The correspondent who asked ‘‘How autonomous are NSW Rural Fire Brigades?’ (February 25, 2015)), now asks:
In whose name would a NSW Rural Fire Brigade, contract to purchase capital or personal equipment and contract services when they are not forthcoming from the NSW RFS Government Agency (currently Office of NSW Rural Fire Services)? And if it does purchase such, and there is a dispute, in whose name or right would proceedings be taken by the brigade to recover its loss? Could the brigade do this in its own name (see – Bilpin Rural Fire Brigade v Computus Australia & Anor  NSW CTT 385) or would the NSW RFS Commissioner have to do this on behalf of the brigade?)
NSW RFS brigades are not incorporated. We also understand from the following recent post and comments that you consider that a NSW brigade has no legal status or standing outside of the NSW RFS of which it forms a part (the NSW Crown) and that it also cannot be considered to be an unincorporated association of its volunteer members; albeit, also at the same time forming part of the NSW RFS:
The Service Standard 2.1.2 we think permits a NSW RFS brigade to make such a purchase out of its accounts if it is approved by the brigade. But however you read it – it doesn’t say in whose name the contract should be entered into (eg, Captain, xx Brigade ‘for and on behalf of the NSW Rural Fire Service’ – or xx ‘on behalf of the State of NSW’).
By asking this question we are not looking for any specific legal advice or assistance that will guide our brigade in such matters and we clearly accept that any comments and insights you can offer will be only of a general nature. It is just that being ordinary volunteer fire-fighters we find ourselves out of our depth when it comes to legal requirements when purchasing equipment and services that the RFS cannot purchase for us, but we have funds to do it ourselves. The Services Standards issued by the Commissioner are not very helpful to us in this. Staff of the RFS try to be helpful; but they also say that it is a legal matter and they don’t know the answer.
A contract can only be entered by an entity with legal personality or personhood. A natural person, you and I, is a legal person but so are artificial entities like governments and corporations. A corporation is an entity that has been ‘incorporated’ – we think of it as meaning commercial, for profit corporations, but they needn’t be. There are provisions, in NSW the Associations Incorporation Act 2009 to allow community groups to ‘incorporate’. The process of incorporation creates a separate legal entity, separate from the people who created it. This allows members to come and go without the entity changing and also the entity, rather than the individuals involved, to own property, enter contracts, sue and be sued. This ensures that people who take a management role or invest in a corporation, are not risking their personal assets in the event of losses or liabilities.
Another way for a corporate entity to be created is via an Act of Parliament – eg the Mine Subsidence Compensation Act 1961 (NSW) provides for the creation of the Mine Subsidence Board. Section 6 says:
The Board shall be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name; and shall for the purposes and subject to the provisions of this Act be capable of purchasing, holding, granting, demising, disposing of or otherwise dealing with real and personal property and of doing and suffering all such other acts and things as bodies corporate may by law do and suffer.
There is nothing in the Rural Fires Act 1997 (NSW) that says a brigade is a corporate entity. The Act says that a brigade is to be established by a local authority or the commissioner (but as noted in an earlier post, they are, today, all created by the Commissioner; ‘How autonomous are NSW Rural Fire Brigades?’ (February 25, 2015)).
If a brigade is not a legal person, it cannot enter a contract; so what should be the name for any contract? The obvious answer is that contracts should be in the name of ‘The State of New South Wales’ as that is the relevant legal entity, but I would suggest that most brigade captains do not have the relevant delegation to enter into a contract to bind the state of NSW. Though, having said that, they or brigade presidents and treasurers will have delegations or authority, as does the executive committee to make decisions that must by implication if not express authority bind the RFS and the Crown. Without access to the delegation manuals and administrative arrangements that the RFS has established I can’t advise on those issues.
The other thing to note is that agreements may be entered in the name of the RFS brigade and if everyone meets their obligations and everyone gets paid, it is not really an issue. It is an issue should a contract need to be enforced, in which case the other party needs to know who they are contracting with. It certainly does appear from the standard constitution in Service Standard 2.1.2 that brigades are expected to exercise some autonomy as if they are separate legal entities, but merely asserting that they are, or can behave in that way, doesn’t make it so. A brigade is not a separate legal entity, but from that constitution one could identify who the contracting parties are. If a contract was entered into with one party as the ‘Kickatinalong Rural Fire Service’ one could infer that the contract parties are all those people listed on the register. A more appropriate contracting party would be the ‘Executive Committee of the Kickatinalong Rural Fire Service’ and one could look at the rules to determine who the members of the Committee were and therefore who were the parties to the contract.
In Bilpin Rural Fire Brigade v Computus Australia & Anor  NSW CTT 385 the Bilpin Rural Fire Brigade sought a refund for a defective computer. The presiding member of the Consumer, Trader and Tenancy Tribunal of New South Wales did not address the issue of whether or not the Bilpin Rural Fire Brigade had the legal capacity to enter into a contract as that was not an issue that was raised by any party. The judgment does say that the Brigade has an Australian Business Number (ABN) and is a registered charity. A search of the ABN register shows that the Brigade still has that registered ABN. It’s hard to see on what basis they would have got an ABN (see https://abr.gov.au/For-Business,-Super-funds—Charities/Applying-for-an-ABN/ABN-entitlement/) but I don’t suggest for a moment that the issue of an ABN was not appropriate. But issuing an ABN does not create a legal entity.
According to the Australian Charities and Not for Profits Commission, some entities cannot be registered as charities. These include ‘a ‘government entity’ — this is part of an Australian or foreign government or one of its agencies, and some organisations established by a state or territory under a law’ (http://www.acnc.gov.au/ACNC/Register_my_charity/Who_can_register/Step4/ACNC/Reg/Step4.aspx?hkey=e61b0fe5-1507-4c50-9b1e-9a74e03e8295). On my view that would mean a brigade could not be registered as a charity and I note that a search of the register reveals no record for the Bilpin Rural Fire Brigade using either the name or ABN so I infer it is no longer registered.
A further search of the charities register reveals the following NSW charities that use the name ‘Rural Fire Service’:
- Gosford City Rural Fire Service Canteen;
- Great Lakes Headquaters Rural Fire Service Catering;
- NSW Rural Fire Service Association Incorporated;
- NSW Rural Fire Service Catering Officers Region East;
- NSW Rural Fire Service Welfare/Support Brigade; and
- The Trustee for NSW Rural Fire Service & Brigades Donations Fund.
None of them are the brigades themselves and therein lies a solution. The members of a brigade could well form a corporate entity such as the Kickatinalong Rural Fire Service Support Association. That association could raise funds and buy equipment and either donate or lend that equipment to the relevant RFS brigade. Whether that would be considered appropriate by the RFS or the Commissioner is another matter.
It’s certainly does appear that the Rural Fire Service Regulation 2013 (NSW) reg 4 that discusses a brigade constitution, reflects arrangements that have long since been consigned to history,. As the commentary on earlier posts has noted, it’s not at all clear what value the constitution has as it clearly does not ‘constitute’ the brigade – the Commissioner does that (s 15). The ‘constitution’ document could easily be called ‘Brigade Rules’ without any significant impact.