Residents Against Intermodal Development Moorebank Incorporated v Minister for Planning

Land and Environment Court (NSW)|2017-08-07|Before: Preston CJ, Mr P, Ms J

A challenge to standing to appeal

An incorporated association, Residents Against Intermodal Development Moorebank Incorporated ('RAIDM Inc'), lodged an appeal under s 98(1) of the Environmental Planning and Assessment Act 1979 ('EPA Act') to the Court against the determination of the Minister for Planning, by his delegate the Planning Assessment Commission of NSW (PAC), to grant consent to the Moorebank Intermodal Precinct East - Stage 1 (SSD 6766) ('the intermodal terminal').
The intermodal terminal is classified as designated development under the EPA Act. Any person who was an "objector" to the intermodal terminal had a right to appeal under s 98(1) of the EPA Act against the determination to grant consent to the intermodal terminal. The proponent of the intermodal terminal, Qube Holdings Ltd ('Qube'), challenges the standing of RAIDM Inc to bring the appeal. Qube submits that RAIDM Inc was not an "objector" and hence had no right to appeal under s 98(1) against the determination to grant consent to the intermodal terminal.
An "objector" is defined in s 4 of the EPA Act to be "a person who has made a submission under s 79(5) by way of objection to a development application for consent to carry out designated development." RAIDM Inc was incorporated as an association long after the submission period for making a submission with respect to the development application for the intermodal terminal had closed. RAIDM Inc did not, as a matter of fact, make a submission under s 79(5) by way of objection to the intermodal terminal. Hence, Qube contends, RAIDM Inc was not an objector. Qube seeks, by notice of motion, an order that the appeal by RAIDM Inc be summarily dismissed.

Some brief facts relevant to standing to appeal

In order to understand Qube's various arguments challenging the standing of RAIDM Inc to appeal, it is instructive to set out briefly the facts concerning the establishment of RAID Moorebank, the submissions made by way of objection to the development application for the intermodal terminal, the incorporation of RAID Moorebank as RAIDM Inc and the appeal to the Court.
RAIDM Inc says that it arises from the registration under the Associations Incorporation Act of the unincorporated body, RAID Moorebank.
RAID Moorebank was a community action group formed in 2014 with the purpose of opposing the development of an intermodal terminal at Moorebank. The first meeting of the group was on 14 May 2014. The name for the group, Residents Against Intermodal Development Moorebank, was coined in late June 2014.
On 29 August 2014, at a meeting of the group, members formalised roles in the group, including electing Mr Anderson as Chairman/President of the group. The members also agreed to follow a formal process for convening and conducting meetings of the group. This included giving notice of a meeting, setting the agenda for the meeting, and taking and distributing minutes of the meeting.
Between August and October 2014, one of the group members, Mr McDonald, developed a website for RAID Moorebank. The website was used to upload and host independent studies and reports to present alternative, merits-based assessments to the proposed intermodal terminal developments at Moorebank.
The members of the group were identifiable and remained relatively constant from the group's inception in 2014 to the registration of the group as RAIDM Inc in 2017. One of the members, Mr Rakowski, identified nine members at the inception of the group in 2014, three more became members around September 2014 and another became a member in October 2015. Mr Rakowski said that "there was a common understanding amongst members that we were a community group working together on a common cause to object to the proposed intermodal development at Moorebank".
The group engaged in advocacy to Ministers, members of parliament, government agencies and the media opposing any development of an intermodal terminal at Moorebank.
Members of the group met regularly throughout 2014, 2015 and 2016, usually on a monthly basis.
On 6 May 2015, Qube lodged the development application for the intermodal terminal. Between 28 May and 26 June 2015, the development application for the intermodal terminal was publicly exhibited, as required under s 79(1) of the EPA Act. During this submission period, any person could make a written submission with respect to the development application, under s 79(5) of the EPA Act.
During this submission period, Mr Anderson made four submissions with respect to the development application for the intermodal terminal. Public submissions with respect to the development application were required to be made through an online portal maintained by the Department of Planning. The person making a submission had to complete prescribed fields, including "name", "organisation", "email" and "address". There was an open text field, called "content", within which the person could state their submission, including, if the submission was by way of objection, setting out their grounds of objection.
The first submission was made on 18 June 2015 at 1:28pm. Mr Anderson completed the prescribed fields of "name" as "John Anderson" and "organisation" as "RAID Moorebank (Chairman)". He gave his personal email and residential address. In the open text "content" field, Mr Anderson set out the grounds of objection. These included the incapacity of the existing roads to cope with the volume of freight and increased traffic generated by the project, the impacts on the health and welfare of the local residents of the area, the loss of koalas, Cumberland Plain Woodland and other threatened species, and health impacts from air pollution (including diesel fumes). Mr Anderson used the first person, singular pronoun "I" when outlining the objections.
The second submission was made on 24 June 2015 at 11:04pm. Mr Anderson completed the prescribed fields of "name" as "John Anderson" and "organisation" as "RAID Moorebank (Chairman)". He gave his personal email and residential address. In the open text "content" field, Mr Anderson set out the grounds of objection. These included the increased traffic on the local road network (53% over the capacity of the local road network) and the deaths, accidents, illnesses and health impacts that would be caused by the increased traffic. Mr Anderson said the objections were made by "our committee".
The third submission was made on 25 June 2015 at 1:50pm. Mr Anderson completed the prescribed fields of "name" as "John Anderson" and "organisation" as "RAID Moorebank (Chairman)". Mr Anderson gave his personal email and residential address. In the open text "content" field, Mr Anderson set out the grounds of objection to the intermodal terminal, including air pollution (and the health risk posed by air pollution), noise from locomotives, trucks and vans (and the risk to residents from that noise), loss of koalas and other threatened species, and impacts on the environmental areas and Georges River Parks. Mr Anderson used the first person, singular personal pronoun "I" when outlining the objections.
The fourth submission was made on 25 June 2015 at 2:19pm. Mr Anderson completed the prescribed fields of "name" as "John Anderson" and "organisation" as "RAID Moorebank (Chairman)". He gave his personal email and residential address. In the open text "content" field, he set out the grounds of objection, including flooding (the only flood free roads will be used by traffic from the project) and the increase in traffic (53% over the capacity of the local road network). Mr Anderson used the first person, plural, possessive pronoun "our" in describing the grounds of objection ("our problems have been ignored").
The Department of Planning grouped together these four submissions completed by Mr Anderson as being submissions made by "RAID Moorebank" and as being submissions by way of objection to the intermodal terminal.
On 12 December 2016, PAC, as delegate for the Minister for Planning, determined to grant consent to the development application for the intermodal terminal.
On 16 February 2017, the Department of Planning gave notification of the determination to grant consent to the development application to the applicant and to each person who made a submission under s 79(5) of the EPA Act, as required by s 81(1) of the EPA Act. One of the persons notified, as being a person who made a submission under s 79(5), was RAID Moorebank.
At meetings on 13 and 20 January 2017, RAID Moorebank resolved to become an incorporated association under the Associations Incorporation Act. The resolution was made at the meeting of RAID Moorebank on 13 January 2017 and was confirmed and recorded in the draft minutes of the meeting on 20 January 2017.
On 24 February 2017, one of RAID Moorebank's members, Mr McDonald, lodged the application for registration of an incorporated association with NSW Fair Trading. The application form proposed the preferred name of the association as "Residents Against Intermodal Development Moorebank Incorporated".
The application form stated that the application for the registration of the incorporated association had been authorised "by a special resolution (motion) passed by an existing unincorporated body with 5 or more members", the name of which was "Residents Against Intermodal Development Moorebank". A printed note to the application form stated that "a copy of the special resolution (motion) to become incorporated must be attached to this form". Mr McDonald attached to the application form a document on RAID Moorebank letterhead entitled "Meeting Draft Minutes 20.1.2017". Item 3 of the minutes was "3. Constitution update" and stated: "As resolved by the Committee on 13.01.2017 RAID Moorebank will become an Incorporated Association as soon as practicable. Andrew [McDonald] has the Draft Constitution for review and comment. • It appears to be a sound document and ready to be ratified • Costs and insurance needs to be confirmed • Office bearers, general roles, and commitments should be discussed • Basic meeting and Committee structure can then be defined to a 1 pager • Andrew plus Erik [Rakowski] can finalise after it is discussed. • Ideally the Constitution will need to be in place or progress before public meeting • Erik is suggesting that another meeting is scheduled for the 27th to lock in it".
The application form nominated Mr McDonald as the first public officer of the incorporated association and gave an email address with the domain name of "raidmoorebank.org" and a postal address.
The application form attached a document describing the objectives of RAID Moorebank, primarily being to stop and move the intermodal terminal at Moorebank to a more suitable location. The application form also attached the proposed constitution of the incorporated association.
The application form concluded with declarations by Mr McDonald as the first public officer of the association, including: "• I am authorised to apply for registration of the above named association, • the particulars within this application are true, • if this application is approved the proposed association will have at least 5 members at the time of registration, and the proposed association has approved the adoption: • of the model constitution, OR • of the constitution attached to this application AND that constitution complies with the requirements of the Associations Incorporation Act 2009, including but not limited to providing for the matters referred to in Schedule 1 to the Act."
On 27 February 2017, NSW Fair Trading notified Mr McDonald that it had granted registration under the Associations Incorporation Act of RAIDM Inc as an incorporated association. A certificate of incorporation as an association was issued on that date.
On 16 March 2017, RAIDM Inc lodged an appeal under s 98(1) of the EPA Act. This was within 28 days after the date on which notice of the determination was given (being 16 February 2017).

The grounds of challenge to standing

Qube argued that RAIDM Inc did not have standing to appeal under s 98(1) of the EPA Act because, firstly, it was not itself an objector, that is to say a person who made a submission under s 79(5) of the EPA Act by way of objection to the development application for the intermodal terminal, who had a right to appeal under s 98(1) of the EPA Act and, secondly, it did not acquire a right to appeal under s 98(1) of the EPA Act on the incorporation of RAID Moorebank as an incorporated association.
The first argument is not factually in contest. RAIDM Inc, as an incorporated association, was only registered on 27 February 2017. The period during which a submission under s 79(5) of the EPA Act with respect to the development application for the intermodal terminal needed to be made, was 28 May 2015 to 26 June 2015. RAIDM Inc could not have made a submission during this period before it was registered.
The second argument is, however, contested both factually and legally. Qube submitted that RAIDM Inc's standing to appeal under s 98(1) of the EPA Act was dependent upon the operation of cl 2(1)(b) of Sch 2 of the Associations Incorporation Act. This provides: "(1) On an association's incorporation under this Act, the following provisions have effect: … (b) the rights and liabilities of the former body become by virtue of this clause the rights and liabilities of the association, …"
The expression "former body" is defined in cl 1 of Sch 2 of the Associations Incorporation Act to mean, in relation to an association: "(a) an unincorporated body that has been incorporated as a consequence of its registration under this Act, or …"
Qube submitted that RAIDM Inc did not acquire a right to appeal under s 98(1) from RAID Moorebank by virtue of cl 2(1)(b) of Sch 2 for two reasons. First, RAID Moorebank was not an "unincorporated body" within the meaning of the Associations Incorporation Act and hence cl 2(1)(b) of Sch 2 did not operate to make any rights that RAID Moorebank might have had become rights of RAIDM Inc. Second, RAID Moorebank, if it was an unincorporated body, did not make a submission under s 79(5) of the EPA Act by way of objection to the development application for the intermodal terminal and hence was not an objector with a right of appeal under s 98(1) of the EPA Act that could become a right of the incorporated association RAIDM Inc on its incorporation.
I will start with Qube's first, legal reason. Qube submitted that on a proper construction of the Associations Incorporation Act, in order for an entity to be an "unincorporated body" to whose rights and liabilities a subsequently registered incorporated association may succeed by virtue of cl 2(1)(b) of Sch 2, that previously "unincorporated body" must have had a number of characteristics and followed a certain process that allowed a change in status (including a loss of rights).
As to characteristics, Qube's submitted that the Associations Incorporation Act, particularly ss 6 and 39, identify, on its face and by necessary implication, characteristics that an "unincorporated body" must have, including that it will have members (and, by implication, criteria and rules for membership) and rules for meetings and the passing of resolutions, including special resolutions.
Qube submitted that it follows from the requirements of ss 6 and 39 of the Associations Incorporation Act that to be an "unincorporated body" within the meaning of the Associations Incorporation Act, the body must have: a list or register of its members at the time of the special resolution; the means of communicating with those members for the purposes either of giving notice of meetings or providing postal or electronic ballots; and a constitution or body of rules in relation to voting and members' voting entitlements.
Qube alternatively submitted that, even if one looks to the common law on the meaning of "unincorporated association" (a term which is different to "unincorporated body" which is used in the Associations Incorporation Act and which itself implies something more concrete and organised than what is connoted by the looser "association"), the weight of authority clearly favours the requirement for a set of rules, however rudimentary, for an otherwise amorphous group of people to be characterised as an unincorporated association: see, for example, Re Thackrah [1939] 2 All ER 4 at 6, Re Price [1943] Ch 422 at 428; referring to Lord Buckmaster in Macaulay v O'Donnell [1943] 1 Ch 435, all of which are cited in Kibby v Registrar of Titles [1999] 1 VR 861 at 870-871; [1998] VSC 148 see also Conservative Office v Burrell [1982] 1 WLR 522 at 525 per Lawton LJ (with whom Fox LJ agreed) when his Lordship said: "I infer that by 'unincorporated association' in this context Parliament meant two or more persons bound together for one or more common purposes, not being business purposes, by mutual undertakings, each having mutual duties and obligations, in an organisation which has rules which identify in whom control of it and its funds rests and on what terms and which can be joined or left at will."
Furthermore, many decisions of high authority dealing with unincorporated associations assume, as being axiomatic, that such a body will have rules: see, for example, Cameron v Hogan (1934) 51 CLR 358 at 373, 384; [1934] HCA 24; Peckham v Moore [1975] 1 NSWLR 353 at 361F, 370A-B (CA). See also the decision of Mullighan J in Clarke v Australian Labor Party (1999) 74 SASR 109; [1999] SASC 365 at [138] where it was said that "[m]embers of voluntary associations are entitled to expect that the affairs of the association will be conducted in accordance with the constitution and rules". In similar vein, the Victorian Court of Appeal in Benbrika v The Queen (2010) 29 VR 593; [2010] VSCA 281 at [71] said that "[u]nincorporated associations determine the rules for their own administration. Not all such rules are contractual in nature".
Qube submitted that the evidence does not establish that RAID Moorebank met these characteristics. Qube submitted that no membership list was held confirming the number and identity of RAID Moorebank's members, including during the submission period of 28 May 2015 to 26 June 2015. Mr Rakowski merely conveyed his understanding that the members of RAID Moorebank during 2014-2015 were the 13 people he listed. Qube refers to inconsistencies in Mr Rakowski's evidence of the precise composition of the membership as indicating the lack of a list or register of members.
Qube submitted that RAID Moorebank did not have a constitution or any body of rules governing voting and voting rights. Mr Rakowski confirmed that RAID Moorebank did not have a set of rules until the constitution was finalised after 20 January 2017.
As to process, Qube submitted that, under s 6(2)(b) of the Associations Incorporation Act, an application for registration of an unincorporated body having 5 or more members must be authorised: "(b) in the case of an application made on behalf of an unincorporated body, by a special resolution passed by the members of the body".
Qube submitted that the expression "special resolution" is defined in s 4 of the Associations Incorporation Act as: "special resolution - see section 39".
Section 39 is entitled "Voting on special resolutions" and provides: "(1) A resolution is passed by an association as a special resolution: (a) at a meeting of the association of which notice has been given to its members no later than 21 days before the date on which the meeting is held, or (b) in a postal or electronic ballot conducted by the association, or (c) in such other manner as the Secretary may direct, if it is supported by at least three-quarters of the votes cast by members of the association who, under the association's constitution, are entitled to vote on the proposed resolution. (2) A notice referred to in subsection (1) (a) must include the terms of the resolution and a statement to the effect that the resolution is intended to be passed as a special resolution. (3) A postal or electronic ballot referred to in subsection (1) (b) may only be conducted in relation to resolutions of a kind that the association's constitution permits to be voted on by means of a postal or electronic ballot and, if conducted, must be conducted in accordance with the regulations. (4) A direction under subsection (1) (c) may not be given unless the Secretary is satisfied that, in the circumstances, it is impracticable to require votes to be cast in the manner provided by subsection (1) (a) or (b)."
Qube noted that s 39 refers to special resolutions passed by an "association" and that "association" is defined in s 4 to mean "an association registered under this Act". Nevertheless, Qube submitted that the reference to "association" in s 39 must be taken to include the "former body" that has subsequently become an association under the Act.
Qube submitted that RAID Moorebank did not pass a special resolution in accordance with the process described in s 39 of the Associations Incorporation Act, including the requirements as to the notice period and the terms of the notice in s 39(1) and (2).
Qube submitted that the minutes of the meeting of RAID Moorebank on 20 January 2017, attached to the application for registration, did not demonstrate that a special resolution in accordance with s 39 was passed by RAID Moorebank. The minutes do not expressly record that a special resolution was passed at the meeting on 20 January 2017. Although the minutes of the meeting on 20 January 2017 stated that "as resolved by the committee on 13.1.2017 RAID Moorebank will become an incorporated association as soon as practicable", the minutes of the meeting on 13 January 2017 make no reference to the passage of a special resolution for RAID Moorebank to become an incorporated association.
Qube noted that no document has been produced by RAIDM Inc giving notice of a meeting to pass a special resolution at the meetings on 13 or 20 January 2017 (as required by s 39(1)(a)) or proving the dispatch of postal or electronic ballots (see s 39(1)(b)) or a notice (as required by s 39(2)) which included the terms of the resolution and a statement to the effect that the resolution is intended as a special resolution.
A meeting of RAIDM Inc held after it was registered as an incorporated association, on 27 June 2017, purported to pass a special resolution retrospectively authorising the application for registration as an incorporated association. The special resolution provided: "The Committee [RAID Management Committee] agrees to retrospectively ratify both the original decision of the then unincorporated community group RAID Moorebank, made on 28.10.16 by way of consensus, and the later resolution made on 13.01.17, and recorded on 20.01.17, to become an associated incorporation [sic] under the Associations Incorporation Act 2009. Noting that: 1. At the time that the decision to incorporate was made on 28.10.16, it was determined by 100% consensus of ten votes. 2. Nine members of RAID that voted on the 28.10.16 decision to incorporate also voted to reaffirm this decision by way of resolution on 13.01.17. 3. The RAID Moorebank Constitution was formally presented on 20.01.17 and supported by the eight members present. 4. The RAID Moorebank Constitution was later confirmed and adopted at a meeting on 01.02.17 where the newly nominated Public Officer, Treasurer, Secretary were empowered by the eight members present, to discharge the final steps to incorporation…"
Qube submitted that this resolution was an ex post facto attempt to address the problems with any purported resolution passed on 28 October 2016 or 13 or 20 January 2017.
The resolution of the meeting on 28 October 2016 was by way of consensus. Mr Rakowski gave evidence to a similar effect. Qube submitted that any such consensus reached at the meeting on 28 October 2016 fell short of the special resolution that was required by s 39 of the Associations Incorporation Act. Such consensus could not provide the authorisation necessary to make the application for registration under s 6 of the Associations Incorporation Act.
Qube submitted that the special resolution passed on 27 June 2017 also could not authorise the application for registration of an association under s 6 of the Associations Incorporation Act. A special resolution needed to be of the unincorporated body, RAID Moorebank, not of the incorporated association, RAIDM Inc. The evidence did not establish that the notice requirements of s 39 were satisfied in respect of the 27 June resolution in any event.
For these reasons, Qube submitted that legally there was no unincorporated body whose rights could become the rights of the incorporated association.
I turn to the second, factual reason. Qube submitted that, in any event, RAID Moorebank did not have a right to appeal under s 98(1) of the EPA Act that could become, by virtue of cl 2(1)(b) of Sch 2 of the Associations Incorporation Act, a right of RAIDM Inc because RAID Moorebank did not make a submission under s 79(5) in the submission period.
Qube submitted that the four submissions were not made by Mr Anderson as agent for all of the members of RAID Moorebank. Qube referred to the facts that Mr Anderson used his own name, personal email and residential address. In two of the submissions, Mr Anderson used the first person singular pronoun to express his grounds of objection.
However, even if Mr Anderson asserted he was making the submissions on behalf of RAID Moorebank, Qube submitted that a bare assertion by an agent that he is acting for the alleged principal cannot prove the existence of the alleged agency. There must be conduct on the part of the alleged principal from which an agency relationship can be inferred, citing Quikfund (Australia) Pty Ltd v Prosperity Group International Pty Ltd (In Liq) (2013) 209 FCR 368; [2013] FCAFC 5 at [65]-[78] and cases cited therein.
Qube submitted that the evidence did not establish that Mr Anderson was authorised to make a submission on behalf of RAID Moorebank. The minutes of the meetings held around the time of Mr Anderson making the submissions made no mention of the submissions. Mr Rakowski said in evidence only that he had "reviewed" the submissions made by Mr Anderson. He did not say that members of RAID Moorebank endorsed either Mr Anderson making submissions or the terms of the submissions Mr Anderson made, or that the members were even aware of Mr Anderson making the submissions.
In these circumstances, Qube submitted that the submissions that Mr Anderson made during the submission period were not made on behalf of RAID Moorebank. Hence, RAID Moorebank was not a person who made a submission under s 79(5) of the EPA Act by way of objection and was not an objector who had a right of appeal under s 98(1) of the EPA Act.

The rebuttal of the challenge to standing

RAIDM Inc rebutted both the legal and factual reasons given by Qube. As to the legal reasons, RAIDM Inc submitted that the registration and the certificate of registration of RAIDM Inc as an incorporated association under the Associations Incorporation Act are conclusive proof that RAID Moorebank was an unincorporated body that had been incorporated as a consequence of its registration under the Associations Incorporation Act and that the application for registration complied with the requirements of s 6 of the Associations Incorporation Act, including that the application was authorised by a special resolution passed by the members of the unincorporated body.
The application for registration as an incorporated association was made under s 6 of the Associations Incorporation Act on behalf of an unincorporated body having 5 or more members, being RAID Moorebank. The application stated that it was authorised by a special resolution passed by members of that body. The application attached minutes of a meeting of the body evidencing that members of the body had passed a special resolution. The application otherwise complied with the requirements of s 6 of the Associations Incorporation Act.
The Secretary (the Commissioner for Fair Trading) determined, under s 7 of the Associations Incorporation Act, the application by registering the association. Under s 7(2)(a), the Secretary had power to refuse the application if the application did not comply with s 6. An application by a body that was not an "unincorporated body" within the meaning of the Associations Incorporation Act or an application that was not authorised by a special resolution passed by members of an unincorporated body (as required by s 6(2)(b)) would not comply with s 6.
However, RAIDM Inc noted, the Secretary did not refuse the application on the basis that the application did not comply with s 6. Instead, the Secretary registered the association. This decision to register the association implicitly accepted that the application did comply with s 6, including that RAID Moorebank was an unincorporated body having 5 or more members and that the application for registration had been authorised by a special resolution passed by the members of the body.
RAIDM Inc submitted, therefore, that this Court should accept the regularity of the registration of the incorporated association of RAIDM Inc, including that RAID Moorebank was an unincorporated body that had been incorporated as a consequence of its registration under the Associations Incorporation Act and that the application for registration of the incorporated association was authorised by a special resolution passed by members of the body.
In the alternative, if a collateral challenge to the regularity of the registration of the incorporated association be permitted, RAIDM Inc submitted that Qube's arguments are erroneous.
RAIDM Inc submitted that RAID Moorebank was an "unincorporated body" within the meaning of the Associations Incorporation Act and the process of application for registration of the association did not fail to comply with s 6 of the Associations Incorporation Act, including the requirement in s 6(2)(b) that the application be authorised by a special resolution passed by the members of the body.
As to being an "unincorporated body", RAIDM Inc disputed that RAID Moorebank needed to have the demanding characteristics that Qube contended were necessary in order for it to be an unincorporated body that could apply for registration as an incorporated association under the Associations Incorporation Act. RAIDM Inc noted that the Associations Incorporation Act neither defines "unincorporated body" nor specifies any criteria for the formation or operation of an unincorporated body. The Associations Incorporation Act does not expressly require an unincorporated body to have the characteristics put forward by Qube, including having a list or register of its members or a constitution or body of rules in relation to voting and members' voting entitlements.
RAIDM Inc submitted that instead the meaning and essence of an unincorporated body or association is to be derived from well-established authorities that have considered the meaning of that term in other legislation.
In Kibby v Registrar of Titles [1999] 1 VR 861; [1998] VSC 148 at [50], Mandie J held that: "… I consider that the essence of an 'association' may be described as some form of combination of persons (with a common interest or purpose) with a degree of organisation and continuity at least sufficient to distinguish the combination from an amorphous or fluctuating group of individuals and with some clear criteria or method for the identification of its members."
The decision in Kibby was affirmed by Haylen J in Re Application by Emergency Medical Services Protection Association (NSW) (2013) 233 IR 400; [2013] NSWIRComm 35 at [49] as follows: "Essentially, all that is required for the formation of an unincorporated association is a group of people with a common purpose: as found in Kibby, a form of combination of persons with a common interest or purpose with a degree of organisation or continuity, will suffice."
The decision in Kibby was also affirmed in Benbrika v The Queen (2010) 29 VR 593; [2010] VSCA 281 at [68]-[71] as follows: "As Mandie J observed, an unincorporated association (sometimes called an unincorporated body) has no legal existence separate or distinct from its members. [35] It is 'an artificial and anomalous conception' which, 'though not a separate entity in law, is yet for many purposes regarded as a continuing entity' and, however inaccurately, 'as something other than an aggregate of its members'. [36] Such an association is formed by the mutual understanding of its members. It consists of nothing more than the aggregate of its members at a particular time. In effect, an unincorporated body is a voluntary combination of persons with some object or purpose in common. [37] If the body has assets, they belong, subject to the rules, to the members for the time being. [38] The main characteristic of an unincorporated association is, of course, that it does not enjoy legal personality. [39] It is simply a voluntary association of persons who share common aims or interests. As a result, an unincorporated association cannot enter into a contract, or acquire, hold, or dispose of property in its own name. [40] Common examples of unincorporated not-for-profit organisations are: social clubs, sporting clubs, religious groups, charitable organisations, educational associations, and scientific societies. Organisations of this kind are generally managed by a committee chosen from among the members. As an unincorporated association has no legal personality, it cannot be held liable in its own name. Such liability is imposed on the members of the committee personally, as principals and not as agents. [41] Although the members of the committee act on behalf of the association, they may not be entitled to indemnity for any payments they make to discharge its debts, or in respect of liability in tort. In that sense, the liability of committee members may be contrasted with that of the directors of a company. Unincorporated associations determine the rules for their own administration. Not all such rules are contractual in nature. [42]"
RAIDM Inc submitted that RAID Moorebank clearly met these undemanding criteria for the formation and operation of an unincorporated body. RAID Moorebank was a group of 5 or more members (8 to 10 regularly attended meetings of the group), having the common purpose of opposing the proposed development of an intermodal terminal at Moorebank, with a degree of organisation (the naming of the group as RAID Moorebank, the establishing of a website for RAID Moorebank, formalisation of roles and members of the group (such as a Chairman), the appointment of persons to these roles, the adoption of a formal process for the convening and conducting of meetings (including giving notice, setting agendas, and recording and distributing minutes) and continuity (the group continued without break from its formation in 2014 until it was incorporated as a result of its registration under the Associations Incorporation Act). RAID Moorebank engaged actively in activities to further its common purpose of stopping and moving the intermodal terminal at Moorebank including direct advocacy with government, the public and the media. RAIDM Inc submitted, therefore, that RAID Moorebank, was an "unincorporated body with 5 or more members" for the purposes of the Associations Incorporation Act entitled to apply for registration as an association.
As to the process of application for registration, RAIDM Inc submitted that Qube was in error in submitting that the special resolution required to be passed by s 6(2)(b) needed to comply with s 39 of the Associations Incorporation Act. First, Qube misstated the definition of "special resolution". The phrase "special resolution" is not actually defined in the Associations Incorporation Act. The definition in s 4 of "special resolution" does not use the usual words of a definition, such as "means" or "as defined in s 39". It is merely a pointer to the section which deals with special resolutions by "associations" within that Part of the Associations Incorporation Act, namely management of associations, which deals with a range of matters concerning associations.
RAIDM Inc submitted further that the words of s 39 are not in the nature of a definition. Section 39 states how an association passes a special resolution.
Second, RAIDM Inc submitted that s 39 does not apply to an unincorporated body before it has been incorporated as a consequence of registration under the Associations Incorporation Act. Rather, s 39 applies to an "association", which is defined to be "an association registered under this Act". Section 39, therefore, only applies to special resolutions passed by associations as defined. Section 39 sits within Pt 4 of the Associations Incorporation Act, which deals with management of associations and is split into four Divisions: Division 1 "Committee members - general"; Div 1A "Committee members - offences"; Div 2 "Public officer and authorised signatories" and Div 3 "General". Clearly, Pt 4 deals with the management and regulation of associations registered under the Act, and its provisions are not intended to bind unincorporated bodies which are not subject to the same rules and requirements as an association registered under the Act.
Third, RAIDM Inc submitted that the words "special resolution passed by the members of the body" in s 6(2)(b) should be interpreted as having their ordinary English meaning. On a plain interpretation of the words "special resolution", the words have their ordinary English meaning. "Special" means "better, greater, or otherwise different from what is usual" and "resolution" means "a formal expression of opinion or intention agreed on by a legislative body or other formal meeting, typically after taking a vote" (Oxford Dictionary).
RAIDM Inc submitted that a plain construction of the words is a better approach to interpretation than the construction submitted by Qube of the interaction between s 6(2)(b) and s 39, not only because s 39 is defined only as applying to "associations" but also because the purpose of the Associations Incorporation Act is not to impose onerous requirements on unincorporated bodies seeking to apply for registration of an association. Far from it, the intent of the legislation is to provide an "easy to understand framework" for small community based interest groups to create legal structure: see NSW Fair Trading and NSW Department of Finance & Services, Associations Incorporation Act 2009 - Statutory Review, (2 November 2015) at 5.
The Second Reading Speech of the Associations Incorporation Bill further supports RAIDM Inc's construction of the Act because it confirms that Parliament intended the Act to provide "a simple and inexpensive alternative for acquiring corporate status for small not-for-profit non-commercial organisations. In doing so the Bill streamlines the process involved in the incorporation and regulation of associations": NSW Legislative Assembly, Parliamentary Debates (Hansard), 4 March 2009 at 12908.
RAIDM Inc submitted that on the evidence the members of RAID Moorebank did pass a special resolution authorising the application for registration of the unincorporated body RAID Moorebank as an incorporated association under the Associations Incorporation Act. The minutes of the meeting of RAID Moorebank on 20 January 2017 recorded that the members had resolved on 13 January 2017 that RAID Moorebank will become an incorporated association. The subsequent special resolution passed on 27 June 2017 recorded in the recitals that: "1. At the time the decision to incorporate was made on 28.10.16, it was determined by 100% consensus of 10 votes. 2. Nine members of RAID, that voted on the 28.10.16 decision to incorporate also voted to reaffirm this decision by way of resolution on 13.01.17. 3. The RAID Moorebank Constitution was formally presented on 20.01.17 and supported by the 8 members present."
These recitals are evidence recording the resolutions passed by members of RAID Moorebank authorising the making of an application for registration of RAID Moorebank as an incorporated association.
RAIDM Inc submitted that this evidence is sufficient to establish that the requirement of s 6(2)(b) of the Associations Incorporation Act, that the application for registration of the association be authorised by a special resolution passed by members of the body, was met. RAIDM Inc noted that the Secretary (the Commissioner of Fair Trading) was satisfied, from the application for registration, that the requirement of s 6(2)(b) was met and duly registered the association.
As to the factual reason given by Qube for RAIDM Inc not having a right to appeal, RAIDM Inc submitted that the Court would be satisfied that RAID Moorebank was a person which made a submission under s 79(5) of the EPA Act by way of objection to the intermodal terminal and hence was an objector who had a right of appeal under s 98(1) of the EPA Act. RAIDM Inc submitted that both the text of the submissions and the context in which the submissions were made establish that Mr Anderson was making the submissions in his capacity as Chairman of RAID Moorebank and hence that they were submissions of RAID Moorebank.
As to the text, Mr Anderson entered the group's name "RAID Moorebank" in the "organisation" field for each submission. He added in brackets that he was the chairman of that group. In two of the submissions, Mr Anderson used the first person, plural possessive pronoun "our" referring to "our committee" and "our problems", clearly referring to RAID Moorebank.
The text of the submissions clearly communicated that the submissions were made by the group RAID Moorebank. The Department of Planning, which received the submissions, so understood the submissions as being from "RAID Moorebank" and collated all four submissions together as being "RAID Moorebank's submissions".
RAIDM Inc submitted that the context in which the submissions were made supported the conclusion that they were made by RAID Moorebank. Mr Anderson was nominated and accepted as Chairman in 2014 by the members of RAID Moorebank. The evidence makes it clear that in the period leading up to the submission period, Mr Anderson was accepted and recognised by the group as its leader and a person who could represent the unincorporated group RAID Moorebank to the public at large. In fact, he did so on a number of occasions.
RAIDM Inc noted that Qube sought to draw the inference that Mr Anderson was not authorised to make the submissions for RAID Moorebank from a comparison of the detailed and structured minutes of RAID Moorebank in January 2017 with the less detailed and structured minutes of RAID Moorebank around the time of the submission period in June 2015. RAIDM Inc submitted that it is clear from the evidence that, by January 2017, the modes of communication of the group had evolved as the organisation matured, for example the introduction of RAID templates, letterheads and email addresses. Such organisation coincided with the group getting ready to make application for registration of the group under the Associations Incorporation Act. RAIDM Inc submitted, however, that just because the minutes of meetings of RAID Moorebank in the period leading up to the submission period in June 2015 did not refer to the submissions made by Mr Anderson for the group does not mean that they were not validly made or that Mr Anderson was not authorised to make them for the group.
RAIDM Inc submitted that it was inconceivable that RAID Moorebank, which had the purpose of objecting to the intermodal terminal at Moorebank, would not authorise its Chairman to make submissions during the submission period by way of objection to the development application for the intermodal terminal at Moorebank.
RAIDM Inc submitted, therefore, that the submissions were made by the unincorporated group of persons known as RAID Moorebank. RAIDM Inc noted that under s 79(5) "any person" may make written submissions to the consent authority with respect to the development application. A "person" is defined in s 4 of the EPA Act to include "an unincorporated group of persons or a person authorised to represent that group". RAID Moorebank was an unincorporated group of persons. Mr Anderson made written submissions in his capacity as Chairman of the unincorporated group of persons. This was not as a person authorised to represent the group but as the person through whom the group made the submissions. The unincorporated group of persons had to act through human means; Mr Anderson was the human means. The submissions he made through the online portal were the submissions of the unincorporated group of persons, RAID Moorebank.
In these circumstances, RAIDM Inc submitted that RAID Moorebank was the person who made the submissions under s 79(5) and hence was an objector. Upon the determination to grant consent to the development application for the intermodal terminal, RAID Moorebank as an objector acquired the right to appeal under s 98(1) of the EPA Act against that determination. This right of appeal fell within "the rights…of the former body" referred to in cl 2(1)(b) of Sch 2 of the Associations Incorporation Act. By virtue of that clause, the right of appeal of the former body, RAID Moorebank, became the right of appeal of the incorporated association, RAIDM Inc.

The challenge to standing of the applicant fails

I find that Qube has not established that RAIDM Inc did not have the right to commence the appeal under s 98(1) of the EPA Act against the determination to grant consent to the intermodal terminal.
Qube's challenge to RAIDM Inc's right to appeal under s 98(1) of the EPA Act is dependent on Qube establishing that RAID Moorebank did not itself have the right to appeal under s 98(1) of the EPA Act against the determination to grant consent to the intermodal terminal or, if it did, that the right of RAID Moorebank to appeal did not become, by virtue of cl 2(1)(b) of Sch 2 of the Associations Incorporation Act, the right of RAIDM Inc to appeal under s 98(1) of the EPA Act. I am not satisfied that Qube has established either proposition.
I will start with the factual proposition that RAID Moorebank was not a person who made a submission under s 79(5) of the EPA Act by way of objection to the development application for consent to carry out the intermodal terminal.
Section 79(5) of the EPA Act allows "any person" during the submission period to make written submissions to the consent authority with respect to the development application for designated development. A "person" is defined broadly to include "an unincorporated group of persons or a group of persons authorised to represent that group". The entity of "an unincorporated group of persons" is not defined in the EPA Act. Its ordinary English meaning would include any form of combination of persons who have not been incorporated as a body or association under some statutory scheme. The EPA Act also does not contain any provision specifying the characteristics of an unincorporated group of persons.
The right to appeal under s 98(1) of the EPA Act against a determination to grant consent to a development application for designated development is vested in "an objector". An "objector" is defined in s 4 of the EPA Act to mean "a person who has made a submission under s 79(5) by way of objection to a development application for consent to carry out designated development". As noted, persons who can make a submission under s 79(5) include an unincorporated group of persons.
The effect of these statutory provisions, subss 79(5) and 98(1) and the definitions of "person" and "objector", is to expand the categories of entities who can be involved and participate in the process of determining a development application for designated development, firstly by making a submission with respect to the development application for designated development and secondly by appealing any determination to grant consent to the development application for designated development. This expansion of the categories of persons who can participate is consonant with the object of the EPA Act "to provide increased opportunity for public involvement and participation in environmental planning and assessment" (s 5(c) of the EPA Act).
It is against this statutory background that Qube's submissions that RAID Moorebank was not a person who made a submission under s 79(5) of the EPA Act need to be evaluated. I find that the evidence establishes that RAID Moorebank was "an unincorporated group of persons" within the meaning of "person" in the EPA Act. The evidence summarised above concerning the formation, name, common purpose, membership, meetings and activities of RIAD Moorebank established that RAID Moorebank was an unincorporated group of persons. I agree with and adopt as applicable to an unincorporated group of persons under the EPA Act RAIDM Inc's submissions that RAID Moorebank was an "unincorporated body" within the meaning of the Associations Incorporation Act.
I find that RAID Moorebank made submissions under s 79(5) by way of objection to the development application to the intermodal terminal within the submission period. RAID Moorebank made four submissions through its Chairman, Mr Anderson. The four written submissions made through the online portal by Mr Anderson all stated that the organisation making the submission was "RAID Moorebank". Mr Anderson described himself as the Chairman of RAID Moorebank. This was correct. He had been nominated and accepted the role of Chairman of RAID Moorebank. The content of two of the submissions use language referring to RAID Moorebank, one referring to "our committee" and another referring to "our problems".
The giving of Mr Anderson's personal email and residential address as contact details did not displace the inference that would otherwise be drawn from the express statements that the objections were made by RAID Moorebank. Similarly, the use in two of the submissions of the first person singular pronoun in stating what Mr Anderson had done or his grounds of objection did not displace the inference that would otherwise be drawn that the submissions were made by RAID Moorebank. Mr Anderson said he was the Chairman of RAID Moorebank. The use of the first person singular pronoun is not inconsistent with him making this submission as the Chairman of RAID Moorebank.
In any event, only one submission by RAID Moorebank within the submission period needed to be made in order for RAID Moorebank to be a person who made a submission under s 79(5) and hence an objector, not all four submissions. Even if one or two submissions could be construed as being by Mr Anderson personally (which I do not find) and not by RAID Moorebank, there still would be at least two other submissions that clearly referred to RAID Moorebank's concerns and were made by RAID Moorebank.
The context within which the submissions under s 79(5) were made also supports the inference that the submissions were made by RAID Moorebank. RAID Moorebank was formed and operated for one purpose: to oppose the intermodal development at Moorebank. All of its meetings and activities were focused on achieving that purpose. It is inconceivable that RAID Moorebank would not make a submission, when the opportunity to do so arose, objecting to the latest development application to carry out an intermodal terminal at Moorebank. Any written submission had to be made through the online portal by one of the members of RAID Moorebank. Mr Anderson was the Chairman of RAID Moorebank. He was accepted and recognised by the members of RAID Moorebank as its leader and as a person who could speak and act for it. He did so on a number of occasions. It was entirely consistent that Mr Anderson would be the person who made the submissions through the online portal for RAID Moorebank objecting to the intermodal terminal.
The content of the four submissions Mr Anderson made was entirely consistent with the grounds of objection to the intermodal terminal that RAID Moorebank had been advocating to the government, the public and the media.
Qube disputed that RAID Moorebank had established on the evidence that Mr Anderson was in fact authorised by RAID Moorebank to make the submissions objecting to the development application for the intermodal terminal. I find that the evidence is sufficient to draw the inference that Mr Anderson was authorised by RAID Moorebank to make the submissions that he did make.
However, it is more a matter for Qube to establish that Mr Anderson did not have the authority from RAID Moorebank to make the submissions. Qube is the party contending that the submissions, which on their face were said to be by RAID Moorebank and which were accepted by the consent authority as having been made by RAID Moorebank, were not in fact made by RAID Moorebank. But, there is no evidence in support of that contention. There is no evidence establishing that RAID Moorebank did not authorise Mr Anderson to make the submissions or that the submissions Mr Anderson made exceeded his authority as Chairman of RAID Moorebank.
In summary, I find that RAID Moorebank made submissions under s 79(5) by way of objection to the development application to the intermodal terminal and therefore became an "objector" who had a right of appeal under s 98(1) of the EPA Act.
I turn to Qube's legal contention that any right of RAID Moorebank to appeal under s 98(1) of the EPA Act did not become, by virtue of cl 2(1)(b) of Sch 2 of the Associations Incorporation Act, the right of RAIDM Inc. Qube contended that cl 2(1)(b) of Sch 2 did not have this effect because, first, RAID Moorebank was not an "unincorporated body" within the meaning of the Associations Incorporation Act whose rights could become rights of the incorporated association RAIDM Inc and second, RAID Moorebank did not comply with the statutory process for application for registration as an incorporated association.
Clause 2(1)(b) of Sch 2 of the Associations Incorporation Act provides that: "On an association's incorporation under this Act, the following provisions have effect: … (b) the rights and liabilities of the former body become by virtue of this clause the rights and liabilities of the association…"
The "former body" referred to is defined in cl 1 of Sch 2 to include: "(a) an unincorporated body that has been incorporated as a consequence of its registration under this Act."
The "association" referred to is defined in s 4(1) of the Associations Incorporation Act to mean "an association registered under this Act."
In this case, RAID Moorebank meets the description in the definition of "former body" of being an unincorporated body that has been incorporated as a consequence of its registration under the Associations Incorporation Act. RAID Moorebank applied for registration under s 6(1) of the Associations Incorporation Act on the basis that it was "an unincorporated body having 5 or more members". The Secretary (the Commissioner of Fair Trading) accepted that application by RAID Moorebank as an unincorporated body and registered it under s 7 as an incorporated association under the Associations Incorporation Act. The Secretary issued a certificate of registration under s 7(4) of the Associations Incorporation Act.
This incorporation of RAID Moorebank as a consequence of its registration under the Associations Incorporation Act has two consequences: first, it accepts that RAID Moorebank was an unincorporated body that was incorporated and, second, it accepts that the application for registration by the unincorporated body complied with all statutory requirements, including the requirement in s 6(2)(b) that the application was authorised by a special resolution passed by the members of the unincorporated body. The registration of the association and the certificate for the association are conclusive proof of the regularity of both the application for registration and determination of that application. Unless and until a court of competent jurisdiction sets aside the registration of the association, this Court should accept the regularity of both the application for registration and the determination of that application.
It is true that, as a general proposition, there can be a collateral challenge to certain facts in a court other than the court of competent jurisdiction but it depends on what is being challenged. In this case, Qube seeks to challenge the very basis of the registration of the incorporated association, both that there was an unincorporated body that was incorporated as a consequence of its registration under the Associations Incorporation Act and the compliance of the application for registration with one of the statutory requirements for application for registration (in s 6(2)(b)). Satisfaction about these preconditions was within the discretionary power of the Secretary of Fair Trading NSW determining the application for registration. The Secretary accepted that RAID Moorebank was an unincorporated body having 5 or more members and that its application for registration as an association was authorised by a special resolution passed by members of that body. This Court should not look behind these findings that the statutory preconditions to the registration of an unincorporated body as an incorporated association were met.
However, if it be appropriate for this Court to determine Qube's challenges to the preconditions, I find that Qube has not established that RAID Moorebank was not an unincorporated body or that its application for registration was not authorised by a special resolution passed by members of that body.
I agree with and adopt the submissions of RAIDM Inc, summarised above, that RAID Moorebank was an unincorporated body for the purposes of the Associations Incorporation Act. The Associations Incorporation Act does not define an "unincorporated body" or prescribe essential characteristics of an unincorporated body. As the authorities to which RAIDM Inc referred establish, all that is required for an unincorporated body is some form of combination of persons, having a common interest or purpose, with a degree of organisation and continuity. The evidence concerning the formation, name, common purpose, membership, meetings, and activities of RAID Moorebank establish that it was such an unincorporated body.
I do not accept that it is necessary that a group of persons possess all of the characteristics posited by Qube in order for it to be an unincorporated body for the purposes of the Associations Incorporation Act. Contrary to Qube's submissions, the Associations Incorporation Act does not so require, either expressly or by necessary implication from its provisions. Critical to Qube's submission that an unincorporated body must have certain characteristics is its argument that s 39 applies to an unincorporated body. As I find below, s 39 does not apply to an unincorporated body before it is registered, only after it has been incorporated as a consequence of registration under the Associations Incorporation Act.
If s 39 does not apply to an unincorporated body, that leaves only the requirements of s 6. However, other than the requirements that the unincorporated body have 5 or more members (s 6(1)(b)), that the members of that body pass a special resolution authorising the application for registration (s 6(2)(b)) and that a copy of the special resolution be attached to the application (s 6(3)(f)), there are no other requirements from which characteristics of an "unincorporated body" can be derived. I do not accept that the Associations Incorporation Act demands that an unincorporated body have a constitution or rules. The Associations Incorporation Act expressly requires a constitution for an incorporated association (see, for example, s 6(3)(d) and s 7(3)) but does not similarly require a constitution or set of rules for an unincorporated body applying to be registered.
I find, therefore, that Qube has not established that RAID Moorebank was not an unincorporated body that could apply for registration under the Associations Incorporation Act.
I also find that Qube has not established that RAID Moorebank's application for registration did not comply with the requirements under s 6 of the Associations Incorporation Act, including s 6(2)(b). Qube's contention was that RAID Moorebank did not pass a special resolution authorising the application for registration, because it did not comply with the process for special resolutions specified in s 39 of the Associations Incorporation Act. I agree with RAIDM Inc that s 39 does not apply to special resolutions passed by an unincorporated body before it has been incorporated as a consequence of registration under the Act, for the reasons given by RAIDM Inc that I have summarised above. The procedure for passing a special resolution specified in s 39 only applies to an association after it has been registered under the Associations Incorporation Act. An unincorporated body is not required by the Associations Incorporation Act to follow the procedure specified in s 39 in passing a special resolution authorising the making of an application for registration.
I find, as a matter of fact, that RAID Moorebank did pass a special resolution authorising the making of the application for registration of it as an incorporated association. RAID Moorebank resolved at successive meetings to apply for it to become an incorporated association: first, by "100% consensus" of the 10 members present at the meeting on 28 October 2016; second, by resolution of the 9 members present at the meeting on 13 January 2017; and third, by confirmation by the 8 members present at the meeting on 20 January 2017 of the resolution of 13 January 2017, when a draft of the constitution of the incorporated association was "formally presented" and "supported" by the members. Mr McDonald, who was nominated as the first public officer of the incorporated association, declared in the application for registration that a special resolution (motion) for RAID Moorebank to become incorporated had been passed by the members of RAID Moorebank and he attached the minutes of the meeting on 20 January 2017 as evidence that a special resolution had been passed. The Secretary (the Commissioner of Fair Trading) accepted that declaration and the minutes of the meeting as evidence that the application for registration had been authorised by a special resolution passed by the members of RAID Moorebank.
As I observed earlier, Qube is the party contending that there never was a special resolution passed by the members of RAID Moorebank authorising the application for registration. But there is no evidence supporting that contention. No member has said, and there are no documents that say, that the members of RAID Moorebank did not pass a special resolution authorising the application for registration. Qube cannot establish its contention.
I, therefore, reject Qube's challenge to the incorporation of the unincorporated body RAID Moorebank as a consequence of its registration under the Associations Incorporation Act. The result is that, on the incorporation of RAID Moorebank under the Associations Incorporation Act, the right of RAID Moorebank to appeal under s 98(1) of the EPA Act became the right of the incorporated association, RAIDM Inc.

Conclusion and orders

Qube's notice of motion should be dismissed.
RAIDM Inc sought its costs of defending Qube's motion for summary dismissal of the appeal. Although the motion is in proceedings in Class 1 of the Court's jurisdiction, where ordinarily no order for the payment of costs is made, RAIDM Inc submitted that an order for costs is fair and reasonable in the circumstances. The motion involved, as a central issue, questions of law and fact, the determination of which in one way would be determinative of the proceedings (see r 3.7(3)(a) of the Land and Environment Court Rules 2007). RAIDM Inc also submitted that it had corresponded with Qube rejecting, with reasons, Qube's challenge to the standing of RAIDM Inc and repeatedly requesting that the motion not be pressed on the basis that there was no utility in pursing such a motion (see r 3.7(3)(c) and (f)).
Qube submitted that the appropriate order would be that each party bear its own costs of the motion. Qube submitted that such an order is appropriate in circumstances where: Qube's solicitors had repeatedly requested that RAIDM Inc provide evidence demonstrating its standing to bring the appeal, including providing copies of specified documents; Qube's solicitors foreshadowed the filing of a notice of motion for summary dismissal of the proceedings if the evidence requested was not provided; and Qube's solicitors issued notices to produce specified documents that had not been provided in response to the request.
I am satisfied that it is fair and reasonable in the circumstances to make an order that Qube pay RAIDM Inc's costs of the motion, for the reasons given by RAIDM Inc. The motion sought the summary dismissal of RAIDM Inc's appeal. The resolution of Qube's motion did not involve any evaluation of the merits of the appeal. The usual rule that there be no order for the payment of costs is inappropriate in these circumstances. RAIDM Inc should be compensated for its costs in defending Qube's unsuccessful application for summary dismissal of RAIDM Inc's appeal. The conduct referred to by Qube concerning RAIDM Inc's non-production of evidence or documents requested by Qube is not material to the reasons for the Court's determination of Qube's motion. That conduct does not disentitle RAIDM Inc from being otherwise awarded costs.
The Court orders: 1. The second respondent's notice of motion filed on 7 June 2017 is dismissed. 2. The second respondent is to pay the applicant's costs of the motion.

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: 12 September 2017

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