DINES and GERALDTON GRAMMAR SCHOOL INCORPORATED - [2017] WASAT 53

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: ASSOCIATIONS INCORPORATION ACT 2015

CITATION: DINES and GERALDTON GRAMMAR SCHOOL INCORPORATED [2017] WASAT 53

MEMBER: MS R PETRUCCI (MEMBER)

HEARD: 27 JANUARY 2017

DELIVERED : 6 APRIL 2017

FILE NO/S: CC 1487 of 2016

BETWEEN: ROBERT DINES
Applicant
AND
GERALDTON GRAMMAR SCHOOL INCORPORATED
Respondent

Catchwords:

Incorporated association under Association Incorporation Act 2015 (WA) - Application to have dispute terminated by Tribunal where the applicant's membership of the respondent terminated - Whether the respondent's Constitution had been complied with - Whether there had been a breach of natural justice - Whether the respondent's decision valid

Legislation:

Associations Incorporation Act 2015(WA), s 182(1), s 182(3)
State Administrative Tribunal Act 2004(WA), s 15(1)

Result:

Application successful
Decision by the respondent of 15 July 2016 to terminate applicant's membership of respondent invalid and set aside

Summary of Tribunal's decision:

This matter involved an application for the Tribunal to determine the dispute between the respondent, Geraldton Grammar School Incorporated, and the applicant, a member of the respondent.
The respondent terminated the applicant's membership of the respondent by letter dated 15 July 2016. The applicant stated it was a 'shock' to receive the letter when there was 'absolutely no contact made [with him] by any members of the Board [of Governors] nor the [school] principal or any other members between the P&F meeting on 8 June [2016] and the letter that the Deputy Chair wrote on 15 July [2016]'.
The issue for determination by the Tribunal was whether the applicant had been given a full and fair opportunity to show why his membership of the respondent should not be terminated. This required consideration of the respondent's Constitution and Rules and whether the applicant had been denied natural justice.
The Tribunal concluded that the respondent's decisionmaking process, viewed in its entirety did not entail procedural fairness. This was because the respondent failed to give the applicant adequate notice of the charge (termination of membership of the respondent) on 15 July 2016. Further, the respondent failed to allow the applicant adequate time to mount his defence. The Tribunal was not satisfied that the letter of 5 March 2016 was sufficient to allow the respondent to terminate the applicant's membership on 15 July 2016 without giving him a full and fair opportunity to show why his membership of the respondent should not be terminated.

Category: B

Representation:

Counsel:

Applicant: In Person
Respondent: In Person

Solicitors:

Applicant: N/A
Respondent: N/A

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

Australian Workers' Union v Bowen [No 2] (1948) 77 CLR 601
Ex parte Angliss Group (1969) 122 CLR 546
Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378
Kioa v West (1985) 159 CLR 550
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Russell v Duke of Norfolk [1949] 1 All ER 109
South Australia v O'Shea (1987) 163 CLR 378

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Geraldton Grammar School Incorporated (respondent) is an association incorporated under the Associations Incorporation Act 2015 (WA) (the Act). The respondent conducts or carries on a Christian grammar school in the Anglican tradition in Geraldton. The respondent is governed by the Board of Governors (Board) and has three objects which are set out in the respondent's Constitution and Rules (Constitution) as follows:
1To provide an environment that fosters and develops an educational framework to provide students with the opportunity to reach their full educational potential;
2To involve the school community in the governance of the school to strengthen and support public education in the community; and
3The property and income of the association shall be applied solely towards the promotion of the objects or purposes of the association and no part of that property or income may be paid or otherwise distributed, directly or indirectly, to members of the association, except in good faith in the promotion of those objects or purposes.
Mr Robert Dines (applicant) was a member of the Board until his membership of the respondent was terminated by the Board on 15 July 2016 (the dismissal).
The applicant contends that the respondent failed to accord him natural justice in the processes that were followed leading to his dismissal.
Section 182(1) of the Act gives this Tribunal jurisdiction to determine the dispute between a member and the respondent. The applicant invoked that jurisdiction by his application to the Tribunal on 22 September 2016.
The matter falls within the Tribunal's original jurisdiction: s 15(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). In exercising its original jurisdiction, the Tribunal is to deal with the matter in accordance with the SAT Act and the Act.
Section 182(3) of the Act provides the Tribunal may make orders giving such relief as the Tribunal considers appropriate, including one or more of the following orders:
…
(a)an order giving directions for the observance of the rules of the incorporated association by any person who has an obligation to observe those rules;
(b)an order declaring and enforcing the rights and obligations of members of the incorporated association between themselves; and
(c)an order declaring and enforcing the rights and obligations between the incorporated association and any member or members of the association.
The Tribunal held a directions hearing on 9 November 2016 where programming orders were made for the filing of documents by the parties and to list the matter for final hearing. Further, the application was amended so as to substitute the respondent to read, 'Board of Governors, Geraldton Grammar School'.
The final hearing was held on 27 January 2017. The applicant attended the hearing and gave evidence. Mrs Jenny Rolston, the Chair of the Board (Chair), Mr Gareth Rowe, the Deputy Chair of the Board (Deputy Chair) and the school's Business Manager, Mr Graeme Munday (Business Manager) also attended the hearing and gave evidence for the respondent.
Finally, the Tribunal corrected the name of the respondent to read, 'Geraldton Grammar School Incorporated' as that is the association that is incorporated under the Act.

History of events

The applicant had been a member of the respondent for about nine years. The following paragraphs set out significant events leading up to the respondent's decision of 15 July 2016 and events following that day.
On 17 February 2016, the applicant emailed to the Board members his concern regarding the air-conditioning system being installed in the new science block at the Geraldton Grammar School (school) which, in his view, was not to specification. At the Board meeting that evening the applicant's concerns were noted and referred to the architects (project managers) for follow up with the main building contractor.
On 23 February 2016, the Chair emailed the applicant stating, among other things, that she noted that at the Board meeting of 17 February 2016 when she asked whether anyone present had any conflict of interest declarations regarding the agenda items (which included the airconditioning system issue), he remained silent even though she had reminded him in July 2015 to be mindful of disclosing any conflict of interest. The Chair referred to the applicant's contact with her in July 2015 regarding the tender process for the airconditioning contract. (The applicant is associated with Ocean Air which was not successful in its bid for the installation of the airconditioning system to the school). Finally, the Chair asked the applicant to resign from the Board.
On 27 February 2016, the applicant emailed the Chair and the Board members denying that he had any conflict of interest. Further, he wrote that he found the Chair's request for his resignation to be entirely inappropriate without any right of reply. He concluded by suggesting the issue of his actions and the Chair's reactions be discussed at the next Board meeting.
On 2 March 2016, a special meeting of the Board was convened (special meeting). A quorum (six members of the Board in attendance) was present, excluding the applicant and the Chair. The Deputy Chair took on the role of chairing the special meeting.
The Deputy Chair met with the Chair and the applicant separately, sometime before the special meeting, and undertook to impartially present both points of view at the special meeting which they were requested not to attend.
At the special meeting, the Deputy Chair made it clear to all present that they would reach a resolution which would be 'binding and nonnegotiable' on all parties. The applicant denied he agreed to be bound by any decisions made at the special meeting.
It was recorded that the members in attendance at the special meeting found that the applicant had a conflict of interest (real or potential) regarding the air-conditioning system being installed at the school. Further, the members decided that it was wrong for the applicant to try to cause maximum impact by presenting a report at such a late time (on the day of the Board meeting when he had known about the issue for some months) but failed to alert members to his potential conflict of interest. Finally, the members stated it was wrong for the applicant to bring into question the integrity of the main building contractor without again declaring his potential conflict of interest.
On 5 March 2016, the Deputy Chair wrote to the applicant noting the concerns expressed by the members at the special meeting. The Deputy Chair stated that it was agreed at the special meeting that the applicant had acted in a manner which was 'unsuitable and improper'. In addition, the applicant was told that the members at the special meeting agreed that he must withdraw his email of 27 February 2016 to the Chair and copied to the Board and make a formal written apology to the Chair. The Deputy Chair concluded his letter by noting that the Board:
… will not tolerate any further activities [of the applicant] which seek to use [his] position on the Board in any manner which could be construed as prejudiced by other interests [he] might have.
Also, on 5 March 2016, the Deputy Chair wrote to the Chair noting the special meeting concluded that the Board should act in a tolerant way, with the spirit of forgiveness and offer the applicant the opportunity to withdraw his email of 27 February 2016 and provide a formal apology to her in her capacity as the Chair. The Deputy Chair also noted to assist the Chair and create clarity of process, it was recommended that the Board establish a subcommittee to draw up a set of guidelines which would address the expectations of behaviour, conduct and actions that all Board members agreed are the minimum standards to which they must adhere (guidelines). Finally, the Deputy Chair wrote that the guidelines should outline a clear grievance process to follow.
On 15 March 2016, the Deputy Chair met with the applicant and told the applicant he must comply with the requests made per his letter of 5 March 2016 (set out above) if he wanted to remain on the Board.
Later the same day (15 March 2016), the applicant emailed the Chair his apology expressing regret that she had felt personally attacked and had her integrity called into question. Further, the applicant wrote that he retracted his email to the Chair and the Board members dated 27 February 2016.
In April 2016, the Board held its annual general meeting. The applicant renominated for a further term on the Board and his position was confirmed.
On 8 June 2016, the applicant attended the Parents & Friends (P&F) meeting at the school (P&F meeting). No other Board member attended that meeting. The Board's decision (made at its meeting in midMay 2016) to cancel the '20 years cocktail' evening at the school was raised at the P&F meeting. The applicant stated that he told the parents 'the Board had cancelled the meeting due to financial reasons' (T:50; 27.01.17) but acknowledged that he suggested 'that the event could have probably gone ahead' (T:51; 27.01.17) which was contrary to the Board's position. The applicant stated he sought to garner information at the P&F meeting as to 'whether there was support for a revised function at a revised date, or a downsized-type event' (T:52; 27.01.17).
The applicant requested the Board to reconsider its decision to cancel the '20 years cocktail' evening. He provided his reasons for having the cocktail event to all the Board members.
Following a Board meeting in mid-June 2016, the Deputy Chair reported that Mr Nick Johnstone (school Principal) told the Chair and himself that he (the school Principal), had felt very uncomfortable and embarrassed by the applicant's behaviour and conduct at the P&F meeting. The applicant denied he made the Principal uncomfortable or embarrassed at that P&F meeting.
Following discussion with the Chair, the Business Manager and the school Principal, but without any discussion with the applicant, on 15 July 2016, the Deputy Chair wrote to the applicant advising that his position on the Board was 'untenable' and that he was 'dismissed from the Board with immediate effect due to his breach of the conditions set out in the letter of 5 March 2016'. The Deputy Chair stated that the applicant's dismissal from the Board was 'nonnegotiable'. Further, he stated that the decision (to dismiss the applicant) was arrived at following the Deputy Chair's consultation with senior Board and exofficio members of the Board. The issue resulting in the dismissal was that the applicant had actively engaged in a P&F forum to seek to overturn a decision of the Board to cancel the school's '20 years cocktail' evening, that he had suggested that the Board were not in receipt of all the information needed to make a valid decision and proactively tried to champion that forum to challenge the Board to get the decision reversed. Those actions, according to the Deputy Chair, were in direct contravention of the Board's guidelines.
According to the Chair and Deputy Chair, consideration was given to whether a further special meeting of the Board should be called to deliberate over whether the applicant's behaviour was indeed of a standard unbecoming of a member of the Board. All members of the Board (apart from the applicant) were canvassed by the Deputy Chair, and the result was that no member felt there was anything constructive to be gained by holding a further meeting.
On 8 August 2016, the applicant emailed the Deputy Chair requesting that he arrange mediation to resolve the issue.
On 9 August 2016, the Deputy Chair wrote to the applicant stating that he had made it clear in his letter of 5 March 2016 that any further disregard towards expected Board behaviour and policy, would result in his exclusion from the Board. The Deputy Chair stated that the recent behaviour and conduct at the P&F meeting demonstrated his disregard for the direction of the letter of 5 March 2016 which in turn resulted in his automatic exclusion from the Board. Finally, the Deputy Chair wrote that the entire Board were in agreement that it would be best if the applicant stood down as a member of the Board.
On 17 August 2016, the applicant emailed the Chair where he stated, among other things, that no contact had been made with him by any member of the Board or by the school prior to him receiving the 'letter of dismissal'. He also noted that he requested a mediation meeting but this was rejected by the Deputy Chair.
On 24 August 2016, the Chair emailed the applicant. In her letter, among other things, the Chair referred to the letter of 5 March 2016 from the Deputy Chair setting out guidance as to the applicant's expected behaviour and conduct going forward as well as a warning that should any further indiscretions occur that he would have no choice but to step down from the Board. The Chair reiterated that all members of the Board had requested that the applicant step down from the Board.

Issue

The issue for determination by the Tribunal is whether the applicant was given a full and fair opportunity to show why his membership of the respondent should not be terminated.

Respondent's contentions

The Chair, the Deputy Chair and the Business Manager appeared for the respondent.
At the hearing the Chair was adamant that:
[a]t all times the board followed a process that was ratified by members at every stage. It was never a case of one person acting on their own and imposing their will on the board. The board acted at all times in a manner that provided the applicant with procedural fairness throughout the process, and the opportunity to repair. (T:16; 27.01.17)
Further, the Chair stated:
The applicant has never complied with the terms laid down as a prerequisite and privilege of maintaining a board seat. There has been no regard by the applicant for board practice, or to be cognisant of an improvement in behaviour since being allowed to re-nominate to the Board in April 2016. (T:17; 27.01.17)
Finally, the Chair said:
The majority [of the Board] wanted to forgive and repair the position. The minority wanted the applicant to step down from the board. [Further, the respondent's position is that the letter written to the applicant was clear that] the Board was disappointed by his actions, but subject to the conditions laid out in the letter, were prepared to afford him the privilege of a Board position and the opportunity to remain. (T:19; 27.01.17)

Applicant's contentions

The applicant appeared on his own behalf.
The applicant stated he was seeking reinstatement as a member of the respondent because:
[t]he respondent has not acted in accordance with the constitution of the association … specifically with regards to the manner in which [he] was dismissed as a board member, and there is a great number of examples of where the rules of the constitution were either ignored or essentially just ignored[.] (T:15; 27.01.17)
The applicant clarified that he was no longer seeking to have the Chair or Deputy Chair dismissed as members of the Board (T:15; 27.01.17).
In essence, the applicant was concerned that the letter of 15 July 2016 came as a 'shock' as it failed to identify the charge(s) that resulted in the respondent's decision and that he was not given a full and fair opportunity to show why he should not be dismissed as a member of the respondent.

Constitution

The relevant rules of the Constitution are set out below. The Constitution does not have a dispute resolution rule.
Rule 11 of the Constitution relevantly provides, in part:
11A member shall cease to be a member of the Association if he is:
…
(d)acts in any manner which the Board finds:
(i) is unsuitable;
(ii) is improper;
(iii) is disloyal to the School Principal;
(iv) is disloyal to the objects of the Association; or
(v) discredits the Association;
…
Rule 18 provides in part:
(b)Members of the board shall seek to have a co-operative attitude and reach consensus in decision-making other than in the case of the alteration of the rules and this will be in accordance with rule 41 of this Constitution.
Rule 35 deals with special meetings and provides in part:
(a)The Board may, whenever it thinks fit, convene a special general meeting of the Association.
(b)The Board shall, on receipt of a request in writing of not less than six (6) members, convene a special general meeting of the Association.
(c)A request for a special general meeting shall state the objectives of the meeting and shall be signed by the members making the request and deposited at the office of the Association and may consist of several documents in the light form each signed by one or more of the requesting members[.]

To make an order under s 182(3)(a) (c) of the Act, the Tribunal must identify either the rule in the Constitution to be observed in s 182(3)(a), or the rights and obligations that might be enforced under s 182(3)(c) of the Act.
If the applicant's claim for relief, namely that his membership of the respondent be reinstated, falls within the orders that are open to the Tribunal under s 182(3)(a) (c) of the Act, the Tribunal must consider whether they should be made if the Tribunal finds that the applicant was denied natural justice.

Law

The requirements of natural justice are not inflexible but depend on 'the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so forth': Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 per Tucker LJ quoted in ExparteAnglissGroup (1969) 122 CLR 546 at 552. See also KioavWest (1985) 159 CLR 550 at 563 per Gibbs CJ at 594 per Wilson J at 612 615 per Brennan J.
Where the tribunal is a Board, as is the case here, the strict rules applicable are relaxed. The principle was explained by Dixon J (as he was then), in Australian Workers' Union v Bowen[No 2] (1948) 77 CLR 601 at 628:
[I]t is important to keep steadily in mind that we are dealing with a domestic forum acting under rules resting upon a consensual basis. It is a tribunal that has no rules of evidence and can inform itself in any way it chooses. Members may act upon their own knowledge and upon hearsay if they are satisfied of the truth of what they so learn and if they give the member with whom they are dealing a proper opportunity of answering the charge and defending himself[.]
However, some things are fundamental. Samuels JA in Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378, explained at 388:
It is necessary first to establish what rules of natural justice the stewards were required to observe. In my view, they were these. The stewards were bound to inform the applicant of the nature of the accusations made against him, and to give him 'a fair opportunity to make any relevant statement which he may desire to bring forward and a fair opportunity to correct to controvert any relevant statement brought forward to his prejudice': De Veteuil v Knaggs [1918] AC 557 at 560 applied in University of Ceylon v Fernando [1960] 1 W.L.R. 223 at 232; [1960] 1 All E.R. 631 at 638. Moreover, I respectfully agree with what Adam J said in R v Brewer; Ex parte Renzella [1973] VR 375 at 381: 'As it is the duty of the stewards to give a fair hearing to the person charged, they must of course until he has been heard in his defence keep their minds open in the sense of being ready and willing to be persuaded by the party charge'.
While there are differences between a stewards' enquiry into a race meeting and the termination of membership of the Board, the Tribunal is of the view that the basic principles as set out above will still apply.

Consideration

Adequate notice

In the Tribunal's view, there are several difficulties with the processes adopted by the respondent.
First, the applicant was not given any notice of the charge (the dismissal) he faced on 15 July 2016. The applicant stated it was a 'shock' to receive the letter dated 15 July 2016 via email from the Deputy Chair. He said there was 'absolutely no contact made by any members of the board, nor the principal of any other members [with him] between the P&F meeting on 8 June and the letter that the Deputy Chair wrote on 15 July' (T:56; 27.01.17) other than a request for him not to attend the planning day that had been arranged for a Saturday post 15 July 2016.
Further, the applicant stated:
I was not willing to accept that a dismissal can come by email unannounced.
and:
So, I made a great many attempts, and all those attempts were denied, which I find a real shame because there was no there was no hint that the Chair or Deputy Chair had these feelings post a June P&F meeting. There was no indication that my actions at the P&F meeting may have contravened some clause or contract that apparently had been entered into previously. (T:57; 27.01.17)
The Tribunal finds that the applicant had no opportunity to mount any defence to his conduct at the P&F meeting which ultimately led to his dismissal without knowing what the complaint was.
It is fundamental that to be given a 'full and fair opportunity' to show why his membership with the respondent should not be terminated, the applicant needed to know what the charge was (the dismissal) and the 'particulars' of the charge.
But the problem goes further than that. The letter of 5 March 2016, while alerting the applicant that the 'Board will not tolerate any further activities which seek to use your position on the Board in any manner which could be construed as prejudiced by other interests you might have' did not refer to rule 11(d) of the Constitution (which sets out when a member will cease to be a member of the Board) Nor did the letter expressly state that going forward that if any of the applicant's actions were found to be unsuitable or improper, or any of the other actions set out in rule 11 of the Constitution he would be automatically dismissed.
The Deputy Chair asserted that the letter of 5 March 2016 gave the Board the right to dismiss the applicant on 15 July 2016 following discussion with the other members without any discussion with the applicant. Further, he stated that the applicant had attended the Board meeting of 16 March 2016 where the minutes reflected 'fairly clear notes about the outcomes of the special meeting and what everybody agreed'. The Deputy Chair said he understood that both the applicant and the Chair at that point were in agreement that the special meeting had been held and the outcomes were appropriate (T: 81, 27.01.17).
The applicant stated he was unclear what condition(s) in the letter of 5 March 2015 he had breached. He said:
[i]t hasn't been made clear what those conditions were and how they were breached. (T:58; 27.01.17)
Further, the applicant asserted that the process used by the Board was unfair. He said it seemed:
[p]retty obvious … that without having the accused, as it were, to appear before the meeting of members, how could there be any reasonable expectation of a fair outcome? … Those members who were present at the special meeting … were not afforded the opportunity of inquiry. (T:43; 27.01.17)
Further he commented:
I didn’t like the process at all. I didn’t like it one little bit, but that was the process that had been forced upon me and I I really had no avenues to change that. (T:44; 27.01.17)
The applicant said he was confident of his position as a Board member and that he had done the right thing, by his email of 27 February 2016, which a number of members told him they were appreciative of him doing so. Because of this, the applicant said he did not seek to challenge the process of the Board which he stated was imposed on him.
Later, during the hearing, the applicant asserted that the Board did not follow:
[t]he accepted processes set down in the Constitution especially with regards to conducting a special meeting. There was no request in writing, and there were members that were not invited. (T: 61; 27.01.17)
Further, the applicant stated:
I find or I feel that the process was inherently unfair in design by preventing my attendance, and it did not allow board members the ability to question myself, and it did not allow myself the opportunity to answer and defend the allegations that have been made. (T: 61; 27.01.17)
The applicant felt:
The entire ordeal was quite humiliating and gave the distinct appearance that [he] was entirely at fault for the dispute with the chairperson yet it was the chairperson who failed to adhere to the association's rules. (T:63; 27.01.17)
The Deputy Chair stated that he decided to conduct the special meeting either pursuant to rule 18 or rule 35(a) of the Constitution. However, he said, this was not done in isolation as the Chair had spoken to him advising there was a dispute between the applicant and herself and therefore someone needed to take control to resolve it. Further, the Deputy Chair noted that at least four Board members who had attended the 17 February 2016 Board meeting were present when there was an 'exchange' between the Chair and the applicant which led to the special meeting.
The Deputy Chair stated that he had met with both the Chair and the applicant sometime before the special meeting and allowed them both to give him their opinions. He said the applicant told him that he felt on 'safe ground' because it had to be shown that he acted improperly or inappropriately before he could be dismissed.
The Deputy Chair said that at the special meeting, he read out his prepared statement and then chaired the meeting to get a consensus as to what 'should happen from that point forward' (T:75, 27.01.17).
The Deputy Chair stated the issue they had at that point (that is prior to the special meeting taking place) was that the applicant did not believe he had a conflict of interest. The Deputy Chair said the special meeting found that the applicant did have a conflict of interest, though he acknowledged the minutes of the special meeting failed to record this. The Deputy Chair also acknowledged that this finding (that the Board found the applicant had a conflict of interest) was not stated in the correspondence that issued, including the letter of 5 March 2016.
The minutes of the special meeting held on 2 March 2016 read in part:
Agenda: Determination of dispute resolution between Chair … and [the applicant].
…
Information and emails have become distributed in a manner that is regretful. [The applicant] saw fit to publish to the Board concerns surrounding the air con in a detailed document and specifically calling into question the actions of the lead contractor[.]
Chair viewed this as an undeclared Conflict of Interest and wrote to [the applicant] suggesting he should step down from the Board[.]
[The Deputy Chair] confirmed to the meeting that he had met both parties at their offices in the last few days, had several conversations and reflections and had undertaken to try and represent them both in affair and balanced way.
….
They both viewed their position as right. [The Chair] from the responsibility as Chair saw [the applicant's] actions as not supportive objectively, not impartial and called into question the honesty and credibility of the Board[.]
[The applicant] denied that he acted unsuitably or improperly. [The applicant] denies he has a Conflict of Interest since [the applicant] believes he has a 'love' of the School over and above and overreaching anything else. [The applicant] felt that the way he had been asked to step down was unconstitutional and defended his actions as the only course open to him.
…
There followed a wide ranging and detailed discussion which nevertheless was focussed on the issue to hand; how members felt about the actions of both parties and the remedy for it.
The consensus was that both parties should remain on the board although there was one member of the meeting who would have preferred that [the applicant] was asked to resign[.]
The Chair reiterated that the Board followed a process that was ratified by the Board members at every stage. She said that it was never one person acting on their own (T:17; 27.01.17). She restated that the Board acted in a manner that provided the applicant with procedural fairness throughout the process. She said the applicant:
[h]as never complied with the terms laid down as a pre-requisite and privilege of maintaining a [B]oard seat. There has been no regard by the applicant for [B]oard practice, or to be cognisant of an improvement in behaviour since being allowed to renominate to the [B]oard in April 2016. (T:17; 27.01.17)
The minutes of the Board meeting of 16 March 2016 at which both the Chair and the applicant attended, read in part:
After detailed discussion … regarding the conflict between the Chair and [the applicant] and the outcomes reached at the special meeting the following matters were agreed
…
•Following detailed debate it was resolved that [the applicant] would write to all Board members unreservedly retracting the email sent to the Chair dated 27 February [2016] and attaching a copy of the apology email sent to the Chair on Tuesday 15 March 2016.
…
•The letters sent to both members as a result of the Special Meeting were final and binding. The advice as a result of the Special Meeting included important guidelines as to acceptable behaviour and must be adhered to going forward[.]
In the Tribunal's view, the respondent was required to fully and fairly inform the applicant of the allegations that were made against him on 15 July 2016, both as to conduct he was alleged to have engaged in and, if it was not obvious, why that conduct was seen to be relevantly prejudicial, and in sufficient detail to enable him to mount his defence.
The failure to make clear precisely what allegations were to be met is a fundamental problem.

Time to respond

In regards to the letter of 15 July 2016, the applicant was given no time to respond. He was automatically dismissed without being given the opportunity to mount his defence. As already noted, the Deputy Chair was of the view that his letter of 5 March 2016 gave the respondent the right to dismiss the applicant following discussion he had with the other members of the Board.
It is fundamental that a member have an adequate time in which to prepare themselves to meet the charge(s) brought. It is simply unfair to expect a member to meet an allegation requiring the obtaining of evidence, for example, from different people, without being afforded an adequate time in which to do so. There is no rule as to what equates to adequate time, but the matter is left to the good sense of the Board.
In regards to the special meeting, the Deputy Chair called a meeting with the applicant sometime after the applicant's email of 27 February 2016 but before 2 March 2016 to advise that a special meeting would be held at which he would put forward the position of the applicant and the Chair.
In the Tribunal's view, a few days were not sufficient time for the applicant to mount a defence to the allegation(s) raised and discussed at the special meeting. In any event, both the applicant and the Chair were requested not to attend the special meeting and were therefore denied the opportunity to mount their respective defences.
No meeting (special or otherwise) was called before the Deputy Chair sent the letter notifying him of his dismissal on 15 July 2016.
The failure to give time for the applicant to mount his defence to the letter of 15 July 2016 (and the earlier conflict of interest issue) is a fundamental problem.

Apparent bias

It is necessary for the respondent to keep an open mind until the defence is heard. Unfortunately, the Constitution does not include this general principle.
The applicant asserted that the Deputy Chair could not be described as an independent arbitrator because of his role on the Board and his close working relationship with the Chair.
The Tribunal appreciates the respondent is in a difficult position of being both the 'Prosecutor' and the 'Judge'. Nonetheless, it is important for the respondent to make it very clear that Board members collectively and individually retain an open mine on the question of the final decision whether to terminate the applicant's membership of the respondent.
Here the process was reversed. The respondent made the dismissal decision which the applicant was advised of by letter on 15 July 2016 without hearing the applicant's defence. The Deputy Chair acknowledged that he had accepted what the school Principal had said about the applicant's conduct at the P&F meeting without any discussion with the applicant (T:84-85; 27.01.17). In his defence, the Deputy Chair said the role of the Board was to support the Principal and that his overarching concern was for the Principal (T:8485; 27.01.17). Finally, the Deputy Chair said he contacted the other Board members before he sent the letter of 15 July 2016 to check they were:
[h]appy for this to go ahead on the basis we had given [the applicant] fair warning that further behaviour – and it’s not only constitutional behaviour but also … the Board handbook … which gives fairly explicit behavioural issues that people have to comply with[.] (T:85; 27.01.17)
In the Tribunal's view, to terminate the applicant's membership of the respondent before the applicant was given the opportunity to mount his defence indicates pre-judgment that is the very antithesis of affording natural justice. The test is whether the circumstances 'would lead an objective bystander reasonably to apprehend that [the Board] had predetermined the question' in issue to use the phrase used by Mason CJ and Brennan J in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 81.
Dismissing the applicant as a member of the respondent will certainly involve some personal disgrace in his community.
However, whether any defence he may have mounted could have brought about a different result is more problematic. The respondent had assumed the truth of the allegations made against the applicant by the school Principal and also determined that the conduct so displayed had the necessary character justifying the automatic dismissal. Nonetheless, the applicant was entitled to have a chance to persuade the respondent and to do so with full knowledge of the case he must meet.

Conclusion

It is well accepted that the requirements of natural justice will be satisfied if '… the decisionmaking process, viewed in its entirety, entails procedural fairness': South Australia v O'Shea (1987) 163 CLR 378 at 389. In this case, when the decisionmaking process is viewed in its entirety, the Tribunal is not satisfied that the requirements of natural justice have been met. This is because it is fundamental that to be given a 'full and fair opportunity' to show why his membership of the respondent should not be terminated, the applicant needed to know the particulars of the charge whereby his membership of the respondent was terminated on 15 July 2016. Absent those particulars, the applicant was in the dark and could not mount his defence. Finally, the Tribunal was not satisfied that the letter of 5 March 2016 was sufficient to allow the respondent to terminate the applicant's membership on 15 July 2016 without giving him a full and fair opportunity to show why his membership of the respondent should not be terminated.
The Tribunal concludes that a declaration should be made that the respondent's decision was invalid because of the failure of the respondent to afford the applicant natural justice. Further, the Tribunal concludes that a further order be made declaring that the respondent's letter of 15 July 2016 to the applicant was invalid and must be set aside.

Orders

For the reasons set out above, the Tribunal:
1.Declares that the decision made by the respondent on 15 July 2016 terminating the applicant's membership of the respondent is invalid.
2.Declares that the respondent's letter of 15 July 2016 to the applicant by which the respondent informed the applicant that his membership of the respondent was terminated, is invalid and is set aside.
3.The application is otherwise dismissed.

I certify that this and the preceding [88] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS R PETRUCCI, MEMBER