'ABO CATCHWORDS Industrial Law - Cunciliation 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 5.5 Federal Court of Australia Act 1976 5.2 Green v. Philippines Consulate Generai £1371] V.R. 12 Williams v. Hursey (1959) 103 C.L.R. 30 Parsons v. Martin (1385) 5 F.C.R. 235 ROYAL AUSTRALIAN NURSING FEDERATION TASMANIAN BRANCH and MARCTA JOYCE FAWDRY T. No. 3 of 1986 Evatt, Northrop and Gray JJ. 8 October 19456 Hobart teen rey _— IN THE FEDERAL COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY T. No. 3 of 1986 eww wn INDUSTRIAL DIVISION ON AFPEAL FROM THE FEDERAL COURT OF AUSTRALIA ROYAL AUSTRALIAN NURSING FEDERATION TASMANIAN BRANCH Appellant * and MARCIA JOYCE FAWDRE . Respondent COURT: EVATT, NORTHROP AND GRAY JJ. DATE: 8 OCTOBER 1936 a] LACE: HOBART MINUTES OF 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 0.36 of the Rules of Court.) ap t= npemeree ow IN THE FEDERAL COURT OF AUSTRALIA } TASMANTA DISTRICT REGISTRi T. No. 2 of 1386 ~sS we INDUSTRIAL DIVISION ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN : ROYAL AUSTRALIAN NURSING FEDERATION TASMANIAN BRANCH Appellant and MARCIA JOYCE FAWDRY Respondent COURT: EVATT, NORTHROP AND GRAY JJ. DATE: 8 OCTOBER 1986 ja] LACE: HOBART REASONS FOR JUDGMENT THE COURT This is the hearing of an appeal brought by the appellant in the name "Royal Australian Nursing Federation Tasmanian Branch". The appeal is froma 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'). bi IT shall hear the arguments of counsel in relation to appropriate consequential orders, in particular those for which provision is made in 5.5(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. By notice dated 31 July 1986 the appellant appealed from the judgment of 11 July 1986 on a large mumber 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. 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] V.R. 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. 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 0.49 of the Rules of Court, commenced by summons upon megtter oe e Ae po ined . Yeo tl sooo information a prosecution against the appellant as defendant. The information and summons each alleged that -he 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". 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 C.L.R. 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:- See also what was said by McInerney J. p.18 It Follows that the judgments in the first and second actions cannot stand as against the 'Hobart Branch''." "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, £19011 A.C. 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 (1359), 103 C.L.R. 30, at pp.51-3; per Fullagar, Jd. Of course, Parliament can and frequently does impose criminal liability on corporations and companiés. Furthermore, as Griffith, C.d., pointed out in Bishop v. Chung Bros. (1907), 4 C.L.R. 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.103) 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 5.196 of Act which contains special provisions relating to clubs. in Green s case at the I. — reer In the present case, it seems to be accepted that = + the Royal Australian Nursing Federation is an organisation a under the Act and as a result is a corporation thus being a ose oe 2 peer juristic person capable of being sued, see sub-section 132(3) and sections 136 and 146 of the Act. [ In the present case, the only evidence before the Court with respect to the standing or nature of the appellant ve are admissions made by counsal "appearing" for the defendant ae at the hearing of the information and made before any oral f evidence was given. Those admissions are as follows:- bey t "MR ESTCOURT: (counsel for the informant) My ' learned friend has kindly conceded - and i it is put to you @s an express tis admission, sir - that the defendant, the ., Royal Australian Nursing Federation, on Tasmanian branch, is an organisation ho 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 tr 100 per cent accurate, my understanding a from a quick perusal of the rules of the Royal Australian Nursing Federation, is Vw that it is that federation which is the registered organisation and that from i , rule - I think it is 47 onwards , Pay. provision 15 made for branches. So this te branch is not really a separate rt registered organisation and it is only - "*. well, that is the initial view I would te take. me MR ESTCOURT: It (the defendant) is a branch of a federally registered organisation. HIS HONOUR : It is - I think that the admission eo would be better couched in those words. as MR ESTCOURT: I am indebted. Because 1 as mot - ik is nok a HIS HONOUR : Bséparate registered organisation. MR CUNNINGHAM: (counsel for the defendant) Yes, I agree. MR -ESTCOURT: Yes. No, well If am indebted to my learned friend for that; and your Honour. HIS HONOUR : Yes, thank you." Those admissions, assuming they can have legal effect, constitute 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 5.135 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. 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: ." PD tot pein ope ae oe eer tcse ny i) . St ogvorey led Renee Oe had ae His Honour then set out the information as amended and continued: - "Té 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." 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. 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. 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 Y seo we ope ee ered WN Ty Spt eer ve ce ne reece . Le ey may ? conducted on that basis. In our opinion, the latter contention cannot he accepted. These are criminal proceedings. The defendant to the information was mamed 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. 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, 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:- , TF .s spree eo: . S antneeete ee Pr ae aS i - Ye | eT ae aera aos vie oan) rf ts "Being satisfied that the 'Philippines Consulate General' 15 not a qjuristic 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." In our view, for similar reasons, the conviction of the Royal Australian Nursing Federation Tasmanian Branch is a nullity. Nevertheless, the judgment is 1n 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 5.283 of the Federal Court of Australia Act 1976 and under its implied or incidental powers; compare Parsons v. Martin (1985) 5 F.C.R. 235 at pp.240-241. Accordingly, the Court will make appropriate declarations and orders. 1 certify that this and the eight (8) preceding pages are a true copy of the Reasons for judgment heicin of the Honourabie Min. "Justice ENE , the lonsuraiele Me. Jushce Northrop Atle meuralle M deste Grex). Associate sociale Qardle. Dated: 8[1o|86 {caer RSI TS ITE —e re we — 42 Title of Action : File Number Dates of-Hearing 3 Judgment Delivered : Counsel for Appellant Solicitors for Appellant : Counsel for Respondent : Solicitors for Respondent : ROYAL AUSTRALIAN NURSING FEDERATION TASMANIAN BRANCH v. MARCTA JOYCE FAWDRY T. No. 3 of 1986 7 and 8 October 1986 8 October 1986 Mr. B. Lawrence Messrs. Simmons Wolfhagen, 86 Collins Street, HOBART. TAS. 7006 Mr. D.d. Porter and Mr. A.C. Rae Messrs. Archer Bushby, 119 Macquarie Street, HOBART. TAS. 7000 re leew BR mcg i ae we ee ar re re ee oe gee x a we ee se 7m