Bagga v The Sikh Association of Western Australia Inc

[2012] WASC 193

BAGGA -v- THE SIKH ASSOCIATION OF WESTERN AUSTRALIA INC [2012] WASC 193

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 193
Case No:	CIV:1764/2012	Heard:	29 MAY 2012
Coram:	LE MIERE J	Delivered:	12/06/12
No of pages:	15	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	BALDEV SINGH BAGGA DALJIT SINGH DHILLON DIDAR SINGH CHEEMA INDERJIT SINGH SEKHON JAGJIT SINGH PANNU KANWALJIT SINGH MAHESH INDER SINGH MOHAN VIJ PARAMJIT SINGH NAGRA ON THEIR OWN BEHALF AND ON BEHALF OF THE MEMBERS OF THE SIKH ASSOCIATION WA INC OTHER THAN THE SECOND DEFENDANTS THE SIKH ASSOCIATION OF WESTERN AUSTRALIA INC ZORAWAR SINGH GILL TARUN PREET SINGH ARMARJEET SINGH KULWINDER SINGH SIDHU DARSHAN SINGH SIDHU SHINGARA SINGH HARMOHINDER SINGH DHAMMU HARMINDER KAUR TARLOCHAN SINGH JASPAL SINGH SIDHU HARMEEK SINGH ARVINDER SINGH MANIK HARBIR SINGH
Catchwords:	Incorporated association Action justiciable Contractual relationship Validity of requisition notice Turns on own facts
Legislation:	Associations Incorporations Act 1987 (WA) Associations Incorporations Act 2009 (NSW) Corporations Act 2001 (Cth) National Trust of Australia (NSW) Act 1960 (NSW)
Case References:	Cameron v Hogan (1934) 51 CLR 358 Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 Islamic Council of South Australia Inc v Australian Federation of Islamic Councils Inc [2009] NSWSC 211 Kovacic v Australian Karting Association (Qld) Inc [2008] QSC 344 National Roads and Motorists' Association Ltd v Parker (1986) 6 NSWLR 517 National Roads and Motorists' Association Ltd v Scandrett [2002] NSWSC 1123; (2002) 43 ACSR 401 Plenty v Seventh Day Adventist Church of Port Pirie [2009] SASC 10 Rush v WA Amateur Football League (Inc) [2007] WASCA 190; (2007) 35 WAR 101 Stanham v The National Trust of Australia (New South Wales) (1989) 15 ACLR 87

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : BAGGA -v- THE SIKH ASSOCIATION OF WESTERN AUSTRALIA INC [2012] WASC 193 CORAM : LE MIERE J HEARD : 29 MAY 2012 DELIVERED : 12 JUNE 2012 FILE NO/S : CIV 1764 of 2012 MATTER : Rules of the Supreme Court 1971 Order 58 rule 14 BETWEEN : BALDEV SINGH BAGGA

DALJIT SINGH DHILLON
DIDAR SINGH CHEEMA
INDERJIT SINGH SEKHON
JAGJIT SINGH PANNU
KANWALJIT SINGH
MAHESH INDER SINGH
MOHAN VIJ
PARAMJIT SINGH NAGRA ON THEIR OWN BEHALF AND ON BEHALF OF THE MEMBERS OF THE SIKH ASSOCIATION WA INC OTHER THAN THE SECOND DEFENDANTS
Plaintiffs

AND

THE SIKH ASSOCIATION OF WESTERN AUSTRALIA INC
First Defendant

ZORAWAR SINGH GILL
TARUN PREET SINGH
ARMARJEET SINGH
KULWINDER SINGH SIDHU
DARSHAN SINGH SIDHU

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SHINGARA SINGH
HARMOHINDER SINGH DHAMMU
HARMINDER KAUR
TARLOCHAN SINGH
JASPAL SINGH SIDHU
HARMEEK SINGH
ARVINDER SINGH MANIK
HARBIR SINGH
Second Defendants

Catchwords:

Incorporated association - Action justiciable - Contractual relationship - Validity of requisition notice - Turns on own facts

Legislation:

Associations Incorporations Act 1987 (WA)

Associations Incorporations Act 2009 (NSW)
Corporations Act 2001 (Cth)
National Trust of Australia (NSW) Act 1960 (NSW)

Result:

Application dismissed

Category: B

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Representation:

Counsel:

Plaintiffs : Mr N D C Dillon
First Defendant : Mr M W Fatharly
Second Defendants : Mr M W Fatharly

Solicitors:

Plaintiffs : Equitas Lawyers
First Defendant : Kott Gunning
Second Defendants : Kott Gunning

Case(s) referred to in judgment(s):

Cameron v Hogan (1934) 51 CLR 358
Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95
Islamic Council of South Australia Inc v Australian Federation of Islamic Councils Inc [2009] NSWSC 211
Kovacic v Australian Karting Association (Qld) Inc [2008] QSC 344
National Roads and Motorists' Association Ltd v Parker (1986) 6 NSWLR 517
National Roads and Motorists' Association Ltd v Scandrett [2002] NSWSC 1123; (2002) 43 ACSR 401
Plenty v Seventh Day Adventist Church of Port Pirie [2009] SASC 10
Rush v WA Amateur Football League (Inc) [2007] WASCA 190; (2007) 35 WAR 101
Stanham v The National Trust of Australia (New South Wales) (1989) 15 ACLR 87


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1 LE MIERE J: The first defendant, The Sikh Association of Western Australia Inc (SAWA), is an association incorporated under the Associations Incorporations Act 1987 (WA) (the Act). The second defendants are the members of the executive committee of SAWA (EXCO). The plaintiffs are members of SAWA. On 25 February 2012 the plaintiffs delivered to SAWA a notice to convene a Special General Meeting (SGM) of SAWA within 45 days to consider four matters (the Requisition Notice). On 22 March 2012 the first named second defendant who is the president of SAWA wrote to the first named plaintiff stating that the Requisition Notice was not in order, that it did not conform to SAWA Constitution rules 10.4 and 13.1, and that the first named plaintiff may submit a notice which fulfils the SAWA Constitution requirements. A SGM has not been convened in accordance with the Requisition Notice. The plaintiffs seek relief in the form of a declaration that the second defendants are in breach of their duties and the SAWA Constitution by failing to convene a SGM and an order requiring the second defendants to issue a notice convening a SGM.

2 The fifth named plaintiff, Mr Pannu, has sworn that the principal reason the Requisition Notice was issued relates to the position of priest to the Canning Vale Sikh Temple. The incumbent priest, Giani Balbir Singh (Giani Ji), has served as priest at the temple for about 10 years. His engagement is under a contract of employment that will expire on or about 30 June 2012. Mr Pannu claims that a majority of members of SAWA would prefer the incumbent priest's contract of employment to be extended for at least another year and for no replacement priest to be appointed. However, EXCO has taken steps to appoint a new priest from overseas to replace the incumbent priest when his contract expires.

History of the proceedings

3 The proceedings were commenced by notice of originating summons filed 3 May 2012. On 25 May 2012 the plaintiffs filed a chamber summons seeking an interlocutory injunction restraining the defendants from taking any steps to further the process of replacing the existing appointee as priest and requiring the defendants to ensure that the position of the existing appointee as priest is maintained. The chamber summons came on for hearing on 29 May 2012. Upon the defendants' undertaking not to take any steps to further the process of replacing the existing appointee as priest and to ensure that the position of the existing appointee as priest was maintained, I gave directions for the hearing of the interlocutory injunction on 30 May 2012. The application for interlocutory injunction came on for hearing on 30 May 2012. With the

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consent of the parties I proceeded to hear the originating summons rather than the application for interlocutory injunction.

The issues

4 There are two principal issues. The first is whether the plaintiffs have any rights that entitle them to a declaration or an injunction to enforce the SAWA Constitution. The defendants submit that the Constitution of SAWA does not create enforceable contractual rights and duties between members or between the Association or its officers and members. The second issue is whether the Requisition Notice conforms with the SAWA Constitution and, upon the proper construction of the Constitution, requires a SGM to be called.

Is the plaintiffs' action justiciable?

5 The defendants rely on Cameron v Hogan (1934) 51 CLR 358. In 1931 the Premiers of the States and the Commonwealth agreed upon a financial austerity plan known as the Premiers' Plan. Hogan was the Australian Labour Party (ALP) Premier of Victoria. The Victorian branch of the ALP directed him to repudiate the Premiers' Plan. Hogan ignored this direction. The Victorian ALP expelled him. Hogan brought an action against the executive officers of the party, an unincorporated association, seeking a declaration that he was still a member of the association, that his expulsion was wrongful and an injunction to restrain his exclusion from the association and damages. Hogan invoked the jurisdiction of the court on two bases - an action for breach of trust or breach of contract. First, he alleged that the Party committed a breach of trust depriving him of a share in its property by expelling him contrary to its rules. The High Court held that to maintain that action the plaintiff must show a right to personal enjoyment of the association's assets. If this element is missing there is no interference with the plaintiff's property and the breach of trust action is not available to challenge an expulsion or other personal grievance. The court held that the Party's property was not held in trust for the members themselves but for the advancement of an impersonal political agenda. Hogan's action for breach of trust failed.

6 The second basis of Hogan's claim was that his expulsion amounted to a breach of the contract between the members and officers of the Party to abide by the rules of the association. The High Court held that the Party's rules were a social agreement and not an enforceable contract because there was no evidence that members of the Party intended to make their rules legally enforceable. Rich, Dixon, Evatt and McTiernan JJ said at 373:

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It can seldom be the true meaning of the rules of any large association of such a kind that those undertaking office thereby enter into a contract with each and every member that they will execute the office in strict conformity with the rules.

Their Honours reached their decision after undertaking a detailed consideration of the association, its objects and members. Its members numbered many thousands and consisted of members of trade unions and branch members. There were 170 branches. Their Honours considered the association's structure and its internal processes. Nevertheless, the plurality also made general observations about what they called voluntary associations. At 370 - 371 their Honours said:

There are, however, reasons which justify the statement that, at common law as well as in equity, no actionable breach of contract was committed by an unauthorized resolution expelling a member of a voluntary association, or by the failure on the part of its officers to observe the rules regulating its affairs, unless the members enjoyed under them some civil right of a proprietary nature. As a generalization it expresses the result produced by the application of a number of independent legal principles: it is not in itself the enunciation or explanation of a rule or rules of the common law. One reason which must contribute in a great degree to produce the result is the general character of the voluntary associations which are likely to be formed without property and without giving to their members any civil right of a proprietary nature. They are for the most part bodies of persons who have combined to further some common end or interest, which is social, sporting, political, scientific, religious, artistic or humanitarian in character, or otherwise stands apart from private gain and material advantage. Such associations are established upon a consensual basis, but, unless there were some clear positive indication that the members contemplated the creation of legal relations inter se, the rules adopted for their governance would not be treated as amounting to an enforceable contract.

7 In Rush v WA Amateur Football League (Inc) [2007] WASCA 190; (2007) 35 WAR 101 the appellant had claimed a declaration that the decision of the WA Amateur Football League (WAAFL) to suspend him from playing, coaching or officiating for the remainder of the season and the whole of the following season was void and of no effect. Pullin JA, with whom Wheeler JA agreed, confirmed that the court was bound by to follow Cameron v Hogan. Pullin JA upheld the finding of the trial judge that there was no contract between the appellant and the WAAFL because although there had been mutual promises there was no intention to create contractual relations [36]. Pullin JA held that in those circumstances the court 'has no jurisdiction to decide issues arising out of the consensual but non-contractual relationship between the parties' [37]. Buss JA said that
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the critical issue in relation to jurisdiction was whether the appellant and the WAAFL had made an agreement which embodied mutual promises to observe and be bound by the WAAFL's constitution and bylaws and, if so, whether the parties intended to create legally enforceable contractual relations. Buss JA went on to find that there was a 'consensual compact' between the appellant and the WAAFL but that the compact was not intended to give rise to legally enforceable contractual relations.

8 In Plenty v Seventh Day Adventist Church of Port Pirie [2009] SASC 10 the Full Court of the Supreme Court of South Australia concluded, despite earlier decisions in related litigation to the contrary, that no contractual intent was to be found in the disciplinary provisions of the church manual of the Seventh-Day Adventist Church. Gray J, with whom Vanstone and Anderson JJ agreed, said:

Having reviewed the manual, I do not consider that contractual rights and duties enforceable in a court of law were created. It appears that the manual and amendments were, and continued to be, prepared by what was described as the overarching Church in the United States of America. The Port Pirie Church did not prepare the manual and any amendments … The tenor of the manual is not expressed in terms that one would expect of a contract, and the brief references to legal proceedings appear to be designed to discourage such proceedings, and make reference to the Church creating dispute resolution mechanisms [43].

9 SAWA, unlike the association in Cameron v Hogan, is incorporated. The incorporation of the association is one factor to be taken into account in determining objectively whether the association and its members intended the Constitution to constitute a legally binding and enforceable contract between the members and the association. However, the mere fact of incorporation is insufficient of itself to lead to the conclusion that the Constitution has legal effect: see Kovacic v Australian Karting Association (Qld) Inc [2008] QSC 344 [27] - [28] and Islamic Council of South Australia Inc v Australian Federation of Islamic Councils Inc [2009] NSWSC 211 [34] (Brereton J). This case is to be contrasted with those involving associations incorporated under legislation which provides that the association's constitution binds the association and its members as if it were a contract between them: see eg Associations Incorporation Act 2009 (NSW) s 26(1).

10 In Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 the High Court held that a minister of religion may be engaged under a contract of employment to perform spiritual duties and that there is no presumption of law in respect of the

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engagement of a minister of religion that the parties do not intend to form contractual relations. Gaudron, McHugh, Hayne and Callinan JJ said that because the search for the intention to create contractual relations requires an objective assessment of the state of affairs between the parties the circumstances which might properly be taken into account in deciding whether was a relevant intention are so varied as to preclude the formation of any prescriptive rules [25]. The plurality doubted the utility of reference to presumptions in the context of intention to create legal relations [26] and warned that resort to presumptions may lead to unwarranted assumptions [28]. Their Honour made the following reference to Cameron v Hogan:

As was pointed out in Cameron v Hogan, there are at least two difficulties that arise if action is brought to enforce a contract said to have been made with an unincorporated body. First, there is difficulty in properly constituting the action by sufficiently identifying all the proper parties to the suit (difficulties that may not always be met by constituting the action as a representative proceeding). Secondly, there is the further difficulty of identifying who it is who is said to be responsible for the breach which is alleged. Are all members of the body to be said to be in breach of the contract; are only some to be said to be in breach? These are not mere formal difficulties. They invite close attention to identifying the contract that is alleged to have been made and, in particular, the identification of its parties [33].

In determining whether the parties have voluntarily assumed a legally enforceable duty the court should take account of the subject matter of the agreement, the status of the parties to it, their relationship to one another and other surrounding circumstances: Ermogenous [25].

11 Having objectively assessed the state of affairs between the Association and its members I find that the Association and its members intended to create a legally enforceable duty to abide by and be bound by the rules of the Association relating to the calling and holding of a SGM.

12 First, the Association is incorporated. That is relevant to, although not determinative of, whether the members intended to create legal relations between the Association and its members and between themselves. Second, the Association is not a church nor is it concerned only with religious or spiritual matters and with the relationship of members amongst themselves. The objects of the Association include to serve as a vehicle for the promotion and advancement of the aspirations of the Sikh community; to provide teaching and library facilities for the promotion of the Punjabi language; to provide and organise recreational, sporting and social activities for the Sikh community including

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incorporation of other bodies sharing similar objectives; and to foster good will and understanding between the Sikh community and the wider Australian community. Third, and most importantly, the members have agreed to unconditionally accept the Association rules and undertaken to abide by them. Rule 7.1(b) provides that a person is taken to do so by submitting an application for membership. Schedule C to the Constitution sets out a declaration to be included in the membership. The declaration by the applicant includes an undertaking to abide by the Constitution and any regulations of the Association at all times. Fourth, the powers of SAWA set out in its Constitution show that the members expect or intend that the Association will acquire and hold property and members shall pay subscription fees. Fifth, the Constitution contains detailed provisions relating to the membership of the Association, management of its affairs and control of its funds and property. They are expressed in a way that is consistent with a document intended to have legal effect.

13 I conclude that the Constitution of SAWA, and in particular the provisions of the Constitution relating to calling and holding a SGM and removing members of the EXCO from office give rise to legally enforceable duties under a contract or contracts between the Association and its members by which the Association and its members agree to abide by the Constitution.

Validity of requisition notice

14 The second issue is whether upon the proper construction of the Constitution and in the events which have happened, there is a valid request for the calling of a SGM and the EXCO has a duty to convene a special general meeting.

15 Rule 13.1 provides for a special general meeting to be convened:

a. A SGM may be convened by the EXCO of its own volition or within 45 days of a requisition in writing from not less than 60 members with voting rights and signed by them for the purpose specified in that request.

b. The Secretary must give to all members not less than 14 days notice of an SGM and the Notice must specify the venue, date and time of the meeting and the business to be transacted at the SGM.

16 The Requisition Notice satisfies the formal requirements of r 13.1. It is a requisition in writing from not less than 60 members with voting rights and is signed by them.

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17 The defendants submit that the Requisition Notice is not a valid requisition because the purposes specified in the notice are not valid purposes. The purposes specified in the Requisition Notice are:

1. That the employment contract of Giani Ji is extended for one more year as a status quo.

2. That a five member sub-committee be appointed to develop guidelines for the future appointment of Giani Ji's position consisting of members to be elected at the SGM by inviting nominations from the floor.

3. That SAWA resolves to complete the requirements of the City of Gosnells in respect to the car park.

4. That SAWA resolves that the current EXCO has lost Sangat's confidence and accordingly present EXCO not to continue for the rest of the term

The defendants say that those are not purposes for which a SGM may be called and hence the Requisition Notice is incompetent.

Resolutions concerning incumbent priest

18 The first two purposes of the SGM stated in the Requisition Notice are to extend the employment contract of the incumbent priest and to appoint a subcommittee to develop guidelines for the future appointment of the priest's position. The defendants say, in effect, that those are matters of management exclusively vested in EXCO and it is not competent for the members to deal with those matters in a general meeting.

19 The Constitution does not expressly vest in the EXCO the general power to manage the Association. However, r 10.2.3(a) vests the executive power and authority of SAWA in the President and office bearers of the EXCO. The executive power and authority is the authority to manage the affairs of the Association. Rule 10.2.3(d)(i) states that that executive authority and power includes responsibility for the appointment and dismissal of all employees and agents of SAWA and determining their wages and terms of engagement. The first two purposes of the SGM stated in the Requisition Notice are concerned with the appointment and dismissal of an employee. Those matters are entrusted by the constitution to EXCO.

20 Members of a company cannot use the statutory powers to requisition members' meetings nor the power to demand that a motion be

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put to a members' meeting if the subject matter is a matter of management exclusively vested in the directors: National Roads and Motorists' Association Ltd v Parker (1986) 6 NSWLR 517. In that case McLelland J held that it is no part of the function of the members of a company in general meeting to express an opinion, by resolution, as to how a power vested by the company's Constitution in the directors ought to be exercised by them. In Stanham v The National Trust of Australia (New South Wales) (1989) 15 ACLR 87 Young J held that the principle applied by McLelland J in NRMA v Parker applied to the National Trust of Australia, a non-profit organisation incorporated under the National Trust of Australia (NSW) Act 1960. Young J held that where the management of a corporation is vested in its council by statute it is not competent for the members to deal with the same matter in a general meeting. For the same reason I find that it is not competent for the members of SAWA to deal with the first and second items of business, or purposes, stated in the Requisition Notice at a general meeting.

Car park matter

21 The third item of business specified in the Requisition Notice is that SAWA resolves to complete the requirements of the City of Gosnells in respect to the car park. That is a matter that falls within the executive power and authority of EXCO. Rule 10.2.3(d)(iii) and (iv) in effect reserve to a general meeting the power to impose conditions of approval for the incurring of expenditure on any approved SAWA project and to place a limit on the expenditure to be incurred on any project or programme. However, completing the requirements of the City of Gosnells in respect to the car park does not fall within those powers reserved to a general meeting. That is a matter which falls within the executive power and authority which is exclusively conferred by the constitution on EXCO. It is not competent for the members of SAWA to deal with the third purpose or item of business specified in the Requisition Notice at a general meeting.

Removal of EXCO

22 The fourth purpose or item of business specified in the Requisition Notice is:

That SAWA resolves that the current EXCO has lost Sangat's confidence and accordingly present EXCO not to continue for the rest of the term.

It is common ground between the parties that the object of the requisitioners in bringing forward this item of business is to remove the

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members of EXCO from office. The question is whether it is competent for the members of SAWA to remove the members of EXCO from office at a general meeting.

23 The EXCO consists of the president, vice president, secretary, two assistant secretaries, treasurer, two assistant treasurers and six general members. Each of them has separate powers and responsibilities. Nevertheless, it does not necessarily follow that a separate resolution is required to remove each director. In National Roads and Motorists' Association Ltd v Scandrett [2002] NSWSC 1123; (2002) 43 ACSR 401 members of NRMA requisitioned a meeting to consider the removal of a group of directors under the Corporations Act 2001 (Cth) s 203D. Palmer J rejected the argument of NRMA that a director can be removed only by a resolution confined in terms to the removal of that particular director and held that a motion that a group of directors be removed was valid. This case may be distinguishable from NRMA Ltd v Scandrett because r 15(e) provides that a Special Resolution is required for the removal of the president, vice president, secretary and treasurer and a Special Resolution shall be decided by a majority of not less than three fourths of the members present and entitled to vote. That is, assuming that it is competent for the members to remove members of EXCO at a general meeting, a different majority is required to remove the president, vice president, secretary and treasurer than to remove the other members of EXCO. I do not think that makes the motion incompetent. If the motion was passed by the requisite three fourths majority then it would be effective to remove all members of EXCO. If it was passed by a simple majority but not by a three fourths majority then the resolution would not be effective to remove any member of EXCO. That is because where the motion is to remove a group of members it is ineffective to remove only some of the members. That is because those voting for the motion voted to remove all of the members not some of them. However, that does not render the motion incompetent. The fourth item of business in the Requisition Notice is not incompetent for that reason.

24 The essential issue concerning the proposed resolution to remove the current EXCO is whether or not the members have power to do that at a SGM. The defendants argue that the power to remove members of EXCO is conferred exclusively on EXCO.

25 Rule 10.4 deals with removal from office. It is in the following terms:

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a. Any member of the EXCO may be removed from the EXCO for conduct detrimental to the interests and good name of SAWA.

b. On the recommendation of at least 2/3rd of the members of the EXCO, the member in question shall be provided written notice detailing the conduct complained about, and be asked to show cause within 14 days why removal should not be effected.

c. If the member presents a satisfactory response the EXCO may terminate the action.

d. If the members response is not acceptable then the EXCO, if requested by the aggrieved member, shall:


i. In the case of President, Vice President, Secretary or Treasurer, call an SGM to consider removal. A s/3rd majority of all members present and voting at the SGM shall be required to effect a removal. If the removal is endorsed then the vacant position should be filled by nominees present at the SGM by means of a poll. The criteria for nomination shall remain as per the requirements of the respective position.

ii. For all members other than those defined in (i) above, appoint a Commission to function in accordance with Rule 8.4(d) to (h). If removal is endorsed by the Commission, the EXCO may appoint another non-elected member to replace a removed member, however, in accordance with the criteria defined in for the respective position.

26 Ford's Principles of Corporations Law, loose leaf edition, March 2012, states at [7.230] that in a proprietary company the members in general meeting cannot by majority remove a director unless the constitution or, if the company is one to which the replaceable rules apply, s 203C of the Corporations Act, confers that power. The learned authors say that any attempt to remove a director without that power would be an attempt to vary the contract as between members and between the director and the company that the directors shall hold office for the period contemplated by the constitution. In my view the same principle applies to an association incorporated under the Act where the association and the members are contractually bound to abide by the constitution or rules.

27 The Act does not confer upon the members in general meeting the power to remove from office the members of the committee or other body having the management of the association. Section 16 of the Act requires the rules of an association to include provision in respect of each of the

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matters that are specified in sch 1. Those matters include provision for the terms of office of members of the committee and the grounds on which, or reasons for which, the office of a member of the committee shall become vacant. There is no requirement that the rules make provision for members in general meeting to remove members of the committee from office. The members in general meeting have that power if and only if it is conferred upon them by the rules or constitution of the association.

28 The Constitution of SAWA provides in effect that the members of EXCO are to hold office from one annual general meeting to the next. Rule 10.4 deals with removal from office. Rule 10.4(a) provides that any member of the EXCO may be removed from the EXCO for conduct detrimental to the interests and good name of SAWA. The removal is initiated by the members of the EXCO giving the member in question written notice of the conduct complained about and asking the member to show cause why removal should not be affected. If the member's response is not acceptable then in the case of the president, vice president, secretary or treasurer the EXCO calls an SGM to consider removal. A two thirds majority of all members present and voting is required to effect a removal. For all other members EXCO appoints a commission to determine upon removal. Rule 10.4 has no application in this case. There is no other provision in the Constitution that expressly confers upon members in general meeting the power to remove members of EXCO from office.

29 The plaintiffs submit that the power of members in general meeting to remove members of EXCO from office is to be inferred from r 15(e). Rule 15 deals with motions and resolutions. Rule 15(e) provides that motions to be voted upon as special resolutions shall be decided by a majority of not less than three fourths of the members present and entitled to vote. Special Resolutions are required for a number of specified matters. The specified matters include the removal of the president, vice president, secretary and treasurer. The plaintiffs submitted that the implication from that rule is that the president, vice president, secretary and treasurer may be removed from office by a special resolution at a general meeting.

30 The defendants submitted that the reference in r 15(e) to a resolution to remove the president, vice president, secretary or treasurer is a reference to a resolution to remove the president, vice president, secretary or treasurer at a general meeting in accordance with r 10.4(d)(i). It may be argued that the defendants' construction of r 15(e) gives rise to an

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inconsistency between r 10.4(d) and r 15(e) insofar as r 10.4(d) requires a two thirds majority whereas r 15(e) requires a three quarters majority. The plaintiffs say that that inconsistency is avoided by construing the rules so that r 15(e) applies to motions to remove the president, vice president, secretary and treasurer at a special general meeting otherwise than for the reasons specified in, and in accordance with, the procedure specified in r 10.4. However, I do not accept that argument. There is strictly not an inconsistency between r 10.4(d)(i) and r 15(e). The former requires a two thirds majority of all members present and voting. The latter requires a three fourths majority of the members present and entitled to vote. Thus, r 15(e) requires a majority of three fourths of the members present and entitled to vote in addition to r 10.4(d)(i) requiring a majority of two thirds of members present and voting. Of course, if a resolution is decided by a three fourths majority of members present and entitled to vote it will necessarily have been passed by a majority of two thirds of members present and voting. However, there is a not a direct inconsistency between the two provisions.

31 A general meeting does not have power to remove a member of EXCO unless the Constitution confers that power expressly or by necessary implication. I do not find that the necessary implication is to be found in r 15(e).

32 I conclude that the members of the Association do not have power to remove the members of EXCO at a SGM, other than in accordance with the procedure prescribed in r 10.4. The fourth item of business specified in the Requisition Notice is incompetent.

Conclusion

33 It is not competent for the members in a general meeting to deal with any of the items of business specified in the Requisition Notice. Where the purposes for which a meeting has been requisitioned cannot lawfully be effectuated at such a meeting, EXCO is entitled to decline to act on the requisition: NRMA v Parker; Stanham v National Trust of Australia (NSW). Since none of the items of business specified in the Requisition Notice could validly be dealt with at a general meeting the law does not require that EXCO, or the secretary, convene a meeting to consider those matters.

34 The plaintiffs' application by originating summons shall be dismissed.