Meehan v Cunningham District Bowls Association
[2005] QSC 156
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- Notable Unreported Decision
- Meehan v Cunningham District Bowls Association[2005] QSC 156
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Meehan v Cunningham District Bowls Association[2005] QSC 156
Meehan v Cunningham District Bowls Association[2005] QSC 156
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 10 June 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 4 February 2005 |
JUDGE: | Douglas J |
ORDER: | Order in terms of paragraphs 1 and 2 of the originating application. Further submissions sought as to any consequential orders and costs |
CATCHWORDS: | ASSOCIATIONS AND CLUBS – OFFICERS, TRUSTEES, SERVANTS AND COMMITTEES – APPOINTMENT – dispute over voting rights – previously separate men’s and ladies’ bowling clubs amalgamated – executive of respondent purported to cast a block vote as it had done before amalgamation – whether this purported voting was valid ASSOCIATIONS AND CLUBS – EXPULSION, SUSPENSION AND DISQUALIFICATION – EXERCISE OF POWERS OF EXPULSION – GENERALLY – where applicant challenged actions of the executive of the respondent in relation to voting for positions on the state executive – where disciplinary action taken by respondent against applicant – whether powers to take disciplinary action properly exercised Cox v Caloundra Golf Club Inc. (1407/1995; Thomas J, Supreme Court of Qld, 27 September 1995, unreported), cited Green v Nanango Bowls Club Inc. [2002] QSC 201, cited McClelland v Burning Palms Surf Club (2002) 191 ALR 759, followed |
COUNSEL: | A J H Morris QC with him V G Brennan for the applicant L J Bowden for the respondent |
SOLICITORS: | Rhonda Penny & Associates for the applicant Gadens Lawyers for the respondent |
[1] Douglas J: Ms Kerry Meehan, the applicant, believed that the election of office bearers for Bowls Queensland Ltd (“Bowls Queensland”) on 31 March 2004 should have been conducted by the casting of votes for candidates by the delegates of the district bowls associations members of Bowls Queensland voting in conformity with the wishes of the majority of the clubs that were financial members of those district associations. Her district association was the respondent, the Cunningham District Bowls Association (“CDBA”). To put her belief into context it is necessary to provide some background information.
[2] CDBA was a member of Bowls Queensland; cl. 22.1(a) of Bowls Queensland’s constitution. CDBA itself had as members a number of bowls clubs affiliated with it; cl. 6(a) of CDBA’s constitution. Individual players cannot be members of either Bowls Queensland or a district association such as CDBA. Individual players are members of their own clubs, clubs are members of district associations and district associations are members of Bowls Queensland. It seems that CDBA’s delegate could cast a number of votes in elections for office in Bowls Queensland equivalent to the number of financial clubs in CDBA.
[3] Bowls Queensland had come into existence in January 2004 on the amalgamation of the Queensland Ladies Bowling Association with the existing men’s organisation, the Royal Queensland Bowling Association. Before that amalgamation Ms Meehan’s club, Brisbane Ladies Bowls Inc., (“Brisbane Ladies”) was accustomed to receiving its own individual ballot paper for elections for the office bearers of the Queensland Ladies Bowling Association.
[4] After the amalgamation, Brisbane Ladies became a member of CDBA which had previously been a member of the Royal Queensland Bowling Association. It seems that CDBA’s membership increased from 29 to 59 clubs, including 30 ladies’ clubs, after the amalgamation.
[5] CDBA’s course of conduct, in the 2001 election for the Royal Queensland Bowling Association, was for its council to delegate its rights to vote to its executive committee. In 2004 the executive committee, in accordance with that earlier practice, cast a bloc vote on behalf of all of its member clubs for the candidates for election to Bowls Queensland in January 2004. That was done without consultation with the clubs that were then members of CDBA.
[6] For having the temerity to question the legality of that procedure Ms Meehan was expelled from Brisbane Ladies and the CDBA on 20 July 2004. That had the effect of removing her as president of the ladies’ section of Bowls Queensland, as honorary secretary of Brisbane Ladies, as a member of Brisbane Ladies, as a member of the State and National coaching committees and of prohibiting her from playing bowls either socially or competitively within the State. An appeal by her against the penalty imposed on her, the only type of appeal that existed as there was no provision for an appeal on the merits, was dismissed on 13 September 2004.
[7] This application challenges both the power of CDBA to expel her and the procedural steps taken to achieve that end. For reasons that will become clear it is my view that Ms Meehan has been wronged and that the steps taken to expel her were invalid.
Events leading up to the expulsion
[8] As honorary secretary of Brisbane Ladies, Ms Meehan received biographical background notes about the nominated candidates as required by by-law 4.3 of the Bowls Queensland’s by-laws but not the ballot papers. When she asked about voting, Ms Meehan was told by Mr Herbert Green, the secretary/treasurer of CDBA, that Brisbane Ladies would not receive any ballot papers as voting was completed by the District Executive pursuant to a “delegation motion” which, according to Mr Green, had been passed by the District Council of CDBA in March 2001. She also received what she regarded as a contrary interpretation of the voting rights from the office manager of Bowls Queensland. When she spoke to the president of CDBA, Mr Arthur Smith, about the issue on 17 March 2004 she was told by him that the men’s clubs had voted for CDBA to conduct the vote on their behalf. When she raised the issue as to CDBA being now an amalgamation of the men’s and women’s clubs he replied, “If you want to join us you play by our rules.”
[9] At the Brisbane Ladies’ meeting of 13 March 2004 it was resolved to seek legal advice as to the voting procedures adopted by the CDBA. Subsequently, Ms Meehan informed Ms Yvonne Taylor that such advice could be obtained, without fee, from the Caxton Legal Centre. Ms Taylor as president of Brisbane Ladies instructed Ms Meehan as secretary of Brisbane Ladies to seek legal advice through that community legal centre. Ms Meehan attended at Caxton Legal Centre and was provided with advice, a summary of which was completed on pink carbon copy paper. In that form, the advice was unsuitable to be faxed or photocopied. It was therefore re-typed, described incorrectly as a “barrister’s ruling” rather than as an opinion and, together with a covering letter under Ms Taylor’s hand, sent to Bowls Queensland’s Chief Executive Officer, Mr Peter Turnbull. The letter was typed on 19 March, but the decision to convey the correspondence to Bowls Queensland was voted on at a Brisbane Ladies’ executive meeting on 20 March 2004.
[10] The advice gives the impression of having been prepared in haste and proceeds on the assumption that Bowls Queensland’s by-laws required the ballot papers to be filled out by the district secretary at the direction of the district council. The by‑laws actually say in cl. 4.5 that the details of two envelopes containing the ballot papers, which are required to be marked in a particular way, “must be completed by the District Secretary as instructed by the District Council.” I shall return to that by‑law later.
[11] Both Ms Meehan and Ms Taylor also corresponded with other ladies’ clubs within the CDBA about the voting procedures, the Caxton Street advice and the possible invalidity of the election. Ms Meehan said when cross-examined that she had used the word “illegal” in the context of the voting procedures when talking with “three or four clubs” (T36L2-6). On 26 March 2004, Ms Taylor, as president of Brisbane Ladies, received a response to her letter to Mr Turnbull. This conveyed Bowls Queensland’s view that the CDBA’s voting procedures were authorised by its Council and that the vote cast was not invalid.
[12] On 3 May 2004, a general meeting of CDBA took place at the Oxley Bowls Club. The minutes record that a Mr Mallory purported to move a resolution in the following terms:
“... the Management Committee review the entire matter and if it is determined that a breech [sic] or breeches [sic] of the constitution have occurred then this meeting expects the club and/or the individuals to be charged under the disciplinary code of our constitution. Upon finalisation of its job, the Management Committee is to provide a detailed report to the next available general meeting.”
[13] The minutes also record at item 6 that:
“Mr C Mallory asked if it was true that Brisbane Ladies Club had asked to [sic] State Body to declare all of the Men’s and Ladies clubs [sic] votes’ [sic] invalid. The Secretary said that that was correct and summarised the circumstances as he knew them. Mr Mallory said that his club was outraged that Brisbane Ladies would attempt to have his club’s vote taken away from them.”
[14] Ms Taylor’s evidence about the meeting contradicts the minutes. Her recollection is that there was no mention of Brisbane Ladies at all. She said that Mr Mallory experienced great difficulty when attempting to read his motion from a piece of paper. Mr Green, the person responsible for the minutes, admitted that there was no specific reference to an investigation of Brisbane Ladies’ Club in the motion (T63L48-51). Ms Meehan’s name is not mentioned in the minutes nor in the motion. This resolution has, however been treated as the relevant complaint against Ms Meehan for the purposes of the disciplinary action taken against her.
[15] A “discovery discussion” between Brisbane Ladies’ representatives, including Ms Meehan, and the CDBA executive, including Mr Green, occurred on 15 June 2004 where the Brisbane Ladies’ representatives were asked questions about their conduct in relation to the Bowls Queensland voting issue. Ms Meehan apologised there for describing the legal opinion she had obtained from the Caxton Legal Centre as a “barrister’s ruling” and Mr Green explained the origin of the “delegation motion” and contested Ms Meehan’s description of the voting procedure adopted by CDMA’s executive committee as “illegal”.
[16] About three weeks later a letter of 7 July 2004 was sent to Ms Meehan in the following terms :
“NOTICE OF A DISCIPLINARY HEARING
I advise that the Cunningham District Bowls Association Inc. has charged you under Clause 34(a)(i) and (ii) of its Constitution with the following:-
Charge Number 1:
That Ms Kerry Meehan of 253 Lavelle Drive, Logan Village 4127 conducted herself in a manner considered to be prejudicial to the character and interests of the District.
Charge Number 2:
That Ms Kerry Meehan of 253 Lavelle Drive, Logan Village 4127 conducted herself so as to bring discredit upon the District.”
[17] The Disciplinary Hearing took place on 20 July 2004. Mr Green presented the charges and Mr Arthur Smith attended in his capacity as CDBA president. Their active role in cross-examination of Ms Meehan was criticised by Mr Morris but they do not appear to have been involved in the making of the decision as to Ms Meehan’s guilt by the committee. It was constituted by three people as required by the constitution and found that the charges were proved.
[18] On 26 July 2004, the CDBA management committee met in a special meeting, the minutes for which record that the following motions were carried unanimously:
“1. The Chairman of the ‘Disciplinary Committee’ reported that the Disciplinary Hearing to hear charges against Ms K Meehan had been held at Corinda on Tuesday 20th July 2004. The Disciplinary Committee has determined that Ms Meehan is GUILTY as charged.
...
2. The Chairman of the Disciplinary Committee then reported that the Committee under clause 35(b)(v) refers the matter back to the Management Committee for a determination of the penalty due to the seriousness of Ms Meehan’s actions.
…
3. The Management Committee then discussed the matter fully and it was –
MOVED A Russell Seconded F Busch that Ms K Meehan of Brisbane Ladies Bowling Club be expelled (Clause 35(k)) and that the Secretary advise Ms Meehan as soon as convenient in writing and advise her of her appeal rights.”
[19] The two points made by Mr Morris about this special meeting held on 26 July 2004 were that the disciplinary committee purported to refer or delegate the issue of penalty to the management committee to make a determination, instead of exercising their powers as the relevant committee empowered under the Constitution to determine penalty. Secondly, he submitted that it was relevant that the members of the management committee who appear, in the minutes, to have proposed Ms Meehan’s penalty are Mr A Russell and Ms F Busch, not members of the disciplinary committee and that the management committee included members such as Mr Green and Mr Smith who were actively opposed to Ms Meehan’s interests and who had acted against her during the disciplinary hearing.
[20] At the appeal hearing held on 13 September 2004, which, pursuant to clause 35(f) of the Constitution, could only deal with penalty, Mr Green distributed a “special management committee report” in respect of the disciplinary hearing containing allegations not put to Ms Meehan at that hearing. They included assertions that she misled members of her own club, withheld relevant information to the Caxton Legal Centre advisor, fraudulently manufactured a “letterhead” for that advice and acted for her own personal benefit. At that meeting Mr Smith also alleged that he was in possession of either seven letters or perhaps a seven page letter from an unidentified person or persons whom he characterised as “well regarded” proving that Ms Meehan was lying.
[21] Mr Smith had been a qualified lawyer in the past but did not produce the correspondence to which he referred, which, according to Mr Green, appeared to have been a single seven page letter rather than the seven letters apparently referred to by Mr Smith at the appeal hearing. Ms Meehan had no chance to counter that “evidence” and it was notable that Mr Smith was not called to give evidence on behalf of the respondent although his conduct in respect of the proceeding by it against Ms Meehan was clearly an issue.
Electoral Rules
[22] Elections to the board of Bowls Queensland are held annually by postal ballot; cl. 48.1. They are to be held in accordance with the Elections By-Law. By-law 4.10 provides that voting shall be by the “First Past the Post” system “which requires each district bowls association to cross out the names of the candidates that they do not wish to elect.” By-Law 4.5 relevantly provides that the association should supply each district bowls association, such as the respondent, with ballot papers and each director, each district bowls association and each affiliated club with brief biographical background on all properly nominated candidates. Three envelopes were to be issued with the ballot papers as follows:
“Envelope (A): A plain envelope marked ‘Ballot Papers’ large enough to hold the Ballot Papers without folding.
Envelope (B): A printed envelope in the form of a declaration, with spaces to indicate Name of District, Date of Posting and Signature of the District Secretary.
Envelope (C): An envelope large enough to contain Envelopes (A) and (B).”
[23] The details of envelopes (A) and (B) had to be completed “by the District Secretary as instructed by the District Council.”
[24] The requirements of by-law 4.5 were restated in a memorandum which was addressed to the district secretary and accompanied the ballot papers supplied by the association to each district association in accordance with by-law 4.1.
[25] There was evidence from Mr Green that, before the unification of men’s and women’s bowling in Queensland, and the first Bowls Queensland elections, the CDBA had voted for officers of the Royal Queensland Bowls Association under the procedure described earlier which he referred to as “bulk voting”. Under this procedure, the executive committee cast votes, in bulk, for one candidate in the State elections. This procedure was used in the 2001 elections and subsequently ratified in a monthly councillors’ meeting held on 12 March 2001. The minutes of that meeting say:
“7. Councillors were briefed on how the district completed the RQBA ballot papers. It was explained that time did not allow for clubs to submit views. Algester said that clubs had no idea who candidates were.
RESOLVED that the Action of the Executive be endorsed and that the Executive act in a similar manner if time was short in the future.”
[26] Mr Green’s evidence also suggests that, before unification, “it was a matter for the district to decide how the votes should be determined and cast”. He also says that “the method determined by the [CDBA] for casting votes for State Body elections is for the Executive of the District to cast the votes in bulk, for one candidate”.
[27] Mr Morris QC for Ms Meehan submitted that there were three relevant observations about the state of the evidence on what the respondent described as the “delegation motion”. The first was that there was no evidence before the Court as to the requirements for ballot completion in respect of the previous State body to which the “delegation motion” referred, that is, the Royal Queensland Bowls Association.
[28] Secondly, he submitted that there was no evidence that the procedure undertaken by the executive was, in fact, the procedure employed in the present case. Thirdly, he submitted that the right of the executive to vote on behalf of the district pursuant to the “delegation motion” was qualified by the requirement that “time was short”, and, as he submitted, there was no evidence that time was “short” in respect of the 31 March 2004 elections.
[29] He submitted further that, in any event, Mr Green’s conclusion that the constitution of Bowls Queensland did not purport to regulate voting procedures was incorrect. For that argument he relied on the reference in by-law 4.5 to the completion of the envelopes for the ballot papers, “by the District Secretary as instructed by the District Council” and the further requirement that clubs be circulated with details of candidates for election, which, as he submitted, would be an entirely pointless exercise if the casting of votes was to be left entirely in the hands of a district association’s executive or management committee.
[30] It is difficult to create a principle that the clubs should be consulted about the casting of ballots from by-law 4.5’s requirement that the details of envelopes (A) and (B) had to be completed by the district secretary as instructed by the district council. The important issue is how the ballot papers should have been completed. By-law 4.10 makes it clear that the ballot is to be a decision of the district bowls association. That is also consistent with cl. 111.1(b) dealing with elections to sections “by postal ballot by Members of the Section”, CDBA being a member of such a section. The real issue seems to be whether there was a proper decision of CDBA about how its votes should be cast for these elections.
[31] The evidence of the 2001 “delegation motion” relating to pre-amalgamation elections to a different body is not nearly strong enough to establish that it continued to apply to the changed structure, after amalgamation and the introduction of new clubs. In my view that motion is not sufficient to establish that CDBA’s members had delegated to its executive committee that association’s power to vote in elections for this new body, Bowls Queensland. That committee was empowered by cl. 26 of the CDBA constitution to transact any urgent business between management committee meetings. This could hardly be described as such. Even the management committee’s powers do not contain any obvious power for it to decide how to vote in elections on behalf of CDBA. Nor was there compelling evidence that the factual prerequisites for the delegation motion’s use, shortness of time, existed. In that context, Mr Green’s evidence in para. 33(c) of his affidavit referred only to the shortness of time since the time of Ms Meehan’s request in respect of Brisbane Ladies’ voting rights on 11 March 2004.
[32] No doubt, as Mr Morris submitted, the clubs through the district council might vote to direct the district secretary to cast a “bulk” or bloc vote for particular candidates, or to cast different votes as selected by individual delegates in accordance with the wishes of their respective clubs. That decision seems to me, however, to be one for the district association to take in a council meeting and is not one that should have been taken by the executive committee without its member clubs’ authority.
[33] What occurred in the election was, therefore, contrary to the requirements of the Bowls Queensland constitution. As the purported exercise of a legal right, it was invalid and ineffectual. It was unlawful or “illegal” as Ms Meehan had argued.
Disciplinary Rules and Procedural Requirements
[34] The rules under which CDMA purported to discipline Ms Meehan are to be found in cll. 34 and 35 of its constitution. The relevant passages read as follows:
“34.CONDUCT OF CLUBS, OFFICIALS AND MEMBERS
(a)It shall be an offence if any player or official participating in a ‘CDBA’ controlled or sanctioned event or other district activity –
(i)Conducts themselves in a manner considered to be injurious or prejudicial to the character or interests of the ‘CDBA’; and/or
(ii)Conducts themselves so as to bring discredit upon the Game of Bowls, or to a Club, or its Members, and/or ...
35PROCEDURE TO HANDLE COMPLAINTS
(a)All complaints against a person or club shall be made in writing to the ‘CDBA’ Secretary setting out the reasons for the complaint and signed by the complainant.
(b)Upon receipt of a complaint, a ‘disciplinary committee’ formed for the purpose and comprising three persons appointed by the President from the Management Committee of the ‘CDBA’ shall forthwith hear the complaint and make a determination. The ‘disciplinary committee’ shall have the power to –
…
(iv)expel
(v)set such other conditions as the Committee may consider appropriate [in respect of]
any club or person found guilty of the complaint. In any case of a club, the Management Committee will ratify any penalty awarded before being advised to the club.
(c)A person or club subject to a complaint shall be notified in writing of the complaint by the Secretary and the club or person shall have the right to present an answer to the complaint in writing to the Secretary prior to the date of the scheduled hearing.
...
(f)A Club or person shall have the right of lodging an appeal to a Special General Meeting of the ‘CDBA’ against the penalty awarded. The appeal must be in writing, signed by the appellant and lodged with the Secretary within 28 days of the date that the Executive Committee advised the club/person of the penalty.
...
(j)A penalty awarded may only be overturned or varied on appeal provided that two thirds of the Councillors and Office Bearers present and voting at the special general meeting agree to overturn or vary the penalty.
(k)A person who has been suspended or expelled shall not be eligible to nominate or continue in any ‘CDBA’ controlled event and shall lose all membership rights and privileges at all Bowls Queensland affiliated clubs during the period of the suspension or expulsion.
...
(m) A person who is expelled shall not be eligible to apply for re-admission to any bowls club for a period of at least 12 months from the date of their original expulsion.”
Power to Discipline