Faehrmann v Van Vucht

Background

1. It is not disputed that at the time the political party now known as The Greens NSW was formed (in or about October 1984 according to Mr Van Vucht) it was an unincorporated association. Nor is it disputed that, in about June 2001, at a meeting of the New South Wales State Delegates Council (SDC) of the party (the "supreme decision-making body of The Greens NSW" - see rule 7.13.1 of the respective constitutions - responsible for the coordination of activities at a state level and solely responsible for the administration of the registered political party - see rules 3.1 and 3.2), the issue of incorporation of the association was discussed. It was resolved "[t]hat the SDC adopt the rules presented by the Secretary and these rules be submitted for Incorporation before the deadline of 6th July and that the matter of the Committee of Management be discussed at the next SDC" (Ex 1 p 10).
2. On 6 July 2001, the then unincorporated association was incorporated under the now repealed Associations Incorporation Act 1984 (NSW) (the 1984 Act), under the name "The Greens N.S.W. Incorporated". It remains registered as an incorporated association, now under the provisions of the Associations Incorporation Act 2009 (NSW) (the 2009 Act). Pursuant to s 3 of Pt 2 of Sch 4 of that Act, a former association (being an association incorporated under the 1984 Act) is taken to have been registered under the 2009 Act. Pursuant to both the 1984 Act and the 2009 Act, an association's constitution binds the association and its members as if it were a contract between them under which they agree to observe their provisions.
3. A copy of the current constitution of the incorporated association (The Greens N.S.W. Incorporated), as registered with the NSW Department of Fair Trading, is exhibited to Mr Van Vucht's affidavit (Ex 1, Tab 3). That version is a constitution which was current as at around July 2002. It was referred to at the hearing as the 2002 Constitution (and will be so referred to in these reasons). No changes to that constitution have been registered, under either the 1984 Act or the 2009 Act since 9 July 2002 (see Mr Van Vucht's affidavit at [9], which is confirmed by the Acting State Manager of The Greens N.S.W. Incorporated (Ms Lesa de Leau) in her affidavit affirmed 22 March 2018).
4. According to Ms de Leau, the reason that no amendments to the constitution of the incorporated association have been registered since 9 July 2002 (notwithstanding that the form of the party's constitution has been the subject of various amendment resolutions over the years) is due to unfamiliarity with the provisions of the 1984 and 2009 Acts (see Ms de Leau's affidavit at [9]). Since Ms de Leau became the Interim Executive Officer on or about 18 May 2016 and its Acting State Manager on 1 January 2018, she is presumably not there attesting to any direct personal knowledge of any such unfamiliarity for the period prior to her assumption of those roles.
5. The Greens NSW political party is registered as a political party under the Parliamentary Electorates and Elections Act 1912 (NSW) and receives payments from the Election Campaigns Fund in respect of State elections pursuant to the Election Funding, Expenditure and Disclosures Act 1981 (NSW) (see Mr Van Vucht's affidavit at [12]). Mr Van Vucht has deposed that those payments, and other money received from sources such as donations and membership levies, are deposited to two bank accounts operated by "the Greens NSW", by which I understand him to be referring to the associated incorporation - i.e., The Greens N.S.W. Incorporated (see his affidavit at [13]).
6. Ms de Leau has deposed to the respective bank accounts to which: membership levies; administration funding received from the New South Wales Electoral Commission; and payments from the Election Campaigns Fund in respect of State elections, are variously deposited (see Ms de Leau's affidavit at [10]-[13]); those being separate bank accounts in the name of The Greens N.S.W. Incorporated and designated variously as an "Admin Account", "Donations & Membership Account" and a "State Election Account". Ms de Leau has deposed (at [14]) that: There are no separate bank accounts operated by an unincorporated political party known as "The Greens NSW" or an unincorporated political party that is registered for NSW State elections as "The Greens".
7. As adverted to above, from time to time since 2002 the SDC has approved resolutions for the amendment of the association's constitution. Exhibited to Ms Faehrmann's second affidavit in these proceedings (affirmed 20 March 2018) are copies of various versions of the "Constitution of The Greens NSW" as amended at dates from June 2002 through to June 2013, as downloaded from the internal website of The Greens NSW.
8. Ms Faehrmann has deposed (at [4]-[5] of her second affidavit) as to the material that can be accessed on the public website of The Greens NSW, which includes a copy of what is headed "Constitution Of The Greens NSW" (and contains the statement "Adopted: October 1993/As amended to: December 2017/Confirmed: February 2018"); a webpage headed "Thinking About Joining The Greens?", which has the sub-heading "How to Join or Renew"; and both electronic and paper membership application forms for those wishing to join the membership of The Greens NSW political party. Both the webpage and the respective application forms contain a link to the "Constitution of the Greens NSW" in the version exhibited to Ms Faehrmann's second affidavit. This form of the constitution was referred to at the hearing (and is so referred to in these reasons) as the 2018 Constitution. It differs in a number of respects (to which attention was drawn in the course of the hearing) from the document that is registered with the Department of Fair Trading. (Those differences include references in the 2018 Constitution to the NSW Young Greens - see rule 2.1 - and the inclusion, in the list of office-bearers and elsewhere of the role of a "Party Agent" as a permanent office bearer - see rule 8.2.)
9. Further, it appears that the version of the constitution on the public website may also differ from the version of the constitution held by the New South Wales Electoral Commission in respect of the political party. Mr Christopher Turner, a solicitor employed by the solicitors on the record for Ms Faehrmann, has deposed that he attended the New South Wales Electoral Commission on 16 March 2018 and there inspected an extract from the NSW Register of Political Parties for "the Greens NSW", observing that the constitution contained within the Register had on its front page the words "Adopted 16 October 1993" and "As amended to: 28 August 2016" (see his affidavit sworn 19 March 2017 at [6]). Thus it would appear that the version lodged with or held by the NSW Electoral Commission may be a version earlier than the 2018 Constitution.
10. Both the online and paper membership application forms (at Tab 4 and Tab 5 respectively of Exhibit B) make provision for the relevant applicant for membership to declare, inter alia, his or her agreement "to abide by the Charter and Constitution of the Australian Greens; the Constitution of the NSW Greens, and the Constitution or other charter of The Greens local group in [his or her] area". It does not appear to be disputed that if someone were today to apply for membership of the political party known as The Greens NSW and were to access the Constitution of the NSW Greens (by which he or she was agreeing to abide) on the public website, that person would not find the 2002 Constitution on the website but would instead find the 2018 Constitution. The latter document (as does the former) includes the statement that "[t]his is the constitution of the political party known as 'The Greens NSW'" (chapeau to rule 1).
11. As to the Australian Greens, to which reference is made in the declaration to be signed by applicants for membership of The Greens NSW, in evidence before me (exhibited to Ms Faehrmann's first affidavit) was a copy of the Charter and Constitution of the Australian Greens as at May 2017 (the Australian Greens Constitution), as well as a document evidencing the registration of the party known as "Australian Greens" on 24 January 1985 in accordance with Part XI of the Commonwealth Electoral Act 1918 (Cth). It is not disputed that The Australian Greens is an unincorporated association, being a "national confederation of Member Bodies" (see cl 2.1 of the Australian Greens Constitution). "The Greens NSW" is a "Member Body" of the Australian Greens (see cl 5.1 of the Australian Greens Constitution), as is The Australian Greens Victoria, from whom Ms Faehrmann's membership was transferred earlier this year (to which I refer below).
12. The Australian Greens Constitution does not make any reference to The Greens N.S.W. Incorporated nor does it make clear whether the reference to "The Greens NSW" as a member body in cl 5.1 is to the incorporated association as such.
13. At this point it is pertinent to set out various apparently uncontroversial facts as to the position of Ms Faehrmann.
14. Ms Faehrmann deposes (see her first affidavit at [6]) that she was a member of the political party The Greens NSW from approximately 19 March 2003 until 14 July 2015. From 2011 to 2013, Ms Faehrmann was a member of the NSW Legislative Council representing The Greens NSW (see [2] of her first affidavit). In July 2015, Ms Faehrmann moved to Victoria to take up a position as the chief of staff of the Leader of the Australian Greens, Mr Richard Di Natale, a position she held until 2 March 2018 (see [3] of her first affidavit). On 14 July 2015, Ms Faehrmann transferred her membership from The Greens NSW to The Australian Greens Victoria. As noted above, this is another Member Body of The Australian Greens, being a political party registered under Victorian legislation (see [9]-[10] of Ms Faehrmann's first affidavit).
15. In July 2017, Ms Faehrmann (as she had presumably done in the years before, since there is no suggestion that at any relevant time she was not a financial member of either The Greens NSW or the Australian Greens Victoria) renewed her membership of The Australian Greens Victoria and paid her membership fees for the year from 30 June 2017 to 1 July 2018 (see [14] of her first affidavit).
16. In or around 8 January 2018, Ms Faehrmann began the process of moving back from Victoria to New South Wales. She deposes that she moved back because her partner is starting a new job based in Sydney in a few months and because she intends to contest an upcoming preselection for an impending casual vacancy for "the Greens NSW" in the New South Wales Legislative Council (see [4] of her first affidavit).
17. On 5 February 2018, Ms Faehrmann sent an email to Mr Ben Cronly, the Victorian Greens Engagement Manager, requesting that he arrange the transfer of her membership to NSW. Mr Cronly sent an email on that date to The Greens NSW advising that Ms Faehrmann wanted to transfer "their" membership and that he had "marked their Vic membership" as "moved interstate" (Tab 6, Ex 1). About an hour later, Mr Seamus Lee (referred to by Ms Faehrmann as the Online Systems Coordinator at The Greens NSW but whose email description on the email I refer to below is "Co-membership Coordinator"), advised Mr Cronly that he had now created a membership for Ms Faehrmann in New South Wales (Tab 6, Ex 1).
18. Ms Faehrmann was subsequently informed by Mr Lee, by email on 13 February 2018, following a query by her as to the status of her membership, that her membership was being treated as "provisional" (which would in effect mean that she was a provisional member for 3 months from 5 February 2018 and ineligible to nominate for preselection in that time) (Tab 7, Ex A). Mr Lee advised that: The process we have used is that we have treated the membership transfer request as sufficient for meeting Section 2.5 of the Greens NSW constitution about a membership application. As such we then follow the steps laid out in Section 2.6.1 which indicate that for the first 3 months of the application is provisional. It is also worth noting that 2.6.6 prevents the state body from moving someone beyond the status of provisional for a period of 3 months. It should also be noted that Section 8.2 of the Australian Greens constitution only requires the Greens NSW to credit the membership fee but still allows the Greens NSW to conduct its own process on the acceptance of membership.
19. In that email, Mr Lee extracted a copy of what he said were the relevant sections of "the Greens NSW" and Australian Greens Constitutions. It is clear from a comparison of the 2002 and 2018 Constitutions that Mr Lee was there setting out rule 2.6 of the latter instrument. I will set out the relevant provisions in due course.
20. Ms Faehrmann took issue with this. On 21 February 2018, solicitors acting for Ms Faehrmann wrote to Ms Debbie Gibson, Convenor of The Greens NSW, enclosing a joint memorandum of advice from members of the Victorian Bar, asserting that the view taken by the Membership Co-ordinator and Membership Officer (as to Ms Faehrmann's membership status) was incorrect and asking that Ms Faehrmann's position be reconsidered. In essence, the position contended for by Ms Faehrmann's solicitors (as set out in Counsels' advice enclosed with that letter) was that, in the absence of express provision in the constitution of The Greens NSW that transferring members have provisional status, rule 2.6.1 regarding acceptance of membership on a provisional basis is inapplicable to members transferring from a Member Body in another state who are not required to pay a membership fee; alternatively, that the three month period for provisional status of a transferring interstate member might be said to extend from the member's first payment of the interstate fee (which in Ms Faehrmann's case had by then long since lapsed). Thus, in their joint opinion enclosed in the 21 February letter, Counsel concluded at [19] that: 19. Given that a. provisional membership status is triggered by payment of membership fee to the NSW Membership Officer; b. CAG [i.e., the Charter and Constitution of the Australian Greens] [8.2] dictates that no new membership fee is payable when a member transfers from interstate; and c. CAG prevails over CGNSW [i.e., Constitution of The Greens NSW ] to the extent of any inconsistency; there is no provision in CGNSW that currently operates to impose provisional status on a member of the Australian Greens transferring from an interstate Member Body.
21. It was asserted that Ms Faehrmann had full membership status in The Greens NSW from the date that she transferred from the Australian Greens Victoria and that she "has all the rights accorded to members, including the right to stand for pre-selection to the NSW Legislative Council".
22. The issue was apparently then referred to a meeting of the SDC on 24-25 February 2018 at Petersham Town Hall, NSW. On 25 February 2018, a number of resolutions were put to the SDC on this issue, none of which was carried. Relevantly, those resolutions included that the SDC determine that The Greens NSW Constitution allows for a financial member transferring from an interstate Greens party to "bypass" the provisional period; the second was (to the contrary) to the effect that the SDC determine that The Greens NSW Constitution does not allow for a financial member transferring from an interstate Greens party to "bypass" the provisional period.
23. By letter dated 1 March 2018, Mr Van Vucht advised Ms Faehrmann's solicitor that "[t]he Delegates Council did not decide to change the current interpretation of The Greens NSW Constitution with respect to interstate transfers" and that "[t]here was no affirmative decision to grant full membership to an individual transferring from an interstate Greens party". Mr Van Vucht expressed his optimism that Ms Faehrmann would accept the will of the SDC and said that he, along with other office-bearers of the Committee of Management, would be "significantly disappointed if this matter proceeded to be disputed through the courts". (Presumably, he and they may be taken now to be suitably disappointed given that the dispute has indeed ended up in the Court.)
24. The response from Ms Faehrmann's solicitor, by letter dated 2 March 2018, was to point out that there had been no affirmative decision either way based on the results of the proposal and amendment that had been put to the SDC on 25 February 2018; to state that the local member group had welcomed Ms Faehrmann by consensus as a full member immediately and unconditionally (see Exhibit C); and to advise that Ms Faehrmann would be seeking urgent declaratory relief as to the status of her membership.
25. An offer of mediation was then apparently made by the defendants on 5 March 2018 but not accepted (see the reference thereto in Exhibit 3, to which I refer below).
26. These proceedings were commenced by the filing of the initial summons on 6 March 2018.
27. Solicitors acting for The Greens NSW then, by letter dated 14 March 2018, identified the reasons that it was considered that Ms Faehrmann's correct status was that she was a provisional member. Also, by another letter of the same date (Exhibit 3), reference was made to rule 15.7 of the 2018 Constitution (which provides, relevantly, that "serious disputes" between members and The Greens NSW that cannot be resolved "will be referred to mediation"). The letter advised that the defendants "intend to comply with this provision and the intention behind it, being to settle internal disputes quickly and amicably, and with as little cost and adverse publicity for Greens NSW as is possible", encouraging Ms Faehrmann to do likewise. The letter also informed Ms Faehrmann's solicitors that, although it would no longer be practical to proceed strictly as contemplated by rule 15.7(2) (which provided for an exchange of issues at least 7 days before a mediation session was to commence), the defendants were willing to engage in a mediation of the current dispute with a particular named mediator on 15 March 2018 (who was available and willing to mediate the dispute) or alternatively to take part in a settlement conference with the parties and their legal representatives on that date.
28. The response for Ms Faehrmann to the first of the 14 March 2018 letters was, in effect, to point to the difference in the two constitutions and to assert that membership of the political party (The Greens NSW) and The Greens N.S.W. Incorporated are not the same and that the relief sought in the proceeding was with respect to the unincorporated registered political party; but also that there was no objection to substituting The Greens N.S.W. Incorporated as the second defendant. The response to the second letter, with regard to the request to engage a mediator, was to express the view that, as the only issue in dispute was a matter of construction, a mediator was "unlikely to add much in progressing the matter to a settlement, other than increasing the costs to all parties" but to communicate that Ms Faehrmann was willing to take part in a settlement conference (see Exhibit D). I was informed at the hearing that a settlement conference was indeed held but that it did not result in a resolution of the dispute.

The opposing positions

1. There was no issue between the parties as to the justiciability of the present dispute - although the defendants argue that as a matter of discretion the Court should refuse to grant the remedies sought, particularly where both the 2002 and 2018 Constitutions contain mechanisms for internal resolution of disputes.
2. Ms Faehrmann identifies the issue in dispute as being whether The Greens NSW political party is an unincorporated voluntary association or an incorporated association with separate legal personality governed by the provisions of the 2009 Act. Her position, as I understand it, is that there are two "entities" or bodies: one is the unincorporated association comprised of members who have agreed to be bound by a version of the 2018 Constitution dating from sometime after it diverged from the constitution of the registered incorporated association (i.e., The Greens NSW); and the other is the incorporated association that came into existence as a separate legal person separate from the body of persons on incorporation (The Greens N.S.W. Incorporated). (In oral submissions, Counsel for Ms Faehrmann did not definitively commit to whether the unincorporated association that he says is now in existence is one that has continued in existence from before the time of incorporation or is one that came into existence at some later point in time.)
3. For the defendants, what is contended is that there is only one association - the incorporated association (i.e. The Greens N.S.W. Incorporated) - which came into existence on incorporation and in which all the assets of the previous unincorporated association were vested as a matter of law pursuant to the 1984 Act on incorporation; which is now taken to have been registered under the 2009 Act.
4. What is left largely unexplained, however, by the defendants is how it is said that persons applying to become members of The Greens NSW, and in so doing agreeing to abide by, say, the 2018 Constitution, can be said to have thereby become members of the incorporated entity and thus bound, as a matter of statute, by a different constitution to that to which they have agreed to abide. Such an applicant would presumably only have been able to access the registered (2002) Constitution by making an application to the Department of Fair Trading and hence the applicant may well have no knowledge at all of the constitution by which the defendants say he or she is now bound as a matter of law. The status of the 2018 Constitution on that hypothesis is unclear to say the least. To describe the current state of affairs as a mess in that regard (to adopt Mr Van Vucht's description of the website - see T 14.9) is somewhat of an understatement. It is not much of an answer to say that the differences between the 2002 and 2018 Constitutions are not substantial - they at least include an expansion of the association's office-bearers.
5. The complications do not end there. If Ms Faehrmann is correct, and persons joining The Greens NSW are joining an unincorporated association bound by the 2018 Constitution then a difficulty arises if (as the defendants argue) the registered political party is a different (and incorporated) entity: who then are the members of the registered political party and how is it that membership funds paid to join what on Ms Faehrmann's case is an unincorporated association are treated as funds of the incorporated association. The suggestion by the defendants that "The Greens NSW" is akin to a trading name (which in one sense may be a reasonable analogy) does not really address the difficulty that persons are being invited (on the website of The Greens NSW) to join a political party by reference to (and agreeing to be bound by) a constitution which (on the defendants' case) is different from that by which, as members of the incorporated association, they would be bound, as if it were a contract, having regard to the provisions of the relevant legislation.
6. On one view the disconformity may be able to be resolved going forward (i.e., for future members) if the amendments to the registered (2002) constitution were to be formally registered with the Department of Fair Trading. However, that leaves open to debate the position of members who joined the political party between 2002 and whenever the registered constitution is updated.
7. Ultimately, the issue as to the nature of the political party known as The Greens NSW is one that (while no doubt of academic interest and perhaps having practical import for the internal workings of the political party) does not in my opinion need here to be determined. That is because the real issue, as I see it, is as to the proper interpretation of rules 2.5 and 2.6 of whichever constitution is the applicable constitution, since those rules are relevantly the same (though not identical). For the reasons that follow, I am of the opinion that those rules do not deal with the position of a member transferring from an interstate Member Body of the Australian Greens and, hence, on the acceptance by the relevant officer of The Greens NSW of the request for Ms Faehrmann's membership to be transferred from The Australian Greens Victoria to the New South Wales association, Ms Faehrmann became a member of The Greens NSW and there is no basis for Ms Faehrmann's current membership to be treated as provisional.

Relief sought

1. By her amended summons filed 23 March 2018, the final relief claimed by Ms Faehrmann (apart from costs) is as follows: Declarations 3. A declaration that the Plaintiff is a current financial member of the registered political party known as The Greens NSW; and 4. A declaration that: a. the Plaintiff is not a provisional member of the registered political party known as The Greens NSW; and b. the Plaintiff's membership of the registered political party known as The Greens NSW is not limited by the qualifications of provisional membership stipulated in clause 2.6.1 of the constitution of The Greens NSW. Injunction 5. An order directing the First Defendant, being the person responsible for maintaining the membership list of The Greens NSW, to remove any recording on the membership list of the Plaintiff's provisional status, and record the Plaintiff as a financial member of The Greens NSW.

Relevant provisions of the respective constitutions

Constitution of The Australian Greens

1. Clause 2.1 of the Australian Greens Constitution relevantly states that: … The composition of each Member Body's constituent groups is defined by the constitution of that Member Body. To facilitate smooth operations between the national and Member Bodies, all the state constitutions must remain compatible with this Constitution.
2. Clause 2.3 provides that: Subject to clause 10.2, where a Member Body or constituent group's constitution is incompatible with this Constitution, to the extent of their inconsistency, this Constitution will prevail.
3. Clause 10.2 provides: Within The Greens, Member Bodies have the autonomy to make decisions relating to their own affairs according to their own state constitution provided that: a) these decisions remain compatible with the Charter and the agreed policy frameworks of The Greens; b) they take into consideration national and state campaign priorities and election strategies.
4. It is cl 8 that deals with membership. Clause 8.2, relevantly, provides that: Members who move from one state to another will be accepted as members of the Member Body in the new state, subject to the constitution of the new Member Body. The membership fee already paid to the original Member Body should be considered valid for the new state party. [my emphasis]

2018 Constitution of The Greens NSW

1. Rule 1.1 of the 2018 Constitution provides that "[w]ith the exception of the Charter and Constitution of the Australian Greens, all party documents are subordinate to this constitution". Individuals can be a member of The Greens NSW by being a member of a local group, which is called a "member-group", or being a "non-group individual member", called a "member (non-group)" (rules 2.1, 14). (Ms Faehrmann is a "member (non-group)".)
2. Rules 2.5 and 2.6 deal with membership and provisional membership. They provide, relevantly, as follows: 2.5 Members of member-groups and members (non-group) will be accepted as members of 'The Greens', as registered under the NSW and Commonwealth Electoral Acts when their application in the required form and their levy have been received by the membership officer of The Greens NSW (the 'Membership Officer') or the Membership Officer's nominated deputy. [my emphasis] 2.6 [introduced in 2002] 2.6.1 Members of The Greens NSW (as determined by 2.5) are considered provisional members for the first three months following the receipt of their fees by the Membership Officer or the Membership Officer's nominated deputy. Provisional members do not have the rights accorded to members. 2.6.2 During the provisional period, membership applications are considered current, pending acceptance [sic: of], or a decision to reject, the provisional member's application by the member-group receiving the application. … 2.6.6. Provisional members cannot be accepted prior to the end of the three month period, to allow time for objections to be raised by member-group members or any other interested group or individual in regard to the provisional member's application. (The words I have italicised above in reproducing rule 2.6.1 do not appear in the corresponding rule of the 2002 Constitution. There are also various other differences between the respective constitutions but it is not necessary here to set them out.)
3. Rules 14.2 and 14.3 (inconsistently with the language of rule 2.6) refer to "probationary members". Members (non-group) will be considered probationary ("as per [rules 2.6.1-2.6.6]") for the first three months after receipt of their membership fees (rule 14.2). Rule 14.3 provides that the applications of probationary members (non-group) can only be rejected by a decision of the Committee of Management, which is to be communicated in writing to the Membership Officer.
4. Rule 2.11 deals with the circumstances in which a member is to be deemed "unfinancial". A member whose membership is due for renewal and whose membership levy has not been received by the Membership Officer on or before 30 September (i.e., within three months from the end of the financial year) is to be deemed "unfinancial". An unfinancial member "may renew at any time within the first 6 months of becoming unfinancial" (i.e., if the membership levies are received on or before 31 March of the following year). Such renewals will be without loss of continuity of membership and financial status is to be backdated to the commencement of the respective year. If the member renews after 31 March, the renewal "shall be treated as a new membership application" and the provisions of section 2.6 apply.
5. Pausing here, the defendants do not argue that Ms Faehrmann has not paid her membership fee for the 2017-2018 membership year and so do not argue that she is "unfinancial" in that sense. (Hence the declaratory or injunctive relief sought on that point is unnecessary.) However, the defendants do not accept that all rights afforded to members of the political party apply to Ms Faehrmann.
6. Rule 7.9 provides that: The Delegates Council [SDC] will interpret this constitution should a dispute arise over the meaning of any provision. The Delegates Council may pass resolutions that clarify arrangements contained within this constitution.
7. Rule 7.6 provides that decision-making of the SDC shall be by way of consensus or, if consensus cannot be reached, then a ratio of three or more votes in favour to or against is required to change the status quo.
8. Rule 15.7 (in similar terms to the corresponding rule in the 2002 Constitution) provides as follows: 15.7. Resolution of internal disputes 15.7.1 Serious disputes between member-groups or members (in their capacity as members) and The Greens NSW or disputes between member-groups or members (in their capacity as members) that cannot be resolved will be referred to mediation. The mediator will be appointed as agreed between the parties. If the parties are unable to agree then the mediator will be appointed by the Office Bearers of the Australian Greens. 15.7.2. At least 7 days before a mediation session is to commence, the parties are to exchange statements of the issues that are in dispute between them and supply copies to the mediator.

Proper interpretation of rules 2.5/2.6 of the respective constitutions

Plaintiff's submissions

1. Ms Faehrmann accepts that if the 2018 Constitution makes provision in relation to transferring interstate members that is contrary to cl 8.2 of the Australian Greens Constitution, then those contrary provisions will apply. However, Ms Faehrmann submits that there is nothing in the 2018 Constitution that deals with members transferring from interstate Member Bodies. In the absence of any such provision, it is argued that cl 8.2 of the Australian Greens Constitution applies, and that members transferring from interstate Member Bodies are required to "be accepted as members" of The Greens NSW and the provisions in rule 2.6 of the 2018 Constitution relating to provisional members do not apply.
2. Ms Faehrmann argues that rule 2.6.1 is engaged only when a member becomes a member of The Greens NSW in accordance with rule 2.5. She argues that rule 2.5 deals with the situation where a person becomes a new member by completing an "application in the required form" and his/her membership levy has been received by the Membership Officer (or nominated deputy). It is submitted that the evidence discloses that transferring interstate members are not required to complete an application form, nor are they required to pay an additional membership levy. Reliance is placed on what happened in the present case in this regard - where no membership levy was required to be paid by Ms Faehrmann (something seemingly accepted, albeit with some initial resistance, by Mr Van Vucht in cross-examination at T 26.30, he maintaining that there is value other than a membership levy in that process) and where the interstate transfer occurred by the informal process of an email request to transfer (which Mr Van Vucht more readily accepted to be common) (see T 25.28). Mr Van Vucht said that there was no "formal" application that someone in Ms Faehrmann's position needed to complete to transfer her membership (see T 25.32). Certainly, in Ms Faehrmann's case it appears that the transfer of membership occurred as an administrative process. She was not required to submit an online or paper application and it is accepted that no additional fee by way of membership levy was payable.
3. Ms Faehrmann emphasises that rule 2.6.1 states that members are considered provisional "for the first three months following the receipt of their fees by the Membership Officer or the Membership Officer's nominated deputy". In the case of an interstate transfer, where no membership fee is payable to the Membership Officer or his/her nominated deputy, it is said that the three month period of provisional membership therefore makes no sense.
4. Thus, Ms Faehrmann argues that both the text and context of rule 2.6 show that it is incapable of applying to members transferring from Member Bodies in another State.
5. It is further argued that such a construction is consistent with the purpose expressed in cl 2.1, and the express stipulation in cl 8.2, of the Australian Greens Constitution: namely that there be "smooth operations" between The Australian Greens and the respective Member Bodies in relation to the transfer of membership from one Member Body to another. It is submitted that, if members transferring from one State to another were provisional members, then their applications for membership could be rejected within the provisional 3 month period (pursuant to rules 2.6 and 14.3 of the 2018 Constitution), and thus one state Member Body could exclude "longstanding Greens members" transferring from interstate (contrary to the language of cl 8.2 and the intent of cl 2.1 that interstate members of the Greens political party would "be accepted as members" of the new state body).
6. If, contrary to her submissions, rule 2.6 were to have some application to transferring interstate members, then it is argued by Ms Faehrmann that the three month provisional period has passed in her case since she paid her membership levies for the year ending 30 June 2018 on 7 July 2017 (and thus that she could not have been a provisional member after 7 October 2017).

Defendants' submissions

1. As to the governing constitution relevant to this dispute, the defendants argue that the political party known as The Greens NSW is governed by the 2002 Constitution, being the constitution of The Greens N.S.W. Incorporated that is registered with the Department of Fair Trading (see [6] above). The defendants note that it is an object of the 2009 Act that associations that are currently unincorporated become bodies corporate when they are registered, pointing to Schedule 2. They argue that it follows from this that, upon the incorporation of The Greens N.S.W. Incorporated, the former unincorporated voluntary association ceased to have any assets, rights or liabilities; and that references to the former body in documents became references to The Greens N.S.W. Incorporated. They argue that, once the assets, rights and liabilities of an unincorporated association have been transferred to the newly incorporated association, then the former body ceases to exist.
2. It is submitted that there is no evidence that any persons purported to set up a new unincorporated voluntary association called "The Greens NSW". The defendants argue that the "misunderstanding" by the secretariat of The Greens N.S.W. Incorporated as to the formalities required under the 2009 Act in relation to use of name and registration of changes to the association's constitution cannot alter the effect of the legislation.
3. It is noted that: the SDC members turned their minds to the incorporation of the unincorporated body and resolved to incorporate; subsequent unregistered versions of the constitution refer to the body being subject to the provisions of the "Associations Incorporation Act", including specifically acknowledging that the actions of the SDC are subject to the Associations Incorporation Act; a particular objective of The Greens N.S.W. Incorporated, as articulated in rule 1.4 of the 2002 Constitution is to stand candidates for election in the NSW and Commonwealth Parliaments (and it would not make sense that a parallel unincorporated entity would co-exist pursuing the same objective); and funding received from the NSW Electoral Commission in relation to the Greens NSW political party is paid to the Greens N.S.W. Incorporated.
4. The defendants rely on principles of contractual interpretation, by way of analogy, on the basis is that the Constitution operates as a contract between members, arguing that the object is to discover and give effect to the obligations that reasonable persons in the position of the parties would objectively have intended the document's language to create (referring to what was said by Santow JA in Union Club v Battenberg (2006) 66 NSWLR 1; [2006] NSWCA 72 at [102] and by Gleeson CJ in International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151; [2008] HCA 3).
5. As to the interplay between the 2002 Constitution and the Australian Greens Constitution, the defendants emphasise that the focus of cl 10.2 of the latter is to preserve autonomy for Member Bodies in relation to their internal affairs (also pointing to cll 2.1 and 2.3 of the Australian Greens Constitution, and the fact that the core pillars of the Greens' philosophy (both on a state and national level) include the promotion by "grassroots democracy").
6. The defendants note that cl 8.4 of the Australian Greens Constitution reserves the rights of Member Bodies to make rules and decisions about matters including acceptance of members and states that all such decisions "will be at the discretion of the Member Body concerned and not the national organisation".
7. As to cl 8.2, it is argued that this requires, first, that a person coming from interstate be given membership of the Greens in the new state once the requirements of the new Member Body constitution have been satisfied and, second, that a Member Body cannot require such a transferring member to pay a further fee. It is accepted that if the Member Body in the transferee state were to require a new fee in exchange for giving a transferee membership, this would be incompatible with cl 8.2 and would be invalid. However, it is argued that it is legitimate (pursuant to a combination of cll 8.2, 8.4 and 2.3 of the Australian Greens Constitution) for the transferee state to include in its constitution other restrictions that bear on the membership of the transferee. Thus, it is said that cl 8.2 is capable of co-existence with rules 2.5 and 2.6 of the 2002 Constitution.
8. The defendants' submission is that rule 2.5 sets out the only means by which a member can be "accepted" into membership of The Greens N.S.W. Incorporated. They argue that an "application in the required form", in the present case, means the transfer request from the interstate body that was submitted at Ms Faehrmann's request.
9. The defendants also argue that it is relevant to consider the context in which the regime in which rule 2.6 was intended by the 2002 drafters of the amendment to operate. In that regard they rely on a Membership Directions Paper dated January 2002 that was prepared for discussion at the February SDC meeting at which the amendment to rule 2.6 which introduced the provisions relating to provisional membership was resolved to be made.
10. The Membership Directions Paper in evidence (Exhibit 1, Tab 4) (bearing the notation "[Revision 2 - received 19 Jan 2002]") was stated to be a paper "meant as a discussion starter, together with a substantive proposal for discussion and possible decision at the February 2002 SDC" (page 5). It was apparently prepared by the then Membership Officer of The Greens NSW, Mr Jon Edwards.
11. It is submitted that one of the aims of rule 2.6 was to prevent "branch stacking". The Membership Directions Paper refers, under the heading "Issues" and sub-heading "Local Group Autonomy", to "Grassroots Democracy" as one of the four principles of The Greens and states that, whilst the meaning of that principle is open to debate, the author of the paper thinks that the constitution (seemingly a reference to the constitution of the political party known as The Greens NSW) is clear "in its intention to afford local groups as much autonomy as possible whilst maintaining the coherence of the organisation as a state-wide singular political party". The paper goes on to state (at p 3): This local group autonomy has been seen to be undermined by the practice of processing applications received at the state office (via email or post) and so joining people to local groups without the group having the opportunity to decide on whether to admit or reject the application. This is clearly outside of the rules as defined in the constitution. This situation can become problematic for two main reasons. Firstly the crucial element of local interaction between the local membership sec/local group and the prospective members is lost. The ability for local groups to closely monitor the changes in their membership on as close and personal a scale as possible is vital not only for the proper exercise of Grassroots Democracy (and the devolution of authority to manage membership that implies) but also because it promotes a level of engagement that inevitably leads to stronger ties between members and better organisation. Secondly, it has been further noted that there is an increasing likelihood that mischievous elements will seek to join The Greens to further their own ends, creating potentially serious problems of the local group, and The Greens in general. The practice of joining members up without their having been processed by the local group first makes these vexatious membership applications harder to detect. This is a serious issue that requires careful consideration.
12. The defendants argue that concerns expressed in the above passage apply equally to interstate transferees as they do to new members. They say that what is key is the autonomy of the local group and that it cannot be assumed that, simply because a member was accepted in a local group in one state, that person should automatically be accepted by a different group in another state. They submit that there is also potential, without the safeguards in rule 2.6, for interstate members to "pre-selection shop" (either as a nominee or for voting purposes), without building a sufficiently strong and permanent connection with the relevant local group.
13. The defendants accept that, in this case, Ms Faehrmann's local member group has consented to her being a full member, but they say that this is not the point. They submit that The Greens N.S.W. Incorporated must have in place policies that apply evenly across all members and that it cannot discriminate against those applying for membership with The Greens N.S.W. Incorporated. They say that the fact Ms Faehrmann is familiar, and acceptable, to her local group does not dispense with the prohibition in rule 2.6.6 in her individual case.
14. Pausing there, it should be noted that the Membership Directions Paper goes on to state, under the next sub-heading "Development and Strength", that the concerns related to local group autonomy "are of course not the whole story" and that a system which left the administration of membership entirely in the hands of local groups could be seen to have negative impacts on the ability of The Greens NSW to raise funds, grow in human resources and present a positive image of popularity and strength; stating that the obvious problem is that close management of membership by local groups, "history suggests", could lead to inefficiencies that would result in the loss of potential members. Mr Edwards' recommendation was the introduction of a probationary period of membership, which it was said (at p 5) "seeks then to afford maximum control over membership by the local groups whilst maintaining the state level entry points which facilitate a good growth rate" and "goes some way to prevent stacking by requiring at least 3 months of probation before a member is eligible to vote". The subsequent minute of the February 2002 SDC relating to amendments to constitution (Exhibit 1, Tab 5) simply noted the membership report and the motion that the constitution be amended to add the new rule 2.6, recording the vote taken on the motion and that it was passed.
15. As to the alternative submission that Ms Faehrmann's provisional membership expired on October 2017, the defendants say that the effect of rule 8.2 of the Australian Greens Constitution is that the membership fee paid by Ms Faehrmann to the Australian Greens Victoria serves only to satisfy the requirement in rule 2.5 that the membership levy is paid to The Greens N.S.W. Incorporated before provisional membership is conferred on the applicant. They say that provisional membership runs from the date membership is conveyed, not earlier, and that, if provisional membership could expire before the application for membership was approved, that would usurp the purpose of rule 2.6 of the 2002 Constitution altogether.
16. On that point, I note that Ms Faehrmann argues that there are at least two significant difficulties with reliance on the Membership Directions Paper to inform the construction of the current constitution.
17. First, it is submitted by Ms Faehrmann that evidence of background or surrounding circumstances has a limited role in the interpretation of the constitution of a body corporate and that, even though (on her submissions) The Greens NSW is not a body corporate, the justification for excluding extrinsic materials for the purpose of interpretation is here the same, if not stronger. Ms Faehrmann argues that members who join a voluntary unincorporated association will not know of the drafting history of the constitution and are entitled to proceed on the basis of the document itself (particularly in the present case where the Membership Directions Paper concerns events that occurred 16 years ago).
18. Second, it is submitted that, even if regard is had to the Membership Directions Paper, it is silent on the issue of the rights of transferring interstate members and hence does not assist in resolving the question of construction in issue in the present case.

Determination

1. Addressing first the last point raised in submissions (as to the import of the Membership Directions Paper), I consider that it is difficult to place weight on the views expressed by the then Membership Officer when construing the relevant provisions of the respective constitution(s). Apart from anything else, it is clear that the Membership Officer was expressing the opinion that local autonomy was not the "whole story" and that the issue being addressed had arisen against the practice of applications being processed at state office via email or post without the local group having the opportunity to decide whether to admit or reject the application. There is nothing in the Membership Directions Paper that refers to members transferring their membership from one state member body to another. Nor is there any record of the discussion at the SDC that led to the amendment being adopted and nothing other than the notation of the membership report precedes the minute recording the amendment motion being put and adopted.
2. Therefore, extrinsic evidence of this kind (even if it were to be admissible in the construction of the respective constitution(s), which I doubt) is of no assistance in my opinion. (I note in this context the authorities relating to the use of extrinsic material in construing public documents - see those referred to in Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103 at [154]-[163] - but there remains an issue as to the extent to which the constitution(s) of The Greens NSW or The Greens N.S.W. Incorporated may be seen as public documents.)
3. Furthermore, although the constitution operates (pursuant to s 26(1) of the 2009 Act) as a contract between members of the incorporated association (or is the document by which members of the unincorporated association agree to be bound, as the case may be), its proper construction should be determined by reference to its contents as a whole (not by reference to what someone - the then Membership Officer - may have intended at a meeting held to discuss proposed amendments to the constitution).
4. Turning back to the question posed as the principal issue for determination by Ms Faehrmann (the nature of the political party), I make the following introductory observations.

Registration of constitution under the 2009 Act

1. An application for incorporation under the 2009 Act must be accompanied by the association's proposed constitution (or a statement that the association proposes to be bound by the model constitution without modification) (s 6(3)(d)). (The 1984 Act contained the same requirement.)
2. After incorporation, an incorporated association may apply to the Commissioner for Fair Trading to register a change in its constitution (section 10(1) of the 2009 Act). Before making the application, the incorporated association must pass a special resolution approving the alteration (s 10(2)).
3. Under s 14(1), an alteration of the constitution takes effect only once it is registered (see G E Dal Pont, in Law of Associations (LexisNexis Butterworths, 2018), [6.75]). There are also certain matters which the constitution must at all times address (see Schedule 1) and the Secretary must reject an amendment if the constitution, as amended, would omit one of those matters (s 10(4)).
4. In Goodwin v VVMC Club Australia (NSW Chapter) (2008) 72 NSWLR 224 at [9]; [2008] NSWSC 154, White J, as his Honour then was, observed (in relation to the former equivalent to s 14(1) of the 2009 Act, that being s 20(3) of the 1984 Act): An alteration to the rules [of an incorporated association], once approved by a special resolution, takes effect when the prescribed notice of the resolution has been lodged with the Director-General…
5. In Islamic Council of NSW v The Australian Federation of Islamic Councils [2000] NSWSC 115, Hodgson CJ in Eq, as his Honour then was, found that purported alterations to the constitution of the incorporated association had been ineffectual by reason of non-compliance with the special resolution requirement (at [105]).
6. In the present case, as already noted, an association with the name "The Greens N.S.W. Incorporated" was incorporated on 6 July 2001: a certificate of incorporation bearing that date and issued by the Commissioner is at Tab 2 of Exhibit 1. A true copy of the constitution and all amendments which are currently held by the Department of Fair Trading are also in evidence and it appears that the most recent alteration to the constitution was lodged with the Department on 6 July 2002.
7. Counsel for Ms Faehrmann submitted that "over the last 16 years there has been a very substantial divergence between what is registered with Fair Trading … and what in fact party members have done at meeting over 16 years' successive amendments" (T 29.45-29.48). That proposition is not in dispute. Counsel for the defendants agreed that the constitution of "The Greens N.S.W. Incorporated" is the document that is filed with the Department of Fair Trading (T 52.33-52.36), that is, the 2002 constitution.
8. Thus it is not disputed that the amendments purportedly made, since 2002, to the constitution of The Greens N.S.W. Incorporated, without having not been registered, do not form part of the constitution of The Greens N.S.W. Incorporated.

The entity registered under NSW electoral legislation

1. The evidence shows that a "party" with the name "The Greens" is registered in the Register of Parties which is maintained by the New South Wales Electoral Commissioner (Exhibit A, Tab 1). I have referred above to the inspection by Mr Turner of the constitution which was contained in the Register as at 16 March 2018. The circumstances in which that constitution was provided to the Commissioner are detailed in the affidavit of Ms Lesa de Leau affirmed 22 March 2018 at [8].
2. The dispute here is as follows. The defendant argues that the incorporated association (of which the current constitution is the 2002 Constitution, as registered with the Department of Fair Trading) "is the only entity that forms the Greens NSW political party" (written submissions of the defendant at [11]). The plaintiff argues that there is an unincorporated association which in fact represents "The Greens NSW" political party (T 31.39; written submissions of the plaintiff at [11], [13]).
3. Part 4A of the Parliamentary Electorates and Elections Act provides for the registration of parties ("party" being defined in s 3(1); nothing presently turns on the definition, as it expressly refers to and makes no distinction between unincorporated or incorporated bodies). To be eligible for registration a party must be "established on the basis of a written constitution (however expressed) that sets out the platform or objectives of the party" (s 66A(1)). An application for registration of a party under the Parliamentary Electorates and Elections Act must be accompanied by a copy of the constitution of the party (s 66D(2)(f)) and may be rejected by the Electoral Commissioner if it is not so accompanied. The Register of Parties is to be kept in such form and manner as the Electoral Commissioner thinks fit (s 66C(2)).
4. The registered officer of a registered party must, by 30 June each year, furnish to the Electoral Commissioner a return as to its continued eligibility for registration under Part 4A in the form prescribed by the regulations (s 66HA(1)). That prescribed form (Form 20 in Schedule 1 to the Parliamentary Electorates and Elections Regulation 2008 (NSW)) provides for a declaration to be made under the Oaths Act 1900 (NSW) by the registered officer to the following effect: 1. All the members of the party on whom the party relies to continue to be eligible for registration under Part 4A of the Parliamentary Electorates and Elections Act 1912 are still members of the party. 2. Annexure "A", pages 1 to [blank], shows members of the party who are members on whom it relies to continue to be eligible for registration (in place of former members of the party shown in the annexure). The remainder of the members on whom the party relies are still members of the party. 3. Annexure "B", pages 1 to [blank], shows the changes that have occurred in the names or addresses of members of the party on whom it relies to continue to be eligible for registration.
5. The Parliamentary Electorates and Elections Act also provides that an application may be made to the Electoral Commissioner to amend the particulars with respect to a registered party (s 66H(1)). That amendment must (subject to some exceptions) be advertised to the public in accordance with s 66DA. The Electoral Commissioner may cancel the registration of a party if satisfied on reasonable grounds that it is no longer an eligible party (s 66I(2)(b)).
6. It is sufficient to note for the present that a failure to register the current version of a party's constitution may have no effect on the registration of the party under the Parliamentary Electorates and Elections Act.

The entity registered under Commonwealth electoral legislation

1. The evidence also indicates that a political party with the name "The Greens NSW" is registered under Part XI of the Commonwealth Electoral Act (Exhibit A, Tab 1).
2. To be eligible for registration under the Commonwealth Electoral Act, a political party must be "established on the basis of a written constitution (however described) that sets out the aims of the party" (s 123(1)(b)). An application for registration must be accompanied by a copy of the constitution of the party (s 126(2)(f)). The Electoral Commission may, under s 138A(1), review the register of political parties to determine whether one or more of the parties included in the register is an "eligible political party".
3. Again, it is sufficient for present purposes to note that the Commonwealth Electoral Act does not provide for the consequences of failing to register an updated version of a constitution (though any changes that have in fact occurred may become relevant if the Electoral Commission, by its delegate, conducts a review of a registration under s 138A(1)).

Dual entities?

1. Reliance for the proposition that there can at the same time be two associations (one incorporated and one unincorporated) was placed by Ms Faehrmann on the decision of Hamilton J in Burston v Oldfield [2003] NSWSC 88.
2. There, his Honour considered a dispute relating to the incorporation of the One Nation NSW Political Party Inc. The question there raised (different in terms from that here raised) was as to whether a pre-existing unincorporated association had been incorporated as the incorporated association or whether there was a new association, which had been formed and then incorporated for a separate purpose. His Honour concluded that the latter was the true situation and noted that "[i]ndeed, it became so clear, by the end of the evidence, that the parties were agreed that that was the situation" ([10]). His Honour said (at [11]): It is quite possible for there to be two bodies of the same name (except for the word "Inc") existent at the same time. The existence of a certificate of incorporation of an incorporated association is conclusive as to its existence, even if the body that was incorporated was not qualified for incorporation under the Incorporation Act: The Queen v The Judges of the Federal Court of Australia; Ex Parte The Western Australian National Football League (Incorporated) (1979) 143 CLR 190. But the certificate is not conclusive as to the identity of the association which was incorporated and it may well be that a separate association was created and incorporated with the same name leaving the original unincorporated association concurrently existing: see Mune v Centro Argentino of Victoria Inc [1996] 2 VR 82; cf Kibby v Santiniketan Park Association Inc [1998] VSC 148; Jobnet Employment Services Inc v Copeman (1999) 32 ACSR 554. It is clear to me on the evidence that that is what occurred in this case. The Incorporated Association was intended to be created for certain financial purposes. The persons who became the members of the new association were the members of the existing State Executive, or a large number of them, rather than all the people who were by then members of the Political Party. Despite its incorporation, it appears that the Incorporated Association has never been used for the intended purposes. After its incorporation it was the Political Party that was registered under the Elections Act. The sole bank account, which on the evidence represents the assets of the Political Party, has remained its property. In any event, all parties are now agreed that the factual situation is as set out in this and the preceding paragraph.
3. For the defendants, it was here submitted that: … upon the incorporation of The Greens N.S.W. Inc., the former unincorporated voluntary association ceased to have any assets, rights or liabilities … It follows … that once the assets, rights and liabilities of an unincorporated association have been transferred to the newly incorporated association, then the former body ceases to exist. Reliance for that submission was placed on the effect of Schedule 2 of the 2009 Act. That schedule provides for the transfer of assets, rights and obligations from a "former body" to a new incorporated association (see also s 8(2)).
4. The clause of Schedule 2 upon which the defendants principally rely here is cl 2, under which (amongst other things) the assets of the former unincorporated body vest in the new incorporated association and the rights and liabilities of the former unincorporated body become rights and liabilities of the new incorporated association. Schedule 2 has existed in substantially the same form since the introduction, in 1984, of a statutory regime for the incorporation of associations in New South Wales (see the 1984 Act) and there are provisions with the same function in various other jurisdictions (see Dal Pont, [5.15], fn 87).
5. In oral submissions, Counsel for the defendants advanced the argument that Schedule 2, cl 2 effects an "automatic vesting". The defendants then argue from that foundation that the unincorporated association must have no further existence from the date of incorporation of the new association. That submission, however, appears inconsistent with other decisions of this Court, all of which were decided when Schedule 2 was in relevantly identical terms.
6. In Ray v Eastern Suburbs Motorcycle Club Incorporated [2012] NSWSC 1151, Ball J (at [43]-[48]) decided that the unincorporated association had ceased to exist at the time the Club decided to incorporate; but clearly treated this as a question of intention of the incorporators, the answer to which would be indicated by: the contemporaneous documents; the name used (whether it was the same or different to the unincorporated association); and whether the members of the unincorporated and the incorporation association corresponded. (I also note particularly his Honour's comment at [48], reserving his view about circumstances where "an association was incorporated but the incorporated association did not cease to exist immediately, as in this case".)
7. Similarly, Windeyer J in Jobnet v Copeman [1999] NSWSC 848 at [26] made findings that the incorporators of a new incorporated association intended that the unincorporated association should cease to exist: [T]he 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…
8. I also note the approach of the Full Court of Queensland in Re Travis; Mant v Attorney-General (Qld) [1911] St R Qd 216 at 232-233 (considering the question whether an incorporated association had come to replace a former association or body).
9. In Re McAuliffe Dec'd [1944] St R Qd 167 (cited in K L Fletcher, The Law Relating to Non-Profit Associations in Australia and New Zealand (Law Book Co, 1986), 212-213), Macrossan ACJ of the Supreme Court of Queensland said (at 178-179): The defendant Leeper further contended that the unincorporated body known as the T.B. Sailors' and Soldiers' Association of Queensland could not take any benefit under the will, because by some means which I am unable to understand it ceased to exist when its board of management was incorporated. By what process this happened, or what became of this association, was not explained. … [W]hy the incorporation of the officers of the association should bring about the destruction of the institution of which they were officers is beyond my comprehension.
10. Thus, it is difficult to accept that Schedule 2 of the 2009 Act necessarily has the effect in all cases that the former pre-incorporation body ceases to exist on incorporation.

"Association"

1. It has been said that the term "unincorporated non-profit association" is "a general catch-all phrase to describe a residual miscellany of groups not otherwise recognised or categorised by the law. It has no precise legal definition" (Fletcher, The Law Relating to Non-Profit Associations in Australia and New Zealand, 23).
2. In Conservative and Unionist Central Office v Burrell (Inspector of Taxes) [1980] 3 All ER 42, which concerned whether what was described as the "Conservative party organisation" was an unincorporated association for the purpose of an assessment of the liability of the Central Office to corporation tax, Vinelott J (whose decision was affirmed by the Court of Appeal: [1982] 2 All ER 1) accepted that the following were "essential" characteristics of an unincorporated association: (i) [T]here must be members of the association; (ii) there must be a contract binding the members inter se; … (vi) there must as a matter of history have been a moment in time when a number of person combined or banded together to form the association.
3. Vinelott J rejected three other characteristics (the presence of constitutional arrangements for meetings of members; the ability of members to leave or join the association at will; and the continuation in existence of the association notwithstanding changes in membership) as non-essential.
4. That the above categorisation was essential to the decision is apparent from 59-60, where Vinelott J concluded that there was no foundation for inferring that an unincorporated association existed on the facts, in circumstances where: there had never been any agreement about rules; the "members" incurred no liabilities or obligations to one another; and they had no rights amongst themselves. The organisation was "a political movement with many parts" the links between which were "functional and not constitutional" (at 60); it was, therefore, not an "unincorporated association" within the meaning of the legislation.
5. In the present case, given the question arising as to the identification of the "correct" association, it is important to note that the consensual compact between members which generally characterises an association may not be accompanied by the intention to create legal relations in the sense that that concept is used in contract law (Dal Pont, [7.14]). Palmer J has said (Carter v NSW Netball Association [2004] NSWSC 737 at [86], cited in Dal Pont at [7.14]): The phrase "consensual compact" … [has been used] to describe the status of rules or procedures which, construed in their context and with regard to their purpose, can be seen as adopted by the members of a non-profit organisation in order to express their shared ideals, purposes or beliefs rather than in order to create contractually binding rights and duties enforceable in a court of law.
6. In the present case there is nothing to suggest that there was any intention at the time of incorporation of The Greens N.S.W. Incorporated to create a separate (and co-existing) incorporated association from the then existing unincorporated association. Indeed the 2002 Constitution (with its references to the Associations Incorporation Act) points to the contrary. It can safely be concluded in my opinion that, on incorporation as The Greens N.S.W. Incorporated in 2002, the former unincorporated association known as The Greens NSW ceased to exist. What happened thereafter is more problematic.
7. Given that the party registered as "The Greens" with the NSW Electoral Commission is the association bound by the 2002 Constitution, it can be accepted that the registered political party is the incorporated association. I have referred above to the evidence as to the registration details in respect of the registered political party (The Greens NSW) both in New South Wales and under the Commonwealth legislation. On the evidence of Ms de Leau, payments received by reference to the association's status as a registered political party are made to the accounts of the incorporated association. And the constitution registered with the Department of Fair Trading (the 2002 Constitution) is consistent with the relevant entity registered as the political party as being the incorporated association (see, for example the rules dealing with the common seal of The Greens NSW - rule 23 - and the requirement to maintain insurance pursuant to the 1984 Act - rule 26).
8. Common sense points to the conclusion that persons applying to become members of what they understand to be a registered political party are not intending to join some other (unincorporated) association of the same name but not the registered party itself.
9. However, as noted above, the copy of the constitution registered with the Department of Fair Trading is not the current version of the constitution of The Greens NSW as appearing on the public website of the association (or as lodged with the NSW Electoral Commission). It is not necessarily an answer to the dilemma thus posed simply to point to an oversight, or a misunderstanding of legislative requirements, on the part of the secretariat of The Greens N.S.W. Incorporated over the lengthy period from 2002 to date. That is because it is arguable that the consequence of what might charitably be put as the "misalignment" of the registered 2002 Constitution and the versions of that constitution (as subsequently amended but not registered with the Department of Fair Trading) may well be that persons applying to join The Greens NSW since the amendment of the 2002 Constitution should be taken as having agreed to join together for a common purpose on the terms of the unregistered constitution (thus bringing into existence an unincorporated association separate from the incorporated entity).
10. It is difficult to avoid the conclusion that persons applying to join The Greens NSW and expressly agreeing to be bound by the amended version(s) of the 2002 Constitution (i.e., the 2018 Constitution) are not agreeing to enter into an association bound by a superseded version of that constitution. The amended constitution (currently in the form of the 2018 Constitution) certainly appears to be premised on the assumption that the association is an incorporated entity. However, if a new unincorporated association of members bound by the current (i.e., not the superseded) version of the constitution (the 2018 Constitution) has in fact come into existence then that raises a number of problems - not the least being the then disconformity between the entity apparently registered as the political party under Commonwealth and state legislation (which, having regard to the 2002 Constitution, seems to be the incorporated association) and the unincorporated association which, on this hypothesis, persons have joined over the period since unregistered amendments to the 2002 Constitution have been made.
11. In oral submissions, Counsel for Ms Faehrmann appeared to accept that the issue as to the nature of the political body is not determinative of the issue as to Ms Faehrmann's membership because whichever version of the Constitution is binding on members of the registered political party (be that the 2002 Constitution or the 2018 Constitution), the membership issue turns on the construction of rules 2.5/2.6, which are relevantly identical in both documents.
12. I agree. In my opinion, it is not necessary for present purposes to determine that issue (for the reason noted above that rules 2.5/2.6 of the respective constitutions are relevantly alike) and I consider it preferable not to do so since there has been only limited time (given the urgency of the application and other matters) to explore all the potential ramifications of the competing arguments. Thus, while I consider that there is a not unreasonable argument that the "oversights" of (presumably successive) members of The Greens NSW secretariat have led to the situation where there is now an unincorporated association in existence parallel to the incorporated association, I make no concluded finding to that effect.

Construction of rules 2.5/2.6

1. Turning now to the correct construction of the rules governing the membership of The Greens NSW, I have concluded that rules 2.5/2.6 do not apply to transferring members from interstate Member Bodies and hence there is no basis for Ms Faehrmann's membership of The Greens NSW to be treated as provisional.
2. I do not consider that the words "application in the required form", in their ordinary or natural meaning, encompass an email request for transfer. What I consider to be contemplated by rule 2.5 is the process for application for new membership - which, not surprisingly, involves the submission of an application "in the required form" (be it online or on paper, as the present options appear to be) and the payment of a membership levy. The words "following the receipt of their fees" in rule 2.6.1 are not apt to relate to the position of a transferring member from whom no fees are required on transfer of membership.
3. As noted above, I have real doubt about the weight that could be placed on the Membership Directors Paper (even if that be relevant to the construction of the claims in question, which I think it is not). Apart from the matters to which I have already referred in this context, it is by no means clear to me that the perceived mischief of branch stacking is raised by the prospect of transferring interstate members (once accepted by the state Member Body to which they have requested a transfer) not being subject to a provisional membership period. (And the Membership Directions Paper itself noted that concern as to local autonomy is not the "whole story" on this membership issue.)
4. Insofar as the defendants' concern is to preserve grassroots democracy or local autonomy (and leaving aside that in this case they accept there is no such concern at the local group level in relation to the transfer of Ms Faehrmann's membership), I have no doubt it would be open to the SDC to make amendments to the relevant constitution to deal expressly with transferring members (imposing, if it were thought appropriate, a period of provisional membership on the acceptance of the transfer) but in my opinion the SDC has not yet done so.
5. Accordingly, I have concluded that Ms Faehrmann's membership of The Greens NSW is not qualified by any "provisional" status. That brings me to the discretionary considerations raised in relation to the application for declaratory and injunctive relief.

Discretionary considerations

1. Ms Faehrmann acknowledges that the remedies she seeks are discretionary. It is submitted that both her private interests and the public interest support the grant of declaratory and injunctive relief; and that there are no countervailing discretionary considerations which would cause the Court to decline relief.
2. As to the former, it is submitted that the interpretation adopted by the defendants of the relevant rules would deprive Ms Faehrmann of an opportunity for consideration as a candidate for the New South Wales Legislative Council. As to the latter, it is submitted that there is a strong public interest in ensuring that a registered political party is administered in accordance with its rules.
3. The defendants on the other hand argue that relief should be declined because the matters in dispute between the parties ought never to have been litigated in this Court. Reliance is placed by the defendants in this regard on rule 7.9 of the 2002 Constitution (which provides that any dispute in relation to the meaning of any provision of the constitution is to be interpreted by SDC) and rule 15.7(1) (which provides that '"serious disputes" be referred to mediation). The defendant submits that if Ms Faehrmann was dissatisfied with the outcome of the SDC meeting (as it is safe to infer she was) the appropriate method for resolution of the matter was for there to be a mediation between Ms Faehrmann and The Greens N.S.W. Incorporated.
4. As to rule 7.9, Ms Faehrmann argues that it has no application in the present case because the matter has been considered by the SDC and it was unable to resolve how the constitution should be interpreted in relation to the question of provisional membership of transferring members. Ms Faehrmann argues that the SDC is deadlocked on this issue and that, in the absence of a clear resolution from the SDC, rule 7.9 does not operate as a bar to the grant of declaratory relief. Indeed, it is submitted by Ms Faehrmann that these circumstances reinforce the desirability of the Court resolving the issue by granting appropriate declaratory and injunctive relief. Second, it is submitted that rule 7.9 does not in its terms purport to bind all members of the party to a particular interpretation adopted by the SDC and does not purport to prevent members from seeking declarations from the Court to clarify the position. Third, it is submitted that even if rule 7.9 did permit the SDC to adopt an interpretation of the Constitution binding on all members, the power would necessarily be limited to interpretation not amendment and that an interpretation adopted by the SDC must be one that is reasonably open on the language of the provisions. Ms Faehrmann argues that the provisions of the Constitution are not reasonably capable of bearing a meaning that rule 2.6 applies to transferring interstate members.
5. As to rule 15.7, providing for referral of serious disputes to mediation, it is not suggested by Ms Faehrmann that this is not a "serious dispute". Rather, it is submitted that the urgency of the situation and the fact that the parties have already attempted unsuccessfully to resolve the dispute at a settlement conference mean that the Court should not now refuse to exercise its discretion to grant the relief sought.

Determination

1. On the discretionary considerations, I accept that Ms Faehrmann has a legitimate interest in seeking the opportunity to nominate for preselection and that there is a public interest in determining the issue as to the construction of the rules applicable to transferring members under the relevant constitution of The Greens NSW as a registered political party.
2. As to the first of the issues raised by the defendants on the question of discretion, there was ultimately no determination by the SDC as to the proper interpretation of the constitution. The SDC neither resolved to determine in favour of the construction put forward by Ms Faehrmann nor resolved to determine in favour of the construction put forward by the Membership Officer - the latter construction being said to be the practice that has been adopted in the past. Leaving aside the question whether members of The Greens NSW would be bound by an incorrect interpretation of the constitution were that to be adopted by the SDC, the fact is that the dispute as to the interpretation of the constitution on the issue in question has not been able to be determined by resolution of the SDC. I am not persuaded that the Court should refrain from making such a determination where the SDC has itself been unable to reach consensus on that issue.
3. As to the second of those matters, it is obvious in my opinion that it would have been preferable for the disputants to have been able to resolve their dispute consensually by way of mediation rather than to incur the expense (and to invite the prospect of public comment) that follows inexorably from the invocation of the Court's processes. However, a highly relevant factor in this regard is the timing issue. The parties attempted to resolve their dispute privately. For a mediation to be convened, with the limited time available before preselection nominations are to close, would have placed Ms Faehrmann at risk of a consensual agreement not being reached, leaving her unable to obtain a binding determination of the dispute by the Court in the remaining time available. Furthermore, the issue is one as to the proper construction of the relevant rules of the constitution. Absent capitulation by one or other of the disputing parties, it is difficult to see what scope there would have been for a mediated resolution of the dispute in the present case. Accordingly, I consider that this is not a factor that points against the grant of relief.
4. I am thus not persuaded that relief should be refused on discretionary grounds. That said, by her amended summons, the plaintiff has sought both injunctive and declaratory relief (see above at [39] the terms of relief sought). I do not see the need for the making of the declarations here sought.
5. It is well-established that it is not appropriate to grant declaratory relief if "the Court's declaration will produce no foreseeable consequences for the parties" (Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582 per Mason CJ, Dawson, Toohey and Gaudron JJ; [1992] HCA 10). The High Court has also said that a declaration ought not be made in relation to "circumstances that [have] not occurred and might never happen": University of New South Wales v Moorhouse (1975) 133 CLR 1 at 10 per Gibbs J (as his Honour then was); [1975] HCA 26. In Moorhouse, the plaintiff had alleged that the defendant had authorised copyright infringement within the meaning of section 36(1) of the Copyright Act 1968 (Cth). The New South Wales Supreme Court made a declaration that this was so, yet the Court had not yet made findings to that effect, and the declaration "rested purely on the basis of hypothesis" (at 10, 24). The High Court held that that declaration ought not to have been made. Moorhouse was not therefore a case of inutility, but a case where the facts underlying the declaration had not been fully proved, such that it was inappropriate to make a declaration.
6. The present is probably a case closer to Gardner v Dairy Industry Authority of New South Wales (1977) 18 ALR 55. There, a declaration was considered inappropriate because the relevant arrangements were no longer in place, and therefore, as Mason J (as his Honour then was) and Aickin J (at 18 ALR 69 and 71 respectively) each remarked, a declaration would "produce no foreseeable consequences for the parties". I regard the present as a case of the same kind, due to the relief that I am proposing to grant in the form of a mandatory injunction.
7. I should note that, in considering whether the declaration sought has utility, I am not constrained by the availability or otherwise of consequential relief flowing from the declaration. In Sutherland Shire Council v Leyendekkers [1970] 1 NSWR 356, Street J, as his Honour then was, said (at 363): The courts were once encumbered by the proposition that there was a need for a declaration to be associated with at least an availability of the grant of consequential or substantive relief. But experience has shown that the availability of declaratory relief will in many cases obviate circumstances arising in which substantive relief would be necessary. Considerations of availability or grant of consequential relief have been absorbed as but one ingredient in the determination of the utility attaching to making a declaration.
8. I also note that in Wilcox v Kogarah Golf Club Ltd (Supreme Court (NSW), 23 November 1995, unrep), a dispute which, like the present, concerned the internal affairs of an organisation, Young J, as his Honour then was, spoke of "practical utility" (at 7) and refused to make the declaration sought.
9. I do not see any utility in the making of declarations in circumstances where I have set out in these reasons what I consider to be the proper construction of the relevant rules of whichever is the applicable constitution and my conclusion that Ms Faehrmann's membership on her transfer to The Greens NSW from The Australian Greens Victoria was not subject to any probationary period and is not "provisional". That being the only basis on which it has been suggested that Ms Faehrmann is not eligible to nominate for preselection, it would follow that the secretariat of The Greens NSW should treat her membership as not being so qualified and hence the rights accorded to members in relation to the preselection process should be accorded to her. There is also, as noted earlier, no suggestion that Ms Faehrmann is not currently a financial member. Hence there appears no basis for any nomination for preselection by Ms Faehrmann to be treated as invalid by reference to rules 2.5/2.6. No declaration to that effect is necessary in my opinion.
10. While there is no suggestion that the first defendant would not act in accordance with these reasons to amend (as necessary) the membership details of Ms Faehrmann (so as to record that she is not a "provisional" member but is a member with all the rights accorded to members under the constitution of the second defendant), I am conscious of the limited time between now and the close of nominations for preselection and hence, to avoid further dispute, I propose to grant the injunction sought by Ms Faehrmann insofar as it relates to her membership not being recorded as "provisional". The injunction as sought also refers to it being accorded that she is a financial member. That not being disputed by the defendants I see no reason not to grant an injunction in the terms sought by Ms Faehrmann.
11. Costs should in my opinion follow the event.

Orders

1. For the above reasons, I order as follows: 1. Order the first defendant, being the person responsible for maintaining the membership list of the political party known as The Greens NSW, to remove any recording of the plaintiff on the membership list as a "provisional" member and to record the plaintiff as a financial member of the political party known as The Greens NSW. 2. Order the defendants to pay the costs of the plaintiff.

Amendments 04 April 2018 - [137] 'ineligible' to 'eligible' 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. Decision last updated: 04 April 2018