GREEN and PORT HEDLAND PONY CLUB INC.

[2019] WASAT 16

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: ASSOCIATIONS INCORPORATION ACT 2015 (WA)

CITATION:   GREEN and PORT HEDLAND PONY CLUB INC. [2019] WASAT 16

MEMBER:   MS L EDDY, SENIOR MEMBER

HEARD:   3 DECEMBER 2018

DELIVERED          :   2 APRIL 2019

FILE NO/S:   CC 1577 of 2017

BETWEEN:   MICHAEL GREEN

Applicant

AND

PORT HEDLAND PONY CLUB INC.

Respondent

Catchwords:

Association and Clubs - Jurisdiction of the Tribunal - Application under s 182 of the Association Incorporations Act 2015 (WA) - Incorporated association - Dispute - Whether rules of association include dispute resolution process - Rights and obligations of association to members

Legislation:

Associations Incorporation Act 2015 (WA), s 27, s 51, s 56, s 58, s 182, s 182(1), s 182(3), s 188, Item 18 Sch 1 Div 1
Interpretation Act 1984 (WA), s 17

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant	:	Mr D Paratore
Respondent	:	N/A

Solicitors:

Applicant	:	Cleary Hoare Solicitors
Respondent	:	In Person

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

Kelmscott Senior Football Club (Inc) and Western Australian Amateur Football League (Inc) [2018] WASAT 6

REASONS FOR DECISION OF THE TRIBUNAL:

1. By application dated 11 August 2017 Mr Michael Green (applicant) applied to the Tribunal to have a dispute between himself and an Incorporated Association, the Port Hedland Pony Club (respondent or club) determined by the Tribunal under s 182(1) of the Associations Incorporation Act 2015 (WA) (Act).

2. In essence the applicant says that he is in dispute with the respondent in relation to a number of decisions, including a decision to terminate his and his family's membership of the association. The applicant submits that following the respondent's decision to terminate his and his family's membership of the association, the applicant exercised his right to appeal the respondent's decision under cl 6.3 of the respondent's constitution. The applicant asserts that the respondent failed, neglected or refused to hear the applicant's appeal and therefore the dispute between himself and the association was not resolved. The applicant also submits that the decisions to change his daughter's stabling allocation, to terminate his and his wife's membership with the association and not to renew his daughter's membership when it came due for renewal, were all made not in accordance with the requirements of the association's constitution and in any event were made at meetings where there was no quorum. The applicant requests that the Tribunal declare that the purported decisions made by the respondent in relation to himself and his family members were not validly made and are set aside.

3. After attempts at resolving the issues between the parties by way of informal negotiation and compulsory conferral in the Tribunal were unsuccessful, the application was listed for a final hearing of two days.  The orders of the Deputy President indicate that the first day of the hearing was to deal with the question of whether the Tribunal has jurisdiction to determine Mr Green's application, and if it is determined that the Tribunal has jurisdiction, on the second day of hearing the Tribunal would hear from the parties in relation to the substantive merits of the application.

4. However, prior to the commencement of the hearing, the Tribunal was advised that the respondent did not intend to appear at the hearing at all.  The applicant requested therefore that the hearing of the merits of the matter follow directly on from the submissions in relation to jurisdiction.  The Tribunal agreed to that course of action and ultimately the entire hearing was concluded within the one day.

Jurisdiction

1. Section 182(1) of the Act provides:

   (1)If a dispute cannot be resolved under the procedure provided for as required by Schedule 1 Division 1 item 18 ­

   (a)the incorporated association concerned; or

   (b)a member of the association involved in the dispute,

   may make an application to the State Administrative Tribunal to have the dispute determined by that Tribunal.

2. Item 18 of Sch 1 Div 1 of the Act provides:

   A procedure for dealing with any dispute under or relating to the rules ­

   (a)between members; or

   (b)between members and the incorporated association.

3. In Kelmscott Senior Football Club (Inc) and Western Australian Amateur Football League (Inc) [2018] WASAT 6 (Kelmscott Senior Football Club) the Tribunal, consisting of Deputy President Sharp and myself, determined that there must be a dispute resolution procedure in an association's rules, and on the facts a failure to resolve the dispute despite following the specified dispute resolution procedure, before an application can be made to the Tribunal under s 182 of the Act (at [32]). It was also stated that the dispute resolution procedure must be one as required by item of 18 of Sch 1 Div 1 of the Act, at [36]. This is plain from the text of s 182(1) of the Act, which does not refer to a dispute resolution procedure in isolation, but rather it refers to a dispute resolution procedure 'as required by item 18 of Sch 1 Div 1 of the Act'.

4. The applicant says that cl 6.3 of the respondent's constitution is a dispute resolution clause and that he attempted to resolve the dispute between himself and the respondent by attempting to exercise this procedure.

5. It is submitted that it is not necessary that the constitution contain a dispute resolution procedure capable of dealing with all disputes, so long as there is a dispute resolution procedure capable of dealing with the particular dispute sought to be the subject of determination by the Tribunal.

6. The applicant submits that therefore his situation is distinguishable from the situation in the Kelmscott Senior FootballClub case, where the Tribunal determined there was no dispute resolution procedure in the constitution.

7. While the term 'rules' is not defined in the Act, the rules of an association that were in place prior to the commencement of the Act remain the rules of the association. Rules cannot be altered other than by special resolution (which requires compliance with the procedure identified in s 51 of the Act). The constitution of the respondent provides for alteration to the constitution only at a general meeting when passed by a 75% majority. This is consistent with the procedure in s 51 of the Act and as such the constitution is, the Tribunal finds, the respondent's rules.

8. The constitution refers also to by-laws and provides that by-laws may be amended at Management Committee Meetings.  As was the case in the Kelmscott Senior Football Club case, any by-laws of the respondent are not 'rules' within the meaning of the Act. 

9. The only reference in the constitution to the making or alteration of 'rules' is in the powers of the management committee in cl 4 of the constitution, where it is stated that one of the powers of the Management Committee is to 'make amend and rescind rulings and by­laws'. The relevance of this is that in the respondent's 'Port Hedland Pony Club Rules' there is, at rule 14, a rule headed 'disputes'. On the evidence before the Tribunal there is no suggestion that these 'rules' were made or altered by special resolution; to the contrary it would appear that the making of 'rules' is one of the Management Committee's powers, and as such this 'rule' is not a rule within the meaning of s 182 of the Act. Therefore, the only place a dispute resolution procedure within the meaning of s 182 of the Act could potentially be found is in the respondent's constitution.

10. The applicant relies on cl 6.3 of the respondent's constitution. Clause 6 of the respondent's constitution is headed 'termination of membership' and provides as follows:

    6.1Any person's membership may be terminated by the following events:

    6.1.1Resignation.

    6.1.2Death.

    6.1.3False or inaccurate statements made in the member's application for membership of the club or commit any act detrimental to the Club.

    6.1.4Breach of any rule, regulation or By-law of the Club or commit any act detrimental to the Club.

    6.2The Management Committee shall have the power to suspend or expel any member of the Club for any of the events in Item 6.1[.]

    6.3Any member who is expelled, suspended or has their membership terminated shall have the right to appeal against their suspension or expulsion by presenting their case to a General Meeting called for such purpose, and the decision of the General Meeting shall be final.  The voting on such expulsion or suspension shall be by secret ballot.

    6.4Any member who shall be expelled from the Club or who shall for any reason whatsoever cease to be a Member of the Club shall have no reclaim to, or interest in the property or funds of the Club.

    6.5Any member who shall be expelled from the Club shall not be considered for re-nomination as a Club member for a period of not less than five (5) years from date of expulsion.

11. As is indicated by the heading, this rule concerns the circumstances in which a person's membership with the association may be suspended or terminated.  The power to suspend or terminate is vested in the Management Committee with a right to appeal the Committee's decision by presenting a case to a special general meeting.  This is a right of appeal, not a dispute resolution procedure.  Those things are two very different concepts.  An appeal is an opportunity to put your case at a general meeting, to persuade the members of the association that the Management Committee made the wrong decision.  It does not have any flavour of negotiation, which is the underlying concept of dispute resolution as it is ordinarily understood.  It is the case that dispute resolution can occur by way of arbitration, which is a process whereby the parties agree on, or there is a procedure for the selection of, a person to whom arguments from both sides may be represented, and that person will determine the dispute.  Having said that, the 'appeal' process in cl 6 of the respondent's constitution is more akin to the right to have a decision reviewed and for the person affected to present their 'case', that is, to establish that the original decision was wrong, rather than the presentation by both sides of a dispute that is to be determined. 

12. It is also difficult to characterise this as a dispute between the association and a member or between members.  The applicant submits that the Management Committee, when exercising the power to terminate a membership are in fact acting as the association.  It is submitted that it is only through the Management Committee that the association can act.  In the alternative, it is submitted that the members of the Management Committee are themselves members of the association and therefore where a decision is made by the Management Committee to terminate a member's membership that the member disagrees with, there is a dispute between members of the association.

13. At cl 5.4 of the respondent's constitution it is specified that the club shall consist of ordinary riding members, ordinary non-riding members, associate riding and associate non-riding members, life members, general and family members, patrons and affiliated organisations.  Clause 3.0 of the constitution provides for a management committee that is to be comprised of a President, two Vice-Presidents, a Secretary, a Treasurer, a committee of 10, excluding office bearers and an affiliated organisations' Junior Committee delegate.  The powers of the Management Committee are specified in cl 4.0 of the constitution and relevantly include such matters as administering the finances of the club, fixing fees and subscriptions payable by members, adjudicating on matters brought before it which affect the club, make, amend and rescind rulings and by-laws and employ people to carry out duties required by the club.  The constitution provides for meetings, the quorum required at meetings and how voting is to occur.  Thus, while the Management Committee is the body through which the day­to­day decisions and management of the club occurs, it is not the same as the association.  The association is made up of the groups identified in cl 5.4 of the constitution and that group makes decisions at meetings at which a quorum must be present and by voting.

14. In any event, even if the Tribunal is wrong, and cl 6 of the constitution can be properly understood as a dispute resolution procedure, it is not a dispute resolution procedure that complies with item 18 of Sch 1 Div 1 of the Act.  That item requires a dispute resolution procedure that provides for disputes between member and disputes between members and the association.  The applicant submits that item 18 of Sch 1 Div 1 of the Act only requires a dispute resolution procedure that either deals with disputes between members and the association or deals with disputes between members.  This is because of the use of the disjunctive 'or' between the two paragraphs in item 18.  The Tribunal accepts that, pursuant to s 17 of the Interpretation Act 1984 (WA). This is this case. However, having regard to the purpose of s 182 of the Act (as discussed in the Kelmscott Senior Football Club case) and having regard to the grammatical structure of item 18 of Sch 1 Div 1 of the Act, the 'or' connects to the disputes referred to in the commencing line, not to the dispute resolution procedures. Properly understood there is to be a dispute resolution procedure and that is to contemplate that disputes may arise between members or they may arise between members and the association itself. It would not be consistent with the purpose of s 182 of the Act to understand item 18 of Sch 1 Div 1 of the Act as allowing for a dispute resolution procedure that may deal either with disputes between members or with disputes between members and the association and need not deal with both types of dispute.

15. Clause 6 of the constitution, if it is a dispute resolution procedure, allows resolution of a dispute between the Management Committee (who made the original decision) and the person whose membership has been suspended or terminated.  The Management Committee carries out the day­to­day running of the association but is not the association.  The members who attend the special General Meeting are allowed to vote in response to the 'case' put to them by the member, and by necessary implication it would seem that they may vote to agree with the decision made by the Management Committee, to vary that decision, or to set aside that decision.  There is no 'dispute' between the association itself and the member, even though the members of the association are voting on a matter that may affect the member's ability to remain a member of the association.  Nor is there any dispute between members.  The Management Committee is, when making its decision, acting as the Management Committee and not acting as individual members.

16. In addition, there is no dispute resolution procedure for any dispute between members. It is not to the point, as the applicant submits, that the respondent is not yet required to comply with the requirement in item 18 of Sch 1 Div 1 of the Act. The point is, for the jurisdiction in s 182 of the Act to be enlivened, there must be a dispute resolution procedure in place 'as required by item 18 of Sch 1 Div 1 of the Act.' That is, there must be a dispute resolution procedure that complies with item 18 of Sch 1 Div 1.

17. There is no such dispute resolution procedure in place in the respondent's constitution and therefore the Tribunal does not have jurisdiction to determine the applicant's application.

18. However, in the event that I am wrong about jurisdiction, and because the applicant made its case in relation to the merits of the matter fully to the Tribunal, having had the facts put in issue by the respondent, who then did not provide any evidence or appear at the final hearing at all, I consider it appropriate to make findings on the evidence before the Tribunal.

Dispute

1. The Tribunal heard evidence from the applicant and from his wife Mrs Judy-Ann Green.  The Tribunal also had the following documentary evidence before it:

   1)the application lodged 11 August 2017 plus attachments (Exhibit 1);

   2)the applicant's Statement of Issues Facts and Contentions dated 9 July 2018 (Exhibit 2);

   3)the respondent's Statement of Issues Facts and Contentions and attached documents lodged on 6 August 2018 (Exhibit 3);

   4)the applicant's bundle of documents lodged on 9 July 2018 (Exhibit 4);

   5)the applicant's supplementary bundle of documents lodged on 26 October 2018 (Exhibit 5);

   6)the respondent's bundle of documents dated 31 July 2017 (Exhibit 6).

   7)the Respondent's supplementary bundle of documents lodged on 12 November 2018 (Exhibit 7);

   8)a further bundle of documents lodged by the respondents on 13 August 2018 was identified by the applicant's representative and given Exhibit number eight, however no such bundle of documents was ultimately able to be identified and therefore there was no Exhibit 8;

   9)Witness Statement of Michael Green dated 30 November 2018 (Exhibit 9); and

   10)Witness Statement of Judy-Ann Green dated 30 November 2018 (Exhibit 10).

2. Although there was no order requiring the lodging of witness statements, the Tribunal accepts, based on the word of the applicant's legal representative Mr Daniel Paratore, that those documents were served on the respondent on 30 November 2018 by email and that neither the Tribunal nor Mr Paratore received any objection or submission in relation to the witness statements from the respondent.

3. To the extent that there are statements of facts in the respondent's Statement of Issues Facts and Contentions (Exhibit 3), given that no person appeared to confirm that information at the hearing and no one was available to be cross­examined in relation to those statements, very little weight can be given to those statements.  Where the statements are contradicted by evidence confirmed on affirmation at the hearing by Mr and/or Mrs Green, no weight is given to those statements.

4. Based on the above mentioned evidence before the Tribunal, the Tribunal makes the following findings.

5. In 1990 the respondent became incorporated. As stated above, the Rules of the respondent are contained in a document described as 'Port Hedland Pony Club Inc Constitution', dated 25 February 1990. Pursuant to s 188 of the Act, following the commencement of the Act, the respondent is taken to be an incorporated association incorporated under the Act. Pursuant to s 27 of the Act the respondent's constitution continues to apply as the respondent's rules following the commencement of the Act.

6. The club's constitution provides that there is a Management Committee, which carries out the day­to­day running of the club, which must be comprised of a President, two Vice-Presidents (one who must be the immediate past President), Secretary, Treasurer, a committee of 10 (excluding the above office bearers) and a delegate from the affiliated organisation's Junior Committee:  cl 3.0 of the constitution.  There is no provision in the constitution as to the required quorum for the Management Committee to act, although cl 3.2 of the constitution provides that if the President or Vice­President is unable to attend, then a chairperson nominated by the meeting shall chair the meeting.  Clause 4.1.11 of the constitution provides that 'should a vacancy occur on the Management Committee during the season, the Management Committee shall appoint a successor until the next annual General Meeting or General Meeting'.  To hold a general meeting, there must be a quorum of ten members.

7. The applicant and his daughter became members of the respondent in October 2014.  In August 2016 Mrs Green became a member of the respondent.

1. The applicant owns and operates a tow truck/tilt-tray company in Port Hedland trading as 'Pilbara Towing and Tilt Tray Services'.  The applicant and his family 'own 4 horses, 2 of which were stabled at the club grounds and cared for by my daughters, wife and me' (applicant's witness statement, paragraph 6).

2. During the time the applicant was a member of the club, he attended the majority of club meetings, assisted at numerous training sessions and assisted at most competitions and events.  In addition, he contributed significantly to the upgrade of facilities and provided and/or obtained sponsors/patrons for the club for numerous events.  The applicant often provided his business' transport facilities and other machinery, including a bobcat and telehandler when needed at no cost to the club. 

3. The applicant's daughter was allocated stables at the club premises for her own use.  The applicant and his daughter spent considerable time and effort repairing the stables which his daughter leased for their horses.  The upgrades included:

   a.repairing unserviceable doors, locks and walls;

   b.erecting fencing,

   c.repairing and installing water feed and taps;

   d.installing a concrete wash pad and associated water supply;

   e.trimming and removing over grown trees and shrubs;

   f.mucking out a considerable amount of manure from previous tenants;

   g.painting; and

   h.installing hooks and racks for tack and equipment within the nominated tack shed.

4. On 15 June 2017, the applicant was advised by his wife and daughter that there had been an incident at the club's facilities in which Ms Dianne Vagg (another member of the association) had verbally and physically assaulted the applicant's daughter, verbally assaulted the applicant's wife and physically blocked the applicant's wife's car with her own car so as to prevent Mrs Green from leaving.  Mrs Green and their daughter were very distressed.  The applicant was able to listen to a voice recording of part of the incident in which he was able to hear Ms Vagg swearing apparently at his wife and daughter.  Mrs Green requested that the applicant bring a horse float to the club's premises because she and her daughter were worried that Ms Vagg might hurt their horses.

5. The applicant did as requested and collected the family's horses from the club's premises.  As the applicant's daughter packed up some of the horse's equipment and feed, Mr Luke Grossmith (the club's President) arrived and assisted the Green family with loading the horses onto the float.  Mr Grossmith made a comment regarding Ms Vagg to the effect that 'that's it she's gone too far this time' and that 'not much happens here at the club when you are not here Mike' (applicant's witness statement, paragraph 33).  After those comments, the applicant believed that Ms Vagg would be asked to leave the club.

6. The next day, the applicant received an email and letter from Mr Grossmith stating that there would be changes to stabling arrangements because of the incident.  At the time, the applicant believed that the changes were inappropriate, at least until an investigation had occurred in relation to the incident.  The applicant also believed it would be unfair to require his daughter to move stables because of the amount of work the family had carried out on the stables and nearby yard. 

7. The respondent submitted, in its Statement of Issues Facts and Contentions that relevant background to the decision in relation to stabling arrangements was that previously, an issue in the stabling area had arisen between the applicant's daughter (Chrishenda), Ms Vagg and Ms Leslie Wight (Secretary of the club) and this had been discussed at a meeting of the Management Committee on 12 June 2017.  The Committee advised those three members to reach an amicable decision around shared paddock usage or the Committee would make decisions about stabling arrangements for those members.  The relevant minutes of the Management Committee meeting state:

   8.4Chrishenda applied to put a fence up across from the shed corner to the gate at the top end to have access from the day yard to the paddock.

   8.4[m]otion was voted on and denied as a rotation to the existing day yard was presented

   DV and LW have horses out of the night and CG has horse out during the day no fences to be removed or put up

   Reminder to remove manure daily and worming all horses in the same area at the same time.

   Committee told both parties that if they cannot come up with a suitable arrangement in regards to the paddock use then the Committee will make the decision for them[.] 

8. As the family's horses had been removed on an urgent basis, there had not been time to fully remove all of the family's belongings.  There was several thousand dollars of tack, feed and equipment in the stables but the applicant was too busy with work to be able to assist removing it, which required a truck for large, heavy items.  The applicant decided to install signage in both word and picture format and motion activated CCTV cameras on the stables to safeguard the equipment and feed left in the stables.  He set the video cameras to record.  After approximately one week the Green family removed some of the more expensive tack and feed and the applicant found the video cameras were not working because the batteries did not last very long.  The applicant left the cameras (inoperable), padlocks and signage at the club as a general deterrent until he had time to remove all the equipment. 

9. The applicant believed that the changed stabling arrangements were only temporary while the committee investigated the incident.  However, on 21 June 2017, the applicant received an email from Ms Camille Mathews (Vice­President of the club) stating that a special general meeting had been called for 28 June 2017 to discuss and decide on an outcome regarding:

   Dispute on our grounds between The Green Family & Dianne Vagg, code of conduct, changes of stabling, Governance of PHPC.  All within our rights as a club to deal issues within our rules, regulations, policies and constitution.

10. It further stated that 'all members that are not directly involved are invited to attend'.

11. That meeting did not ultimately proceed as there was no quorum present.

12. On 15 July 2017, Ms Mathews sent an email requesting information about the incident so that the committee could review it and meet to discuss the situation and make a decision.  This was despite the fact that Mrs Green had, on 14 June 2017 sent an email to Ms Mathews about the incident and on or around 15 June 2017 had sent detailed statements from herself and her daughter about the incident together with some photographs to Ms Mathews.

13. At 2.01 pm on 18 July 2017, Mr Green received an email from the 'PHPC Committee' stating that a special meeting had been called for 19 July 2017 for two reasons:

    Firstly, to deal with a dispute between Di Vagg and members of the Green Family, the PHPC code of conduct, changes of stabling and governance of the PHPC.  All of which is within our rights to deal with under our rules, regulations, policies and constitution.  The second reason is due to members of the Green Family threatening the PHPC Committee with legal action, refusing to adhere to our Club's rules and constitution and disobeying orders that were unanimously decided upon by the PHPC Committee.

14. It further requested 'ALL members of the PHPC to attend …'

15. Mr and Mrs Green, in light of the previous email that stated they were not to attend the meeting, did not believe that by 'ALL members' the committee had changed its stance on whether they could attend the meeting.  They thought that the words referred to all members not including those who were involved in the incident.

16. If Mr and Mrs Green had known that they could have attended, they would have attended or requested a proxy.  Further, if they had known that their membership might have been terminated at the meeting they would have attended.  If they had been present, both Mr and Mrs Green would have voted against the termination of their memberships.

17. At 3.34 pm on 18 July 2017, Mr Green sent an email in reply stating, effectively, that because positions on the committee were vacant, it was not a constitutionally formed committee.  As a result, he queried whether the meeting could proceed prior to filling those positions. 

18. The applicant and Mrs Green state that prior to 19 July 2017, they had never received any request from the Management Committee to remove the cameras, padlocks and signage from club property.  

19. By letter dated 12 April 2018, Rowe Bristol Lawyers, who at the time represented the respondent, wrote to the applicant's solicitors and copied to the Tribunal and stated, amongst other things, that the Management Committee had sent a letter to the Green family on or about 5 July 2017 requiring them to relocate to the new stables allocated to them and to remove the cameras and padlocks installed on club property.  There is no copy of that letter in any of the material filed with the Tribunal.  Attached to Rowe Bristol Lawyers' letter there is an undated letter apparently from the respondent to the Green family that raises these issues.  That letter refers to events on 16 June 2017 and to the transfer of funds for stabling fees on 19 July 2016.  The reference to 2016 appears to be an error as a refund of the amount referred to was enclosed with the letter dated 20 July 2017.  In a letter from the respondent to the applicant dated 20 July 2017 the refund is said to be in relation to fees received on 19 July 2016.  Having regard to the reference to the refund of stabling fees, which occurred on 20 July 2017, this undated letter requiring items be removed from club property must postdate 20 July 2017. 

20. The Tribunal is not satisfied that either Mr or Mrs Green, prior to the meeting on 19 July 2017, in fact ever received any request from the respondent or its Management Committee to remove the cameras and security features that he had installed on the stable that had been used by his daughter.  They had not fixed at the date of the general meeting on 19 July 2017, as was incorrectly put to the people present at the general meeting, refuse to remove cameras, padlocks and signage from club property.

21. On or around 20 July 2017, Mr Green received a letter from the club which stated that his membership had been terminated, along with all wife's membership and his daughter's stabling rights.  It also stated that he needed to remove his property from the club grounds within 30 days otherwise the club would apply to the South Hedland Magistrates Court for an order to remove the property.

22. On 30 July 2017, Mr Green sent an email to the committee, on behalf of himself, his wife and daughter, requesting an appeal under cl 6.3 of the constitution, asking for an opportunity to present our case to the members.

23. On 15 August 2017, Mr Green received a response from Ms Wight, as secretary of the respondent, stating that she would contact him regarding possible dates for the family to present their case to the members.  By that stage, the applicant had already commenced proceeding in the Tribunal.  It does not appear, on the information before the Tribunal, that Mr Green ever took up the apparent offer of the club to comply with his request.

Parties' argument

1. The applicant makes a number of arguments in relation to the respondent's actions in relation to the dispute referred to above. Firstly, the applicant says that between March and July 2017 the Management Committee was incorrectly composed as required by the club's constitution and as a consequence any decisions made by the Management Committee during these dates are void. Secondly, the applicant submits that the decision to terminate his and Mrs Green's memberships was not made in accordance with the respondent's constitution and therefore that decision was not validly made. Thirdly, the notice of the meeting at which the decision was made to terminate the applicant and Mrs Green's memberships failed to provide any sufficient notice that there was any potential for a decision of that kind to be made at the meeting and there was therefore a failure to provide procedural fairness to them by the respondent. Fourthly, the applicant says that a number of the members who voted to terminate his membership were not entitled to vote, and if one sets aside these votes, and adds the votes that Mr and Mrs Green would have made had they been at the meeting, the resolution to terminate their memberships would not have passed. Finally, the applicant submits that, if the decision of the respondent to terminate the applicant and Mrs Green's memberships stands, he is still entitled to the right of appeal under cl 6.3 of the respondent's constitution and that he should now be afforded that right.

2. As a separate issue, the applicant complains that he asked for various documents that he is entitled to see pursuant to the Act and the respondent did not provide him with any of these documents.

3. The applicant seeks the following orders from the Tribunal:

   a.A declaration that the Respondent breached sections 56 and 58 of the [Act].

   b.A declaration that the Management Committee, between March and July 2017, was not comprised in accordance with the Constitution.

   c.A declaration that the Second Meeting was not called in accordance with the Constitution.

   d.A declaration that members cannot pass a special motion at a special general meeting regarding a person's membership prior to a decision of the Management Committee.

   e.Alternatively, a declaration that the special motions passed at the Second Meeting were against the principles of procedural fairness and natural justice.

   f.An order that the special motions be set aside.

   g.Alternatively, a declaration that the Applicant has a right to appeal the special motions passed by members at the Second Meeting pursuant to clause 6.3 of the Constitution.

4. The respondent submitted, in its Statement of Issues Facts and Contentions, there was a situation of conflict between the applicant's daughter and Ms Vagg.  In response to that, the Management Committee discussed what to do by way of email and agreed to change the stabling arrangements of both parties.  The applicant and his family refused to comply with that decision and started making allegations against the Management Committee and threatening legal action.  In light of this, the Management Committee called a general meeting to involve everyone in the club in relation to the issue of how to respond to the situation.  In relation to the decision to terminate Mr and Mrs Green's membership, the respondent states:

   At the [General Meeting], the Club voted not to make any further decision on the Green/Vagg incident as this was being played out in court (through an MRO being applied for by Chrishenda and Judy against Di) and therefore outside of our remit.  The Club as a whole voted to remove the stabling rights of the Green family and the memberships of Mike and Judy Green.  The Club felt this was the only option as they refused to remove the surveillance camera's they had installed, their refusal to remove equipment from the shed allocated in their old stabling area and refused to follow the change of stabling made by the committee.  They had also not gone through any of the appropriate channels within the Port Hedland Pony Club to try and have the stabling changes dropped, they had instead gone straight to threatening legal action and questioning the integrity of the management committee, this was deemed totally inappropriate by all members of the Pony Club.

5. The respondent submits that when the applicant asked for a review of the decision to terminate his and Mrs Green's membership they contacted the applicant seeking to arrange a date for this to occur.  They submit that they have tried to arrange for the appeal to occur several times during the Tribunal proceedings but state that Mr Green never agreed to this occurring.

6. The respondent says that they consider it likely that they may have made minor process mistakes, but otherwise denies that the decisions made were in any way wrong or inappropriate.

Determination

1. The difficulty with the orders that the applicant seeks to have the Tribunal make, is that the Tribunal does not have any jurisdiction to make any of the requested orders, except the last of the proposed orders.  The Tribunal has no inherent jurisdiction and certainly has no power to determine whether any decisions made were void or that there was any denial of procedural fairness.  It would be necessary to make applications to the Supreme Court in order to pursue either of those remedies.

2. The power of the Tribunal under the Act is to be found in s 182(3) which provides:

   (3)In a proceeding under subsection (1), the State Administrative Tribunal may make orders giving such relief as the Tribunal considers appropriate, including one or more of the following orders ­

   (a)an order giving directions for the observance of the rules of the incorporated association by any person who has an obligation to observe those rules;

   (b)an order declaring and enforcing the rights and obligations of members of the incorporated association between themselves;

   (c)an order declaring and enforcing the rights and obligations between the incorporated association and any member or members of the association.

1. When considering what is encompassed by the power in s 182(3) of the Act, one has to have regard to the context of the jurisdiction given to the Tribunal. That is, the powers specified in s 182(3) of the Act can only arise in relation to an application made in relation to a dispute that was not able to be resolved under the procedure provided for as required by item 18 of Sch 1 Div 1 of the Act. Thus the dispute in question will be one that is under or relating to the rules of the association, and is a dispute between members of the association, or is between a member and the association.

2. In this case there are two main things the applicant complains about. Firstly, the respondent's decision to terminate his and Mrs Green's membership with the club. Secondly, a failure by the respondent to comply with requirements of the Act in relation to the provision of documents when requested by a member. To the extent that the applicant complains about decisions concerning his daughter's stabling arrangements, these are not a dispute of the kind that is capable of being covered by the dispute resolution procedure provided by cl 6.3 of the respondent's constitution.

3. The second complaint does not relate to any dispute under or relating to the rules of the respondent. The Tribunal has no power, under s 182 of the Act, nor is it given any power by any other provision of the Act, to hear and determine any complaint about an incorporated association's alleged failure to comply with the requirements of s 56 and s 58 of the Act. In fact, these sections are offence creating provisions. Any complaint about any alleged failure to comply with those provisions should be made to the relevant prosecuting authority. To the extent that the applicant relies on alleged breaches of those provisions in support of a costs application, this will be dealt with below.

4. In relation to the first complaint, while the Tribunal does not have the power to determine whether any decisions made were void, or whether there was any denial of procedural fairness, to the extent that there is a dispute under, or in relation to, the rules the Tribunal can, as is expressly stated in s 182(3) of the Act, make directions in relation to the observance of the rules and declaring and enforcing rights and obligations between the incorporated association and members of the association.

5. The Tribunal is not satisfied that it is appropriate or necessary, in light of the jurisdiction of the Tribunal, to determine whether or not various people were, or were not, fully financial and endorsed so as to be entitled to vote in relation to any management committee meeting or any general meeting.

1. The Tribunal is satisfied that it is, or would be, if the Tribunal had jurisdiction in this case, appropriate to make the following determinations in relation to what is required in order for proper observance of the rules of the respondent and the applicant's and respondent's rights and obligations arising under the respondent's rules.

2. The respondent points to an existing dispute between the applicant's daughter, Ms Vagg and Ms Wight in relation to the use of shared paddock facilities attaching to the stables they were each allocated.  It appears this was discussed at the meeting of the Management Committee held on 12 June 2017.  It was minuted that if the parties could not resolve their differences the Management Committee 'would decide for them'.  In the context of the rest of the minutes, what would be decided could only properly have been expected to have been a suitable arrangement in regards to the paddock use.  There cannot reasonably have been any expectation that, absent any warning to that effect, the Management Committee would make a decision that altered the existing stabling arrangements of the parties.  If the Management Committee was contemplating making such an arrangement, in circumstances where the Management Committee must have known that the applicant's daughter had expended not insignificant monies and time on her current stable, it was obliged to warn, prior to making any decision to move her from that stable, that it was contemplating making such a decision.

3. The Management Committee does have the power, and obligation, to adjudicate all matters brought before it which in any way affect the club.  However, parties to a potential adjudication that relate to stabling arrangements, where a party has expended monies and/or made adaptions to the stable allocated to them, is one that is not reasonably done without notice to the parties and an opportunity to the parties affected to be heard in relation to that adjudication.  This is not to say that the Management Committee is obliged to give advance notice and an opportunity to be heard in relation to every potential adjudication.  But if the outcome of an adjudication may result in a club member being disadvantaged in a significant way, perhaps because of the impact of the decision in terms of monetary losses, or because of the seriousness of any potential outcome in terms of the person's ability to engage in the club's activities, then these obligations arise.  There may be some adjudications that have a level of urgency and that urgency, compared to the lack of significance or seriousness of the potential outcome, or perhaps because of the ability to seek a review of the determination, means that there will not be any obligation to given notice or any opportunity to be heard.

4. The decision, of which the applicant was advised on 15 June 2017, to change the applicant's daughter's stabling arrangements, without notice and without any opportunity to be heard, was in the circumstances of this case, inconsistent with the applicant's rights under the rules.  Having said that, there is no review right and no other possible arguable dispute resolution procedure in relation to a dispute about the results of an adjudication by the Management Committee, or about determinations affecting stabling rights.  Even if the Tribunal otherwise had jurisdiction, it would not have had jurisdiction to make any declarations in relation to these rights.

5. On 14 June 2017, the applicant and Mrs Green raised with the Management Committee allegations of physical and verbal abuse of Mrs Green, and more importantly, a child, by another adult, as well as an allegation of preventing them from escaping by use of another vehicle.  These are very serious allegations and invariably raise questions about the potential safety of (and importantly), children who attend the club.  The use of language as alleged also raises serious questions about the suitability of an adult member's membership with the club.  The obligation of the Management Committee under the rules, in these circumstances, was to adjudicate on this, potentially very serious, matter in a way that allowed all parties an opportunity to be heard, as well as an opportunity to understand what was said by any other parties in relation to the incident.  The Management Committee did not comply with this obligation.  The Management Committee inappropriately sought to hold a Management Committee meeting to discuss this incident without any of the people directly involved being allowed to attend.  The fact that this meeting did not go ahead does not excuse the serious breach of the rights of parties involved having regard to the serious nature of the allegations.

6. The respondent submits that it did not continue to investigate the 'dispute' between the Green Family and Ms Vagg because the applicant had threatened to commence legal action against the club, the matter was before the Courts by way of VROs and effectively events overtook it.  The respondent also submits that, based on the statement by Ms Wight, in fact there was no physical assault on the applicant's daughter as alleged.  A number of things need to be said in relation to those submissions.

7. Firstly, whether or not the alleged assault was the subject of court proceedings, an issue had been raised with the Management Committee about behaviour that, if the Management Committee determined had occurred, was fundamentally inappropriate coming from an adult aimed at least in part to a child.  Whether or not there was any physical assault, the alleged language used by an adult to, and in front of, a child, as well as the alleged behaviour of blocking another person's vehicle with a vehicle are so serious, that if true, it is almost incomprehensible that any functioning management committee of a club of this nature could consider that person an appropriate member in a club where such a person might be regularly expected to be around children.  If the police had been involved and the allegations were the subject of determine in the Courts, then it would be appropriate to delay any final decision making that relied on findings by the Court until the Court process had concluded.  However, the issue of any behaviour not the subject of such charges (for example, profane language and verbal abuse of a child) should not just be ignored, nor should the potential risk to children if action is not taken be ignored, even if that were to be temporary action.  In addition, once the court process had resolved, it would then be the Management Committee's job to adjudicate on the dispute, taking into account the Court's determination.  In this case, the respondent submits that as the violence restraining orders were not in fact issued by the court somehow this equates to a determination that the allegations made by Mrs Green and her daughter were not in fact true.  This is patently not necessarily the case. 

8. Secondly, the fact that the applicant had threatened to commence legal action against them should not have been a relevant factor in the decision making about the proper resolution of the dispute, or in relation to whether or not the applicant and Mrs Green should remain members of the club.  If Mr Green had legal recourse available to him in relation to anything the club had, or had not, done, it is his right to take that recourse if he wishes.  To the extent that Mr Green threatened legal action that the Management Committee felt was unreasonable or unwarranted, they should just have ignored those threats, at least when making the decisions it was required to make.

9. Thirdly, the statement, said to be by Ms Wight is dated 6 August 2018.  It is not clear whether the people who attended the General Meeting on 19 July 2017 were given verbal information as to what Ms Wight said had occurred on 15 July 2019.  In any event, the statement says the following in relation to the alleged incident:

   I was unaware of the apparent conflict between the two parties.  When I arrived at my stall the two parties were swearing and raising their voices at each other.  At one stage, I was in my stall looking towards to paddock gate (approx. 40m distance) when I saw Di Vagg and Chris[h]enda Green about to pass each other.  As they passed each other at the gate they both raised their voices and sore at each other.  From my vantage point, I did not see any psychical behaviour that would have caused me to intervene.

   I did however ask both parties to keep their distance from each other in an attempt to deescalate the situation.

10. This statement confirms Mrs Green's and her daughter's allegations in relation to language used by Ms Vagg to, and in front of, a child.  It also confirms that the situation was significantly heated such that Ms Wight felt the need to deescalate it.  The statement does not establish whether or not there was a physical assault by Ms Vagg as alleged.  It only confirms that from her vantage point, Ms Wight did not see any physical behaviour that would have caused her to intervene.  There is no indication of what her vantage point was, other than that it was approximately 40 metres away, what angle and placement the two people observed were in, or whether or not there was any full or partial obstruction, or what Ms Wight's visibility of what occurred was because of any of those things.  Nor does it identify in any way what behaviour Ms Wight would, or would not, cause her to feel she had to intervene.  It is concerning that the respondent seems to have thought that this statement meant that there was no physical assault as alleged and that there was not otherwise any need for concern in relation to the actions of the adult in this situation.  Certainly the actions of the child may have warranted investigation and consequences also, but surely the actions of the adult in the situation must have raised alarm?  Yet there is no evidence or submission put forward by the respondent, to suggest that it ever finished investigating the incident that occurred on 15 July 2017, or considered what should be done in relation to the behaviour of the remaining member of the club that had been involved in the incident.

11. Fourthly, the email sent on 18 July 2017 did not give sufficient notice that the applicant and/or Mrs Green may have their membership revoked. This is one of the most serious consequences that can occur under the rules to a member. Such a serious consequence should not be discussed by the Management Committee without giving clear notice that this might occur and why. Having said that, if the Management Committee were intending to make such a decision, they are not, under the rules of the club, required to give the person whose membership might be terminated an opportunity to be heard prior to making that determination. That is because the rules provide for that opportunity to be heard to occur at a general meeting in accordance with cl 6.3 of the rules. However, where the Management Committee makes a decision to terminate a person's membership, they are obliged to advise the person of the right to have that decision reviewed under cl 6.3 of the rules. If the person wishes to exercise that right, the Management Committee is obliged to arrange a general meeting in accordance with cl 6.3 of the rules. At that point, the Management Committee is obliged to ensure that the person whose membership has been terminated is given access to all of the information taken into account by the Management Committee and an opportunity to 'show cause' why they should not have their membership terminated at the general meeting.

12. It is the Management Committee, and not the club as a whole at a general meeting, that must first consider the question of whether a person's membership should be terminated.  That is the Management Committee's obligation.  They did not comply with that obligation. 

13. However, as the respondent submits, and is not disputed by the applicant, on 15 August 2017 the respondent offered to hold a general meeting under cl 6.3 of the club's constitution as requested by the applicant. The applicant chose not to accept that offer.

14. If it had not been for that offer, the Tribunal would, if it had jurisdiction, have been minded to order that the Management Committee comply with its obligations and, after giving notice that it is considering doing so and providing at least in summary form the reasons why, determine under cl 6.2 of the constitution whether or not the applicant and Mrs Green's memberships should be terminated. If the Management Committee determined that the memberships should be terminated, it should then advise Mr and Mrs Green of the decision and the reasons why and advise them of the right to seek review of the decision under cl 6.3 of the rules. If so requested, it should then ensure a general meeting is arranged with disclosure of relevant information to Mr and Mrs Green and an opportunity for them to 'show cause' why their memberships should not be terminated.

15. However, while the respondent's Management Committee did fail to afford the applicant and Mrs Green its rights under the rules as identified above, in the Tribunal's view, the offer to afford Mr and Mrs Green the process prescribed by the rules would have effectively remedied the dispute between them in relation to their membership.  On that basis, while the Tribunal would, if it had jurisdiction, make declarations about the applicant and Mrs Green's rights on this topic, there is no need for the Tribunal to make any other orders.

Costs application

1. The applicant seeks an order that the respondent pay the applicant's costs of the proceedings.  He says that such an order should be made because:

   1)the applicant requested documents that he was entitled to have access to under the Act from the respondent on 18 June 2017 and on a number of subsequent occasions and the respondent refused to provide those documents providing no good reason for that failure, and that failure made it harder, and more expensive, for the applicant to make his case; and

   2)the respondent put various matters in issue in its Statement of Issues Facts and Contentions and then failed to take any further part in the proceedings

2. In relation to the failure to provide documents, these documents can only have assisted the applicant to establish whether or not various people were members who were entitled to vote and/or were properly appointed as members of the Management Committee.  In these proceedings, in light of the jurisdiction of the Tribunal given by the Act, nothing turned on those matters.

3. It is not clear to the Tribunal why, other than the applicant's bare assertion that it is so, the fact that the respondent did not agree with the applicant's case in fact caused the applicant to incur any additional expense in establishing his case in the Tribunal.  It is the case that had the respondent conceded that the applicant was wholly correct in his claims, the Tribunal may have been prepared to make consent orders in favour of the applicant.  However, the Tribunal does not accept that it is necessarily the case that a party who does not accept or agree with another party's claims and does not wish to agree to consent orders is thereby acting unreasonably by failing to participate in the proceedings. 

4. In this case, the respondent maintained that it did not believe that it had done anything wrong and that it did not accept that the orders sought by the applicant were appropriate.  They had the right to take that position.  Although they did put in a Statement of Issues Facts and Contentions that made some assertions of facts that were contrary to the applicant's case, whether or not this document was before the Tribunal, the applicant was still required to establish his case by way of evidence. 

5. Nothing put before the Tribunal establishes with any degree of specificity what costs were incurred specifically in responding to matters raised in the respondent's statement of issues facts and contentions.  While there may have in fact been some such extra costs incurred, the Tribunal is not persuaded that it ought to exercise its discretion to make a costs order in this case.  This is because, while the applicant had every right to bring proceedings in the Tribunal, he did so in circumstances where the appeal right the subject of the dispute as identified by the applicant was offered to the applicant at about the time he made his application to the Tribunal.  Further, the respondent asserts, and the applicant has not denied, that he also refused several further offers to provide that appeal right during the course of proceedings in the Tribunal.  While those offers cannot be taken into account in the determination of the application, they can be taken into account when considering exercising the discretion in relation to costs. Even if the Tribunal had jurisdiction in this case and the applicant had been successful, as can be seen from the reasons above, the only thing he would have achieved is, in effect, an order requiring the respondent to allow the applicant to exercise that appeal right. 

6. For all of these reasons, the Tribunal is not minded to exercise its discretion to award costs in this instance.

Orders

For all of the reasons above the Tribunal makes the following orders.

1.The application is dismissed.

2.The secondary application that the respondent pay the applicants costs of the substantive application is refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS L EDDY, SENIOR MEMBER

2 APRIL 2019