Hogan v Fraser & Ors

This case involved a challenge to the Tattersalls Club’s successful ballot to allow female members. Martin J found that the matter was not justiciable, as it involved the internal affairs of an unincorporated association (applying Cameron v Hogan (1934) 51 CLR 358).

Martin J

21 February 2019

Background

The Tattersalls Club is an unincorporated association with a clubhouse in the Brisbane CBD. [5]. In December 2018 the club held a ballot on the question of whether its rules should be changed to enable women to become members. [1]. By a slender majority, that change was approved. [1].

The applicant, a member of the club, sought a declaration that the ballot conducted was not in accordance with the rules, and therefore was ineffective to amend them. [4].  The respondents were the members of the club’s committee. [2], [5].

The jurisdictional issue

Martin J noted that the High Court’s decision of Cameron v Hogan (1934) 51 CLR 358 was authority for the proposition that a court will generally not intervene in the internal affairs of voluntary associations. [10]–[11]. The applicant sought to avoid the effect of this decision by arguing that: (1) there was a public interest in the enforcement of the rules; (2) the applicant had a sufficient important personal interest; and (3) that the rules of the club were contractual in nature. [17].

The public interest argument relied on the observations of Dowsett J in Baldwin v Everingham [1993] 1 Qd R 10 – a case concerning the rules of the Liberal Party of Queensland. In that case, it was observed that, “[o]n general principles, where an albeit voluntary association fulfils a substantial public function in our society, it may appear indefensible that questions of construction concerning its constitution shall be beyond judicial resolution”. [19]. However, that case turned on the legislative recognition given to political parties, which took them beyond the ambit of mere voluntary associations. [21]. In comparison, there was no indication that, in order for legislation which applied to the Tattersalls Club to be effective, there was a need for intervention by the court. [25].

The personal interest argument relied on the decision of Carter v NSW Netball Association [2004] NSWSC 737. In that case, the plaintiff was a volunteer coach who had been the subject of an adverse finding by an association’s disciplinary tribunal. [27]. The decision supported the proposition that a court may intervene where a person’s livelihood is affected by a decision. However, the correctness of Carter has been doubted. [29]. In any case, Martin J found that it was not necessary to resolve the differences of legal opinion, as the applicant had “not demonstrated an interest which is similar or analogous to the reputational rights considered in Carter and the other cases which followed”. [30]. There was no argument advanced as to how his interests were adversely affected by the ballot outcome. [30].

The contractual argument relied on certain rules of the club, which the applicant contended were evidence of an intention by members to be contractually bound. [31]. However, Martin J quoted again from Cameron v Hogan, where it was said that it could “seldom be the true meaning” that rules of a large association were intended to create contractual relations among members. [35]. For it to be otherwise, there must be “some clear positive indication”. [42]. If courts were too ready to find contracts in these circumstances, litigation might arise from all sorts of stipulations, “for example, a rule that afternoon tea should not be served in the smoking room of a club until after 3.30pm” (quoting from Meagher, Gummow & Lehane’s Equity Doctrines & Remedies). [36]. Martin J found that the rules in this case did not express “an indication of the kind necessary” to establish a contract among the members. [42].

His Honour concluded that the application was not justiciable and should be dismissed. [43]. However, in case he was wrong on this conclusion, his Honour went on to consider whether the ballot was in fact invalid. [43].

Whether the ballot was invalid

The applicant argued that the ballot had not been in accordance with the rules, because members were asked to write their membership number on their form, rather than receiving a form on which this information was already recorded (per R 14.7.3 of the Tattersalls Club). [49]–[52]. However, the club’s rules provided that a postal ballot only had to be “substantially consistent” with the process for elections. [45].

His Honour noted the observations of Burchett J in Re Asset Risk Management Ltd (1995) 59 FCR 254, where it was said that a provision which had to be “substantially complied with” should be understood by the court as requiring a consideration of “the practical effect of what has been done, which should be compared with the practical effect the legislature appears to have sought to have achieved”. [59]. His Honour was satisfied that the purpose aimed at by the rules – of ensuring a person was entitled to vote – was still achieved by the process followed in this case. In effect, the alleged invalidity here was a “minor departure”, but was still “substantially consistent with the process for elections by postal ballot” as set out in the rules. [61], [63]. Accordingly, the ballot had not been invalid. [63].

Accordingly, the application was dismissed. [71].

W Isdale