Qube Holdings Ltd v Residents Against Intermodal Development Moorebank Inc

1. [1]

   MACFARLAN JA: These proceedings concern the standing of the first respondent, Residents Against Intermodal Development Moorebank Inc (“RAIDM Inc”), to appeal to the Land and Environment Court of New South Wales (the “LEC”) against a decision of the Planning Assessment Commission of New South Wales (the “PAC”), acting as delegate for the Minister for Planning, to approve Stage 1 of the SIMTA Moorebank Intermodal facility. The site for the proposed facility comprises approximately 83 hectares of land at Moorebank in Sydney. Stage 1 involves the construction and operation of infrastructure to support both the annual distribution of 125,000 container units from Port Botany to the facility, and the distribution of the same number of units from the facility to other places. The development is a “State significant development” for the purposes of s 89C of the Environmental Planning and Assessment Act 1979 (NSW) the (“EPA Act”). In accordance with s 79 of that Act, there was a public exhibition of the development application in respect of Stage 1, and there was an opportunity for objections to the development to be made.

2. [2]

   As there were more than 25 objections, the application was referred to the PAC for determination under ministerial delegation. On 12 December 2016 the PAC decided to grant consent to the development application.

3. [3]

   Section 98 of the EPA Act confers on an “objector” a right of appeal to the LEC against the determination of a consent authority to grant consent to a development application. “Objector” is defined in s 4 of the 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”. “Person” is defined in the same section to include “an unincorporated group of persons or a person authorised to represent that group”.

4. [4]

   RAIDM Inc filed an appeal against the PAC’s decision. The appeal is listed for hearing in the LEC on 25, 26 and 27 October 2017. Qube Holdings Ltd, the proponent of the development and a respondent to that appeal, thereafter filed a notice of motion seeking summary dismissal of the appeal upon the basis that RAIDM Inc has no standing to appeal against the PAC’s decision. Qube’s argument was, and is, that RAIDM Inc did not lodge an objection to the development, with the consequence that s 98 did not confer a right of appeal on it. Further, it argued, and continues to argue, that RAIDM Inc did not acquire such a right from its predecessor unincorporated body, Residents Against Intermodal Development Moorebank (“RAID Moorebank”).

5. [5]

   RAIDM Inc accepts that it did not make an objection to Qube’s application. In fact, it could not have done so as it was only incorporated under the Associations Incorporation Act 2009 (NSW) (“the AI Act”) after the period for lodgement of objections had expired. RAIDM Inc however contends that RAID Moorebank made a relevant objection and that, by operation of the AI Act, RAIDM Inc acquired RAID Moorebank’s right of appeal upon RAIDM Inc’s incorporation.

6. [6]

   By a decision of 12 September 2017 Preston CJ of the LEC found that RAIDM Inc has standing to pursue its appeal ([2017] NSWLEC 115). His Honour accordingly dismissed Qube’s notice of motion.

7. [7]

   Qube seeks leave to appeal to this Court against that interlocutory decision. Its application, and the appeal that would lie if leave were granted, were heard concurrently. For the reasons given below, I do not consider that the proposed appeal has merit. However as the proceedings involve a matter of significant public interest and the appeal has been fully argued, I consider that leave to appeal should be granted. The appeal should then be dismissed.

8. [8]

   As is apparent from this description of the proceedings, the issue presently before this Court turns upon the operation of the AI Act, to which I now refer.

The Associations Incorporation Act

1. [9]

   As its Long Title indicates, the AI Act is designed “to provide for the registration of clubs, societies and other non-profit associations; to provide for the regulation of those associations after registration; and for other purposes”.

2. [10]

   The objects of the Act are stated in s 3 as follows:

3. [11]

   The definitions in s 4(1) of the Act include:

4. [12]

   Sections 6, 7 and 8 are in the following terms:

5. [13]

   Part 4 of the Act is concerned with the “Management of associations”. Division 3 in that Part is headed “General” and includes s 37, which contains requirements for the holding of general meetings. Section 38 concerns “Voting generally”, and in particular identifies what constitutes an “ordinary resolution”. Section 39 is in the following terms:

6. [14]

   Part 7 of the Act deals with “Cancellation and transfer of registration”. Section 76, which is contained in that Part, empowers the Secretary to cancel an association’s registration if satisfied of various circumstances including the non-operation of the association, the association having become registered under the Act “because of fraud or mistake”, or it being “in the public interest to cancel the association’s registration”.

7. [15]

   Schedule 2 to the Act is given effect by s 8(2). The schedule is relevantly in the following terms:

Qube’s arguments at first instance

1. [16]

   Qube submitted that RAID Moorebank was not “an unincorporated body” for the purposes of s 6(2)(b) and Schedule 2 to the AI Act because RAID Moorebank lacked a number of characteristics necessary for a group of persons to meet that description. The primary judge recorded the submission as follows:

2. [17]

   Qube submitted that even if its reliance on ss 6 and 39 was ill-founded and it could only base its argument on the general law, “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” (Judgment at [39]). Qube referred to a number of authorities, including Conservative Office v Burrell [1982] 1 WLR 522 at 525, which were said to support this proposition.

3. [18]

   The primary judge accepted that at the relevant time RAID Moorebank did not “have a constitution or any body of rules governing voting and voting rights” (Judgment at [42]). The issue raised by Qube’s submissions was accordingly whether this meant that RAID Moorebank was not an “unincorporated body” for the purposes of the AI Act.

The judgment at first instance

1. [19]

   The primary judge’s factual findings included the following:

2. [20]

   His Honour found that RAID Moorebank lodged a number of objections to Qube’s development application in the period allowed by s 79(5) of the EPA Act for the making of objections. That finding is not challenged on appeal.

3. [21]

   The primary judge also found that the evidence referred to in [19] above concerning “the formation, name, common purpose, membership, meetings and activities of RAID Moorebank” established that it was “an unincorporated group of persons” within the meaning of “person” in the EPA Act, as well as an “unincorporated body” within the meaning of the AI Act (Judgment at [96]).

4. [22]

   His Honour took the view that Qube’s arguments involved a collateral challenge to the registration of RAIDM Inc and concluded:

5. [23]

   Further his Honour concluded that, even if Qube was entitled to go behind the registration of RAIDM Inc, it failed to establish that RAID Moorebank was not an “unincorporated body for the purposes of the AI Act”. His Honour stated:

6. [24]

   As foreshadowed in these extracts, his Honour then found that s 39 of the AI Act did not apply to special resolutions passed by an unincorporated body. On that basis, he found that RAID Moorebank did pass a “special resolution” of the type referred to in s 6(2)(b) of the AI Act because:

7. [25]

   For these reasons, the primary judge found that RAID Moorebank’s right, as an objector, to appeal under s 98(1) of the EPA Act became the right of RAIDM Inc when that entity was incorporated. As a result, his Honour found that RAIDM Inc has standing to pursue its appeal and dismissed Qube’s motion for summary judgment.

Determination of the appeal

1. [26]

   Qube’s argument on appeal was encapsulated in the following paragraph in its written submissions:

2. [27]

   As is apparent from my description of the judgment at first instance, the primary judge gave two reasons for rejecting Qube’s argument to this effect, (the argument also having been put to his Honour). His Honour’s first reason was that the argument involved an impermissible collateral challenge to RAIDM Inc’s registration as an association (see [22] above). Secondly, assuming (contrary to his Honour’s views) that it was permissible for RAIDM Inc to put that argument, his Honour rejected it as a matter of construction of the AI Act (see [23]-[24] above). It is convenient to deal with the second of these reasons first.

3. [28]

   The essence of Qube’s construction argument is that the AI Act contemplates that an “unincorporated body”, as described in s 6(2)(b) and Schedule 2 of the Act, necessarily has “a constitution or set of rules making provision for membership and voting, and a list or register of members”. Qube asserts that the provisions of the AI Act (in particular s 6(2)(b) and s 39) indicate that these features are essential characteristics of an “unincorporated body”. Alternatively, Qube submits that general law authority leads to a similar conclusion.

4. [29]

   Qube further submits that if RAID Moorebank was not an “unincorporated body” within the meaning of Schedule 2 (and s 6(2)(b)) of the Act), it follows that Schedule 2 did not operate to transfer any rights to RAIDM Inc on its incorporation, including RAID Moorebank’s right of appeal to the LEC. Schedule 2 is given operation by s 8(2) of the Act.

5. [30]

   The first question arising from these submissions is whether the definition of “special resolution” in s 39 of the Act applies to the term “special resolution” in s 6(2)(b). If it does, a considerable degree of formality is required for an unincorporated association to pass the requisite “special resolution” to approve an application for registration. Qube says that RAID Moorebank did not have the structure to enable this to be done. This is the principal plank of Qube’s submissions.

6. [31]

   Like the primary judge, I am however of the view that s 39 does not so apply. Section 39(1) is expressed to relate to the passage of a special resolution “by an association”. That word is defined by s 4(1) to mean “an association registered under this Act”. On its face, s 39(1) did not therefore apply to an unincorporated body such as RAID Moorebank which was not registered under the Act.

7. [32]

   A definition stated by an Act to be applicable need not be applied where the “context or subject-matter” suggests it should not (Interpretation Act 1987 (NSW) s 6). However, the context in which s 39 appears strongly indicates that the section does not apply to the term “special resolution” in s 6(2)(b). Section 39 is in Part 4 of the AI Act, which is concerned with the “Management of associations”. Consideration of the provisions in that Part reveals that they relate to the “regulation of … associations after registration”, this being an expression used in the Long Title of the Act (see [9] above). None of the provisions in that Part (including s 39) appears apt to be applied to an unincorporated body prior to its registration. In these circumstances, it is clear that the provisions of Part 4 as a whole were not intended to regulate unincorporated associations prior to their registration. A conclusion that, unlike other sections in Part 4, s 39 applied not only to a registered association, but also to an unincorporated body, would be anomalous and without support from any aspect of the language or context of that section.

8. [33]

   Qube submitted that, on ordinary principles of construction, the Court should strive to attribute the same meaning to the term “special resolution” where used in different parts of the Act. Whilst consistency of meaning is a proper matter to consider, it is not a decisive factor in the present case. By reason of the express limitation of s 39’s operation to an “association”, and that word’s definition in s 4 as an association registered under the AI Act, the express terms of the Act contradict any suggestion that the words must necessarily have the same meaning wherever used in the Act.

9. [34]

   Qube also submitted that the “significant consequences under Schedule 2 of the Act [that] flow from the passage of a special resolution by an unincorporated body” favour the conclusion that an unincorporated association should be regarded as having certain “irreducible minimum characteristics”, including those for which Qube contends. I do not however consider that these consequences justify departure from the language of s 39 (nor do they require any particular formalities in the conduct of an unincorporated body beyond those which may be inherent in its nature, as to which see [38]-[41] below).

10. [35]

    I do not accept Qube’s further submission that, unless the definition in s 39 is applicable, the requirement for a special resolution in s 6(2)(b) is meaningless or incapable of being satisfied. Whilst the precise ambit of the term “special resolution” is open to debate in the absence of an applicable statutory definition, it can at least be said that it contemplates something more than a resolution of a simple majority of members (that is, an ordinary resolution). Certainly, I consider that the term “special resolution” would embrace a situation where all members of the unincorporated body agreed on a course of action. The position would then be one of unanimous assent which is, as a general rule, treated as obviating the need to adhere to formalities as to the passage of resolutions (see In re Duomatic Ltd [1969] 2 Ch 365; MYT Engineering Pty Ltd v Mulcon Pty Ltd (1999) 195 CLR 636; [1999] HCA 24 at [24]).

11. [36]

    In these circumstances, it is unnecessary to decide what lesser level of support, if any, is sufficient to render a resolution “special”. The point relevant to this argument is not whether RAID Moorebank passed a “special resolution” in the present case. Rather it is one of construction, namely, whether the words “special resolution” in s 6(2)(b) would be unworkable unless the definition in s 39 were found to be applicable. The conclusion that there is at least one means (namely unanimous assent) by which the requirement of a “special resolution” might be satisfied is sufficient to require a negative answer to that question.

12. [37]

    If, as I have concluded, s 39 is inapplicable Qube’s argument that RAID Moorebank was not an “unincorporated body” for the purposes of the AI Act because it did not have rules which facilitated the passing of a special resolution with comparable formality to that described in s 39 is left without any support from the provisions of that Act. In particular, s 6 does not assist Qube in light of the operation that I have said can and should be given to the words “special resolution” in s 6(2)(b). A consequence of this construction is that the requirement of a “special resolution” is workable in the case of an unincorporated body that does not have a constitution or set of formal rules regulating its internal procedures.

13. [38]

    Nor in my view is there any principle to be derived from case authority that an unincorporated body must have the characteristics identified by Qube. Certainly there are cases that refer to such characteristics when describing unincorporated associations, but none to which this Court’s attention was directed go so far as to say that the existence of those characteristics is essential to the classification of the group of persons as an “unincorporated body”.

14. [39]

    The great diversity of unincorporated bodies or associations in the community was recognised by the New Zealand Court of Appeal in Cometa United Corporation and Tradewood Shipping Company v Canterbury Regional Council [2007] NZCA 560; [2008] NZAR 215 at [23], as follows:

15. [40]

    As a result of this diversity, courts should be slow to find that the adoption of any particular formalities is essential to the existence of an unincorporated body or association. Much will depend upon the nature of the group of persons in question and the context in which its character arises for consideration.

16. [41]

    It is sufficient for present purposes to accept the following description of the nature of an unincorporated body or association given by Mandie J in Kibby v Registrar of Titles [1999] 1 VR 861; [1998] VSC 148 at [50]:

17. [42]

    On the primary judge’s findings (see [19] and [21] above), RAID Moorebank met that description. That body undoubtedly had a degree of organisation and continuity, and its members were identifiable and united by their common interest in opposing the subject development. The AI Act does not assume, nor require, the existence of any greater formality in the structure or organisation of an “unincorporated body” as the term is used in s 6(2)(b) and Schedule 2 of the Act. Nor is there any other reason to find that such formality is necessary.

18. [43]

    For these reasons, Qube’s appeal must fail. The primary judge was correct to find that RAID Moorebank was an “unincorporated body” whose right of appeal in relation to the PAC’s decision passed to RAIDM Inc by reason of the operation of Schedule 2 to the AI Act.

19. [44]

    In these circumstances, the correctness or otherwise of the primary judge’s other reason for dismissing Qube’s notice of motion (that Qube sought an impermissible collateral review of RAIDM Inc’s registration) is not critical to the outcome of the appeal to this Court. I nevertheless make the following observations in relation to it.

20. [45]

    In my view Qube’s submissions do not involve a collateral attack on RAIDM Inc’s registration. Qube’s argument is that RAID Moorebank was not an “unincorporated body” of the character referred to in Schedule 2 of the Act (and s 6(2)(b)). Qube does not expressly allege that RAIDM Inc’s registration as an association is invalid. Nor in my view is that implicit in its argument because the validity of RAIDM Inc’s registration is not dependent on all the requirements for an application for registration, stated in s 6(2)-(5), having been met. In particular, because the Secretary (as defined in the Act – see [11] above) accepted the application and registered RAIDM Inc, it would not make the registration automatically invalid if the application had not in fact been authorised by a “special resolution” or made by an “unincorporated body”.

21. [46]

    This view is based on my conclusion that the AI Act does not evince a legislative intent that non-compliance with the application requirements in s 6 will invalidate a registration resulting from an application which, although defective, was accepted by the Secretary.

22. [47]

    Certainly, s 6(2) is expressed in mandatory terms: the word “must” is used in this subsection, and it is also used in subsections (3), (4) and (5). However, as the High Court made clear in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, that does not necessarily mean that an act such as the making of an application for registration under the AI Act, and the registration effected in reliance upon it, are invalid if there is a departure from the application requirements.

23. [48]

    As the plurality said in Project Blue Sky at [93]:

24. [49]

    The matters that have led to my conclusion regarding the legislative intent are as follows.

    1. (1)

       It can readily be concluded that, in relation to at least many of the requirements for an application specified in s 6(2)-(5) of the AI Act, the legislature did not intend that non-compliance would invalidate the application or the consequent registration. For example, an application is required to be “in the approved form”, but non-compliances might be minor. Similarly, the prescribed fee is to accompany the application but the fee might be paid late.

    2. (2)

       There are no differences in the language used in s 6(2)-(5) to specify the different requirements for an application which suggest that non-compliance with some of the requirements was intended to affect validity, whilst non-compliance with others was not. In light of (1) above, the likelihood is that the legislature did not intend non-compliance with any of the requirements to have that effect.

    3. (3)

       The Secretary, as defined, is empowered by s 7(2) to refuse the application for registration if the application does not comply with s 6. This provides some support for the view that the sufficiency of the application is a matter for the registrar.

    4. (4)

       The Secretary is given power by s 76(1) to cancel an association’s registration in a broad range of circumstances, including if he or she is satisfied that it is in the public interest to do so (s 76(1)(k)). Thus, the Secretary may cancel a registration if a serious defect in the application on which it was based comes to his or her attention, and cancellation is considered to be warranted in all of the circumstances.

    5. (5)

       People in the community may have had dealings with the registered association on the faith of its corporate identity. Possible prejudice resulting to such persons from cancellation of its registration may be taken into account by the Secretary in exercising his or her discretion to cancel the association’s registration. This may avoid the prejudice being suffered. Such prejudice will not be avoided if the association’s registration is automatically invalid as a result of a defect in the application for registration.

    6. (6)

       If a defect in an application invalidated an association’s registration, persons intending to deal with an association might, as a matter of prudence, consider it necessary to attempt to investigate the validity of its application for registration. This would probably involve considerable inconvenience and expense. In any event, it might not be possible to undertake a proper investigation due to lack of access to the application form and to information concerning the steps taken in the course of the application process.

    7. (7)

       The Long Title and the objects of the AI Act (see [9]-[10] above) suggest that the Act was designed to facilitate the creation and operation of associations engaging in “small-scale, non-profit and non-commercial activities”. This object would be promoted if the Secretary has the power to determine whether a sufficient application for registration has been made and then proceed to effect a valid registration. In contrast, the opposite effect would occur if registrations of associations effected by the Secretary were automatically invalidated due to deficiencies in applications accepted by the Secretary.

25. [50]

    It follows that, contrary to the primary judge’s view, Qube’s submission does not involve a collateral attack on RAIDM Inc’s registration. If successful, Qube’s submission that RAID Moorebank’s rights (including the right of appeal) did not pass to RAIDM Inc on the latter’s incorporation because RAID Moorebank was not an “unincorporated body” as referred to in Schedule 2 would not mean that RAIDM Inc’s registration was invalid. Rather, the Secretary had the power to effect the registration of the organisation notwithstanding that (on Qube’s submission) it was not an “unincorporated body”. The primary judge’s rejection of Qube’s case on this basis cannot therefore be sustained.

26. [51]

    In these circumstances, it is unnecessary (and due to the urgency with which the present appeal needs to be resolved, not appropriate) to deal with the further question of whether, if Qube’s case did involve a collateral attack on RAIDM Inc’s registration, that attack would have been permissible.

Orders

1. [52]

   For the reasons I have given, I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed with costs.

2. [53]

   MEAGHER AND PAYNE JJA: We have had the advantage of reading Macfarlan JA’s judgment in draft. What follows assumes a familiarity with the circumstances in which this interlocutory appeal arises, the contentious facts as found by the primary judge and the relevant provisions of the Associations Incorporation Act 2009 (NSW). The abbreviations used by Macfarlan JA have been adopted.

3. [54]

   The question for the primary judge was whether, by the application of AI Act, Schedule 2, cl 2(1)(b), a “right” of RAID Moorebank as an “objector” under EPA Act, s 98, in respect of the grant of consent to the development of Stage 1 of the SIMTA Moorebank Intermodal facility, became a right of RAID Inc.

4. [55]

   AI Act, s 8(2) provides:

5. [56]

   RAIDM Inc was on 27 February 2017 registered in accordance with AI Act, s 7(3). That is, on that day the Secretary recorded its name, objects, constitution and official address in the Register of Incorporated Associations. That fact is not contested by Qube.

6. [57]

   Before the primary judge, Qube deployed three arguments in support of a negative answer to this question. They were (in the order in which they arose):

7. [58]

   The primary judge rejected the first of these arguments and it is not pressed in the proposed appeal: Judgment [104]. Qube accepts that the four submissions made in June 2015 were made by “an unincorporated group of persons” having the name RAID Moorebank and accordingly a “person” within EPA Act s 4(1).

8. [59]

   The second argument was also rejected by the primary judge. The primary judge held that RAID Moorebank was an “unincorporated body” at all relevant times. The question addressed by this argument is the central issue in the proposed appeal and his Honour’s conclusion as to the merit of the argument is challenged by grounds 2, 3, 4 and 5.

9. [60]

   The third argument was rejected by the primary judge, and is not pressed as providing a separate reason for concluding that RAID Moorebank’s right under EPA Act, s 98 did not become a right of RAIDM Inc upon its registration under the AI Act. However, in support of its second argument Qube continues to rely on the application of AI Act ss 6(2)(b) and 39 as indicating that the essential characteristics of an “unincorporated body” include that it has a constitution or set of rules making provision for membership, and a list or register of members.

10. [61]

    Qube’s second and third arguments were rejected for two reasons. The first, which his Honour held justified the dismissing of each argument, was that Qube could not by the proceedings in the Land and Environment Court, challenge the validity of the registration of an unincorporated body on the basis that some of the statutory requirements for its registration had not been met: Judgment [110], [111]. This holding is challenged by ground 1. Relevantly for Qube’s arguments, those requirements were that RAID Moorebank be an “unincorporated body” and that its application for registration have been authorised by a special resolution in accordance with AI Act, s 6(2). His Honour’s second reason for rejecting these arguments was that each of these requirements, properly understood, was in fact satisfied: Judgment [113], [118].

11. [62]

    Thus Qube’s appeal is concerned only with the primary judge’s rejection of its second argument. Its first challenge is to his Honour’s conclusion that it was not open to it to contest the validity of RAIDM Inc’s registration in the class 1 proceedings. The second is to his Honour’s conclusion that RAID Moorebank was an “unincorporated body”. For its appeal to be upheld Qube must be successful in each of these challenges.

12. [63]

    It is convenient, as Macfarlan JA has done, to start with Qube’s submission that his Honour erred in holding that RAID Moorebank was at all relevant times an “unincorporated body”. That was necessary for RAIDM Inc to have become entitled to RAID Moorebank’s right to appeal under EPA Act, s 98. That is because by AI Act, s 8(2) the provisions of Schedule 2 only apply to “an association that arises from the registration of an unincorporated body”; and because the provisions of Schedule 2, cl 2(1)(b) only operate with respect to rights of such a body, relevantly a “former body”.

13. [64]

    We agree for the reasons given by Macfarlan JA that the primary judge was correct to hold that RAID Moorebank was an “unincorporated body”. We make one additional observation concerning the construction of s 6(2)(b) and s 39. Section 39 does not in its terms apply to a resolution passed by an “unincorporated body”. Subsection (1) describes the voting majority condition that must be satisfied if a resolution passed by an “association registered” under the Act, and in accordance with paragraphs (a), (b) and (c), is to constitute a “special resolution”. That condition is:

14. [65]

    However it does not follow that the (signpost) definition of “special resolution” in s 4(1) – “see section 39” – does not inform the meaning of those words as used in s 6(2)(b) which refers to “a special resolution passed by the members of the body”. In that provision, the adjective “special” describes the voting majority which the resolution of the unincorporated body authorising the application for registration must achieve. The direction in that definition is to be taken as indicating that the meaning of “special resolution” when used in the Act is to be found in s 39. Accepting that s 39 is concerned with what is required for a resolution passed by a registered association to be a special resolution, the direction when applied in relation to s 6(2)(b) is given effect if “special resolution” describes a resolution passed by at least three-quarters of the members of the unincorporated body.

15. [66]

    We agree with Macfarlan JA that the making of this argument does not involve a challenge to the validity of the Secretary’s decision to register RAIDM Inc. The primary judge concluded otherwise, treating the fact of registration as “conclusive proof of the regularity of both the application for registration and [the] determination of that application”: Judgment [110]. In so holding, his Honour proceeded on the basis that the validity of registration depends on the satisfaction of the requirements in s 6 (relevantly here, those in ss 6(1)(b) and 6(2)(b)) so that by putting in issue the satisfaction of one or more of those requirements, Qube was challenging “the very basis of the registration of the incorporated association”: Judgment [111].

16. [67]

    Qube’s argument that RAIDM Inc lacked standing to bring the appeal does not depend on or require a conclusion that the Secretary’s decision to register RAIDM Inc, or the act of registration, was or is of no legal effect. RAIDM Inc’s standing depends on the application of Schedule 2, cl 2(1)(b) which in turn depends on RAIDM Inc being an “association that arises from the registration of an unincorporated body” within s 8(2). Qube contends that RAIDM Inc does not answer that description because RAID Moorebank was not an “unincorporated body”. That argument takes no issue with the fact of registration, or its legal effect. On the contrary, it accepts that RAIDM Inc is an association registered under the Act.

17. [68]

    Furthermore, for the reasons given by Macfarlan JA, non-compliance with the requirements for registration (relevantly those in ss 6(1)(b) and 6(2)(b)) does not have the consequence that registration of an association, in the manner described in s 7(3), does not have, and continue to have, legal effect in accordance with the provisions of the AI Act, including s 8(2), until that registration is cancelled under Part 7. Accordingly the premise on which the primary judge considered Qube’s argument necessarily involved an impermissible “collateral challenge” was not justified.

18. [69]

    We agree with the orders proposed by Macfarlan JA.