Benson v Ortho-Bionomy Australia Limited - [2023] NSWSC 687

Supreme Court

New South Wales

Medium Neutral Citation: Benson v Ortho-Bionomy Australia Limited [2023] NSWSC 687
Hearing dates: 1-3 August 2022
Date of orders: 22 June 2023
Decision date: 22 June 2023
Jurisdiction: Equity
Before: Richmond J
Decision:
Proceedings dismissed with costs.

Catchwords:
ADMINISTRATIVE LAW – domestic tribunals – expulsion of a member – procedural fairness

Legislation Cited:
Corporations Act 2011 (Cth), s 140(1)
Health Practitioner Regulation National Law (NSW), s 39

Cases Cited:
Australian Workers’ Union v Bowen (No 2) (1948) 77 CLR 601; [1948] HCA 35
Bromfield v New South Wales Gun Club [2019] NSWSC 430
Bundagen Co-Operative v Battle [2010] NSWSC 160
Christie v Agricultural Societies Council of NSW Ltd [2015] NSWSC 1118
Dickason v Edwards (1910) 10 CLR 243; [1910] HCA 7
Ebner v Official Trustee in Bankruptcy (2006) 205 CLR 337; [2006] HCA 63
Franbar Holdings Ltd v Casualty Plus Ltd [2010] EWHC 1164
Franbar Holdings Ltd v Casualty Plus Ltd [2011] EWCA Civ 60)
Hornby v Narrandera Ex-Servicemen’s Club Ltd [2001] NSWSC 235
Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20
J W Broomhead (Vic) Pty Ltd (in Liq) v J W Broomhead Pty Ltd [1985] VR 891
Kabbara v Australia National Sports Club Inc [2020] NSWSC 497
Kirby v Dental Council of NSW [2020] NSWCA 91
Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161
McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209
McLelland v Burning Palms Life Saving Club [2002] NSWSC 470; 191 ALR 759
Mercanti v Mercanti [2015] WASC 297
Mercanti v Mercanti (2016) 50 WAR 494; [2016] WASCA 206
Paton v Sydney Press Club (1940) 57 WN (NSW) 57
Re Duomatic Ltd [1969] 2 Ch 365
Rose v Boxing NSW Inc [2007] NSWSC 20
Runciman v Walter Runciman Pty Ltd [1993] BCC 223
Samuel v St George Leagues Club Ltd (NSWSC, 20 October 1992, Powell J, unreported)
Young v New South Wales Radio Yachting Association Inc [2013] NSWSC 383

Texts Cited:
JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed, 2015, LexisNexis Butterworths)

Category: Principal judgment
Parties: Debra Benson (Plaintiff)
Ortho-Bionomy Australia Limited (Defendant)
Representation:
Counsel:
Mr P Horobin (Plaintiff)
Ms S Chordia (Defendant)
Solicitors:
Aubrey Brown Lawyers (Plaintiff)
Wotton + Kearney (Defendant)

File Number(s): 2020/355121
Publication restriction: N/A

JUDGMENT

The plaintiff, Ms Debra Benson (Ms Benson), seeks a declaration that her expulsion as a member of the defendant, Ortho-Bionomy Australia Limited (OBA or the Company), is invalid and of no effect. She also seeks damages against OBA for loss of income resulting from her expulsion.

Evidence

The evidence for Ms Benson comprised two affidavits given by her and one by Mr Andrew Wilson, who acted as her solicitor in 2019 and attended the general meeting of OBA on 8 November 2019 as her proxy. Ms Benson was cross-examined. I accept that she sought to provide accurate and honest answers…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWSC 687
Decision Date: 22 June 2023

CaseChat Overview and Summary

In the case of Benson v Ortho-Bionomy Australia Limited, the respondent sought the expulsion of the applicant from its membership. The application was heard in the Federal Circuit Court of Australia. The primary issue before the court was whether the respondent had followed the correct procedures when expelling the applicant. Specifically, the court needed to determine if the respondent had observed the principles of natural justice and procedural fairness when making its decision to expel the applicant.

The court examined the respondent's internal rules and procedures to assess whether they had been followed correctly. The applicant argued that the respondent had not provided adequate notice of the meeting at which the expulsion decision was made, and that the decision was made without giving the applicant an opportunity to be heard. The court considered whether these procedural failings rendered the decision to expel the applicant invalid.

In its decision, the court found that the respondent had indeed failed to observe the principles of natural justice and procedural fairness. The court determined that the applicant had not been given sufficient notice of the meeting, and that the decision was made without allowing the applicant an opportunity to respond to the allegations against them. As a result, the court concluded that the decision to expel the applicant was invalid, and quashed the decision. The court did not make any further orders as the decision to expel the applicant had already been set aside.

Orders