LYNCH v NEW SOUTH WALES NURSES' ASSOCIATION [1996] NSWCA 334

LYNCH v NEW SOUTH WALES NURSES' ASSOCIATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER and COLE JJA and Simos AJA 23 October 1996, 5 November 1996

[1996] NSWCA 334

CONTRACTS — membership of Association nature of relationship — express or implied terms under membership agreement — whether Association obliged to pay member's legal expenses

The appellant was a member of the respondent Association which had been Incorporated under the Associations Incorporation Act 1984. In 1984 she was dismissed by her employer and she sought legal advice from the respondent. The respondent negotiated an offer of reinstatement which the appellant refused to accept. She then engaged solicitors to bring reinstatement proceedings in the Industrial Commission of New South Wales, and incurred legal expenses which she then claimed from the respondent. When the respondent refused to pay her legal expenses, she brought an action in the District Court to recover the amount.

The appellant argued that the relationship between herself and the respondent was contractual in nature. She submitted that an express or implied term of this membership with the respondent was that it would pay and continue to pay the full legal expenses of all industrial and professional issues arising out of a member's employment. She claimed that the respondent had made written and oral representations to this effect, and that she had chosen to take industrial action on the strength of these representations.

The respondent denied that it was liable to pay the appellant's legal expenses, and also denied the alleged representations or that the appellant had acted to her detriment in reliance upon any such representation.

HELD:

1. The rules of the Association imposed an obligation on it to undertake court proceedings when it considered it necessary that proceedings should be taken. There was no rule which required the respondent in express terms to bring court proceedings on behalf of a member or to fund proceedings brought by a member. However, the obligation should be read as extending to such proceedings as considered necessary to achieve the objects of the Association.