Medical Defence Association of Western Australia Inc v Australian Securities & Investments Commission

(a) that the requirement to produce evidence is not mandatory and the failure to do so does not preclude ASIC from registering the transfer requested by the applicant; and, in the alternative, (b) that the absence of any provision for authorisation in the Western Australian legislation means that, implicitly, the transfer is unconditionally authorised.

3 In its application to this Court the applicant seeks: 'A declaration that the Respondent has the power to register a body corporate that makes an application under Part 5B.1 of the Corporations Act 2001 which meets the requirements of section 601BC save that it does not contain any evidence of the kind referred to in subsections 601BC(8)(d) and (e).'

background 4 The applicant, a medical defence organisation that trades as 'MDA National', was incorporated in 1925 pursuant to the Associations Incorporation Act 1987 (WA) ('Associations Act') or its predecessor legislation. Its members are medical practitioners. The applicant is not an authorised insurer under the Insurance Act 1973 (Cth) however it wholly owns MDA National Insurance Pty Limited ("MDANI"), which is an authorised insurer. As part of the Commonwealth Government's 2002 Medical Indemnity Reform Package the applicant was initially obliged to register as a company under the Corporations Act. This requirement has since been lifted. Nevertheless the applicant considers that registering as a company would be in its best interests for the reasons explained in the affidavit of its chief executive officer, Mr Peter Forbes, made on 5 August 2004. 5 As yet, the applicant has not made an application to ASIC for transfer of its registration. In the light of the views expressed by ASIC as to the incompetence of the proposed application the applicant has taken the view that it is not appropriate to incur the considerable expenditure ($40,000 according to Mr Forbes) that would be required to call a meeting of members seeking their approval of the proposal. It is for this reason that the applicant seeks declaratory relief as set out in [3] above. 6 The constitution or 'Rules' of the applicant provide the applicant with wide powers to do all things that are incidental or conducive to the attainment of its objects which, broadly speaking, are to promote the interests of medical practitioners and medical students and to promote 'honourable and contemporary practice by medical practitioners'. Rule 35 provides that the Rules may be altered by special resolution 'at a general meeting of Members called for that purpose.' A special resolution must be passed by 75 per cent of the members present in person or by proxy at a general meeting of which due notice has been given of the meeting and the proposed resolution. 7 While the legal and commercial reasons which prompt the present application do not bear on its resolution, some understanding of those reasons enables the application to be considered in context. It appears that the applicant could, if it chose, set up a new company under the Commonwealth legislation and transfer its assets to this new company. However, it seems that there are a number of disadvantages associated with this course, including the problem of transferring liabilities as well as stamp duty and taxation implications. Consequently, this is not a congenial alternative, commercially or legally. As Mr Sackar QC, senior counsel for the applicant candidly admitted, should the present application be rejected the only practicable option open to the applicant would be to seek a change to the Western Australian legislation. I should note, however, the applicant has submitted that such a change is unnecessary.

legislation 8 The requirements for registration of a body corporate as a company are to be found in Part 5B.1 of the Corporations Act. In so far as is presently relevant, they provide as follows: '601BC Applying for registration under this Part

(1) To register the body as a company under this Part, a person must lodge an application with ASIC. … (8) The application must be accompanied by evidence that under the law of the body's place of origin: (a) the body's type is the same or substantially the same as the proposed type specified in the application; and (b) if the members of the body have limited liability - the body's constitution defines how and to what extent that liability is limited; and (d) the transfer of the body's incorporation is authorised; and (e) the body has complied with the requirements (if any) of that law for the transfer of its incorporation; and (f) if those requirements do not include consent to the transfer by the members of the body - the members: (i) have consented to the transfer by a resolution that has been passed at a meeting by at least 75% of the votes cast by members entitled to vote on the resolution; and (ii) were given at least 21 days notice of the meeting and the proposed resolution. (9) The evidence lodged in accordance with subsections (7) and (8) must be satisfactory proof to ASIC of the matters referred to in those subsections. 601BD ASIC gives body ACN, registers as company and issues certificate

Registration (1) If an application is lodged under section 601BC, ASIC may: (a) give the body an ACN; and (b) register the body as a company of the proposed type specified in the application; and (c) issue a certificate that states: (i) the company's name; and (ii) the company's ACN; and (iii) the company's type; and (iv) that the company is registered as a company under this Act; and (v) the State or Territory in which the company is taken to be registered; and (vi) the date of registration.' 9 In their present form the provisions found in Part 5B.1 were introduced by the Company Law Review Act 1998 (Cth) ('Review Act'). They replaced, inter alia, ss 133-135 of the Corporations Law which were as follows: '133 Non-company may apply for registration

(1) A non-company may lodge an application to be registered as a company under this Division. (2) The Commission shall grant an application under this Division if, and only if: (a) the Commission is satisfied that neither of sections 134 and 135 disentitles the applicant from being registered under this Division; and (b) the application was made in accordance with section 136. 134 Externally-administered body corporate not to be registered

A non-company is not entitled to be registered under this Division if: (a) it is an externally-administered body corporate; or (b) an application has been made to a court (in Australia or elsewhere): (i) to wind up the non-company; or (ii) for the approval of a compromise or arrangement between the non-company and another person; and has not been dealt with. 135 Prerequisites to eligibility

A non-company is not entitled to be registered under this Division unless: (a) under the law of its place of origin: (i) transfer of its incorporation is authorised; … (b) it has complied with the requirements (if any) of that law in relation to transfer of its incorporation; and (c) if that law does not require its members, or a specified proportion of them, to consent to transfer of its incorporation - transfer of its incorporation has been consented to by at least three-quarters of such of its members as, being entitled to do so, vote in person or, where proxies are allowed, by proxy, at a meeting of which at least 21 days notice is given specifying the intention to apply for the transfer. (d) …'

this application 10 As indicated in [2] above, the applicant put forward alternative arguments in support of its claim that ASIC was entitled to register it as a company. It said either, the requirement to provide evidence that the transfer is authorised under Western Australian law is not mandatory and therefore not a precondition to ASIC's exercise of its power to register the applicant under s 601BD; or the silence of the Western Australian legislation on the issue of transfer is itself evidence of full and unconditional authorisation.

The requirement to provide evidence 11 The applicant submitted that when the provisions of Part 5B.1, Division 1 are viewed as a whole and in context, it can be seen that the requirement to provide evidence in s 601BC(8) is facultative and directory only. It submits that s 601BC(8) only requires the evidence to be put before ASIC which then has discretion under s 601BC(9) as to whether or not the evidence is satisfactory proof of the matters to which it relates. 12 The principle that a legislative provision must be read in context is not controversial; Liverpool Borough Bank v Turner (1860) 30 LJ Ch 380 per Lord Campbell LC; Julius v Lord Bishop of Oxford (1880) 5 AC 214 per Lord Selbourne at 235; Hatton v Beaumont [1977] 2 NSWLR 211; Tasker v Fullwood [1978] 1 NSWLR 20. Arid disputes about the distinction between words such as 'shall', 'must' and 'may' do not assist in the proper interpretation of a statute. At issue here is the consequence of non-compliance with the requirement in s 601BC(8). That cannot be determined merely by reference to the fact that the section uses the word 'must'. As Hope JA observed in McRae v Coulton (1986) 7 NSWLR 644 at 661: 'The statute has to be construed and the result of any non-compliance with the statutory requirement determined by reference to that construction. This may result in the requirement falling into either the mandatory or the directory category, but that categorisation is the end of the inquiry and not the beginning.' 13 In Tasker v Fullwood [1978] 1 NSWLR 20, Hope, Glass and Samuels JJA stated at p 23-24, in the context of the mandatory and directory distinction, that: '(1) The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter. (2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance: the Franklins Stores Pty Ltd case [1977] 2 NSWLR 955 at pp 963 et seq. (3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: Hatton v Beaumont [1977] 2 NSWLR 211 at p 220. (4) The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement: Victoria v The Commonwealth (1975) 134 CLR 81 at pp 179, 180. (5) It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because these descriptions have been used with varying significations.'

See also Australian Broadcasting Corporation v Redmore Proprietary Limited (1989) 166 CLR 454 at 457 per Mason CJ, Deane and Gaudron JJ and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 at 517 per McHugh, Gummow, Kirby and Hayne JJ. 14 Once reliance on the classification of language as mandatory or directory is rejected as a means of resolving the present controversy, the two limbs of the applicant's argument against the position adopted by ASIC collapse into one, namely the proper interpretation of the statutory provisions. 15 However, nothing I have said should be interpreted as implying that the use of 'must' in ss 601BC(8) and (9) should be ignored or regarded as being insignificant. In common experience 'must' is used to indicate an obligation to do something that is necessary or essential; see Saraya v Commissioner of Business Franchises (unreported, Supreme Court of Victoria, Beach J, 18 February 1998). Ultimately, a number of factors are relevant to the present issue none of which is determinative. I shall consider these issues in turn.

Authorisation 16 It was not in contention that the applicant's status as an incorporated association is governed by the Associations Act. Both parties accepted that the Associations Act does not contain any provision prohibiting, authorising or regulating the transfer of incorporation. Both parties impliedly accepted that the authorisation referred to in s 601BC(8) was authorisation by the Western Australian legislation. Where they differed was as to the implications of the Associations Act'ssilence on the matter. Both parties provided comprehensive written submissions in support of their respective views and supplemented these submissions with short oral submissions. 17 The applicant compared s 601BC with the provisions of the Corporations Law that preceded it; see s 135 of the Corporations Law at [8] above. The requirement of authorisation in s 135 is unqualified and there is no reference to evidence supporting a claim of authorisation. It was submitted that requiring an applicant to provide evidence of authorisation to the satisfaction of ASIC was an attempt to introduce greater flexibility and to increase the efficiency of registration procedures under the Corporations Act. On the other hand ASIC submitted that there was no substantive change to the provisions but merely changes designed to simplify the language by using "plain English". 18 The present form of s 601BC was introduced by the Review Act (see [9] above), which wasdesigned to begin the process of simplifying the Corporations Law. The Second Reading Speech for the Company Law Review Bill 1997 (Cth) (3 December 1997) ('Review Bill') states that: 'The bill rewrites and improves the core company law rules concerning registering companies, meetings, share capital, financial reporting, annual returns, deregistration of defunct companies and company names, with a view to facilitating business and investment.' 19 The Second Reading Speech also details the changes that are made by the Review Bill. There is no reference to any changes made in relation registering a incorporated association as a company. 20 The Explanatory Memorandum for the Review Bill supports ASIC's view that the changes were not substantive. The Memorandum makes it clear that the bill was designed to simplify the expression and organisation of the Corporations Law and replace long, complicated provisions with succinct provisions expressed in "plain English" (paragraph [17]). The Explanatory Memorandum at paragraph [121] states: 'The provisions now in Part 2.2 Divisions 3 and 5 dealing with registration of a body corporate that is not a company, recognised company or corporation sole have been re-enacted (Bill ss 601BA-601BS). The provisions have been brought into line with the new rules introduced by the Bill. For example, the registration requirements, as far as practicable, will reflect the new requirements for registration of a company (Bill ss 117 and 601BC). Where the law of the body's place of origin does not require consent of the body's members to the transfer, the application for registration must include evidence that at a meeting of the body's members, 75% of members consented to the transfer either by voting in person or by proxy (Bill s 601BC(7)(e)).' 21 I am not persuaded by the applicant's submission that an application for transfer of registration is not required to be accompanied by the evidence referred to in s 601BC(8)(d). There is nothing in the Review Act or the extrinsic material relating to it that indicates any intention to alter the substance of the earlier provisions. To the contrary, as the material quoted above shows, all the indications are that the legislature was merely attempting to simplify the expression used by replacing it with "plain English". Ultimately, however, I do not think that this analysis greatly assists. 22 In my view the resolution of the present controversy is comparatively simple. Implicit in the submissions of both parties is an acceptance that the authorisation to which s 601BC(8) refers is authorisation by the State. I do not accept that interpretation. The section certainly requires that the proposed transfer be authorised but it does not say by whom. It says that the authorisation must be 'under the law of the body's place of origin' (in this case Western Australia) not by the law of that place. 23 It is clearly possible for a State to impose requirements for authorisation by the State; for example s 56(1) of the Associations Incorporation Act 1984 (NSW) provides: 'An incorporated association may, with the approval of the Minister and subject to such conditions as may be specified in the approval, become: (a) registered as a company under the Corporations Act 2001 of the Commonwealth, or (b) registered as a co-operative within the meaning of the Co-operatives Act 1992, in the manner prescribed.' [emphasis added] 24 In the absence of any specific statutory requirement for authorisation by the State however, the answer to the question, 'authorised by whom?' must be, 'the members of the association'. That authorisation, however, must be given under (or in accordance with) the law of Western Australia. 25 Incorporated associations operate under State law. In Western Australia the relevant legislation does not specifically deal with the issue of that State's incorporated associations transferring their registration to the Corporations Act. Section 13 of the Associations Act does, however, give the association the power to do all things necessary or convenient for carrying out its objects and purposes, subject to the rules of the association and the provisions of the Associations Act. As mentioned above in [6], clause 3.1(x) of the applicant's Rules gives the association the power 'to do all such other things as are incidental or conducive to the attainment of the objects and the exercise of all or any of the powers of the [applicant]…'. 26 In the circumstances, and reading ss 601BC(8)(d), (e) and (f) together with the opening words of the section, I have no difficulty in concluding that the evidentiary requirements of the section in relation to authorisation can be satisfied by an applicant providing evidence of the consent of its members in accordance with subsection (f) or, if the State law requires that the consent of the members be obtained, then in accordance with that State law. 27 It follows that I do not accept ASIC's submission that unless State law expressly provides for State authorisation (in some form other) an applicant cannot comply with s 601BC(8) and ASIC cannot accept the application. It also follows that I do not accept the applicant's claim that it does not need to provide evidence because the proposed transfer is implicitly authorised by the State. 28 On this analysis much of what was in issue between the parties falls away. In my view s 601BC(8) imposes mandatory obligations on the applicant to provide evidence as to authorisation. However, once the difference between authorisation 'by' State law and authorisation 'under State law' is accepted then the absence of a specific provision in the Associations Act does not create an obstacle to ASIC accepting an application from the applicant. Indeed s 601BC(8)(e) recognises that the State law may not itself impose any requirements for authorisation. 29 The view I have expressed in the preceding paragraphs is similar but not identical to the to the position put by the applicant in its submissions on 'implicit authorisation'. The applicant's view seems to me to accept that the authorisation referred to in s 601BC(8)(d) is authorisation by the State, which I do not accept. Nevertheless the applicant's submissions in support of its claim of implicit authorisation are consistent with (and indeed support) the view I have expressed. Both positions involve an acceptance that, in the case of Western Australia, the State did not seek to impose any specific requirement that the transfer of an incorporated association be authorised by the law of Western Australia. Ultimately whether one characterises this position as one of implied State authorisation or as not requiring State authorisation is immaterial. I propose therefore to discuss these submissions briefly. 30 The applicant took me to Part 1.1A of the Corporations Act. Section 5E of Part 1.1A provides that the Corporations legislation 'is not intended to exclude or limit the concurrent operation of any law of a State or Territory' but this does not apply in the case of a direct inconsistency between the Commonwealth and State or Territory legislation. Section 5F further limits the impact of Commonwealth law on State or Territory legislation by providing that the Corporations legislation does not apply to a matter that, under the State or Territory legislation, is specifically excluded. 31 In HIH Casualty and General Insurance Ltd (in liq) v Building Insurers' Guarantee Corporation (2003) 202 ALR 610, Barrett J explained the operation of ss 5E and 5F at p 642 - 645: 'Section 5E is the leading provision in Pt 1.1A of the Corporations Act. It says that the Commonwealth Corporations legislation (which, by virtue of s 5D(2), includes the Corporations Act) is not intended to exclude or limit the concurrent operation of any state or territory law - unless "there is a direct inconsistency between the Corporations legislation and that law" as referred to in s 5E(4) … On the contrary, it is clear, at least so far as s 5E is concerned, that state and territory laws may also regulate matters, rights and duties with which the Commonwealth law is concerned, provided that they do not do so in a way which involves "direct inconsistency". … The general message in s 5E is reinforced by s 5F which, in subss (1) and (2), deals with the case where a provision of state or territory law declares a matter to be an excluded matter for the purposes of s 5E in relation to the whole or some specified portion of the Corporations Act. In such a case, the Corporations Act itself causes direct conflict to be avoided by curtailing its own operation in a particular way designed to allow the relevant state or territory law to operate without impinging upon the operation of the Commonwealth law. … The approach reflected in s 5F involves an express statement in the Corporations Act that certain of its provisions are not to apply "in" a particular state or territory "to" or "in relation to" a particular "matter" (which, by virtue of s 5F(6), includes "act, omission, body, person or thing"). … State and territory provisions of the kind at issue in this proceeding may, in theory at least, be accommodated by s 5F of the Corporations Act … … The particular way in which each of s 5F(2) and (4) operates in relation to provisions of the Corporations Act must now be noted. In each case, the subsection says that the Corporations Act (or the relevant provision or part of it) does not apply in the particular state or territory to the particular matter. The wording differs slightly between ss 5F(2) and 5F(4). In the former, each paragraph says that the Corporations Act (or the relevant portion or provision of it) "does not apply in the state or territory in relation to the matter", being the matter the subject of the declaration in a provision of state or territory law referred to in s 5F(1). In s 5F(4), it is said that the Corporations Act (or the relevant portion or provision of it) "does not apply in the State or Territory to the matter …". The concept is thus a dual concept of restriction of territorial application and restriction of application to subject matter.' 32 The applicant submitted that, pursuant to s 5F of the Corporations Act, each State had an opportunity to exclude those matters that it did not wish to accept as part of its operation. The enactment of s 5F required each State legislature to focus its attention on whether it wished to exclude aspects of the Corporations Act. The fact that the Western Australian legislature did not do so in relation to the matter under consideration was interpreted as a deliberate decision. I am not sure that this implication is either warranted or necessary. Nevertheless the deliberation accompanying the implementation of the Commonwealth legislation provides some support for the interpretation that I have outlined above.

Dual registration 33 On the interpretation I have reached many of the objections raised by ASIC need not be considered. However, one issue raised by counsel for ASIC does warrant mention. ASIC submitted while upon transfer of registration the body corporate becomes a company under the Corporations Act, nothing in the Commonwealth legislation provides for the deregistering of the body corporate under State legislation. As a result, it was submitted, there would be at least a period during which the applicant would be registered under both the Corporations Act and the Associations Act. It is for this reason, ASIC submitted, that State enactments that authorise this kind of transfer expressly deal with the issue. 34 ASIC referred to s 3A of the Associations Act which provides: '3A Incorporated associations excluded from Corporations legislation

(1)The following matters are declared to be excluded matters for the purposes of section 5F of the Corporations Act 2001 of the Commonwealth in relation to the whole of the Corporations legislation to which Part 1.1A of that Act applies, other than the provisions specified in subsection (2) - (a)an incorporated association; (b)any act or omission of any person, body or other entity in relation to an incorporated association. (2) The provisions referred to in subsection (1) are (a)provisions that relate to any matter that the regulations provide is not to be excluded from the operation of the Corporations legislation; (b)provisions that relate to the role of an incorporated association in the formation of a company; (c) …' 35 ASIC submitted that by virtue of this section and s 5F of the Corporations Act, even when the transfer of registration had been effected and a company had been formed, the vast bulk of the Corporations Act would not apply to the company. ASIC submitted that: 'It is inconsistent with the scope, purpose and object of these provisions to allow a body to be registered as a company in circumstances where significant aspects of the Corporations Act would not apply to it for some period (and possibly indefinitely).'

36 In response to ASIC's concern about dual registration, the applicant submitted that dual registration is 'an unavoidable consequence of the registration of an incorporated association as a company' and the failure of the Western Australian legislature to provide for this circumstance in the way New South Wales has in s 57 of the Associations Incorporation Act 1984 (NSW). In any event the applicant submitted that the problem is theoretical only as:

'(a) The discretion vested in ASIC by section 601BD arguably carries with it a power to place conditions on registration of a body corporate as a company; (b) The registration of [the applicant] as an incorporated association may be cancelled pursuant to s 35 of the [Associations Act].'

The applicant referred to the provisions of ss 34 and 35 of the Associations Act as providing a possible solution to the problem.

37 I am by no means convinced that transfer of the applicant's incorporation would result in dual registration. I do not however need to decide that issue as I am not satisfied that any difficulties that would arise should dual registration occur are such as to lead me to a different interpretation of the provisions of s 601BC. Although ASIC submitted that such a situation would be intolerable, there were few if any examples given.

CONCLUSION 38 My views as to the correct interpretation of s 601BC lead to an outcome similar to that advocated by the applicant although for different reasons. In the circumstances, however, I do not propose to make any order or declaration without first giving the parties time to consider my reasons. I will therefore order that the parties provide agreed short minutes of order in accordance with these reasons to my associate by 14 January 2005. If the parties are unable to reach agreement they must each submit short minutes of order setting out the orders for which they respectively contend together with brief written submissions in support of their position by 14 January 2005. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone

Counsel for the Applicant: Mr J Sackar QC and Mr M Dawson

Solicitor for the Respondent: Australian Securities and Investments Commission