Royal Australian Nursing Federation (Tasmanian Branch) v Fawdry

[1986] FCA 480

Re: ROYAL AUSTRALIAN NURSING FEDERATION TASMANIAN BRANCH
And: MARCIA JOYCE FAWDRY
No. T3 of 1986
Industrial Law
15 IR 406

COURT

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Evatt J.
Northrop J.
Gray J.

CATCHWORDS

Industrial Law - Conciliation and Arbitration - appeal from judgment - prosecution - description of defendant in information and summons defective - effect of misdescription - whether defendant a juristic person - whether defect can be cured by formal admissions or inference - information and summons a nullity - consequence of proceedings based on a nullity.

Conciliation and Arbitration Act 1904 s. 5

Federal Court of Arbitration Act 1976 s. 28

Green v. Philippines Consulate General (1971) VR 12

Williams v. Hursey (1959) 103 CLR 30

Parsons v. Martin (1985) 5 FCR 235

HEARING

HOBART

#DATE 8:10:1986

Counsel for Appellant: Mr. B. Lawrence

Solicitors for Appellant: Messrs. Simmons Wolfhagen, 86 Collins Street, Hhobart, Tas 7000

Counsel for Respondent: Mr. D.J. Porter and Mr. A.C. Rae

Solicitors for Respondent: Messrs. Archer Bushby, 119 Macquarie Street, Hobart, Tas 7000

ORDER

A. THE COURT DECLARES THAT the information and summons herein are each a nullity.

B. THE COURT ORDERS THAT:-

1. The appeal be allowed.

2. The judgment of 11 July 1986 be set aside.

(Settlement and entry of Orders is dealt with in O.36 of the Rules of Court.)

JUDGE1

This is the hearing of an appeal brought by the appellant in the name "Royal Australian Nursing Federation Tasmanian Branch". The appeal is from a judgment of the Federal Court of Australia constituted by a single Judge given on 11 July 1986. In the reasons for judgment given on that day the Court said:-

"The result is that the information is, in my opinion, proved. The primary formal order is that the defendant is convicted of an offence against s.5 of the Act ('the Conciliation and Arbitration Act 1904').

I shall hear the arguments of counsel in relation to appropriate consequential orders, in particular those for which provision is made in s.5(5) of the Act, and also in respect of the question of penalty."

No formal order has been entered and no further orders have been made by the Court.

1. By notice dated 31 July 1986 the appellant appealed from the judgment of 11 July 1986 on a large number of grounds including three which can be summarised as claiming that the appellant was not a juristic person or, in other words, was not a person either natural or in law which could be convicted of an offence. The Court heard submissions on this ground as a preliminary issue.

2. At the outset it should be noted that difficulties arise with respect to counsel for the appellant appearing as counsel for the appellant. If, in truth, the appellant was not a juristic entity, counsel could not appear for it; compare the opinion expressed by McInerney J. in Green v. Philippines Consulate General (1971) VR 12. In the circumstances, the Court heard counsel who claimed to appear for the appellant in his capacity of amicus curiae consistently with the opinions expressed in Green's case.

3. The facts relevant to the preliminary issue can be summarised. On 1 May 1986, the respondent to the appeal, Marcia Joyce Fawdry, as prosecutor and in accordance with O.49 of the Rules of Court, commenced by summons upon information a prosecution against the appellant as defendant. The information and summons each alleged that the appellant had committed an offence against paragraph 5(1)(f) of the Act in that it had dismissed her from her employment by the appellant contrary to that paragraph; see s.191 of the Act and 0.49 of the Rules of Court. In the information and in the summons the appellant was named as defendant by the description "Royal Australian Nursing Federation Tasmanian Branch".

4. It is trite law that an information for an offence can be charged only against a person, either a natural person or a juristic person. In relation to non-criminal legal proceedings the position is made clear by referring to what Fullagar J. said in Williams v. Hursey (1959) 103 CLR 30 at pp.53-55. One of the issues in that case was whether two judgments of the Supreme Court of Tasmania entered against the Hobart Branch of the Waterside Workers' Federation of Australia were valid. The Waterside Workers' Federation of Australia was an organisation under the Act and the Hobart Branch was a branch of that organisation. In the passage cited, Fullagar J. considered this aspect. At pp.53-54 he said:-
   
   

"It is plain that the 'Hobart Branch' has no corporate character - no separate legal existence as a juristic person. Since a plaintiff cannot sue anything except a person or persons, the only way of justifying the naming of it as a defendant is to say that it is a convenient name for all the natural or individual persons enrolled in the 'Hobart Branch'."

His Honour rejected that contention and at p.55 said:-

"It follows that the judgments in the first and second actions cannot stand as against the 'Hobart Branch'."

See also what was said by McInerney J. in Green's case at p.18:-

"'So far as legal theory is concerned, a person is any being whom the law regards as capable of rights and duties. Any being that is so capable is a person, whether a human being or not': Salmond on Jurisprudence (10th ed., ed. by Dr. Glanville Williams), (1947), p.318. See also Taff Vale Ry. Co. v. Amalgamated Society of Ry. Servants, (1901) AC 426, at p.429. Legal theory distinguishes between two kinds of legal persons-natural and legal. Legal persons recognized by our system of law include corporations-corporations sole, corporations aggregate-companies, institutions (e.g. universities), created either by charter or by Act of Parliament (e.g. companies under the Companies Act), and organizations (e.g. trade unions, employers' associations) incorporated e.g. under the Conciliation and Arbitration Act: see Williams v. Hursey (1959), 103 CLR 30, at pp.51-3; per Fullagar, J. Of course, Parliament can and frequently does impose criminal liability on corporations and companies. Furthermore, as Griffith, C.J., pointed out in Bishop v. Chung Bros. (1907), 4 CLR 1262: 'There is no doubt that Parliament can authorize firms to be sued or prosecuted and convicted and punished under the criminal law.' Indeed, as is pointed out in Smith and Hogan on Criminal Law (2nd ed., p. 109) Parliament can enact, and in England has recently enacted, legislation (Prices and Income Tax Act 1966) whereby unincorporated associations of employers may be made criminally liable. This, of course, is a result which only Parliament can achieve."

In this regard also, reference may be made to s.196 of the Act which contains special provisions relating to clubs.

1. In the present case, it seems to be accepted that the Royal Australian Nursing Federation is an organisation under the Act and as a result is a corporation thus being a juristic person capable of being sued, see sub-section 132(3) and sections 136 and 146 of the Act.

2. In the present case, the only evidence before the Court with respect to the standing or nature of the appellant are admissions made by counsel "appearing" for the defendant at the hearing of the information and made before any oral evidence was given. Those admissions are as follows:-
   
   

"MR ESTCOURT: (counsel for the informant) My learned friend has kindly conceded - and it is put to you as an express admission, sir - that the defendant, the Royal Australian Nursing Federation, Tasmanian branch, is an organisation registered pursuant to the Conciliation and Arbitration Act. That kind concession has saved the necessity of formally proving that fact.

HIS HONOUR : Just so that that admission can be 100 per cent accurate, my understanding from a quick perusal of the rules of the Royal Australian Nursing Federation, is that it is that federation which is the registered organisation and that from rule - I think it is 47 onwards, provision is made for branches. So this branch is not really a separate registered organisation and it is only - well, that is the initial view I would take.

MR ESTCOURT: It (the defendant) is a branch of a federally registered organisation.

HIS HONOUR : It is - I think that the admission would be better couched in those words.

MR ESTCOURT: I am indebted.

HIS HONOUR : Because it is not - it is not a separate registered organisation.

MR CUNNINGHAM: (Counsel for the defendant) Yes, I agree.

MR ESTCOURT: Yes. No, well I am indebted to my learned friend for that; and your Honour.

HIS HONOUR : Yes, thank you."

1. Those admissions, assuming they can have legal effect, consitute two admissions, one, that the defendant, the appellant, is a branch of the Royal Australian Nursing Federation, and two, that the Federation is an organisation under the Act. It should be noted that no certificate under s.135 of the Act was in evidence before the Court showing that the Royal Australian Nursing Federation was an organisation under the Act. Even more importantly, it should be noted that there was no evidence whether a certificate under s.135 of the Act, or otherwise, that the Royal Australian Nursing Federation Tasmanian Branch was an organisation under the Act.

2. In giving its reasons for judgment, the Court hearing the information said:-
   
   

"By an information dated 1 May 1986 Marcia Joyce Fawdry ('the prosecutor') began proceedings under s.5 of the Conciliation and Arbitration Act 1904 ('the Act') against the Tasmanian Branch of the Royal Australian Nursing Federation ('the defendant') in which she claimed that, as a member of the defendant organisation, by which she was at the relevant time employed as an industrial organiser, she had been dismissed from that position in breach of s.5(1)(f) of the Act. The relevant part of the information, as filed but as amended during the hearing, was: ."

His Honour then set out the information as amended and continued:-

"It was not disputed that the defendant was an 'organisation' as defined in sub-section 4(1) of the Act, or that the prosecutor was employed by the defendant at all relevant times."

1. In view of the form of the admissions made and in the absence of other evidence, it is difficult to see how the Court could have come to those conclusions.

2. The Rules of the Royal Australian Nursing Federation were in evidence before the Court and they support the view that the Royal Australian Nursing Federation Tasmanian Branch is, in truth, a branch of the Royal Australian Nursing Federation in the same way as the Hobart Branch of the Waterside Workers Federation of Australia was a branch of the Waterside Workers' Federation of Australia.

3. It follows, therefore, that in law the appellant is not a juristic person. Counsel for the respondent contended that on its true construction, the name "Royal Australian Nursing Federation Tasmanian Branch" should be construed as meaning the "Royal Australian Nursing Federation" being an organisation under the Act and thus a juristic person. They contended that the words "Tasmanian Branch" were otiose and should be ignored. They contended further that the whole of the proceedings at the hearing of the information were conducted on that basis.

4. In our opinion, the latter contention cannot be accepted. These are criminal proceedings. The defendant to the information was named as the "Royal Australian Nursing Federation Tasmanian Branch". The formal admissions on behalf of the defendant were that the Royal Australian Nursing Federation Tasmanian Branch was a branch of the Royal Australian Nursing Federation and that the Federation was an organisation under the Act. Nothing done by counsel appearing for a non-entity at the hearing of an information for a criminal offence can be binding on a legal person not a party to or appearing at the hearing.

5. We reject the first contention also. The name describing the defendant to the information and summons describes something which is not a legal person or a juristic entity but is a name given to the members of the Federation within Tasmania. That name cannot be read down to mean something which may be a juristic person. It should be noted that at the hearing of the information nobody had apparent authority to make admissions affecting the Royal Australian Nursing Federation.

6. Accordingly, in our opinion, both the information and the summons named as defendant a non legal person. In those circumstances, the information was a nullity. We agree with the view expressed by McInerney J. in Green's case at p.24:-
   
   

"Being satisfied that the 'Philippines Consulate General' is not a juristic person, the consequence appears to me that the information charging the Philippines Consulate General as a defendant was a nullity, and that the conviction recorded thereon was also a nullity."

1. In our view, for similar reasons, the conviction of the Royal Australian Nursing Federation Tasmanian Branch is a nullity. Nevertheless, the judgment is in existence even if not entered. It should not be allowed to remain in existence. In these circumstances, the Court should allow the appeal and set aside the judgment appealed from. The Court has power to do this under s.28 of the Federal Court of Australia Act 1976 and under its implied or incidental powers; compare Parsons v. Martin (1985) 5 FCR 235 at pp.240-241. Accordingly, the Court will make appropriate declarations and orders.