The words “special resolution” in s 6(2)(b) are workable even if the definition in s 39 is not applicable to that subsection. Whilst the precise ambit of the term “special resolution” is open to debate, it can at least be said that it contemplates something more than a resolution of a simple majority of members (that is, an ordinary resolution). The term “special resolution” would embrace a situation where all members of the unincorporated body agreed on a course of action: [35]-[37].

In re Duomatic Ltd [1969] 2 Ch 365; MYT Engineering Pty Ltd v Mulcon Pty Ltd (1999) 195 CLR 636; [1999] HCA 24 at [24] referred to.

Per Meagher and Payne JJA:

Section 39 does not in its terms apply to a resolution passed by an “unincorporated body”. However it does not follow that the (signpost) definition of “special resolution” in s 4(1) does not inform the meaning of those words as used in s 6(2)(b). The direction in that definition in s 4 is to be taken as indicating that the meaning of “special resolution” when used in the Act is to be found in s 39. The direction when applied in relation to s 6(2)(b) is given effect if “special resolution” describes a resolution passed by at least three-quarters of the members of the unincorporated body: [64]-[65].

Obiter (per Macfarlan JA, Meagher and Payne JJA agreeing):

(1) Qube’s submissions did not involve a collateral attack on RAIDM Inc’s registration. Qube’s argument was that RAID Moorebank was not an “unincorporated body” of the character referred to in Schedule 2 and s 6(2)(b) of the AI Act. Qube did not expressly allege that RAIDM Inc’s registration as an association was invalid, nor was that implicit in its argument: [45]; [50]; [66]-[67].

(2) On its proper construction the AI Act does not evince a legislative intent that non-compliance with the application requirements in s 6 will invalidate a registration resulting from an application which, although defective, was accepted by the Secretary. Rather, such a registration has and continues to have, legal effect in accordance with the provisions of the AI Act, including s 8(2), until that registration is cancelled: [46]-[49]; [68].

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 considered.

Judgment

1. MACFARLAN JA: These proceedings concern the standing of the first respondent, Residents Against Intermodal Development Moorebank Inc (“RAIDM Inc”), to appeal to the Land and Environment Court of New South Wales (the “LEC”) against a decision of the Planning Assessment Commission of New South Wales (the “PAC”), acting as delegate for the Minister for Planning, to approve Stage 1 of the SIMTA Moorebank Intermodal facility. The site for the proposed facility comprises approximately 83 hectares of land at Moorebank in Sydney. Stage 1 involves the construction and operation of infrastructure to support both the annual distribution of 125,000 container units from Port Botany to the facility, and the distribution of the same number of units from the facility to other places. The development is a “State significant development” for the purposes of s 89C of the Environmental Planning and Assessment Act 1979 (NSW) the (“EPA Act”). In accordance with s 79 of that Act, there was a public exhibition of the development application in respect of Stage 1, and there was an opportunity for objections to the development to be made.

2. As there were more than 25 objections, the application was referred to the PAC for determination under ministerial delegation. On 12 December 2016 the PAC decided to grant consent to the development application.

3. Section 98 of the EPA Act confers on an “objector” a right of appeal to the LEC against the determination of a consent authority to grant consent to a development application. “Objector” is defined in s 4 of the Act to mean “a person who has made a submission under s 79(5) by way of objection to a development application for consent to carry out designated development”. “Person” is defined in the same section to include “an unincorporated group of persons or a person authorised to represent that group”.

4. RAIDM Inc filed an appeal against the PAC’s decision. The appeal is listed for hearing in the LEC on 25, 26 and 27 October 2017. Qube Holdings Ltd, the proponent of the development and a respondent to that appeal, thereafter filed a notice of motion seeking summary dismissal of the appeal upon the basis that RAIDM Inc has no standing to appeal against the PAC’s decision. Qube’s argument was, and is, that RAIDM Inc did not lodge an objection to the development, with the consequence that s 98 did not confer a right of appeal on it. Further, it argued, and continues to argue, that RAIDM Inc did not acquire such a right from its predecessor unincorporated body, Residents Against Intermodal Development Moorebank (“RAID Moorebank”).

5. RAIDM Inc accepts that it did not make an objection to Qube’s application. In fact, it could not have done so as it was only incorporated under the Associations Incorporation Act 2009 (NSW) (“the AI Act”) after the period for lodgement of objections had expired. RAIDM Inc however contends that RAID Moorebank made a relevant objection and that, by operation of the AI Act, RAIDM Inc acquired RAID Moorebank’s right of appeal upon RAIDM Inc’s incorporation.

6. By a decision of 12 September 2017 Preston CJ of the LEC found that RAIDM Inc has standing to pursue its appeal ([2017] NSWLEC 115). His Honour accordingly dismissed Qube’s notice of motion.

7. Qube seeks leave to appeal to this Court against that interlocutory decision. Its application, and the appeal that would lie if leave were granted, were heard concurrently. For the reasons given below, I do not consider that the proposed appeal has merit. However as the proceedings involve a matter of significant public interest and the appeal has been fully argued, I consider that leave to appeal should be granted. The appeal should then be dismissed.

8. As is apparent from this description of the proceedings, the issue presently before this Court turns upon the operation of the AI Act, to which I now refer.

The Associations Incorporation Act

9. As its Long Title indicates, the AI Act is designed “to provide for the registration of clubs, societies and other non-profit associations; to provide for the regulation of those associations after registration; and for other purposes”.

10. The objects of the Act are stated in s 3 as follows:

“3 Objects of Act

The objects of this Act are:

(a)   to establish a scheme for the registration of associations that are constituted for the purpose of engaging in small-scale, non-profit and non-commercial activities, including:

(i)   associations that are currently unincorporated (which become bodies corporate when they are registered), and

(ii)   associations that are currently incorporated under other legislation (which retain their corporate status following registration), and

(b)   to make provision with respect to the corporate governance and financial accountability of associations registered under that scheme.”

11. The definitions in s 4(1) of the Act include:

“association means an association registered under this Act.

…

Department means the Department of Finance, Services and Innovation.

…

rights means any rights, powers, privileges or immunities (whether present or future, whether vested or contingent and whether personal or assignable).

Secretary means:

(a) the Commissioner for Fair Trading, Department of Finance, Services and Innovation, or

(b) if there is no such position in the Department, the Secretary of the Department.

special resolution—see section 39.”

There is no definition of “unincorporated body”.

12. Sections 6, 7 and 8 are in the following terms:

“6 Application for registration

(1)   An application for registration of an association may be made to the Secretary on behalf of:

(a)   5 or more individuals, or

(b)   an unincorporated body having 5 or more members, or

(c)   a registrable corporation having 5 or more members or shareholders, or

(d)   2 or more existing associations together having 5 or more members.

(2)   Such an application must be authorised:

(a)   in the case of an application made on behalf of 5 or more individuals, by each of the individuals, and

(b)   in the case of an application made on behalf of an unincorporated body, by a special resolution passed by the members of the body, and

(c)   in the case of an application made on behalf of a registrable corporation, by a special resolution passed by the members of the corporation, and

(d)   in the case of an application made on behalf of 2 or more associations proposing to amalgamate, by special resolutions passed by the members of each association.

(3)   An application:

(a)   must be in the approved form, and

(b)   must specify the association’s proposed name and the address that is to be the association’s first official address, and

(c)   must include a statement of the association’s objects, and

(d)   must annex a copy of the association’s proposed constitution (or a statement that the association’s proposed constitution adopts all the provisions of the model constitution without modification), and

(e)   must identify the person who is to be the association’s first public officer, and

(f)   must include copies of any special resolution referred to in subsection (2) (b), (c) or (d), and

(g)   in the case of an application made on behalf of a registrable corporation, must annex a document (issued by the relevant regulatory authority under the law under which it is currently incorporated) declaring that the requirements of that law in relation to the transfer of its registration under that law to registration under some other law have been complied with, and

(h)   must include any information required by the regulations, and

(i)   must be accompanied by the fee prescribed by the regulations.

(4)   An association’s proposed official address must be an address within New South Wales:

(a)   at which the person who is to be the association’s first public officer can generally be found, and

(b)   at which documents can be served on the association by post.

(5)   An association’s proposed constitution must address each of the matters referred to in Schedule 1.

(6)   (Repealed).

7 Decision on application

(1)   The Secretary may determine an application for registration of an association by registering the association or by refusing the application.

(2)   An application for registration may be refused if:

(a)   the application does not comply with section 6, or

(b)   the name of the association is unacceptable, or

Note. Changing circumstances may mean that a name that was acceptable when it was reserved has since become unacceptable.

(c)   the Secretary is satisfied that, having regard to the objects of this Act, the association should not be registered:

(i)   because some provision of the association’s constitution is contrary to law, or

(ii)   because of the association’s objects or the Secretary’s assessment of the likely nature or extent of the association’s proposed activities, or

(iii)   because of the likely nature or extent of the association’s dealings with the public, or

(iv)   for any other reason that appears sufficient to the Secretary.

(3)   The Secretary registers an association by recording its name, objects, constitution and official address in the Register of Incorporated Associations.

(4)   On registering an association, the Secretary:

(a)   must cause a certificate of registration for the association to be given to the applicant, and

(b)   if the applicant is a registrable corporation, must cause notice of its registration to be given to the relevant regulatory authority under the law under which it was formerly registered.

(5)   In the case of 2 or more associations that become a single association, the registration of each of the former associations is to be cancelled when the amalgamated association is registered.

8 Incorporation of associations other than former registrable corporations

(1)   An association that arises otherwise than from the registration of a registrable corporation becomes a body corporate when it is registered under this Act.

(2) Schedule 2 contains provisions relating to an association that arises from the registration of an unincorporated body or from the amalgamation of 2 or more associations.”

13. Part 4 of the Act is concerned with the “Management of associations”. Division 3 in that Part is headed “General” and includes s 37, which contains requirements for the holding of general meetings. Section 38 concerns “Voting generally”, and in particular identifies what constitutes an “ordinary resolution”. Section 39 is in the following terms:

“39 Voting on special resolutions

(1)   A resolution is passed by an association as a special resolution:

(a)   at a meeting of the association of which notice has been given to its members no later than 21 days before the date on which the meeting is held, or

(b)   in a postal or electronic ballot conducted by the association, or

(c)   in such other manner as the Secretary may direct,

if it is supported by at least three-quarters of the votes cast by members of the association who, under the association’s constitution, are entitled to vote on the proposed resolution.

(2)   A notice referred to in subsection (1) (a) must include the terms of the resolution and a statement to the effect that the resolution is intended to be passed as a special resolution.

(3)   A postal or electronic ballot referred to in subsection (1) (b) may only be conducted in relation to resolutions of a kind that the association’s constitution permits to be voted on by means of a postal or electronic ballot and, if conducted, must be conducted in accordance with the regulations.

(4)   A direction under subsection (1) (c) may not be given unless the Secretary is satisfied that, in the circumstances, it is impracticable to require votes to be cast in the manner provided by subsection (1) (a) or (b).”

14. Part 7 of the Act deals with “Cancellation and transfer of registration”. Section 76, which is contained in that Part, empowers the Secretary to cancel an association’s registration if satisfied of various circumstances including the non-operation of the association, the association having become registered under the Act “because of fraud or mistake”, or it being “in the public interest to cancel the association’s registration”.

15. Schedule 2 to the Act is given effect by s 8(2). The schedule is relevantly in the following terms:

1 Definitions

In this Schedule:

assets of a former body include assets held for or on behalf of the body or its members (in their capacity as members) and assets held for the objects of the body.

former body, in relation to an association, means:

(a)   an unincorporated body that has been incorporated as a consequence of its registration under this Act, or

(b)   each of 2 or more associations that have amalgamated to form the association.

2 Transfer of assets, rights and liabilities etc

(1)   On an association’s incorporation under this Act, the following provisions have effect:

(a)   the assets of the former body vest in the association by virtue of this clause and without the need for any conveyance, transfer, assignment or assurance,

(b)   the rights and liabilities of the former body become by virtue of this clause the rights and liabilities of the association,

(c)   all proceedings relating to the assets, rights and liabilities of the former body that were commenced by or against the former body and still pending are taken to be proceedings by or against the association,

(d)   any act, matter or thing in relation to the assets, rights and liabilities of the former body that was done or omitted to be done by, to or in respect of the former body is taken to have been done or omitted by, to or in respect of the association,

(e)   subject to the regulations, any reference in any instrument, or in any document of any kind, to the former body or a predecessor of the former body is, to the extent to which it relates to the assets, rights or liabilities of the former body, to be read as, or as including, a reference to the association.

(2)   Assets that vest in an association by operation of this clause are not to be dealt with contrary to the provisions of any trust affecting them immediately before the association’s incorporation under this Act, being provisions as to the purposes for which the assets may or must be applied.

(3)   The operation of this clause is not to be regarded:

(a)   as a breach of contract or confidence or otherwise as a civil wrong, or

(b)   as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities, or

(c)   as giving rise to any remedy by a party to an instrument, or as causing or permitting the termination of any instrument, because of a change in the beneficial or legal ownership of any asset, right or liability.

(4)   The operation of this clause is not to be regarded as an event of default under any contract or other agreement.

3 Certificate evidence

(1)   A certificate that is issued by the public officer of an association, that is in the approved form, that is verified by statutory declaration and that states that, immediately before the association’s incorporation under this Act:

(a)   specified property was vested in a specified former body, or

(b)   specified property was held by a person for or on behalf of a specified body or its members (in their capacity as members) or for its objects,

is evidence of the matters so stated.

(2)   A certificate that is issued by the Secretary and that states that a specified body is a former body in relation to a specified association is evidence of the matter so stated.”

Qube’s arguments at first instance

16. Qube submitted that RAID Moorebank was not “an unincorporated body” for the purposes of s 6(2)(b) and Schedule 2 to the AI Act because RAID Moorebank lacked a number of characteristics necessary for a group of persons to meet that description. The primary judge recorded the submission as follows:

“Qube submitted that it follows from the requirements of ss 6 and 39 of the Associations Incorporation Act that to be an ‘unincorporated body’ within the meaning of the Associations Incorporation Act, the body must have: a list or register of its members at the time of the special resolution; the means of communicating with those members for the purposes either of giving notice of meetings or providing postal or electronic ballots; and a constitution or body of rules in relation to voting and members’ voting entitlements” (Judgment at [38]).

17. Qube submitted that even if its reliance on ss 6 and 39 was ill-founded and it could only base its argument on the general law, “the weight of authority clearly favours the requirement for a set of rules, however rudimentary, for an otherwise amorphous group of people to be characterised as an unincorporated association” (Judgment at [39]). Qube referred to a number of authorities, including Conservative Office v Burrell [1982] 1 WLR 522 at 525, which were said to support this proposition.

18. The primary judge accepted that at the relevant time RAID Moorebank did not “have a constitution or any body of rules governing voting and voting rights” (Judgment at [42]). The issue raised by Qube’s submissions was accordingly whether this meant that RAID Moorebank was not an “unincorporated body” for the purposes of the AI Act.

The judgment at first instance

19. The primary judge’s factual findings included the following:

“8 RAID Moorebank was a community action group formed in 2014 with the purpose of opposing the development of an intermodal terminal at Moorebank. The first meeting of the group was on 14 May 2014. The name for the group, Residents Against Intermodal Development Moorebank, was coined in late June 2014.

9 On 29 August 2014, at a meeting of the group, members formalised roles in the group, including electing Mr Anderson as Chairman/President of the group. The members also agreed to follow a formal process for convening and conducting meetings of the group. This included giving notice of a meeting, setting the agenda for the meeting, and taking and distributing minutes of the meeting.

10 Between August and October 2014, one of the group members, Mr McDonald, developed a website for RAID Moorebank. The website was used to upload and host independent studies and reports to present alternative, merits-based assessments to the proposed intermodal terminal developments at Moorebank.

11 The members of the group were identifiable and remained relatively constant from the group’s inception in 2014 to the registration of the group as RAIDM Inc in 2017. One of the members, Mr Rakowski, identified nine members at the inception of the group in 2014, three more became members around September 2014 and another became a member in October 2015. Mr Rakowski said that ‘there was a common understanding amongst members that we were a community group working together on a common cause to object to the proposed intermodal development at Moorebank’.

12 The group engaged in advocacy to Ministers, members of parliament, government agencies and the media opposing any development of an intermodal terminal at Moorebank.

13 Members of the group met regularly throughout 2014, 2015 and 2016, usually on a monthly basis.”

20. His Honour found that RAID Moorebank lodged a number of objections to Qube’s development application in the period allowed by s 79(5) of the EPA Act for the making of objections. That finding is not challenged on appeal.

21. The primary judge also found that the evidence referred to in [19] above concerning “the formation, name, common purpose, membership, meetings and activities of RAID Moorebank” established that it was “an unincorporated group of persons” within the meaning of “person” in the EPA Act, as well as an “unincorporated body” within the meaning of the AI Act (Judgment at [96]).

22. His Honour took the view that Qube’s arguments involved a collateral challenge to the registration of RAIDM Inc and concluded:

“ … The registration of the association and the certificate for the association are conclusive proof of the regularity of both the application for registration and determination of that application. Unless and until a court of competent jurisdiction sets aside the registration of the association, this Court should accept the regularity of both the application for registration and the determination of that application” (Judgment at [110]).

23. Further his Honour concluded that, even if Qube was entitled to go behind the registration of RAIDM Inc, it failed to establish that RAID Moorebank was not an “unincorporated body for the purposes of the AI Act”. His Honour stated:

“114 I do not accept that it is necessary that a group of persons possess all of the characteristics posited by Qube in order for it to be an unincorporated body for the purposes of the Associations Incorporation Act. Contrary to Qube’s submissions, the Associations Incorporation Act does not so require, either expressly or by necessary implication from its provisions. Critical to Qube’s submission that an unincorporated body must have certain characteristics is its argument that s 39 applies to an unincorporated body. As I find below, s 39 does not apply to an unincorporated body before it is registered, only after it has been incorporated as a consequence of registration under the Associations Incorporation Act.

115 If s 39 does not apply to an unincorporated body, that leaves only the requirements of s 6. However, other than the requirements that the unincorporated body have 5 or more members (s 6(1)(b)), that the members of that body pass a special resolution authorising the application for registration (s 6(2)(b)) and that a copy of the special resolution be attached to the application (s 6(3)(f)), there are no other requirements from which characteristics of an ‘unincorporated body’ can be derived. I do not accept that the Associations Incorporation Act demands that an unincorporated body have a constitution or rules. The Associations Incorporation Act expressly requires a constitution for an incorporated association (see, for example, s 6(3)(d) and s 7(3)) but does not similarly require a constitution or set of rules for an unincorporated body applying to be registered.”

24. As foreshadowed in these extracts, his Honour then found that s 39 of the AI Act did not apply to special resolutions passed by an unincorporated body. On that basis, he found that RAID Moorebank did pass a “special resolution” of the type referred to in s 6(2)(b) of the AI Act because:

“ … RAID Moorebank resolved at successive meetings to apply for it to become an incorporated association: first, by “100% consensus” of the 10 members present at the meeting on 28 October 2016; second, by resolution of the 9 members present at the meeting on 13 January 2017; and third, by confirmation by the 8 members present at the meeting on 20 January 2017 of the resolution of 13 January 2017, when a draft of the constitution of the incorporated association was ‘formally presented’ and ‘supported’ by the members … ” (Judgment at [118]).

25. For these reasons, the primary judge found that RAID Moorebank’s right, as an objector, to appeal under s 98(1) of the EPA Act became the right of RAIDM Inc when that entity was incorporated. As a result, his Honour found that RAIDM Inc has standing to pursue its appeal and dismissed Qube’s motion for summary judgment.

Determination of the appeal

26. Qube’s argument on appeal was encapsulated in the following paragraph in its written submissions:

“To be an ‘unincorporated body’ within the meaning of the Act, such a body must, at the very least, have a constitution or a set of rules making provision for membership and voting, and a list or register of members. This requirement, Qube submits and submitted below, arises on a proper construction of the Act as a whole and, in particular, from the fact that s 6(2)(b) of the Act envisages that such a body has the machinery (as established by a set of rules or constitution, however rudimentary) to pass a ‘special resolution’ by its ‘members’. That submission is reinforced by the definition of ‘special resolution’ in s. 4 of the Act which in turn picks up s. 39 of the Act. It remains good even if, as the primary judge held at [117], (but which Qube disputes), s 39 had no relevance to the question under consideration because it only applies to incorporated associations once registered and not to unincorporated bodies that become associations upon registration.”

27. As is apparent from my description of the judgment at first instance, the primary judge gave two reasons for rejecting Qube’s argument to this effect, (the argument also having been put to his Honour). His Honour’s first reason was that the argument involved an impermissible collateral challenge to RAIDM Inc’s registration as an association (see [22] above). Secondly, assuming (contrary to his Honour’s views) that it was permissible for RAIDM Inc to put that argument, his Honour rejected it as a matter of construction of the AI Act (see [23]-[24] above). It is convenient to deal with the second of these reasons first.

28. The essence of Qube’s construction argument is that the AI Act contemplates that an “unincorporated body”, as described in s 6(2)(b) and Schedule 2 of the Act, necessarily has “a constitution or set of rules making provision for membership and voting, and a list or register of members”. Qube asserts that the provisions of the AI Act (in particular s 6(2)(b) and s 39) indicate that these features are essential characteristics of an “unincorporated body”. Alternatively, Qube submits that general law authority leads to a similar conclusion.

29. Qube further submits that if RAID Moorebank was not an “unincorporated body” within the meaning of Schedule 2 (and s 6(2)(b)) of the Act), it follows that Schedule 2 did not operate to transfer any rights to RAIDM Inc on its incorporation, including RAID Moorebank’s right of appeal to the LEC. Schedule 2 is given operation by s 8(2) of the Act.

30. The first question arising from these submissions is whether the definition of “special resolution” in s 39 of the Act applies to the term “special resolution” in s 6(2)(b). If it does, a considerable degree of formality is required for an unincorporated association to pass the requisite “special resolution” to approve an application for registration. Qube says that RAID Moorebank did not have the structure to enable this to be done. This is the principal plank of Qube’s submissions.

31. Like the primary judge, I am however of the view that s 39 does not so apply. Section 39(1) is expressed to relate to the passage of a special resolution “by an association”. That word is defined by s 4(1) to mean “an association registered under this Act”. On its face, s 39(1) did not therefore apply to an unincorporated body such as RAID Moorebank which was not registered under the Act.

32. A definition stated by an Act to be applicable need not be applied where the “context or subject-matter” suggests it should not (Interpretation Act 1987 (NSW) s 6). However, the context in which s 39 appears strongly indicates that the section does not apply to the term “special resolution” in s 6(2)(b). Section 39 is in Part 4 of the AI Act, which is concerned with the “Management of associations”. Consideration of the provisions in that Part reveals that they relate to the “regulation of … associations after registration”, this being an expression used in the Long Title of the Act (see [9] above). None of the provisions in that Part (including s 39) appears apt to be applied to an unincorporated body prior to its registration. In these circumstances, it is clear that the provisions of Part 4 as a whole were not intended to regulate unincorporated associations prior to their registration. A conclusion that, unlike other sections in Part 4, s 39 applied not only to a registered association, but also to an unincorporated body, would be anomalous and without support from any aspect of the language or context of that section.

33. Qube submitted that, on ordinary principles of construction, the Court should strive to attribute the same meaning to the term “special resolution” where used in different parts of the Act. Whilst consistency of meaning is a proper matter to consider, it is not a decisive factor in the present case. By reason of the express limitation of s 39’s operation to an “association”, and that word’s definition in s 4 as an association registered under the AI Act, the express terms of the Act contradict any suggestion that the words must necessarily have the same meaning wherever used in the Act.

34. Qube also submitted that the “significant consequences under Schedule 2 of the Act [that] flow from the passage of a special resolution by an unincorporated body” favour the conclusion that an unincorporated association should be regarded as having certain “irreducible minimum characteristics”, including those for which Qube contends. I do not however consider that these consequences justify departure from the language of s 39 (nor do they require any particular formalities in the conduct of an unincorporated body beyond those which may be inherent in its nature, as to which see [38]-[41] below).

35. I do not accept Qube’s further submission that, unless the definition in s 39 is applicable, the requirement for a special resolution in s 6(2)(b) is meaningless or incapable of being satisfied. Whilst the precise ambit of the term “special resolution” is open to debate in the absence of an applicable statutory definition, it can at least be said that it contemplates something more than a resolution of a simple majority of members (that is, an ordinary resolution). Certainly, I consider that the term “special resolution” would embrace a situation where all members of the unincorporated body agreed on a course of action. The position would then be one of unanimous assent which is, as a general rule, treated as obviating the need to adhere to formalities as to the passage of resolutions (see In re Duomatic Ltd [1969] 2 Ch 365; MYT Engineering Pty Ltd v Mulcon Pty Ltd (1999) 195 CLR 636; [1999] HCA 24 at [24]).

36. In these circumstances, it is unnecessary to decide what lesser level of support, if any, is sufficient to render a resolution “special”. The point relevant to this argument is not whether RAID Moorebank passed a “special resolution” in the present case. Rather it is one of construction, namely, whether the words “special resolution” in s 6(2)(b) would be unworkable unless the definition in s 39 were found to be applicable. The conclusion that there is at least one means (namely unanimous assent) by which the requirement of a “special resolution” might be satisfied is sufficient to require a negative answer to that question.

27. If, as I have concluded, s 39 is inapplicable Qube’s argument that RAID Moorebank was not an “unincorporated body” for the purposes of the AI Act because it did not have rules which facilitated the passing of a special resolution with comparable formality to that described in s 39 is left without any support from the provisions of that Act. In particular, s 6 does not assist Qube in light of the operation that I have said can and should be given to the words “special resolution” in s 6(2)(b). A consequence of this construction is that the requirement of a “special resolution” is workable in the case of an unincorporated body that does not have a constitution or set of formal rules regulating its internal procedures.

28. Nor in my view is there any principle to be derived from case authority that an unincorporated body must have the characteristics identified by Qube. Certainly there are cases that refer to such characteristics when describing unincorporated associations, but none to which this Court’s attention was directed go so far as to say that the existence of those characteristics is essential to the classification of the group of persons as an “unincorporated body”.

29. The great diversity of unincorporated bodies or associations in the community was recognised by the New Zealand Court of Appeal in Cometa United Corporation and Tradewood Shipping Company v Canterbury Regional Council [2007] NZCA 560; [2008] NZAR 215 at [23], as follows:

“Unincorporated bodies range from loosely to highly organised groupings. At one end of the spectrum are groups of people who have come together in an ad hoc way for a particular short-term purpose. Examples are residents who are opposing a development in their neighbourhood or parents of school children who want to take up a particular concern with the school. At the other end of the spectrum are bodies which are long-lived, have officers, governance arrangements and employees just as corporate entities do, and operate and present themselves to the public as established, independent organisations. Bodies of this latter type are distinct from (and more than) the individuals who make up their membership – as a practical matter, they have independent existence and act as independent entities.”

40. As a result of this diversity, courts should be slow to find that the adoption of any particular formalities is essential to the existence of an unincorporated body or association. Much will depend upon the nature of the group of persons in question and the context in which its character arises for consideration.

41. It is sufficient for present purposes to accept the following description of the nature of an unincorporated body or association given by Mandie J in Kibby v Registrar of Titles [1999] 1 VR 861; [1998] VSC 148 at [50]:

“… I consider that the essence of an ‘association’ may be described as some form of combination of persons (with a common interest or purpose) with a degree of organisation and continuity at least sufficient to distinguish the combination from an amorphous or fluctuating group of individuals and with some clear criteria or method for the identification of its members.”

See also Benbrika v The Queen (2010) 29 VR 593; [2010] VSCA 281 at [73].

42. On the primary judge’s findings (see [19] and [21] above), RAID Moorebank met that description. That body undoubtedly had a degree of organisation and continuity, and its members were identifiable and united by their common interest in opposing the subject development. The AI Act does not assume, nor require, the existence of any greater formality in the structure or organisation of an “unincorporated body” as the term is used in s 6(2)(b) and Schedule 2 of the Act. Nor is there any other reason to find that such formality is necessary.

43. For these reasons, Qube’s appeal must fail. The primary judge was correct to find that RAID Moorebank was an “unincorporated body” whose right of appeal in relation to the PAC’s decision passed to RAIDM Inc by reason of the operation of Schedule 2 to the AI Act.

44. In these circumstances, the correctness or otherwise of the primary judge’s other reason for dismissing Qube’s notice of motion (that Qube sought an impermissible collateral review of RAIDM Inc’s registration) is not critical to the outcome of the appeal to this Court. I nevertheless make the following observations in relation to it.

45. In my view Qube’s submissions do not involve a collateral attack on RAIDM Inc’s registration. Qube’s argument is that RAID Moorebank was not an “unincorporated body” of the character referred to in Schedule 2 of the Act (and s 6(2)(b)). Qube does not expressly allege that RAIDM Inc’s registration as an association is invalid. Nor in my view is that implicit in its argument because the validity of RAIDM Inc’s registration is not dependent on all the requirements for an application for registration, stated in s 6(2)-(5), having been met. In particular, because the Secretary (as defined in the Act – see [11] above) accepted the application and registered RAIDM Inc, it would not make the registration automatically invalid if the application had not in fact been authorised by a “special resolution” or made by an “unincorporated body”.

46. This view is based on my conclusion that the AI Act does not evince a legislative intent that non-compliance with the application requirements in s 6 will invalidate a registration resulting from an application which, although defective, was accepted by the Secretary.

47. Certainly, s 6(2) is expressed in mandatory terms: the word “must” is used in this subsection, and it is also used in subsections (3), (4) and (5). However, as the High Court made clear in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, that does not necessarily mean that an act such as the making of an application for registration under the AI Act, and the registration effected in reliance upon it, are invalid if there is a departure from the application requirements.

48. As the plurality said in Project Blue Sky at [93]:

“ [A] court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute" (citations omitted).

49. The matters that have led to my conclusion regarding the legislative intent are as follows.

1. It can readily be concluded that, in relation to at least many of the requirements for an application specified in s 6(2)-(5) of the AI Act, the legislature did not intend that non-compliance would invalidate the application or the consequent registration. For example, an application is required to be “in the approved form”, but non-compliances might be minor. Similarly, the prescribed fee is to accompany the application but the fee might be paid late.

2. There are no differences in the language used in s 6(2)-(5) to specify the different requirements for an application which suggest that non-compliance with some of the requirements was intended to affect validity, whilst non-compliance with others was not. In light of (1) above, the likelihood is that the legislature did not intend non-compliance with any of the requirements to have that effect.

3. The Secretary, as defined, is empowered by s 7(2) to refuse the application for registration if the application does not comply with s 6. This provides some support for the view that the sufficiency of the application is a matter for the registrar.

4. The Secretary is given power by s 76(1) to cancel an association’s registration in a broad range of circumstances, including if he or she is satisfied that it is in the public interest to do so (s 76(1)(k)). Thus, the Secretary may cancel a registration if a serious defect in the application on which it was based comes to his or her attention, and cancellation is considered to be warranted in all of the circumstances.

5. People in the community may have had dealings with the registered association on the faith of its corporate identity. Possible prejudice resulting to such persons from cancellation of its registration may be taken into account by the Secretary in exercising his or her discretion to cancel the association’s registration. This may avoid the prejudice being suffered. Such prejudice will not be avoided if the association’s registration is automatically invalid as a result of a defect in the application for registration.

6. If a defect in an application invalidated an association’s registration, persons intending to deal with an association might, as a matter of prudence, consider it necessary to attempt to investigate the validity of its application for registration. This would probably involve considerable inconvenience and expense. In any event, it might not be possible to undertake a proper investigation due to lack of access to the application form and to information concerning the steps taken in the course of the application process.

7. The Long Title and the objects of the AI Act (see [9]-[10] above) suggest that the Act was designed to facilitate the creation and operation of associations engaging in “small-scale, non-profit and non-commercial activities”. This object would be promoted if the Secretary has the power to determine whether a sufficient application for registration has been made and then proceed to effect a valid registration. In contrast, the opposite effect would occur if registrations of associations effected by the Secretary were automatically invalidated due to deficiencies in applications accepted by the Secretary.

50. It follows that, contrary to the primary judge’s view, Qube’s submission does not involve a collateral attack on RAIDM Inc’s registration. If successful, Qube’s submission that RAID Moorebank’s rights (including the right of appeal) did not pass to RAIDM Inc on the latter’s incorporation because RAID Moorebank was not an “unincorporated body” as referred to in Schedule 2 would not mean that RAIDM Inc’s registration was invalid. Rather, the Secretary had the power to effect the registration of the organisation notwithstanding that (on Qube’s submission) it was not an “unincorporated body”. The primary judge’s rejection of Qube’s case on this basis cannot therefore be sustained.

51. In these circumstances, it is unnecessary (and due to the urgency with which the present appeal needs to be resolved, not appropriate) to deal with the further question of whether, if Qube’s case did involve a collateral attack on RAIDM Inc’s registration, that attack would have been permissible.

Orders

52. For the reasons I have given, I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed with costs.

53. MEAGHER AND PAYNE JJA: We have had the advantage of reading Macfarlan JA’s judgment in draft. What follows assumes a familiarity with the circumstances in which this interlocutory appeal arises, the contentious facts as found by the primary judge and the relevant provisions of the Associations Incorporation Act 2009 (NSW). The abbreviations used by Macfarlan JA have been adopted.

54. The question for the primary judge was whether, by the application of AI Act, Schedule 2, cl 2(1)(b), a “right” of RAID Moorebank as an “objector” under EPA Act, s 98, in respect of the grant of consent to the development of Stage 1 of the SIMTA Moorebank Intermodal facility, became a right of RAID Inc.

55. AI Act, s 8(2) provides:

Schedule 2 contains provisions relating to an association that arises from the registration of an unincorporated body or from the amalgamation of 2 or more associations.

56. RAIDM Inc was on 27 February 2017 registered in accordance with AI Act, s 7(3). That is, on that day the Secretary recorded its name, objects, constitution and official address in the Register of Incorporated Associations. That fact is not contested by Qube.

57. Before the primary judge, Qube deployed three arguments in support of a negative answer to this question. They were (in the order in which they arose):

• First, that no submissions were made on behalf of RAID Moorebank (as distinct from one or more individuals) by way of objection to Stage 1 of the development so as to entitle it as an “unincorporated group of persons” to appeal to the Land and Environment Court from the subsequent grant of consent under EPA Act, s 98.

• Secondly, that at the time any such submissions were made, and at the time application was made on its behalf for registration under AI Act, s 6, RAID Moorebank was not an “unincorporated body” within Schedule 2, cl 2.

• Thirdly, that RAID Moorebank’s application for registration under AI Act, s 6 was not authorised by a “special resolution” (s 6(2)(b)) passed by its members, because it had not complied, and could not comply with the procedural requirements in AI Act, s 39(1) for the holding and giving notice of meetings. What was said to follow, if this proposition was accepted, was not entirely clear.

58. The primary judge rejected the first of these arguments and it is not pressed in the proposed appeal: Judgment [104]. Qube accepts that the four submissions made in June 2015 were made by “an unincorporated group of persons” having the name RAID Moorebank and accordingly a “person” within EPA Act s 4(1).

59. The second argument was also rejected by the primary judge. The primary judge held that RAID Moorebank was an “unincorporated body” at all relevant times. The question addressed by this argument is the central issue in the proposed appeal and his Honour’s conclusion as to the merit of the argument is challenged by grounds 2, 3, 4 and 5.

60. The third argument was rejected by the primary judge, and is not pressed as providing a separate reason for concluding that RAID Moorebank’s right under EPA Act, s 98 did not become a right of RAIDM Inc upon its registration under the AI Act. However, in support of its second argument Qube continues to rely on the application of AI Act ss 6(2)(b) and 39 as indicating that the essential characteristics of an “unincorporated body” include that it has a constitution or set of rules making provision for membership, and a list or register of members.

61. Qube’s second and third arguments were rejected for two reasons. The first, which his Honour held justified the dismissing of each argument, was that Qube could not by the proceedings in the Land and Environment Court, challenge the validity of the registration of an unincorporated body on the basis that some of the statutory requirements for its registration had not been met: Judgment [110], [111]. This holding is challenged by ground 1. Relevantly for Qube’s arguments, those requirements were that RAID Moorebank be an “unincorporated body” and that its application for registration have been authorised by a special resolution in accordance with AI Act, s 6(2). His Honour’s second reason for rejecting these arguments was that each of these requirements, properly understood, was in fact satisfied: Judgment [113], [118].

62. Thus Qube’s appeal is concerned only with the primary judge’s rejection of its second argument. Its first challenge is to his Honour’s conclusion that it was not open to it to contest the validity of RAIDM Inc’s registration in the class 1 proceedings. The second is to his Honour’s conclusion that RAID Moorebank was an “unincorporated body”. For its appeal to be upheld Qube must be successful in each of these challenges.

63. It is convenient, as Macfarlan JA has done, to start with Qube’s submission that his Honour erred in holding that RAID Moorebank was at all relevant times an “unincorporated body”. That was necessary for RAIDM Inc to have become entitled to RAID Moorebank’s right to appeal under EPA Act, s 98. That is because by AI Act, s 8(2) the provisions of Schedule 2 only apply to “an association that arises from the registration of an unincorporated body”; and because the provisions of Schedule 2, cl 2(1)(b) only operate with respect to rights of such a body, relevantly a “former body”.

64. We agree for the reasons given by Macfarlan JA that the primary judge was correct to hold that RAID Moorebank was an “unincorporated body”. We make one additional observation concerning the construction of s 6(2)(b) and s 39. Section 39 does not in its terms apply to a resolution passed by an “unincorporated body”. Subsection (1) describes the voting majority condition that must be satisfied if a resolution passed by an “association registered” under the Act, and in accordance with paragraphs (a), (b) and (c), is to constitute a “special resolution”. That condition is:

if it is supported by at least three-quarters of the votes cast by members of the association who, under the association’s constitution, are entitled to vote on the proposed resolution.

65. However it does not follow that the (signpost) definition of “special resolution” in s 4(1) – “see section 39” – does not inform the meaning of those words as used in s 6(2)(b) which refers to “a special resolution passed by the members of the body”. In that provision, the adjective “special” describes the voting majority which the resolution of the unincorporated body authorising the application for registration must achieve. The direction in that definition is to be taken as indicating that the meaning of “special resolution” when used in the Act is to be found in s 39. Accepting that s 39 is concerned with what is required for a resolution passed by a registered association to be a special resolution, the direction when applied in relation to s 6(2)(b) is given effect if “special resolution” describes a resolution passed by at least three-quarters of the members of the unincorporated body.

66. We agree with Macfarlan JA that the making of this argument does not involve a challenge to the validity of the Secretary’s decision to register RAIDM Inc. The primary judge concluded otherwise, treating the fact of registration as “conclusive proof of the regularity of both the application for registration and [the] determination of that application”: Judgment [110]. In so holding, his Honour proceeded on the basis that the validity of registration depends on the satisfaction of the requirements in s 6 (relevantly here, those in ss 6(1)(b) and 6(2)(b)) so that by putting in issue the satisfaction of one or more of those requirements, Qube was challenging “the very basis of the registration of the incorporated association”: Judgment [111].

67. Qube’s argument that RAIDM Inc lacked standing to bring the appeal does not depend on or require a conclusion that the Secretary’s decision to register RAIDM Inc, or the act of registration, was or is of no legal effect. RAIDM Inc’s standing depends on the application of Schedule 2, cl 2(1)(b) which in turn depends on RAIDM Inc being an “association that arises from the registration of an unincorporated body” within s 8(2). Qube contends that RAIDM Inc does not answer that description because RAID Moorebank was not an “unincorporated body”. That argument takes no issue with the fact of registration, or its legal effect. On the contrary, it accepts that RAIDM Inc is an association registered under the Act.

68. Furthermore, for the reasons given by Macfarlan JA, non-compliance with the requirements for registration (relevantly those in ss 6(1)(b) and 6(2)(b)) does not have the consequence that registration of an association, in the manner described in s 7(3), does not have, and continue to have, legal effect in accordance with the provisions of the AI Act, including s 8(2), until that registration is cancelled under Part 7. Accordingly the premise on which the primary judge considered Qube’s argument necessarily involved an impermissible “collateral challenge” was not justified.

65. We agree with the orders proposed by Macfarlan JA.

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Decision last updated: 26 March 2018