Atkins v Port Broughton RSL Sub-Branch - [2018] SADC 139

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
ATKINS v PORT BROUGHTON RSL SUB-BRANCH
[2018] SADC 139
Judgment of His Honour Judge Tilmouth
14 December 2018
ASSOCIATIONS AND CLUBS - EXPULSION, SUSPENSION AND DISQUALIFICATION
Held: There was a failure by a General Meeting of the Sub-Branch to comply with requirements of natural justice by failing to tell Mr Atkins what he was asked to apologise for, before rejecting his application to transfer to the Sub-Branch. The Magistrates Court erred in requiring Mr Atkins to produce legal advice as to the merits of his case, before summarily dismissing it. Nevertheless the application for review must fail on discretionary grounds.
Associations Incorporation Act 1985 (SA) s 61, s 40 ; Magistrates Court Act 1991 (SA) s 38(5), ss38(7)(d)(i) & (ii), ss 38(7)(d)(iii)(B); Waldron v Ward (1654) Style 449 (82 ER 853); Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357; Attorney-General (NT) v Maurice (1986) 161 CLR 475; Bayram v Benton (T/as Digital Dynatronics Australia) (1994) 117 FLR 414; Re Refugee Review Tribunal, Ex parte Aala (2000) 204 CLR 82; Popovic v Tanasijevic (No 5) (2000) 34 ACSR 1; Pettit v South Australian Harness Racing Club Inc & Ors (2006) 95 SASR 543; Millar v Houghton Table Tennis Sports Club (2003) 225 LSJS 241; National Companies and Securities Commission v News Corporation Ltd (1984) 15 CLR 296; Christian Revival Crusade Inc v Milne and Ors (2007) 252 LSJS 113, referred to.
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203; Sanders v Esanda Finance Corporation Ltd Unreported Supreme Court of Australia, 31 May 1996, S5631; R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; Tanasijevic v Popovic [2001] SASC 289, applied.

ATKINS v PORT BROUGHTON RSL SUB-BRANCH
[2018] SADC 139
The issues

Trevor Atkins brings this application for the review of a decision made by a Magistrate sitting in the minor civil jurisdiction of the Adelaide Magistrates Court, dismissing his claim for relief against a decision of the Port Broughton Returned & Services League Sub-Branch (hereinafter sometimes referred to simply as the ‘RSL’) refusing his application to transfer his membership to it. The questions for resolution before this court are essentially whether Mr Atkins was entitled to challenge that decision, whether it was made in denial of natural justice to him, whether the Magistrate erred in dismissing his claim without considering the merits, and if he did, whether the claim was bound to fail in any event.
Background facts
By a ‘Request for Transfer of Branch/Sub-Branch Membership’ devised by the Returned and Services League of Australia (SA Branch) Inc completed on 15 December 2017, Mr Atkins applied for his membership of the RSL to be transferred from the Brighton to the Port Broughton Sub-Branch. He in fact lives in Port Broughton. He was previously a member of that Sub-Branch between 2003 and 2011, at times holding positions as President and Treasurer. The Port Broughton Sub-Branch consists of over 100 active members. He transferred his membership to the Brighton Sub-Branch in 2011. Mr Atkins saw active service with the Royal Australian Navy between 1963 and 1983. As a member of the State Branch of the Returned and Services League of Australia, Mr Atkins is entitled to use the facilities at Port Broughton, irrespective of membership of that Sub-Branch.
Rejection of the application to re-join
The application to re-join was considered by a general meeting of the Port Broughton Sub-Branch of 17 December 2017. The minutes record the following motion was passed.
Correspondence
…
(3)Application received from Trevor Atkins re transferring to Port Broughton RSL and then discussed by members. Motion moved by Bruno Carbone “during the time Trevor Atkins was a member of the Port Broughton RSL Sub Branch his actions were unacceptable therefore The Port Broughton RSL Sub Branch requires a separate written apology to (1) Bruno Carbone, (2) Alan Stead and (3) the Port Broughton RSL Sub Branch before his transfer application is to be considered”. Seconded by John Atkinson – carried.
Mr Atkins promptly responded by seeking particulars of the apologies referred to. Not receiving one by 22 December 2017, he sent the Sub-Branch a self-titled ‘final notice’ stating an intention to bring a ‘claim in the Magistrates Court (Civil Division) for the sum of $10,000’ plus court fees, on the basis that actions of the Sub-Branch were ‘oppressive or unreasonable’.
The decision of 17 December 2017 was notified by letter to him of 8 January 2018 under the hand of its President. It advised in part:
In consideration of history, a decision was made that if an apology is received in writing from you to (1) Bruno Carbone, (2) Alan Stead and (3) The Port Broughton RSL Sub Branch then your application will be considered.
The following day Mr Atkins wrote to the Sub-Branch in these terms:
It is pleasing to note that I am now considered to be a fit and proper person to be a member of your Sub Branch. For my benefit will you please advise why this has changed.
To assist me to make the apologies, you insist that I make, will you please supply details of what I must apologise for.
A special general meeting of the Sub-Branch was convened for 21 January 2018 to consider the ‘Notice of Final Demand’. At this meeting it was resolved:
The final notice that you sent to the Port Broughton RSL was tabled at a Special General Meeting today with the following outcome.
The members instructed the committee to advise you of the following:
(1)The previous offer to consider your application to transfer has now been withdrawn and no further applications will be considered.
(2)The committee is to not respond or involve itself in any further interaction of any description with yourself.
(3)No further correspondence will be replied to and finally this is now the end of the matter.
The application for transfer between Sub-Branches was brought by Mr Atkins under By-Law No 1, Sub-Rule 8 for Sub-Branches of the Returned and Services League of Australia (SA Branch). This merely facilitates an application for processing applications for transfer ‘… using the prescribed … Form’ and for notification to the ‘old’ or ‘losing’ Sub-Branch. The processing of applications is provided for in Sub-Rules 5.2 – 5.5 of By-Law No 1:
5.     Processing of Applications for Membership
5.1     …
5.2Each person who applies to be admitted as a Service Member shall, in his application form, also apply to be admitted as a member of State Branch or a Sub-Branch as the applicant wishes.
5.3An application to be admitted as a Service Member, may be forwarded to, or lodged by the applicant with the preferred State Branch or the Sub-Branch referred to in paragraph 5.2. If the applicant applies to be admitted as a member of a particular Sub-Branch, then that Sub-Branch shall be responsible for processing the application.
5.4If an applicant referred to in paragraph 5.2 elects to become a member of a particular Sub-Branch, then provided the applicant:
a.     has demonstrated he/she is eligible to be admitted as a Service Member pursuant to this By-Law;
b.     has completed his/her application form and has paid the annual subscription payable; and
c.     is considered by the Committee of the Sub-Branch a fit and proper person to be admitted as a member;
he/she shall be admitted as a Service Member and a member of that Sub-Branch.
5.5A Sub-Branch Committee may only reject an application if it is satisfied the applicant is not eligible, or is not, in the interests of the League, a fit and proper person to be admitted as a member.
Proceedings in the Magistrates Court
The submissions of the parties
The action in the Magistrates Court was instituted on 23 January 2018. In this Mr Atkins provided the following particulars:
The Port Broughton RSL Sub Branch (PBRSLSB) has continuously refused to accept my application to transfer to that Sub Branch. They say that I am not a fit and proper person to be a Service member of the Returned and Services League (RSL). They will not tell me why they consider me not to be a fit and proper person to be a member of an organisation that I have been a member of for over 20 years. They also claim to have letters from Sub Branch members saying that I am not a fit and proper person but they will not show them to me.
I think that their action is in contravention of the Associations Incorporated Act 1985, Article 61.
The Magistrate from whom this application for a review is brought, made an order on 23 April 2018 for the provision of mutual written submissions. In his submission Mr Atkins pointed out that he had not received an answer to his letter of 9 January 2018 ‘requesting details’ of the allegations. He complained that the Sub-Branch would not tell him what ‘past unsociable, unacceptable behaviour occurred’, and that in summarily determining he was not a fit and proper person for membership, it fell into breach of s 61 of the Associations Incorporation Act 1985 (SA).
In its written submission, the Sub-Branch pointed to the resolutions in question and to the necessity to be satisfied that an applicant for transfer between Sub-Branches must be a ‘fit and proper person to be admitted as a member’. This submission points out that the rejection of such an application is further justified when it is not in the interests of the RSL to admit the applicant as a service member of the Sub-Branch. It further acknowledges that it was on the basis of receiving the final notice of the intention to claim $10,000, as well as ‘past unsociable and unacceptable behaviours’, that Mr Atkins’ application for membership was rejected.
Two issues of law were raised by the Sub-Branch. Firstly, it pointed to the fact that pursuant to By-Law No 1, Sub-Rule 5.7, Mr Atkins had a right of appeal to the State Branch of the RSL, which was not exercised. Consequently as he chose ‘the wrong process to review the decision of the committee the Magistrate had no jurisdiction to entertain it’. Secondly, the Sub-Branch referred to s 61(2) of the Associations Incorporation Act, which requires applications for relief must be made ‘within six months of the cessation of the person's membership of the association’.
At a directions hearing before the Magistrate of 15 June 2018, the following order was made.
Order:
The plaintiff undertakes to obtain independent legal advice, in particular a written opinion by a legal practitioner practising in South Australia in regard to whether or not the plaintiff has a cause of action. He is to supply the legal practitioner with the form of the claim, the defence and all submissions pertaining to this claim.
Costs in favour of the defendant in the sum of $150 for today’s attendance in any event, to be paid within 28 days from today.
Plaintiff to file and serve his lawyers legal opinion (Mr P. Boylan) to the Court and the defendant within six weeks.
Adjourn to 3 August 2018 at 11.30 am for further directions.
The decision to dismiss the application
It transpired that Mr Atkins did approach the solicitor Mr Boylan, who on 27 July 2018 attempted to obtain a copy of the Constitution of the Port Broughton Sub-Branch from the Commissioner of Consumer and Business Affairs, but was told that it could not be supplied. He therefore indicated that he could not prepare an opinion. His letter to this effect was handed up to the Magistrate on 3 August 2018.
Regrettably there is no transcript of the proceedings of this day, however the court record reads:
The Plaintiff’s claim is dismissed on the basis that the Plaintiff has failed to comply with previous orders and failed to prosecute an arguable claim.
The question in regard to the Associations Incorporation Act raised by the Defendant many months ago have not been addressed at all.
The Plaintiff has been given sufficient time to prosecutor his claim in a timely manner. It is likely that the Plaintiff has no cause of action and his claim is dismissed.
Order $150.00 costs for today’s attendance – to be paid by the Plaintiff to the Defendant within 28 days.
(His Honour has sighted an email from Mr P. Boylan dated 27/7/18, and response from the defendant dated 28/7/18. These documents have been returned to the Plaintiff this day.)
Registrar to forward this day’s orders to both parties.
The Jurisdiction to hear applications of this kind is conferred by the Associates Incorporation Act in these terms:
61—Oppressive or unreasonable acts
(1)A member or former member of an incorporated association may apply to the Supreme Court or the Magistrates Court for an order under this section on the ground that the association has engaged, or proposes to engage, in conduct that is oppressive or unreasonable.
(2)An application by a former member must be made within six months of the cessation of the person's membership of the association.
(3)     A proceeding—
(a)     on an application made to the Magistrates Court under this section; or
(b) on an application made to the Supreme Court under this section but transferred under section 19 of the Magistrates Court Act 1991 to the Magistrates Court,
is a minor statutory proceeding for the purposes of the Magistrates Court Act       1991.
The application for review
In his Application to Review a Minor Civil Decision lodged in the District Court on 24 August 2018, Mr Atkins complains that the Magistrate failed to hear him on the merits, that ‘the other side refused to provide’ the Constitution to his lawyer in order to prepare the anticipated written advice and that he was denied ‘a fair opportunity for my lawyer to provide this’.
As a minor statutory proceeding, jurisdiction is conferred on this court to review a Magistrate’s decision by s 38(6) of the Magistrates Court Act 1991 (SA). The power to affirm or rescind is conferred by ss 38(7)(d)(i) and (ii) thereof. Since the dismissal of the action constituted a summary judgment against Mr Atkins, the power of remission under s 38(7)(d)(iii)(B) of the Magistrates Court Act becomes available to the review court.
It was quite wrong for the Magistrate to dispose of the action in the manner in which it was. In the first place, it was not open to compel Mr Atkins to ‘file and serve his lawyer’s legal opinion’. Legal advice is protected from production on fundamental and ancient grounds going back to Elizabethan times, under the principle of legal professional privilege: Waldron v Ward,[1] and Pratt Holdings Pty Ltd v Commissioner of Taxation.[2] Of course Mr Atkins was at liberty to waive that privilege, but he was entitled to obtain legal advice as to that prospect as well: Attorney-General (NT) v Maurice.[3]
[1] (1654) Style 449 (82 ER 853).
[2] (2004) 136 FCR 357, [69].
[3] (1986) 161 CLR 475.
In the second place (and quite apart from merits issues), there were antecedent questions of law for the Magistrate to resolve. These included whether Mr Atkins had locus standi to bring the proceedings, which By-Laws applied to circumstances of transference between Sub-Branches (a point raised by Mr Atkins), the implications of Mr Atkins not exercising a right of appeal to the State Branch, as well as the application of the limitation period of six months imposed by s 61(2) of the Associations Incorporations Act.
Each of these matters merited judicial resolution and determination, but were passed over in what amounted to a summary dismissal of the action. By going straight to the issues of merit and merely drawing the incomplete conclusion that ‘it is likely that the plaintiff has no cause of action’, the Magistrate failed to duly exercise and discharge the jurisdiction vested in him. This was an insufficient and hasty foothold on which to proceed to dismiss the claim.
In the third place, superimposed over these errors was the complete failure to accord procedural fairness. It is true enough that the matter had taken some time in the Magistrates Court between institution of the action in late January and dismissal in early August, but it was capable of resolution on the merits as it was. The delay was correctly taken into account by the Magistrate, but it did not absolve him of the obligation to accord procedural fairness, particularly when the direction to produce the legal advice was flawed in the first place.
Once again it has proven necessary to remind Magistrates exercising the minor civil claims jurisdiction, that the principles of natural justice apply, despite the statutory inquisitorial nature of its procedures: Uelese v Minister for Immigration and Border Protection.[4] An essential component of the requirements of procedural fairness is the necessity of allowing the parties a sufficient opportunity to put their case on the merits: Bayram v Benton (T/as Digital Dynatronics Australia),[5] Sanders v Esanda Finance Corporation Ltd.[6]
[4] (2015) 256 CLR 203, [102] and the authorities referred to in footnote (73).
[5] (1994) 117 FLR 414, 418.
[6] (Unreported Supreme Court of South Australia, 31 May 1996, S5631).
It follows that the decision of the Magistrate cannot stand on account of procedural irregularity and that the decision to dismiss the action must therefore be rescinded, pursuant to s 38(7)(d)(ii) of the Magistrates Court Act.
Review on the merits
Remission or resolution?
Given the unusual course of events in this matter and that the parties have appeared twice in the review proceedings, both times coming from Port Broughton, the better course is to proceed to hear the matter on the merits. This course serves to promote the legislative policy of simplicity and expedition when disposing of small claims matters in a ‘practical and efficient’ way: Wilczynski v District Court of South Australia.[7]
[7] [2016] SASC 51, [69], [2017] SASCFC 102, [109].
Locus standi
The first point taken by the Port Broughton Sub-Branch was that since Mr Atkins was not a member of the Sub-Branch at the relevant time, he was neither entitled to inspect the records of the Association, nor to bring the proceedings that he did. Unless the Rules or Constitution of an association specifically allows it, the general law acknowledges that only Committee Members are entitled to inspect the records of the association.[8]
[8] Dal Pont, Law of Associations, LexisNexis, Butterworths Australia 2018 para 8.23.
The latter point however cannot be accepted. The facility to challenge a decision of an Incorporated Association is permitted to ‘a member or former member of an incorporated association …’ s 61(1) of the Associations Incorporation Act. Furthermore the By-Laws of the Sub-Branch itself permit applications for membership by non-members. Equally, the process for applications for transfer, are premised on membership of a Sub-Branch.
Insofar as Mr Atkins suggested that the procedures laid down by the By-Laws for processing applications for transfer, were exclusively controlled by By-Law No 1, Sub Rule 8, that contention cannot be sustained. As noted earlier, By-Law 8 is facultative of the manner in which such applications are made. If his proposition was correct, there are otherwise simply no By-Laws governing the process or criteria for approving membership transfers. The mechanisms provided for processing applications for membership quoted earlier are in any case apt to control both non-member and Sub-Branch membership applications.
Available alternative remedy
It is true enough that By-Law No 1, Sub-Rule 5.7 permits an appeal in writing to the State Branch of the Returned & Services League of Australia to be made within 28 days of the notification of the relevant decision in writing to the State Branch. It is pertinent to note in this context that s 61(12) of the Associations Incorporation Act specifically provides that the court:
… may decline to hear a proceeding taken under this section if it considers that it would be more appropriate for the matter in dispute to be dealt with in another court or a tribunal constituted by law.

This sub-section gives statutory effect to well accepted principles governing the exercise of jurisdiction by way of judicial review, when there is a more appropriate Tribunal or Board to entertain the matter: Re Refugee Review Tribunal: Ex parte Aala.[9] Nevertheless it is a relevant factor in considering what orders are appropriately made, if any, pursuant to s 61(4) of the Associations Incorporation Act, should the application under s 61(1) succeed.
[9] (2000) 204 CLR 82, [56].
Application out of time
As seen already, s 61(2) of the Associations Incorporation Act requires an application ‘by a former member must be made within six months of the cessation of the person’s membership of the association’. The contention on behalf of the Port Broughton Sub-Branch is that as Mr Atkins transferred from that branch in 2011, he did not fall within the time limit prescribed by the section. A strict literal interpretation of s 61(2) would mean that applications for transfer between Sub-Branches are not protected from oppressive or unreasonable actions, or for that matter from a denial of natural justice.
The right to apply for transfer under By-Law No 1, Sub-Rule 8.1 is open to a ‘member of a Sub-Branch’. A ‘Member’ is defined as meaning ‘a person who has been admitted to any class of a Sub-Branch …’ in the Constitution of the Returned and Serving League of Australia (SA Branch). In his capacity as a member of an affiliated Sub-Branch, Mr Atkins thereby does not come within the meaning of a ‘formal member’ of an association for the purposes of s 61(2) of the Association Incorporation Act. This point therefore must fail.
Review on the merits
On the face of the materials referred to earlier it is clear when taken in isolation, that Mr Atkins was not given an opportunity to answer the allegations made against him, in as much as the particulars of the necessary apologies were never supplied. Section 61(1) of the Associations Incorporation Act provides that:
61—Oppressive or unreasonable acts
(1)A member or former member of an incorporated association may apply to the Supreme Court or the Magistrates Court for an order under this section on the ground that the association has engaged, or proposes to engage, in conduct that is oppressive or unreasonable.
Section 61(15) thereof proceeds as follows:
(15)    For the purposes of this section—
(a)     an association has engaged, or proposes to engage, in conduct that is oppressive or unreasonable if—
(i)it has taken action, or proposes to take action, to expel a member from the association in circumstances in which the action was, or would be, oppressive or unreasonable; or
(ii)it has engaged, or proposes to engage, in conduct that was, or would be, oppressive or unfairly prejudicial to, or unfairly discriminatory against, a member or was, or would be, contrary to the interests of the members as a whole; or
(iii)the rules of the association contain, or are proposed to be altered so that they will contain, provisions that are oppressive or unreasonable;
(b)     a reference to engaging in conduct includes a reference to refusing or failing to take action.
In this context oppression connotes the exercise of an authority or power in a burdensome or unjust manner, and it contemplates the notion of unfairness according to the ordinary standards of reasonableness and fair dealing: Popovic v Tanasijevic (No 5),[10] Pettit v South Australian Harness Racing Club Inc & Ors,[11] Millar v Houghton Table Tennis Sports Club.[12]
[10] (2000) 34 ACSR 1, [503]-[504].
[11] (2006) 95 SASR 543, [25]-[26].
[12] (2003) 225 LSJS 241; (2003) SASC 1, [135].
Quite apart from these provisions, s 40 of the Associations Incorporation Act incorporates the common law requirement to apply the rules of natural justice:
Division 4—Disputes
40—Rules of natural justice to be applied in relation to adjudication of dispute
Where the committee of an incorporated association exercises any power of adjudication that it may have in relation to a dispute between its members, or a dispute between itself and members of the association, the rules of natural justice must be observed.
This obligation imports into the decision-making process minimum standards of fairness, to be judged depending on the circumstances, the nature of the enquiry, the subject matter involved and the operative rules of the Association under which the adjudicative decision is made: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group,[13] National Companies and Securities Commission v News Corporation Ltd,[14] and Christian Revival Crusade Inc v Milne and Ors.[15]
[13] (1969) 122 CLR 546, 552-553.
[14] (1984) 15 CLR 296, 319-320.
[15] (2007) 252 LSJS 113, [100].
The apparent snub of Mr Atkins does however occur in a wider context. It is clear that relations between him and the Executive Committee of the Port Broughton Sub-Branch became somewhat fractious during the course of his earlier membership. It appears that in August 2011 Mr Atkins applied to transfer back to the Port Broughton Sub-Branch, but a motion to reject it was passed unanimously at a Special Meeting of it on 16 August 2011. The following day a letter was written to him in these terms:
1.Your previous behaviour at the Sub-Branch has at times been unacceptable and has caused other members to be uncomfortable in your presence, which in turn led to reduced attendance at functions as well as lost memberships.
2.Your past history of resigning from elected positions before the term of office has expired demonstrates your inability to work with others.
3.Your wide-spread public criticism of the Sub-Branch and elected members demonstrates a complete lack of regard for the Sub-Branch of which you now wish to once again be a part of.
4.In all, we, the Committee, believe that the acceptance of your application is not considered to be in the best interests of the Sub-Branch.
It also appears that Mr Atkins applied again in 2015 and was similarly rejected. He appealed to the State Branch of the Returned & Services League which dismissed it by means of a letter to him of 28 July 2015. It is evident that the Chief Executive Officer of the State Branch who was authorised to deal with such appeals by virtue of By-Law No 1, Sub-Rules 5.7 and 5.8, merely stated without conducting any formal process of decision making, that he was satisfied with the Committee’s conclusion ‘that you are not considered a fit and proper person to be admitted as a service member’.
Despite the conclusion that the Sub-Branch acted in breach of the rules of natural justice, the Court nevertheless retains wide discretionary powers under s 61(4) of the Associations Incorporation Act, and particularly under 61(4)(g) thereof, to ‘make any order that is … necessary to remedy any default, or to resolve any dispute’.
In this instance it is patently obvious that the relationship between the Sub-Branch, its Executive or Committee and Mr Atkins, is a divisive and if not an acrimonious one. Mr Atkins’ own presentation in the review process demonstrates that he has lost objectivity and presents as obsessed by process more than by substance. It might be supposed that he has a fair idea of what the apologies were about. Putting that consideration aside, it is equally obvious that the Sub-Branch has lost patience with him. Dealing with his demands has proven distractive and wasteful of its energies and resources in pursuing its core objectives. No doubt those present at the General Meeting on 17 December acted in good faith – so much is demonstrated by giving the olive branch of an apology.
These observations necessarily lead to the enquiry whether it is in the interests of the Sub-Branch in a relatively small Community as a whole, to remedy the procedural defects in dealing with the application to transfer by remitting the matter, or alternatively by refusing the application for review. This question involves weighing the importance of furthering the corporate objects of the Sub-Branch on the one hand and the disadvantage, disability or burden imposed on Mr Atkins on the other: Wayde v New South Wales Rugby League Limited,[16] Becker v Sturt Pistol and Shooting Club Inc,[17] Ridgway v Sporting Shooters’ Association of Australia Hunting & Conservation Branch (SA) Inc,[18] and Pettit v South Australian Harness Racing Club Inc & Ors:[19]
[16] (1985) 180 CLR 459, 466.
[17] (2014) SADC 10.
[18] [2015] SASC 7, [194]-[203].
[19] [2006] SASC 306, [26].
The courts do not ordinarily substitute their own assessment of the merits for a discretion exercised in good faith by an association’s committee: Tanasijevic v Popovic.[20] Mr Atkins remains fully entitled to enjoy the amenities of the Port Broughton Sub-Branch by dint of his membership of the Returned and Services League, South Australia. As a member of the Brighton Sub-Branch he is in a position to run for office of that Sub-Branch if he wants to.
[20] [2001] SASC 289, [37].
On the other hand to set aside the decision refusing his transfer application and require the Sub-Branch to reconsider, contains the distinct possibility of fostering further disharmony and further disruption of the orderly discharge of the activities and functions of the Sub-Branch. On balance these latter considerations outweigh any disadvantage to Mr Atkins.
Conclusion and Orders
In light this conclusion it is appropriate to make the following orders:
1.Rescind the decision of the Magistrate made on 3 August 2018 (including the order for costs made against Mr Atkins);
2.In lieu thereof order that the application for relief under s61(1) of the Associations Incorporation Act be dismissed.
Given the errors made in the decision-making process and in the Magistrates Court, the Port Broughton Sub-Branch of the Returned and Services League of Australia is ordered to pay Mr Atkins the lodgement fee in this court of $163.00.
As the parties were unrepresented in both courts, it is not appropriate to grant Mr Atkins his legal fees as sought in the application for review: s 38(5) Magistrates Court Act.