Cascio v Western Suburbs Soccer, Sports and Community Club Limited t/as Canada Bay Club
[2012] NSWSC 796
•13 July 2012
Supreme Court
New South Wales
Medium Neutral Citation: Cascio v Western Suburbs Soccer, Sports & Community Club Limited t/as Canada Bay Club [2012] NSWSC 796 Hearing dates: Friday, 13 July 2012 Decision date: 13 July 2012 Jurisdiction: Equity Division - Duty List Before: White J Decision: Application for short service refused.
Catchwords: PRACTICE AND PROCEDURE - Application for short service of application for interlocutory injunction to restrain further disciplinary hearing of a club - serious questions to be tried as to procedural fairness but not appropriate to restrain meeting - further litigation might be avoided if meeting not restrained Cases Cited: Gamilaroi Boomerangs Sports Aboriginal Corporation v Members of New England Group 19 Rugby League General Committee [1999] NSWSC 293
Bell v Umina Beach Bowling Club Limited [2003] NSWSC 809
Ethell v Whalan [1971] 1 NSWLR 416
Leeson v General Council of Medical Education and Registration (1889) 43 Ch D 366Texts Cited: J R S Forbes, Justice in Tribunals, 3rd ed Category: Interlocutory applications Parties: Antonio Cascio (Plaintiff)
Western Suburbs Soccer, Sports & Community Club Limited t/as Canada Bay Club (Defendant)Representation: Counsel:
C Lambert (Plaintiff)
Ex parte
Solicitors:
E H Tebbutt & Sons Lawyers (Plaintiff)
File Number(s): 2012/218415
Judgment
HIS HONOUR: This is an application for short service of a summons. The plaintiff is a member of the Western Suburbs Soccer, Sports & Community Club Limited that trades as the Canada Bay Club. His evidence is that for three years up to November 2010 he was a director of the Club.
On 7 June 2012 the board of the club commenced what was called a "disciplinary hearing" in respect of the plaintiff. That hearing has been adjourned to 16 July 2012. The plaintiff's application is for short service of the application for an interlocutory or interim injunction to restrain the defendant through its directors from continuing to conduct the disciplinary hearing. The application is supported by a substantive affidavit from the plaintiff.
I have concluded that I should not make an order for short service. The first reason is that as Young J said in Gamilaroi Boomerangs Sports Aboriginal Corporation v Members of New England Group 19 Rugby League General Committee [1999] NSWSC 293:
"7(a) Bodies such as Group 19, which exist to promote sport in a locality, must generally be free to conduct their affairs informally, and the court will only become involved as, more or less, a last resort, otherwise the right of freedom of association held so dear by Australians would be thwarted.
8(b) As a general rule people who want to hold meetings should be allowed to hold them, otherwise the right of freedom of speech and association would be impinged."
This court is very reluctant to restrain the holding of meetings. If a resolution proposed at a meeting is liable to be impugned, and if the resolution is passed, an application can be made for the resolution to be declared void and to restrain the body from acting on an invalid resolution.
The second reason why short service is inappropriate is that the defendant could not fairly be expected to be in a position to deal with the application prior to the meeting to be held on Monday.
The third reason is that there is a prospect that once the defendant and its directors know of the institution of these proceedings and have obtained legal advice, further litigation might become unnecessary. If the plaintiff's contentions are made good, the plaintiff would be entitled to a declaration that an adverse determination, and any penalty that might be resolved upon, should be declared void and the directors restrained from acting on any such resolution.
I do not accept that the mere further holding of the disciplinary hearing and the possible adverse determination that might be made would irretrievably adversely affect the plaintiff's reputation. If the plaintiff succeeds at a later hearing, any such adverse effect would be removed by the Court's finding as to the invalidity of the resolution.
It is appropriate to say something further about the plaintiff's complaint.
On 17 April 2012 the plaintiff wrote to the Club's president, Mr Aziz, and to its general manager, Mr Kirkham. He said that over the last few months, he and other members of a concerned group had been approached by a large number of members that had told him about their concerns covering a broad range of matters. He said, amongst other things, that members were discontented, that the Club had ceased to be a place with a relaxing atmosphere, and that all concerned, including staff, were on tenterhooks. The plaintiff added:
"The comments I and the concerned members have heard from those members that often come to the club are:
1. This place is like a jail,
2. You have to be careful what you say to your friends otherwise the Gestapo will scare you, will intimidate you, will bully and will harass you so that you do not feel like coming to the Club
3. The club does not have a board. It is scare [sic] of Snow White and the Seven Dwarves,
4. The club reminds me of what happened at the APIA Club,
5. This club run by the puppeteers and his puppets.
These comments are just to name a few."
The plaintiff raised a number of questions in relation to the governance of the Club.
On 20 April 2012 Mr Aziz responded to the plaintiff's letter of 17 April. Mr Aziz said:
"I note that you make a number of statements that are clearly allegations of misbehaviour, mismanagement, bullying, harassment and other activities of ill will.
...
I require that you provide full details of each allegation, including but not limited to witness statements. ... This information is to be provided no later than 5pm on Friday, 27th April 2012.
Failure to provide this information by this time will result in a disciplinary notification being served on you as indicated in my letter to you on the 3rd February 2012."
The deadline for providing the information purportedly required by the Club was extended to 11 May 2012.
In a letter of that date to Mr Aziz and Mr Kirkham, the plaintiff said that at a meeting with Mr Aziz, he had asked the plaintiff to provide the proof but without mentioning names. The plaintiff said that he followed that instruction and provided a survey.
The document provided on 11 May 2012 consisted of two pages described as "Members' Remarks". The first page set out the remarks referred to in the plaintiff's letter of 17 April 2012 and others of a similar kind. The second page set out questions that it was said members were asking and to which they wanted answers.
Accompanying those two pages was a survey apparently completed by individuals whose membership numbers, but not names, were provided. They ticked various boxes saying whether or not, amongst other things, they had heard or had said any of the points mentioned in the Members' Remarks on page 1.
There was a similar document provided in relation to the questions.
The Club's response was to send a letter dated 25 May 2012. The letter was signed by Mr Kirkham, the General Manager. He advised that the Directors had noted that in response to the request for information contained in the Club's letter of 20 April 2012, the plaintiff had provided a survey of members. The Club asserted that this document did not address its requirements in its letter of 20 April 2012. It said that a disciplinary hearing had been set for 7 June 2012 which the plaintiff was required to attend to answer the following charge:
"Conduct Unbecoming of a Member
Particulars in relation to the charge:
1. That, on the 20th April 2012, you were asked to provide full details of each allegation raised by you in your letter of 17 April 2012, including but not limited to witness statements.
...
3. Your letter dated 11th of May 2012 does not address the requirements of the Club's letter to you. To this end the Board maintains that these allegations are without merit and remain baseless.
4. You were advised in writing on 3rd February 2012 that 'Should this pattern of baseless allegations continue the Club will be left with no alternative than to consider disciplinary action that may result in your exclusion from this Club'."
Thus the charge was that the plaintiff was guilty of conduct unbecoming a member because he had failed to respond to the Board's letter of 20 April 2012.
It appears that the charge is that the provision of unsigned statements by persons who provided their member number as to whether they had heard the various remarks is not the provision of witness statements.
The plaintiff's position was that he was responding to a request of Mr Aziz for proof that comments described in the letter of 17 April 2012 had been made without mentioning names.
The plaintiff wrote to Mr Kirkham and Mr Aziz on 2 June 2012. He asked for a list of the allegations that it was believed he had made. In response, Mr Aziz wrote on 5 June 2012, referring to the five points in the plaintiff's letter of 17 April 2012, which I quoted earlier. Mr Aziz stated:
"... You have attributed these allegations to various persons however you have failed to provide statements from these individuals as required of you in paragraph 3 of the letter to you dated 20 April 2012 ...".
A detailed transcript was taken at the hearing of 7 June 2012. It appears from that transcript that what the board asserts the plaintiff was required to provide was not statements from individuals who had heard other members make the comments set out in the plaintiff's letter of 17 April 2012, but statements from the persons who made those comments. No such request had been made of the plaintiff. Indeed, the plaintiff's complaint in his letter of 17 April 2012 concerned the atmosphere of the club and the fact that comments were being made. Whether they were true or not, was not his complaint.
The hearing before the board on 7 June 2012 opened by Mr Aziz asking the plaintiff how he pleaded to the charges. He said he pleaded not guilty. The plaintiff then said that at a meeting he had with Mr Aziz in the presence of two others, Mr Aziz said something that made them deviate from what their responses were going to be and that was the reason for supplying the survey without names. He said that after receiving the letter on Tuesday, he had spent all afternoon talking to people to get witness statements. Mr Aziz responded by saying:
"At the moment we are looking at the letter and our subsequent letter, you haven't complied with our request of the board, the charge will remain exactly what it is, what happened before with any meeting is irrelevant. The board asked to you provide statements in support of the allegations that you made and you failed to deliver. The board had no option but to take action that we have taken. I ask you to maintain within that charge. Did you comply with the board's request".
The record of the hearing states that the plaintiff said that he misunderstood the board's request until he received the letter on Tuesday and he had gone out to get witness statements because he had not understood that was what was being looked for. The record then says:
"George Aziz: The question that I ask is did you comply. I'm saying you didn't comply, we know you didn't comply, you think you complied".
He then said "I am not going to enter into this issue".
The plaintiff then presented some witness statements. There were eight such statements. Eight individuals said that they had witnessed conversations with some members of the club who had made statements of the kind previously described by the plaintiff. Those were rejected. Mr Aziz is reported as having said:
"On the issue of this statement this statement did not address what the board asked for".
It appears, from what subsequently took place, that the board was looking for statements by persons who made, or are said to have made, the comments in question.
The hearing concluded by the board purportedly requiring the plaintiff to obtain statutory declarations from such persons and the further hearing was adjourned.
Prima facie there is, at least, a serious question to be tried as to the validity of these procedures. The first concerns the allegation made by the plaintiff in these proceedings of bias. In Bell v Umina Beach Bowling Club Limited [2003] NSWSC 809, Young J said of a club whose directors had embarked on a disciplinary hearing of a kind similar to the present, that the question of bias in such a case is "could that person be reasonably or substantially suspected of bias so that he is in substance and in fact an accuser" (citing Ethell v Whalan [1971] 1 NSWLR 416 at 428; and Leeson v General Council of Medical Education and Registration (1889) 43 Ch D 366).
The plaintiff's counsel says that if a finding were made that one member of the board who participated in the hearing and the decision was biased, all of the board would be disqualified (citing J R S Forbes, Justice in Tribunals, 3rd ed, Chapter 15, p 274, item 5.)
One would have thought that there would be a real question to be determined by the board as to whether or not the survey responses, apparently, prepared by members, satisfied the requirement of witness statements, particularly, if Mr Aziz did make the statement to the plaintiff that the plaintiff said was made. Mr Aziz did not deny doing so. Those who completed the survey made statements of having heard particular comments. One can only, in those circumstances, regard with disquiet Mr Aziz's statement at the commencement of the hearing that:
"I am saying you did not comply. We know you did not comply".
The other matter that raises, at least, a serious question to be tried as to the procedural fairness of these proceedings is the apparent shifting of the goal posts, as the plaintiff's counsel puts. As far as the correspondence before me reveals, the board did not, at any time before the commencement of the disciplinary hearing, require statements from the persons who may have made the comments to which the plaintiff referred in his letter of 17 April 2012. Nor was the plaintiff's complaint in that letter a complaint as to the truth of the statements. His complaint was that the board was failing in the task of ensuring a happy atmosphere in the club, as evidenced by the fact that such statements were being made.
There would be a serious question to be tried as to whether, acting rationally, the directors could form a view that the plaintiff was guilty of conduct unbecoming a member by not producing statements from the persons who made them.
I make these observations so that the directors and their legal advisers can consider their position prior to the resumption of the disciplinary hearing on 16 July 2012.
However, for the reasons I have given, it would not be appropriate for an interlocutory injunction to be granted to restrain the holding of that meeting and, accordingly, I am refusing the application for short service.
If resolutions adverse to the plaintiff are passed, the plaintiff will have to amend his summons to seek declarations as to the invalidity of any resolution and to amend his claim for injunctive relief to include a claim that the defendant, by its directors, be restrained from acting upon any such resolution. I will grant liberty to restore the matter on short notice.
However, it may be that further proceedings, at least, in relation to the issue as it presently exists, may not be necessary.
I direct that the summons be stood over to the Registrar's List on 20 July 2012.
I give the plaintiff liberty to restore the matter and to apply on reasonable notice to the defendant.
I give the plaintiff leave to amend the summons, if that is thought necessary or desirable.
These orders may be entered forthwith.
Postscript
Subsequently in chambers I made further orders that the time for service of the summons and supporting affidavit be abridged to 6pm today and that a copy of these reasons also be served by that time.
Decision last updated: 13 July 2012
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