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CITE

Unreported Judgment

Singh v Brisbane Sikh Temple (Gurdwara) Inc[2022] QSC 17Kelly J
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Singh v Brisbane Sikh Temple (Gurdwara) Inc[2022] QSC 17

Reported at

Singh v Brisbane Sikh Temple (Gurdwara) Inc[2022] QSC 17

Reported at

SUPREME COURT OF QUEENSLAND

CITATION:	Singh & Ors v Brisbane Sikh Temple (Gurdwara) Inc [2022] QSC 17
PARTIES:	GURMEET SINGH (first applicant) AND SATINDER PAL SINGH (second applicant) AND HARMINDER SINGH (third applicant) v BRISBANE SIKH TEMPLE (GURDWARA) INC (respondent)
FILE NO/S:	BS 10910 of 2021
DIVISION:	Trial Division
PROCEEDING:	Hearing
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	25 February 2022
DELIVERED AT:	Brisbane
HEARING DATE:	7 December 2021
JUDGE:	Kelly J
ORDER:	Pursuant to s 72 of the Associations Incorporation Act 1981 (Qld), it is declared that the management committee’s decision as contained in the minutes of the management committee dated 30 August 2021 to reject 2151 applications for membership is void and of no effect. Pursuant to s 73 of the Associations Incorporation Act 1981 (Qld), the management committee is directed to consider the rejected applications in accordance with the Constitution and according to law.
CATCHWORDS:	ASSOCIATIONS AND CLUBS – INCORPORATED ASSOCIATIONS – MEMBERS – where the respondent operates a Sikh temple and conducts an annual membership drive – where ordinary membership of the respondent granted rights to vote and stand for election to its management committee in its annual general meeting – where the number of ordinary members was expressed in the respondent’s constitution to be unlimited – where non-members frequently accessed and used the respondent’s facilities, including its religious buildings– where the respondent received 3156 applications – during the COVID-19 pandemic – where the respondent applied a “fairness principle” criteria to assess the applications, whereby any application from an applicant who was not a member in the previous five years was rejected – whether the respondent exercised the power to reject applications for an improper purpose Associations Incorporation Act 1981 (Qld), s 71, s 72, s 73, s Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36, cited Allen v Townsend (1977) 16 ALR 301 cited Fitzgerald v Masters (1956) 95 CLR 420; [1956] HCA 53, cited Harlowe’s Nominees Pty Ltd v Woodside (Lake’s Entrance) Oil Co NL (1968) 121 CLR 483; [1968] HCA 37, cited HNA Irish Nominee Ltd v Kinghorn (2010) 78 ACSR 553; [2010] FCAFC 57, applied Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821, considered Millar v Houghton Table Tennis & Sports Club Inc (2003) LSJS 241; 2003 SASC 1, considered Mills v Mills (1938) 60 CLR 150; [1938] HCA 4, considered Pettit v South Australian Harness Racing Club Inc [2006] SASC 306, considered Pine Rivers, Caboolture & Redcliffe Group Training Scheme Inc v Group Training Association Queensland & Northern Territory Inc [2015] 1 Qd R 542; [2013] QCA 358, considered Popovic & Ors v Tanasijevic & Ors (No 5) (2000) 34 ACSR 1; [2000] SASC 83, cited Stratford Racing Club Inc v Adlam [2008] NZAR 329, considered Wayde v New South Wales Rugby League Ltd (1985) 180 CLR 459; [1985] HCA 68, cited
COUNSEL:	L Copley for the applicants G Coveney and S Lane for the respondent
SOLICITORS:	Agnew Litigation & HR Pty Ltd for the applicants Adelphus Legal for the respondent

Introduction

[1]
The respondent (“the Temple”) is an incorporated association under the Associations Incorporation Act 1981 (Qld) (“the Act”). The applicants are ordinary members of the Temple. The constitution of the Temple was registered on 19 March 2013 (“the Constitution”). In March 2021, the Temple undertook a membership drive and invited applications for ordinary membership for the period 1 April 2021 to 31 March 2022.^[1] The number of applications received totalled 3156.^[2] On 30 August 2021, the Temple (acting through its management committee) accepted 1005 of the applications and rejected the remaining 2151 applications.^[3]
[2]
By an originating application filed 20 September 2021, the applicants commenced this proceeding seeking declaratory relief to the effect that the Temple contravened the Constitution when deciding to reject the applications.
[3]
At the time the proceedings were commenced, an annual general meeting of the Temple was scheduled for 12 noon on 25 September 2021. One item of business for that annual general meeting concerned the election of the management committee for the next two years. Pursuant to the Constitution, a financial ordinary member is entitled to vote in the election of the management committee.^[4] On 23 September 2021, Jackson J heard an urgent application for interlocutory orders restraining the Temple from considering or resolving upon the election of the management committee at the annual general meeting. On 24 September 2021, His Honour granted an interlocutory injunction which preserved the status quo.^[5]
[4]
Since the hearing and determination of the interlocutory application, the parties narrowed the issues for determination in this proceeding by reference to documents akin to pleadings titled “Updated Applicants’ Points of Claim” and “Respondent’s Points of Defence”. At the time of the interlocutory application, the primary case raised by the applicants’ material involved the contention that the management committee had considered the applications for membership in bad faith by giving preference to one of two factions said to exist within the Sikh community.^[6] By the time of the trial, no issue of bad faith remained in the proceeding.^[7] The substantive issue at trial concerned whether the management committee’s power to reject applications for membership had been exercised in breach of, or without regard to, provisions of the Constitution such that any decisions consequent upon the exercise of power were void.^[8]

The Act, the Constitution and management of the Temple

[5]
The Constitution contains the Temple’s rules for the purpose of the Act^[9] and constitutes the terms of a contract between the members from time to time and the Temple.^[10]
[6]
Clause 2 of the Constitution identifies the objects for which the Temple was established. Relevantly, those objects may be set out as follows:

“(a)
To establish and maintain a Sikh Temple (Gurdwara) in Brisbane to serve the religious and cultural needs of the Sikh community.

(b)
To promote an understanding of the religious and philosophical traditions of Sikhism.

(d)
To provide a means of communication with other Sikh communities nationally and internationally.

(e)
To provide and maintain a library on the religious, philosophical and cultural aspects of Sikhism.

(f)
To promote and conduct regular meetings of religious and cultural activities including the holding of prayer meetings, religious lectures, Shabad Kirtin.

(g)
To promote teaching of all Sikh Guru and Gurbani.

(h)
To establish a fund to acquire properties for building a Sikh Temple Gurdwara.

(i)
…

(j)
To promote the general welfare of the members of the Association, and for this purpose to engage in any activities in furtherance of the objects of the Association.

(k)
To encourage and promote brotherhood, truth, peace and justice in the practice of Sikhism.

(l)
To promote mutual co-operation, tolerance and understanding among various religions.

(m)
To establish and maintain educational institution(s) related to Sikh religion.” (as in original)

[7]
Clause 3 of the Constitution provides for the powers of the Temple. Those powers include the power to borrow money, invest funds and mortgage property. In furtherance of the objects of the Temple, there are also powers to amalgamate with, and purchase or acquire the assets of, other Sikh religious associations.
[8]
The Act requires an incorporated association to have a management committee and the business and operations of the incorporated association are to be controlled by the management committee.^[11] The Act requires the members of the management committee to be elected at the annual general meeting of the incorporated association, subject to an exception in relation to the filling of casual vacancies.^[12] Clause 12 of the Constitution provides for the election of the Temple’s management committee every two years at the Temple’s annual general meeting. Clause 15 of the Constitution acknowledges that the Temple’s management committee has the general control and management of the administration of the Temple’s affairs, property and funds.
[9]
The provisions of the Constitution dealing with membership are contained in clauses 4, 5, 6, 8, 9, 10 and 11.
[10]
Clauses 4 and 5 contemplate classes of membership.
[11]
Clause 4 provides:

“1)
The membership of the association shall consist of ordinary members, and any of the following classes of members:-

(a)
Associate Members

(b)
Life Members

2)
The number of ordinary members shall be unlimited.

3)
A person may become an ordinary member only if that person qualifies for ordinary membership.”

[12]
Clause 5 is specifically concerned with ordinary membership and relevantly states:

“1)
Ordinary Member

(a)
Any Sikh who is resident of Brisbane or in the vicinity of Brisbane as determined by the management committee and is 18 years of age or older, who does not owe allegiance to any other religion and who faithfully believes in One Immortal God being Ek-Ongkaar, the Ten Sri Guru Sahib Ji, the Sri Guru Granth Sahib Ji, the utterances and teachings of the Ten Sri Guru Sahib Ji and the initiation ceremony of Amrit bequeathed by the Tenth Guru, Sri Guru Gobind Singh Ji may become an ordinary member.
(b)
Applicants for ordinary membership must pay membership fees and sign a Statutory Declaration stating SIKHISM to be their only religion.
(c)
Ordinary members who satisfy Rule 5(7) shall have the right to vote in any proceedings of the Association.”

……

6)
The number of members shall be unlimited.

7)
Residential and financial requirements for ordinary/life members who can vote at any general or other meeting of the association are:-

(a)
The person must be a financial ordinary or life member; and

(b)
The person must be a resident of Brisbane or within the vicinity of Brisbane as determined by the management committee.”

[13]
Clauses 6, 8 and 10 deal with the making, consideration and determination of applications for membership.
[14]
Clause 6 provides:

“1)
A person who qualifies under rule 5 for membership, may apply to the Association for such class of membership as may be applicable to that person. Any such application shall be in writing and signed by the applicant and be in a form and contain such information as prescribed by the management committee.

2)
The decision of the management committee shall be final in any matter relating to membership.”

[15]
Clause 8 provides:

“8. Admission and Rejection of Members

1)
At the next meeting of the Management Committee after the receipt of any application and the fee applicable for any class of membership, such application shall be considered by the Management Committee, who shall thereupon determine the admission or rejection of the applicant.
2)
Any applicant who receives a majority of the affirmative votes of the Management Committee present at the meeting at which such application is being considered shall be accepted as a member to the class of membership applied for.
3)
Upon the acceptance or rejection of an application for any class of membership the secretary shall forthwith give the applicant notice in writing of such acceptance or rejection and shall upon acceptance enter that person’s name on the register of members.”

[16]
Clause 10 provides:

“10. Appeal against Rejection or Termination of Membership

1)
A person whose application for membership has been rejected or whose membership has been terminated may within two months of receiving written notification thereof, lodge with the secretary written notice of that person’s intention to appeal against the decision of the Management Committee.
2)
Upon receipt of a notification of intention to appeal against rejection or termination of membership the secretary shall convene, within three months of the date of receipt by the Secretary of such notice, a general meeting to determine the appeal. At any such meeting the applicant shall be given the opportunity to fully present his or her case and the Management Committee or those members thereof who rejected the application for membership or terminated the membership subsequently shall likewise have the opportunity of presenting its or their case. The appeal shall be determined by the two thirds majority of vote of the members present at such meeting.
3)
Where a person whose application is rejected, does not appeal against the decision of the Management Committee within the time prescribed by these Rules or so appeals but the appeal is unsuccessful. The secretary shall forthwith refund the amount of any fee paid.” (as in original)

[17]
Clause 11 contemplates a register of members to be kept by the management committee and for the register to be open for inspection at all reasonable times by any member.
[18]
Finally, clause 9 deals with the circumstances in which membership may be terminated and relevantly states:

“1)
A member may resign from the Association at any time by giving notice in writing to the secretary. Such resignation shall take effect at the time such notice is received by the secretary unless a later date is specified in the notice when it shall take effect on that later date. Such member shall not be entitled to any pro rata refund of subscription for any unexpired period of membership.

2)
If a member (Ordinary, Life, Associate or Honorary):

a) is convicted of an indictable offence; or

b) fails or wilfully refuses or neglects to comply with any of the provisions of these rules; or

c) has membership fees in arrears for a period of two months or more; or

d) the conduct of that member is considered to be injurious to the principles of the Sikh religion (for example smoking or consuming alcohol on the premises, carrying or wearing shoes or being abusive or violent inside the Gurdwara.) or behaves in a manner prejudicial to the character or interests of the Association.

The management committee shall consider whether the member’s membership shall be terminated or suspended (either with or without conditions).

3)
The management committee shall cause notice to be given to the member concerned of the matter in issue or as to what may be alleged against that member prior to any determination being made to terminate or suspend membership.

4)
Prior to the management committee considering the termination or suspension of that person’s membership the member shall be given a full and fair opportunity of presenting a case (either orally or in writing) to the management committee as to the matters in issue or alleged before passing of any resolution by the management committee in that regard.

5)
Should the management committee pass a resolution to terminate the membership of that person, then such determination shall become effective from the passing of the resolution and similar provisions shall apply to any suspension of membership or any condition that may be imposed in respect of such suspension.

6)
If the management committee resolves to terminate or suspend a member’s membership it shall instruct the secretary to advise the relevant member in writing accordingly.”

The 2021 membership drive and the consideration of membership applications

[19]
As at March 2021, the number of members of the Temple comprised 235.^[13] As can be seen from the Constitution, ordinary members who pay a membership fee become entitled to vote at any proceeding of the Temple. Ordinary membership also carries with it rights to inspect the register of members, to nominate candidates for the management committee and, in certain circumstances, to be elected as a member of the management committee. However, the right to attend at the Temple is not an express right or privilege attached or limited to membership. It was common ground between the parties that non-members are entitled to, and regularly, visit the Temple.^[14] It is a regular occurrence for the Temple to have thousands of people on site.^[15] By way of example, in November 2021, Diwali celebrations were held at the Temple and attracted a large crowd of approximately 5000.^[16] The Temple regularly celebrates other festivals.^[17] In this regard, one of the objects of the Temple (that is of the incorporated association) is to establish and maintain a Sikh Temple (Gurdwara) to serve the religious and cultural needs of the Sikh community, which is a community that extends well beyond the membership of the Temple.
[20]
In about March 2021, the management committee decided to undertake a drive to attract new ordinary members of the Temple.^[18] A notice advertising the membership drive was put up in the Temple and was also posted on a Facebook page and the Temple’s website.^[19] The notice relevantly advised that registration of applications for membership would be available at the Temple between 9.00 am and 5.00 pm on a series of consecutive Sundays being 7, 14, 21 and 28 March 2021.^[20] The registration process involved an applicant, or someone on their behalf, attending at the Temple, paying the annual membership fee and submitting a completed application form together with the statutory declaration required by clause 5(1)(b) of the Constitution.^[21] At the completion of the membership drive, 3,156 applications for ordinary membership had been received.^[22]
[21]
There are certain matters which are convenient to note about the membership drive. The final day was attended by some controversy associated with the processing of applications before the 5.00 pm closing time.^[23] A proposal to allow the time for registration to be extended past 5.00 pm caused significant unrest, leading to the police being called to the Temple and a large number of applications not being registered before the closing time.^[24] The large number of registered applications gave rise to some concerns that not all of the applications were bona fide. In this regard, a number of individuals had paid not just for their own applications but for large numbers of other applications.^[25] The membership drive was conducted during the COVID-19 pandemic and lock down periods, with associated restrictions on public gatherings, were imposed by the Queensland Government in the months prior to, and in the days immediately after, the membership drive.
[22]
The number of registered applications, 3156, was regarded by the management committee as being a very large number.^[26] Mr Hardev Singh, a member of the management committee, believed that members of the Temple could be expected to be more actively involved in the Temple’s affairs.^[27] He became concerned about the safe capacity of the Temple premises from a fire and COVID-19 perspective.^[28] Mr Hardev Singh gave oral evidence that “when you become a member … you’re actively involved … so if we have too many members then safety would pose issue for us” (sic).^[29] As a result of his concerns, and with the agreement of the management committee, Mr Hardev Singh retained a private building surveying consultant, A1 Certifier Pty Ltd (acting through Mr Michael Van Dyck), to prepare and provide a report.^[30] The certifier was engaged in around March or April 2021 to “carry out a site inspection and offer consulting services with intent to specify without prejudice the maximum number of persons or occupants within [the Temple] building used as a place of worship”.^[31] The certifier provided a report on 17 May 2021 (“the certifier’s report”).^[32]
[23]
The certifier’s report materially provided:

“1.3Purpose and Scope

The intent is to limit occupants to enable general safety requirements regarding safe egress and limiting occupant capacity in an international pandemic in accordance with the State Government specification and person limitations. The Calculation methods implemented demonstrate consistency with both State requirements and are also referenced from the National Construction Code of Australia/Building Code of Australia (NCC/BCA). …. due to an international Pandemic and the property owner’s duty of care, consultation has been sought to determine the safe operational capacity in the everyday optimal use, untenable conditions and during the current International Pandemic.

…

1.4Limitations

The focus of the evaluation will be on compliance of the intended functionality, health and amenity of the occupants, only with respect to determining the maximum number of occupants for each of the separate areas, which were utilised to derive the total number of occupants for the three nominated scenarios.

…

4.Design Objectives

4.1Safety Objectives

The safety objectives are hereby defined to present safe working conditions for three potential operation modes and calculations to support such scenarios. The method of calculation is derived from D1.13 of Volume 1 of the 2019 National Construction Code of Australia and other means available from the Queensland Government COVID-19 persons per m² calculation methodology (one person x 1.5m²).

4.1NCC/BCA Compliance Objectives

… The primary objective of this report is to establish a framework and base for analysing and evaluation for the consideration of the relevant stakeholders for occupant capacity only. Stakeholders are to implement their own approach and employ what method is agreed, for the conditions applicable at the time and can be altered to suit as required. It must be clear that this is a guide only.

…

10.Analysis Approaches and Methods

The calculation methodology prescribed by volume one of the 2019 National Construction Code of Australia is stipulated under D1.13- Number of persons accommodated.

Table D1.13 then nominates the area per person for the type of use. This method has been adopted for calculation table 1, 2 and 3.

Calculation table 1 employs a combination of D1.13 (a), (i), (ii). Calculation table 2 employs a combination of D1.13 (a), (i), (ii) and (c).

Calculation table 3 employs a combination of D1.13 (a), (i), (ii) and (c) and the State Government requirements during a pandemic which is not less than one person per 1.5m².” (as in original)

[24]
The certifier’s report set out three calculation tables in the following terms:

CALCULATION TABLE 1
CALCULATED AREAS FROM ARCHITECTURALS
C210123 – 2679 Logan Road Eight Mile Plains
D1.13 Area per persons according to use (Method A – Optimum Conditions)
Use	m/2 per persons	Area (m²)	Persons
Prayer Hall	1	350	350
Dining Hall	1	454.7	454.7
Kitchen	10	164.3	16.43
Cool Room	30	12.8	0.427
General purpose room	1	69	69
Storage 1	30	23.5	0.78
Storage 2	30	9	0.3
Scripture Room	10	18.1	1.81
TOTAL PERSONS			893

CALCULATION TABLE 2
CALCULATED AREAS FROM SITE VISIT AND SURVEY INSTRIMENT
C210123 – 2679 Logan Road Eight Mile Plains
D1.13 Area per persons according to use (Method A – access paths)
Use	m/2 per persons	Area (m²)	Persons
Prayer Hall (350-30m² for altar and 80m² for walkways)	1	240	240
Dining Hall (400m² - 300m² for access)	1	100	100
Kitchen	10	164.3	16.43
Cool Room	30	12.8	0.4267
General purpose room (69m² - 35m² access)	1	34	34
Storage 1	30	23.5	0.78
Storage 2	30	9	0.3
Scripture Room	10	18.1	1.81
TOTAL PERSONS			394

CALCULATION TABLE 3
CALCULATED AREAS FROM SITE VISIT AND SURVEY INSTRIMENT
C210123 – 2679 Logan Road Eight Mile Plains
D1.13 Area per persons according to use (State Gov Covid-19 – access paths)
Use	m/2 per persons	Area (m²)	Persons
Prayer Hall (350-30m² for altar and 80m² for walkways)	1.5	240	160.00
Dining Hall (397.64 - 60m² for access)	1.5	100	67
Kitchen	10	164.3	16
Cool Room	30	12.8	0.43
General purpose room (69m² - 35m² access)	1.5	34	23
Storage 1	30	23.5	0.78
Storage 2	30	9	0.30
Scripture Room	10	18.1	1.81
TOTAL PERSONS			269

[25]
The certifier’s report contained a conclusion which materially stated:^[33]

“… During optimal operation and at full capacity, calculation table 1 identifies a total of 893 persons can occupy the class 9B assembly building. It is recommended that this is not permitted given the onsite concerns relating to hazards specified under section 6 of this report.

The current international pandemic calls for the recommended to operate on side of caution with intent to mitigate risk of infection, and mass outbreak via the implement infection control measures consistent with the State Government’s recommendation. Calculation methods nominated in Table 3 should be adhered to, in the current times. The maximum capacity during such time should not exceed a total number of occupants of 269.

If in the event the vaccine rollout is successful and State Government restrictions are lifted, then it is recommended that Calculation table 2 is implemented until such time as a review of the non-compliant matters be resolved via the correct Certification process…” (as in original)

[26]
Following the completion of the membership drive, the management committee set about considering the registered applications. It would seem that the unrest which had occurred on the final day, the prospect of some applications not being bona fide and the safe capacity of the Temple building (from a fire and COVID-19 perspective) were matters of some concern to the management committee.^[34] Three members of the management committee gave evidence. The applicants called Mr Avninder Gill. The respondents called Mr Surinder Singh and Mr Hardev Singh. Only the latter two witnesses were required for cross examination. Before turning to that evidence, I should observe that, by the end of the trial, the applicants had conceded that the applications were in fact considered individually by the management committee.^[35] The applicants maintained that, whilst the applications were individually considered, they were considered “to see, inter alia, if the applicant had been a member within the last five years and, if not, the application was rejected.”^[36]
[27]
There was some controversy in the evidence as to when, and to what extent, the management committee first considered the applications. Mr Surinder Singh’s evidence was to the effect that the management committee considered the registered applications at meetings which occurred on 11 April 2021, 2 May 2021, 19 June 2021, 14 July 2021 and 30 August 2021.^[37] The minutes of the meetings for 11 April 2021^[38] and 2 May 2021^[39] do not make any reference to the applications. The applications are referred to in the minutes of 19 June 2021, but only in a passing way.^[40] The applications were addressed at the meetings of 14 July 2021^[41] and 30 August 2021^[42]. In this regard, it was submitted on behalf of the Temple, that the applications were “subject to formal consideration” at the management committee meetings on 14 July 2021 and 30 August 2021.^[43]
[28]
At the management committee meeting on 14 July 2021, four relevant resolutions were passed in the following terms:^[44]

“Resolution 1: Proposed to accept advice to hold a management committee meeting to determine the outcome of each of the approximately 3,000 applications which were received by the Association as part of the 2021 membership drive.

…Resolution 2: Fire and safety and occupancy limits, COVID-19 restrictions, Duty of care, legal liability, Providing safe and secure place of worship, congregation and general meeting facilities limits total numbers of members the association can cater to and is bound by the rules and regulations. A1 Certifier Pty Ltd report presented and accepted and will be applied.

…Resolution 3: Due to the large number of applications March 2021 the association is unable to accept all the applications and safely cater to this large number selection criteria will be apply accordingly: On the basis of loyalty (i.e: who has been financial members in the past prior to March 2021 will be considered).

Resolution 4: Rejection criteria first time applications applying March 2021 may not receive acceptance. Suspected branch stacking activity. Bulk applications paid by a single financial cards/cash in the absence of the applicants. Online slander and intimidation, chaos in the committee office, physical and verbal threats.” (as in original)

[29]
Mr Gill gave evidence that before 27 August 2021, there had never been a discussion at any management committee meeting about the membership applications, including whether they were to be accepted or rejected.^[45] Although Mr Gill was not cross examined, his evidence was inconsistent with the contemporaneous document comprising the minutes of the management committee meeting of 14 July 2021, which was a document that was relied upon by the applicants and admitted by the Temple.^[46]
[30]
The Temple admitted that, at the management committee meeting of 14 July 2021, resolutions were passed to the effect that the Temple was unable to accept all of the registered applications and a selection criteria based upon loyalty would be applied when considering the applications.^[47] Hence, it ultimately was common ground that at the management committee meeting of 14 July 2021, the management committee discussed or considered the applications at least to the extent of determining an approach to be taken to their future acceptance or rejection. According to the evidence of Mr Surinder Singh, these resolutions encompassed “acceptance and rejection criteria”^[48] which “were applied consistently across all applications”.^[49]
[31]
Following the management committee meeting on 14 July 2021, the management committee reviewed and considered the registered applications.^[50] That process involved the management committee having regard to the contents of the membership applications, the certifier’s report, the ongoing effects of the COVID-19 pandemic, whether a particular applicant was a past member and, if so, for how long the particular applicant had been a member.^[51] As to the last matter, the records of the Temple were manually reviewed to determine whether an applicant had been a member of the Temple during the previous five years.^[52] The management committee considered the applications individually and the process took a number of months to complete.^[53] I accept that during this process, the management committee subjectively intended to take account of the Constitution.
[32]
The membership applications were ultimately determined by a final vote of the management committee on 30 August 2021.^[54] The minutes of the management committee meeting of 30 August 2021 relevantly provide:^[55]

“Membership Applications

BST Committee provided details of the Membership Drive that was conducted in March 2021. All members present agreed that a particular group was heavily involved in stacking of membership applications that resulted in lapse of time that was set aside for the membership drive resulting in denying receiving applications from any genuine applicants.

By the close of the day 28^th March 2021, it was negotiated that applications from all applicants present that day to be collected and processed later dates, however, the group mobilised by Gurlal Singh, Gurmeet Singh, Mandeep Singh and Satinderpal Singh strongly opposed to it and forced the committee not to accept the applications after the closing time. As a result, many genuine applicants were unable to lodge their applications and were left stranded in the queue. QPS had to come in and remove large crowd in registration office.

The BST committee witnessed the following practices by the Gurlal Singh\Gurmeet Singh groups during each day of the membership drive:

Threats and intimidation towards committee members.
Stacking applications – individuals involved in lodging large number of applications thereby consuming un-necessary long time.
One person paying from for more than 50 applications by credit/bank card at one time.

As a result, a total of 3,156 applications are received which was an extremely high from last year’s (2020) total membership applications of 235.

Resolution passed by all present committee has an important task of managing risk of our members and congregation in a safe environment. We acknowledge the number of people they can gather in our prayer hall, dining hall and amenities area. This was verified by registered building certifier and Queensland health for covid safe environment. According the BST Building certifier report, the gathering at the BST is limited to 893 maximum and according to COVID safe plan the gathering is reduced to 394.

In addition, unethical behaviour by certain individuals by stacking of application forms and deliberately denying regular members access to registration office.

Management committee followed the Fairness Principle and compared the applications received in 2021 with the applications from last five (5) years. As a result, the committee found many discrepancies in 2021 applications namely:

Variations in names
Phone numbers not matching up
Email addresses not matching up
Addresses of listed persons not matching up
One credit/debit card used to make payments of $100 each for more than 50 applications at once

Following the Fairness Principle and by comparing the current application details with previous years’ membership details, it is with regret that 2,151 membership applications are unsuccessful. All forms that are unsuccessful are inspected and reviewed by all committee members present. All unsuccessful applications are attached safely in a box.

The three applicants Jasjot Savroop Singh, Balgit Singh Mann and Sukhrajwinder Singh their membership was terminated a part of the unsuccessful 2,151 applicants. Also part of that unsuccessful list are Gurlal Singh, Daljinder Singh and Maan Singh due to their aggressive nature and their values not in the interests of the association.

A refund cheque will be posted to all the unsuccessful applicants. Membership notices and other information to be delivered by email, Facebook, website and social media.

A total of 1,005 membership applications are approved. Membership applications are onsite for committee inspection and review. All present review the applications forms.

All members present agreed with the adopted Procedural Fairness and verification process of membership application forms.

Resolution put forward and approved by the BST management committee that 1,005 membership applications are to be approved for the BST membership for 2021-2022 financial year and the membership register to be finalised for the financial year 2021-2022. …” (as in original)

[33]
As to this decision making process, Mr Surinder Singh relevantly deposed:^[56]

“To be clear, the management committee did not intend to (and did not in fact) limit or otherwise seek to cap the number of members that we would accept. If more than 1,005 people matched with the criteria, then we would have accepted that number of people as members. I did not (and I understood that no other member of the management committee) intended to cap the number of members. We understood (and I understand) that we were not permitted to do that under the Constitution.”

[34]
During his oral evidence, Mr Surinder Singh gave evidence to the effect that the Fairness Principle as described by the minutes of the management committee meeting of 30 August 2021 contained “criteria” that was “used for everyone”.^[57] The “criteria” concerned whether a person had been a member in the last five years.^[58] Mr Surinder Singh’s oral evidence was that the criteria was applied because there were health and safety capacity issues as to how many people the Temple could “cater to”.^[59] He later explained that the capacity of the site was relevant to “how many people we could cater safely and that we could provide them the safe environment at the Temple” (sic).^[60] Mr Hardev Singh accepted that the management committee had adopted a criteria when assessing the membership applications^[61] and that the criteria required an applicant for membership to have been a member of the Temple within the last five years.^[62] He gave evidence to the effect that the criteria operated in the decision making process so that if an applicant had not been a member within the last five years they did not have “any chance of being accepted as a member” of the Temple.^[63] Against the background of this evidence, the Temple, through its counsel, ultimately conceded that “It’s quite clear that the criteria was applied and the effect of that was to impose a limit”.^[64] The argument ultimately advanced by the Temple was that, despite the wording of clauses 4(2) and 5(6) of the Constitution, it was lawful for a limit to be imposed on membership so long as the exercise of the power to reject was made by reference to an object or objects of the Constitution.^[65]
[35]
Having considered the evidence, I make the following findings of fact in relation to the management committee’s exercise of its power to reject members:
1. (a)
  The management committee acted bona fide;
2. (b)
  The management committee intended to have regard to the Constitution;
3. (c)
  To the extent that Mr Surinder Singh gave evidence to the effect that the management committee did not intend to and did not in fact limit the number of members, I reject that evidence;
4. (d)
  The management committee approached the exercise of its power on the basis that it would limit the number of members by reference to a criteria, namely, whether or not an applicant had been a member of the Temple in the last five years;
5. (e)
  The criteria was applied to all applications for membership;
6. (f)
  The criteria was intended to be applied so as to limit the number of ordinary members;
7. (g)
  The effect of the application of the criteria was that any application for membership made by a person who had not been a member of the Temple in the preceding five years was rejected.

The source of the court’s jurisdiction and principles relevant to its exercise

[36]
The applicants seek relief under ss 72 and 73 of the Act, which provide for the court’s jurisdiction over associations incorporated under the Act.
[37]
It is convenient to set out the provisions of sections 72 and 73 of the Act in full:

“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 –
1. (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
1. (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 –
1. (a)
  the issue raised in the application is trivial; or
1. (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
1. (c)
  the unreasonable or improper conduct of a party has been responsible for the making of an application, or has added to the costs of the proceedings.”

[38]
The applicants seek declaratory relief as contemplated by ss 72 and 73 of the Act. There was no real issue about the applicants’ standing to seek declaratory relief.^[66] The present case did not involve a mere irregularity in internal management.^[67] Rather, fundamentally, the present case raised a question about whether the substantial object of the management committee’s decision making was within the scope of its powers.
[39]
In Millar v Houghton Table Tennis & Sports Club Inc (2003) 225 LSJS 241 at [114]-[116], Besanko J observed that the remedy of a declaration remains discretionary and must be exercised by reference to well-established principles. Some of those principles insofar as they concern the present case can be discerned from the following passage in Pettit v South Australian Harness Racing Club Inc,^[68] where White J observed:

“1.
The constitution of an association binds the association and all of its members. This means that the Committee was bound to apply the relevant provisions of the Club’s Constitution in its consideration of the membership applications.

2.
The requirement that an exercise of an association’s powers be for the benefit of the members as a whole is to exclude their exercise for “ulterior special and particular advantages”, ie, it negatives “purposes foreign to the association’s operations, affairs and organizations”.

3.
Other than in the limited circumstances of the kind outlined in the majority judgment in [Wayde v New South Wales Rugby League Ltd],^[69] the courts are not concerned in applications of the present kind with reviewing the underlying merits of the management committee’s decision. The courts do not substitute their discretion for the discretion exercised in good faith by an association’s committee.

There is no appeal on merits from management decisions to courts of law: nor will courts of law assume to act as a kind of supervisory board over decisions within the powers of management honestly arrived at.

4.
Conduct by a committee of an association will be contrary to the interests of the members as a whole if no committee, acting reasonably, could have engaged in that conduct.

5.
Conduct may be contrary to the interests of the members as a whole even though a committee does not act in bad faith. In [Wayde v New South Wales Rugby League Ltd], Brennan J said:^[70]

[I]f the directors exercise a power – albeit in good faith and for a purpose within the power – so as to impose a disadvantage, disability or burden on a member that, according to ordinary standards of reasonableness and fair dealing is unfair, the court may intervene…

6.
In order to succeed, it is not necessary for an applicant to show that any decision of the association was invalid.

7.
However, proof of invalidity or non-compliance with an association’s rules may indicate that a decision is contrary to the interests of the members as a whole. This is because of the importance which the law attaches to adherence to the provisions of an association’s constitution. So much is apparent in the following passage in the judgment of Olsson J in Popovic & Ors v Tanasijevic & Ors (No 5):^[71]

Conduct complained of must be unjustly detrimental to either individual members specifically or, alternatively, members as a whole. It is not necessary to prove lack of bona fides, but conduct beyond power or in breach of statutory, legal or financial duty may well amount to oppression. The very provisions of s 61(7) reveal the importance which the legislature attaches to the proper adherence to the provisions of the constitution and rules of an incorporated association. This is because a failure to observe such provisions has the effect of depriving members of their right, as members, to have the affairs of the entity conducted in accordance with its constitution and rules. [Citations omitted].

8.
The power to accept or reject membership applications must be exercised in good faith.

9.
The power to accept or reject membership applications must be exercised having regard to the objects of the association.

10.
A refusal of applications for membership without regard to the association’s objects may well be a decision which no reasonable committee could reach.

11.
It is not for this Court to determine as a matter of objective fact whether or not the membership applications are bona fide applications.

12.
An association may have many reasons for rejecting membership applications. It may determine that the aims and aspirations of an applicant are not consistent with the objects of the association. Even if the aims and aspirations of an applicant are consistent with the objects of the association, the application may be refused because, for example, the association does not have the ability to cater for an influx of members.”

[40]
The Temple submitted that the references in this passage to conduct “contrary to the interests of the members as a whole” were explicable because the application in Pettit was made under s 61(4) of the Associations Incorporation Act 1985 (SA), a provision concerned with oppressive conduct. This court has a power to wind up an association on grounds of oppression under s 91(f) of the Act. However, the present application is brought under sections 72 and 73 of the Act for declaratory relief involving the proper construction of the Constitution and the extent of the management committee’s power.
[41]
It is necessary to consider in some further detail the nature of the relationship between the members of the management committee and the Temple. Relevantly, it is necessary to consider whether the relationship between the management committee and the Temple is fiduciary in nature. In Pine Rivers, Caboolture & Redcliffe Group Training Scheme Inc v Group Training Association Queensland & Northern Territory Inc,^[72] Fraser JA (with whom McMurdo P and Atkinson J agreed) noted that pursuant to the Act a management committee is charged with the control of an incorporated association’s business and operations and is deemed to be the agent of the incorporated association for all purposes within its objects. His Honour then continued:

“In this respect there is no substantial point of distinction between management committee members of incorporated associations and members of the governing bodies of other non-profit organisations who have been held to owe fiduciary duties to their organisations. In Allen v Townsend,^[73] Evatt and Northrop JJ referred to the similarities between industrial organisations of employees and companies in terms which might equally be applied in relation to associations incorporated under the Act:

‘There are many similarities between organizations and legal persons incorporated under the Companies Acts. Each is a creature of statute. Their essential similarity is that each has a legal personality separate and distinct from its members. Each has an independent existence as a legal person. Each is given a personality which is distinct from that of all or any of its members and which continues to subsist unchanged, notwithstanding the changes which are bound to occur from time to time in its membership. Each has perpetual succession. Each maintains its identity and its personality notwithstanding changes in its membership, which may occur from day to day. The property of each does not belong to its members from time to time: … Each must act at the direction of individuals who manage its activities. The powers of these individuals depend upon the rules which regulate the affairs of the incorporated body. The rules may be included in the memorandum and articles of association of companies incorporated under the Companies Acts or in the rules of organizations made pursuant to the Act. The rules include not only the objects to be pursued by the incorporated body but also the powers by which those objects are to be pursued. The rules also contain provisions regulating the affairs of the members as between themselves. Normally the rules provide for a small group of natural persons to be the appropriate group to manage the affairs of the incorporated body subject to eventual control by all the members. Though in theory the ultimate control is conferred upon and retained by the members of the incorporated body, in practice, the group managing the affairs of the incorporated body has a very substantial control over the affairs of that body, the affairs of its members, and the privileges and obligations affecting different groups of members within that body. Within organizations, the committees of management constitute the managing group. The duty imposed upon directors of a company incorporated under the Companies Act and the duty imposed upon members of a committee of management are but aspects of the application of a wider principle of law applicable where persons have a discretion in the exercise of powers.’

There are also decisions in other jurisdictions in which it has been found or assumed that members of governing committees owe fiduciary duties to incorporated associations.^[74] If the existence of some such duty is necessary to sustain a management committee member’s prima facie right of access to an association’s documents it can be found in the duty of the management committee member to fulfill his or her functions at least in a way which he or she believes to be in the interests of the association. It is not necessary in this appeal to consider the nature and extent of any other duties owed by management committee members.”

[42]
One of the authorities referred to by Fraser JA was the decision of the New Zealand Court of Appeal in Stratford Racing Club Inc v Adlam.^[75] In that case, the committee of the Stratford Racing Club Inc relevantly contended that it had a complete discretion as to whom to accept as members. In rejecting that submission, the Court observed:^[76]

“The committee of the club, as stewards of the assets held by the incorporated society, were required to exercise their powers in the best interests of the club and for proper purposes … That obligation is expressed clearly in the analogous duties owed by directors to a company: s 131(1) of the Companies Act 1993 provides that a director “must act in good faith in what the director believes to be the best interests of the company”, while s 133 requires that a director “must exercise a power for a proper purpose”. Indisputably, it was in the club’s interests that it should grow and be successful and any reasonable committee member would have acted on that premise. Further, the committee were obliged to treat applicants fairly. For a committee to reject membership applications because they feared they might lose control of their club would be to act for an improper purpose or, arguably, in bad faith”.

[43]
In my consideration, adopting the analysis of Evatt and Northrop JJ in Allen v Townsend, the management committee as the group with “general control and management of the administration of the affairs, property and funds of [the Temple]” occupied a position of trust and confidence in relation to the Temple which characterised the relationship between the management committee and the Temple as fiduciary in nature. More specifically, the relevant power under consideration here is a power given to the management committee by the Constitution to reject applicants for membership. To the extent that the management committee was given that specific power under the Constitution, the members of the management committee, occupying fiduciary positions in relation to the Temple, were obliged to exercise that power bona fide for a proper purpose. The fiduciary obligation circumscribed the power to reject members in the sense that the power could not be exercised for a purpose or with an intention beyond the scope of, or not justified by, the instrument creating the power, in this case the Constitution.^[77]
[44]
The power in the present case has some similarity to the power vested in company directors to issue new shares. In Harlowe’s Nominees Pty Ltd v Woodside (Lake’s Entrance) Oil Co NL,^[78] the joint judgment (Barwick CJ, McTiernan and Kitto JJ) considered the latter power and relevantly observed:

“At the threshold of the argument for Harlowe on the appeal was a submission of law which was put in the form of a corollary upon the undoubted general proposition that a power vested in directors to issue new shares is a fiduciary power which the directors are not entitled to exercise otherwise than bona fide for the benefit of the company as a whole. The suggested corollary is that an exercise of the power cannot be maintained as having been bona fide in the interests of the company unless the company had at the time of the exercise an immediate need of the capital to be paid up on the new shares. In many a case this may be true as a proposition of fact; but in our opinion it is not true as a general proposition of law. To lay down narrow lines within which the concept of a company’s interest must necessarily fall would be a serious mistake. … The principle is that although primarily the power is given to enable capital to be raised when required for the purposes of the company, there may be occasions when the directors may fairly and properly issue shares for other reasons, so long as those reasons relate to a purpose of benefiting the company as a whole, as distinguished from a purpose, for example, of maintaining control of the company in the hands of the directors themselves or their friends. … Directors in whom are vested the right and the duty of deciding where the company’s interests lie and how they are to be served may be concerned with a wide range of practical considerations, and their judgment, if exercised in good faith and not for irrelevant purposes, is not open to review in the courts. Thus, in the present case it is not a matter for judicial concern, if it be the fact, that the allotment to Burmah would frustrate the ambitions of someone who was buying up shares as opportunity offered with a view to obtaining increased influence in the control of the company, or even that the directors realized that the allotment would have that result and found it agreeable to their personal wishes. …But if, in making the allotment, the directors had an actual purpose of thereby creating an advantage for themselves otherwise than as members of the general body of shareholders, as for instance by buttressing their directorships against an apprehended attack from such as Harlowe, the allotment would plainly be voidable as an abuse of the fiduciary power, unless Burmah had no notice of the facts. …The first task of the trial judge, then, was to decide whether it was established to his satisfaction, even if only on a balance of probabilities, that the directors were actuated by an impermissible purpose.”

[45]
In terms of the purpose for, or intention with, which the power was exercised, there are two relevant considerations. The first is to observe that honest and bona fide conduct is not necessarily an answer to whether there has been a fraud on the power; fraud in this sense meaning that the power was exercised for a purpose or with an intent beyond the scope of, or not justified by, the instrument creating the power.^[79] It has been observed that honest behaviour is not in itself enough to validate an exercise of power by a fiduciary where the primary purpose for the exercise of power is illegitimate.^[80] It is important in this regard to acknowledge that an improper or irrelevant purpose is not limited to a decision made with an element of self-interest. The second consideration is concerned with how the relevant purpose or intent is to be ascertained, particularly where there may be a variety of, or compound, reasons involved in the exercise of discretion.
[46]
In Howard Smith Ltd v Ampol Petroleum Ltd,^[81] Lord Wilberforce observed:

“The directors, in deciding to issue shares, forming part of Millers’ unissued capital, to Howard Smith, acted under cl 8 of the company’s articles of association. This provides, subject to certain qualifications which have not been invoked, that the shares shall be under the control of the directors, who may allot or otherwise dispose of the same to such persons on such terms and conditions and either at a premium or otherwise and at such time as the directors may think fit. Thus, and this is not disputed, the issue was clearly intra vires the directors. But, intra vires though the issue may have been, the directors’ power under this article is a fiduciary power: and it remains the case than an exercise of such a power though formally valid, may be attacked on the round that it was not exercised for the purpose for which it was granted. It is at this point that the contentions of the parties diverge. The extreme argument on one side is that, for validity, what is required is bona fide exercise of the power in the interests of the company: that once it is found that the directors were not motivated by self-interest, ie by a desire to retain their control of the company or their positions on the board, the matter is concluded in their favour and the Court will not inquire the validity of their reasons for making the issue. All decided cases, it was submitted, where an exercise of such a power as this has been found invalid, are cases where directors are found to have acted through self-interest of this kind.

On the other side, the main argument is that the purpose for which the power is conferred is to enable capital to be raised for the company, and that once it is found that the issue was not made for that purpose, invalidity follows.

It is fair to say that under the pressure of argument intermediate positions were taken by both sides, but in the main the arguments followed the polarization which has been stated.

In their Lordships’ opinion neither of the extreme positions can be maintained. It can be accepted, as one would only expect, that the majority of cases in which issues of shares are challenged in the courts are cases in which the vitiating element is the self-interest of the directors, or at least the purpose of the directors to preserve their own control of the management…

Further it is correct to say that where the self-interest of the directors is involved, they will not be permitted to assert that their action was bona fide thought to be, or was, in the interest of the company; pleas to this effect have invariably been rejected… just as trustees who buy trust property are not permitted to assert that they paid a good price.

But it does not follow from this, as the appellants assert, that the absence of any element of self-interest is enough to make an issue valid. Self-interest is only one, though no doubt the commonest, instance of improper motive; and, before one can say that a fiduciary power has been exercised for the purpose for which it was conferred, a wider investigation may have to be made. This is recognized in several well-known statements of the law. Their Lordships quote the clearest which has so often been cited:

‘Where the question is one of abuse of powers, the state of mind of those who acted, and the motive on which they acted, are all important, and you may go into the question of what their intention was, collecting from all surrounding circumstances all the materials which genuinely throw light upon that question of the state of mind of those of the directors so as to show whether they were honestly acting in discharge of their powers in the interests of the company or were acting from some bye-motive, possibly of personal advantage, or for any other reason’ (Hindle v John Cotton Ltd (1919) 56 Sc. L.R. 625, 630-631, per Viscount Finlay)…

…

In their Lordships’ opinion it is necessary to start with a consideration of the power whose exercise is in question, in this case a power to issue shares. Having ascertained, on a fair view, the nature of this power, and having defined as can best be done in the light of modern conditions the, or some, limits within which it may be exercised, it is then necessary for the Court, if a particular exercise of it is challenged, to examine the substantial purpose for which it was exercised, and to reach a conclusion whether that purpose was proper or not. In doing so it will necessarily give credit to the bona fide opinion of the directors, if such is found to exist, and will respect their judgment as to matters of management; having done this, the ultimate conclusion has to be as to the side of a fairly broad line on which the case falls.

‘The application of the general equitable principle as to the acts of directors managing the affairs of a company cannot be as nice as it is in the case of a trustee exercising a special power of appointment’ (Mills v Mills, 60 CLR 150, 185-186, per Dixon J.)”

[47]
The last-mentioned statement of Dixon J appears in the following passage of his Honour’s judgment in Mills v Mills^[82]:

“Directors of a company are fiduciary agents, and a power conferred upon them cannot be exercised in order to obtain some private advantage or for any purpose foreign to the power. It is only one application of the general doctrine expressed by Lord Northington in Aleyn v Belchier:^[83] ‘No point is better established than that, a person having a power, must execute it bona fide for the end designed, otherwise it is corrupt and void.’

… Upon the facts of the present case, or at all events upon the expressions used by Lowe J in stating his findings, it may be thought that a question arises whether there must be an entire exclusion of all reasons, motives or aims on the part of the directors, and all of them, which are not relevant to the purpose of a particular power. When the law makes the object, view or purpose of a man, or of a body of men, the test of the validity of their acts, it necessarily opens up the possibility of an almost infinite analysis of the fears and desires, proximate and remote, which, in truth, form the compound motives usually animating human conduct. But logically possible as such an analysis may seem, it would be impracticable to adopt it as a means of determining the validity of the resolutions arrived at by a body of directors, resolutions which otherwise are ostensibly within their powers. The application of the general equitable principle to the acts of directors managing the affairs of a company cannot be as nice as it is in the case of a trustee exercising a special power of appointment. It must, as it seems to me, take the substantial object the accomplishment of which formed the real ground of the board’s action. If this is within the scope of the power, then the power has been validly exercised. But if, except for some ulterior and illegitimate object, the power would not have been exercised, that which has been attempted as an ostensible exercise of the power will be void, notwithstanding that the directors may incidentally bring about a result which is within the purpose of the power and which they consider desirable.”

Determination of the applicant’s claims

[48]
Having identified the matters relevant to this court’s jurisdiction, the starting point is to consider the nature of the power whose exercise is in question and the limits within which it may be exercised. This inquiry directs attention to the proper construction of the Constitution.
[49]
In Herzfeld and Prince, Interpretation,^[84] the learned authors observe:

“Company constitutions are generally interpreted in accordance with the principles that apply to commercial contracts, albeit that regard is had to the special characteristics of a company constitution. In particular, company constitutions have a public element to them. They are commonly relied upon by third parties, including potential members of the company. As a result, a court will ordinarily place greater weight on the meaning conveyed by the constitution on its face”.

[50]
In HNA Irish Nominee Ltd v Kinghorn,^[85] the Full Court of the Federal Court (Keane CJ, Jacobson and Rares JJ) said:

“In giving a commercial contract a business like interpretation, it is necessary to consider the language used by the parties, the circumstances addressed by the contract and the objects that it is intended to secure… A corporate constitution has the effect of a contract between the company and each of its members, the company and each director and secretary, as well as the members among themselves: s 140(1) of the [Corporations Act 2001 (Cth)]. The range of surrounding circumstances available as aids to the construction of such a contract is perhaps more limited than in other cases. This is because constitutions, and replaceable rules, can be amended at different times and in difference circumstances. In addition, the members who are the corporators at particular times may change. These factors suggest that ordinarily primacy must be given to the objective intention discernible from the language in which the constitution is expressed rather than to other features of the surrounding matrix of fact in which its provisions may have been made”.

[51]
In the present case there was no evidence of any surrounding circumstances which may have been relevant to the interpretation of the Constitution. In construing the Constitution, I have endeavoured to give primacy to the objective intention discernible from the language of the instrument. This approach is consistent with the recognition that members of incorporated associations are entitled to insist upon adherence to the language of the rules by which the members and their association have agreed to be bound, in particular, where the issue concerns the admission of members.^[86]
[52]
There is another general principle of interpretation which is relevant. In Fitzgerald v Masters,^[87] McTiernan, Webb and Taylor JJ said:

“It is trite law that an instrument must be construed as a whole. Indeed it is the only method by which inconsistencies of expression may be reconciled and it is in this natural and common sense approach to problems of construction that justification is to be found for the rejection of repugnant words, the transposition of words and the supplying of omitted words… Many illustrations may be given of the circumstances in which these processes have been followed but to do so would add nothing to the rule that the intention of the parties is to be ascertained from the instrument as a whole and that this intention when ascertained will govern its construction.”

[53]
A similar statement of principle can be found in Australian Broadcasting Commission v Australasian Performing Right Association Ltd^[88] where Gibbs J said:

“It is trite law that the primary duty of a court in construing a written contract is to endeavour to discover the intention of the parties from the words of the instrument in which the contract is embodied. Of course the whole of the instrument has to be considered, since the meaning of any one part of it may be revealed by other parts, and the words of every clause must if possible be construed so as to render them all harmonious one with another”.

[54]
The Constitution expressly identified requirements that had to be fulfilled in order for a person to qualify for ordinary membership. Those requirements essentially involved a minimum age (eighteen years), a residency nexus (Brisbane or in the vicinity of Brisbane), an established faith in, and allegiance to, Sikhism (which matter was to be the subject of a statutory declaration) and a financial payment comprising a membership fee. The Constitution provided that a person who “qualifies under rule 5 for membership, may apply to [the Temple] for such class of membership as may be applicable to that person”. The Constitution contained no other provision which sought to limit or circumscribe qualification for membership of the Temple. Further, the Constitution expressly provided, in two separate provisions, that “the number of ordinary members shall be unlimited”.^[89] The Constitution then conferred on the management committee the power to “consider” and “determine” the “admission or rejection” of an application.^[90] The contemplated process for consideration and determination involved the management committee meeting and voting. To be admitted to membership, an applicant was required to receive a majority of affirmative votes of the management committee.^[91]
[55]
There was an issue raised as to whether, on the proper construction of the Constitution, a person who qualified for membership under rule 5, upon submitting an application for membership, acquired a right to be automatically admitted to membership. In my view there is no such right. On the proper construction of the Constitution, an application for membership made by a person who otherwise qualified for membership under rule 5, fell to be considered and determined, by way of admission or rejection, by the management committee. That is, the Constitution, in terms, left it to the management committee, acting in accordance with the Constitution, to determine whether an application made by a person who qualified for membership should be admitted to, or rejected from, membership. As was observed by Le Miere J in Kaur v Sikh Gurdwara Perth Inc,^[92] “[t]he existence of an express power on the part of the Committee to deny membership to an applicant is a substantial obstacle to any assertion that membership is automatic upon application”. In a similar vein in Millar v Houghton Table Tennis and Sports Club Inc,^[93] Besanko J observed:

“The first question is whether the applicants are, in fact, members by virtue of the lodging of the application forms. In addition, in the case of at least 52 applications, the applicants through Mr Day offered to pay a fee. In my opinion, the applicants did not thereby become members. The rules expressly provide that the process of securing membership includes ‘acceptance by the committee’ (clause 5(a)). The rules also expressly provide that the management committee may refuse or reject any membership, which I think means any application for membership (clause 5(b)). It follows that this is not a case like Woodford v Smith [1970] 1 WLR 806 where eligible persons who completed a membership form and paid the appropriate fee in accordance with the rules, thereupon became members entitled to vote even though the committee had not approved their membership (see the discussion of Woodford v Smith by von Doussa J in Nurses Memorial Centre of South Australia Inc v Beaumont (1987) 44 SASR 454 at 467 – 468).”

[56]
Whilst the management committee retained the power to accept or reject an application made by a person who qualified for membership, that power was a discretionary power that had to be exercised in good faith and for a proper purpose. The Temple submitted that, in the present case, it was conceded that the management committee had exercised the power to admit or reject applications in good faith and “no improper purpose is alleged”.^[94] The latter aspect of that submission is not entirely correct. Whilst the applicants ultimately conceded that the management committee had acted in good faith, there remained an allegation in issue between the parties as to whether the power to reject had been exercised for a proper purpose having regard to the provisions of the Constitution, including clauses 4(3) and 5(6).^[95] Despite submitting that no improper purpose was alleged, the Temple developed its submissions with a view to demonstrating that the decision to admit or reject applications had been exercised “within power”.^[96] Ultimately, as the case was argued, it was common ground that the management committee had acted in good faith and not for any reasons of self-interest. However, there remained a real issue litigated between the parties as to whether the management committee had committed a fraud on the power to reject applications for membership by exercising the power with a purpose or with an intent beyond the scope of, or which was not justified by, the Constitution.
[57]
The Temple submitted that the existence of clauses 4(2) and 5(6) of the Constitution did not fetter the discretion of the management committee in its consideration of applications under clause 8. The Temple submitted that clause 8 conferred upon the management committee a “broad and largely unfettered”^[97] discretion in relation to the admission or rejection of applications and, provided the power was exercised in good faith and in accordance with an object of the Constitution, the power could be exercised so as to impose a limit or cap on membership numbers.^[98] I reject this submission. The Constitution must be read as a whole and primacy must be given to the objective intention discernible from the language in which the Constitution is expressed. This Constitution provided in the clearest terms, in more than one place, that the number of ordinary members was to be unlimited. The objects of the Constitution are to be read consistently with, and not in such a way as to contradict, derogate or detract from, the express requirement that the number of members was to be unlimited. In my consideration upon the proper construction of the Constitution, the discretionary power to admit or reject applications for membership fell to be exercised on the basis that there was to be no limit imposed on the number of ordinary members. The power could not be lawfully exercised by reference to a criteria that was not contained in the Constitution and which was designed to limit the admission of members. Further, it is difficult to conceive how an exercise of the power so as to exclude from the membership any person who had not been a member of the Temple in the preceding five years and thereby limit membership to persons who had been members in the preceding five years, was consistent with the objects contained in the Constitution. Those objects are framed in consistent language referencing the promotion of Sikhism. Viewed objectively, the application of the criteria with the intent of limiting membership in the manner I have described was inconsistent with the objects.
[58]
I find that in the circumstances which occurred, the management committee exercised the power to reject members for an improper purpose, meaning that the exercise of that power was void.
[59]
I should add that the decision to apply the criteria to limit membership appears to have been motivated by safety concerns connected with the number of “occupants” that could be safely allowed at the Temple’s premises at any given time. There can be no doubt that the management committee needs to give careful consideration to regulating the number of people it can safely allow, at any given time, to visit or occupy the Temple’s premises. That is all part and parcel of the management committee’s power to generally control and manage the administration of the property of the Temple. However, the management of visitation and occupancy is separate and distinct from any consideration as to whether a person should be rejected from membership of the Temple in accordance with the Constitution. In terms of express, substantive rights, membership of this incorporated association essentially conferred voting and nomination rights. Visitation and occupancy rights were not expressly attached to or an indicia of membership. The Constitution provided that the number of members was to be unlimited. Properly construed, the Constitution did not countenance the physical size and safe occupancy limits of the Temple building or buildings as they exist from time to time, operating as a constraint or limitation upon the number of persons who should be admitted to ordinary membership of the Temple.
[60]
As a further or alternative basis for relief, the applicants advanced a contention that the management committee’s rejection of the 2151 applications was “void and of no effect as those persons applying for membership were not afforded natural justice”.^[99] As this ground was further refined by the Updated Applicants’ Points of Claim, it distilled down to the proposition that procedural fairness required reasons, or an explanation, to be provided for any rejection of an application for membership.^[100] The applicants, who are members of the Temple, sought to advance this argument in respect of other applicants whose applications for membership had been rejected. This further or alternative basis for relief was not the principal focus of submissions and argument at the trial. I intend to deal with this aspect briefly as I have already decided that the power to reject applications for membership was exercised for an improper purpose.
[61]
At common law there is no general rule or principle of natural justice that requires reasons to be given for administrative decisions, even decisions which may adversely affect the interests, or defeat the legitimate or reasonable expectations, of a person.^[101] That position is not altered or improved by reference to the proper construction of the Constitution. As I construe the Constitution, at the point of decision making by the management committee, there was no requirement or need for the management committee (or those members of the management committee who voted to reject an application for membership) to provide the rejected applicant with reasons or an explanation for the rejection. The Constitution contemplated that a rejected applicant for membership, after receiving written notification of the rejection, would in the event of that person appealing the decision be given “the opportunity to fully present his or her case” to a different decision maker, the general meeting. On that occasion, the management committee or those members of the management committee who rejected the application would also be given “the opportunity of presenting its or their case”. ^[102] Reading the Constitution as a whole, and particularly clauses 8 and 10, fair procedures in decision making did not require reasons or an explanation to be given at the point of rejection by the management committee.^[103]

Orders

[62]
Pursuant to s 72 of the Act, it is declared that the management committee’s decision as contained in the minutes of the management committee dated 30 August 2021 to reject 2151 applications for membership is void and of no effect.
[63]
Pursuant to s 73 of the Act, the management committee is directed to consider the rejected applications in accordance with the Constitution and according to law.
[64]
I will hear the parties as to costs.

Footnotes

[1] Ex 1, Tab 27, 680.

[2] Ex 1, Tab 27, 666.

[3] Updated Applicants’ Points of Claim [14], Respondent’s Points of Defence [14],

[4] Ex 1, Tab 30, 997, cl 5(1)(c)

[5] Singh & Ors v Brisbane Sikh Temple (Gurdwara) Inc [2021] QSC 290.

[6] Ibid [27].

[7] T 1-17 ll 22-23

[8] T 1-17 ll 16-18; Updated Applicants’ Points of Claim [13]-[14], [30A] and [32]; Respondent’s Points of Defence [13]-[15], [16(c)], [30] and [32].

[9] Associations Incorporation Act 1981 (Qld) sch 2.

[10] Associations Incorporation Act 1981 (Qld) s 71(1).

[11] Associations Incorporation Act 1981 (Qld) ss 61(1) and 60(1).

[12] Associations Incorporation Act 1981 (Qld) s 62.

[13] Ex 1, Tab 26, 591 [18].

[14] T 1-74 ll 31-40.

[15] T 1-78 ll 30-31.

[16] Ex 1, Tab 21, p 548 [4(c)]; T 1-73 ll 1-20; T 1-79 ll 37-38.

[17] T 1-80 ll 5-10,

[18] Ex 1, Tab 26, 590 [17].

[19] Ex 1, Tab 26, 590 [17].

[20] Ex 1, Tab 27, 680.

[21] Ex 1, Tab 27, 666 [10].

[22] Ex 1, Tab 26, 591 [18].

[23] Ex 1 Tab 27, 669 [36]-[43].

[24] Ibid [43].

[25] Ex 1, Tab 26, 591 [21].

[26] Ex 1, Tab 26, 591 [20].

[27] T 1-78 ll 15-34.

[28] Ex 1, Tab 29, 962 [12].

[29] T 1-78 ll 30-35.

[30] Ex 1, Tab 29, 963 [18].

[31] Ex 1, Tab 26, 628, s 1.2 Terms of Reference.

[32] Ex 1, Tab 29, 963 [21].

[33] Ex 1, Tab 26, 640.

[34] Ex 1, Tab 27, p 672 [60] and [63]; Ex 1, Tab 28, p 884 [20].

[35] T 1-111 ll 25-35.

[36] T 1-111 l 36 - T 112 l 5; Updated Applicants’ Points of Claim [30A].

[37] Ex 1, Tab 27, 670 [45].

[38] Ex 1, Tab 27, 688.

[39] Ex 1, Tab 27, 689.

[40] Ex 1, Tab 27, 692 “March 2021 membership applications are pending and will be finalised by new committee after AGM 2021”; “Community mediation to resolve membership was unsuccessful. Committee passes resolution to verify and authenticate 2021 membership applications to negate fraudulent applications”.

[41] Ex 1, Tab 27, 697-8.

[42] Ex 1, Tab 26, 653-6.

[43] Outline of Submissions on behalf of the Respondent [31].

[44] Ex 1, Tab 27, 697-698.

[45] Ex 1, Tab 10, 343 [11(b)].

[46] Updated Applicants’ Points of Claim [13] and ftn 9; Respondent’s Points of Defence [13].

[47] Updated Applicants’ Points of Claim [13]; Respondent’s Points of Defence [13].

[48] Ex 1, Tab 27, 671 [51].

[49] Ibid.

[50] Ex 1, Tab 27, 671 [55].

[51] Ex 1, Tab 26, 592 [26], Tab 27, 672 [57].

[52] Ex 1, Tab 26, 593 [28].

[53] Ex 1, Tab 27, 672 [61] and [64].

[54] Ex 1, Tab 27, 673 [65].

[55] Ex 1, Tab 26, 653-656.

[56] Ex 1, Tab 27, 671 [52].

[57] T 1-70 ll 1-3.

[58] T 1-70 ll 5-35.

[59] T 1-70 ll 40-45.

[60] T 1-72 ll 20-25.

[61] T 1-82 ll 35-40.

[62] T 1-83 ll 7-11.

[63] T 1-83 ll 15-35.

[64] T 1-98 ll 16-19.

[65] T 1-98 l 15 - T 1-99 l 40.

[66] Updated Applicants’ Points of Claim [20], Respondent’s Points of Defence [20]

[67] Popovic & Ors v Tanasijevic & Ors [2001] SASC 289 [38].

[68] [2006] SASC 306 [26] (footnotes omitted).

[69] (1985) 180 CLR 459, 466.

[70] (1985) 180 CLR 459, 472.

[71] (2000) 34 ACSR 1 [505].

[72] [2015] 1 Qd R 542, 555-556 [38]-[39].

[73] (1977) 16 ALR 301, 349.

[74] See Lai v Tiao (No 2) [2009] WASC 22 [84], Cabaret Holdings Ltd v Meeanee Sports and Rodeo Club Inc [1982] 1 NZLR 673 and Stratford Racing Club Inc v Adam [2008] NZAR 329, [58] (NZCA). See also, in relation to a building society not regulated by the companies legislation, Haselhurst v Wright (1991) 4 ACSR 527, in which Owen J held, at 531, that the directors owed a fiduciary duty to act in the interests of that corporate body

[75] [2008] NZAR 329.

[76] Ibid [58].

[77] Finn, Fiduciary Obligations, LBC 1977, 38-9; Vatcher v Paull [1915] AC 372, 378.

[78] (1968) 121 CLR 483, 492-494.

[79] Finn, Fiduciary Obligations, LBC 1977, 38-9; Vatcher v Paull [1915] AC 372, 378.

[80] Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821, 838.

[81] [1974] AC 821, 834.

[82] (1938) 60 CLR 150, 185-86.

[83] (1758) 1 Eden 132, 138; 28 ER 634, 637.

[84] Herzfeld and Prince, Interpretation, (LBC, 2020, 2nd ed) [29.400].

[85] (2010) 78 ACSR 553, 563 [42].

[86] See Rana v Survery (No 2) [2012] NSWSC 905 [2]; refer also to McLelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759, 790 [113]; Millar v Houghton Table Tennis & Sports Club Inc (2003) 225 LSJS 241, 262 [136].

[87] (1956) 95 CLR 420, 437.

[88] (1973) 129 CLR 99, 109.

[89] Clauses 4(2) and 5(6) of the Constitution.

[90] Clause 8(1) of the Constitution.

[91] Clause 8(2) of the Constitution.

[92] [2017] WASC 270 [45].

[93] (2003) 225 LSJS 241, 269 [177].

[94] T 1-93 ll 26-34.

[95] Updated Applicants’ Points of Claim [32(c)]; Respondent’s Points of Defence [32].

[96] T 1-93 ll 26-35.

[97] T 1-99 ll 37-38.

[98] T 1-99 ll 33-40.

[99] Originating Application [2].

[100] Updated Applicants’ Points of Claim [38].

[101] Public Service Board of NSW v Osmond (1986) 159 CLR 656, 662, 676

[102] Refer to Clauses 10(1) and (2) of the Constitution.

[103] See McLelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759, 792 [120].

Editorial Notes

Published Case Name:
Singh & Ors v Brisbane Sikh Temple (Gurdwara) Inc
Shortened Case Name:
Singh v Brisbane Sikh Temple (Gurdwara) Inc
Reported Citation:
(2022) 10 QR 106
MNC:
[2022] QSC 17
Court:
QSC
Judge(s):
Kelly J
Date:
25 Feb 2022
Selected for Reporting:
Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Aleyn v Belchier	(1758) 28 ER 634	1 citation Jump To Cite 1 - (1758) 28 ER 634
Aleyn v Belchier	(1758) 1 Eden 132	1 citation Jump To Cite 1 - (1758) 1 Eden 132
Allen v Townsend	(1977) 16 ALR 301	2 citations Jump To Cite 1 - (1977) 16 ALR 301 Cite 2 - (1977) 16 ALR 301
Australian Broadcasting Commission v Australasian Performing Right Association Ltd	View on:JADE(1973) 129 CLR 99	2 citations Jump To Cite 1 - (1973) 129 CLR 99 Cite 2 - (1973) 129 CLR 99
Australian Broadcasting Commission v Australasian Performing Right Association Ltd	View on:JADE[1973] HCA 36	1 citation Jump To Cite 1 - [1973] HCA 36
Cabaret Holdings Ltd v Meeanee Sports and Rodeo Club Inc	[1982] 1 NZLR 673	1 citation Jump To Cite 1 - [1982] 1 NZLR 673
Fitzgerald & Anor v Masters	View on:JADE(1956) 95 CLR 420	2 citations Jump To Cite 1 - (1956) 95 CLR 420 Cite 2 - (1956) 95 CLR 420
Fitzgerald v Masters	View on:JADE[1956] HCA 53	1 citation Jump To Cite 1 - [1956] HCA 53
Harlowe's Nominees Pty Ltd v Woodside (Lakes Entrance) Oil Co NL	View on:JADE(1968) 121 CLR 483	2 citations Jump To Cite 1 - (1968) 121 CLR 483 Cite 2 - (1968) 121 CLR 483
Harlowe's Nominees Pty Ltd v Woodside (Lakes Entrance) Oil Co NL	View on:JADE[1968] HCA 37	1 citation Jump To Cite 1 - [1968] HCA 37
Haselhurst v Wright	(1991) 4 ACSR 527	1 citation Jump To Cite 1 - (1991) 4 ACSR 527
Hindle v John Cotton Ltd	(1919) 56 SC LR 625	1 citation Jump To Cite 1 - (1919) 56 SC LR 625
HNA Irish Nominee Ltd v Kinghorn	(2010) 78 ACSR 553	2 citations Jump To Cite 1 - (2010) 78 ACSR 553 Cite 2 - (2010) 78 ACSR 553
HNA Irish Nominee Ltd v Kinghorn	View on:JADE[2010] FCAFC 57	1 citation Jump To Cite 1 - [2010] FCAFC 57
Howard Smith Ltd v Ampol Petroleum	View on:ICLRUK(1974) AC 821	3 citations Jump To Cite 1 - (1974) AC 821 Cite 2 - (1974) AC 821 Cite 3 - (1974) AC 821
Kaur v Sikh Gundwara Perth (Inc)	View on:JADE[2017] WASC 270	1 citation Jump To Cite 1 - [2017] WASC 270
Lai v Tiao (No 2)	View on:JADE[2009] WASC 22	1 citation Jump To Cite 1 - [2009] WASC 22
McClelland v Burning Palms Surf Club	(2002) 191 ALR 759	2 citations Jump To Cite 1 - (2002) 191 ALR 759 Cite 2 - (2002) 191 ALR 759
Millar & Ors v Houghton Table Tennis & Sports Club Inc	View on:JADE[2003] SASC 1	1 citation Jump To Cite 1 - [2003] SASC 1
Millar v Houghton Table Tennis & Sports Club Inc	(2003) LSJS 241	1 citation Jump To Cite 1 - (2003) LSJS 241
Millar v Houghton Table Tennis & Sports Club Inc	(2003) 225 LSJS 241	3 citations Jump To Cite 1 - (2003) 225 LSJS 241 Cite 2 - (2003) 225 LSJS 241 Cite 3 - (2003) 225 LSJS 241
Mills v Mills	View on:JADE(1938) 60 CLR 150	3 citations Jump To Cite 1 - (1938) 60 CLR 150 Cite 2 - (1938) 60 CLR 150 Cite 3 - (1938) 60 CLR 150
Mills v Mills	View on:JADE[1938] HCA 4	1 citation Jump To Cite 1 - [1938] HCA 4
Nurses Memorial Centre of South Australia Inc. v Beaumont	(1987) 44 SASR 454	1 citation Jump To Cite 1 - (1987) 44 SASR 454
Pettit v South Australian Harness Racing Club Inc	View on:JADE[2006] SASC 306	2 citations Jump To Cite 1 - [2006] SASC 306 Cite 2 - [2006] SASC 306
Pine Rivers, Caboolture and Redcliffe Group Training Scheme Inc v Group Training Association Queensland & Northern Territory Inc	[2015] 1 Qd R 542; [2013] QCA 358	3 citations Jump To Cite 1 - [2013] QCA 358 Cite 2 - [2015] 1 Qd R 542 Cite 3 - [2015] 1 Qd R 542
Popovic v Tanasijevic	View on:JADE[2001] SASC 289	1 citation Jump To Cite 1 - [2001] SASC 289
Popovic v Tanasijevic (No 5)	(2000) 34 ACSR 1	2 citations Jump To Cite 1 - (2000) 34 ACSR 1 Cite 2 - (2000) 34 ACSR 1
Public Service Board of NSW v Osmond	View on:JADE(1986) 159 CLR 656	1 citation Jump To Cite 1 - (1986) 159 CLR 656
Rana v Survery (No 2)	View on:JADE[2012] NSWSC 905	1 citation Jump To Cite 1 - [2012] NSWSC 905
Rann v Olsen	View on:JADE[2000] SASC 83	1 citation Jump To Cite 1 - [2000] SASC 83
Singh v Brisbane Sikh Temple (Gurdwara) Inc	[2021] QSC 290	2 citations Jump To Cite 1 - [2021] QSC 290 Cite 2 - [2021] QSC 290
Stratford Racing Club Inc v Adlam	[2008] NZAR 329	4 citations Jump To Cite 1 - [2008] NZAR 329 Cite 2 - [2008] NZAR 329 Cite 3 - [2008] NZAR 329 Cite 4 - [2008] NZAR 329
Vatcher v Paull	View on:ICLRUK[1915] AC 372	2 citations Jump To Cite 1 - [1915] AC 372 Cite 2 - [1915] AC 372
Wayde v New South Wales Rugby League Limited	View on:JADE(1985) 180 CLR 459	3 citations Jump To Cite 1 - (1985) 180 CLR 459 Cite 2 - (1985) 180 CLR 459 Cite 3 - (1985) 180 CLR 459
Wayde v New South Wales Rugby League Ltd	View on:JADE[1985] HCA 68	1 citation Jump To Cite 1 - [1985] HCA 68
Woodford v Smith	View on:ICLRUK[1970] 1 WLR 806	1 citation Jump To Cite 1 - [1970] 1 WLR 806

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Singh v Brisbane Sikh Temple (Gurdwara) Inc	[2022] QSC 151	2 citations

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Footnotes

Editorial Notes

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Cases Cited List of Cases Cited by this judgment

Cases Citing List of cases on Queensland Judgments citing this Judgment