It will be further submitted that the evidence establishes that Mr Wilson and Mr Blewitt caused the Association to engage in the above conduct deliberately and knowingly.

 

Mr Blewitt has already conceded this in evidence.

 

 

As to Mr Wilson, among other things, he set up the Association.  It was his idea.  He knew about the secret PO box to which Thiess cheques were sent.  He was the Treasurer of the Association. He signed the application form to open its bank accounts.  He was until about mid July 1992 the Secretary of the WA Branch of the AWU.  He worked closely with Mr Blewitt, on a day by day basis.  He knew that the Association was being paid by Thiess because he was happy to use the money for the purposes of buying the Kerr Street property.

 

In these circumstances it is inconceivable that Mr Wilson was not aware of the activities in which the Association was engaged.

 

Thus, it will be submitted that the evidence establishes that Mr Wilson conspired and agreed with Mr Blewitt to create the Association for the purpose of issuing false invoices to Thiess, thereby committing an offence under section 558 of the Criminal Code (WA).

 

It will further be submitted that Mr Wilson caused Mr Blewitt to render invoices to Thiess knowing at the time that they were false, in that they claimed payment for work that ha d never been done, and that this was done by each man deliberately, to procure a benefit for himself, thereby committing an offence under section 409 of the Criminal Code (WA).”

 

In examining these statements it is important to recognise that a Sham is a contrivance to disguise the real relationships underlying the false picture presented.

Underlying that false picture is the true arrangement.

It is also necessary to recognise that in any discussion of the Association it possibly has two incarnations, as an unincorporated body and subsequently as a distinct legal personality (the existence issue). 

The existence issue is a question distinct from whether the Association in either of its forms is a Sham.

1. Unincorporated Associations

1.1 General Position

There have been reported decisions where the general concept of an unincorporated Association or body has been discussed.

In Cometa United Corporation v Canterbury Regional Council [2007] NZCA 560

Arnold J said:

Unincorporated bodies range from loosely to highly organised groupings. At one end of the spectrum are groups of people who have come together in an ad hoc way for a particular short-term purpose. Examples are residents who are opposing a development in their neighbourhood or parents of school children who want to take up a particular concern with the school. At the other end of the spectrum are bodies which are long-lived, have officers, governance arrangements and employees just as corporate entities do, and operate and present themselves to the public as established, independent organisations. Bodies of this latter type are distinct from (and more than) the individuals who make up their membership – as a practical matter, they have independent existence and act as independent entities ... This is presumably why s 29 of the Interpretation Act 1999 defines “person” to include an unincorporated body

  However it should be recognised that what Arnold J describes as the practical situation is not the situation at Law.

In Kibby v Registrar of Titles [1999] 1 VR 861 that position was described as follows.

That case concerned a parcel of land held by trustees, initially for a fluctuating group of individuals and later, so it was said, for an unincorporated association. That body claimed to have had a sufficient degree of organisation and continuity to indicate that it had been in existence at a particular date. Mandie J had to determine whether there was, as at the date, merely an amorphous or fluctuating group of individuals, or a combination sufficient to enable it to be described as an ‘association’. 

68 As Mandie J observed, an unincorporated association (sometimes called an unincorporated body) has no legal existence separate or distinct from its members.[37] 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’.[38] 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.[39] If the body has assets, they belong, subject to the rules, to the members for the time being.[40] 

 

69 The main characteristic of an unincorporated association is, of course, that it does not enjoy legal personality.[41] 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.[42] 

70 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.[43] 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. 

71 Unincorporated associations determine the rules for their own administration. Not all such rules are contractual in nature.[44] 

 

Mandie J came to the following conclusion.

In the light of the judicial statements to which I have referred and the ordinary meaning of the words contained in the said definition, 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. 

I do not think that a name or title, or the existence of a written constitution or rules governing the combination, or the existence of some form of contract between the members, is an essential characteristic, but clearly the existence of one or more of these would go a long way towards satisfying the need for some degree of organisation and continuity and for the satisfactory identification of members. Likewise, the existence of office-bearers, a committee and a bank account are relevant to a degree of organisation. The absence of all of these features makes it unlikely, but not impossible, that an association has been formed or is being carried on.

 

1.2 Modification by Context

It is of course common sense that the general meaning of the term association can be modified by the context in which it appears.

Thus in Cometa the requirement for the group to be described as a body introduced a qualification.

First, an unincorporated group must be capable of being described as a “body” of persons to fall within the definition in s 2 of the RMA [Resource Management Act 1991]. Individuals whose common interests have brought them together for a temporary purpose without any formal organisation may not fit that description. This seems to follow from Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17; [2005] 2 NZLR 597. In that case this Court had said that an incorporated society whose registration had lapsed did not exist as a legal entity at the relevant time for the purposes of the RMA.

that finding was overturned on appeal due to the inclusion in the definition of “person” of a body of persons whether corporate or unincorporated.

A group 

“... must be regarded as a body if there is such regulation of their internal affairs that there can be said to be a structure by which they can be recognised as a collective entity – the unincorporated equivalent of a body corporate”

In the United States, there has been a good deal of learning on the meaning of terms like ‘organisation’. As would be expected, however, context is everything.  In Boyle v United States 129 S Ct 2237 (2009) the Supreme Court considered the meaning of the term ‘enterprise’ under the Racketeer Influenced and Corrupt Organizations Act, commonly know as RICO, which was defined to include any ‘group of individuals associated in fact’. Alito J delivered the opinion of the Court, which affirmed that, in order to establish the existence of an ‘enterprise’, the government had to prove that there was an ‘ongoing organisation’ with some sort of framework, formal or informal, for carrying out its objectives. The government also had to prove that various members and associates of the association functioned as a continuing unit to achieve a common purpose. 

 In that case, the trial judge had told the jury, over the petitioner’s objection, that they could ‘find an enterprise where an association of individuals, without structural hierarchy, forms solely for the purpose of carrying out a pattern of racketeering acts’. The trial judge had also said that ‘common sense suggests that the existence of an association-in-fact is often times more readily proven by what it does, rather than by abstract analysis of its structure’. 

 The petitioner had sought a direction that the government had to prove more than this, namely, that the enterprise had ‘an ongoing organisation, a core membership that functioned as a continuing unit, and an ascertainable structural hierarchy distinct from the charged predicate acts’. The trial judge had declined to give that direction. The Supreme Court rejected the petitioner’s submission and affirmed the conviction. It thereby upheld the broader and more flexible meaning given to the term ‘enterprise’ in that case.

 In Kibby  it was noted that the English approach to determining whether an unincorporated association exists might differ somewhat from that taken in this country. Reference was made to Conservative & Unionist Central Office v Burrell 55 TC 698 a case involving taxation legislation. 

The Income tax and Corporations Act defined “company” to include an Unincorporated Association.

In the Court of Appeal it was held that in the context where it appeared the expression had to involve mutual obligations and duties that were contractual in nature. Certainty was needed as the rights and obligations of membership may in these cases become justiciable.

In the High Court  Vinelott J dealt with a submission that there were six characteristics which were either essential, or normal, indicia of an unincorporated association. These were:

(i) there must be members of the association; 

(ii) there must be a contract binding the members inter se; 

(iii) there will normally be some constitutional arrangement for meetings of members and for the appointment of committees and officers; 

(iv) a member will normally be free to join or leave the association at will; 

(v) the association will normally continue in existence independently of any change that may occur in the composition of the association; 

(vi) there must as a matter of history have been a moment in time when a number of persons combined or banded together to form the association.

Vinelott LJ  considered (i), (ii) and (vi) to be essential characteristics of such a body, but not (iii), (iv) and (v).

The ability for an Unincorporated Association to exist without a contractual basis is well established in Australia. 

Certainly in the case of Political Associations it is generally assumed that members enter them on a basis that is not intended to create legal relations in relation to internal disputes. Cameron v Hogan (1934) 51 CLR 358.

1.3 Benbrika

The case concerned whether Benbrika and his co defendants were members of a Terrorist Organisation. Benbrika &Ors v The Queen [2010] VSCA 281. 

Organisation was defined to include an Unincorporated Body.

5. The Crown case at trial was that the applicants were members of a Melbourne-based terrorist organisation, which was fostering or preparing the doing of a terrorist act in Australia or overseas, with the intention of causing death or serious physical harm in order to advance a political, religious or ideological cause. The proposed terrorist act was alleged to be the intentional detonation of one or more explosive or incendiary devices, or the use of weapons. The cause to be advanced by terrorist action was said to be the belief – taught by Benbrika and accepted by members of the organisation – that they were under a religious obligation to pursue violent jihad against the kuffar (non-believers). 

6. The Crown advanced a largely circumstantial case, the key elements of which were as follows: 

 

(1) members of the organisation referred to themselves collectively as the jema’ah, an Arabic word meaning ‘group’ or ‘association’, and took an oath of allegiance to Benbrika called a bayat; 

(2) some members of the organisation undertook specific roles and responsibilities; 

(3) members received religious instruction from Benbrika in the pursuit of violent jihad as a religious obligation; 

(4) in order to instil the motivation and knowledge necessary to commit terrorist acts, the organisation collected extremist Islamic doctrinal and operational material and circulated it among members; 

(5) money was collected from the members to fund the organisation’s activities and some members undertook illegal activities, including illicit car re-birthing and credit card fraud, in attempts to raise additional funds for the organisation; 

(6) the organisation spent money from the fund on group activities and other outlays as approved by Benbrika; and

(7) members also undertook team building/bonding activities, including trips away to training days and camps, sometimes with other terrorist organisations

The appeal was concerned with whether the trial judge had misdirected the Jury as to the meaning of the term Unincorporated Body.

In making that direction he applied the Kibby indicia referred to in point 1.1 above.

It was argued that the direction should have required the Jury to find each of those matters (or at least a specified minimum) were present.

83 As we have said, the trial judge in the present case sought to assist the jury by providing them with indicia to be used to determine whether the existence of an ‘organisation’ had been established. As Cometa[60] makes plain, there is no ‘bright line’ which will enable one to say, in any case, that there are sufficient characteristics of an organisation present to conclude that one exists. Nor is there any set of necessary conditions the absence of one of which would render the term ‘organisation’ inapplicable. 

84 In reality, there is a continuum along which, at a certain point, an amorphous group of individuals with shared aims and objects becomes an entity that can properly be described as an ‘organisation’. It is a question of fact and degree. In our view, his Honour was correct to express the test as he did, rather than adopting a rigid and exhaustive definition. We reject the contention that the jury were left without sufficient guidance on this issue. 

 

The relevance of the Kibby indicia depended on the statutory context

90 The Crown submitted that it was clear from the nature and purpose of the ’Terrorist organisation’ provisions in the Code that a number of the  Kibby [66] indicia could not possibly be relevant to the question which the jury had to decide. By their very nature, bodies of the kind which the legislature must have had in mind when enacting these provisions were likely to operate in a clandestine manner. It would be expected that they would function in secrecy, and with little formality. There would be no written constitution or set of rules, and there would almost certainly be nothing like a contractual relationship between the members. 

91 The Crown disputed the applicants’ contention that there could be no ‘organisation’ without some proof that what individual members did was ‘authorised’ by the group. That contention was said to conflate two separate issues, namely whether an ‘organisation’ had come into existence, and whether a particular accused was a ‘member’ of that ‘organisation’. As a matter of ordinary common sense, a person could be a ‘member’ of an ‘organisation’ without knowing all that it did. That person could also be a ‘member’ without expressly or impliedly authorising others to act on his or her behalf. 

In any event

According to the Crown’s submission, the evidence established that all of the  Kibby [68] indicia were present, as follows: 

1) there was a group or collection of individuals who came together for a particular shared aim or aims, predominant among which was what was termed ‘violent jihad’; 

2) the group had a structure and, indeed, a fully-developed hierarchy; 

3) Benbrika was the leader and there was, as well, a ‘consultative committee’

4) the group had a common fund, the sandooq; 

5) the group had a method of including or excluding individuals from membership, namely, Benbrika’s own authority; 

6) members of the group met regularly, albeit informally. They communicated with each other frequently; 

7) the group was referred to internally, by those said to be its members, as ‘the jemaah’;[69] and 

8) finally, there was the requisite measure of stability of membership which differentiated the group from an amorphous collection of individuals

In the end however the Jury was entitled to be satisfied that the Kibby indicia were present to any degree selected by them.

97 Contrary to the applicants’ submissions, his Honour’s directions did not dilute the concept of ‘organisation’ so that it became effectively a ‘dead letter’. Those directions made it clear that the jury had to distinguish between an amorphous or fluctuating group of individuals who might share a common interest or purpose, and a group with sufficient structure and continuity to enable it to be described as an ‘organisation’

 

1.4 Facts in Kibby

Kibby and others were the registered proprietors of Land.

An Incorporated Association claimed to be entitled to have the Land vested in it as a successor in title to an Unincorporated Association.

A submission of  Kibby was that at the time the Land was acquired the Unincorporated association did not exist.

The land in question was purchased in 1968.

From 1964 small groups met in a Library in the grounds of a house on an adjacent property at Ferny Creek.

These meetings occurred approximately twice per week.

Invitees were at the discretion of  one Anne Hamilton Byrnes who gained notoriety as the leader of a group called “the Family”..

There were no rules or constitution.

People came and went from the group as they pleased.

The name Santineketan Park was not used until a Hall was built on the property in 1969. Construction was completed in 1971.

At that time a Committee was formed to look after the day to day running of the Hall;a bank account was opened in the name of the association.

Donations at meetings were used to cover expenses from the time the Hall began to be used.

It was held that no Unincorporated association existed prior to the building of the Hall.

There was no Constitution or rules or any form of contract between attendees at meetings; no title or name for the association before then; no office bearers and no concept of membership of an association current in the group prior to the completion of the Hall.

The finding that no formal rules existed was not however essential to the conclusion.

1.5 Context of the Associations Incorporations Act

Kibby was a decision that based on the Victorian Associations Incorporations Act.

That act like its counterparts in other States is concerned with incorporating pre existing Associations.

Some guide to the indicia of Associations that are eligible for Incorporation can be gained from examining the provisions of those Acts.

In the case of the WA legislation applicable at the time the following would apply.

a) The term Association includes a “body”. See Cometa; Benbrika and Discount Brands above 

3. (1) In this Act, unless the contrary intention appears—

"association" includes society, club, institution or body

 

b) the Association must already be in existence.

However it is important to note that an association can exist without being eligible for incorporation (for example because it does not have sufficient members).

4. (1) Subject to this Act, an association is eligible to be incorporated

under this Act if it has more than 5 members and is formed

 

c) Certain associations which are in existence are precluded from Incorporation because of the nature of their activities

(2) Notwithstanding subsection (1), an association for the purpose of

trading or securing pecuniary profit to the members from the

transactions of the association is not eligible to be incorporated under

this Act.

(3) Notwithstanding subsection (1), a trade union, as defined in the

Trade Unions Act 1902, is not eligible to be incorporated under this Act

d) An Association must be able to duly authorise someone to apply for incorporation.

This implies some method agreed to by the members for authorising action for the group.

5. (1) An application for the incorporation of an association must be

made to the Commissioner in the prescribed manner and form by a

person duly authorized by the association to apply for incorporation

e) The Association must have had a sufficient structure to enable the adoption of approved rules.

(2) An application for incorporation must be accompanied by

(a) a copy of the rules of the association conforming to the

requirements of this Act

Note that it is the authorised person who is the applicant not the Association.

f) The association must have a sufficient presence to be able to say that there is a location where it conducts its affairs

6. (1) An applicant for incorporation must cause an advertisement in

the prescribed form to be published once in a newspaper circulating in

the area where the association is situated or conducts its affairs

 

g) the Association must have a suitable name.

h) Rights and Liabilities existing in relation to the members and Officers of the unincorporated Association become exercisable against its incorporated successor and property of the unincorporated association vests in the new entity. 

2. The WRA

Incorporation was granted to the WRA on June 24,1992.

Prior to this time

a) Wilson and Blewitt had engaged the services of Gillard to draft rules and obtain Incorporation.

b) Blewitt had placed an Advertisement as required by Section 6

c) A letter of engagement had been obtained from Jukes setting out the terms of payment for a Workplace reform advisor and some other basic provisions.

d) A Bank account had been opened

e) The first invoice had been sent ; payment had been received and banked.

The first payments had been made from the account.

f) Representations had been made by Gillard and Ministerial approval obtained for the Incorporation.

g) Gillard agrees that it was Wilson who provided her instructions. Blewitt acknowledges Wilson as the decision maker.

Paragraphs a), b) ,c) and g) were applicable prior to the application being made on  April 24, 1992.

There was a pre existing Association that provided funds for re election of members of Wilson’s team but it is obvious that this is not the Association for which Incorporation was sought.

Wilson and Blewitt themselves formed an Association.

Its membership was confined to them and Ludwig.

Gillard may be suspected as someone who facilitated its operation in full knowledge of its activities.

As stated in Cometa

. At the other end of the spectrum are bodies which are long-lived, have officers, governance arrangements and employees just as corporate entities do, and operate and present themselves to the public as established, independent organisations.

The WRA was relatively long lived and was involved in more than one project.

It had a directing mind as did the organisation in Benbrika

It was supposed to have “employees” and presented itself through its invoices as providing services as an independent entity (after application and before incorporation)

Its membership was certainly ascertainable.

It had a name.

It could 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  Kibby

It was clearly an Association and probably also an Association which subject to meeting the eligibility requirements satisfied the test of a pre existing Association under the Associations Incorporations Act.

What it was not was an Association which was eligible for Incorporation.

(i) It did not have objects which avoided the Trade Union exclusion

(ii) It had a name that was likely to be confused with the AWU

(iii) It proposed to trade

(iv) It did not have the required members

(v) It was never intended to operate in accordance with its objects or rules.

The application was made on a knowingly false basis . It was a contrivance to provide a vehicle to issue invoices to Theiss and receive payments.

     

3. Gillards Evidence

Gillards evidence before the RC was in my opinion confused.

She seemed at times to acknowledge the need for pre existing Association and at others to be talking about her Instructions to create an Incorporated entity for Wilson’s team.

She agreed she knew no Association existed at the time of the Advertisement but referred to a combination of people existing with a common purpose prior to the application.

However according to her she had nothing to do with the Ad other than some advice that it needed to be placed.

 She denies knowing anything about the activities of the Association

        19       Q.   Did you make any inquiry as to whether there was a

        20       register of members as provided for in rule 13?

        21       A.   No, I didn't.  I viewed it entirely as a matter for

        22       them.  My role was to provide advice to assist the

        23       incorporation.  I did not have some ongoing advisory role

        24       in relation to the workings of the Association.

        25

        26       Q.   As I understood it, your role was not simply to assist

        27       with the incorporation; you were in addition giving advice

        28       about the setting up of the Association; is that right?

        29       A.   Setting it up in the sense of incorporating it, not

        30       setting it up in operation; that was a matter for them.

In the absence of such knowledge she is not in a position to say whether  an unincorporated association existed. Her understanding is confined to what Wilson has told her.

42       A.   Yes.  Commissioner, my understanding of my

        43       instructions at the time was not that there was a

        44       pre-existing unincorporated association, but that there was

        45       a desire to form and create an association, and I gave

        46       advice on its incorporation.

        47

1       Q.   Which would then become incorporated?

         2       A.   Correct, yes.

 

 

Obviously if there was a pre existing association it had to be put into a form that could make an application for incorporation.

That Association would already have adopted the rules which would apply also on Incorporation and presumably have implemented them.

Gillard knew nothing about whether it had.

She seems to confine her remarks to the position once incorporation was gained.

14       Q.   I asked you before the break something about the

        15       objects.  I'm now asking you something about the matters

        16       set out on page 12 in the bottom right-hand corner,

        17       "Role and Composition of the Committee of Management".

        18       A.   Mmm-hmm.

        19

        20       Q.   Rule 15 stipulates that:

        21

        22            The affairs of the Association are to be

        23            managed exclusively by a Committee of

        24            Management ...

        25

        26       Was there any committee of management of the Association

        27       that you were aware of when you were drafting the rules?

        28       A.   When I was drafting the rules I understood that in an

        29       incorporated association there had to be a committee of

        30       management.

        31

        32       Q.   Who was the committee of management?

        33       A.   I didn't turn my mind to who would fill those

        34       positions.  That was a matter for Mr Blewitt and Mr Wilson.

        35

        36       Q.   Was there a president of the Association when you

        37       were --

        38       A.   I played no role in the - I had no role, no connection

        39       with who would play what role within the Association.  That

        40       was a matter for it and its members.

        41

 

        42       Q.   Did you give advice about that matter?

 

        43       A.   I would have given - I would have explained that an

        44       incorporated association has members, that there's a

        45       minimum number of members, that you have to have a

        46       committee of management, and having explained those things,

        47       would have left it to Mr Blewitt and Mr Wilson to work out

 

            .10/09/2014 (9)             794     J E GILLARD (Mr

By the time of the Application she understood that there was a combination of people with a common purpose.

This could amount to an unincorporated association no matter how she describes it.

22       Q.   Paragraph 1, just going back to that for a minute,

        23       says that Mr Blewitt, being duly authorised by the

        24       Association, applies for incorporation.  There was no

        25       Association in existence as at 22 April 1992; is that

        26       correct?

        27       A.   There was no incorporated association, no.

        28

        29       Q.   There was no association at all, was there?

        30       A.   There was a - authorised by the people seeking to

        31       become this Association.

        32

        33       Q.   My question was, as at 22 April 1992 there was no

        34       association, was there?

        35       A.   No, there was a combination of people who wanted to

        36       incorporate an association, was my understanding.

        37

        38       Q.   Well, you'd spoken to Mr Blewitt and Mr Wilson about

        39       it, but there was no association, whether formal or

        40       otherwise, in existence as at 22 April 1992; that's right,

        41       isn't it?

        42       A.   My understanding is that there was a group of people

 

        43       who were connected to each other in the sense that they had

        44       come in to the Western Australian Branch of the AWU as part

        45       of Mr Wilson's move into the Branch as part of his team and

 

        46       that this Association was for them to be members of; so

        47       I believe there was that kind of combination of people.  If

 

            .10/09/2014 (9)             801     J E GILLARD (Mr Stoljar

         1       you're asking me more specifically than that, that's what

         2       my belief was

 

However she had seen nothing documented about the decisions of this combination.

         4       Q.   You had seen no minutes of any association,

         5       for example?

         6       A.   No, I had not.  No, I had not.

         7

         8       Q.   You had not seen any minute of a management committee

         9       meeting?

        10       A.   No.

        11

        12       Q.   As far as you know, there had been no resolution

        13       passed authorising Mr Blewitt to apply for incorporation?

        14       A.   No, and I would have viewed all of that as a matter

        15       for Mr Blewitt and Mr Wilson, as I indicated to you before,

        16       before the short adjournment

 

4. Conclusions

There are two scenarios available for explaining the actions of Gillard.

4.1 Her (My) Story

a) She didn’t really understand the need for a pre existing association.

Her Instructions were that it did not exist but she also understood that there was a combination of people who the Incorporation was to be for and this combination was comprised of Wilson’s team.

b) She failed to recognise that the combination she described could itself be an Unincorporated Asociation or that Wilson and Blewitt could comprise another.

c) She failed to make any enquiries about what this team had been doing since its installation or more immediately in the period during which she was providing advice.

d) She had no idea what the Combination had been doing prior to Incorporation or what its operations were to be post incorporation. Curiously objects had been drafted presumably after some discussion as to what those activities would be but she had no knowledge of what transpired.   

e) She advised on Incorporation and went to the trouble of partly filling in the application but was not concerned to ensure that the conditions for eligibility were met other than supposedly to make representations about the status of the WRA as a Trade Union.

f) If there are criticisms of her they should be confined to professionalism of her work.

If she assisted in the submission of an application based on an understanding there was no pre existing Association that understanding was in fact incorrect.

In any event she had no knowledge of its ineligibility for Incorporation or its planned activities with Theiss.

4.2 Stoljars Introduction

As set out in the Introduction

“the Association appears to have been a mere contrivance

The Association was never more than a vehicle pursuant to which moneys were obtained through the provision of sham invoices.  It did not engage in any genuine work.

Thus, it will be submitted that the evidence establishes that Mr Wilson conspired and agreed with Mr Blewitt to create the Association for the purpose of issuing false invoices to Thiess,”

a) Gillard understood that the WRA was to be a front for Wilson Blewitt and Ludwig.

b) She was unconcerned about pre existing Associations or the niceties of adoption of rules , committees and members etc because they were all irrelevant to the purpose.

c) The certificate of Incorporation was the end goal nothing else.

d) The name and objects were necessary to provide a cover for the payments from Theiss. It follows that she understood Wilson and Blewitts plans for the use of the WRA.

e) The cover of an election fund was just that.

No one would go to the trouble involved for those purposes.

There were many simpler arrangements.

One of them (based on contractual arrangements) is discussed in the judgement of Brightman LJ in the Conservative and Unionists Central Office case referred to under point 1.2.

No one understanding that election slush funds were common in Unions would have Incorporated an Association without understanding what the team (or members) had been doing up to that time.

g) The events around the Incorporation should not be looked at in isolation. When combined with factors such as the personal relationship, the Kerr St transaction the Abbotsford renovations and the events around Wilson departure the inference is heavily against any innocent explanation for Gillards involvement.