Kenney v Shailer Park Netball Association
[2006] QSC 403
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Kenney v Shailer Park Netball Association[2006] QSC 403
- Add to List
Kenney v Shailer Park Netball Association[2006] QSC 403
Kenney v Shailer Park Netball Association[2006] QSC 403
SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
PHILIPPIDES J
No BS 8288 of 2006
MONICA KENNEY (BY HER LITIGATION GUARDIAN DEBORAH KENNEY) | Applicant |
and | |
SHAILER PARK NETBALL ASSOCIATION | Respondent |
BRISBANE
DATE 20/10/2006
JUDGMENT
HER HONOUR: The applicant brings this application pursuant to section 72 of the Associations Incorporation Act 1981 against the respondent, an incorporated sporting association.
The applicant was a member of the respondent until her membership was terminated on 28 August 2006. As the respondent is an incorporated association, the rights and obligations of the association and its members are governed by the provisions of the Act.
Section 2 of the Act defines the rules of an association as including its constitution regulations. The rules may be amended by special resolution which are effective upon registration - sections 48, 49.
The respondent has promulgated a constitution and by-laws. The affairs of the association are managed by a management committee. By a subclause 11(3) of the constitution, the management committee may terminate a membership if the member conducts herself in a way considered to be injurious or prejudicial to the character or interests of the association. The management committee must give the member a full and fair opportunity to show cause why the membership should not be terminated - clause 11(4).
By letter dated 7 August 2006, the applicant was notified that a special meeting of the committee would be held on 24 August 2006 to consider terminating the applicant's membership because of various incidents concerning the applicant's conduct. She was advised of rights of appeal if the committee decided to terminate her membership.
The most serious of the allegations against the applicant concerned bullying of another player and rude and belligerent conduct towards coaches and officials. In addition, there were reports that the applicant left two carnivals prior to the presentations taking place, contrary to requests by officials to remain.
The meeting of the committee was attended by the applicant, her mother and her legal representative. The committee thereafter notified the applicant of its decision to terminate her membership for 2006 by letter dated 28 August 2006 as mentioned.
The applicant challenges the termination of her membership. The Court's jurisdiction to hear the application arises from sections 71 and 72 of the Act.
By section 71, upon incorporation, the rules of the association constitute the terms of the contract between the members from time to time and the association. Where a member of an incorporated association is deprived by a decision of the association of a right conferred by the rules, the Court has jurisdiction to adjudicate the validity of that decision under the rules. By section 72, the Court may declare and enforce the rights and obligations of the parties. However, submitted by the respondent, those rights and obligations derive from the status of the respondent's rules as a contract between the respondent and the applicant.
It is to be observed that the Court's jurisdiction is limited to determining whether the decision was in accordance with the requirements of the rules and the Act. The Court has no power to review the merits of the management committee's decision.
The basis upon which the application proceeded was a quite narrow one; firstly, it was contended that the committee was bound by the rules to give the applicant a warning before termination of membership. This was said to arise from the 2006 handbook. Secondly, notwithstanding the broad scope of clause 11(3) of the constitution, it was contended that in the absence of a rule requiring a member to remain present for a presentation ceremony, there was no basis upon which the committee could base disciplinary action for such non attendance.
Pursuant to section 73 of the Act, the Court may refuse to entertain an application brought under the Act. One basis for declining to entertain an application arises where the Court is satisfied that, having regard to the importance of the issue raised on the application, the nature of the association, any other available method of resolving the issue, the costs involved, lapse of time and any other relevant circumstances, it was unreasonable to make the application - see section 73(2)(b).
I consider that the present application is one where, in the exercise of the discretion in section 73(2)(b), the application ought not to be entertained.
Before commencing the within proceedings, the applicant invoked an appeal process under the respondent's constitution and by-laws. The appeal is to be heard by an appeals tribunal on 9 November 2006 and the applicant has been so advised. Some question is now raised as to whether because of clause 12 of the constitution the appeal should in fact be decided at a general meeting.
Whatever the appeal process is, the applicant clearly has rights of appeal which have been invoked and have not been exhausted. The appeal process provided for is an inexpensive one which encompasses a reconsideration of the merits of the committee's decision. There are therefore alternative means of resolving the issues in this matter. The appropriateness of the appeals process is particularly evident given that there are also factual disputes between the parties.
Furthermore, as was submitted on behalf of the respondent, the respondent is a community-based sporting association and it is clearly highly desirable that essentially internal disputes are resolved according to the processes to which the parties have agreed and that the Courts are not resorted to as a primary means of resolving disputes.
In this regard, I endorse what was said in Calvin v. Carr [1980] Appeal Cases 574 at 593:
“It is undesirable in many cases of domestic disputes, particularly in which an inquiry and appeal process has been established, to introduce too great a measure of formal judicialisation… Whilst flagrant cases of injustice, including corruption or bias, must always be firmly dealt with by the Courts, the tendency… in matters - of domestic disputes should be to leave these matters to be settled by the agreed methods without requiring the formalities of judicial processes to be introduced.”
The material indicates that the representative netball season has finished and that the remaining games which the applicant will miss are a number of club games. The applicant is not prohibited for trying out for the 2007 representative side and has been told that she can reapply for 2007 membership - see affidavit of Chandler, paragraph 18. Nor were the issues raised in the application of such a degree of importance as to require consideration by this Court.
In the circumstances, the application is dismissed.
…
HER HONOUR: I consider that the costs ought to follow the event. Accordingly, the applicant is to pay the respondent's costs of, and incidental to, the application on a standard basis.
…