Reported Decision : (1999) 32 ACSR 554 New South Wales Supreme Court CITATION : Jobnet v Copeman [1999] NSWSC 848 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 2384 of 1999 HEARING DATE(S) : 4, 5 and 10 August 1999 JUDGMENT DATE : 26 August 1999 Jobnet Employment Services Incorporated (first plaintiff) Silvano Bevinetto, Jill Blunden, Trudi Twemlow (second plaintiffs) Alwyn Copeman (first defendant) Owen Smith (second defendant) Glen Donaldson (third defendant) PARTIES : Tony Crockett (fourth defendant) Janelle Garside (fifth defendant) Joe Ben Mattos (sixth defendant) Betty Burke (seventh defendant) Dianne Walsh (eighth defendant) Tracey Woodman (ninth defendant) JUDGMENT OF : Windeyer J at 1 COUNSEL : Mr M. Walton, SC with him Ms J Pentelow (plaintiffs) Mr. J.M. Atkin (first defendant) Marsdens (Plaintiffs) SOLICITORS : Simpson & Partners (first defendant) Pye Rogers Fairfax & Patterson (second defendant) CATCHWORDS : ASSOCIATIONS - incorporated associations - whether intention was to incorporate an existing association or incorporate a new association - validity of general meeting of incorporated association - determination of present members of management committee of association ACTS CITED : Associations Incorporation Act 1984, ss8, 8(1), 8(2), 8(2)(d), 21(a) DECISION : Paragraph 30 1 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WINDEYER J THURSDAY 26 AUGUST 1999 2384/99 Jobnet Employment Services Incorporated & ORS v ALWYN COPEMAN & ORS JUDGMENT Outline of action 1 To an outside observer this claim relates to a battle for control of an incorporated association, Jobnet Employment Services Incorporated (Jobnet), a body funded by public moneys which ought not to be laid out on litigation of this sort. Facts 2 Jobnet was incorporated under the Associations Incorporation Act 1984. The second plaintiffs claim to be members of its committee and say the defendants are not members of the committee. The first to six and ninth defendants claim to be members of the committee to the exclusion of the second plaintiffs. The seventh defendant, Betty Burke, had a long association with the organisations the subject of the action. It is possible she may claim to be a member of the committee of Jobnet. The eighth defendant, Dianne Walsh, was manager of Jobnet and an earlier body until dismissed in 1999. She claims to be a member of the first plaintiff. Of the defendants only the first and second have filed appearances and only Mrs Copeman has appeared at the hearing. Mr Smith, it seems, intended to submit. The defendants other than Glen Donaldson have been served. Glen Donaldson has not been properly served, but in the circumstances that will not matter. Nobody has argued that Jobnet was in fact not incorporated. Orders were made on 18 June 1999 that certain persons whom the defendants claim were members of Jobnet be given notice and that was done. 3 From earlier than 1994 there was in existence an incorporated association, Western Sydney Community Transition Team Incorporated (the transition team). Among other activities it received funding from the Commonwealth Department of Health and Family Services or Family and Community Services (the Department) for the purpose of providing pre-employment training to persons with disabilities. These it provided under the name of Western Sydney Jobnet Service and later Western Sydney Jobnet Employment Services (Western Sydney). It seems that at least the latter name was registered by the transition team. In fact Western Sydney was managed by a group of persons described sometimes as a sub-committee and usually as a management committee appointed by the transition team. The Department would not fund Western Sydney direct as it would not fund an unincorporated body. Departmental funding appears to have been paid direct into two bank accounts at the Commonwealth Bank at Penrith in the name of "Western Sydney Community Transition Team Inc. Jobnet". The letterhead paper used by Western Sydney, at least in 1996 stated it to be funded by the Department of Health and Family Services and to be an activity of the transition team. 4 In 1997 the Department directed the phasing out of pre-employment activities and required Western Sydney to provide an employment service. While apparently it did not want to do this, it acceded to the request, and it seems at that stage it became a registered provider with the word "employment" appearing in its title. 5 At a meeting of the management committee of Western Sydney on 9 April 1997, there was discussion about what was called re-auspicing of Western Sydney, and the management committee decided to look into this. Re-auspicing meant separate funding in some way rather than funding through the transition team. It was understood that separate funding would require separate incorporation and that the two things must proceed together, although one was through state agencies and the other through commonwealth agencies. On 18 June 1997 at a meeting of the management committee there was discussion as to separate incorporation. It was decided to seek department approval to separate incorporation, this having been envisaged in the notice calling the meeting, but separate funding was only sought if no open tender process would be required. It is perfectly clear from all the evidence of those concerned that separate funding could not be obtained without incorporation of a separate body so that was a condition of funding and there was no purpose in the incorporation going ahead unless funding was achieved. In other words, incorporation and separate funding or re-auspicing were both required as a pre-condition for any sensible move from under the transition team umbrella. At the time of this meeting the following people were members of the management committee - Alwyn Gordon (who is the same person as the defendant Mrs. Copeman), Carl Hoppe, Betty Burke, Marina Parsons, Sue Chandler, Rob McGowan, Silvano Bevinetto and Martin Wren. I will refer to these and other people by their surnames. McGowan, Bevinetto and Wren were not present at that meeting, but they supported what was decided. On the same day as the meeting, namely 18 June 1997, Copeman wrote a letter on behalf of Western Sydney to Mr. Heywood at the Department. As it is of some significance I will set it out: Mr Mark Heywood Project Officer Disability Services Dept Health & Family Services 333 Kent Street Sydney 2000 Dear Mark As the Chairperson of the Management Committee appointed by the Western Sydney Community Transition Team Inc, the auspicing body for Western Sydney Jobnet Services, I would like to request that you apply to the Minister to allow Western Sydney Jobnet Services (WSJS) to become separately incorporated. WSJS has been operating now the past three and a half years and has a proven record for excellence in service delivery as a pre-employment training program for youth with disabilities. Recently, WSJS's focus changed via a Department of Health and Family Services directive to become a supported employment program (CETP). This change in focus comes at a time when the Auspicing body feels ready to relinquish it's [sic] responsibility to WSJS and allow the organisation to expand and meet the new challenges involved in this change unencumbered by the restrictions imposed by a community based organisation such as ours. The membership of the Western Sydney Community Transition Team, and as a consequence, of the Management Committee of WSJS consists mainly of parents of people with disabilities and field workers in the industry who generously volunteer their time, but who, in general, lack the expertise of business people who are experienced and more capable of making financial and planning decisions for the benefit of WSJS consumers. The majority of the members of the Management Committee would be prepared to remain as board members but all agree that the influence of members with the expertise mentioned above could only enhance the service. There has been a concern raised that if WSJS is to become separately incorporated then the organisation must go to open tender. The Auspicing body would be against this move as the risk of becoming absorbed by other larger CETP organisations in this area is too great. The team is justifiably proud of the ethics of WSJS and of it's [sic] effectiveness for consumers with disabilities and would appreciate the opportunity for the status quo to remain. Therefore, if separate incorporation requires an open tender we must respectfully withdraw our request to change WSJS's status and continue as the auspicing body. I hope that this letter provides you with adequate information to gain insight regarding our position and enables you to present our case to the Minister. I look forward to a favourable reply. Yours sincerely, (signed Alwyn Gordon) Alwyn Gordon CHAIRPERSON WSJS Management Committee PUBLIC OFFICER Western Sydney Community Transition Team Inc 18/06/97 6 During the balance of 1997, meetings of the management committee took place from time to time. At a meeting on 22 July it was resolved in discussing vacant positions that the existing structure should remain until incorporation. At that meeting it is recorded that verbal resignations had been received from Bevinetto, Wren and Hoppe and that it was agreed that formal written resignations should be obtained. Wren and Hoppe did resign. Bevinetto said, and I accept his evidence, that Mrs Walsh, who was the manager of Western Sydney, asked him to stay away for a while but not put in a resignation, she thinking that he had not the conflict of interest which had forced the others to resign. It seems likely the conflict arose because Western Sydney was required by the Department to change its activities from pre-employment training to employment provision for persons with disabilities. 7 A meeting of the transition team on 23 July resolved to keep the management committee as it was until separate incorporation was obtained or the situation changed. On 17 December 1997, the minutes of the management committee recorded a resolution that Bevinetto be reinstated to the management committee due to the impending resignation of Marina Parsons, such reinstatement being for the period from 6 January 1998 until incorporation. The fact is, however, that Bevinetto had never resigned. 8 On 18 December 1997, exactly six months after he had been asked to obtain approval for separate funding, Mr. Heywood responded to the request for a transfer of grant from one organisation to the other and asked for a formal proposal. That proposal was prepared by Walsh and Copeman. To the extent to which Copeman said that she had little to do with it, I do not accept evidence, which was contrary to that of Walsh. The covering letter forwarding the proposal stated in its first paragraph: The enclosed proposal details the new dimension for Western Sydney Jobnet Employment Services (WSJES) as Jobnet Employment Service Inc (application for incorporation pending). We envisage that this will be achieved through a transfer of grant from WSCTT Inc, our auspicing body, to a self management separation. It also referred to Western Sydney's ability to stand alone and the desire of the management committee and staff to expand existing service provisions into other areas. 9 Examination of the proposal put forward makes it perfectly clear the intention was that the body to be incorporated and which it was proposed would receive the funding would in fact provide the services for which funding was sought, and would not just be a new auspicing body to receive funds and pass them on to Western Sydney. It is not necessary to set out the matters in the proposal which make this clear, other than to say that letters in support of it, which were presumably drafted by Walsh or Copeman, referred to the management committee and staff at Western Sydney being able to operate the service without being tied to the transition team, and the proposal itself referred to numerous activities being carried out by Western Sydney which would be continued under the new incorporated organisation. The entire proposal constantly refers to "JES Inc" and the activities then being conducted by that body, clearly meaning by Western Sydney. 10 On 6 January 1998 Parsons resigned from the management committee. Its members from then on were Copeman, Burke, Bevinetto, Chandler and McGowan. On 12 January 1998 Copeman signed an application for incorporation of Jobnet under the Associations Incorporation Act 1984 (the Act). As originally drafted by Walsh its name was to be "Western Sydney Jobnet, but the first two words were deleted. The reason for this was not explained but it may have had something to do with the proposal for funding which was in the name applied for. Paragraph 2 of the application required the applicant to state whether the formation was of a new association or a currently unincorporated association and in the latter event, the name of the unincorporated association was to be shown. Copeman did not delete either of the alternatives but nevertheless inserted the name of the unincorporated body which was to be formed into an association. I think it is clear from this that the intention was that a currently unincorporated body was to become an incorporated body. As I have said that is borne out by the proposal for funding. Paragraphs 3, 4,6 and 7 of the application as signed by Copeman, that words in italics being written by Walsh were as follows: 3. The objects of the proposed incorporated association are: To provide training, assessment, job marketing and placement support to people with disabilities to enhance their participation within the community. 4. The principal activities of the association are/ are likely to be :: assessment training, job placement support. 6. The number of persons employed/ likely to be employed by the association is/ is likely to be : 6 7. The persons with whom the association deals/ is like likely to deal with are principally: People with disabilities, their parents/carers. Copeman declared that she was duly authorised to apply for the incorporation in accordance with s8 of the Act. 11 This form provides a strong indication that the intention was to incorporate Western Sydney whether properly authorised or not. It could not be suggested anyone other than the management committee, except perhaps the transition team, and this was never suggested, was the authorising body. 12 Jobnet was incorporated on 18 February 1998. The certificate of incorporation was sent to Copeman at the address from which Western Sydney had always operated. She said she did not receive it until May. Walsh says that she would have opened the letter and that she knew of the incorporation in February. Copeman said she knew of it in May. That I think to be the position on the balance of probabilities, but I am satisfied in any event the members of the management committee of Western Sydney were not told of this until October or November. A report of the management committee of 24 March 1998 is not clear on this aspect. On that date the committee determined to follow the Model Rules "if we are granted separate auspicing" and the manager reported speaking to Heywood about separate incorporation. A meeting of 26 May 1998 discussed "discussions with Heywood on separate incorporation". All those involved knew incorporation and transfer of funding were both necessary. 13 The transition team annual report for 1997/1998 included a report of Western Sydney prepared by Walsh which included the following paragraph: With separate incorporation pending we have some new people interested in joining our Management Committee. I believe that the addition of a solicitor, a member of the Chamber of Commerce at Blacktown and a bank manager, who is also the parent of one of our clients, would add a new dimension to the Management Committee and enhance the membership expertise which already exists. Having members with business/management expertise as well as community members will be an excellent blend. 14 The minutes of the annual general meeting of the transition team, held on 17 June 1998 which appear to refer to 1997 not 1998 in various places, which is obviously incorrect, and is probably reproduced from the previous year, show that the following were elected to the Western Sydney "sub-committee"; Copeman, Bevinetto, Burke, Twemlow, Blunden, Scrine and Moat. These people other than Blunden and Moat were present at a meeting of Western Sydney on 12 August 1998. At that meeting Copeman was elected chairperson, Bevinetto Treasurer, and it was decided that the position of secretary would be rotated. It was decided to hold elections for office at the first meeting after separate incorporation was secured. It is obvious those persons present intended to hold those elections. At a meeting on 23 September 1998 everyone was there except Blunden. It was reported that "incorporation was with the minister". The meeting set the next meeting for 3 November 1998. The minutes of the meeting of 3 November 1998 were headed "Jobnet Employment Services Inc". That was the first time that heading had been used, in the past the headings for the minutes having been "Western Sydney Jobnet Employment Services" or "Western Sydney Community Transition Team Jobnet Sub-Committee". Present were Copeman, Burke, Twemlow, and Scrine. Bevinetto apologised. Walsh was in attendance as manager. The minutes of the previous meeting of 23 September 1998 were read, confirmed and signed by Copeman. It was reported that the Minister had approved what seemed to be described as "separate incorporation". There was discussion about changing the name of the bank accounts and on the contract with the Department. The minutes record that the directors were informed of their right to remain members of the transition team until their next annual general meeting in May, but that membership of the transition team was no longer a criterion for membership of Jobnet board of directors. At this meeting a copy of the Model Rules was given to each member of the board for review. There was a decision to hold an annual general meeting in January or February 1999, although a subsequent note put on the minutes by Walsh stated that it would not be necessary to hold that meeting until August 1999. 15 On 3 February 1999 Copeman gave notice of resignation from "the board". The minutes of the meeting on that day are headed "Board of Directors Meeting". The meeting was attended by Bevinetto, Blunden, Burke, Moat, Scrine and Twemlow. Burke resigned towards the end of that meeting. Discussion revolved around complaints of staff about Walsh. 16 From this time on confusion reigned. Copeman, who remained public officer, sent a memorandum dated 22 February 1999 to Blundell, Burke, Twemlow, Scrine and Moat, purportedly to call a special general meeting of Jobnet on 22 March 1999 on the purported request of five percent of the members, doing so on the basis that under the Model Rules if the committee failed to call the meeting then the secretary was to call the meeting, and presumably as the secretary had not called the meeting then the public officer was to do so, or perhaps on the basis that if there was no secretary the public officer was deemed to be secretary. Persons who were said to have requested the calling of the meeting as members of the association were Copeman, Walsh, Burke and a Mrs Crockett. The purpose of the meeting was stated to be "to discuss all issues relating to the treatment of Mrs Diane Walsh and the validity of the committee to make decisions on behalf of the members of the Association". Mr Butterfield of Messrs. Marsdens, solicitors, wrote to Copeman on 19 March stating the meeting would not be valid for various reasons. Copeman responded on 20 March 1999 saying, it seems for the first time, that the five persons who had been informed of the meeting" were not members of Jobnet, but members of the transition board elected by members of Western Sydney Community Transition Team Incorporated (the previous auspicing body) and requested to continue their duties until the inaugural annual general meeting of Jobnet (the auspicing body)." She said that the meeting would proceed but it did not. 17 In the meantime the "Board" had met on 23 February 1999 and decided to dismiss Walsh as Manager. Walsh was given notice of this by letter of 4 March, which stated her employment "with Western Sydney Jobnet Employment Services" was terminated immediately. Walsh has commenced proceedings for unfair dismissal, but the evidence does not make clear the name of the defendant. 18 Copeman then purposed to call a special general meeting of the incorporated association by notice as follows: NOTICE of SPECIAL GENERAL MEETING · Pursuant to Part 1-Preliminary, Section 1(b) and Part IV - General Meetings Section 25(2) of The Model Rules for the Incorporation of Associations a Special General Meeting is being called · Details Place: Shalvey High School Lumeah Street Shalvey Date: Tuesday, 11 May 1999 Time: 7.00 p.m. The Special Meeting is to discuss the issues raised in the requisitions received from: B Burke on 14 Feb 1999 D Walsh on 19 Feb 1999 D Walsh on 14 March 1999 B Crockett on 25 March 1999 A copy of each requisition is attached. It is further intended to invite the Board of Management of Western Sydney Jobnet Employment Service to Attend and to take place in discussion. ADGENDA [sic] 1. The Board of management of Jobnet to explain its dealings with D. Walsh since 6 January 1999 and show why they should not be asked to resign. 2. A transitional Board of Management be appointed to manage the affairs of Western Sydney Jobnet till the Annual General Meeting of Jobnet with direction from the membership of the association that the dealings of the resigning committee with regard to D. Walsh be reviewed. 3. A sub-committee be appointed to organise the inaugural Annual General Meeting of Jobnet (signed) A.G. Copeman Public Officer 12 April 1999 19 There was then further correspondence between Messrs. Marsdens, Solicitors and Messrs. Simpson Partners, both it seems purporting to act for Jobnet, discussing the validity or invalidity of this notice, with a claim by Marsdens that Mrs Crockett was not a member and asking for the Register of Members. By this time it had become apparent that Copeman was suggesting that Jobnet was an umbrella body for Western Sydney Jobnet just as the transition team had been and that somehow or other she, Burke and Walsh were the members of the committee of that body, that Mr Walsh was a member, and that a substantial number of new members had been accepted. 20 This extraordinary position is stated to have arisen as a result of a meeting of Jobnet, said to have been held on 19 May 1998 at the premises from which Jobnet had always operated. The persons said to have been present at that meeting were, Copeman, the public officer, Burke and Walsh as the chief executive officer. A copy of the minutes of that meeting is set out below: Jobnet Minutes of Meeting held at WSJES Tuesday 19 May 1998 at 12 noon Present : Alwyn Copeman - Public Officer, Betty Burke, Di Walsh - CEO Meeting opened at 12 noon Formation of an Agenda: Celebration of the confirmation of the Incorporation Design and print Membership forms Complete membership forms of Alwyn - PO, Betty, Trevor Walsh & Di Walsh - CEO Membership & Annual subscriptions Design of Membership application forms. Model Rules were consulted to ensure all legally required information has been included. This was a collaborative effort. Alwyn, Betty, Di & Trevor completed membership application forms. Alwyn accepted the nomination for Betty who then seconded the applications of Di & Trevor. *Alwyn nominated Betty, Di & Trevor to also become members of the first committee of the Jobnet Services Incorporated. Betty & Di accepted the nomination, Trevor declined. *Discussion ensued re subscriptions. Membership application fees be set at $1.00 and Annual subscriptions be set at $2.00 as suggested in The Model Rules. Moved: Betty Burke, Seconded Di Walsh. Meeting closed at 1.30 pm. Attending members went for a celebratory lunch. 21 In affidavit evidence, Copeman, Walsh and Trevor Walsh said that they were present at that meeting. This was not true. In oral evidence it was stated that Mr Walsh was not present but that he had been contacted by telephone. At the foot of the copy minutes which were annexed to the affidavit of Copeman there is her signature with the date 11 May 1999. She explained this by saying that was the date on which she had handed all the documents which she held for the company to her solicitors in accordance with an order of the court. As the court order was not made until after 11 May 1999 that was not true. Neither was it true that Walsh was present at the meeting, although the minutes clearly indicate that he was. The evidence that he was not there was given after a number of affidavits were filed and served of employees of Jobnet by whatever name who stated that he was not there on that date, and that there was no record of any meeting having been held on that date. Burke was not called and I consider it proper to infer her evidence would not have supported Copeman. In answer to a question which I asked Copeman about the membership fees paid for the members who signed up on that day she said that she put them in the bottom of her briefcase and had forgotten about them. She did not tell anyone on the committee with whom she was in regular contact of the meeting. She said that she did what she did in her capacity as Public Officer, and that after she was told of incorporation it was necessary to press ahead. All of this is nonsense. I have grave doubts about this meeting and whether it took place. 22 One reason why I have decided not to make a finding on the meeting is the seriousness of the matter and the fact I was not asked to do so by senior counsel for the plaintiffs. However, the main reason is that there is no basis to suggest that the meeting was a valid meeting of Jobnet and I will explain why. To do that it is necessary to set out the relevant sections of the Act as follows: 3. Definitions In this Act, except in so far as the context or subject-matter otherwise indicates or requires: "association" includes: (a) a society, club, institution or other body, 5. Special resolution (1) For the purposes of this Act, a resolution of an association is a special resolution if: (a) it is passed by a majority which comprises not less than three-quarters of such members of the association as, being entitled under the rules of the association so to do, vote in person or, where proxies are allowed, by proxy at a general meeting of which not less than 21 days' written notice specifying the intention to propose the resolution as a special resolution was given in accordance with those rules, or (b) where it is made to appear to the Commissioner that it is not possible or practicable for the resolution to be passed in the manner specified in paragraph (a)---the resolution is passed in a manner specified by the Commissioner. 7. Eligibility for incorporation (1) Subject to this Act, an association formed or carried on for any lawful object and consisting of not less than 5 members is eligible to be incorporated under this Act. (2) Notwithstanding subsection (1), an association is not eligible to be incorporated under this Act if the association: (a) is carried on for the object of trading or securing pecuniary gain for its members, (b) has a capital divided into shares or stock held by members of the association, (c) holds property in which the members of the association have a disposable interest, whether directly or in the form of shares or stock in the capital of the association, or otherwise, (d) is an industrial organisation within the meaning of the Industrial Relations Act 1996 that is a State organisation incorporated under that Act, (e) is registered or required or authorised to be registered under the Friendly Societies (NSW) Code, the Permanent Building Societies Act 1967 or the Credit Union Act 1969, or is a society specified in the Second Schedule to the Co-operation Act 1923, (f) is a company within the meaning of the Corporations Law, other than a company limited by guarantee within the meaning of that Law, or (g) is an association which is, or is included in a class of associations which is, prescribed for the purposes of this subsection. (3) The incorporation of an association under this Act is valid notwithstanding that the association was not eligible to be so incorporated. 8. Authority to apply for incorporation (1) An association which is eligible to be incorporated under this Act may, by special resolution: (a) authorise a person (not being a person under 18 years of age) who is resident in the State to incorporate the association under this Act, (b) approve a statement of objects of the proposed incorporated association, and (c) approve rules of the proposed incorporated association which comply with section 11 or approve the adoption of the Model Rules as the rules of the proposed incorporated association. (2) For the purpose of forming themselves into an incorporated association, 5 or more persons together may, in respect of a proposed association which would be eligible to be incorporated under this Act: (a) authorise a person (not being a person under 18 years of age) who is resident in the State to incorporate the proposed association under this Act, (b) approve a statement of objects of the proposed incorporated association, (c) approve rules of the proposed incorporated association which comply with section 11 or approve the adoption of the Model Rules as the rules of the proposed incorporated association, and (d) nominate 2 or more of their number to be the first members of the committee of the proposed incorporated association. (3) A person authorised under subsection (1) or (2) to incorporate an association or proposed association may make application to the Commissioner for the incorporation of the association or proposed association under this Act and may perform all such acts and do all such things as may be necessary for securing the incorporation of the association or proposed association under this Act, notwithstanding, in the case of an association referred to in subsection (1), anything to the contrary in the rules, if any, of the association. 15. Effect of incorporation (1) On and from the date specified as the date of incorporation in a certificate of incorporation of an association granted under this Act (other than under section 14 (5)), but subject to this Act and the rules of the incorporated association: (a) in the case of a certificate granted under section 10, the persons who were the members of the association immediately before that date or, where the certificate is granted in respect of a proposed association as referred to in section 8 (2), the persons who under that subsection authorised incorporation of the proposed association, (b) in the case of a certificate granted under section 47, the persons who were, immediately before that date, the members of the incorporated associations which were parties to the amalgamation to which the certificate relates, or (c) in the case of a certificate granted under section 48, the persons who, immediately before that date, were the members of the company or society in respect of which the application under that section was made, together with any other persons who from time to time become members of the incorporated association (as from the time they become members), are an incorporated association by the name set out in the certificate, subject to any change of name effected by the issue of a new certificate of incorporation under section 14 (5). (2) The incorporated association: (a) is capable forthwith of performing all the functions of the body corporate, (b) is capable of suing and being sued, (c) has perpetual succession and shall have a common seal, and (d) has power to acquire, hold and dispose of property. (3) Schedule 2 has effect in relation to an incorporated association. 21. Committee of incorporated association (1) Unless the rules of an incorporated association otherwise provide, the first members of the committee of the incorporated association are: (a) in the case of an association incorporated pursuant to the application of a person authorised under section 8 (1)---the members of the committee of the association immediately before the association was incorporated, (b) in the case of an association incorporated pursuant to the application of a person authorised under section 8 (2)---the persons nominated pursuant to that subsection to be the first members of the committee, (c) in the case of an incorporated association formed by the amalgamation of incorporated associations pursuant to section 47---the person specified in the application for that amalgamation under section 46 as nominated to be the first members of the committee of the amalgamated incorporated association, or (d) in the case of a company or society incorporated as an incorporated association pursuant to section 48---the persons who had the management of the society or who were directors of the company, as the case may be, immediately before the date of its incorporation under this Act. 22. Public officer (1) Unless the rules of the incorporated association otherwise provide, the first public officer of an incorporated association is: (a) in the case of an incorporated association incorporated pursuant to an application under section 9---the person who made the application, or (b) in the case of an incorporated association incorporated pursuant to an application under section 46 or 48---the person nominated in the application as the first public officer. (2) Unless the rules of the association otherwise provide, the public officer of an incorporated association may hold any other office of the association. 23 The extraordinary claim of Copeman is that as a result of the meeting which she said was held on 19 May 1998 she, Burke and Walsh became members of the incorporated association, although it is far from clear from those minutes that Copeman became a member. Any claim by Copeman must be upon the basis that the application for incorporation was made pursuant to s8(2) of the Act. It follows from this that the first members of the committee must be those nominated under s8(2)(d) of the Act. There were none. On the case of Copeman it is not suggested that anyone other than the members of the then management committee authorised the incorporation of a new association pursuant to s8(2) of the Act. On that basis the members of Western Sydney at the date the application was signed must have become the members. Those people were Copeman, Burke, McGowan, Bevinetto and Chandler. No notice of the meeting was given to McGowan Bevinetto or Chandler. In those circumstances the meeting claimed to have been held could not have been a valid meeting of members. It could not have been a valid meeting of the committee for the simple reason that it has not been suggested that the members of the management committee made any nomination pursuant to s8(2)(d) of the Act. It follows from this that if the meeting claimed to have been held on 19 May 1998 was held it was not a valid meeting of either the committee or the members of Jobnet. In other words it was a nullity. It follows again from that finding that any actions taken by that purported committee or by those members were invalid. Thus the claim that new members were accepted as a result of a membership drive towards the end of 1998 cannot be sustained. No meeting of the committee approved those persons for membership as required by rule 2(6) of the Model Rules. It is said their applications were processed by Copeman, Burke and Mr and Mrs Walsh at a meeting on 25 March 1999 at which as a matter of interest the minutes do not show Mr Walsh as having been present. A further purported committee meeting of Jobnet was held on 19 April 1999. Mr Walsh who says he is not a member of the committee, was present and in fact put forward a motion. 24 The purported special general meeting of Jobnet took place on 11 May. Those persons said to be members present in person or by proxy included Copeman, Burke, Walsh, Mr Walsh and nineteen others, one of whom was Joe-Ben Mattos, whom the membership book records as having become a member on 11 May 1999, but which was not possible as the purported committee meeting took place after the special meeting of members. The minutes record that as no member of the Board of Management was in attendance, the motion of which notice was given, was changed to a motion of no confidence in the current board of management and the board dismissed. This was carried unanimously. Then the "meeting" approved a transitional management committee to manage the affairs of Jobnet until the annual general meeting. 25 At the conclusion of the meeting of members there was a meeting of those persons whom members had elected as the transitional committee. Walsh was also present. This was a meeting of a committee appointed to replace the dismissed committee, yet it is clear it was intended to be a committee meeting of Jobnet which Copeman said the dismissed committee did not control. It was invalid as its validity depended upon the validity of the members meeting. 26 In summary I should state that the following matters make it clear in my view that what was intended was that, whether or not the management committee of Western Sydney under the umbrella of the transition team was strictly an association or a body as described by the Act, Western Sydney should become incorporated under the Act and continue as an incorporated association under the Act to carry on the work of Western Sydney. The resolution of the committee of 18 June 1997, together with the evidence of those not present that they supported the proposal, followed by the letter of the same date, followed by the application for incorporation and application for separate funding, and the minutes of the meeting of 3 November 1998 being an obvious continuation of the meetings of the old body, but now incorporated, make this perfectly clear, even if the requirements of s8(1) of the Act were not observed. It is supported by the bank account names being changed rather than new accounts opened. In the same way the fact that the members of Western Sydney at the time of incorporation were never informed of the meeting purported to be held on 19 May 1998, and that the members were never told that Copeman was in effect running her own umbrella organisation, in my view make the finding perfectly clear. Even if an association was formed under s8(2) of the Act, there was never an organisation formed which held the meeting purported to be held on 19 May 1998. It is apparent that whether formed under s8(1) or s8(2) the members would have been the same. I have not overlooked the Departmental correspondence about two names. That may have fitted the Departmental administration but it is of no other significance. As it has not been contested there was no incorporation, I should find for one. I find for incorporation under s8(1) of the Act. 27 I should add to end this sorry tale of confusion that while Copeman may have been actuated by what she considered to be proper motives, she was a quite unsatisfactory witness, who was unable to give any coherent account of events which would support her stand that Jobnet was just a body receiving funds. The unfortunate position is that her actions seem to have been activated by her support for Walsh after the members of what might be described as the rival group, purported to dismiss Walsh. I do not accept her evidence that she informed Western Sydney of the incorporation, and I accept the evidence of the witnesses for the plaintiff that she did not. I do not accept her evidence that her resignation was from the management committee of Western Sydney. It is perfectly clear that she resigned from what was described as the board of Jobnet. By that time it is clear members of the committee were referring to themselves as the board. 28 The difficult question is to determine the present position. The only way to do that is to deal with the statutory position at incorporation and then to see if any changes took place thereafter. If I am correct that Jobnet was formed pursuant to s8(1) of the Act then the members of the management committee of Western Sydney prior to incorporation, namely Copeman, Burke, Bevinetto, Chandler and McGowan, became members of the incorporated association. As far as I can ascertain from the evidence, none of them has resigned. Those same persons became the committee pursuant to s21(a). If as Copeman says Jobnet was incorporated under s8(2) of the Act the same persons must be taken to have authorised incorporation and therefore became and remain members and there does not appear to be a committee. 29 There can be no doubt that Copeman and Burke intended to resign from the committee. Thus as I consider it was a s8(1) incorporation the present members of the committee are Bevinetto, Chandler and McGowan, which no doubt will surprise Chandler and McGowan, but they can always resign. Blunden and Twemlow, although intended to be members of the committee, have never been duly elected to it. The same applies to Scrine and Moat. I can see no way to rectify matters to make them accord with the clear intention. Those persons whom it was purported to elect on 11 May 1999 are not committee members. Neither are any of the persons whose names appear in the membership book, other than Copeman and Burke, members of the incorporated association. I should add that they have all been given notice and some have claimed to be members. 30 It is now possible to determine the questions which arise on the amended summons by making the appropriate declarations. Those which I propose to make are as follows: 1. Declare that Silvano Bevinetto is a member of the committee of the first plaintiff and that Blunden and Twemlow are not members of the committee. 2. Declare that the first, fourth, fifth, sixth, eighth and ninth defendants are not members of the committee of the first plaintiff. 3. Declare that the first defendant and the second defendant are members of the plaintiff and that the eighth defendant is not a member of the first plaintiff. 4. Declare the purported meetings of the first plaintiff held on 19 May 1998 and 11 May 1999 were not valid meetings and are of no effect 5. Declare that the eighth defendant was an employee of the first plaintiff when she was dismissed on or about 4 March 1999. 6. Declare that the persons listed in paragraph 6 of the amended summons are not members of the plaintiff. 31 I will hear submissions on costs, but it must be borne in mind that it is the actions of Copeman and Walsh which brought about this litigation. I would also like to have submissions as to whether it is possible to make any orders to bring the affairs of the incorporated association into order. ********** Last Modified: 09/10/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.