Emil Ford Lawyers

What is an unincorporated association?

The New South Wales Court of Appeal has recently embraced the “great diversity” of unincorporated bodies or associations, finding that they do not need extensive formality in structure or organisation.

The proposed container distribution facility

In 2016 Qube Holdings Ltd proposed to develop a site in Moorebank, Sydney into a container distribution facility known as the “SIMTA Moorebank Intermodal facility”. About 125,000 containers each year would go from Port Botany to the facility, from where those containers would be sent on to other places.

There was a public exhibition of the development application and Residents Against Intermodal Development Moorebank (“RAID Moorebank”), together with more than 25 others, objected to the proposed development. As a result, the application was referred to the Planning Assessment Commission of New South Wales (“the PAC”), which granted consent to the development application in December 2016.

On 27 February 2017, RAID Moorebank became an incorporated association. Subsequently, RAIDM Inc, the new incorporated body, filed an appeal against the PAC’s decision.

Was RAID Moorebank ever an unincorporated body?

The issue was whether RAIDM Inc had a right of appeal. The law states that an “objector”, which includes an unincorporated group that has submitted an objection to a development application, has a right of appeal.

RAIDM Inc argued that its predecessor, RAID Moorebank, made an objection and that, by operation of the Associations Incorporation Act 2009 (NSW), RAIDM Inc acquired RAID Moorebank’s right of appeal upon its incorporation.

Conversely, Qube took the view that RAIDM Inc did not acquire such a right because its predecessor never had “the essential characteristics of an unincorporated body” in the first place. In other words, RAID Moorebank was just a shapeless, vague group of people with no legal rights to be acquired. Because Raid Moorebank did not have a constitution or a set of rules making provision for membership and voting or a list or register of members, Qube argued that it never met the description of an unincorporated body.

The nature of unincorporated bodies

While RAID Moorebank did not have a constitution or any body of rules governing voting rights, it did have the following characteristics:

  • formation and common purpose: It was a community action group formed in 2014 with the purpose of opposing the development of the container distribution facility at Moorebank.
  • a name: The name for the group was coined in the early stages.  
  • meetings: Members of the group met regularly throughout 2014, 2015 and 2016, usually on a monthly basis. At a meeting of the group in mid-2014, members formalised roles in the group, including electing a Chairman/President. The members also agreed to follow a formal process for convening and conducting meetings, which included giving notice of a meeting, setting the agenda, and taking and distributing minutes.
  • membership: 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.
  • activities: The group developed a website and used it to disseminate information about the proposed development of the container distribution facility. The group also engaged in advocacy to Ministers, members of parliament, government agencies and the media.

The Court found that all these factors established that it was an unincorporated body. It applauded the “great diversity” among unincorporated bodies or associations in the community:

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… 

The Court accepted the following description of the nature of an unincorporated body or association:

… 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.

RAID Moorebank had a degree of organisation and continuity, and its members were identifiable and united by their common interest in opposing the subject development. The Court held that the Act did not assume or require the existence of any greater formality in the structure or organisation of an unincorporated body.

This means that the law takes a very wide and generous approach to an unincorporated body you might be involved in and its legal rights. If you would like to know more about unincorporated bodies and incorporating, please contact , or .

 

 

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