Green v Nanango Bowls Club Inc
[2002] QSC 201
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- Notable Unreported Decision
- Green v Nanango Bowls Club Inc[2002] QSC 201
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Green v Nanango Bowls Club Inc[2002] QSC 201
Green v Nanango Bowls Club Inc[2002] QSC 201
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 17 July 2002 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11 July 2002 |
JUDGE: | White J |
ORDER: | Declare that the resolutions passed at the meetings of the respondent on 9 May and 28 November 2001 are void. |
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW AT COMMON LAW – PROCEDURAL FAIRNESS – RIGHT OF PARTY AFFECTED TO BE HEARD – NATURE OF HEARING – REPRESENTATION OF PARTY AFFECTED – whether association member was entitled to legal representation at hearing ADMINISTRATIVE LAW – JUDICIAL REVIEW AT COMMON LAW – PROCEDURAL FAIRNESS – RIGHT OF PARTY AFFECTED TO BE HEARD – NATURE OF HEARING – IN GENERAL – whether association member was given sufficient notice of the nature of the complaint ADMINISTRATIVE LAW – JUDICIAL REVIEW AT COMMON LAW – PROCEDURAL FAIRNESS – EXISTENCE OF OBLIGATION – EXCLUSION OF RULES OF NATURAL JUSTICE – UNDER CONTRACT OR RULES OF ASSOCIATION – whether association member was given sufficient notice of the nature of complain – whether association member was entitled to legal representation at hearing Associations Incorporated Act 1981 Cox v Caloundra Golf Club Inc [1995] QSC (27 September 1995) Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 |
COUNSEL: | S Lynch for the applicant R Fryberg for the respondent |
SOLICITORS: | Michael Mason for the applicant Kevin FJ Woods for the respondent |
[1] The applicant (“Mr Green”) was a member of the respondent Bowls Club (“the Club”) and was expelled on 9 May 2001. He lost his appeal on 28 November 2001. The Club is an incorporated association under the Associations Incorporation Act 1981 (“the Act”). There is some dispute on the material about the duration of Mr Green’s membership. He deposes to membership since 1989 whilst material on behalf of the Club would suggest his membership is of more recent origin but nothing turns on it.
[2] The objects of the Club are to advance and promote the game of bowls both generally and in the local community, to provide facilities for social and competitive games and to provide, develop and promote activities to advance good fellowship between club members.
[3] The rules of the Club constitute the terms of the contract between the members and the Club, s 71(1) of the Act. Section 71(2) gives this court jurisdiction to adjudicate upon the validity of a decision of the club where a member is deprived by that decision of a right conferred by the rules. There is no dispute that the application is of such a nature. Section 71(3) obliges an incorporated association to follow the rules of natural justice in adjudicating upon the rights of its members as conferred by its rules. Mr Green contends that the Club, through its officers, failed to accord him natural justice leading up to his expulsion in a number of respects.
The Facts
[4] The matters which led to Mr Green’s expulsion occurred on 7 April 2001 at the Club when a bowls day was being held. It is by no means clear what occurred but it seems that Mr Green’s sister, who was a member of the Club, and her husband complained to the secretary about the language which he used to describe her. Mr Garry Hilton who was the secretary of the club at all relevant times but is no longer in that position and now resides in Townsville, deposes that after 7 April 2001 he received letters of complaint from five people against Mr Green “following an incident” on that date. The letters are not before the court. Mr Green denies the conduct and deposes that he obtained statements from members who were present who supported his version of events. Mr Hilton sent a letter to Mr Green requesting his attendance at a meeting of the council which is the management committee of the Club to be held on 9 May. The letter dated 1 May has not been exhibited to the material.
[5] Mr Hilton deposes that on about 19 April 2001 he photocopied the letters of complaint against Mr Green and handed them to him at the Club. By letter dated 9 May 2001 directed to the secretary Mr Green’s solicitor drew attention to the requirements of cl 13(a) of the constitution of the Club (“the constitution”) which required the secretary to notify the member in writing of the nature of the complaint and since this had not been done his client was severely prejudiced. The solicitor raised the question of legal representation at the meeting in a way which suggests that it had been canvassed earlier and refused. There was no response and Mr Green attended the meeting in the evening of 9 May with his solicitor, Mr Michael Mason, “to answer the charge and intended to call evidence in the form of statements and also intended to question witnesses.”
[6] The minutes of the meeting indicate that the secretary moved that it be designated a special council meeting and this motion was seconded and carried. Mr Mason when asked why he was in attendance answered that it was to represent Mr Green at the hearing. A motion was put successfully to exclude him. Mr Green and Mr Mason then left the meeting.
[7] In the absence of Mr Green and his solicitor each of the complainants was called upon and the minutes reveal that each complainant had nothing to add to the letter of complaint which each had sent to the secretary. It was then moved by the secretary and seconded for the expulsion of Mr Green from the Club on the ground of complaints made against him and this was carried.
[8] At some time after that meeting in an undated letter the secretary wrote to Mr Green advising him that after the complaints were considered by the council “a Motion for you to be expelled from this club was duly Carried, and I hereby give you notice accordingly.” The secretary noted the provisions of cl 13(b) of the constitution giving Mr Green a right of appeal and enclosing a copy of the constitution. Mr Green was asked to note the time restrictions for lodging the appeal.
[9] A council meeting was held on 13 June 2001. The minutes relevantly record the following:
“L Green, send letter to Leon to be representative by Legal council Move by G Hilton Second by K Sorensen (carried)
L Green, Complaint re T Richardson, right to him to front council at Next meeting to answer complaint, right to B Dunn to get his version of the complaint, move by K Aitken second by C Cameron (carried) L Green, B Dunn, M Wyvil Complaint re K Kleinhanns, I Gutzke, G Poweys, On 25th May 2001, to be called before the council on Their Behaviour at the council meeting, move by K Aitken second by K Sorensen (carried).”
It is not clear what the council resolved about Mr Green from that extract of the minutes and no other person present at that meeting including Mr Hilton who has sworn an affidavit in these proceedings has deposed to what was resolved, however in an undated letter received by Mr Green from the secretary the following appears:
“The Committee has errored [sic] in its judgment of your appeal. We wish to inform you of your right to have your legal council At the Special General Meeting on 24th June 2001.”
[10] At about the same time Mr Green received another undated letter from the secretary informing him that his appeal was to be heard on 24 July 2001 at 10.00 a.m. at the club house. A notice dated 5 June 2001 calling the special meeting was enclosed and Mr Green was invited to be in touch with the secretary if he had any inquiries. The date of the special general meeting was to be 24 June not 24 July 2001. The purpose of the meeting was to hear and vote on Mr Green’s appeal. Members were urged to attend “this very important meeting”.
[11] Mr Green’s solicitor wrote to the secretary that he was unable to be present on 24 June. He asserted that according to the constitution any complaints against a member must, in the first place, be dealt with by the council. The solicitor invited the Club to bring the matter before the council again, to invite Mr Green to attend and to permit him to be legally represented. He sought details of the complaints so that he might answer the charge.
[12] The secretary advised Mr Green that his appeal “with respect to the complaints made against you about your alleged misconduct at the club” would be heard on 2 August at the club house. Mr Green’s solicitor again wrote, this time to the solicitor for the Club, inter alia, requesting the nature of the complaint against his client to be put in writing by the secretary:
“It is grossly unfair to expect my client to stand accused of something without being provided with the particulars required under the Constitution. Please have the Council fully inform my client, in writing, precisely of the charge of complaint that he is to answer.”
He noted that Mr Green was unable, due to illness, to attend the special meeting on 2 August.
[13] By letter dated 8 October Mr Green’s solicitor wrote to the Club seeking an invitation for his client to attend the meeting of the council on 10 October 2001 “in order to finalise the matter then and there”.
[14] It appears from the minutes of the meeting of 10 October 2001 that Mr Green attended and asked that the matter be settled on certain terms. The minutes recorded
“During discussion it was noted that it appears Mr Green has never been charged with an offence.”
Nothing was resolved and Mr Green was asked to leave the meeting. He indicated to the council that he proposed to commence legal proceedings.
[15] A special meeting of the Club was called for 28 November for the purpose of determining Mr Green’s appeal against the decision made on 9 May to expel him from the Club. Mr Green’s solicitor wrote on 7 November 2001 seeking written details from the secretary of the nature of the complaint on the basis that a proper assessment could then be made whether the alleged conduct amounted to conduct which would be sufficient to warrant suspension or termination of membership.
[16] By letter dated 26 November 2001 the Club’s solicitor wrote to Mr Green’s solicitor:
“Advice given to me by various members of the club has made it quite clear that Mr Green was well aware that he was called before the Committee as a consequence of several letters of complaint received by members of the club.”
Presumably he meant “from” members of the club. He noted that prior to the 9 May meeting Mr Green had obtained photocopies of the letters of complaint in preparation of the meeting.
[17] The special meeting was held on 28 November (not 26 November as appears in Mr Green’s affidavit). Mr Green attended with Mr Mason. Both addressed the meeting. Some, at least, of the letters of complaint were read out by the writers. On a secret ballot the motion that Mr Green be accepted back into the Club with full membership rights was defeated.
The Constitution of the Club
[18] The management of the Club is vested in a council comprising of named office bearers and three ordinary members who are elected at the annual general meeting of the Club. The council, by cl 29, is to have general control and management of the administration of the affairs, property and funds of the Club, shall have authority to interpret the rules and any matter relating to the Club on which the rules are silent, to exercise all the powers of the Club, to control its membership, to call meetings and otherwise act in the interest of members. It is required to meet at least once every calendar month to exercise its functions. A special meeting of the council
“… shall be convened by the Secretary on the decision of the President, or on the requisition in writing, signed by not less than one-third of the members of the council, such requisition to clearly state the reasons why the special meeting is being convened, and the nature of the business to be transacted there at.”
[19] Section B of the constitution of the Club concerns membership. There are different classes of members, not here relevant. To qualify for membership a person, inter alia, must be “of good repute and character and compatible with other members”. An ordinary member, of which Mr Green was one, is “entitled to all the privileges of the Club and entitled to exercise all the rights of membership”, cl 8(a). Clause 12 deals with the conduct of members. Members and their visitors are required at all times to maintain “a proper discipline and decorum”. They
“… shall not conduct illegal gambling, betting on games, speak obscene or abusive language or indulge in unseemly conduct. Any alleged infringement of this clause, on report in writing to the Council, shall be investigated by the Council, which shall have the power to demand and direct apologies and, if necessary, if the offending person be a member, to deal with that person under the provisions of Clause 13 … .”
[20] Any infringement of the obligations imposed on members by cl 12 and any complaints or protests lodged by a member or members of the club in respect of any member of the club
“… shall be in writing to the Secretary and shall be dealt with in the first place by the Council, who may, if deemed necessary, call a Special General Meeting. The member … in respect of whom such complaints or protests have been lodged shall be entitled to attend the Council meeting personally to state his … case.”
[21] The powers of the council in respect of the discipline of members is contained in cl 13. It provides:
“The Council shall have power to reprimand, suspend or expel any member who fails to observe any of the Rules or By-Laws of the Club … or who is deemed guilty of an act, practice, or conduct calculated to bring discredit on the game of Bowls or to the Club … or its members … or who on any club … premises engages in illegal gambling, betting, or uses obscene or abusive language.”
By cl 13(a)
“A member shall not be dealt with by the Council under this provision, except upon a charge of complaint made in writing to the Secretary. Such charge or complaint shall set out the conduct, which is the subject matter of the charge of complaint, and bear the signature of the complainant. Any member so charged shall be notified in writing by the Secretary of the nature of the complaint, and the member charged shall be given the right of answering the charge by appearing before the Council, and of calling evidence and of questioning witnesses.”
[22] Any person who is reprimanded, suspended or expelled has a right of appeal to a special general meeting which must be instituted within ten days of receipt of written notice of the reprimand, suspension or expulsion. Upon receipt by the secretary of a notice of appeal a special general meeting must be called by the secretary in accordance with cl 15(b) and the appellant is entitled to all Club privileges until that appeal is determined.
“An appeal shall be deemed lost unless upheld by a three quarters majority of those members present and entitled to vote at the meeting. There shall be no further right of appeal.”
[23] The Club as an incorporated association governed by the Act is bound to follow the rules of natural justice. What that entails will vary according to the circumstances and seriousness of the outcome for the member. Fairness, which is the touchstone of natural justice, may be satisfied by different procedures even in the same association in different circumstances, Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487.
Was Mr Green accorded procedural fairness?
[24] A number of issues are raised on the material. Although not a ground of complaint the resolution moved by the secretary that the council meeting of 9 May 2001 be designated a special council meeting was clearly invalid since it did not conform with the requirements of cl 31. This did not detract from it being an ordinary council meeting. The first complaint by Mr Green is that he received no notice of the charge as required by the constitution. There was no notice in writing by the secretary of the nature of the complaint. It was argued for the Club that Mr Green was given copies of the letters of complaint and this was sufficient. But the purpose of requiring the Club through the secretary to notify the member of the nature of the complaint is to relate the complaint to a potential breach of the rules of membership. Was the complaint, which needed to be identified, to be characterised as “unseemly conduct” or “obscene” or “abusive language” such as would show a want of “decorum”, or did the conduct complained of, if proved, strike at one of the objects of the Club, namely, to “provide good fellowship among members”? This information would allow the member to gauge the light in which the alleged conduct might be viewed by the council. It allows the member to prepare submissions on an appropriate penalty and perhaps search the minutes for comparable instances.
[25] This is not an unduly technical construction of the rules. While there is nothing in the rules to require the council to investigate and, if persuaded of the truth of the complaint, to consider a penalty on separate occasions, or after investigation to call a special meeting or special general meeting to deal with the matter further, if it is to investigate, hear and determine and impose a penalty on the one occasion it must be even more meticulous in following the rules. As Thomas J observed in Cox v Caloundra Golf Club Inc. [1995] QSC (27 September 1995) at p 6:
“… in the context of disciplinary proceedings involving expulsion or suspension, especially where the determination may be thought to involve some degree of personal disgrace, a Court must be very careful before it disregards a breach of the rules, especially a breach of the rules where the correct procedure could have produced a different result.”
[26] There is no doubt that the expulsion from a club involves a degree of personal disgrace. It makes it most unlikely that the member would be received into a similar club. Here, the Club is affiliated with the Royal Queensland Bowls Association.
[27] Mr R Fryberg submits that Mr Green has acquiesced in the process by engaging in the appeal. That cannot be correct. Mr Green may have successfully challenged the council’s decision and saved the costs of an application to court. Further he has maintained throughout his entitlement to have the charges notified in writing to him by the secretary.
[28] Although the finding of want of notice disposes of the application I will mention the other basis of challenge. Mr Green contends that he was entitled to be represented by his solicitor at the 9 May meeting. I am not persuaded that the council failed to accord Mr Green procedural fairness when it declined to allow him legal representation. Even though there is no statutory prohibition or prohibition in the rules it is not inappropriate to keep such procedures reasonably informal. In different circumstances legal representation may well be a fair thing to allow in a club of this kind. The matters to be investigated here were not complex. It seems that a number of members were present on 7 April and could say or give statements about what occurred. Their account could be tested by questioning, not requiring legal skills one might think, to be effective. That the council decided that Mr Green could be represented on the appeal does not alter what their response should have been with respect to the first hearing.
[29] There appears on the face of the minutes of the special general meeting (the appeal) to be an irregularity. Clause 13(b) provides that an appeal is lost unless upheld by a three quarters majority of those members present and entitled to vote at the meeting. The minutes merely note that a secret ballot was taken and the appeal lost. There is a presumption of regularity. The minutes do not record the members present but a loss on a simple majority would encompass the requirement of cl 13(b).
The Orders
[30] Accordingly, there must be a declaration in favour of the applicant that the resolution passed at the council meeting of the respondent on 9 May 2001 expelling the applicant is void. It follows that the resolution passed at the special general meeting on 28 November dismissing the applicant’s appeal is also void.