In the matter of Wildlife Information Rescue and Education Service Limited

These proceedings arise out of the miscarriage of the legal process whereby the plaintiff, Wildlife Information and Rescue Service Limited (WIRES) sought to convert its corporate form from an incorporated association under the Associated Incorporations Act 1984 (NSW) (AIA) to a company limited by guarantee under the Corporations Act 2001 (Cth) (conversion).

The first defendant (Ms Katrina Emmett) is a member of WIRES. The second defendant (Mr Garry Henderson) was a member of WIRES. Each of Ms Emmett and Mr Henderson have brought separate proceedings against WIRES. Pursuant to orders made by Parker J, Ms Emmett and Mr Henderson were joined to these proceedings because their separate proceedings may no longer have utility once these proceedings have been determined. They will be given an opportunity to consider what they want to happen with their proceedings in the light of these reasons.

By an Amended Originating Process filed on 23 December 2025, WIRES seeks orders under s 1322(4) of the Act to regularise certain procedural irregularities in relation to the conversion. The application is not opposed by ASIC. There was ultimately no dispute that the orders sought by WIRES should be made. Similarly, by the conclusion of submissions, there was only one dispute of substance – concerning Ms Emmett’s submission that three named directors of WIRES should resign – as to what conditions should be imposed in relation to the orders. For the reasons that follow, the Court will make the orders subject to the conditions set out in [43] below, which do not include Ms Emmett’s proposed condition.

WIRES was represented by Mr A Hochroth of Senior Counsel with Ms Z Bush of Counsel. Ms Emmett was represented by Mr M Kalyk of Counsel with Mr J Forbes of Counsel. Mr Henderson appeared for himself.

At the outset of the proceedings, I reminded the parties that the purpose of the present application was not an invitation to conduct what I described, with no disrespect intended, as a “royal commission" into the affairs of WIRES generally, or the conversion in particular. There can be no doubt that the affairs of WIRES have been in turmoil for some time in connection with the process of updating its constitution and the conversion itself. The Court's task is a narrow one, but nevertheless one requiring the exercise of a considered discretionary judgment.

The Court has received evidence about a wide body of concerns expressed, the Court accepts, in good faith by members of WIRES concerning the corporate process that WIRES has engaged in and its outcome. However, I emphasise that it is not necessary for the Court to determine finally the correctness of those concerns beyond what has been conceded by WIRES itself as the errors that were made.

I also record that what I have referred to as the "miscarriage" was caused by the board of WIRES acting in accordance with what the parties before me accepted was wrong legal advice. Whether WIRES has any recourse against the provider of that advice, for costs that have been incurred that would not otherwise have been incurred but for that advice, is not an issue before me and not something on which the Court expresses any view.

At the commencement of the events which have given rise to these proceedings, WIRES was governed by a constitution to which I will refer as the 2007 Constitution. In circumstances which I will next set out, from around October 2024 to April 2025 the Board of WIRES incorrectly proceeded on the basis that it was governed by what was generally referred to as Constitution B. There is no dispute that WIRES has been properly governed from 1 October 2025 by a New Constitution which is in the same terms as the 2007 Constitution, but for amendments that are necessary to give effect to Pt 5B.1 of the Act.

The relevant events were not contentious. I gratefully acknowledge that the following account is taken from WIRES’ comprehensive written outline of submissions.

Since 1987, WIRES has been a not-for-profit organisation that rehabilitates sick, injured or orphaned native wildlife. It is now a registered charity with approximately 2,747 members and total assets of approximately $72 million.

WIRES was originally registered as an incorporated association under the AIA. However, as WIRES grew, its income and assets came to exceed the threshold for incorporated associations. Consequently, in 2019, the NSW Commissioner for Fair Trading requested that WIRES take steps to transfer its registration to a more appropriate corporate structure.

At the time of this request, WIRES was governed by the 2007 Constitution. The 2007 Constitution could be altered, rescinded or added to only by a special resolution, being a resolution passed by at least three-quarters of the votes cast by members entitled to vote on the proposed resolution.

In order to transfer its registration to a company limited by guarantee validly under the Act, WIRES was required to take the following steps:

WIRES engaged solicitors to assist with the conversion. Most relevantly, WIRES determined that it needed a new constitution to comply with "legal requirements for a company, a registered charity and a deductible gift recipient". Its solicitors recommended that the 2007 Constitution should be "completely rewritten" as part of the transfer to a company limited by guarantee.

WIRES' Board proposed amendments to the 2007 Constitution, which members voted on at special general meetings (SGMs) on 9 September 2023 and 13 March 2024. Those amendments were not passed by a special resolution, as required by the 2007 Constitution.

At a further SGM on 14 July 2024 (July 2024 SGM):

In light of the results of the July 2024 SGM, WIRES' Board sought advice from the solicitors then engaged by WIRES "on the process the Board should now consider following to determine the form of Constitution to lodge with the application to ASIC". The Board was advised that WIRES could apply to transfer its registration to a company limited by guarantee with "any constitution", including Constitution B or an amended version of Constitution A. That was said to be because there was "no requirement in the Corporations Act for the constitution to be approved by the current members of the Association, either by an ordinary resolution or special resolution". It is that advice, in particular, which is the source of WIRES’ subsequent constitutional difficulties.

The Board was further advised that, if WIRES registered with Constitution B, members who did not agree to the terms of Constitution B would not be able to be included as members in the registration application with ASIC, and their membership of WIRES would cease upon registration of WIRES as a company.

WIRES proceeded to obtain a certificate of transfer of registration declaration under s 79(3) of the AIA (declaration certificate), in which a delegate of the Commissioner declared that there was no objection to WIRES becoming registered as a company limited by guarantee under the Act.

WIRES' solicitors then advised that Board that it would need to "determine the form of constitution that will accompany the application" to register as a company limited by guarantee. The solicitors also advised that all proposed members must provide their consent in writing to "becoming" members and to the terms of the constitution, and provided draft consent forms for members to sign.

In reliance on the advice set out in [17], [18] and [20] above, the Board resolved that WIRES apply to register as a company limited by guarantee with Constitution B as its constitution, and to inform persons that were members of the incorporated association as at 27 August 2024 (the date of the Declaration Certificate) that they were able to be members of the company, subject to providing their written agreement to provide a guarantee and to be bound by the terms of Constitution B.

On 9 September 2024, WIRES sent an email to members advising that it had obtained the Declaration Certificate and the Board had resolved to apply to ASIC to transfer WIRES' registration to a company limited by guarantee, with Constitution B as the company's constitution. Members were told that if they wished to continue as members of the company, they would need to provide their written agreement within 7 days to be a member of WIRES, to provide a $1 guarantee, and to be bound by the terms of Constitution B.

On 17 September 2024, WIRES' solicitors applied to ASIC to register WIRES as a company limited by guarantee. The registration application included:

On 19 September 2024, ASIC approved WIRES' transfer of registration to a company limited by guarantee.

On 4 October 2024, WIRES sent an email to members advising that ASIC had approved WIRES' registration as a company limited by guarantee. The email stated that persons who did not consent to the terms of Constitution B were not included as members of the company on registration, but remained Authorised Persons, being persons authorised to rescue and rehabilitate animals in accordance with the terms of WIRES' Biodiversity Conservation Licence under the applicable NSW legislation.

The registration application and WIRES' resulting registration as a company limited by guarantee were affected by two irregularities:

WIRES became aware of the irregularities once it had engaged new solicitors in connection with the proceedings commenced against it by Ms Emmett and Mr Henderson in November 2024.

On 17 April 2025, WIRES sent an email to members, including all persons who were members of WIRES immediately prior to registration with ASIC, which informed them that:

WIRES has since taken these steps to rectify the irregularities:

Section 1322 of the Act includes:

I have recorded that the parties were not in dispute about the fact that the Court should make the various orders sought by WIRES to regularise what has occurred. Nevertheless, the exercise of the Court's power under s 1322 requires an exercise of the Court's discretion that must in fact occur, and is not just to be undertaken mechanically to give effect to the consent of the parties.

I therefore formally record that I am satisfied of the matters set out in s 1322(6)(a) and (c).

First, the Court finds that the irregularities which are the subject of the relief sought by WIRES are procedural.

Second, further and (if the preceding conclusion is wrong) in the alternative, in so far as any person on behalf of WIRES was concerned in those irregularities – in practical terms the members of the Board who voted in favour of the various steps that were undertaken as part of the conversion – the Court finds that they acted honestly. The Chair of the Board, Ms Lynette Fowler, was extensively cross-examined by Mr Kalyk. Properly, it was not suggested that she or the Board had acted dishonestly. Nothing in the evidence would have supported even the possibility of such a serious allegation being advanced.

The parties before the Court accepted that WIRES had acted upon wrong legal advice. But acting on wrong legal advice does not mean that someone is acting dishonestly. I accept Miss Fowler’s explanation that while she is a solicitor by profession, she does not practice in Corporations Law matters and, entirely appropriately, she did not put herself in a position where she was the one providing legal advice to WIRES. The Board took steps to obtain independent legal advice from a firm that held itself out as specialist advisors to charities and other not for profit entities, and the Board followed that advice. The advice happened to be wrong. None of that detracts from my conclusion that they acted honestly for all relevant purposes.

However, and third, if my previous two conclusions are wrong, I am also satisfied that it is just and equitable that the orders should be made. WIRES is a substantial and significant organisation. It serves a valuable public purpose and enjoys the support of many members of the community. The evidence is that its registration as an incorporated association has already been cancelled. Even if WIRES’ registration could somehow be reinstated, the Commissioner has indicated that she would need to exercise her powers under the AIA to cancel WIRES’ registration due to its size. This raises a real risk that WIRES will be wound up if the Court does not exercise its power under s 1322 to grant the relief it seeks. That would be an outcome that benefits nobody, nor is it an outcome that any party at the Bar table, I am satisfied, would wish to occur. In those circumstances, the Court is well satisfied that it is just and equitable for the orders to be made, subject to the conditions which the parties, with one exception, came to agree upon by the conclusion of the argument.

Finally insofar as what may be called the jurisdictional facts are concerned, and for reasons previously set out as to the matters under sub-s 1322(6)(a), I also record that the Court is satisfied that no substantial injustice has been or is likely to be caused to any person for the purposes of sub-s 1322(6)(c). That conclusion is reached both by an acceptance of the facts of what has occurred but also by reference to the conditions which the Court will impose.

Section 1322(6)(c) requires both a retrospective and prospective assessment. As for what has gone before, the Court accepts that many members of WIRES feel that they have been aggrieved and disenfranchised - that they have been treated unjustly. However, that is not the “substantial injustice” of which the section speaks. Critically, and in addition to the matters referred to in [33] to [36] above, the Court finds that no substantial injustice occurred by reason of the steps set out in [28] and [29] above being taken upon the discovery of the irregularities.

Looking at matter prospectively, no substantial injustice was identified by Ms Emmett or Mr Henderson as a result of the orders being made. I have difficulty in seeing how there could be any. But to the extent it may be possible, the Court finds it will be negatived by the conditions which will be imposed as part of making the orders. It is to those conditions that I now turn.

Section 1322(4) permits the Court to make orders "either unconditionally or subject to such conditions as the Court imposes". The chausette to sub-s (4) also refers to the Court being able to make "such consequential or ancillary orders as the Court sees fit". In Sprintex Limited (No 3) [2025] WASC 59, Lundberg J said (at [42]) of the power to make consequential or ancillary orders:

In my respectful opinion, the same principle must apply in relation to the Court's power to impose conditions. The Court has a wide discretion, however it is a discretion that must be exercised judicially, that is to say rationally and for the purposes of the section within which the power is conferred.

That legal analysis means there must be some rational connection between the condition that is imposed and the nature and purpose of the relief to which it is a condition. In this case, the Court has been particularly conscious that it may be appropriate to impose a condition that will reduce any injustice caused, or might be caused, to any person with a relevant interest in the matter by reason of either what has given rise to the need for the orders or the orders themselves.

The parties ultimately came to accept that these conditions should be imposed:

I will say something briefly about each of those conditions.

As to Condition 1, the evidence demonstrated that there had been a lack of clarity about changes that were made to the accounts of WIRES and, in particular, in relation to its Gift Fund during the period when WIRES was being governed by what was in fact not an operative constitution.

Trust and transparency between the board and the members in a voluntary organisation such as WIRES is very important. Attention was drawn to a change in the presentation of the annual accounts between the accounts for FY2024 and FY2025, including for the Gift Fund which contains many millions of dollars (the evidence as at June 2023 was approximately $69,000,000). There was also an issue raised by Ms Emmett in relation to the authority of the person who signed the Gift Fund accounts for FY2024.

I am not to be taken as making a finding either that the person who signed those accounts did not have authority to do so or that there was any illegality in the change in the way in which the accounts were presented for FY2025. This latter change was undertaken on the advice of newly appointed independent auditors. Whether to make those changes in the atmosphere of controversy that applied to WIRES at the time was a wise decision is also not something upon which the Court expresses a view. Nevertheless, there is a rational connection between the difficulties occasioned by the failure to operate under the correct constitution, and what occurred in relation to those accounts that can and should be ameliorated by Condition 1.

Condition 2 ensures that the appropriate democratic mechanisms can be observed in the conduct of the next AGM such that if members do wish to raise matters arising from those additional accounts to be prepared in accordance with Condition 1, and any of the concerns that were raised in the particulars that were propounded by Mr Kalyk on behalf of his client, there will be a proper opportunity to do so at the next AGM. So understood, Condition 2 is consequential upon Condition 1.

Condition 3 arises from the fact that WIRES is a registered charity and that its Gift Fund contains a very substantial amount of money. In my respectful opinion, it is an appropriate condition to correct any lack of transparency, shortage of information or provision of incorrect information that may have resulted from the irregularities. I am not to be taken as finding that anything of that kind in fact occurred, but whatever the case may be I am of the opinion that there should be disclosure to the Australian Charities and Not-for-profits Commission (ACNC) as the regulator to which WIRES is answerable as a registered charity.

The materials referred to in that condition are to be provided to the General Counsel of the ACNC. I wish to make clear that the Court makes no recommendation and expresses no view about what the ACNC should do as a consequence of its review of the material. That will be a matter for the ACNC in its capacity as the regulator of charities. I have not required the full evidence to be provided to the ACNC. However, if the ACNC wishes also to have the court book, then the Court expects WIRES to provide it to the ACNC promptly upon request.

Condition 4 addresses a concern directly arising out of what occurred in the conversion process. As a result of the miscarriage, certain members were disenfranchised or ceased to be members. Some may also have resigned to demonstrate their disagreement with or concern about what had occurred. Notwithstanding the Court’s finding in [38] above, for more abundant caution to ameliorate what occurred, those persons will be given an opportunity to rejoin the organisation, if they wish, now that its constitutional affairs have been put in order.

The only matter on which there was serious disagreement was on these two conditions that were proposed by Mr Kalyk:

It is not necessary for me to set out in detail how the provisions of the New Constitution work. What is relevant for present purposes is to record that Mr Kalyk accepted that the issue that was sought to be addressed by those proposed conditions was an issue that arose under and by reason of the provisions of the New Constitution. He submitted that, notwithstanding that circumstance, there was a rational connection between the imposition of such a condition and the orders which the Court was making. As I understood it, that rational connection was said to be that the New Constitution and the manner in which it had come into being was the end of a long road of disputation, representations and what was said to be (and about which I make no finding) misrepresentations by various people in relation to the conversion process. His submission was that the election of directors under the New Constitution was "infected" by what had gone before.

The Court readily accepts that many WIRES members have been hurt and concerned by what occurred in relation to the conversion. The Court notes that WIRES apologised to its members for the error and for what has occurred. WIRES took the steps set out in [28] and [29] above. That is all entirely appropriate. However, I accept Mr Hochroth SC's two submissions on this point.

First, there is no rational or legally cognisable connection between the orders which the Court is making and these matters that arise under the New Constitution. It is a matter of regret that there may be a nascent further dispute about the composition of its board that WIRES is going to have to confront. I express no view about that, but the fact remains that it arises under the New Constitution. Any injustice that is sought to be corrected is not one arising from the events that have given rise to the need for the Court make orders under s 1322 or as a result of those orders. Any such alleged injustice arises under the New Constitution that was lawfully approved by an overwhelming majority of the members of WIRES. So understood, the Court has no power under s 1322 to impose conditions of the kind advanced by Mr Kalyk.

Alternatively, if I am wrong in that and the Court does have power then, as Mr Kalyk properly recognised, it becomes a matter for the Court's discretion. In the exercise of my discretion, I do not propose to require those directors to resign. They are, in accordance with the terms of the New Constitution, validly elected. So much seemed to be common ground. If there is a problem about the New Constitution, that will be a matter for, perhaps, a future motion at a future AGM or SGM to amend the New Constitution. Furthermore, those three directors will be required (if they wish) to stand for re-election at the next AGM later this year. It will be a matter for the parties in the meantime and those who are concerned about this issue to do what they can if they wish to resolve it. It is, however, not a matter which, in the exercise of my discretion, I would address by the imposition of a condition in relation to the relief to regularise what has gone before. What is to come is beyond the scope of what the Court is required to do today.

The parties accepted that there should be no orders as to costs.

For these reasons, the Court orders: