Hodgkinson v Yarra Valley Country Club Inc
[2001] VSC 364
•26 September 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 6280 of 2001
In the Matter of an Appeal under Section 109 of the Magistrates’ Court Act 1989
| PETER HODGKINSON | Plaintiff |
| v | |
| YARRA VALLEY COUNTRY CLUB INC | Defendant |
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JUDGE: | Ashley J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24, 25 September 2001 | |
DATE OF JUDGMENT: | 26 September 2001 | |
CASE MAY BE CITED AS: | Hodgkinson v Yarra Valley Country Club Inc. | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 364 | |
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Incorporated Association - rules – rule concerning expulsion of members – whether member’s expulsion in accordance with rule.
Appeal – s. 109, Magistrates’ Court Act 1989 – whether question of law open for consideration by Supreme Court.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D.P. Flynn | Lawcorp Lawyers |
| For the Respondent | Mr R.R.S. Tracey QC with Mr J. Searle | Pritchard Udovenya |
HIS HONOUR:
The Appeal
This is an appeal under s.109 of the Magistrates' Court Act 1989 from a final order of that court made 18 May 2001 dismissing proceedings brought by the appellant, Peter Hodgkinson, against the respondent, Yarra Valley Country Club Inc. ("the club"), an incorporated association under the Associations Incorporation Act 1981. By those proceedings the appellant sought a declaration that a resolution of the Board of the Club on 6 January 2000 to expel him from membership was invalid.
The pertinent allegations made by the appellant's complaint filed 16 June 2000 were as follows:
"8.The purported expulsion of the Plaintiffs from the Association was unlawful and contrary to the Rules of the Association and the Associations Incorporation Act 1981 (Vic).
PARTICULARS
(a)The expulsions of the Plaintiffs were in breach of Rule 2.6 of the Rules of the Defendant.
(b)The meeting of 22 December 1999, originally called for the purposes of the First Plaintiff showing cause why he ought not be expelled was:‑
(i)not preceded by the provision of a notice of intended resolution of expulsion, provided to the member pursuant to Rule 2.6 (1); and
(ii)abandoned by the Secretary, Mr Ken Hore, without proceeding to allow the First Plaintiff to address that meeting.
(c)The Defendant by its letter to the First Plaintiff dated 10 December 1999 waived any requirement that the First Plaintiff provide any explanation prior to the meeting of 22 December 1999. A copy of the said letter dated 10 December 1999 may be inspected at the office of the Plaintiffs' solicitors by appointment.
(d)The alleged meeting of 6 January 2000 was not preceded by the provision of a notice of intended resolution for expulsion in breach of Rule 2.6(1) of the Rules.
9.The Defendant, through the Committee of Management, failed to accord the Plaintiffs natural justice.
PARTICULARS
(a)The Plaintiffs were not informed of the meeting of the Committee of Management, resolving to expel the Plaintiffs on 6 January 2000 and consequently did not attend or have any opportunity to address that meeting.
(b)The Plaintiffs were not given an opportunity to deny allegations against them which were said to be the basis of the purported expulsions.
(c)The Plaintiffs were not given an opportunity to be informed of the specific allegations made against them and were not given an opportunity to be heard in relation to them.
(d)The purported expulsions were not in good faith and were infected with bias, in that three of the member of the committee, being the President, Mr David Hassett, the Secretary, Mr Ken Hore and Mr Harry Stamoulis, were participants in the events out of which arose the allegations against the First Plaintiff.
(e)The resolution and purported expulsion were ultra vires of the Rules of the Association."
Those paragraphs made reference to "the plaintiffs". That reflects the fact that the appellant's wife was at the time a party to the proceeding.
The evidence in the proceeding below was on affidavit. No deponent was cross‑examined. The appellant relied upon four affidavits, two which he had sworn and two by other witnesses. The respondent relied upon 19 affidavits sworn by different individuals. All the affidavits were exhibited in the present appeal, though the content of many of them was not presently pertinent.
The learned Magistrate's reasons for decision, delayed by his ill‑health, were delivered in written form on 18 May 2001. Orders were made on the same day. According to the Master's order made 22 June 2001 the questions of law shown to be raised by the appeal were as follows:
"(a)In accordance with the clause 2.6 of the Rules of the respondent (exhibit "PJH‑6"), did the respondent's letter dated 10 December 1999 (exhibit "PJH‑7") constitute and contain:
(i)any or any sufficient notice that the committee of management was to consider a motion to expel the appellant from the club at a meeting on 6 January 2000;
(ii)any or any sufficient particulars of conduct injurious to the character of interests of the club;
(iii)sufficient request for an explanation by the appellant to the meeting on 6 January 2000?
(b)Did the Magistrate err in holding that the appellant did not need to be notified in accordance with Rule 2.6(1) of the meeting at which the resolution to expel him was to be considered?
(c)Was the appellant deprived of natural justice in relation to the meeting of 6 January 2000?"
In the course of the hearing of the appeal a serious question arose whether the issues encapsulated in the Master's order addressed all of the matters critical to the Magistrate's conclusion adverse to the appellant. That led on to agitation of the question whether it was open to the court to consider questions of law other than those set out in the Master's order. In order to understand that question, and the questions framed by the Master, it is necessary to say something about the circumstances of the matter.
The circumstances which led to litigation
The appellant was for a long time a member of the respondent club. It conducts a number of activities at its Bulleen premises. On the sports front, golf and bowls, at least, are played. There are social activities, and gaming.
The club's rules provide for the expulsion of a member. Rule 2.6 reads as follows:
"2.6. Expulsion of Members
If any member wilfully refuses or neglects to comply with the provisions of the Rules or By‑laws of the Club or shall be guilty of any conduct either within or outside the Club premises which shall, in the opinion of two‑thirds of the members of the Board who are present at a meeting especially summoned to consider the case, be injurious to the character or interests of the Club, such member shall be liable to expulsion by a resolution of the Board subject to the following:
(1)At least seven days before the meeting at which such resolution is to be passed, the member shall have written notice by prepaid letter sent to the address in the Register giving particulars of such conduct and notice of the intended resolution for expulsion and requesting an oral (verbal) or written fitting explanation to the meeting before the passing of such resolution.
(2)The Board may, if it thinks fit, give the member the option of resigning from the Club before the date of such meeting subject to the payment by such member of any subscription or other sum due by him to the Club.
(3)If the member so requested shall not before the date of the meeting especially summoned to consider the case either offer an explanation satisfactory to the Board or resign, such member may be removed from the Register of the Club at the discretion of the Board and the Board shall not be required to supply any reason for such removal.
(4)The members shall have the power of calling an Extraordinary General Meeting in accordance with these Rules for the purpose of amending, reversing or confirming any decision of the Board to suspend a member. The meeting must be called within one month of the date on which the member ceased to be a member of the Club.
(5)Any member expelled under this rule shall forfeit all right in or claim upon the Club and its property (except any debenture or debentures) held by him or her."
The references in Rule 2.6 to “the Board” are references to the Board, consisting of five persons elected for three‑year terms, which by the Rules is constituted to manage the club's business affairs.
Rule 2.6 does not fit together perfectly. But the following matters are clear:
(1)One circumstance in which a member is liable to expulsion by resolution of the Board is that the member "shall be guilty of conduct ... which shall, in the opinion of two‑thirds of the members of the Board especially summoned to consider the case, be injurious to the character or interests of the club".
(2)A member is not to be liable to the sanction of expulsion without having been given, at least seven days before the meeting at which such resolution is to be passed, written notice particularising the impugned conduct and the intended resolution, and requesting an explanation before the passing of a pertinent resolution.
(3)In the absence of satisfactory explanation the Board may remove the name of the member from the Register of club members ‑ this implying a prior resolution to expel the member.
In the present case the evidence before the Magistrate showed that a special meeting of the Board was called for 22 December 1999 for Rule 2.6 purposes. The chairman's letter of 10 December 1999 to the appellant commenced this way:
"The Board of Directors has convened a meeting on the 22nd December 1999 at 6.00 pm as it considers your conduct as a member to be injurious to the character and interest of the club. The Board requests your attendance at this meeting to show cause why you should not be expelled from membership of the club."
The letter of 10 December 1999 provided some particulars of the offending conduct alleged against the appellant. Thus:
"+Your constant threats or actions in casting doubt on, or openly questioning the integrity of the club management, financial affairs, auditors and directors with authorities such as the Taxation Office, Liquor Control Commission and Gaming Authority.
+Advice volunteered by a cross‑section of members that you constantly and openly criticise around the club the conduct of club affairs by Management and the Board.
+You were previously called before the Directors to show cause why you should not be expelled as a member and advised that any further misdemeanors would result in expulsion following a meeting held on 31/08/95.
+The Board wishes to advise you that in relation to the motions put by you at the recent Annual General Meeting that the parties cited in the motions are considering their legal options in relation to this matter."
According to argument in the Magistrate's Court, and before me, the particularisation was inadequate. More of this later.
The letter of 10 December 1999 did not in terms request an "explanation to the meeting before the passing of (a) resolution" to expel. But it unequivocally conveyed to the appellant the circumstance that he was to have an opportunity to provide an explanation; for it requested the appellant's "attendance at this meeting to show cause why you should not be expelled from membership..."
In the event, between 10 and 22 December 1999 there was skirmishing which really does not bear on the appeal. Then, on 22 December, the meeting was held. Three members of the Board were present ‑ Messrs Hassett, Hore and Draffin. Also present was the appellant.
The Magistrate found, and it is beyond challenge, that Mr Hore opened the meeting by saying that it had been convened by the Board in terms of Rule 2.6 "to consider whether or not (the appellant) was guilty of conduct in the club which shall be injurious to the character or interests of the club, and thus render (the appellant) liable to expulsion from the club".
Then followed an attempt by the appellant to have the proceedings tape‑recorded. The Board would not have it. The appellant insisted. The tape‑recording shows that the meeting ended this way:
"Hoare.... Well....we will postpone the meeting. I'm not holding the meeting while you’ve got the tape on
Hodgkinson... So you're postponing the meeting
Hoare....I'm Postponing the meeting
Hodgkinson...All right you will postpone the meeting...TILL WHEN
Hoare...Ah.. I'll make that decision in due course, not right now
Hodgkinson.... Now..you're acting as Chairman
Hoare... Yes I am...The meeting is formally postponed right now
Hodgkinson... Mr Hassett is acting as secretary
Hoare ...The meeting is postponed Peter.....as of right now... unless you are prepared to turn the tape off
Hodgkinson... NO. I'm not...
Hoare... The meeting is abandoned. Thank you for coming"
The appellant had apparently prepared a written answer to the allegations made against him. He had intended to present it to the meeting. He did not do so.
It is clear from the tape‑recording, and from the affidavits of the Board members then present, that no resolution to expel the appellant was put to or carried at the meeting of 22 December.
It seems, however, that the Board members had some informal discussion about the matter after the meeting had been abandoned; and that it was "resolved" ‑ necessarily informally ‑ that the appellant had no explanation for his conduct and ought to be expelled. It was further decided that a Board meeting would be held on 6 January 2000 "to formalise that resolution".
A Board meeting was held on 6 January. According to the affidavit of the club chairman, Mr Hassett, sworn 14 July 2000, the Board "formalised Mr Hodgkinson's expulsion as a member".
The Minutes of the meeting of 6 January were not before the learned Magistrate. They were produced to me without demur on the appeal. They show very clearly that the meeting was not a special meeting called for Rule 2.6 purposes. They show that there were four Board members present ‑ the three members who had been present on 22 December and an additional person. They show that there was a unanimous resolution to accept the "recommendation" of the members present on 22 December and to expel the appellant.
Before the Magistrate there was evidence, but I think it was not highlighted, that the attendees at the Board meeting of 6 January did not coincide with the Board attendees on 22 December. There was no evidence, however, so far as I am aware, nor any concession, that the meeting on 6 January was what may be called an ordinary meeting of the Board.
What questions of law may be entertained on the appeal?
The learned Magistrate's Reasons reveal that he made these findings, or reached these conclusions:
+The second sentence of the first paragraph of the chairman's letter of 10 December 1999 sufficiently gave notice within Rule 2.6(1) "of the intended resolution for expulsion".
+The letter of 10 December "adequately set(s) out the conduct which is alleged against" the appellant.
+"Once the meeting was abandoned, there was no need to recall it, and the meeting to expel Mr Hodgkinson could properly proceed."
Save for question (a)(ii) the questions framed by the Master concentrate upon the meeting of 6 January. They ask whether the appellant was given notice within Rule 2.6 pertinent to that meeting; whether any such notice was sufficient; and whether, because the appellant was not notified of that meeting, and was thus given no opportunity to be heard at the same, he was denied natural justice.
The question of particularisation aside, it seems to me that the questions framed by the Master assume an antecedent circumstance ‑ that is, that the meeting of 6 January was capable of being a Rule 2.6 meeting; or, if it was not, that it did not matter.
It is in fact clear that the meeting held on 6 January was not a Rule 2.6 meeting. Indeed, as will appear, Mr Tracey conceded that that was so.
Does it matter that the meeting held on 6 January was not a Rule 2.6 meeting? Without going further, it might be said that this could depend upon whether there was ever a Rule 2.6 meeting; and upon what happened at any such meeting. Or it might be that it would depend simply upon the language of Rule 2.6 itself.
What I have said about the questions framed by the Master and concerning the assumed antecedent circumstance illuminates an issue to which I earlier referred. If it be the case that the Master's questions do not authorise consideration of the assumed antecedent circumstance, is it open to the court to consider whether the assumption was well‑founded; and, if it was not, then to allow the appeal?
A starting point is to investigate the course of the matter below. For if the issue was clearly flagged some authority – to which I shall later refer – suggests that it would be right for the court to consider it.
I have closely examined the appellant's Complaint, the so‑called "factual summary" and the written "legal submissions" relied on by the appellant below, and the account of what was submitted for the respondent below[1].
[1]As to the last of which see paragraphs 15‑18 of the affidavit of Richard Udovenya sworn 3 August 2001.
There is no doubt that both by his Complaint and in counsel's summary and submissions the appellant put alleged breach of Rule 2.6 to the forefront. There is no doubt that the appellant complained that the meeting of 6 January was in breach of Rule 2.6 because he had been given no notice of it, because particulars of impugned conduct had not been provided and because no explanation had been sought from him with respect to that meeting.[2]
[2]See p.8 of the factual summary and p.1 of the legal submissions.
Counsel for the appellant did not submit, however, that the meeting of 6 January was not a Rule 2.6 meeting at all ‑ because it was not business‑specific or because it was not an adjourned continuation of the 22nd December meeting; and that no resolution to expel could be made other than at a Rule 2.6 meeting.
The submissions of counsel for the respondent in the Magistrate's Court cast some light on that question. Counsel submitted that the special meeting was that convened on 22 December 1999. The pertinent resolution was to be passed at that meeting. It was not necessary that it be passed at that meeting. In any event, it was passed then. The meeting was only adjourned to 6 January to formalise the situation.
The Magistrate's reasons refer to some submissions of counsel made for the appellant. Paragraph numbered 2 on page 3 glosses over, I think, the significance of the content of a Rule 2.6 meeting. There is much in the reasons which is of no present relevance. But under the heading "The Effects of the Closure of the Meeting", at pages 11‑12, there is some pertinent content. I refer in particular to the sentence: "Once the meeting was abandoned there was no need to recall it; and the meeting to expel Mr Hodgkinson could properly proceed."
Within that sentence was the proposition either that the meeting on 6 January was somehow a Rule 2.6 meeting; or that a resolution to expel could be passed at a meeting which was not of that character. Nonetheless, it cannot be said that either counsel for the appellant or for the respondent squarely raised the issue; and, as I have earlier noted, the minutes of the meeting of 6 January, which cast the issue into relief, were not placed before the learned Magistrate.
There is authority that this court, though it may not amend a Master's order in a case such as this, "may direct that an appeal be decided upon questions of law identified and canvassed in the arguments advanced where this is necessary to achieve the effective, complete and economic determination of the appeal and is otherwise just and convenient"[3]. On the other hand, I have expressed considerable doubt whether an appeal such as this can be used as a platform to raise an argument of law not raised below; and I have said that this should not be permitted where the flow of evidence may have been different had the argument been raised.[4]
[3]Director of Public Prosecutions v. Hinch, Mandie, J., judgment 5 August 1994, unreported; Buckman v. Barnawartha Abattoirs, Smith, J., judgment 14 July 1994, unreported; Popovski v. Ericsson Australia Pty Ltd [1998] VSC 61 at [30] (reversed on another ground on appeal).
[4]Mond v. Lipshut [1999] 2 VR 342 at paragraphs 32‑52.
In all, as it seems to me, the appellant's case below skirted around but did not squarely raise what I have called the assumed antecedent circumstance. The respondent's counsel below, as I have noted, got close to illuminating the issue in his submission; but he did not explicitly do so. The assumption was embedded in the learned Magistrate's conclusion that there was no need to "recall" the meeting, and that another meeting could be convened at which an expulsion resolution could be carried.
The situation is not quite the same as that addressed in Mond. Had it been plainly put for the appellant in the Magistrates’ Court that the meeting of 6 January was not a Rule 2.6 meeting, and that it was impermissible to resolve to expel the appellant at such meeting, the evidence below could have been no different. Neither is the situation the same as that which I encountered in Popovski. Again, as Mr Tracey of Queen's Counsel for the respondent pointed out in his submission, the situation is not the same as that which arose in Hinch. For there Mandie, J. noted, strictly as obiter dicta, that a particular and identifiable question of law had been squarely argued below, but by oversight had not been stated or clearly stated in the Master's order; in which circumstances it might well be appropriate to entertain that question on the appeal.
Mr Tracey relied, as did Mr D.P. Flynn of Counsel for the appellant, upon observations by Tadgell, JA. in Wong v. Carter[5]. Mr Tracey submitted that his Honour's observations required the court to analyse whether, within the questions framed by a Master, issues sought to be agitated on appeal could be discerned. He submitted that on such an analysis a question concerning the assumed antecedent circumstance could not be discerned. Mr Flynn contended to the contrary, emphasising the width of the questions framed by the Master.
[5][2000] VSCA 53 at [45].
I doubt that it would be correct to analyse a Master's questions and, if a question of law not agitated or even hinted at below could be seen to lie within one or more of the questions, then to assume a jurisdiction to deal with it. I do not consider, on the other hand, that the approach taken by myself and other judges in reliance on r.58.13 of Chapter 1 can be confined to cases in which a particular issue can be discerned within questions framed by a Master. In the end, I think that the key matters are whether a particular issue of law was sufficiently identified below, was an issue concerning which the possible evidence was at an end, and was an issue of significance to the Magistrate's decision.
In the present case, though the matter is evidently doubtful, I consider that the appellant should be permitted to raise a question as to the assumed antecedent circumstance. The question thus raised is one of the interpretation of the Rules, which are a contract between the member and the club.
The interpretation of Rule 2.6
I turn to the question of interpretation. I set it in a factual backdrop. Two matters are beyond doubt: first, that by intent the Board meeting of 22 December was convened under Rule 2.6. Second, that the meeting did not resolve to expel the appellant. It was abandoned without any resolution being put.
I should mention another matter. Mr Tracey specifically conceded, notwithstanding that the minutes of the 6 January meeting were not in evidence, that such meeting was not a Rule 2.6 meeting. It was not a resumption of the meeting held on 22 December and then adjourned. It was an ordinary meeting of the Board. At that meeting the pertinent resolution was carried.
Let it be assumed that the manner in which the meeting of 22 December was convened was entirely regular. Further let it be assumed, as Mr Tracey submitted was the case, that by the time that meeting was abandoned there had been compliance with all of the requirements of Rule 2.6 save that a resolution to expel had not been passed.
Mr Tracey contended that it would be within the Rules to adjourn a specially convened meeting in order to hear further material by way of explanation, or simply to permit mature consideration of an explanation which had been offered. His next step was to submit, in effect, that there would be no difference between resolving to expel a member at an adjourned Rule 2.6 meeting and resolving to expel a member at a Rule 2.6 meeting in circumstances where the member’s explanation had been provided at an earlier and distinct Rule 2.6 meeting. His final step was to submit that there was nothing within the scope and purpose of the Rules to suggest, at least in the assumed circumstances which I outlined a few moments ago, that failure to pass a resolution to expel at a Rule 2.6 meeting constituted an error of such gravity as to warrant setting aside a resolution to expel. He referred, by analogy, to principles of statutory construction set out in Tasker & Ors v. Fullwood & Ors[6].
[6][1978] 1 NSWLR 20 at 23‑24 (Court of Appeal).
I do not accept Mr Tracey's key submission. In my opinion Rule 2.6 plainly contemplates that a resolution to expel will be dealt with at the specially convened meeting to which the rule refers. I think it is crystal clear that, in the case of a member whose conduct is alleged to be injurious to the character or interests of the club, any explanation which that member wishes to offer in response to the conduct of which particulars are given is to be provided at or for the consideration of the Board members attending the specially convened meeting. It is evident that in such a case it is for those Board members to form the relevant opinion. I think it is not sensible to read the rule to mean that the Board members who form an opinion adverse to the member may not be the Board members who pass the resolution to expel. That is not to say that the specially convened meeting may not be adjourned. The Rules permit adjournment. But resolving to expel at the resumption of an adjourned specially convened meeting has no connection with resolving to expel at an ordinary Board meeting.
Mr Tracey contended that, since the Rules permit adjournment of a meeting, a situation might arise in which the Board membership on the resumption of a specially convened meeting would be different. That might be so because the composition of the Board had changed in the interim ‑ for example, as the result of elections. If the composition of the Board at a specially convened meeting was not necessarily constant, it was but a short step to conclude that a resolution to expel could be passed at an ordinary Board meeting ‑ provided, that is, that every necessary step except that resolution had been effected in accordance with Rule 2.6.
I doubt that the first part of the submission should be accepted. But even if it be accepted I do not agree that its second part follows.
Concerning the first part of the submission, Rule 2.6 seems to me to contemplate that the Board members "who are present at a meeting especially summoned to consider the case" will be constant. It would be odd if Rule 2.6 were read to produce the result, for example, that the Board members called upon to pass the pertinent resolution were persons who were present only at the resolution stage of the meeting; whilst Board members present at all other times, including the time at which the relevant opinion was formed, could have no role in the resolution stage.
Then, as to the second part of the submission now under consideration, even if it was the case that the constitution of the Board at a specially convened meeting could alter from time to time in the course of that meeting, that circumstance could not be extrapolated to authorise the passing of a resolution to expel at an ordinary Board meeting. The fact that in each situation the constitution of the Board could differ would not obscure the fundamental dissimilarity between a resolution passed at a Rule 2.6 meeting and a resolution passed at an ordinary meeting. That dissimilarity is made pertinent by Rule 2.6.
Mr Tracey submitted that authorities show that procedural fairness does not require that all members of an administrative body (or domestic tribunal) who decide an issue must have heard all of the evidence and submissions which were advanced by all interested parties. He cited Selvarajan v. The Race Relations Board[7]; White v. Ryde Municipal Council[8] and Whim Creek Consolidated NL v. Colgan[9].
[7][1976] 1 All ER 12 at 20].
[8][1977] 2 NSWLR 909 at 923‑924.
[9](1991) 31 FCR 469 at 493‑494.
The principle was said to justify a conclusion that the mere fact that those present at an ordinary Board meeting and those present at an earlier, specially convened meeting did not coincide did not necessarily mean that a resolution to expel passed at the ordinary Board meeting would fall foul of Rule 2.6.
The question to be decided here is what Rule 2.6 requires. True it is that the rule is designed to ensure that a member whose conduct is impugned is afforded natural justice. But it is the Rule itself which prescribes how that is to be achieved. I do not consider that interpretation of the Rule is assisted by what in general terms may be compatible with the requirements of natural justice - specifically the right to be heard.
I should add two matters concerning the interpretation issue. First, there is clear authority for the proposition that there must be strict compliance with the rules of a club or similar body which pertain to expulsion of members[10]. That authority does not bear directly upon the question of interpretation. But where the rules on a natural reading convey a particular meaning, adoption of a procedure which does not strictly comply with the procedure conveyed by that meaning should be considered impermissible.
[10]Counsel for the appellent cited, inter alia, Andricciola v. The Italian Community of Keilor Association Inc. [1996] 1 VR 421 at 429 and Cox v. Caloundra Golf Club Inc. & Ors (Thomas, J. Supreme Court of Qld, judgment 27 September 1995, unreported, pp.5‑6).
Second, having regard to the conduct of the appellant at the meeting on 22 December 1999, as appears particularly from the transcript and from the circumstance that he did not seek to tender the written explanation that he apparently took with him, it is understandable that the necessary procedure went awry. But the Rules could not be bypassed.
There were ways in which what might be described as the appellant's obstructionist behaviour could be overcome. The Board, I think, was entitled to deny the appellant a right to tape‑record the meeting. But it should, squarely, have given him the opportunity of providing an explanation for the conduct alleged against him. The requirement that he be given a hearing did not equate, however, with him being given a licence to obstruct and derail the hearing. If it became necessary in the circumstances that the meeting be adjourned, that was within the Board's power. It was not obliged to conduct its deliberative process in the appellant's presence.
The matter may be summarised this way. In the circumstances of this case, the Board's resolution to expel the appellant was not within the Rules. Properly, there should have been a declaration below that the resolution of 6 January was wrongful and was of no force and effect.
Was the impugned conduct sufficiently particularised?
It is, I suppose, likely that the Board will take fresh steps to expel the appellant. For that reason, and because it was a separate ground argued on the appeal, I should say something about the issue of provision of particulars.
Counsel for the appellant complained that the particulars of impugned conduct contained in the letter of 10 December 1999 were inadequate. He referred specifically to the particulars conveyed by the first two bullet points, that is:
“+Your constant threats or actions in casting doubt on, or openly questioning the integrity of the club management, financial affairs, auditors and directors with authorities such as the Taxation Office, Liquor Control Commission and Gaming Authority.
+Advice volunteered by a cross‑section of members that you constantly and openly criticise around the club the conduct of club affairs by Management and the Board."
He submitted that the authorities are clear that where a member's expulsion is in issue there must be a degree of specificity of conduct alleged against that member. He referred to Hornby v. Narrandera Ex Servicemen's Club Ltd[11] citing Powell, J. (as his Honour then was) in Samuel v. St George's Leagues Club Ltd[12]; Kanda v. Government of Malaya[13] and Belperio & Ors v. The Italian AOG Pentecostal Church[14].
[11][2001] NSWSC 235 at [8].
[12]Supreme Court of NSW, unreported, judgment 20 October 1992.
[13](1962) AC 322 at 337.
[14][1999] SASC 188 at [43].
Mr Tracey conceded that the two particulars identified lacked precision. But he submitted that what will in any case be adequate will depend upon all the circumstances. Here there was a long history of conduct by the appellant preceding the meeting called for 22 December 1999. Its detail was well known to the club and the appellant. Moreover, the appellant's behaviour in connection with the annual general meeting of the club held on 30 November 1999 was current and was clearly a focus of the conduct alleged against the appellant. Again, the appellant had not sought additional particulars of the conduct said to be injurious to the character or interests of the club. Further, the appellant had prepared a written response which was in evidence before the Magistrate. It showed that the appellant had well understood what was alleged against him. Finally, the Magistrate had found as a fact that the particulars provided had been adequate. That finding was neither shown to be affected by misdirection, nor such that a reasonable Magistrate properly instructed could not have made.
Had it mattered, I would not have allowed the appeal on the footing that the particulars were necessarily inadequate, such that the learned Magistrate's finding could not stand. I would not want it thought that I regard the particulars as having clearly been adequate. I consider that there was some room for complaint that they lacked reasonable specificity. Whilst I consider, however, that a member subject to the sanction of expulsion is arguably entitled to more particularisation than was here provided, I wish to emphasise that debate as to the sufficiency of particulars must not be permitted to become an art form whereby a member is able to protract an expulsion proceeding interminably. The cases make it plain that exquisite particularisation is not the necessary requirement of the rules of natural justice in a context such as the present.
Conclusion
I consider that the appeal should be allowed and the final order made by the Magistrate on 18 May 2001 should be set aside. For reasons discussed in the course of counsels' submissions, there would be no point, in the circumstances, in remitting the matter to the Magistrates' Court.
I should declare that the purported expulsion of the appellant by resolution made 6 January 2000 was wrongful and was and is of no force and effect.
The formal orders I make are that ‑
(1) The appeal be allowed.
(2) The final order made by the Magistrate's court on 18 May 2001 be set aside.
(3)Declare that the purported expulsion of the appellant by resolution made 6 January 2000 was wrongful and was and is of no force and effect.
(4)Order that each party bear its own costs of the proceedings in the Magistrates' Court and of the appeal, save only in respect of the costs the subject of my order of 24 September 2001.
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