Dispute Resolution Associates Pty Ltd v Selth

1. The interlocutory application filed on 23 May 2020 be dismissed.
2. The parties bear their own costs of and incidental to the interlocutory application filed on 23 May 2020.
3. There be liberty to apply. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLLIER J: 1 The interlocutory application before me was filed by the respondents on 23 May 2020. It arises following the recent death of Mr Philip Selth OAM, who I understand was, at material times, the Chief Executive Officer of the Australian Bar Association (as an unincorporated association) and subsequently ABA Australian Bar Association Limited (ABA Ltd) (following its incorporation on 20 May 2015). Relevantly, for the purposes of this litigation, Mr Selth was the first respondent to these proceedings in a representative capacity for the members of the Australian Bar Association. Determination of this interlocutory application is attended by some urgency because it is opposed by the applicants, whose own application comes before me on Thursday, 4 June 2020. 2 I note that Mr Minus was removed as an applicant to these proceedings by orders of the Court on 14 March 2019, however Mr Minus was granted leave to manage the second and third applicants pursuant to s 206G of the Corporations Act 2000 (Cth) on 5 September 2019. Mr Minus represented the second and third applicants at the hearing before me. 3 In their interlocutory application, the respondents sought the following orders: 1. Mr Philip Selth be removed as the representative for the First Respondent. 2. Mr Gregory John Tolhurst be substituted on the Court's record as the representative for the First Respondent. 3. Rule 9.11 of the Federal Court Rules 2011 (Rules) applies such that any thing done, or action taken, in the proceeding before the substitution has the same effect in relation to Mr Tolhurst as the representative for the members of the Australian Bar Association as it had in relation to Mr Selth as the representative for the members of the Australian Bar Association. 4. The requirement in rule 9.11(b) of the Rules for the First Respondent to file a notice of address for service be dispensed with. 5. Such further or other orders as the Court sees fit. 6. Costs are reserved. 4 At the hearing of this interlocutory application on 29 May 2020, Mr O'Meara SC for the respondents sought leave to amend the interlocutory application and the orders sought. Following the amendment, proposed orders 1 and 2 in the interlocutory application read: 1. Mr Philip Selth be removed as the representative for the First Respondent. 2. Mr Gregory John Tolhurst be substituted on the Court's record as the representative for the First Respondent. 5 In light of this amendment, I sought clarity from Mr O'Meara as to exactly how his clients sought the first respondent to be described in the proceedings. Mr O'Meara explained that the amendment to the proposed orders was to eliminate duplication of references to "representative", and that he sought orders that the first respondent be described in the proceedings henceforth as: Gregory John Tolhurst in a representative capacity for the members of the Australian Bar Association. 6 Although I consider the approach of the respondents in respect of this issue to be slightly confusing, I accept that this would be the effect of their proposed first and second orders and granted the leave sought by Mr O'Meara. 7 The first respondent incorporated in 2015, and it is unclear on the evidence before me whether an unincorporated association known as the "Australian Bar Association" actually continues to exist in any form. However, it is common ground between the parties that the cause of action of the first respondent continues, and that an appropriate person should be appointed as the representative of the first respondent following the death of Mr Selth. 8 In support of their interlocutory application, the respondents rely on the affidavit (filed on 23 May 2020) of Mr Tom Bridges, the solicitor on the record for the respondents. Relevantly Mr Bridges deposes: 4. Mr Philip Alan Selth is currently listed as the representative of the members of the Australian Bar Association (an unincorporated association), the First Respondent in the proceeding. 5. Mr Selth passed away on or around 3 May 2020. 6. Mr Gregory John Tolhurst is currently the Acting Chief Executive Officer of the Australian Bar Association. Mr Tolhurst was appointed in this role by the Australian Bar Association Council. 7. I am informed by Mr Tolhurst that, as the Acting Chief Executive Officer of the Australian Bar Association, he is the appropriate representative to be substituted as the representative for the First Respondent in this proceeding. 9 The respondents also rely on the decision of Justice Greenwood in Selth v Australasian Barrister Chambers Pty Ltd (No 3) [2017] FCA 649, in which his Honour considered an application for declarations and injunctions brought by the Australian Bar Association and ABA Ltd, referable to conduct of the applicants in respect of certain business names and trade marks. It is not controversial that the applicants in that case are the same as the respondents in the proceedings before me. Mr O'Meara particularly drew my attention to the following passages from Justice Greenwood's judgment: 1. These proceedings are concerned with two actions heard together. The first (NSD 975 of 2014) is a proceeding commenced by Mr Philip Selth in a representative capacity for the members of an unincorporated body (well-known amongst the relevant cohorts) described as The Australian Bar Association (the "ABA"). The inaugural general meeting of the ABA was held on 24 January 1963 at Theatre Royal, 29 Campbell Street, Hobart, Tasmania. It seems that the first draft of the Constitution for the ABA was prepared by the Hon Nigel Bowen QC and was settled at a meeting of representatives of the New South Wales Bar Association, the Victorian Bar Council and the Queensland Bar Association at the home of the Hon Nigel Bowen QC in Wahroonga in Sydney. … 3. A company limited by guarantee, ABA Australian Bar Association Limited ("ABA Ltd") joined the proceeding as second applicant. That company was incorporated on 20 May 2015 for the purpose of assuming the role and function of the ABA. The origin of the ABA and the relationship between the ABA and ABA Ltd is described later in these reasons. It should be noted, however, that all references in these reasons to the "ABA" should be understood as a reference to the unincorporated body up to the point in time at which ABA Ltd assumed the role and function of the unincorporated body and thereafter a reference to ABA Ltd unless expressly otherwise indicated. Where a particular reference to the legal character of the earlier body is necessary, I describe it as "ABAU". … 38. The principal evidence given on behalf of the applicants concerning the ABAU, its activities, the formation of ABA Ltd and the relationship between those bodies was given by Mr Philip Alan Selth ("Mr Selth"). Mr Selth is the Executive Director of the NSWBA and Chief Executive Officer ("CEO") of the ABA. He has held these positions since 10 November 1997 and 2 February 2015 respectively. Mr Selth has been involved with the affairs of the ABA since his appointment as Executive Director of the NSWBA in 1997. He has, from 1997, to the best of his recollection, attended every meeting of the AB Council and has been responsible for a significant part of the administration of the business of the ABA including its financial management. … 62. On 10 September 2014, Mr Livesey QC, Ms McLeod SC, Mr Boulten SC, Mr Stretton SC, Mr Quinlan SC, Mr McTaggart SC, Mr O'Sullivan QC, Mr Lawrence SC, Mr Greenwood SC, Mr Alstergren QC and Mr Davis QC, as assignors, entered into an Assignment Deed with Mr Selth, as assignee, by which they assigned to Mr Selth TM 252, TM 902 and Application 1560119. By cl 2, Mr Selth acknowledges that he holds the legal title as trustee for the members of the ABA consistent with his agreement with the ABA to so hold each trade mark and the trade mark application. 63. Mr Selth says that he became the registered owner of TM 252 and TM 902 by assignment pursuant to a resolution of the AB Council in September 2014. He says that he holds each trade mark registration on behalf of the members of the ABA "from time to time". He says he is also now the applicant for the AUSTBAR application and also Application No. 1650033 for the word mark AUST BAR. 64. As already mentioned, ABA Ltd was incorporated on 20 May 2015. In the President's Report (Ms McLeod SC's Report) of June 2015 to members, the President advised members of the incorporation of ABA Ltd and reported that the new entity would "assume the role and function of the ABA going forward": affidavit Mr Andrew Christopher ("Mr Christopher") sworn 27 July 2015, AJC3, Tab 3. The President also said this in that report: The ABA Council also proposes to assign all rights and interests of the ABA to ABA Limited. It has been a long-held plan of the ABA to incorporate and this is a positive development for the future activities and governance of the ABA. 10 Mr Minus opposed proposed order 2 of the respondents' interlocutory application. Mr Minus also submitted that proposed order 3 did not concern any thing not done or action not taken, that should have been. By written submissions Mr Minus contended, materially: Order 1 [sic] 3. The requirements to commence representative proceedings in the Federal Court are set out in section 33C of the Federal Court of Australia Act 1976 (FCA) which provides that there must be: a. seven or more persons have claims against the same person; and b. the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and c. the claims of all those persons give rise to a substantial common issue of law or fact; d. a proceeding may be commenced by one or more of those persons as representing some or all of them. 4. These proceedings were commenced solely by the First Respondent, an unincorporated association, as a representative action as follows: "Representative action" The Applicant is the current delegate of The Australian Bar Association (ABA) and brings this proceeding in a representative capacity on behalf of the members of ABA. The members of ABA consist of practicing barristers who are members from time to time of the Australian Capital Territory Bar Association, the Bar Association of Queensland, the New South Wales Bar Association, the Northern Territory Bar Association, the South Australian Bar Association, the Tasmanian Bar, The Victorian Bar Incorporated and the Western Australian Bar Association, and such other practising barristers who may from time to time be admitted to membership of the ABA by The Australian Bar Council which controls and manages the business and the affairs of the ABA." 5. The action was on behalf of a class of people being: a. Practising barristers who are, b. Members of a state bar association and, c. Admitted to membership of The Australian Bar Association by The Australian Bar Council. 6. Mr Gregory Tolhurst is not a member of that class, as he is not a barrister. 7. Mr Tolhurst cannot be a practising barrister as he is an employee of the NSW Bar Association. 8. Mr Tolhurst does not have standing to be a representative as s 33D(1) of the FCA states that: "A person referred to in paragraph 33C(1)(a) who has a sufficient interest to commence a proceeding on his or her own behalf against another person has a sufficient interest to commence a representative proceeding against that other person on behalf of other persons referred to in that paragraph." 9. Mr Philip Selth at one stage (although it was disputed) was the holder of the barristers collective trade mark application for the unincorporated association. 10. Mr Selth gave sworn testimony in the Federal Court that upon the incorporation of the ABA Australian Bar Association the unincorporated Australian Bar Association ceased to exist (transcript NSD975/2014 142.2.16 at 35 on page 96): MINUS: And to your mind there was only one ABA: it was either the ABA in existence at the time when this was drafted or the ABA that was in existence subsequent to the incorporation? SELTH---The ABA at the time. Yes. MINUS: So at the present time, is there - just the final question - is there an unincorporated body and an incorporated body in existence, or in your knowledge there is only one body, and which one is it? SELTH---Incorporated body. Order 3 11. Consent of the individual barristers was not required on the commencement of these proceedings as under s 33E of the FCA the Representative proceedings were conducted on an opt-out basis. 12. Although s 33J(1) of the FCA requires that the Court must fix a date before which a group member may opt out of a representative proceeding, at the time of the commencement of these proceedings, the Court did not fix a date as required. 13. Although s 33X(1)(a) of the FCA requires that notice must be given to group members, notice was not given to barristers that were group members advising them that: a. proceedings had commenced, b. they had a right to opt out. 14. Pursuant to s 33Y of the FCA the Court must, by order specify: (a) who is to give the notice; and (b) the way in which the notice is to be given. 11 As I noted earlier, all parties agreed that, notwithstanding that following the incorporation of ABA Ltd all rights and interests of the unincorporated association were assigned to that company, it is necessary for the first respondent to remain a party to the present proceedings. After hearing Mr O'Meara and Mr Minus, I asked them whether the key issue for my consideration was whether, in light of their submissions, the proceedings before me had actually been commenced pursuant to Pt IVA of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) (as Mr Minus contended) or pursuant to r 9.23 of the Federal Court Rules 2011 (Cth) (the Federal Court Rules) (as Mr O'Meara contended). Mr O'Meara and Mr Minus agreed that this was the key issue. If, however, Mr O'Meara's submissions are correct, the next question is whether a form of order in the terms proposed by the respondents in draft order 2 is appropriate. I now turn to these issues.