Bejawn v The Sikh Association of Western Australia Inc - [2023] WASC 152

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   BEJAWN -v- THE SIKH ASSOCIATION OF WESTERN AUSTRALIA INC [2023] WASC 152
CORAM:   SEAWARD J
HEARD:   27 APRIL 2023
FURTHER WRITTEN SUBMISSIONS FILED ON
4 MAY 2023

DELIVERED          :   16 MAY 2023
PUBLISHED           :   16 MAY 2023
FILE NO/S:   CIV 1266 of 2023
BETWEEN:   HARBHAJAN SINGH BEJAWN
Plaintiff
AND
THE SIKH ASSOCIATION OF WESTERN AUSTRALIA INC
First Defendant
JASKIRAN KAUR CHEEMA
Second Defendant
PARAMJIT SINGH NAGRA
Third Defendant
RAJINDER SINGH BASSI
Fourth Defendant
DALJIT SINGH DHILLON
Fifth Defendant
SIMRAT SINGH MALHOTRA
Sixth Defendant
RANI KAUR SAMRA
Seventh Defendant
PARAMJIT KAUR TUR
Eighth Defendant
ROWINDERJEET KAUR
Ninth Defendant
BALJIT KAUR SIDHU
Tenth Defendant
PUSHPINDER PAL SINGH
Eleventh Defendant
BHUPINDER SINGH BRAR
Twelfth Defendant
PREM SINGH JUDGE
Thirteenth Defendant
AMARJIT SINGH
Fourteenth Defendant
JUGINDER KAUR
Fifteenth Defendant
RANJIT SINGH
Sixteenth Defendant

Catchwords:

Incorporated associations - Construction of constitution - Principles of construction of the rules of a voluntary association - Purported removal of President pursuant to constitution - Whether a special general meeting is required to remove president - Declaratory relief - Factors relevant to the court’s exercise of discretion - Whether the declaration sought are consistent with the appropriate construction of the Constitution

Legislation:

Associations Incorporated Act 1987 (WA)

Rules of the Supreme Court 1971 (WA), O 58 r 10
Supreme Court Act 1935 (WA), s 25(6)

Result:

Declarations made

Category: B

Representation:

Counsel:

Plaintiff	:	N Ekanayake
First Defendant	:	D W Thompson
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance
Eighth Defendant	:	No appearance
Ninth Defendant	:	No appearance
Tenth Defendant	:	No appearance
Eleventh Defendant	:	No appearance
Twelfth Defendant	:	No appearance
Thirteenth Defendant	:	No appearance
Fourteenth Defendant	:	No appearance
Fifteenth Defendant	:	No appearance
Sixteenth Defendant	:	No appearance

Solicitors:

Plaintiff	:	Bennett
First Defendant	:	Temperance Legal
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance
Eighth Defendant	:	No appearance
Ninth Defendant	:	No appearance
Tenth Defendant	:	No appearance
Eleventh Defendant	:	No appearance
Twelfth Defendant	:	No appearance
Thirteenth Defendant	:	In person
Fourteenth Defendant	:	In person
Fifteenth Defendant	:	No appearance
Sixteenth Defendant	:	In person

Cases referred to in decision:

Bagga v The Sikh Association of Western Australia Inc [2012] WASC 193
Barboutis v The Kart Centre Pty Ltd [No 2] [2020] WASCA 41
Cockman v Gorman [2023] WASCA 44
Dawkins v State Secretary, Australian Labor Party (WA Branch) (No 2) [2022] WASC 117
Echunga Football Club Inc v Hills Football League Inc [2014] SASC 201
Electricity Generation and Retail Corporation v EIT Kwinana Partner Pty Ltd [2022] WASCA 3
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Kaur v Sikh Gurdwara Perth (Inc) [2017] WASC 270
Kavanagh v Pine Valley Pistol Incorporated [2020] WASAT 60
Setka v Carroll [2019] VSC 571

Table of Contents

Introduction

Role of the parties

Agreed facts and evidence

Agreed facts

Evidence

Declarations sought

Legal principles

Justiciability

Scope of power to grant declaratory relief

Construction of written contracts

Constitution

Parties' submissions

Plaintiff's submissions - declaration 2.7

SAWA's submissions - par 2.7

Alternative construction

Plaintiff's submissions - par 2.7A

SAWA's submissions - par 2.7A

Disposition - construction of rule 10.4

Discretionary factors and evidence

Parties' submissions regarding other discretionary matters raised by SAWA

Rulings on objections

Disposition - discretionary factors raised by SAWA

Conclusion

Schedule A

SEAWARD J:

Introduction

The first defendant, The Sikh Association of Western Australia Inc (SAWA), is an association incorporated under the Associations Incorporation Act 1987 (WA). The second defendants were (as at the date of the filing of the originating summons) members of the executive committee of SAWA (ExCo).
The plaintiff, Mr Harbhajan Singh Bejawn, was elected to the position of President of SAWA at the annual general meeting held on 24 September 2022.
In January 2023 some members of ExCo took steps, purportedly pursuant to the constitution of SAWA, to remove the plaintiff as the President of SAWA.
The plaintiff has filed an originating summons seeking declaratory relief to the effect that he has not been lawfully removed as President of SAWA and therefore remains the President.
The resolution of the originating summons involves consideration of the proper construction of rule 10.4 of the SAWA constitution.

Role of the parties

The plaintiff and SAWA were both represented by counsel at the hearing of the originating summons.
Affidavits of service were filed by the plaintiff deposing to service on all of the remaining defendants. Some of those defendants filed notices of intention to abide by the decision of the court (save as to costs), some defendants filed memoranda of appearance and some defendants did not file any appearances. Schedule A to these reasons details the position of each of the defendants.
Aside from SAWA, only the 13^th, 14^th and 16^th defendants appeared and made submissions at the hearing of the originating summons.[1] They were not represented by counsel. These defendants did not make submissions on the appropriate construction of the constitution but submitted that the plaintiff had been wrongly dismissed as President.[2]
[1] ts 24.
[2] ts 79, 81, 83.

Agreed facts and evidence

Agreed facts

The following facts were agreed as between the plaintiff and SAWA and not put in dispute by the other participating defendants:[3]
[3] Statement of Agreed Facts (Exhibit 3).
(a)SAWA is an "incorporated association" within the meaning of that term as defined under the Associations Incorporation Act 2015 (WA);
(b)SAWA and its members are subject to the rules contained in the document titled 'Constitution of the Sikh Association of Western Australia Inc (SAWA) [2018 Edition]' (Constitution);
(c)SAWA's annual general meeting for the year ending 30 June 2022 was held on 24 September 2022;
(d)At that annual general meeting, declaration of the election results and appointment of officer bearers of ExCo were made as follows:
(i)The plaintiff as President;
(ii)The second defendant as Vice President;
(iii)The thirteenth defendant as Secretary;
(iv)The fourteenth defendant as Assistant Secretary;
(v)The fifteenth defendant as Assistant Secretary;
(vi)The third defendant as Treasurer;
(vii)The fourth defendant as Assistant Treasurer;
(viii)The sixteenth defendant as Assistant Treasurer; and
(ix)The remaining defendants as committee members;
(e)On 14 January 2023, the plaintiff was issued with a letter signed by the second to twelfth defendants on behalf of the ExCo and titled 'RE: SHOW CAUSE NOTICE IN ACCORDANCE WITH SAWA RULES 10.4(d)' (Show Cause Notice);
(f)The Show Cause Notice detailed allegations made against the plaintiff and requested that the plaintiff "show cause within 14 days";
(g)The plaintiff did not provide a written response to the Show Cause Notice within 14 days of its issue;
(h)On 2 February 2023, a letter was sent by the second to twelfth defendants, on behalf of the ExCo, to the plaintiff notifying him that he had: '…failed to provide a satisfactory response, as required under rule 10.4(e) of the SAWA Constitution, and hence [he is] being removed immediately, on receipt of this email, as President of SAWA ExCo as well as a member of the SAWA ExCo in accordance with rule 10.4(d) of the SAWA Constitution'; and
(i)On 7 February 2023, the plaintiff, by a letter from his solicitors, requested that the ExCo call a special general meeting (SGM) pursuant to rule 10.4(f)(i) of the Constitution.
It is also not in dispute that no SGM has yet been held. It is also not in dispute that the second defendant has, since on or about 7 February 2023, described herself as the A/President of SAWA and taken on the role of President in an acting capacity.

Evidence

The plaintiff relies on the affidavit of the plaintiff, sworn 17 March 2023.[4] That affidavit provides a chronology of events and attaches (amongst other documents) a copy of the Constitution,[5] the Show Cause Notice,[6] and the letter purporting to remove the plaintiff.[7]
[4] Affidavit of Harbhajan Singh Bejawn sworn 17 March 2023 (Exhibit 1).
[5] Exhibit 1, HSB-1.
[6] Exhibit 1, HSB-3.
[7] Exhibit 1, HSB-5.
SAWA relies on the affidavit of the second defendant, sworn 13 April 2023.[8] The plaintiff objected to a number of the paragraphs and attachments to that affidavit on the ground of relevance. The plaintiff and SAWA made oral submissions as to the relevance of the documents. The plaintiff submitted that the paragraphs and documents in question were not relevant to the question of the construction of the Constitution or any matters going to the exercise of the court's discretion. SAWA submitted that the documents could be relevant to the exercise of the court's discretion, but that this would not be clear until the court had ruled in relation to the construction of the Constitution. Accordingly, I marked the second defendant's affidavit for identification and indicated I would rule on the question of relevance and admissibility in these reasons. This issue is addressed later in these reasons.
[8] Affidavit of Jaskiran Kaur Cheema sworn 13 April 2023 (previously marked MFI 1, now Exhibit 4).
In the event that the court rules that the second defendant's affidavit is admissible in its entirety, the plaintiff also relies on the affidavit of Timothy Paul Lucas Drok, affirmed 27 April 2023.[9] Mr Drok is a solicitor employed by the solicitors for the plaintiff, and his affidavit attaches additional correspondence and documents responding to aspects of the second defendant's affidavit. As with the second defendant's affidavit, I marked this affidavit for identification and will return to its admissibility later in these reasons.
[9] Affidavit of Timothy Paul Lucas Drok affirmed 27 April 2023 (previously marked MFI 2, now Exhibit 5).
The 13^th, 14^th and 16^th defendants filed a joint affidavit sworn by each on 10 March 2023.[10] That affidavit provides a chronology of events and attaches documents in support of the chronology. It also states that the deponents did not take part in any meetings to remove the President as they consider these meetings to be unconstitutional and invalid. There were no objections to this affidavit, and it was admitted into evidence.
[10] Affidavit of Prem Singh Judge, Amarjit Singh and Ranjit Singh sworn 10 March 2023 (Exhibit 2).

Declarations sought

The plaintiff amended his originating summons on two occasions, once before the commencement of the hearing (which abandoned a number of declarations originally sought) and once during the hearing (to remove two of the declarations and to add the declaration sought in par 2.7A).[11] There were no objections to those amendments. In its final amended form, the plaintiff seeks the following declarations: [12]
[11] ts 84.
[12] Further Amended Originating Summons filed 28 April 2023.
2 Upon the proper construction of the first defendant's constitution (Constitution):
2.7 A declaration that upon the President's request for a special general meeting (SGM) pursuant to clause 10.4(f) of the Constitution:
2.7.1 the first defendant's executive committee (ExCo) has an obligation to call an SGM to consider the proposed removal of the President from the office of President of the first defendant;
2.7.2 at the SGM referred to in Order 2.7.1 above, at least two thirds of all members of the first defendant present and voting at that SGM must vote in favour of the removal of the President from the office of President of the first defendant to give effect to that removal; and
2.7.3 until such time as the vote outlined in Order 2.7.2 above has passed, the President remains the President of the first defendant.
2.7A Further or in the alternative to Order 2.7 above, a declaration that, upon the ExCo considering that the member's response to a show cause notice issued to a President, in accordance with clause 10.4(d) of the Constitution, is not acceptable:
2.7A.1 any one or more members of the ExCo (including the President), aggrieved by the show cause notice or the President's response to the show cause notice, may request, pursuant to clause 10.4(f)(i) of the Constitution, that the ExCo call an SGM to consider the proposed removal of the President from the office of President of the first defendant;
2.7A.2 upon a request referred to in Order 2.7A.1 above, the ExCo has an obligation to call an SGM to consider the proposed removal of the President from the office of President of the first defendant;
2.7A.3at the SGM referred to in Order 2.7A.2 above, at least two thirds of all members of the first defendant present and voting at that SGM must vote in favour of the removal of the President from the office of President of the first defendant to give effect to that removal; and
2.7A.4 until such time as the vote outlined in Order 2.7A.3 above has passed, the President remains the President of the first defendant.
2.8 Declarations that:
2.8.1 the plaintiff has not been lawfully removed as President of the first defendant in accordance with the Constitution; and
2.8.2 the plaintiff remains President of the first defendant.
3 Such further or other declarations or orders as this Honourable Court deems just.
4 The costs of this originating summons be paid by the first defendant, alternatively by one or more of the second to twelfth defendants.

Legal principles

Justiciability

The plaintiff seeks a number of declarations. The foundation of the power to grant a declaration in this court is s 25(6) of the Supreme Court Act 1935 (WA). Order 58 rule 10 of the Rules of the Supreme Court 1971 (WA) provides that any person claiming to be interested under a written agreement (as is the case here in the form of the Constitution) may apply by originating summons for the determination of any question of construction arising under the instrument, and for a declaration of the rights of the persons interested.
In the circumstances, the question is whether the plaintiff as a member of SAWA and the purported President, has any rights that entitle him to a declaration or an injunction to enforce the Constitution. This, in turn, requires consideration as to whether the Constitution creates enforceable contractual rights and duties between members, or between SAWA or its officers and members.[13]
[13] See, for example, Cameron v Hogan (1934) 51 CLR 358; Cockman v Gorman [2023] WASCA 44.
I am satisfied that the court does have jurisdiction in the present case. Section 21(1) of the Associations Incorporation Act 2015 (WA) provides:
The rules of an incorporated association bind the association and the members of the association as if —
(a) they contained an agreement on the part of each member to be bound by and observe all the provisions of the rules; and
(b) that agreement were duly executed by each member.
Although titled the 'Constitution of SAWA', the document is also referred to in the body of the document as the 'Rules' and rule 3 (Background) makes it clear that it is intended to constitute the rules of SAWA for the purposes of the Associations Incorporation Act 2015.
There was no equivalent to s 21(1) in the predecessor to the Associations Incorporation Act 2015 (WA), being the Associations Incorporation Act 1987 (WA), and accordingly past cases involving disputes regarding incorporated associations were required to consider the extent to which the relevant constitutions were intended to create legal relations.[14] In light of s 21(1), such analysis is not required in the present case.

Scope of power to grant declaratory relief

[14] Including Bagga v The Sikh Association of Western Australia Inc [2012] WASC 193 [13], in which Le Miere J concluded that the SAWA Constitution did give rise to legally enforceable duties under a contract or contracts.

The Court's discretion to grant declaratory relief is wide,[15] but the following considerations should be satisfied before the discretion is exercised:[16]
(a)the question must be real and not theoretical;
(b)the person raising the question must have a real interest to raise it; and
(c)the person raising the question must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought.
[15] Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 (Forster v Jododex), 435 (Gibbs J).
[16] Forster v Jododex, 437 - 38 (Gibbs J).
I am satisfied that the above considerations are met in the present case. The affidavit evidence demonstrates that there is a real question as between the plaintiff and SAWA as to whether he has been appropriately removed from his position as President of SAWA. The plaintiff, as a member of SAWA and the person elected to the position of President at the last AGM has a real interest to raise this question, and there is a proper contradictor in the form of SAWA.
As declaratory relief is discretionary, once the above matters are satisfied, it still falls to the court to consider whether there are any other factors relevant to the exercise of the discretion. I will consider the discretionary matters later in these reasons.

Construction of written contracts

The principles of construction for the rules of a voluntary association were outlined by Riordan J in Setka v Carroll as follows: [17]
[17] Setka v Carroll [2019] VSC 571 [70] - [73].
[70]The principles to be applied in interpreting the rules of a voluntary association are, like the construction of a corporate constitution, similar to the principles applicable to the construction of commercial contracts.
[71]The principles of construction are modified to recognise that the rules are not those of a trading corporation, but a voluntary association. In Echunga Football Club Inc v Hills Football League Inc, Stanley J described the modification of the approach to construction as follows:
[T]he Court must recognise that this association is not a commercial operation established with a view to generating profits but rather is what may be described as a non-profit making sporting organisation. In this regard it is proper to recognise that the by-laws are drafted in an ad hoc and piecemeal fashion by laypersons rather than lawyers, couched in terms intelligible to them but which often lack the consistency, coherence, form and drafting that would be expected in a statute or commercial contract.
Accordingly, in my view, the Court must approach the construction of a particular by-law, when read in the context of the by-laws as a whole, with a degree of flexibility. This means that the courts should not make too much of infelicities of expression in the by-laws, nor be too quick to identify absurdity, illogicality or apparent inconsistencies. As French J (as he then was) said in the context of interpreting industrial awards, while fractured and illogical prose may be met by a generous and liberal approach to construction, the instrument must make sense according to its ordinary and grammatical language.
[72]As with the interpretation of a commercial contract, the terms are construed objectively; but the Court will consider not only the text and the ordinary meaning, but also the context and known surrounding circumstances. However, because of the public nature of the rules:
(a)great emphasis is to be placed on the text of the rules; and
(b)the ambit of the surrounding circumstances to which the Court may have regard, may be constrained.
[73]The surrounding circumstances to which the Court may have regard include:
(a)the making of amendments to the rules; and previous versions of the rules may be relevant; and
(b)'established and well known and unquestioned practice in use in the association … which are accepted by persons joining the association. ' (citations omitted)

See also Kavanagh v Pine Valley Pistol Incorporated,[18] Echunga Football Club Inc v Hills Football League Inc,[19] Dawkins v State Secretary, Australian Labor Party (WA Branch) (No 2)[20] and Kaur v Sikh Gurdwara Perth Inc[21] in this regard.
[18] Kavanagh v Pine Valley Pistol Incorporated [2020] WASAT 60 [16].
[19] Echunga Football Club Inc v Hills Football League Inc [2014] SASC 201 [16] - [19].
[20] Dawkins v State Secretary, Australian Labor Party (WA Branch) (No 2) [2022] WASC 117 [66].
[21] Kaur v Sikh Gurdwara Perth Inc [2017] WASC 117 [44].
Those principles of construction in relation to commercial contracts were recently set out by the Court of Appeal in Electricity Generation and Retail Corporation v EIT Kwinana Partner Pty Ltd as follows: [22]
The principles applicable to the construction of written contracts established by the High Court are well known. They were outlined in this Court in Black Box Control Pty Ltd v TerraVision Pty Ltd and in Sino Iron Pty Ltd v Mineralogy Pty Ltd. Those principles include the following:
(a)The construction of a contract involves a determination of the meaning of the words of the contract by reference to its text, context and purpose. The starting point for the proper construction of a clause is the language used in the clause. In particular, one starts by identifying the possible meanings that the words chosen by the parties can bear;
(b)The process of construction is objective. Ascertaining the meaning of terms in an instrument requires a determination of what a reasonable person would have understood those terms to mean. That inquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract, and the commercial purpose or objects to be secured by the contract;
(c)The commercial purpose or objects sought to be secured by the contract will often be apparent from a consideration of the provisions of the contract read as a whole. Extrinsic evidence may nevertheless assist in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding of the genesis of the transaction, its background, the context and the market in which the parties are operating;
(d)The instrument must be read as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed to have some operation; and
(e)The general principle applicable to the construction of commercial contracts is that they should be given a businesslike interpretation. Absent a contrary intention, the court approaches such contracts on the basis that the parties intended to produce a result which makes commercial sense. This requires that the construction placed on the term or terms in question is consistent with the commercial object of the agreement. However, it must also be borne in mind that business commonsense may be a topic on which minds may differ. (citations omitted)
[22] Electricity Generation and Retail Corporation v EIT Kwinana Partner Pty Ltd [2022] WASCA 3 [230].
In the present case, the Constitution is not a commercial contract. Accordingly, to the extent that regard would ordinarily be had to the commercial purpose or objects to be secured by the contract, I consider I should instead have regard to the objects or purposes of the Constitution, being to provide for the management and operations of SAWA so as to enable it to fulfill its objects and purpose.

Constitution

Resolution of the present dispute requires consideration the SAWA Constitution.[23]
[23] Exhibit 1, HSB-1.
By way of general overview, rule 5 specifies that the objects of SAWA are as follows:
a.To serve as a vehicle for the promotion and advancement of the aspirations of the Sikh community;
b.To establish, maintain and run Gurdwara(s) and other centers [sic] to promote and propagate the religious, cultural and spiritual welfare and activities of the Sikh community;
c. To provide teaching and library facilities for the promotion of the Punjabi language;
d.To provide for the religious, cultural and ritual requirements of the Sikh community including in relation to births, deaths, marriages and other rites including rites of passage;
e.To provide and/or organise recreational, sporting and social activities for the Sikh community, including in cooperation with other bodies sharing similar objectives; and
f.To foster goodwill and understanding between the Sikh community and the wider Australian community.
Rule 6 goes on to detail the powers of SAWA. Rule 7 deals with membership of SAWA and sets out the prerequisites for membership, the application process, the categories of membership and membership subscription fees. Rule 7.2 provides that by submitting an application for membership, the applicant is taken to confirm their unconditional acceptance of the SAWA rules, and undertake to abide by the rules. Rule 8 deals with the cessation, suspension, termination of membership, and sets out a detailed process in this regard. The key elements of that process include:
a.The committee may decide to suspend a member's membership or to expel a member from the Association if -
i.the member contravenes any of these rules; or
ii.the member acts detrimentally to the interests of the Association.
b.The secretary must give the member written notice of the proposed suspension or expulsion at least 28 days before the committee meeting at which the proposal is to be considered by the committee.
…
d.At the committee meeting, the committee must -
i.give the member, or the member's representative, a reasonable opportunity to make written or oral (or both written and oral) submissions to the committee about the proposed suspension or expulsion; and
ii.give due consideration to any submissions so made; and
iii.decide -
(i) whether or not to suspend the member's membership and, if the decision is to suspend the membership, the period of suspension; or
(ii) whether or not to expel the member from the Association.
e.A decision of the committee to suspend the member's membership or to expel the member from the Association takes immediate effect.
f.The committee must give the member written notice of the committee's decision, and the reasons for the decision, within 7 days after the committee meeting at which the decision is made.
Rule 9 provides for the establishment of a register of members.[24]
[24] Exhibit 1, HSB-1, p 17.
Rule 10, which establishes the ExCo, is central to the present dispute. Rule 10.1.1 provides that ExCo shall consist of President, Vice President, Secretary, two Assistant Secretaries, Treasurer, two Assistant Treasurers and eight general members.[25]
[25] The rule also provides that the immediate past President should remain available (ex-officio) for a period of 2 months immediately following completion of their term, if required by ExCo.
Rule 10.1.2 provides that the term of office of a committee member begins when the member is elected at an annual general meeting or is appointed to fill a casual vacancy.
Rule 10.2.1 goes on to detail the election process for members of ExCo. This clause provides for a detailed process whereby voting members of SAWA are able to vote in an election for members of ExCo at a general meeting.[26]
[26] Clause 4.1 defines a 'GM' as being both an Annual General Meeting and Special General Meeting as will be specified on the notice calling the meeting.
Rule 10.2.3 details the powers of ExCo members and proceedings. Rule 10.3 details the duties of the individual ExCo office bearers. Rule 10.3.7 details how ExCo meetings are to be conducted.
Rule 10.4 is the key clause for present purposes and deals with resignation or removal from ExCo. In so far as it concerns the removal of an ExCo member, it provides as follows:
10.4 Resignation and Removal from Office
…
c.Any member of the EXCO may be removed from the EXCO for conduct detrimental to the interests and good name of SAWA.
d.On the recommendation of at least 2/3^rd 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.
e.If the member presents a satisfactory response the EXCO may terminate the action.
f.If the member's 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 2/3^rd 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 these Rules for the respective position.
Rule 10.4(f)(i) deals with the process for removing an ExCo office holder and rule 10.4(f)(ii) deals with the process for removing an ordinary member of ExCo. The reference in rule 10.4(f)(ii) to rule 8.4(d) to (h) appears to be an error. There is no rule 8.4 in the Constitution. There is, however, rule 8.2 which deals with circumstances in which the committee may decide to suspend or expel a member, and the process by which this can take effect. The parties submitted that in all the circumstances the reference to rule 8.4 should be read as a reference to rule 8.2. I accept that submission.
Rule 10.5 deals with when membership of ExCo ceases and provides that a person ceases to be an ExCo member if the person (relevantly) resigns from ExCo or is removed from office under rule 10.4. Rule 10.6 provides that any vacancy in ExCo is filled in accordance with rule 10.2.3(d)(v).
Rule 11 deals with auditors, and rule 12 deals with Trustees of SAWA.
Rule 13 deals with general meetings. Rule 13.1 deals with special general meetings (SGM), and provides that an SGM may be convened by ExCo on its own volition, or called by ExCo within 45 days of written requisition signed by not less than 20% of members with voting rights.
Rule 13.2 deals with the annual general meeting (AGM) and provides that the business to be conducted at the AGM includes the declaration of election results and appointment of office bearers of ExCo. Rule 13.3 details the required quorum and rule 14 details voting rights and participation at general meetings.
Rule 15 is relied upon by the parties in their submissions. It deals with motions and resolutions and relevantly provides that:
a.All motions including budget requests, shall be clearly classified and outlined in the Notice for Meetings, or issued to the Secretary, within 7 days of receipt of notice for a GM.
…
f.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 shall be required for the following matters and such other matters as the Association may determine:
…
i.Removal of President, Vice President, Secretary and Treasurer; …
Rule 16 is concerned with committees and project teams, whilst rule 17 is concerned with how the funds, books, property and common seal of SAWA are dealt with. Rule 18 deals with how amendments to the Constitution are effected and rule 19 makes provision for the development of by-laws. Rule 20 deals with the winding up of SAWA.
The Constitution also makes provision for resolving disputes. Rule 21 set outs a grievance procedure that may be employed when there is a dispute between members or between one or more members and SAWA. That procedure involves ExCo being involved in determining the dispute. Further, rule 22 provides for a mediation process by the Trustees, and is to be employed if a request for a mediation is made pursuant to rule 8.2(g) or 21.3(e)(ii)(B) or 21.4(c).

Parties' submissions

The written submissions of the plaintiff and the first defendant address the declarations sought in par 2.7 and par 2.8.[27] In those written submissions, the parties each put forward alternative constructions of rule 10.4 of the Constitution and the process required to remove a member of ExCo.[28]
[27] First defendant's submissions [15] - [18]; Plaintiff's submissions [17].
[28] Plaintiff's submissions [27] - [28]; First defendant's submissions [21].
During the hearing of the application, I raised for the parties' consideration a possible alternative construction of rule 10.4 to that put forward by either party.[29] As a result of the matters raised during the hearing the plaintiff then sought leave to amend the originating summons to add the declaration sought in par 2.7A.[30]

Plaintiff's submissions - declaration 2.7

[29] ts 47 - 48.

[30] ts 84. The amendment to the originating summons which occurred during the hearing also removed the declarations originally sought in par 2.1 and 2.2 of the originating summons.

The plaintiff submits that the plain language of rule 10.4 is clear and provides for the following process for the removal of an ExCo office holder:[31]
(a)first, a 2/3^rd majority of ExCo members must provide notice to the member complained about, detailing the conduct complained of and asking that member to show cause within 14 days why removal from ExCo should not be effected;
(b)second, if the member presents a satisfactory response, the ExCo may terminate the action;
(c)third, if the member's response is not acceptable, then the ExCo, if requested by the aggrieved member, must call an SGM to consider removal, and a 2/3^rd majority of all members present and voting shall be required to effect the removal.
[31] Plaintiff's submissions [26] - [27].
On the plaintiff's construction of rule 10.4, an ExCo office holder is not removed unless and until an SGM is held and a 2/3^rd majority of all members present and voting vote for that removal.[32]
[32] Plaintiff's submissions [28].
The plaintiff submits that there is nothing infelicitous, illogical, or absurd about this construction of rule 10.4 and submits that there is no reason to look beyond the words of the rule to construe it.[33]
[33] Plaintiff's submissions [29].
The plaintiff submits that an absurdity would arise if rule 10.4(f)(i) were construed in a way that would allow the ExCo to immediately remove an office holder of SAWA (as is submitted by SAWA). The plaintiff says it would ignore the plain language of rule 10.4(f).[34]
[34] Plaintiff's submissions [30].
In this regard, the plaintiff relies on the following Macquarie Dictionary definitions of "effect" and "endorse":[35]
Effect (v):
9.to produce as an effect; bring about; accomplish; make happen.
10.to produce or make.
Endorse
9.to approve; give support to: I don't endorse that sort of behaviour.
[35] ts 43 - 45.
The plaintiff submits that the plain language of rule 10.4(f)(i) is that a decision to remove an office holder does not occur until a vote at an SGM is held. The plaintiff submits that there is no reference to "reinstatement" in the rule and it is stretching the language to interpret rule 10.4(f)(i) in this manner (as is submitted by SAWA).[36]
[36] ts 44.
The plaintiff also submits that SAWA's interpretation would render the comparison between rules 10.4(f)(i) and 10.4(f)(ii) farcical.[37] The plaintiff submits that on SAWA's construction of the rule, an ordinary ExCo member could only be removed after the ExCo had referred them to a special commission, but an office bearer could be removed immediately by the ExCo and the plaintiff says that this would result in an absurd construction of the Constitution.[38]
[37] Plaintiff's submissions [30].
[38] Plaintiff's submissions [31].
The plaintiff acknowledged that there may remain some ambiguity in rule 10.4(f) in circumstances where an impugned office bearer elected not to request an SGM in accordance with rule 10.4(f)(i). It may then be arguable that there is no mechanism for the ExCo to proceed to an SGM or to effect removal at all.[39] However, the plaintiff says that whilst that proposition is theoretically possible: [40]
(a)the plaintiff did request an SGM within five days of receiving the ExCo's correspondence;
(b)it always remains open to ExCo to call an SGM of its own volition in accordance with the procedure contained in rule 15; and
(c)to the extent that rule 10.4 requires some form of implied term or rectification, it would be entirely inconsistent with the clause itself, and the Constitution as a whole, to allow the ExCo to unilaterally act to remove an office holder of the organisation. To the extent the rule needs to be remediated (which the plaintiff does not accept), the plaintiff says that the more logical and consistent reading is to allow for either the aggrieved member or the ExCo to call for an SGM. That interpretation would not derogate from the general scheme of the Constitution, placing office bearers' positions in the hands of the members; and
(d)the court should not readily interfere with what is otherwise a plain reading of a clause in the Constitution on the basis of a theoretical or hypothetical illogicality.[41]

SAWA's submissions - par 2.7

[39] Plaintiff's submissions [32].

[40] Plaintiff's submissions [33].

[41] Plaintiff's submissions [33].

SAWA agrees that a President against whom the rule 10.4 removal process has been invoked has a right to request an SGM under rule 10.4(f)(i) of the Constitution, and that ExCo is then obliged to call an SGM.[42] SAWA submits that the issue between the parties is really the status of the putative President pending that SGM.[43]
[42] First defendant's submissions [25].
[43] First defendant's submissions [25].
SAWA submits that rule 10.4(c) makes it clear that an ExCo member can be removed, but it does not say who has that power or how it is done. Rather, that is what the subsequent provisions of rule 10.4 address.[44]
[44] ts 57.
Rule 10.4(d) provides for the initiation of the removal process in the form of a show cause notice.[45] However, after this point SAWA submits that there is a lacuna in the rules. SAWA submits that a number of things may happen after the show cause notice is issued. There may be a response and ExCo may be satisfied and may terminate the action; ExCo might not be satisfied with the response; or there may be no response at all.[46]
[45] ts 57.
[46] ts 57.
SAWA submits that the Constitution does not explicitly address what occurs if there is no response or ExCo is not satisfied with the response.[47] SAWA submits that what fills the gap is the ExCo exercising its plenary powers to manage the affairs of SAWA by giving notice to the President that they have been removed.[48] SAWA submits that the ExCo has plenary powers to manage the affairs of SAWA and relies on rule 10.2.3 and the fact of the existence of rule 10.4(c) in this regard.[49]
[47] ts 57 - 58.
[48] ts 59.
[49] ts 57.
SAWA submits that a President in this position is removed from office by ExCo, but may be reinstated if the members voting at an SGM under rule 10.4(f)(i) fail to endorse ExCo's action by the requisite majority.[50] In this sense, rule 10.4(f)(i) is a species of review provision.[51]
[50] First defendant's submissions [25].
[51] ts 61.
SAWA submits that the second sentence of rule 10.4(f)(i) speaks of a 2/3^rd majority of members voting at an SGM held under that provision "effecting" a removal.[52] SAWA submits that 'effect' used as a verb can mean to make something happen, or to bring about a state of affairs, but it can also be used in the sense of giving effect to a state of affairs that already exists, to cause the consequences of that state of affairs to flow. The third sentence of rule 10.4(f)(i) speaks of the removal being "endorsed" by the requisite majority at the SGM. SAWA says that "endorse" means (amongst other things) to confirm or approve of something, or to ratify it and therefore the use of this word presupposes the prior existence of a state of affairs, or the prior performance of some action.[53]
[52] First defendant's submissions [26].
[53] First defendant's submissions [26]; ts 62 - 63.

SAWA submits that in the context of rule 10.4(f)(i), 'effect' should be given the second meaning noted above, which is consonant with the meaning noted for 'endorse' and that therefore a President removed by ExCo is removed from office subject to the result of a vote at an SGM called under that rule. If the requisite majority of members decide that such a removal should not be put into effect or should not be endorsed, then the removal is reversed and the President reinstated.[54]
[54] First defendant's submissions [27].
SAWA submits that their construction can be tested by considering what SAWA says is the absurd result that would flow from the plaintiff's preferred construction in a situation where a President is served with a show cause notice, makes an unsatisfactory response (or no response at all), and refuses to request an SGM. SAWA submits that on the plaintiff's construction, such a President would remain as President until a new ExCo was elected at the next annual general meeting of SAWA and this would render rules 10.4(c) - (f) pointless.[55]
[55] First defendant's submissions [28]; ts 60.
SAWA also submits that the plaintiff's construction of rule 10.4(f)(i) conflicts with rule 15(f), because it creates a situation where two different majorities of members' votes are needed to achieve the same result (the removal of an office holder of ExCo), depending on which route is taken to an SGM.[56]
[56] First defendant's submissions [29].
SAWA submits that the different majorities are explicable on SAWA's construction as the two forms of meeting have distinct purposes. A general meeting called under rule 13.1 or 13.2 to consider removal of a President is at large, in that there is no constitutional restriction on the reasons for which such action might be taken. A meeting called under rule 10.4(f)(i) is called in respect of action taken to remove a President for much narrower reasons: failure to provide an acceptable response to a show cause notice issued under rule 10.4(d) of the Constitution for conduct detrimental to the interests and good name of SAWA. SAWA submits that the latter occurs to consider action already taken and it is therefore reasonable to have a lower voting threshold in that circumstance.[57]
[57] First defendant's submissions [29]; ts 60 - 61, 67 - 68.
SAWA submits that this construction achieves the objects of SAWA in that it allows the ExCo to remove the president or any other office bearer or ExCo member.[58]

Alternative construction

[58] ts 69.

During the course of the hearing, I raised with each counsel that the constructions advanced by both the plaintiff and SAWA each proceeded on the basis that the reference in rule 10.4(f) to 'the aggrieved member' was a reference to the member to whom the show cause notice was issued.[59]
[59] ts 47.
I queried whether there was another interpretation open, being that the reference to 'the aggrieved member' was instead a reference to one or more of the members of the ExCo making up the 2/3^rd of members who had recommended that a show cause notice be issued.[60] On this interpretation, the process for removal of member of ExCo under rule 10.4 is as follows:[61]
(a)on the recommendation of at least 2/3^rd of the members of ExCo, the member in question is issued with a written notice detailing the conduct complained about and being asked to show cause within 14 days as to why removal should not be effected;
(b)if the member presents a satisfactory response to that written notice, the ExCo may terminate the action; or
(c)if the member's response is not satisfactory, then if a member of the 2/3^rd of ExCo (being aggrieved by the member's response) requests, ExCo shall either call an SGM under rule 10.4(f)(i) where a vote will be held on whether the member issued with the written notice should be removed from office (for office holders) or appoint a committee to function in accordance with rule 8.2 (for non-office holders).

Plaintiff's submissions - par 2.7A

[60] ts 47.

[61] ts 47 - 48.

The plaintiff amended his originating motion to seek the declarations in par 2.7A as being 'further or in the alternative' to the declarations in par 2.7. The declaration sought in par 2.7A.1 is as follows:
any one or more members of the ExCo (including the President), aggrieved by the show cause notice or the President's response to the show cause notice, may request, pursuant to clause 10.4(f)(i) of the Constitution, that the ExCo call an SGM to consider the proposed removal of the President from the office of President of the first defendant;
As can be seen, the scope of who is able to call for an SGM and the reasons why (in terms of what those members shall be aggrieved in relation to) is broader than the plaintiff's original declarations sought in par 2.7 and broader than the alternative construction raised during the hearing.
The plaintiff submitted that both his original construction (par 2.7) and the alternative construction (par 2.7A) are open.[62] In relation to the alternative construction, the plaintiff submits that it is consistent with the plain meaning of the words in rule 10.4(f)(i) and 10.4(f)(ii). The plaintiff also submits that it addresses the issue of what will occur if the response from the member to whom the written notice is issued was not acceptable, and that same member did not request ExCo call an SGM.[63]
[62] ts 48, 90 - 92.
[63] ts 48, 90 - 91.
The plaintiff submits that the alternative construction is also consistent with the scheme of the Constitution, being that the members of SAWA elect the ExCo officer holders.[64]
[64] ts 91.
The plaintiff also submits that the alternative construction appears to be consistent with decision of Le Miere J in Bagga v The Sikh Association of Western Australia Inc,[65] although the plaintiff notes that it is not clear from the reasons whether the precise question of who constitutes 'the aggrieved member' was the subject of submissions or deliberation.[66]

SAWA's submissions - par 2.7A

[65] Bagga v The Sikh Association of Western Australia Inc [2012] WASC 193 [28].

[66] ts 49.

SAWA submits that a construction in which the reference in rule 10.4(f) to' the aggrieved member' is taken to be a reference to a member of ExCo (and not the member to whom the show cause notice is issued) is not a construction which the clause can bear.[67] SAWA submits that the rule refers to 'the' aggrieved member and not 'an' aggrieved member. The clause is therefore referring to a member who has already been referred to, and someone who, in the scheme of things, has a reason to be aggrieved. SAWA submits that the most natural reading of the rule is that the reference is to the member who has received the show cause notice.[68]

Disposition - construction of rule 10.4

[67] ts 58.

[68] ts 58, 69.

When the Constitution is read as a whole, I consider that the preferable construction of the power to remove a member of ExCo provided for in rule 10.4 is as follows:
(a)on the recommendation of at least 2/3^rd of the members of ExCo, the member in question is issued with a written notice detailing the conduct complained about and being asked to show cause within 14 days as to why removal should not be effected;
(b)if the member presents a satisfactory response to that written notice, the ExCo may terminate the action; or
(c)if the member's response is not satisfactory, then if the aggrieved member (being a member of ExCo aggrieved by the response from the member to whom the written notice is issued) requests, ExCo shall either:
(i)call an SGM under rule 10.4(f)(i) where a vote will be held on whether the member issued with the show cause notice should be removed from office (for office holders); or
(ii)appoint a commission to function in accordance with rule 8.2 (for non-office holders).
I am of the view that the reference to 'the aggrieved member' in rule 10.4(f) is a reference to the member or members of ExCo who may be aggrieved by the response (or lack thereof) from the member to whom the written notice has been issued. I do not consider that 'the aggrieved member' is intended to refer to or include the member to whom the written notice has been issued, or that the aggrieved member is aggrieved by the show cause notice itself. The reference to 'the aggrieved member' first appears in rule 10.4(f). Prior to this point, the member who has received the written notice is referred to 'the member' or 'the member in question'. This is also how that member is referred to at the beginning of rule 10.4(f). When the opening words of rule 10.4(f) are read as a sentence, the insertion of the word 'aggrieved' distinguishes the second reference to 'member' from the first, suggesting that two different members are being referred to.
Further, it is not clear why the member who received the written notice would be aggrieved by their own response to that notice. The member(s) that may be aggrieved about the response will be the other members of ExCo. The only way in which the member to whom the written notice is issued would be aggrieved, is if there is (as submitted by SAWA) a power for the ExCo to remove that member following the response. For the reasons set out below I do not accept that submission or construction. Whilst the member to whom the written notice has been issued may be aggrieved by that written notice, their remedy is to provide a satisfactory response, or convince the members of SAWA at an SGM that they should continue to remain an office holder (under rule 10.4(f)(i)) or to convince the commission of the same (under rule 10.4(f)(ii)).
I accept that the use of the definite article 'the' before 'aggrieved member' in rule 10.4(f) does raise some constructional challenges and that the use of the phrase 'an aggrieved member' may have been clearer. However, I note that rule 4.2 provides that a reference to the singular includes the plural. I also note that as the constitution of a voluntary organisation, the Constitution may be couched in terms which lack the consistency and coherence that would be expected in a statute or a commercial contract. When read as a whole, I do not consider that the use of the article 'the' in this context negates the above construction.
I consider this construction to be consistent with the plain ordinary meaning of the words 'effect' and 'endorse' in rule 10.4(d) and 10.4(f)(i), being:
Effect (v):
9.to produce as an effect; bring about; accomplish; make happen.
10.to produce or make.
Endorse
9.to approve; give support to: I don't endorse that sort of behaviour.
When the clause is read as a whole, I consider the reference to 'effect' in rule 10.4(d) and 'effected' in rule 10.4(f)(i) is a reference to the SGM or the commission taking steps to remove the member in question. I consider that the reference to 'endorsed' in rule 10.4(f)(i) and 10.4(f)(ii) is used in the context of the SGM approving or ratifying a recommendation or motion that the office holder be removed (or the commission in the case of a member). I consider it to be stretching the ordinary meaning of these terms for each to be read as ratifying or approving an action of ExCo that has already occurred in the absence of a clear rule in rule 10.4 permitting ExCo to take that step.
The above construction is consistent with the scheme of the Constitution in relation to the election of members to ExCo. Under the Constitution, it is the members of SAWA who elect the members of the ExCo and the particular office holders. Absent clear provisions to the contrary, I consider that a construction which also places the power to remove an ExCo member in the hands of the members of SAWA is preferable.
The above construction is also consistent with the objects and purpose of the Constitution, being to provide for the management and operations of SAWA so as to enable it to fulfill its objects and purpose. This construction provides a workable framework to address any concerns that a member of ExCo is acting in a manner detrimental to the interests and good name of SAWA.
This construction provides a degree of consistency between the processes provided for in rule 10.4(f)(i) and 10.4(f)(ii), in that for both types of members, removal does not take place until the applicable process detailed in 10.4(f)(i) or 10.4(f)(ii) occurs. This construction avoids a situation where an officer is removed by ExCo, whilst an ordinary member is removed by the appointed commission.
This construction also avoids the need to imply any terms or to rectify or remediate the rule.
SAWA's proposed construction requires an additional step to be read into rule 10.4, being that if ExCo is not satisfied with the response from the member to whom the notice is issued, it can issue a further notice removing the impugned member. SAWA submits that this is required as otherwise a member to whom a written notice has been issued, and an unsatisfactory response received, could refuse to request ExCo take the additional step in rule 10.4(f)(i) or 10.4(f)(ii) and the member would remain until the next AGM. For the following reasons, I do not consider there is any basis to read this additional step or power into the rule.
First, the rule does not include this additional step. In this regard, rule 10.4 can be contrasted with rule 8.2, which deals with the suspension, termination and expulsion of members of SAWA by 'the committee' (which on a reading of the Constitution as a whole is intended to be a reference to ExCo). Rule 8.2 contains a detailed and prescriptive process for the removal of SAWA members, and contains an express provision that ExCo can decide whether or not to suspend the member's membership or to expel the member.[69] Rule 8.2 goes on to expressly provide that such a decision by ExCo has immediate effect[70] and expressly provides for written notice of ExCo's decision to be given to the member.[71] The absence of similar provisions in rule 10.4 suggests that it was not intended that similar powers be given to ExCo under rule 10.4.
[69] Rule 8.2(a) and 8.2(d)(iii).
[70] Rule 8.2(e).
[71] Rule 8.2(f).
Secondly, there is no need for such a step to be read into rule 10.4. In this regard, I do not accept SAWA's submission that there is a lacuna in the rules after rule 10.4(d). In terms of the various options available to ExCo after the show cause notice is issued, each of these options are catered for in rule 10.4 if the above construction is adopted. In the event that ExCo is satisfied with the impugned member's response, ExCo may terminate the action under rule 10.4(e). If a member of ExCo is not satisfied with the impugned member's response, then that member can request ExCo take either of the steps identified in rule 10.4(f) on the basis that the member is aggrieved by the response provided. If the member does not respond to the show cause notice at all, then (again) a member of ExCo can request ExCo take either of the steps identified in rule 10.4(f) on the basis that the member is not satisfied with the lack of a response and is aggrieved. Therefore, the 'absurd' result postulated by SAWA (of an impugned member refusing to request ExCo call an SGM) does not arise.
Thirdly, I do not consider there is any power for the ExCo to take this extra step. Whilst I accept that the Constitution entrusts the ExCo with the day-to-day management of SAWA, rule 10.2.3(b) specifically states that the ExCo shall act in accordance with the Constitution. Rule 10.2.3 goes on to set out the particular powers of ExCo. Whilst rule 10.2.3(d)(i) specifically states that the ExCo has responsibility for appointment, discipline and dismissal of all employees, there is no equivalent provision in relation to members of ExCo. Rather, rule 10.2.3(d)(v) provides that ExCo's powers include appointing members to fill any vacancy occurring in the ExCo. There is also nothing in rule 10.3 (which concerns the duties of individual ExCo office bearers) extending the ExCo's powers in this manner. Therefore, when the provisions of the Constitution are read as a whole, I do not accept SAWA's submission that the ExCo has some form of plenary power to issue a notice removing an ExCo member under rule 10.4.
Fourthly, I consider this construction to be contrary to the plain and ordinary meaning of 'effect' and 'endorsed' for the reasons outlined above.
Fifthly, I consider that this construction introduces a notion of the SGM possibly 'reinstating' the relevant member. There is no reference in rule 10.4(f)(i) to the reinstatement of the member. Rather, the rule talks about filling the vacant position if removal is endorsed.
Sixthly, I do not consider the difference in the vote required at an SGM to remove an ExCo officer holder negates the above construction. Rule 10.4(f)(i) refers to a vote of 2/3^rd majority of all members present and voting at the SGM. Rule 15(f)(iv) refers to a majority of not less than three-fourths of the members present and entitled to vote. The reason or purpose for the difference in voting requirements is not clear. It may be that a different majority was included so as to reflect the involvement of ExCo by way of initial consideration of any allegations in the process contained in rule 10.4.
In Bagga v The Sikh Association of Western Australia Inc,[72] Le Miere J noted the difference in voting majorities between the two provisions[73] and concluded that the clauses are not necessarily inconsistent, given that one refers to members present and voting and the other refers to members present and entitled to vote.[74] Le Miere J also questioned the extent to which rule 15(f)(iv) alone gave the members the power to remove an ExCo office holder.[75] I do not consider it necessary to resolve either of these issues in the present case as I do not consider the difference in required voting majorities on its own is a reason to negate the above construction, or a reason in favour of SAWA's construction. The process for removing a member of ExCo is set out in rule 10.4 and therefore it is appropriate to apply the voting majority expressly provided for in rule 10.4(f)(i). In reaching this conclusion, I note that as the constitution of a voluntary organisation, the Constitution may be couched in terms which lack the consistency and coherence that would be expected in a statute or a commercial contract.
[72] Bagga v The Sikh Association of Western Australia Inc [2012] WASC 193 [28].
[73] Although the Constitution rule numbering referred to by his Honour is different to the current Constitution, the wording of the old and new numbered clauses are the same.
[74] Bagga v The Sikh Association of Western Australia Inc [2012] WASC 193 [29] - [30].
[75] Bagga v The Sikh Association of Western Australia Inc [2012] WASC 193 [26] - [29, [31] - [32].

Discretionary factors and evidence

As outlined above at [22], I am satisfied that in the present circumstances there is a real question as between the plaintiff and SAWA as to whether the plaintiff has been appropriately removed from his position as President of SAWA. I am also satisfied that the plaintiff, as a member of SAWA and the person elected to the position of President at the last AGM has a real interest to raise this question, and further that there is a proper contradictor in the form of SAWA.
However, it remains necessary for me to go on to consider whether there are any other factors relevant to the exercise of the court's discretion as to whether to make the declarations sought by the plaintiff. Those additional factors can be divided into two categories. First, the matters raised by SAWA's affidavit evidence and submissions and secondly the extent to which the plaintiff's declarations are consistent with my conclusions in relation the construction of the rule 10.4.

Parties' submissions regarding other discretionary matters raised by SAWA

SAWA submits that in considering whether to exercise the discretion to make the declarations sought by the plaintiff, the court should have regard to the following two additional matters:[76]
(a)the plaintiff's alleged refusal to engage with ExCo and SAWA's trustees to resolve the dispute giving rise to these proceedings before commencing proceedings. In this regard SAWA relies on [8] and [9] of the affidavit of the second defendant; and
(b)the plaintiff's alleged actions in blocking ExCo's access to SAWA facilities and information. In this regard SAWA relies on [19] and [22] of the second defendant's affidavit. SAWA says this is relevant because it has prevented, at least to date, the parties' dispute from being resolved by the means provided in clause 10.4(f)(i) of the Constitution (namely the holding of an SGM).
[76] First defendant's submissions [32] - [33].

In this regard, SAWA relies on the decision of Le Miere J in Kaur v Sikh Gurdwara Perth (Inc)[77] as an example of a case where the failure of a party to take steps to resolve the dispute prior to instituting proceedings was a factor weighing against the court exercising its discretion to make the declarations sought by the plaintiffs.[78] This case concerned three plaintiffs who had applied for but were denied membership of the body in question. The majority of the decision concerned the question of whether the plaintiffs had standing to obtain a declaration that they should be granted membership. His Honour held that the plaintiffs did not have standing.[79] His Honour then went on to find that even if the plaintiff did have standing, he would not have exercised his discretion to grant the relief sought due to three factors, being the fact that the plaintiffs had not attempted to resolve their dispute with the organisation at all, the delay of over 16 months between the decision and the commencement of the action for two of the plaintiffs and on the issue of whether the dispute was justiciable.[80]
[77] Kaur v Sikh Gurdwara Perth (Inc) [2017] WASC 270.
[78] ts 71-72.
[79] Kaur v Sikh Gurdwara Perth (Inc) [2017] WASC 270 [75] - [78].
[80] Kaur v Sikh Gurdwara Perth (Inc) [2017] WASC 270 [79] - [82].
Whilst the facts in Kaur v Sikh Gurdwara Perth (Inc) are very different to the present case, I accept that a declaration is a flexible and discretionary remedy and that factors including delay and attempts taken to resolve the dispute prior to commencing litigation may (depending on all the facts) be relevant to the exercise of the court's discretion.
In oral submissions, SAWA did not advance a submission that it was necessary for the plaintiff to establish that it commenced this originating summons with 'clean hands'.[81] Rather, counsel for SAWA submitted that each matter was a relevant consideration to take into account when exercising the overall discretion of the court.[82]
[81] ts 73.
[82] ts 71 - 76.
SAWA also did not at any point submit that the plaintiff was prevented from commencing his action without first engaging in the dispute resolution process under the Constitution. Rather, SAWA's submission concerned the exercise of the court's discretion.
Each of the above paragraphs of the second defendant's affidavit relied on by SAWA are objected to by the plaintiff. The plaintiff also objects to additional paragraphs of the second defendant's affidavit. The objections are made on the grounds of relevance. The plaintiff submits that each of the three baseline discretionary criteria identified by Gibbs J in Forster v Jododex have been satisfied in the present case, and therefore in the event that the court accepts the plaintiff's construction of rule 10.4 of the Constitution then there are no other factors relevant to the exercise of the discretion. The plaintiff says that each of the matters relied on by SAWA are premised on events which occurred after the notice to remove the plaintiff as President was purportedly issued by SAWA and are therefore not relevant to the construction.[83]
[83] ts 30 - 31.
SAWA submits that the paragraphs objected to are either relevant to the exercise of discretion or are relevant to providing the surrounding factual circumstances.[84]

Rulings on objections

[84] First defendant's submissions [11], [32] - [33]; ts 33 - 34.

I have considered the plaintiff's objections to the affidavit of the second defendant, and my rulings are as follows.
Paragraphs [6] and [7] simply detail provisions of the Constitution and are therefore not irrelevant and so I will allow those paragraphs.
Paragraphs [8] and [9] and attachments JKC-1 and JKC-2 provide background context to the facts which lead to the members of ExCo issuing the plaintiff with a written notice pursuant to rule 10.4(d). I accept these paragraphs and attachments are relevant to understanding the background to the dispute and are relevant to the exercise of my discretion. However, I do not admit these paragraphs and documents for the purposes of establishing the truth of the allegations as against the plaintiff, but rather only as an explanation for why the subsequent steps occurred.
Paragraphs [8], [9], [23], [25] and [26] and attachments JKC-1, JKC-2, JKC-12, JKC-14 and JKC-26 concern attempts taken to resolve or mediate the dispute between the parties (whether that be in private, through the Trustees of SAWA or through the parties' solicitors). I accept these matters are relevant to the exercise of my discretion and therefore I will allow these paragraphs and attachments.
Paragraph [12] and attachment JKC-3 concern additional matters which the second defendant says it became aware of after the written notice was issued to the plaintiff. It is not clear how these additional matters are relevant given they did not form part of the original written notice to the plaintiff. I therefore do not admit this paragraph and attachment.
Paragraph [17] and attachment JKC-7 deal with a meeting held by ExCo on 5 February 2023 during which the minutes of a meeting held on 15 January 2023 were discussed. As the meeting held on 15 January 2023 is relied on by the plaintiff in his affidavit,[85] I consider this paragraph and attachment are relevant.
[85] Exhibit 1 [8] and attachment HSB-4.
Paragraphs [18], [19] and [22] and attachments JKC-8 and JKC‑9 are concerned with the attempts by SAWA to access the offices and records. I consider these matters to be relevant to the exercise of my discretion.
Paragraph [20] and attachment JKC-10 deal with an allegation regarding the payment of the plaintiff's legal fees from the SAWA bank account. The paragraph states that this matter was resolved. SAWA does not rely on this fact in its submissions as to the relevant discretionary factors and therefore I do not consider it to be relevant.
Paragraphs [21] and [24] and attachments JKC-11 and JKC-13 refer to communications sent by the second defendant to the membership of SAWA addressing matters which appear to have been raised by the plaintiff or other members of SAWA who support the plaintiff. These communications are not relevant to the background context or any of the submissions made by the second defendant as to the exercise of my discretion. This has the consequence that paragraphs [5] and [13] and attachments TPLD-1 and TPLD-9 of the affidavit of Timothy Paul Lucas Drok is also irrelevant.
By way of conclusion, I therefore:
(a)admit the affidavit of the second defendant (previously marked MFI-1, now Exhibit 4) except for paragraphs [12], [20], [21] and [24] and attachments JKC-3, JKC-10, JKC-11 and JKC-13 which are to be deleted; and
(b)admit the affidavit of Timothy Paul Lucas Drok (previously marked MFI-2, now Exhibit 5) except for paragraphs [5] and [13] and attachments TLPD-1 and TLPD-9 which are to be deleted.

Disposition - discretionary factors raised by SAWA

In all the circumstances, I am satisfied that none of the other discretionary matters raised by SAWA are such that I should decline to exercise my discretion to make at least one of the declarations sought by the plaintiff.
The totality of the affidavit evidence before me reveals two different versions of events as to why the dispute resolution process has not been entered into and why an SGM has not yet been called. Absent cross examination of the deponents of each affidavit, to the extent that allegations made in one affidavit were credibly denied in the opposing affidavits, I am required to ignore the disputed allegations.[86]
[86] Barboutis v The Kart Centre Pty Ltd [No 2] [2020] WASCA 41 [7].
The totality of the affidavit evidence paints a picture of two different 'camps' of ExCo members each with a different view of a number of matters, including the correct construction of rule 10.4 of the Constitution; whether the plaintiff has lawfully been removed from the position of President (and whether he should be) and who is responsible for the SGM not being called or held to date.
The affidavit evidence reveals that these different views have led to a situation where some members of ExCo were unable to access office space and/or membership records, the allegation being that the plaintiff and his supporters are responsible for this.[87] However, it is unclear if that remains the case.[88] It also unclear if that is the only reason why an SGM has not been called to date. In this regard, I note that in correspondence between the parties' solicitors, SAWA, through their solicitors appear to place a condition upon the calling of an SGM, being that the plaintiff concede that he had been removed as President of SAWA.[89] Therefore, the precise reason for the continuing failure to hold an SGM, and the allocation of responsibility for this, is unclear on the basis of the affidavit evidence.
[87] Exhibit 4 [19], [22] and attachment JKC-9.
[88] Exhibit 5 attachment TPLD-11 [9] - [14].
[89] Exhibit 4 attachment JKC-15 pages 84 - 85.
The affidavit evidence also reveals that attempts have been made by the parties to resolve the dispute, through attempting to involve the Trustees of SAWA and later through the parties' legal advisers. I also note that the parties attended a mediation conference before a Registrar of this court. Despite these attempts, the parties have not been able to resolve their dispute.
The affidavit evidence establishes that the above differences have led to the locks of the SAWA offices being changed, the police being called, changes being made to the signatories of the relevant SAWA bank accounts and two persons calling themselves President of SAWA and two sets of different ExCo meetings being held.[90]
[90] See Exhibit 4 [19] and [22]; Exhibit 2 [8] and [11] - [13]; ts 79 - 84.
In all the circumstances, I consider that the entrenched nature and extent of the dispute between the two 'camps' of ExCo members is a reason in favour of exercising my discretion to make declarations regarding the correct construction of rule 10.4 in order to ensure that ExCo, and in turn SAWA is able to function and fulfill its objects. To allow these entrenched positions to continue will be to the detriment of SAWA, its operations and its members.
However, the construction of rule 10.4 which I consider appropriate is inconsistent with aspects of the declarations sought in par 2.7 and par 2.7A of the further amended originating summons.

Conclusion

The consequence of my conclusion as to the proper construction of rule 10.4 of the Constitution is that the plaintiff has been removed from the role of President in a manner contrary to the requirements of rule 10.4 of the Constitution. Accordingly, I make the declaration sought in par 2.8 of the further amended originating summons.
However, aspects of the declarations sought in par 2.7 and par 2.7A of the further amended originating summons are inconsistent with the construction of rule 10.4 which I consider appropriate. Both par 2.7 and 2.7A proceed on the basis that rule 10.4(f) authorises the member to whom the written notice is issued to request ExCo call an SGM. Further, the declaration sough in par 2.7A.1 refers to a member being aggrieved by the show cause notice.
Given the differences between my conclusion as to the proper construction of rule 10.4 and the declarations sought in par 2.7 and par 2.7A of the further amended originating summons, I will hear further from the parties as to the appropriate course and orders.

Schedule A

2^ND NAMED DEFENDANTS		APPEARANCE	APPEARED AT HEARING
2^nd	Jaskiran Kaur Cheema	Notice of Intention to Abide	No
3^rd	Paramjit Singh Nagra	Memorandum of Appearance	No
4^th	Rajinder Singh Bassi	Memorandum of Appearance	No
5^th	Daljit Singh Dhillon	Notice of Intention to Abide	No
6^th	Simrat Singh Malhotra	Memorandum of Appearance	No
7^th	Rani Kaur Samra	Notice of Intention to Abide	No
8^th	Paramjit Kaur Tur	No Memorandum of Appearance	No
9^th	Rowinderjeet Kaur	Memorandum of Appearance	No
10^th	Baljit Kaur Sidhu	No Memorandum of Appearance	No
11^th	Pushpinder Pal Singh	Notice of Intention to Abide	No
12^th	Bhupinder Singh Brar	Notice of Intention to Abide	No
13^th	Prem Singh Judge	Memorandum of Appearance	Yes
14^th	Amarjit Singh	Memorandum of Appearance	Yes
15^th	Juginder Kaur	No Memorandum of Appearance	No
16th	Ranjit Singh	Memorandum of Appearance	Yes

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CH
Associate to Justice Seaward
16 MAY 2023