Fitzpatrick v Lithgow and District Workmens Club Limited
[2012] NSWSC 265
•23 March 2012
Supreme Court
New South Wales
Medium Neutral Citation: Fitzpatrick v Lithgow and District Workmens Club Limited [2012] NSWSC 265 Hearing dates: 27 and 28 February 2012 Decision date: 23 March 2012 Jurisdiction: Equity Division Before: Hallen AsJ Decision: (a)Order that the amended Summons be dismissed.
(b)Order that the balance of the proceedings stand over for 21 days to enable parties to consider what further directions, if any, should be made and to argue costs, if agreement unable to be reached.
Catchwords: ASSOCIATIONS AND CLUBS - Incorporated Club - Removal and suspension of member - Whether actions of the Defendant in suspending the Plaintiff's membership of the Club were ultra vires and void, and whether he was wrongfully suspended from membership - Assertion that the general manager acted on the mistaken belief that suspension from another section of the Club disqualified him from using the facilities of the Club, including bowling greens - Whether the claims of the Plaintiff are justiciable - Whether proceedings commenced prematurely, without compliance with the procedures provided for in the Club's Constitution; and whether the Plaintiff was only temporarily suspended, pending the determination of the Club's Disciplinary Committee, which determination the Plaintiff did not permit because he commenced these proceedings; Whether the Plaintiff suffered any diminution of rights of property, livelihood or trade, which may include reputation; Assertion that the Plaintiff does not come to Court with "clean hands" and that, therefore, the exercise of any discretion in his favour should be refused was withdrawn Legislation Cited: Companies Act 1961
Registered Clubs Act 1976Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358
Carberry v Drice as Rep of Brisbane Junior Rugby Union (An unincorporated Body) [2011] QSC 016
Carter v NSW Netball Association [2004] NSWSC 737
Dixon v Australian Society of Accountants (1989) 95 FLR 231; 87 ACTR 1
Farrell v Royal King's Park Tennis Club (Inc) [2006] WASC 51
Finlayson v Carr [1978] 1 NSWLR 657
Hanson v Radcliffe Urban District Council [1922] 2 Ch 490
Henderson v Kane and the Pioneer Club [1924] NZLR 1073
McKinnon v Grogan [1974] 1 NSWLR 295
McManus v Lithgow and District Workmen's Club Ltd (NSWSC, 25 May 1981, unreported)
Musumeci v Attorney General of NSW [2003] NSWCA 77
Rush v WA Amateur Football League (Inc) [2007] WASCA 190; (2007) 35 WAR 101
Scandrett v Dowling (1992) 27 NSWLR 483
Sutherland Shire Council v Leyendekkers [1970] 1 NSWR 356
Wilcox v Kogarah Golf Club Ltd (NSWSC, 23 November 1995, unreported)
Wilcox v Kogarah Golf Club Ltd (1995) 14 ACLC 421
Wise v Perpetual Trustee Co Ltd [1903] AC 139
Zusman v Royal Western Australian Bowling Association (Inc) [1999] WASC 86Texts Cited: Halsbury's Laws of Australia, vol 28
Oxford DictionaryCategory: Principal judgment Parties: Keith James Fitzpatrick (Plaintiff)
Lithgow and District Workmens Club Ltd (Defendant)Representation: Counsel:
Mr R Weaver (Plaintiff)
Mr J Hyde (Defendant)
Solicitors:
Higgins Lawyers (Plaintiff)
Barry F Cosier & Associates (Defendant)
File Number(s): 2011/339511
Judgment
The Case in Outline
HIS HONOUR: The Plaintiff, Kevin James Fitzpatrick, contends that actions of the Defendant, the Lithgow and District Workmens Club Ltd ("the Club"), by its General Manager, Michael Shane Alexander, in suspending his membership of the Club, on 29 August 2011, were ultra vires and void, and that he was wrongfully suspended from membership on that day. The Plaintiff also complains about the conduct of Mr Alexander in having him removed from the bowling greens on the day in question.
The basis of the claims for relief is that the General Manager acted on the mistaken belief that suspension from one section of the Club, namely the Lithgow and District Workmens' Club Men's Bowling Club ("the Bowling Club"), disqualified him from using the facilities of the Club, one of which facilities was the bowling greens.
The Plaintiff commenced the proceedings by originating Summons filed on 25 October 2011. An amended Summons was filed in Court on the morning of the hearing, without objection, as the nature of the claims being made by him were narrowed significantly. Despite this, the hearing took nearly two days.
Relevantly, in the amended Summons, the Plaintiff seeks the following relief:
"The plaintiff claims:
1.A declaration that the defendant's suspension of the plaintiff's membership of the Lithgow & District Workmen's Club Ltd (LDWC) on 29 August 2011 was ultra vires and void:
2.Further, or in the alternative, a declaration that the defendant wrongfully suspended the plaintiff's membership of the Lithgow & District Workmen's Club Ltd (LDWC) on 29 August 2011;
3....
4....
5.A declaration that the action of the defendant's General Manager in demanding that the plaintiff leave the LDWC bowling greens on 29 August 2011 was without cause or justification;
6.A declaration that the defendant's General Manager action in demanding that the plaintiff vacate the LDWC premises on 29 August 2011 was without justification;
7.An order that the Board of the LDWC forthwith do all acts and take all necessary steps to restore the plaintiff's membership to the LDWC with all entitlements and privileges;
8....
9.An order that the defendant be restrained from conducting disciplinary proceedings against the plaintiff in relation to any matter or matters arising prior to 30 August 2011...;
10.An order that the defendant pay the plaintiff's costs ..."
The Club contends that the Plaintiff's relationship with the Club was consensual, and not contractual, and that his removal and suspension involved no diminution of, or damage to, rights of property, livelihood, or trade. It submitted that his removal and suspension from membership, whether in accordance with the Club's Constitution or not, did not give rise to a legally enforceable right. It also submitted that the Plaintiff was only temporarily suspended, pending the determination of the Club's Disciplinary Committee, which determination the Plaintiff did not allow to proceed, because he commenced these proceedings. Finally, it submitted that the Plaintiff had acted precipitously in commencing the proceedings without first having participated in the process for determining such issues prescribed by the Club's Constitution. (A contention that the Plaintiff approached the court with "lack of clean hands" was not pressed.)
Background Facts
I am satisfied that the following matters are not the subject of dispute between the parties, or that they have been established, clearly, by the evidence.
The Club is a company limited by guarantee formed under the Companies Act 1961. It does not have a share capital. It is a registered club for the purposes of the Registered Clubs Act 1976.
The rules of the Club are contained in the Club's Constitution, which, amongst other things, governs the relationship between the Club's members and between the members and the Club. By its Constitution, it is a "non-proprietary Club".
The objects for which the Club was established include "to promote and conduct such sports game amusements and entertainments pastimes and recreation indoor and outdoor as the Club may deem expedient for the recreation of members and guests" and "to construct establish provide maintain and conduct playing areas and grounds as the Club may determine ...".
The Constitution also provides for the creation of sections and committees for the conduct, management and control, of all, or any, games or sporting activities, in which the Club is engaged and to define and limit the persons (being members of the Club) eligible for membership of all, or any, of such sections or committees.
One such section is the Bowling Club, which has its own rules and collects an annual subscription fee from members who joined it. The objects of the Bowling Club include "to promote the game of bowls".
One must have been a member of the Club, and have paid the annual subscription fee to the Bowling Club, in order to be a member of the Bowling Club.
The "greens committee" of the Bowling Club, which consisted of a duly elected representative, in conjunction with the General Manager of the Club, is responsible for the proper maintenance of the bowling greens and grounds.
In August 2011, the Plaintiff was a 'Life Member' of the Club pursuant to Article 26(b) of the Club's Constitution, in that he was a member of an ordinary class of membership of the Club, who had attained 25 consecutive years of continuous financial membership and had attained the age of 60 years. (In fact, the Plaintiff had been a member of the Club since 1967.) The Board of the Club had resolved to transfer the Plaintiff to the class of Life membership in about 2008.
As a 'Club Life member', the Plaintiff was relieved from the payment of any subscription of levies in relation to the Club; he retained the rights and privileges of a Club member and was entitled to be presented with "a distinctive badge".
The Plaintiff had been a member of the Bowling Club between 1988 and 1993. He became a member of the Bowling Club again in 2008. It is not suggested that he was a Life member of the Bowling Club. However, as a Club Life member, he was eligible for membership of the Bowling Club on payment of the prescribed annual subscription fee.
The Plaintiff was a member of the Bowling Club for the year commencing 1 July 2010 and ending 30 June 2011. He did not pay the annual subscription fee, in respect of Bowling Club membership, for the financial year commencing 1 July 2011 (which was required to be received by the Treasurer of the Club by 30 June 2011). Accordingly, at the time of the relevant events, he was not a member of the Bowling Club.
The Bowling Club had been the Plaintiff's "declared Club" at events conducted by the Royal New South Wales Bowling Club Association, until, on 6 December 2010, he obtained, from the Club, a clearance to change his declared club to the Wentworth Falls Bowling Club. He applied to become a member of the Wentworth Falls Bowling Club on 6 June 2011.
On 24 August 2011, the Plaintiff sought approval from the Bowling Club to become a "multi-member" of the Bowling Club. Such a membership entitled the member to vote at the Annual General Meeting of the bowling club to which the membership related and also to utilise the facilities of that bowling club.
The Plaintiff's application for multi-membership failed for want of a seconder. He has not sought to renew any membership of the Bowling Club.
As at 29 August 2011, the Plaintiff's wife, Robyn, was also a member of the Club and a member of what is called the Lithgow Workmen's Club Valley Ladies Bowling Club, another section of the Club.
Matters agreed upon by the Parties at the Hearing
At the commencement of the hearing, the parties agreed that:
(a)The Club provides to its members the necessary sporting facilities to fulfil its objects. The sporting and other facilities of the Club included the bowling greens on the Club's land;
(b)Members of the Club, including the Club life members, were entitled to use the sporting and other facilities;
(c)There was no rule, in either the Constitution of the Club or the Rules of the Bowling Club, which required a member of the Club to be a member of the Bowling Club in order to use the bowling greens.
(d)As at 29 August 2011, Mr Alexander in addition to being the General Manager of the Club, was the Club Secretary, as well as the senior employee then on duty, with power to remove and suspend any member from the premises of the Club.
(e)On 29 August 2011, the Plaintiff was removed and suspended by Mr Alexander who relied upon Article 49(a)(i) of the Club's Constitution.
(f)As the Secretary who had exercised the power referred to, Mr Alexander had made a written report to the Board, or the Board's duly constituted Disciplinary Committee, within 7 days of the date of the removal, a copy of which was provided to the Plaintiff;
(g)The suspension imposed by the Secretary was to apply until the meeting of the Board, or Disciplinary Committee, at which the charge was to be heard.
(h)At a Board Meeting on 26 September 2011, the Board of the Club resolved to cite the Plaintiff for his conduct on 29 August 2011. By letter dated 28 September 2011, the Board requested his attendance at a disciplinary hearing to be held at the next Board meeting on 31 October 2011.
(i)The Plaintiff commenced these proceedings before the Board meeting on 31 October 2011 and he did not attend the Board meeting on that date.
(j)At the request of the Plaintiff, made in a letter dated 26 October 2011, from his solicitors, the Club gave the Plaintiff an undertaking that it would not proceed with the Disciplinary Hearing until the Court determined the substantive issues raised by the Plaintiff in the Summons.
(k)The Club has abided by its undertaking.
The Constitution of the Club
The rules of the Club are contained in its Constitution. A copy of the Constitution "As of June 2011" formed part of the evidence.
The relevant parts of the Constitution of the Club relied upon by one party or the other are as follows. It is necessary to set out, verbatim, the relevant Articles.
"4.A decision of the Board on the construction or Interpretation of this Constitution, or on any By-laws or regulations of the Club made pursuant to this Constitution or on any matter arising there from, shall be conclusive and binding on all members of the Club, subject to such construction or interpretation being varied or revised by the members of the Club in General Meeting or by the Supreme Court of New South Wales.
...
25.(a)The rights of members to use the sporting and other facilities of the Club shall be as the Board may determine from time to time by By-law or otherwise.
(b)Without limiting the general powers of the Board conferred in paragraph (a), all members hereby acknowledge and accept that the Board has the power from time to time to organise and enforce the exclusion from the Club's premises of any member or other person (either with or without that member's or person's agreement) in accordance with:
(i)the Club's responsible service of alcohol policy (as adopted and amended by the Board from time to time); or
(ii)the Club's responsible service of gambling policy (as adopted and amended by the Board from time to time).
...
48If a member refuses or neglects to comply with any of the provisions of the Constitution of the Club or the By-laws thereof or be in the opinion of the Board or the Board's duly constituted Disciplinary Committee (as referred to in paragraph (g) below), guilty of any conduct prejudicial to the Interests of the Club or be in the opinion of the Board or the Disciplinary Committee, guilty of conduct which is unbecoming of a member or which shall render the member unfit for membership, the Board or the Disciplinary Committee shall have power to reprimand, suspend from all privileges of membership for such period as it considers fit, expel or accept the resignation of such member and to remove the person's name from the Register of members, provided that:
(a)Such member shall be notified of any charge against the member pursuant to this Rule by notice in writing by a prepaid letter posted to his or her last known address at least 14 clear days before the meeting of the Board or Disciplinary Committee at which such charge is to be heard. The notice shall set out the facts, matters and circumstances giving rise to the charge.
(b)The member charged shall be entitled to attend the hearing for, the purpose of answering the charge or may answer the charge in writing and is entitled to call witnesses in defence of the charge.
(c)The voting by the members of the Board or Disciplinary Committee present at such meeting shall be by ordinary resolution to reprimand, suspend or expel a member.
(d) If the member fails to attend such meeting the charge may be heard and dealt with and the Board or Disciplinary Committee may decide on the evidence before it, the member's absence notwithstanding, but having regard to any representations made to it in writing by the member charged.
(e)Any decision of the Board or Disciplinary Committee at such hearing or any adjournment thereof shall be final and the Board or Disciplinary Committee shall not be required to assign any reason for its decision.
(f)In the event that a notice of charge is issued to a member pursuant to paragraph (a) of this Rule, the Board or Disciplinary Committee shall have power to immediately suspend that member from all privileges of membership until the charge is heard and determined. Notice of an immediate suspension imposed by the Board or Disciplinary Committee on a member shall be notified in writing to that member.
(g)The powers of the Board under this Rule may be exercised by a Disciplinary Committee appointed by the Board and comprising not less than 3 members of the Board. A quorum of the Disciplinary Committee shall be 3 members of the Board.
49(a)The Secretary, or in the Secretary's absence the senior employee of the Club then on duty, shall have the power to remove and suspend any member from the premises of the Club:
(i)who in the opinion of the Secretary or the senior employee is then intoxicated, violent, quarrelsome or indecent; or
(ii)whose presence on the premises of the Club in the opinion of the Secretary or the senior employee may render the Club or the Secretary liable to a penalty under the Registered Clubs Act.
(b)The Secretary or the senior employee of the Club who has exercised the power referred to in paragraph (a) of this Rule shall make a written report to the Board or the Board's duly constituted Disciplinary Committee (as referred to in Rule 48) within 7 days of the date of the removal. The report will be set out the facts, matters and circumstances giving rise to the removal of the member.
(c)Any suspension of a member pursuant to paragraph (a) of this Rule shall apply until the next meeting of the Board or Disciplinary Committee at which the charge is heard.
...
52(a)The business and affairs of the Club ... shall be managed by a Board of Directors ...
...
55The Board shall be responsible for the management of the business and affairs of the Club.
...
56... the Board shall have power from time to time:
...
(m)To create sections and committees for the conduct, management and control of all or any games or sporting activities in which the Club from time to time is engaged or interested and to define and limit the persons (being members of the Club) eligible for membership of all or any such sections and committees, and to fix or approve any supplemental subscription or any charge (whether annual or special) for membership of such sections and committees or any charge (whether annual or special) for membership of such sections and committees or any of them, and from time to time to prepare or approve and amend By-laws for the control and regulation of such sections and committees and the conduct and activities thereof and also to terminate and dissolve any such sections or committees or to reconstitute the same on a similar or different basis.
(n)To impose any restrictions or limitations on the rights and privileges of members relating to their use of the premises or relating to their conduct, behaviour and dress while on the premises.
59.A person is ineligible to be a member of any section created under this Constitution unless he or she is a financial member of the Club.
63.Any disciplinary action which is taken by a section or committee created under this Constitution in respect of any member of such section or committee shall at once be reported to the Board together with the reasons for such action and with a recommendation as to further action (if any) to be taken by the Board."
The Rules of the Bowling Club
The rules of the Bowling Club are contained in its Rules. A copy of the Rules "as amended July 2009" formed part of the evidence.
The relevant parts of the Rules of the Bowling Club relied upon by one party or the other are as follows. It is necessary to set out the relevant rules verbatim.
"2.Objects -
(a)To promote the game of bowls.
(b)To hold and arrange bowls and other matches or competitions and to offer and grant or contribute towards the provisions of prize awards and distinctions."
4. (a)Membership of the Bowling Club shall be open only to members of the Lithgow and District Workmen's Club Ltd.
...
5.(a)Only ...life members of the Lithgow & District Workmen's Club Ltd shall be eligible for membership of the Bowling Club on payment of the prescribed annual subscription fee.
6.(a)The conduct of the club shall be vested in a management committee ...
(b)The committee shall have power to reprimand or suspend any member pending the hearing by the Board of Directors of the Lithgow and District Workmen's Club Ltd. of any charge against such member who shall infringe any rule or against whom any complaint in writing has been lodged with the secretary or whose conduct shall in it's opinion render him unfit for membership. But no member shall be suspended or expelled without first being summoned before the committee in writing by letter posted to his last known address at least seven (7) days before such meeting and at which at least two (2) thirds of the committee present at such meeting vote for his suspension. If he fails to attend at the time and place mentioned without reasonable excuse the charge or complaint will be heard and dealt with and the committee will decide on the evidence before it - his absence notwithstanding.
...
8. (a)The club shall fix the annual subscription fee and this subscription fee shall be subject to endorsement by the Lithgow & District Workmen's Club Ltd. And such fee will include capitation fees and other amounts levied by the B.M.D.B.A. and the R.N.S.W.B.A.
(b)All subscriptions shall be paid annually in advance and shall fall due on the last day of May in each year.
(c)No person shall exercise the privileges of a member until he has paid the subscription, which he is liable to pay in accordance with these rules. All subscriptions for membership of the club shall belong to the Lithgow and District Workmen's Club Ltd and all matters relating to the financial affairs shall be under the direct control of the Board of Directors of the Lithgow and District Workmen's Club Ltd."
...
21.(a)Except for special occasions or promotions run by the club, games of bowls will be adopted as required by the R.N.S.W.B.A to all games played under the control of the club. Failure to observe any such laws will render the offending player liable to disqualification from the competition or match."
The "privileges of a member" referred to at Rule 8(c) is not defined in the Bowling Club Rules.
Events prior to 29 August 2011
I am satisfied that the following additional matters also are not the subject of dispute between the parties, or that they have been established, clearly, by the evidence.
The Plaintiff had more than one confrontation with the Club and members of the Club over the years he was a member of the Club and Bowling Club. One incident occurred in November 2010, when the Plaintiff had verbally abused another member in front of other members and staff of the Bowling Club. The Plaintiff was subsequently suspended. (The term of any suspension had expired before the relevant events the subject of these proceedings.)
The second incident occurred in May 2011, when the Plaintiff had an argument with another member, Mr Nichol.
In a letter dated 30 June 2011 addressed to the Bowling Club, Mr Alexander on behalf of the Board of the Club, advised that the Board "would support you in denying Kevin access to the bowls facilities for twelve months. Should this occur Kevin would still have access to the Club?"
(Although much was made of the last sentence appearing as a question, I am satisfied that it was not really a question at all and that there was a typographical error by the inclusion of the question mark at the end of the sentence. There is no suggestion that the Bowling Club could determine whether any member could have access to the Club. It was also clear from the letter of 2 July, 2011, to which I shall next refer, that the Plaintiff would still have access to the Club as a Club life member.)
Even though at the relevant time, the Plaintiff was no longer a member of the Bowling Club, he was suspended from the Bowling Club for a period of 12 months in about July 2011. In a letter dated 2 July 2011, from the Bowling Club, a copy of which was provided to the Club also, the Plaintiff had been informed:
"The committee have decided that as you have broken your good behaviour bond you are from Saturday 2/7/2011 suspended for a total of 12 months from playing Bowles (sic) at the Lithgow Workmens bowling greens, this suspension does not affect your membership of the Lithgow Workmens club itself only our bowling club ... "
(Although, as originally drafted, the Plaintiff in his Summons sought relief in relation to this suspension, he abandoned the claim for relief in his amended Summons.)
Mr Alexander was aware of each incident involving the Plaintiff.
Following the receipt of the letter dated 2 July 2011, and on about 24 August 2011, the Plaintiff had a conversation with Wayne Henry Allan, who had been the Financial Manager of the Club between 1976 and 1981, and the General Manager of the Club and the Club Licensee from October 1981 to January 2008.
Mr Allan gave evidence by affidavit (and was not cross-examined) that on 24 August 2011, he had a conversation with the Plaintiff in the following terms:
"Fitzpatrick said: "I have been suspended from the Workmens Club Men's Bowling Club for a period of 1 year, until July 2012 after a report of misconduct made against me. Can I still attend the bowling greens area and use the bowling greens for some bowls practice and coaching?"
I said: "has any action been taken against your membership of the Defendant by the Board of Directors of the Defendant Club?"
Fitzpatrick said: "No action has been taken against my membership by the Board of Directors."
I said: "In my opinion as the outdoor area of the Workmens Club where the bowling greens are located are part of the defined area of the Club for licensing purposes, then as a member of the Club you are able to use that area as part of your membership privileges, the same as any other Club member.
As your membership of the Workmens Club Men's Bowling Club has been suspended, you are not able to take part in any of the activities of or be part of the Men's Bowling Club until your membership suspension period of the Men's Bowling Club has concluded."
The Plaintiff did not play a game of bowls at the Club at any time after 15 May 2011. On one occasion during this period, he attended, and, from the sideline, coached a junior player. There was no suggestion that his suspension prevented him from providing the coaching advice that he did on this occasion.
Events of 29 August 2011
The incident that set in train steps leading to the Plaintiff's suspension from the Club and which prompted these proceedings, occurred on the morning of 29 August 2011. It occurred on part of one of the bowling greens.
Because some of this evidence is in dispute, and because it is necessary to set the scene of the dispute, I shall set out the evidence of the principal participants. As will be seen, ultimately, the evidence of each is not substantially different.
In summary, the Plaintiff attended to practice and to "conduct a coaching session with" his wife on one of the bowling greens. At about 11:30 a.m., Mr Alexander asked the Plaintiff to leave immediately and that he refused to do so. There is no suggestion that the Plaintiff was intoxicated, violent or indecent, or that his presence on the premises of the Club was such as may have rendered the Club, or the Secretary, liable to a penalty under the Registered Clubs Act.
The Plaintiff's evidence of what occurred was as follows:
"23.On Monday 29 August 2011 at approximately 11:00 am I attended the BMC greens to conduct a coaching session with my wife Robyn. At approximately 11:30 the General Manager of the LWC, Michael Alexander, approached me and said words to the effect "I want you to leave the premises immediately". I responded "I don't believe that I've done anything wrong". He then responded that "I cannot physically remove you but if you don't leave the premises I will call the police and have them remove you. I continued to protest that I had done nothing wrong but he continued to insist that I leave the premises. I told him that I had good advice that I was still entitled to roll up on the green. In response he simply shrugged his shoulders. He told me that if I did not leave the premises I would be fined $550.00.
24.Michael Alexander then left the green and returned a short time later accompanied by a Club employee, Geoff Wheeler. Alexander again asked if I was going to leave the premises and I again asked for the reason why I had to leave. Michael Alexander then informed me that I was "argumentative" and turned to Wheeler and asked him if I was argumentative to which ... Mr Wheeler said yes.
25.Mr Alexander then told me that I had "the worst attitude of anyone he had ever seen and that I was always right". I replied that "I don't consider I'm always right. I simply want to know on what basis I'm required to leave the Club". I stayed on the green with my wife as Alexander moved a short distance away and apparently telephoned the Lithgow Police. I overhead (sic) him say to the police that he required them to come to the Club and remove a male person from the premises. I overhead (sic) him say in that conversation that he didn't believe that the incident was alcohol related and didn't think that the person he required removed from the Club was intoxicated.
I was deeply offended at the approach taken by Mr Alexander and unsure of what to do. My wife and I sat on a bench just off the green and waited for the police to arrive so that we could explain our position. When the police arrived, Mr Alexander directed them to me. The police informed me that the General Manager of the Club had the right to have me removed from the premises. I was then escorted from the Bowling Club area by two police officers, accompanied by my wife. I was deeply embarrassed at being escorted past people I knew very well.
26.Outside the Club, the two police officers interviewed me and took particulars from my drivers licence. The female police officer told me I would receive an infringement notice."
Subsequently, the Plaintiff received a NSW Police Force Penalty Notice alleging the offence "Excluded person fail to leave premises when required". The amount of the fine was $550.
The evidence of the Plaintiff's wife broadly corroborated what the Plaintiff had written. She wrote:
"6.At approximately 11.30am on the said Monday 29 August 2011 the General Manager of the Club, Michael Alexander, who is known to me, approached us on the green.
7.Alexander said: "Kevin, leave the premises immediately."
8.Kevin said "I don't believe that I have done anything wrong to be told to leave the premises".
9.This statement was made by Alexander on more than one occasion, and on each occasion my husband replied in the same manner.
10.Alexander then said "If you don't leave, the Police will be called and escort you from the Club. You will be fined $550 from the Club and also receive an infringement notice from the Police."
11.I said to Kevin: "Let's go, we don't need the fines".
12.Kevin said: "I won't be leaving the premises."
13.Following that, Alexander left the green area. Alexander returned approximately five minutes later with a fellow employee of the Club.
14.Alexander said: "Kevin this is your last chance to leave."
15.Kevin said: "No."
16.Alexander then made a telephone call on his mobile phone to the Lithgow Police.
17.Kevin and I sat on the bench and awaited the arrival of the Police.
18.A short time later, about 10 minutes, Police officers arrived. One of the Police officers spoke to Kevin and said: "The General Manager has the right to remove you from the premises".
19.Kevin then said to the General Manager Alexander: "What is the reason for you wanting me to leave the premises?"
20.Alexander said: "You are argumentative"."
Mr Alexander's affidavit evidence was to similar effect:
"24.At approximately 11:30 am on Monday 29 August 2011, I was advised by Geoff Nichols, who is a member of the Bowling Club, that the Plaintiff was playing bowls on the bowling green.
25.I had previously become aware that the Plaintiff was continuing to use the bowling greens despite his suspension from the bowling greens and despite the fact that he was not a financial member of the Bowling Club and accordingly not entitled to use the bowling greens.
26.I then attended upon the bowling greens and said to the Plaintiff who was accompanied by his wife "Kevin, you are not allowed to use our bowls facilities and I request that you remove yourself from the bowls area."
27.The Plaintiff refused and said "I have legal advice that I can use the Club's bowling greens."
28.I said to the Plaintiff "Kevin, please remove yourself from the greens."
29.The Plaintiff refused to leave the bowling greens and said "I have a letter from the bowling club you can read it if you like?(sic)"
30.I said to the Plaintiff "I have no need to read the letter and I will if necessary have the police remove you. I will suspend your membership if you do not remove yourself from the bowling greens."
...
32.Returning to the events of 29 August 2011, the Plaintiff said to me "Ring the police."
33.I said to the Plaintiff "If I ring the police I will ask them to charge you with failing to quit and you will be fined $550."
34.The Plaintiff said "Ring the police, I'm not leaving."
35.I then returned to my office and asked the Workmen's Club's Human Resource Manager Geoff Wheeler to accompany me to the bowling greens.
36.I then returned to the bowling greens and said to the Plaintiff "Kevin, please leave the bowling greens."
37.The Plaintiff said "I'm not leaving the green I have a right to use it."
38.I said to the Plaintiff "If you refuse to leave the bowling area of the club I will get the police to attend and remove you and ask them to fine you $550.00 for failing to quit."
39.The Plaintiff said "Ring the police, I'm not leaving."
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41.I then rang the Club's receptionist and asked to be put through to the police. While I was waiting I said to the Plaintiff "Kevin this is your last chance to leave the green or face suspension from the Club, receive a fine for failure to quit and have the police forcibly remove you from the Club."
42.The Plaintiff said "I will wait until the police arrive." The Plaintiff's wife said to him "Come on Kevin, let's leave we don't want the fine." The Plaintiff said to his wife "No I am staying until the police arrive."
43.The Plaintiff said to me "What right do you have to remove me from the greens? I have a right to use the greens."
44.I said to the Plaintiff "In the Liquor Act, the Secretary of a Club has the right to remove any person if they are argumentative. I believe that you are being argumentative and must leave."
45.The Plaintiff said to me "You have a personal issue with me."
46.I said to the Plaintiff "Kevin, just be a friend and leave."
47.The Plaintiff said to me "Get this right, you are not my friend."
48.The Plaintiff said to Geoff Wheeler "Do you consider me argumentative."
49.Geoff Wheeler said to the Plaintiff "Yes, you are being very argumentative."
50.The Plaintiff said "This is a set up."
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52.While we were waiting for the police the Plaintiff's wife again said to him "Come on Kevin, let's leave." The Plaintiff said to his wife "No I am waiting for the police."
53.The police arrived at the club approximately 10 minutes later. I said to the police officer "I have asked Kevin to leave and he has refused. I want him charged with fail to quit and I want him removed from the premises."
54.The Plaintiff said to the police "I want to tell you why I refused to leave."
55.The police officer said to the Plaintiff "Stop, you have been directed to leave the club by the Manager and you must do so."
56.The Plaintiff left the club premises with the police."
Mr Wheeler, who was not cross-examined, also swore an affidavit, in which he wrote:
"6.When we arrived at the bowling green area of the LWC, I observed that Kevin Fitzpatrick ("Kevin") and his wife Robyn Fitzpatrick ("Robyn") were playing bowls on one of the rinks. Mr & Mrs Fitzpatrick are known to me by name only. I don't ever recall having spoken to either of them before other than perhaps to say hello in passing.
7.At the time there were other people on the greens but I cannot now recall who or how many and they were some 40 metres from where Kevin and Robyn were playing bowls.
8.Michael said to Kevin "Kevin, once again I am going to ask you to leave the bowling greens."
9.Kevin said words to the following effect "I am not leaving. You have no right to move me from here."
10.Michael said to Kevin words to the following effect "You have been in trouble with the bowling club and have no right to use the bowling greens. It is as a result of that."
11.Kevin said "I am not leaving the bowling greens for anyone."
12.Michael asked Kevin to leave another three or four times. Each time after asking, Michael would remove himself to the centre of the bowling greens ... Each time after allowing Kevin to contemplate his request, Michael would again approach Kevin and repeat his request for Kevin "to remove himself from the bowling area of the Club."
13.On one occasion Kevin said "I have a piece of paper here that says I don't have to leave the green."
14.After approximately three or four more requests in the same terms as above Michael said to Kevin "Kevin you are being very argumentative, and if you won't leave I will be asking you to leave the Club."
15.Kevin said "I am not leaving you don't have the right to remove me.
16.Michael said to Kevin "Kevin, you are being argumentative. Under the licensing laws I have the right to ask you to leave the Club if you are being argumentative and if needs be I can call the Police to have them carry that out and you could be fined."
17.Kevin said: "I am not leaving.
18.Robyn said: "Come on Kevin let's go. We don't need the fine."
19.Kevin said: "I am not leaving.
20.Kevin then said to me: "Do you think I am being argumentative" to which I replied "Yes, you are being continually argumentative."
21.Kevin then said to Robyn: "I expected that, this is a set-up."
22.Michael said to Kevin another three or four times words to the following effect "Kevin, if you don't leave the bowling greens I will have you removed from the Club by the Police and you could be fined."
23.On each occasion Kevin said "I am not leaving."
24.Michael then made a phone call. After approximately 10 minutes two Police Officers arrived at the bowling greens. Kevin approached one of the Police Officers and began to speak to them. One of the Police Officers said "No Sir, I don't want to hear your explanation. The General Manager has requested that you leave and you must leave."
25.The Police Officers then walked with Kevin from the Club."
To the extent that there are differences, I do not think that they are material. (I shall deal with one difference later in these reasons as it had the potential to be material.)
All witnesses who gave oral evidence agree that the conversations between the Plaintiff and Mr Alexander were civil and non-threatening, verbally or otherwise, and that neither principal participant became heated or raised his voice. (Mr Alexander described the Plaintiff as "emotional", but the use of this word does not really assist.) There was no suggestion of threats being made, other than in reference to calling the police if the request made by Mr Alexander was not complied with.
Events following 29 August 2011
On, or about, 30 August 2011, the Plaintiff received a letter dated 29 August 2011 signed by Mr Alexander which stated:
"As you are aware your Membership has been suspended at approximately 11.45am on Monday August 29, 2011. As such you have no right of entry to the Club premises and as advised should you attempt to do so you will be asked to leave. If you refuse to leave the Club's premises we shall use all suitable means available to ensure that you do.
I advise that following an incident in the Club on 29 August 2011 your Membership privileges have been suspended under Section 49 (a) of the Club's Constitution and you are not permitted on the Club's premises.
You will shortly receive a letter from the Club asking you to appear before the Board of Directors to answer the charge of misconduct preferred against you."
Mr Alexander prepared a document headed "Incident Report and suspension of Membership" which was dated 30 August 2011 and addressed to the Plaintiff. I shall not repeat the contents of this document that contained information that was not dissimilar to what was in his affidavit. (A copy of this document was sent to the Plaintiff.)
There is no evidence of any response to the letter dated 30 August 2011.
The Plaintiff received another letter, signed by Mr Alexander, this one dated 28 September 2011, which stated:
"It is alleged that your actions on August 29, 2011 constituted conduct prejudicial to the interests of the Club. Should you be found guilty of these allegations it is possibly (sic) the Board may determine that your conduct is unbecoming of a member. The Club's constitution under section 48 (enclosed) determines the disciplinary proceedings and powers of the Disciplinary Committee.
The Board of Directors has determined to hear the misconduct charge against you on the above mentioned date. The time of the hearing will be at approximately 5:35 pm in the Club's Board Room. Should you wish to attend the hearing please be available at the Club by 5:20 pm on Monday October 31, 2011.
Included with this letter are documents for your review.
Should you wish to attend the hearing please notify myself in writing seven days prior to the event. If no such correspondence is received the case will be held in your absence."
Following receipt of the letter dated 28 September 2011, the Plaintiff's solicitors wrote to the Club requesting "particulars of the purported misconduct charge". In all, thirteen particulars were sought.
Mr Alexander, on behalf of the Club, responded in a letter headed "Without Prejudice" and dated 12 October 2011.
As stated, the proceedings were commenced less than 2 weeks later.
The Credit of the Witnesses
As can be seen from what has been written so far, the areas of factual dispute were extremely limited. In part, they turned on conversations that occurred on 29 August 2011. Even then, the differences in the conversations were within a very narrow compass.
There are two aspects of the Plaintiff's evidence that require comment.
The Plaintiff had sworn two affidavits, one in chief and one in reply. He set out his version of the events of 29 August 2011. It was not in dispute, at the hearing, that, on that date, he was still serving a suspension in relation to the Bowling Club and, in any event, that he was not, then, a financial member of the Bowling Club.
He was asked some questions about what he understood, prior to 29 August 2011, the Club's position to be, on whether he was entitled to use the bowling greens since he had been suspended from the Bowling Club. His evidence was as follows:
"Q. Do you recall saying to her, "I'm testing the water"?
A. Yes.
Q. Tell us about that.
A. Okay. What I meant by that was that I had good advice from the previous general manager who, ah, gave me good advice that I could use the facility as a member of the club, and I just, um, they, Cheryl may have said what are you doing here and I just said, "I've come to test the water".
Q. You knew that, didn't you, knew you were not supposed or at least--
A. No.
Q. --knew you should not be on the bowling green?
A. I honestly believed, through the advice, that I was entitled to be on the bowling green.
Q. You say that's the reason for you using the words, "I'm testing the water"?
A. In jest I used those words, those words.
Q. But you weren't joking, were you?
A. Yes, I was.
Q. You knew you had been suspended from the bowling club?
A. Of course.
Q. And you were doing just that, namely, testing the water by going there on that day, correct?
A. Ah, no. I believed I went there on that day because of the advice I had.
Q. Well, you knew at least that there was a question mark over whether you were entitled to be there?
A. No, not entitled. I believed that, yes, there would be, there would be, um, a problem, possibly, because it had been said before that the general manager said, if anyone - to the bowlers, "If anyone sees Kevin Fitzpatrick on the green don't approach him. I'll deal with it".
Q. And you knew that, did you, prior to going there on 29 August?
A. Yes.
...
Q. But you still thought you were testing the water?
A. Well, it's a figure of speech, yes.
Q. But it's a figure of speech that conveys that you were equivocal or unsure as to whether it would be a problem if you attended and bowled on that day?
A. I believed that there could be a possible problem.
Q. And there was nothing stopping you getting a decision from either the general manager or the president of the bowling club or somebody else in authority?
A. No."
Later, he gave the following evidence:
"Q. Could I just ask you, having spoken with Mr Allan, am I right in
understanding your evidence, that you were aware at that time that you spoke to him that there was a question about whether or not, having been suspended from the bowling club and having been a non financial member of the bowling club, you were permitted to use the bowling greens?
A. Yes.
Q. Is that a fair--
A. It's, it's fair, your Honour. Um, Mr Allan went through the constitution, which he had a lot to do in writing it, and he, he told me that I may have to do my suspension possibly with the bowling club, but as a member and full member of the club. Therefore, I would be entitled to use those.
Q. But have I captured your evidence in that you were aware that the club itself was taking a different view?
A. Yes."
He went on to say:
"Q. Yes. Now what I'm asking you is, when you spoke to him there must have been something that prompted you to speak to him. And what I'm enquiring about is, was what prompted you to speak to Mr Allan your belief that the club held a view that because you were suspended from the bowling club and because you were a non financial member you were not allowed to use the bowling greens?
A. No, I didn't realise that at all.
Q. Well, why did you speak to Mr Allan?
A. I spoke to Mr Allan because I knew that I was suspended from the bowls club and I just wanted clarification from him as to whether that would affect me after the letter I received from the men's bowling club that, yes, I was suspended from the men's bowling club for a period of 12 months but that did not affect my membership of the club. So, I went to Mr Allan and asked him for permission - for advice as to whether that would affect me from using that facility as a member."
And again in answer to my questions:
"Q. I'm sorry, I just want to go back to an earlier answer because I'm having difficulty accepting it.
A. Yep.
Q. You agree that you told Ms Schram that you were testing the water--
A. Yes.
Q. --when she asked you what are you doing here?
A. Yes.
Q. What were you testing?
A. Well, because I honestly believed that, ah, when I had Mr Allan's advice and I went down, I was probably of the, ah, ah, opinion that, yes, something, you know, something will happen, and that's when Mr Alexander walked down the stairs and onto the green."
I am unable to accept that the Plaintiff did not realise, prior to 29 August 2011, that those in control of the Club and of the Bowling Club were likely to be of the view that he was not entitled to use the bowling greens. To the contrary, his evidence overall, leads me to the view that, prior to attending the bowling green on that day with his wife, the Plaintiff very well knew that those in control of the Club and of the Bowling Club were likely to hold the view that he was not entitled to use the bowling greens as long as he was suspended from the Bowling Club and since he was no longer a financial member of the Bowling Club.
In my view, the Plaintiff went to the Club and to the bowling green with his wife on 29 August 2011, in the belief that he had "good advice" that as a Club life member, against whom no action had been taken by the Board of the Club, he had the right to use the sporting, and other, facilities of the Club, which included the bowling greens, and that he was going to exercise that right no matter what the view of others was. In addition, he and his wife had considered the Club's Constitution.
I am satisfied he also thought it was likely, prior to attending the bowling green, that doing this might lead to a request by a representative of the Club, that he not use any of the bowling greens and that doing so could lead to a problem. As I raised during submissions, it seems that the Plaintiff went there, on 29 August 2011, "itching for a fight".
I formed this view about the Plaintiff for the following reasons:
(a)The Plaintiff spoke with Mr Allan on 24 August 2011 about whether he was entitled to use the bowling greens. In addition, he and his wife looked at the Club's Constitution to form their own opinion.
(b)On the day in question, the Plaintiff told Ms Schram, he was "testing the waters", which meant that because he had been suspended from the Bowling Club he wanted to confirm what he believed the Club's position was likely to be, and then dispute it; as he described it in his oral evidence, he knew that there could be a "potential problem" and that "something would happen".
(c)Although she changed her evidence, the Plaintiff's wife, during cross-examination, stated that her husband "knew what Mr Alexander was going to say" before he reached them. (Her evidence later was that she knew what Mr Alexander was going to say. If she believed she knew what Mr Alexander was going to say, it is highly likely that the Plaintiff would have held a similar belief as to what was going to occur as there had been discussions between them.) She stated, however, in cross-examination that "as far as we knew, we read the Constitution and we felt that he was within his rights to be there".
(d)The Plaintiff did not, at any time prior to attending the Club and using one of the bowling greens, formally ascertain the view of any member of the Board, or of Mr Alexander, or tell any of those persons of the nature of the "good advice" that he had been given, or by whom it had been given. He stated in his affidavit that he had not sought a ruling from the Bowling Club, or the Club, as to his entitlement to use the greens but admitted that he could have sought a decision from someone in authority prior to 29 August 2011. He admitted that there had been nothing stopping him from doing any of those things prior to being confronted by Mr Alexander.
(e)In the conversations with Mr Alexander, he maintained, repeatedly, that he did not believe that he had done anything wrong. But he did not assert that he believed he was entitled to use the bowling greens because he was a member of the Club and therefore had rights to use the sporting and other facilities of the Club, of which the bowling greens formed part, or that these rights being unaffected by his suspension from the Bowling Club, or by his non-payment of the subscription to the Bowling Club.
(f)He referred to the letter (which was from the Bowling Club dated 2 July 2011), but did not identify it, specifically, or state that the reference in the letter to "this suspension does not affect your membership of ... the Club itself, only our bowling club" was what he was relying upon together with Article 25 of the Club's Constitution. Without explanation, the letter did not expressly provide the basis upon which he relied for using the bowling greens.
(g)He acknowledged that his approach would have been exactly the same whether he had been asked to leave the "bowling greens" or whether he had been asked to leave "the premises" (about which there was some dispute).
(h)He was requested many times by Mr Alexander to leave. He was given an opportunity to consider the request when Mr Alexander moved away, and then he was requested again. The Plaintiff remained adamant that he was not going to leave.
(i)Even the threat of the police being called and a substantial fine being imposed did not encourage him to leave, or to discuss with Mr Alexander, his reasons for refusing to do so.
(j)Nor did his wife's entreaties to leave the premises before the police arrived and before a fine was imposed, prompt him to abide the requests. He repeated to her:
"I won't be leaving the premises".
The second aspect that requires comment relates to whether the Plaintiff was requested to "leave the premises", as he said, or to "leave the bowling green" as Mr Alexander said. I have come to the view that I do not have to determine this question because of the following evidence of the Plaintiff:
"Q. Assume for the purposes of the discussion that I accept Mr Alexander's evidence that he asked you to remove yourself from the bowling green.
A. Right.
Q. Would the position with you have been any different?
A. No.
Q. Would you have taken a different approach?
A. No, I wouldn't have your Honour."
I should also say something about Mr Alexander's evidence. I have little doubt that he adopted a similarly dogmatic and determined position. Whilst he made his request to leave "nicely" (according to Ms Schram's unchallenged evidence), he was clearly not interested in ascertaining the reason, or reasons, why the Plaintiff was asserting he was entitled to use the bowling greens, why the Plaintiff believed that he had done nothing wrong, or the reasons why he would not leave the bowling greens.
Nor did Mr Alexander explain to the Plaintiff the reasons why he was requesting the Plaintiff to leave. For example, there is no evidence that he referred to the Plaintiff's suspension from the Bowling Club or to the view that such a suspension, in the Club's opinion, meant that the Plaintiff was not entitled to use the bowling greens for any purpose. Nor was there any reference to the Board's belief that the Bowling Club controlled the bowling facilities and that it was the Bowling Club that had authority over the bowling greens. Finally, any belief that, as he was no longer a member of the Bowling Club, he was not entitled to use the bowling greens, was not stated. The Plaintiff had asked him to provide an explanation.
There can be no doubt that Mr Alexander believed that the Plaintiff was not permitted to use the bowling greens, or the Bowling Club's facilities. He stated that he "did not need to read the letter" from the Bowling Club. Had he been prepared to read it, this might have prompted some rational discussion following which he would have been able to ascertain the basis of the Plaintiff's assertion that he was entitled to use the sporting and other facilities of the Club.
Mr Alexander admitted that when he returned with Mr Wheeler, the Plaintiff and his wife were seated. They were no longer playing on the bowling green.
According to Mr Alexander's evidence, the Plaintiff told him he had obtained "legal advice". Whether the Plaintiff used those words, or whether he said that he had "good advice" really does not matter, since Mr Alexander did not ask about the nature of the advice.
Mr Alexander was relying upon the contents of the letter dated 2 July 2011 from the Bowling Club to the Plaintiff and what he believed to be the view of the Club and the Bowling Club. In this regard, his understanding of that letter was that the Plaintiff could not use the bowling greens and he regarded that as a directive, not only to the Plaintiff, but also to himself.
Mr Alexander gave the following evidence that I accept:
"Q. Did the board directly advise you that it considered Mr Fitzpatrick was barred from using the bowling greens in the club as a result of his suspension from the Men's Bowling Club?
A. The discussion took place for me to write to the Men's Bowling Club, which I did. The Men's Bowling Club then wrote to Mr Fitzpatrick and copied the board and the board were of the opinion at that next meeting that he couldn't use the bowling facilities, correct, and we do believe that under 25A the directive was utter.
Q. The board didn't write to Mr Fitzpatrick and tell him he couldn't use that part of the legitimate workmen's club facilities, did they?
A. No.
Q. Any reason why not?
A. Because the board believed that the bowling club controlled the bowling facilities. They were prepared and presented on behalf of the club for the utilisation of the bowling club. As such, we believe they had authority over the greens on the bowls sporting facility basis."
(There is a typographical error in the transcript in that the word "utter" should be "otherwise". That is my recollection of the evidence and it accords with what had been submitted by the Club in relation to Article 25(a) of the Club's Constitution.)
Furthermore, there is no reason to reject the following evidence given by Mr Alexander in cross-examination:
"Q. Did you ever discuss specifically Mr Fitzpatrick and his position having been suspended from the bowling club as to whether he could use the bowling greens?
A. At board level?
Q. Yes?
A. Yes.
Q. And what was determined?
A. As I said earlier, the letter that I wrote on behalf of the board to the bowling club, then they copied us the letter they sent to Mr Fitzpatrick, was self evident from the board's opinion that that meant that the access to the bowling greens weren't for his purpose until such time as that twelve month process had completed and/or until such time as Mr Fitzpatrick approached the board and wanted to discuss it, which he never chose to do."
I am also satisfied that on 29 August 2011, Mr Alexander asserted, more than once, that the Plaintiff was being "argumentative". It is clear that he did not use the word "quarrelsome". That this is so, is evident from the document headed "Incident Report and Suspension of Membership", which contains no reference to the Plaintiff being "quarrelsome", but a reference to him being "argumentative".
Furthermore, Mr Alexander gave the following evidence:
"Q. The conversation never turned quarrelsome, did it, Mr Alexander?
A. Well, my belief is we were quarrelling. I was asking him to leave. I don't know what the Oxford Dictionary says, but in my belief that is a quarrel. That is an argument.
Q. Can I read to you from the Oxford Dictionary, Mr Alexander?
A. I am not quite familiar with that, but I am happy to hear, yes.
Q. The definition of quarrelsome is, "Given to, characterised by quarrelling", and a quarrel is, "A violent contention or altercation between individuals and with others." Now, you acknowledged that it wasn't a violent or intentional altercation between you, was it?
A. I can hear that that definition doesn't fit the bill. What I am saying is it was argumentative. I am not saying we were in fisticuffs.
Q. By that definition it certainly wasn't quarrelsome?
A. By that definition I would say the same."
Importantly, counsel for the Plaintiff did not expressly suggest that Mr Alexander did not form the opinion, or have a reasonable basis for forming the opinion, that the Plaintiff was "quarrelsome" on 29 August 2011. There was little, if any, attack upon the reasonableness, or otherwise, of Mr Alexander's opinion. It was not submitted that, objectively, there was no reasonable basis upon which the opinion could be formed. All that was put was that Mr Alexander had "already made your mind up that [the Plaintiff] should be removed from the bowling green ... irrespective". ("Irrespective of what was not identified.) Mr Alexander, in any event, denied that he had made up his mind.
Submissions that are not accepted
Because two submissions were made by counsel for the Plaintiff on the events that occurred after 29 August 2011, and before the commencement of the proceedings, I shall deal with them briefly, as in my view, they were without merit.
It was submitted that the Club's delay in taking steps to have the disciplinary issue dealt with, had prompted the Plaintiff to commence the proceedings. However, the Plaintiff made no complaint, at any time, about the time being taken to convene a meeting of the Board or of the Disciplinary Committee. He did not raise any concern following receipt of the letter dated 30 August 2011. The only reference to any delay was in the thirteenth request for particulars which stated:
"Please advise why in circumstances where our client's membership was arbitrarily suspended by you on 29 August 2011, no action was taken between 30 August 2011 and 28 September 2011 in relation to this matter."
No evidence was tendered to suggest that the Plaintiff gave notice to the Club that proceedings would be commenced because of delay. Nor did the Plaintiff say anything else about any concern about the delay between the events of 29 August 2011 and the date of the meeting to be held (31 October 2011).
It was also submitted, in the light of the history of relationship of the Plaintiff, and Mr Alexander, in particular, that the Plaintiff believed that it was unlikely that he would receive a fair hearing. Reliance was placed on the terms of the response, by Mr Alexander to the solicitors' letter, which response was described as "bellicose".
There is simply no evidence to suggest that these proceedings were commenced because of any belief that the meeting of the Disciplinary Committee, or of the Board, would not be fair and impartial.
Mr Alexander was not cross-examined to suggest that he would be involved, in any meaningful way, in the Disciplinary Committee, or Board meeting. Nor was he cross-examined (other than as set out above) to suggest that he held any particular bias towards the Plaintiff that might affect the Plaintiff receiving a fair hearing.
The Plaintiff did give evidence that he had taken legal advice before the present proceedings were commenced. The nature of the advice that he was given was not the subject of any evidence.
Finally, at the commencement of the hearing the following exchange took place between the Plaintiff's counsel and the court:
"HIS HONOUR: Why didn't he attend a meeting and engage in this costly procedure when he had an opportunity to put his case forward?
WEAVER: He should never have been taken off the green on the basis made.
HIS HONOUR: That might be so but he had an opportunity, did he not, to attend a board meeting and put his case and he could have said at the board meeting there was no disentitling reason and if he had been correct that would have been the end of the matter.
WEAVER: One would not have been guaranteed of the appropriate outcome."
I am unable to regard the last statement by the Plaintiff's counsel as a suggestion of either submitted basis for the proceedings having been commenced, or for the failure by the Plaintiff to attend the Board meeting scheduled for 31 October 2011.
Determination
As long ago as 1903, it was said in Wise v Perpetual Trustee Co Ltd [1903] AC 139 at 149:
"Clubs are associations of a peculiar nature. They are societies the members of which are perpetually changing. They are not partnerships; they are not associations for gain; and the feature which distinguishes them from other societies is that no member as such becomes liable to pay to the funds of the society or to any one else any money beyond the subscriptions required by the rules of the club to be paid so long as he remains a member. It is upon this fundamental condition, not usually expressed but understood by every one, that clubs are formed ..."
The first question that arises in this proceeding is whether the Plaintiff's removal and suspension from membership is justiciable. If it is, the next question is whether the Plaintiff is entitled, as of right, or as a matter of discretion, to the relief he seeks.
Neither side pointed to anything in the Constitution of the Club that suggests that the Constitution is intended to be legally binding. Neither are there any clear positive indications that the members contemplated the creation of legal relations, inter se, pointed to. Rather, it was submitted that entering into Club membership and the purpose of what followed between them was fundamentally social and directed to engaging in social and sporting activities.
The Defendant submits that the Plaintiff's relationship with the Club was consensual, and not contractual, and that his removal and suspension involved no diminution of, or damage to rights of, property, livelihood, or trade. It was submitted that his removal and suspension from membership, whether in accordance with the Constitution or not, gives rise to no legally enforceable right. The Constitution was not to be treated as amounting to an enforceable contract.
Although the term was not used, the effect of the submission was that there was a "consensual compact", which the members of the Club agreed to observe without affording each other contractual rights and remedies. (Palmer J, in Carter v NSW Netball Association [2004] NSWSC 737, at [85]-[86], referred to the phrase "consensual compact" being used by Priestley JA in Scandrett v Dowling (1992) 27 NSWLR 483, at 513, and by Young J (as his Honour then was) in Wilcox v Kogarah Golf Club Ltd (1995) 14 ACLC 421, at 425, "to describe the status of rules or procedures which, construed in their context and with regard to their purpose, can be seen as adopted by the members of a non-profit organisation in order to express their shared ideals, purposes or beliefs rather than in order to create contractually binding rights and duties enforceable in a court of law".)
There is some support for the view that the relationship of the parties was consensual. In McManus v Lithgow and District Workmen's Club Ltd (NSWSC, 25 May 1981, unreported) Helsham CJ in Eq said, at 3, in respect of the present Defendant, stated:
"The jurisdiction possessed by a domestic tribunal of the kind involved here which enables it to rule upon disciplinary matters comes from it acting under rules which rest upon a consensual basis; the powers which the tribunal has stem from the contract between each member of the club and other members and the club itself constituted by the Memorandum and Articles of Association, and any rules made in pursuance of any power given to make rules. It is part of the agreement between members that any untoward conduct can be investigated by a tribunal constituted by the Board and punitive action can be taken if decided to be proper."
However, I note that in Henderson v Kane and the Pioneer Club [1924] NZLR 1073 at 1075, Salmond J said:
"Social clubs are of at least three different kinds, which may be distinguished as members' clubs, proprietary clubs, and incorporated clubs. A members' club is one in which the premises and other property of the club are vested either in the members themselves as owners in common or in trustees for them. In such a case the interest of each member in the use of the club premises is a right of property, at law or in equity, vested in that member in common with the others. If he is wrongfully excluded from the premises he is excluded from the use of his own property, and the nature of any legal remedy possessed by him, whether by way of damages or otherwise, must be determined accordingly. In the case of a proprietary club, on the other hand, the premises and property of the club belong not to the members in common, but to the individual proprietor of the club. The relation between him and the members is exclusively one of contract. In consideration of an annual subscription or other payment each member has vested in him a contractual right to use the club premises and the benefit of club-membership in accordance with the terms of his contract as embodied in the rules of the club. An incorporated club, in the third place, is intermediate in its nature between a members' club and a proprietary club. The premises and property of the club are not vested either at law or in equity in the individual members. Nor are they vested in a mere stranger who has no other than a contractual relation with the members. They are vested in the body corporate of the members themselves. The precise nature of the legal relationship so constituted between the individual members and the incorporated body, and between one individual member and another, doubtless depends to some extent on the provisions of the particular statute under which the incorporation has taken place."
See also Farrell v Royal King's Park Tennis Club (Inc) [2006] WASC 51 at [51] - [63] in which some of the other authorities are discussed.
In Halsbury's Laws of Australia, vol 28, [435-320]:
"Unless a member's proprietary rights were involved or the circumstances showed clearly that the rules of an association were intended to create a legally enforceable contractual relationship among the members inter se, the traditional approach adopted by the courts was to refuse to intervene in the internal affairs of voluntary not-for-profit associations to review alleged breaches of the consensual relationship between the members."
Reliance was placed on the joint judgment of Rich, Dixon, Evatt and McTiernan JJ in Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358, at 370-371, which is regarded as the seminal authority:
"Judicial statements of authority are to be found to the effect that, except to enforce or establish some right of a proprietary nature, a member who complains that he has been unjustifiably excluded from a voluntary association, or that some breach of its rules has been committed, cannot maintain any action directly founded upon that complaint. For example, in Forbes v Eden, (1867) LR 1 Sc. & D. 568 at p 581, Lord Cranworth said:
'Save for the due disposal and administration of property, there is no authority in the Courts either of England or Scotland to take cognizance of the rules of a voluntary society entered into merely for the regulation of its own affairs. ...'
...
There are, however, reasons which justify the statement that, at common law as well as in equity, no actionable breach of contract was committed by an unauthorized resolution expelling a member of a voluntary association, or by the failure on the part of its officers to observe the rules regulating its affairs, unless the members enjoyed under them some civil right of a proprietary nature. As a generalization it expresses the result produced by the application of a number of independent legal principles: it is not in itself the enunciation of explanation of a rule or rules of the common law. One reason which must contribute in a great degree to produce the result is the general character of the voluntary associations which are likely to be formed without property and without giving to their members any civil right of a proprietary nature. They are for the most part bodies of persons who have combined to further some common end or interest, which is social, sporting, political, scientific, religious, artistic or humanitarian in character, or otherwise stands apart from private gain and material advantage. Such associations are established upon a consensual basis, but, unless there were some clear positive indication that the members contemplated the creation of legal relations inter se, the rules adopted for their governance would not be treated as amounting to an enforceable contract."
Starke J said, at 384:
"As a general rule the Courts do not interfere in the contentions or quarrels of political parties, or indeed, in the internal affairs of any voluntary association, society or club. 'Agreements to associate for purposes of recreation, or an agreement to associate for scientific or philanthropical or social or religious purposes, are not agreements which Courts of law can enforce. They are entirely personal. Therefore, in order to establish a civil wrong from the refusal to carry out such an agreement, if it can be inferred that any such agreement was made, it is necessary to see that the pursuer has suffered some practical injury, either in his reputation or in his property' (Murdison v Scottish Football Union, (1896) 23 R (Ct. of Sess.) 449 at pp 466-67)."
In Dixon v Australian Society of Accountants (1989) 95 FLR 231; 87 ACTR 1, it was held that the principles espoused by the High Court in Cameron v Hogan do not apply to persons who become members of a company limited by guarantee. Cameron v Hogan involved an unincorporated voluntary association.
A similar view was expressed in Zusman v Royal Western Australian Bowling Association (Inc) [1999] WASC 86 at [7] - [9].
In McKinnon v Grogan [1974] 1 NSWLR 295, Wootten J said, at 299:
"Despite Cameron v Hogan (1934) 51 CLR 358 the courts frequently deal with disputes between individual members and social clubs, such as RSL Clubs. This seems to be both proper and desirable, and the courts should be willing to assist in resolving disputes in organisations, whatever their size, in which parties have deliberately adopted formal rules to govern their relations."
More recently, in Western Australia in Rush v WA Amateur Football League (Inc) [2007] WASCA 190; (2007) 35 WAR 101, the Court of Appeal held:
"[30] In Skelton's case, [Skelton v Australian Rugby Union Ltd [2002] QSC 193], Chesterman J noted that there were many cases in which courts have intervened where exclusion or suspension from membership of a club or association had occurred in breach of the organisation's rules or of natural justice. However, as his Honour noted, all of those cases were predicated upon the person involved suffering some diminution of rights of property, livelihood or trade. To that category of case may be added cases where a person's reputation is damaged.
...
[37] In the particular circumstances of this case, in the absence of any property, income or reputational interests, this Court has no jurisdiction to decide issues arising out of the consensual but non-contractual relationship between the parties. ... "
Even more recently, it has been described as "tolerably clear" that the courts will intervene in the affairs of voluntary associations in some circumstances, including where there has been a breach of contract; where a proprietary right has been infringed; or where someone's livelihood or reputation is at stake: Carberry v Drice as Rep of Brisbane Junior Rugby Union (An unincorporated Body) [2011] QSC 016 per Wilson J at [33].
The Plaintiff relied upon like statements of principle.
What constitutes "rights of property" was not the subject of specific submissions. However, both parties referred to Article 25(a) of the Constitution that gave members of the Club a right to use the sporting and other facilities of the Club.
In Finlayson v Carr [1978] 1 NSWLR 657, which case concerned membership of the Australian Jockey Club, Waddell J held, at 666:
"[M]embership of the club carries with it important rights of a tangible and practical nature to the enjoyment of the property of the club ... it is clear that membership of the club carries with it important proprietary rights."
In my view, subject to discretionary considerations that are relevant to making the orders and declarations that are sought, the right that the Plaintiff had to use the sporting and other facilities of the Club, whilst he was a Club life member, whether or not that right included the use of the bowling greens whilst he was disqualified from the Bowling Club, was a right of property, or sufficiently related to his property rights, to justify the Court's power to hear and determine the proceedings.
In addition, the issue of the Plaintiff's removal and suspension gives rise to his "reputational interests". In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 578, the majority said:
"It has long been accepted that reputation is an interest attracting the protection of the rules of natural justice. Thus, over a century ago, Jessel MR said in Fisher v Keane ((1879) 11 Ch D 353) 'according to the ordinary rules by which justice should be administered by committees of clubs, or by any other body of persons who decide upon the conduct of others, [they ought not] to blast a man's reputation forever - perhaps to ruin his prospects for life, without giving him an opportunity of either defending or palliating his conduct'"
Thus, even if the Constitution provided consensual, rather than contractual, rights, I am of the view that the decision on 29 August 2011 to remove and suspend did have, or may have had, an effect on the Plaintiff's property rights, or reputation, albeit in the case of the suspension it was an interim, or temporary, one, pending him being given the opportunity for a full and fair hearing, is sufficient to warrant the Court hearing and determining the matter.
I also remember that the Plaintiff also seeks declaratory relief. Lord Sterndale M.R. in Hanson v Radcliffe Urban District Council [1922] 2 Ch 490 at 507 commented:
"In my opinion, ... the power of the court to make a declaration where it is a question of defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion".
In Sutherland Shire Council v Leyendekkers [1970] 1 NSWR 356, Street J, at 361-362, said:
"[Tlhe power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is
no legal restriction on the award of a declaration."
His Honour also said, at 363:
"An almost unlimited variety of disputes has thus been resolved, in many of which there was either no occasion to grant, or no jurisdiction to grant, effective consequential or substantive relief."
Accordingly, I am satisfied that there is a justiciable issue before the Court. I accept that, ultimately, "there are no prescriptive principles as to when it is or is not appropriate for a court to exercise its discretion to make a declaration or grant an injunction in a dispute within a voluntary organisation or social sporting club": Zusman v Royal Western Australian Bowling Association (Inc) at [41]. This does not mean, however, that the Court must make the declaration(s) sought by him or otherwise grant the relief he seeks.
Even if I were wrong in the above stated conclusions, I think it would be convenient to consider the bases of the Plaintiff's claim in order to save the parties further costs and expense. The hearing of the proceedings was of almost two days duration and seven months has passed since the events the subject of complaint. It seems to me it would be in each party's interests if I dealt with the issues raised.
I turn then to the question (which was more strenuously debated) whether the Plaintiff's removal and suspension on 29 August 2011 was in breach of the Constitution and if it was, whether the Plaintiff is entitled to the relief he seeks.
There was no dispute that the basis of the removal from the bowling green and suspension from the Club on 29 August 2011, was Article 49(a)(i) of the Constitution and, in that Article, only that, as Secretary, or the senior employee of the Club then on duty, Mr Alexander had formed the opinion that the Plaintiff was then "quarrelsome".
There is no definition of the meaning of "quarrelsome" in the Club's Constitution. Nor does the case law appear to provide clear examples of what, in such circumstances, constitutes "quarrelsome" conduct.
I have referred to the Oxford Dictionary definition that was put to Mr Alexander. No doubt there are other meanings.
It seems to me that the word "quarrelsome" has the flavour of someone being inclined to dispute or quarrel, or someone being argumentative or contentious. As was accepted by the Plaintiff's counsel during submissions, a synonym for "quarrelsome" often suggested is "argumentative".
I do not think that "quarrelsome" behaviour necessarily requires a lack of civility, raised voices, violence, physical harassment, or an argument that may be described as "heated". One may still be quarrelsome whilst at the same time being civil.
It must be remembered, however, that the requirement prescribed by Article 49(a)(i) of the Club's Constitution is not that the Plaintiff was, at the relevant time, in fact, "quarrelsome", but rather that, the Secretary, or the senior employee of the Club then on duty, formed the opinion that the he was then "quarrelsome".
Within the meaning of "opinion" seems to be the concept that there is a matter about which doubt can reasonably exist, and as to which persons, without absurdity, can come to different conclusions.
The Article imposes upon the relevant person an obligation to form an opinion on the question. That opinion must be distinguished from the grounds upon which it founded. There must be some particular conduct that logically leads to that opinion. However, once the opinion is formed, with an eye to the relevant Article of the Constitution, he, or she, could act upon it and remove and suspend the member.
Thus, the scheme of the Article in the Constitution that was relied upon suggests that, relevantly, the formation of the opinion and the decision whether to remove and suspend will be considered by the Secretary, or the senior employee of the Club then on duty, consecutively. The decision to remove or suspend is posited on the formation of the relevant opinion. Once the requisite opinion is identified, namely, the opinion that is within the intended scope of the Article (in this case that the Plaintiff was quarrelsome), then the question whether to remove and suspend is for the Secretary or the senior employee of the Club then on duty. The Article does not prescribe any lesser sanctions.
Of course, the Secretary, or the senior employee of the Club then on duty, did not have to exercise the express power to sanction granted by Article 49(a)(i)(a). It seems to me that he, or she, has a broad discretion about whether to exercise the power of removal and suspension, even if the relevant opinion is formed.
The validity of the opinion does not depend upon its soundness; it is sufficient if the opinion expressed was one reasonably open to the Secretary, or the senior employee of the Club then on duty. Whether it is a sound one is not a question that the Court should decide unless what is said to be the opinion appears to be manifestly wrong, or arrived at recklessly, carelessly, or in bad faith. If the opinion of the Secretary, or the senior employee of the Club then on duty, could be justified on any reasonable ground, then the requisite opinion exists and the power to remove and suspend is enlivened.
Nor does the Constitution prescribe how the Secretary, or the senior employee of the Club then on duty, may inform himself, or herself, upon relevant matters, or as to the matters he, or she, should consider, or ignore, in forming the opinion. In addition, the Article, in my view, does not require a formal and deliberate process of developing and "forming" an opinion. It simply requires an opinion to be formed by the Secretary, or the senior employee of the Club then on duty.
However, as was said in another context in Musumeci v Attorney General of NSW & Anor [2003] NSWCA 77 at [97]:
"the flavour of the word "opinion" when used in connection with an opinion by a person or body which triggers a situation whereby a person may be liable to be prejudiced usually has the meaning of an informed decision; see eg Allcroft v London (Bishop) [1981] AC 666 and Bruce v Cole NSWCA, 12 June 1998, unreported.
An important matter is that one cannot determine the matter through the prism of hindsight; one must consider the question as at 29 August 2011 and upon the basis of the events said to have then occurred.
Nor do I have to decide whether the Plaintiff was correct in his view of the entitlement to use the bowling green whilst he was suspended from the Bowling Club and in circumstances when he had not paid his Bowling Club membership fees. Had he explained the basis of his view, that question might have been relevant.
When Mr Alexander first approached the Plaintiff and asked him to leave, this request could not have been based upon Article 49(a)(i)(a). At that point, other than the Plaintiff being present on the bowling green with his wife, there would have been nothing done by the Plaintiff to enable Mr Alexander to form the opinion that the Plaintiff was being "quarrelsome".
The request then being made was based upon Mr Alexander's belief that, as a suspended member of the Bowling Club, and as a person who had not paid the requisite fees to be a member of the Bowling Club, the Plaintiff was not entitled to use the bowling green. It was a request that was made independent of the formation of the opinion prescribed by Article 49(a)(i) and the decision to remove and suspend later made by Mr Alexander.
However, subsequently, on 29 August 2011, following Mr Alexander's repeated requests, and his threat to call the police, he did form an opinion that the Plaintiff was "quarrelsome".
In my view, at that time, he had cause for, and was justified in, doing so.
The Plaintiff had attended on 29 August 2011 knowing that there was likely to be "a problem" if he used the bowling green. By attending to "test the waters", he provoked, or at least significantly contributed to, the events that subsequently occurred. He was determined to remain, when asked to leave, for what he believed were sound reasons. He did not specify, either prior to attending at the bowling green, or at some time during his discussions with Mr Alexander, or subsequently, what those reasons were. He simply maintained he had done nothing wrong and that he was not prepared to leave. In my view, he did so intentionally.
He also chose not to leave the bowling green, or approach any other person to advance his case for refusing to leave. For example, he did not go into the Club premises and seek to discuss the matter further. He decided, in my view, to remain at the bowling green, without any real explanation, and, thereby, enabled the formation of the opinion that he was quarrelsome.
The decision by Mr Alexander to remove and suspend the Plaintiff from the Club followed what occurred at the bowling green after the repeated requests, by Mr Alexander.
Even the Plaintiff's wife, who was of a similar view as to the Plaintiff's entitlement to use the bowling green, adopted the approach, when Mr Alexander canvassed the possibility of the police being summoned and a fine being imposed, that they should leave.
The Plaintiff's case for relief would have been far stronger if he had taken the step of providing to Mr Alexander his reasons, referring to the Constitution, if necessary, on, or before, the events that occurred for refusing to leave. He could have sought the ruling of the Board before, or after, going to the bowling green. It was the intentional failure to do so and then to not leave the bowling green that led to the events that occurred on 29 August 2011, about which complaint is made.
Once Mr Alexander formed the opinion that the Plaintiff was being quarrelsome, the only sanctions authorised by the terms of Article 49(a)(i) were removal and suspension. However, in each case, the sanction was a temporary one, until the next meeting of the Board or Disciplinary Committee at which the charge was heard: Article 48(c). The right to put his case at the meeting of the Board or Disciplinary Committee was the means available, under the Club's Constitution, to remedy any grievances arising from what had occurred and to determine any controversy that existed as to the interpretation of the Constitution.
It follows that I am not satisfied that the suspension of the Plaintiff by the Defendant was ultra vires or void, or that it was wrongful. Nor was the suspension without reasonable cause.
On the evidence that was read and heard, there is no reason to conclude that a hearing before the Board, or of the Disciplinary Committee, would have been conducted on an unsatisfactory basis. In the circumstances, I am not prepared to grant the relief sought by the Plaintiff.
Even if I am wrong in the conclusions that I have reached on the basis for the Plaintiff's removal and suspension, and that Mr Alexander had no right to remove or suspend the Plaintiff, I would not grant relief because of the weight of the discretionary considerations adverse to intervention by the Court granting the relief sought.
The Constitution provides a procedure for the Club and members to follow. I have, earlier explained my reasons for rejecting the submissions regarding why the Plaintiff had not followed that procedure. The existence of the available procedure set out in the Constitution and the Plaintiff's deliberate decision and subsequent election not to utilize that procedure is each a significant discretionary consideration.
Had the Plaintiff followed the procedure, the Board could have determined the issue on, or about, 31 October 2011. By that date, it could have been provided with the reasons that were advanced during the course of these proceedings. The Board then, for the first time, would have had the Plaintiff's reasons for refusing to leave on 29 August 2011 before it, and could have determined, on that basis, what to do. The reasons may very well have provided exonerating, or mitigating, circumstances. The questions raised in these proceedings could easily, and appropriately, have been settled within the Club's internal machinery.
Then, even if the Board concluded that the Plaintiff's reasons for remaining were unsound, there can be little doubt that the Board could then have found that his conduct on 29 August 2011, was reasonably based, or if not so based, that his reasoning was arguable and plausible. Mr Allan had provided advice to the Plaintiff. He confirmed the advice that he gave to the Plaintiff in these proceedings in an affidavit, upon which he was not cross-examined. No doubt, he could have provided a similar statement to the Board prior to its meeting.
In addition, the Plaintiff had a firm of solicitors representing him. Therefore, he had available to him, if he required it, legal assistance in stating his case, not only in relation to whether his removal and suspension was valid, but if it was, on the question of further sanction, if any, to be imposed. Mitigating factors could have been identified.
Finally, the Defendant stated, during the course of the case, in view of the time that has passed since the events on 29 August 2011, it was more likely than not, that the Board, now, would not impose any additional suspension, since, in effect, the Plaintiff, by virtue of his own conduct, has been suspended for 6 months at the date of the hearing. This was a sensible, and appropriate, concession to have made.
In my view, there is, therefore, no real utility in making the declarations sought by the Plaintiff since the dispute has become spent. As was said by Young J in Wilcox v Kogarah Golf Club Ltd (NSWSC, 23 November 1995, unreported);
"A person who seeks a declaration needs to show that the declaration is of utility at the time when the Court makes its order. There are some cases where the Court has granted a declaration after a suspension has been served if it can see that a real question is involved and the Court's decision will give some practical guidance. Thus in Merricks v Nott-Bower [1965] 1 QB 57 the police had been transferred in 1957 and in 1963 those police successfully sought declarations that their transfer was contrary to natural justice. That, however, is an exceptional situation and ordinarily the Court will hesitate to find that there is any utility in making a declaration particularly well after a period of suspension has been served.
Again, the Court does not make a declaration where there are other avenues of dealing with the matter nor where a party has let time go by before making his or her application. Again, these are discretionary matters but the Court only makes a declaration where it can see that there is some practical utility at the time when a declaration is made in intervening.
The Court is also particularly concerned that members of non-proprietary clubs and churches and associations should not resort to the Court for declarations on minor aspects of the relationship between members.
...
Although a suspension is getting close to expulsion the Courts have consistently said that a suspension for a short period of time is ordinarily not a matter with which they will interfere. In Holden v Cronulla Golf Club Ltd, 24 June 1986, unreported, I said that the Court will often take the view that where a period of suspension from a golf club is for a relatively short period the Court will decline to intervene, that this is a discretionary matter and each case would have to be considered on its own basis. There are also other decisions which are in the same plight, for instance, the decision of Helsham J in Ghantos v Windsor Country Club Limited, 29 March 1974 and the decision of the Northern Ireland Chancery Division in Watt v MacLaughlin (1923) 1 Irish Reports Chancery 112."
To the extent that a similar problem may arise in the future, the Board has power to decide on the interpretation of the Constitution or on any matter arising (Article 4 of the Constitution) knowing that there is an argument being advanced about that interpretation.
In all the circumstances, I am not prepared, as a matter of discretion, to grant the relief sought by the Plaintiff and I order that his amended Summons be dismissed.
I understand that the parties, in the event of being unsuccessful, may seek some additional relief to the effect that the matter should go back before the Board so that what was stated can be given effect to. Before any further costs are incurred, I shall give the parties an opportunity to consider these reasons, and direct the Club, within 14 days to inform the Plaintiff, whether it is considered necessary to conduct the disciplinary hearing and, if so, when that hearing is to occur. If such a disciplinary hearing is to take place, directions can be given so that there is no delay in concluding it. (One hopes, however, that enough time, and money, has been spent and that nothing further will be required to be done.)
I shall stand the matter over for a period of 21 days to consider what further directions, if any, should be made and to allow agreement to be reached on the way forward and on the issue of costs.
On the issue of costs, my tentative view, even though the Plaintiff has been unsuccessful, because of my findings regarding the role played by Mr Alexander on 29 August 2011, is to make no order as to costs, to the intent that each party is to pay his, or its, own costs. However, I am prepared to hear submissions if either of the parties wishes to submit that another costs order is appropriate in all the circumstances.
The orders I make are that:
(a)The amended Summons be dismissed.
(b)The balance of the proceedings stand over for 21 days to enable parties to consider what further directions, if any, should be made and to argue costs, if agreement unable to be reached.
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Decision last updated: 26 March 2012
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