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  4. Pine Rivers, Caboolture & Redcliffe Group Training Scheme Inc v Group Training Association Qld & Northern Territory Inc - [2013] QSC 31

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Pine Rivers, Caboolture & Redcliffe Group Training Scheme Inc v Group Training Association Qld & Northern Territory Inc[2013] QSC 31

Pine Rivers, Caboolture & Redcliffe Group Training Scheme Inc v Group Training Association Qld & Northern Territory Inc[2013] QSC 31

 

SUPREME COURT OF QUEENSLAND

  

CITATION:

Pine Rivers, Caboolture & Redcliffe Group Training Scheme Inc & Ors v Group Training Assoc Qld & Northern Territory Inc [2013] QSC 31

PARTIES:

PINE RIVERS, CABOOLTURE AND REDCLIFFE GROUP TRAINING SCHEME INCORPORATED (T/AS EAST COAST APPRENTICESHIPS)
(First Applicant)

GOLDEN WEST GROUP TRAINING SCHEME INCORPORATED
(Second Applicant)

ALAN SPARKS
(Third Applicant)

ROBERT FULTON
(Fourth Applicant)

v

GROUP TRAINING ASSOCIATION QUEENSLAND AND NORTHERN TERRITORY INCORPORATED
(Respondent)

FILE NO/S:

BS No. 5363 of 2012

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 February 2013

DELIVERED AT:

Brisbane 

HEARING DATE:

11 September, 31 October 2012

JUDGE:

Ann Lyons J

ORDER:

The Application dated 15 June 2012 is dismissed

CATCHWORDS:

ASSOCIATIONS AND CLUBS – INCORPORATED ASSOCIATIONS – RIGHTS, DUTIES AND LIABILITIES OF MEMBERS – JURISDICTION OF THE COURTS –where members of an Incorporated Association providing apprentices and trainees to government and industry were not entitled under s 72 of the Associations Incorporation Act 1981 to documents relating to the allocation of funding by the Association – where members of an Incorporated Association failed to identify which of the Association’s rules required an order of the Court for their performance or observation or which of their rights and obligations they were entitled to enforce

Associations Incorporation Act 1981, ss 16, 53(1), 59C, 71, 72, 73

Cameron v Hogan (1934) 51 CLR 358

Kovacic v Australian Karting Association (Qld) Inc [2008] QSC 344

Re Maggacis 1994] 1Qd R

COUNSEL:

C Coulsen for the Applicants

V Brennan for the Respondent

SOLICITORS:

Hall Payne Lawyers for the Applicants

McCullough Robertson Lawyers for the Respondents

ANN LYONS J:

History

  1. Group Training Association of Queensland and Northern Territory Incorporated (“the Association”) is a peak body for Group Training Organisations in Queensland and the Northern Territory in relation to the provision of apprentices and trainees to government and industry. The Association is incorporated pursuant to the provisions of the Associations Incorporation Act 1981 (Qld) (“The Act”) and is a not for profit voluntary association established in 2001.  The 35 members are Group Training Organisations (“GTO’s”) and each organisation employs apprentices and trainees. These GTO’s compete with each other for the provision of apprentice and trainee services to third parties including industry and local government.
  1. Mr David Mitchell has been the Executive Officer of the Association since 2005. The Association has Articles of Association and has an elected Management Committee made up of representatives of member organisations. The Management Committee currently comprises seven members made up of a Chairman, a deputy Chairman, a treasurer and four other members of the Association.
  1. Apart from membership fees, the Association mainly receives funding from Queensland State Government grants, Commonwealth Government and Queensland State Government jointly funded programs, Commonwealth funded programs, as well as joint industry and government funded programs. Those moneys are used by the Association to support its members in providing apprenticeships and group training programs throughout Queensland. Essentially, the Association is the vehicle for the provision of funding from the State and Federal Government for projects which involve apprentices and trainees.
  1. The process which has been adopted in relation to access to the grants involves the relevant GTO developing a proposal for funding the supply of apprentices or trainees to a third party. That proposal is submitted to the Association for approval. The particular project is then vetted to ascertain if it comes within the particular government guidelines and requirements for that particular program. If the proposal is approved, an agreement is entered into between that particular GTO and the third party for the provision of apprentices or trainees and the Executive Officer of the Association then project manages that project. The Association then provides monthly reports and invoices to government. At the end of each project there is a requirement that an audit must be conducted. That audit must then be lodged for approval by the government agency which provided the funding for the program.
  1. The Association is the respondent in these proceedings.
  1. The First Applicant is the Pine Rivers, Caboolture and Redcliffe Group Training Scheme Incorporated trading as East Coast Apprenticeships (“East Coast”). The Second Applicant is the Golden West Group Training Scheme Incorporated (“Golden West”). The First and Second Applicants are both GTO’s.
  1. The Minutes of the Association reveal that on 13 October 2011, a Management Committee meeting was held where a motion was carried that “the Executive Officer’s contract not be renewed and an Independent Agency be engaged to source appropriate candidates for the Management Committee to consider”.[1] 
  1. On 26 October 2011 Stephen Craven resigned from the Management Committee of the Association. On 27 October 2011 Robert Dunbar resigned from the Management Committee of the Association.
  1. Mr Alan Sparks is the Chief Executive Officer of the First Applicant East Coast. In October 2011, Mr Sparks sought information from the Association about the allocation of funding to the individual GTO’s. No response was received.
  1. Pursuant to a Freedom of Information application request (“FOI”) dated 27 October 2011, Mr Sparks sought access to the funding allocation and disbursements to all organisations which were registered members of the Association. Mr Robert Fulton is the Chief Executive Officer of the Second Applicant Golden West.
  1. The Minutes of the Association indicate that on the morning of 10 November 2011 a Special Meeting of the Management Committee was called and a motion was carried “That the Executive Officer’s Contract be renewed to July 2013 with the same terms and conditions with the exception of remuneration which shall be in accordance with the KPMG report recommendations”.[2]
  1. Mr Sparks and Mr Fulton were both subsequently appointed to the Management Committee at the Annual General Meeting held later in the day on 10 November 2011. The Management Committee currently has seven members including Mr Sparks and Mr Fulton. The other five members are Mr David Handyside, Ms Kerry Whittaker, Mr Mark Poulton, Mr Ron Pertovt and Mr Russell Toohey. Mr Handyside, Ms Whittaker and Mr Poulton are directors of a company called Skillforce Ltd (Skillforce). Mr Pertovt represents an organisation called Mount Isa Group Apprenticeship, Traineeship and Employment Inc which is a member of Skillforce. Mr Toohey represents Rural Industry and Extension Ltd which is ‘partnered’ with Skillforce. Accordingly, the Third and Fourth Applicants are the only members of the Management Committee who do not have an association with Skillforce.
  1. On 10 November 2011, as a new member of the Management Committee, Mr Sparks requested an “In-coming Brief” and sought access to the documents he had requested pursuant to the FOI request as well as the financial records of all travel and accommodation expenses paid to committee members in the previous 12 months. On 15 November 2011, he was advised that he was denied access to some of that material on the basis that the information was “commercial in confidence”. On 21 November 2011 the Third Applicant was given an “induction briefing” and was given a number of documents including the original contracts with the Apprentices Intervention Program (“AIP”) and the Apprentices Work Team Program (“AWT”), management fees, Minutes of the five previous Management Committee Meetings and minutes relating to the lease of the current premises.
  1. On 10 December 2011, Mr Sparks made a further request for the documents to the Management Committee. At the Management Committee meeting on 14 February 2012 Mr Sparks tabled a number of motions seconded by Mr Fulton that he be given access to the documents he sought. Those motions were defeated by five votes to two.
  1. Pursuant to a letter dated 14 February 2012, Mr Sparks was advised by the FOI officer that 20 documents had been identified in his request dated 27 October 2011 and that “access in full to 19 documents” was granted. He was informed, however, that “one document contains information which is conditionally exempt pursuant to subsection 47G(1) of the FOI Act because release would involve the disclosure of the business, commercial or financial affairs of several organisations”.[3]
  1. On 5 April 2012, the solicitors for Mr Sparks wrote to the Management Committee seeking access to a number of documents including documents in relation to the Executive Officer’s contract of employment, the KPMG Report, any legal advice provided to the Committee, contracts between the Association and the Department of Education, Employment and Workplace Relations (“DEEWR”) and the financial documents in relation to travel and accommodation.
  1. That information was not provided and this application to the Supreme Court was filed on 15 June 2012. Mr Alan Sparks is the Third Applicant and Mr Robert Fulton is the Fourth Applicant in these proceedings.

This Application

  1. Pursuant to an application filed on 15 June 2012, the Applicants sought orders for;
  1. A direction pursuant to s 72 of the Act that the Management Committee perform and observe the rules of the Group Training Association Queensland and Northern Territory Incorporated by providing a number of documents listed as documents A to U in the application.
  1. A direction pursuant to s 72(1)(b) of the Act that the resolution of 10 November 2011 referred to in paragraph 34 of the affidavit of Alan Sparks renewing the Chief Executive Officer’s contract is void and of no effect due to the failure of the Respondent to provide members of the Management Committee with all the relevant documents.
  1. In the alternative to Order 2, that the resolution of 10 November 2011 renewing the contract is a resolution passed other than in accordance with the Act and the Articles of the Association.
  1. The application was set down for hearing in the application’s list on 3 July 2012. The application and material in support of the application was served on the Respondent Association on 25 June 2012.
  1. On 29 June 2012, the solicitors for the Association responded by letter to the request for documents advising that 21 different categories of documents had been sought and setting out the Association’s response to each category. A précis of that response is as follows;

1(a) –the documents had already been provided pursuant to FOI but the Association had no objection to further provision of the documents.

1(b) –120 plus documents were involved and contained “commercial in confidence” documents. One member had consented to their release and those documents would be provided.

1(c) –this category comprised thousands of documents and further clarification was sought as to the specific type of document required.

1(d) –the documents in this category had already been provided or did not exist.

1(e) –the documents were “commercial in confidence” but one member had consented to the release of its documents and they would be provided.

1(f) –the request was too vague.

1(g) –the documents were provided at the Induction Briefing but they would be provided.

1(h) –there were 100 plus documents in this category and contained “commercial in confidence” material and would not be provided.

1(i) –there were thousands of documents in this category and further clarification was sought as to the specific type of document required.

1(j) –no management fees were paid and there were no documents within the category.

1(k) –the documents in this category contained “commercial in confidence” material and would not be provided.

1(l) –the request was vague and there was a lack of clarity as to the type of documents required. If the request relates to variations of contracts then there were no variations of the contracts. If the request relates to operational guidelines those documents have been provided.

1(m) –documents in this category would be provided.

1(n) –no documents in this category exist as no legal advice was obtained.

1(o) –the association does not possess any documents in this category and any advice was obtained verbally from Employer Services.

1(p) –the documents in this category would be provided.

1(q) –the documents in this category would be provided.

1(r) –during the Induction Briefing, the applicants were advised that the material was available on the Association’s website but they would also be provided.

1(s) –there was no difference between vouchers and invoices and the information in relation to travel and accommodation was already available in summary format in a financial report given to members of the Management Committee and tabled and approved at every meeting of the Management Committee.

1(t) –the Association did not possess any documents in this category.

1(u) –the request could involve thousands of invoices and receipts and would involve five weeks work fro 2 employees.

  1. Pursuant to the letter of 29 June 2012, the Applicants were also advised that the information sought in categories 1 (a) to 1 (f) related to the AIP Program which was concluded prior to the date the Applicants became members of the Management Committee and that the program had been audited and a final report provided to the Federal Government. The letter stated that it was therefore difficult to understand how the requested documents were necessary for the Applicants to comply with the asserted fiduciary duties.
  1. The hearing listed in applications for 3 July 2012 was adjourned to 31 July 2012 and on that date the Originating Application was further adjourned by consent for hearing on the Civil List on 11 September 2012 for one day with the Applicants to file Points of Claim by 14 August 2012 and the Respondents to file Points of Defence by 21 August 2012.
  1. A Special General Meeting of the Association was called and was held on 24 July 2012. A number of resolutions initiated by the Applicants seeking the provision of information were put to that meeting. The proposed resolutions that the Management Committee provide to all members of the Management Committee all contracts between the Association and DEEWR in relation to the AIP and the AWT were defeated. The proposed resolutions that the Management Committee be directed to release to all members of the Management Committee all agreements providing for funding from AIP and AWT in relation to a member of the Association were also defeated.
  1. The members therefore resolved against providing the Applicants with documents sought under paragraphs 1 (a), (b), (e), (h) and (k) of the Originating Application. The Applicants have also been advised that documents sought in a number of the categories were not in existence. In particular, the Applicants were informed that legal advice was not obtained in relation to the review of the Executive Officer’s contract. A proposed resolution had been circulated by email by one member of the Management Committee prior to the Special General Meeting to the effect that a second independent auditor be appointed. Whilst it is argued that the resolution was passed at the Special General Meeting, it would appear, however, that such a resolution was not in accordance with the Association’s Articles of Association which required that all proposed resolutions were required to be in writing signed by all members of the Management Committee.
  1. The Applicants, however, continue to press for the production of ten categories of documents from the 23 categories of documents outlined in the original application particularly documents in categories 1(a), (b), (c) (e), (g), (h), (i), (k), (l) and (u).

The hearing

  1. The matter came on for hearing on 11 September 2012 with a number of witnesses giving evidence. Evidence was given by Mr Sparks, Mr Fulton and Mr David Mitchell. Mr Mitchell, the Executive Officer of the Association, is independent of any of the individual GTO’s. He gave evidence about the role of the Association, the Committee structure, the project process as well as the proposal and application process. He gave evidence that in the period between June 2011 and June 2012 only one application for funding was rejected and that was an application by the First Applicant which did not meet the guidelines for eligibility for funding. No review of that decision was ever sought by the First Applicant.
  1. In relation to the variation of ‘apprentice caps’ Mr Mitchell stated that an “apprentice cap [could be] varied following consultation between the project manager or officers and the relevant GTO”.[4] He stated that the data records outlined all the project funding and indicated that monthly reports were provided to the Federal Government. He also gave evidence that more than 15 organisations sought funding through the project and “that most were provided with some flexibility within their funding agreement”.[5] He also stated that the projects were audited by the Association’s auditor.
  1. The matter was adjourned part heard to 31 October 2012 when further evidence was given by Mr David Handyside. Mr Handyside is the Chair of the Management Committee of the Association. He has prepared a number of affidavits and gave evidence at the hearing. In an affidavit sworn 30 July 2012, he swears that he has not seen copies of documents sought under paragraphs 1(b), (e), (h) or (k) of the Originating Application and that to his knowledge, no other committee member has seen them either as the documents contain information considered to be “commercial in confidence”. He does not consider that he needs to see the documents in order to discharge his functions as Chair. Mr Handyside also swears that much of the information sought by the Applicants relates to matters that occurred or were finalised before the Third and Fourth Applicants became members of the Management Committee particularly the finalisation of the AIP contract and the renewal of the Executive Officer’s contract.
  1. In his affidavit sworn 30 July 2012, Mr Handyside swears that the issue of the renewal of the contract had to be revisited when it was discovered that the term of the Executive Officer’s contract had already expired and his employment had been continued pursuant to a common law contract. He stated that the remuneration paid is not in excess of that recommended by the KPMG Report dated 4 October 2007. A copy of that Report has been provided to the Applicants.
  1. In his evidence to the Court, Mr Handyside outlined the funding model of the organisation and the way in which grants were then allocated to the various GTO’s. He also confirmed the payments which had been made to various organisations in the 2011 and 2012 years. Mr Handyside gave evidence that the organisation he represents received 55% of the funding but that was due to the fact that his organisation not only put in more applications but because “the bulk of the damage done by the floods which was the subject of the funding was in our area.”[6]

The Issues in Contention

  1. It would appear from the affidavit material that the Applicants have concerns in relation to the application of government funding as between the members in relation to the AIP and the AWT.
  1. The purpose of the AIP is to assist unemployed third and fourth year construction apprentices to complete their training and the purpose of the AWT is to promote a growth in skills and to facilitate further qualifications to allow workers to enter the workforce, re-enter the workforce or retrain and upgrade.
  1. In relation to the AWT funding, the concern is that there has been preferential allocations of funding to certain members and not equal allocation of funding to all members of the Association. In particular, the First and Second Applicants assert that they did not receive any allocations above a particular cap. It is argued that allocations above the cap have been made to some members of the Association. The Applicants are concerned that preferential allocations were made to organisations represented by other members of the Management Committee, prior to Mr Sparks’ and Mr Fulton’s appointments to the committee on 10 December 2011.
  1. The AIP commenced in February 2010 and was completed in October 2011. A Final Audited Report has been provided to the Federal Government and was accepted on 2 December 2011.
  1. The AWT Program was completed on 30 June 2012 and a Final Audited Report was due on 30 September 2012.
  1. As current members of the Management Committee of the Association, Mr Sparks and Mr Fulton seek to establish whether preferential allocations were paid to organisations represented by other members of the Management Committee and to ascertain whether such preferential allocations should be repaid to the Association. As Counsel for the Applicants put it, the real issue is whether “there is some explanation why the top three recipients of the grants get 80 percent of the money.”[7] It is argued essentially that they receive a preference as they are part of a particular consortium.
  1. The real issue is whether the Third and Fourth Applicants as members of the current Management Committee “are entitled to the documents which allows them to examine the position of the Association in respect to those allocations.”[8]
  1. It would also seem that there is a further concern by Mr Fulton as to the solvency of the Association. In relation to the CEO’s contract, the Applicants state that they are concerned that there was a resolution on 13 October 2011 to the effect that the CEO’s contract was not to be renewed and that an independent agency was to be engaged to source candidates for the Management Committee to consider. The Applicants therefore seek documents to explain that change of position.
  1. Counsel for the Applicants submits that they are entitled to the documents in order to discharge not only their statutory duties but also their fiduciary duties and that they should have access to the “commercial in confidence” documents as there is no allegation of bad faith made against them and there is no evidence that they would use the information for some ulterior motive. Counsel for the Applicants argues that their duties are akin to the duties of a director of a company and that they are entitled to the information. Counsel argues that the documents should be properly made available to the members of the Management Committee as the proper governance of the Association requires it.
  1. As to the resolution of 24 July 2012 to restrict access to the documents, the Applicants submit that such as resolution is ineffective and beyond the power of the Members of the Management Committee to the extent that it attempts to fetter a member of the Management Committee in the performance of their duties.

The Act

  1. Sections 72 and 73 of the Act provide:

“72 Enforcement of rights and obligations

(1) The Supreme Court may, on the application of an incorporated association, or of a member thereof, make orders, including interim orders—

(a) giving directions for the performance and observance of the rules of such incorporated association by any person who is under an obligation to perform or observe those rules; or

(b) declaring and enforcing the rights and obligations of members of such incorporated association between themselves, and the rights and obligations between such incorporated association and any member or members thereof.

(2) An order may be made under this section notwithstanding that no right of a proprietary nature is involved, or that the applicant has no interest in the property of the incorporated association.

73 Powers of Supreme Court

(1) The Supreme Court may, on an application brought pursuant to section 72, grant such relief as is appropriate in the circumstances.

(2) The Supreme Court may refuse to entertain such an application, or to make an order on such application, or may refuse an order for costs, or may make an order for costs against a party, whether successful or not, if it is of the opinion that—

(a) the issue raised in the application is trivial; or

(b) having regard to the importance of the issue, the nature of the incorporated association, any other available method of resolving the issue, the costs involved, lapse of time, acquiescence or any other relevant circumstance, it was unreasonable to make the application; or

(c) the unreasonable or improper conduct of a party has been responsible for the making of an application, or has added to the cost of the proceedings.”

  1. In Cameron v Hogan[9] the High Court indicated that the policy of the law was against the interference in the affairs of voluntary associations. In particular Starke J said;

“Has Hogan, however, any redress in a Court of law for such unauthorized act? It may be unlawful in the sense that it is void (Graham v Sinclair). But to give him a right of relief at law or in equity, Hogan must establish some breach of contract with him, or some interference with his proprietary rights or interests. As a general rule, the Courts do not interfere in the contentions or quarrels of political parties, or, indeed, in the internal affairs of any voluntary association, society or club.”

  1. In Re Maggacis[10] the application for declarations and orders concerned decisions of the Queensland Netball Association in relation to the appointment of a senior coach. Thomas J determined that the appointment did not breach the Association’s rules but considered that the question remained as to whether the situation was one which called for the intervention of the courts.  His Honour held;

“It is not appropriate that the courts intrude unduly into the management of private associations. There is now no difficulty, at least in Queensland, intervening when the breach of the rule infringes the right of a member (ss 41 and 42 of the Associations Incorporation Act) and in any event the common law trend is to intervene when someone is unduly penalised particularly when the destruction of a particular right is involved. There also has been a widening of protection in the species of right protected, to the extent that legitimate expectations are often protected, but this is very much a development in the field of public law. As Murphy J observed, “The question is where is the line to be drawn between public power which requires observance of due process and private power which does not. The development of civil rights and liberties is evolutionary...” (Forbes at 276). In guiding this evolution the idealism of judges should be tempered with the knowledge that intrusion of lawyers into every aspect of human life and the cultivation of a litigious society may not be in the public interest.”

  1. It is clear that the Act sets out the rights of members and the rights of members of an incorporated association are set out in s 71 which provides as follows;

“71 Rights of members

  1. Upon incorporation the rules of the association shall constitute the terms of a contract between the members from time to time and the incorporated association.
  2. Where a member of an incorporated association is deprived by a decision of that association of a right conferred on the member by the rules of that association as a member thereof, the Supreme Court shall have jurisdiction to adjudicate upon the validity of that decision under the rules.
  3. An incorporated association shall be bound by the rules of natural justice in adjudicating upon the rights of its members conferred by the rules of such association on its members.”
  1. Section 71 therefore provides that the Supreme Court has jurisdiction where a member is deprived by a decision of the association of a right conferred on the member by the rules. It is clear that in the present case the originating application does not identify which rule of the Association or which section of the Act is said to have been breached.
  1. A member’s right to documents is expressly provided for in ss 59C, 16 and 53(1) of the Act. Those rights include a right to a copy of certain defined financial documents, a copy of the Association’s Rules, a copy of the Association’s Minute book and a right to inspect the Association’s register. The Act and the Association’s Rules, however, do not otherwise provide members with a right to inspect any other of the Association’s documents. “Financial document” is defined in the schedule of the Act as follows;

 

“financial document, of an incorporated association, means any of the following—

  1. the association’s financial statement;
  1. the audit report mentioned in section 59(2)(c);
  1. the statement of an auditor, an accountant or approved person mentioned in section 59A(2)(b)(ii);
  1. the statement of the association’s president or treasurer mentioned in section 59B(2)(b)(ii).”
  1. I am not satisfied that the Applicants have been denied access to any financial documents which they are entitled to under the Act. Their statutory rights have not been interfered with.
  1. As s 71 makes abundantly clear, the rules of the Association constitute the contract between the members and an association. Those rules accordingly set out the rights as between the Applicants and this Association. This court can adjudicate in relation to decisions made under the Rules which deprive a member of a right. I can find no such deprivation of a right in the present case. There was no entitlement to the documents that were sought under the rules of the Association. Furthermore, a Special General Meeting of the members was called and a series of resolutions were put to the members to ascertain if access to the documents should be given. The members voted against allowing access to certain categories of documents. Accordingly, it cannot be argued that there has been any breach of the rules of natural justice. There has been no intrinsic unfairness to the Applicants.
  1. It is clear that save where there has been a breach of natural justice the court’s jurisdiction to interfere with the internal management of a voluntary association is governed by s 72 of the Act. It is not entirely clear to me that the Third and Fourth Applicants have standing under s 72 of the Act to seek relief. I accept that in Kovacic v Australian Karting Association (Qld) Inc[11] Wilson J referred to the wide jurisdiction of the Court to grant declaratory relief at the suit of a person with a real interest to establish pursuant to s 128 of the Supreme Court Act 1995. However, it should be noted that in the present application it is only s 72 of the Act which is relied on. In any event, it would seem that the First and Second Applicants are members of the Association and as such they may be entitled to relief.
  1. The very real issue in my view is that the First and Second Applicants have failed to identify which of the Association’s rules require an order of the Court for their performance or observation; or identify which of their rights and obligations they are entitled to enforce other than in vague and general terms.
  1. I also endorse Wilson J’s view in Kovacic that the mere fact that a respondent may be an Incorporated Association under the Act does not necessarily make the validity of a resolution justiciable and that “Incorporation under that legislation is not indicative of significance in public affairs such as that accorded by legislation to trade unions and political parties.”[12]
  1. I agree with the submission from Counsel for the Association that there is no evidentiary basis before me to substantiate any of the vague allegations which are made. There is no evidence to indicate that there has been any preferential allocation of funding to some members of the Association particularly when one considers that the actual number of applications for funding by different GTO’s varies. I also note that only one application for funding was actually refused and that was when it did not meet the government guidelines. It is also clear that the funding schemes are audited at the end of the program and reports are provided to the funding agencies.
  1. The Applicants also assert that they owe fiduciary duties to the members and that the documents they seek are required for them to fulfil those duties. It would seem to me that any duty they owe is to the Association and not to the other members. The Applicants do not claim that there is a breach of any duty they owe to the Association. Once again, there is a failure by the Applicants to identify the exact nature of the fiduciary duty they are attempting to perform which has been thwarted. I also consider that the members of the Association have very clearly voted on the issue of the production of documents. I also note the ruling by the FOI officer. The documents sought also clearly go beyond a period which could be considered to be relevant and certainly beyond the term of the appointment of the Third and Fourth Applicants.
  1. The concerns in relation to the issue of solvency were not pursued at the hearing and there is no evidence in that regard. There is no allegation of missing funds or misappropriation.
  1. In relation to the resolution by the Management committee to renew Mr Mitchell’s contract, there is once again no reference by the Applicants to a particular rule which it is alleged has been breached. The Applicants have not sought to impeach the resolution in any Management Committee Meeting nor have they requested that there be a Special General Meeting to overturn the resolution.
  1. I am not satisfied that the requirements of s 72 of the Act have been met. In any event, I consider that, pursuant to s 73 of the Act, there are other available methods for resolving the dispute and the application was brought at a time well after the issue had arisen. I do not consider that it was reasonable in the circumstances to make the application.
  1. The Application is dismissed.
  1. I shall hear from the parties as to the form of orders and as to costs.

Footnotes

[1] Affidavit of Alan Sparks, filed 15 June 2012, at [17].

[2] Ibid, at [34].

[3] Affidavit of Alan Sparks, sworn 3 May 2012, EXH “AS4.”

[4] Affidavit of David Ian Mitchell, filed on 7 September 2012, at [37].

[5] Transcript 1-74, ll 25-26.

[6] Transcript 2-24,  ll 39-40.

[7] Transcript 2-16, ll 51-52.

[8] Transcript 2-16, ll 55-57.

[9] (1934) 51 CLR 358, at 383-384.

[10] [1994] 1 Qd R.

[11] [2008] QSC 344.

[12] Ibid, at [28].

Close

Editorial Notes

  • Published Case Name:

    Pine Rivers, Caboolture & Redcliffe Group Training Scheme Inc & Ors v Group Training Assoc Qld & Northern Territory Inc

  • Shortened Case Name:

    Pine Rivers, Caboolture & Redcliffe Group Training Scheme Inc v Group Training Association Qld & Northern Territory Inc

  • MNC:

    [2013] QSC 31

  • Court:

    QSC

  • Judge(s):

    A Lyons J

  • Date:

    28 Feb 2013

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2013] QSC 3128 Feb 2013Application for a direction pursuant to s 72 of the Associations Incorporation Act 1981 that the Management Committee perform and observe the rules of the Group Training Association Queensland and Northern Territory Incorporated by providing a number of documents to applicants. Application dismissed: Ann Lyons J.
Primary Judgment[2013] QSC 8705 Apr 2013Costs orders: Ann Lyons J.
Appeal Determined (QCA)[2013] QCA 358 [2015] 1 Qd R 54203 Dec 2013Appeal allowed with costs. Set aside the orders made on 28 February 2013 and 5 April 2013 and instead order that documents be produced: McMurdo P, Fraser JA, Atkinson J.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Cameron v Hogan (1934) 51 CLR 358
2 citations
Jump To
Cite 1 - (1934) 51 CLR 358
Cite 2 - (1934) 51 CLR 358
Kovacic v Australian Karting Association (Qld) Inc [2008] QSC 344
2 citations
Jump To
Cite 1 - [2008] QSC 344
Cite 2 - [2008] QSC 344
Re Maggacis [1994] 1 Qd R 59
2 citations
Jump To
Cite 1 - [1994] 1 Qd R 59
Cite 2 - [1994] 1 Qd R 59

Cases Citing

Case NameFull CitationFrequency
Pine Rivers, Caboolture and Redcliffe Group Training Scheme Inc v Group Training Association Queensland & Northern Territory Inc[2015] 1 Qd R 542; [2013] QCA 35816 citations
1

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