A NSW RFS volunteer has

… a question regarding who legally owns vehicles that are purchased by NSW RFS Volunteer Brigades, with funds raised from public donations?

I’ve asked senior staff of the NSW RFS this very question and have received conflicting answers.

A legal person can sue and be sued and can enter a contract.   Only a legal person can ‘own’ something.  A legal person is a natural person (you and I) or a corporate entity.  A corporation may be a company or it may be a government or an organization created by an Act of Parliament.

The Rural Fire Service Act 1997 (NSW) establishes the Rural Fire Service (s 8).   The Act also provides for the creation of brigades by a local authority (s 15; though local authorities have delegated that authority to the Commissioner (RFS Service Standard 2.1.1 Formation and Disbandment of Brigades and Groups of Brigades).  The RFS Act does not say that fire brigades, or the RFS, are legal entities – see also How autonomous are NSW Rural Fire Brigades? (February 25, 2015).

Compare the RFS position to, for example, the ‘Health Administration Corporation’.  That corporation is established by the Health Administration Act 1982 (NSW) to provide a legal entity for the delivery of health services.  The Act provides that the Corporation ‘may take proceedings, and be proceeded against in its corporate name’ (s 9).

So if a brigade is not a legal entity, and the RFS is not a legal entity, who does own the RFS assets?  The Government Sector Employment Act 2013 (NSW) defines the public service, departments, public service executive agencies and separate public service agencies. The Office of the NSW Rural Fire Service is an executive agency related to, or part of, the Department of Justice (Government Sector Employment Act 2013 (NSW) s 22 and Part 2 of Schedule 1).  The Crown Proceedings Act 1988 (NSW) says that the ‘Crown’ can sue (s 4) and be sued (s 5).  The Crown includes ‘the Government of NSW’ as well as ‘a statutory corporation, or other body, representing the Crown in right of New South Wales’ (s 3). (See also the Rural Fires Act 1997 (NSW) s 12(5) which says (emphasis added) that:

The Commissioner (on behalf of the Crown) may make or enter into contracts or arrangements with any person for the carrying out of works or the performance of services or the supply of goods or materials in connection with the exercise of the functions of the Service’.)

The relevant legal entity is, therefore, not the Rural Fire Service, it is the Crown in Right of NSW.  That the relevant legal entity is ‘NSW’ is why legal actions against the RFS are described as being a case against ‘NSW’ – see for example the legal action arising out of the 2003 Canberra fires: Electro Optic Systems Pty Ltd v State of New South Wales; West and Anor v State of New South Wales [2014] ACTCA 45.

Conclusion

So ‘who legally owns vehicles that are purchased by NSW RFS Volunteer Brigades’, with funds raised from public donations?’

It can’t be the brigade as the brigade does not have a separate legal existence, a brigade is a part of the RFS.  It can’t be the RFS as the RFS does not have a separate legal existence, it is an executive agency and part of the Crown in Right of New South Wales.  The answer, therefore, is that the assets of a brigade, including ‘vehicles that are purchased by NSW RFS Volunteer Brigades, with funds raised from public donations’ are owned by the State of New South Wales.

Addendum (1 September)

In my attempt to keep this answer simple, I may have over-simplified it.  My key point is that the legal entity that is the RFS is the ‘Crown in Right of NSW’ or simply, the State of New South Wales.  It means an individual brigade can’t own a vehicle as an individual brigade does not have a separate legal existence.  As Tim Williams said, in a comment below, my “underlying point is that the RFS is not a federation” (and thanks Tim for your helpful comments).  Tim has also pointed out that s 119(2) of the Rural Fires Act provides that if any part of the purchase was funded from the Rural Fire Fighting Fund then the owner is the local council.

The owner can also depend on specific arrangements and how the purchase was made. If the donated money was given to council and they bought the appliance it may again belong to council.     If there was a social club or fundraising committee, the appliance may belong to them depending on their legal structures.

It means that my answer should have read, with respect to any particular appliance bought for any particular brigade, who owns it will depend on who actually bought it, by whom were the funds collected, how were they spent etc.   My answer did assume volunteers out with buckets, or cooking sausages, collecting the money, putting it in the bank probably into an RFS account (not a personal account) and then using those funds to fund 100% of the purchase.  That may be too simplistic a picture given the cost of an appliance (hence my concern of oversimplification) but for that scenario (and no doubt others) the owner has to be the State.

On a final point one can’t check who is the ‘registered owner’ because

  1. Proof of registration is not proof of ownership – the registered owner is responsible for the traffic tickets and is the contact person for the car, but being the registered owner does not prove you own the vehicle. This is unlike real property (ie land) where being the registered owner of a block of land is conclusive proof that you are also the legal owner; and
  2. Rural fire appliances don’t need to be registered – see Road Transport (Vehicle Registration) Regulation 2007 (NSW) Schedule 1, cl 12 which says:

The registration provisions do not apply to any registrable vehicle that is used on a road or road related area if the vehicle:

(a) is attached to a rural fire brigade formed under the Rural Fires Act 1997 and has painted on it, or securely affixed to it, a sign clearly identifying the rural fire brigade to which it is attached …

and provided it is being used for one of the various purposes listed such as firefighting (cl 12(b)), training (cl 12(c)(iii)) or ‘to perform such other functions of the NSW Rural Fire Service as the Commissioner …  or a fire control officer … may approve …’ (cl 12(c)(v)).

Note that this exemption says that the appliance has be ‘attached to’ not ‘owned by’ a rural fire brigade.