Hogan v Fraser

Case [2019] QSC 27

SUPREME COURT OF QUEENSLAND

CITATION:

Hogan v Fraser & Ors [2019] QSC 27

PARTIES:

PAUL DAMIAN HOGAN

(applicant)

v
STUART FRASER, MICHAEL PARAMOR, PAUL WILLIAMS, BARRY AASKOV, TYSON CLARKE, MARK GREER, JOHN MULLINS, EDWARD PROFKE, TONY SEE and STUART WADDINGTON
(first respondents)
DAVID BARK

(second respondent)

FILE NO/S:

BS No 715 of 2019

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 February 2019

DELIVERED AT:

Brisbane

HEARING DATE:

31 January 2019

JUDGE:

Martin J

ORDER:

The application is dismissed.

CATCHWORDS:

ASSOCIATIONS AND CLUBS – JURISDICTION OF THE COURTS – where the first respondents are the committee of an unincorporated association – where the second respondent conducted a postal ballot at the direction of the first respondents – where the applicant says that the ballot was not conducted in accordance with the rules of the association and is invalid – whether the matter is justiciable

ASSOCIATIONS AND CLUBS – GENERAL MATTERS – RULES – where the first respondents are the committee of an unincorporated association – where the second respondent conducted a postal ballot at the direction of the first respondents – where the applicant says that the ballot was not conducted in accordance with the rules of the association and is invalid – whether the ballot was conducted in a manner “substantially consistent” with the rules of the association – whether the Court should grant relief

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546

Bal v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 566

Baldwin v Everingham [1993] 1 Qd R 10

Carter v NSW Netball Association [2004] NSWSC 737

Cameron v Hogan (1934) 51 CLR 358

Coleman v Liberal Party of Australia, NSW Division (No 2) (2007) 212 FLR 271

DEF v Trappett [2016] NSWSC 1698

Edgar and Walker v Meade (1916) 23 CLR 29

Harrington v Coote (2013) 119 SASR 152

James v Wilson [2019] NSWSC 17

Mitchell v Royal New South Wales Canine Council Ltd (2001) 52 NSWLR 242

Plenty v Seventh-Day Adventist Church (1986) 43 SASR 121

Re Asset Risk Management Ltd (1995) 59 FCR 254

Rivers v Bondi Junction-Waverley RSL Sub-Branch Ltd (1986) 5 NSWLR 362

Ryan v South Sydney Junior Rugby League Club Ltd (1974) 3 ACLR 486

Scandrett v Dowling (1992) 27 NSWLR 483

Sturt v Bishop of Newcastle [2012] NSWSC 400

SZGME V Minister for Immigration and Citizenship (2008) 168 FCR 487

Wilcox v Kogarah Golf Club Ltd (1996) ACLC 421

J Heydon, M Leeming and P Turner, “Meagher, Gummow & Lehane’s Equity Doctrines & Remedies” (5th ed, LexisNexis Butterworths, 2015)

COUNSEL:

N Ferrett QC and J Hastie for the applicant

D O’Brien QC and A Nicholas for the respondents

SOLICITORS:

O’Donnell Legal for the applicant

HopgoodGanim Lawyers for the respondents

  1. In 1865, the Tattersall’s Club was formed as a racing club where members could settle their bets. It was for those who were in the horseracing and business community.…

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Details
AGLC
Hogan v Fraser [2019] QSC 27
Case
[2019] QSC 27
Decision Date

CaseChat Overview and Summary

In the case of Hogan v Fraser, the applicant, Hogan, brought proceedings against Fraser and the committee of an unincorporated association, seeking a declaration that a postal ballot was not conducted in accordance with the rules of the association and was invalid. The court was required to decide whether the matter was justiciable and whether the ballot was conducted in a manner "substantially consistent" with the rules of the association. The court also had to consider whether it should grant relief despite any minor breaches of the rules.
The court held that the matter was not justiciable as it fell within the category described in Cameron v Hogan, where the court should not intervene in the internal affairs of the Club. The court also held that the ballot was conducted in a manner "substantially consistent" with the rules of the association. The requirement that a member write his number on the envelope rather than having a numbered envelope provided will still serve the purpose of identifying those members entitled to vote, which must be the substantial purpose, under the Rules, for the inclusion of the membership number. The practical effect remains the same. The process adopted was substantially consistent with the process for elections by postal ballot set out in Rules 13 and 14.
The court also held that there were no discretionary reasons for not making a declaration. The defendants argued that, even if the process adopted was not "substantially consistent" with the voting process, then discretionary relief should not be granted. The court held that it will not, generally, grant relief where all that can be shown is a minor breach of the rules without any apparent consequence for the integrity of the election. In this case, it was not contended that the method of placing members’ numbers on the envelope led to any member being disenfranchised. The completion of the envelope was in the hands of each member and the procedure adopted did not prevent any member from taking part in the ballot.

ORDERS:
The application is dismissed.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the light of the above conclusion, it is not necessary to consider whether there are any other discretionary grounds to refuse to make the declaration. I merely observe that the absence of any allegation that the applicant would suffer any harm, or would face any diminution in his capacity to enjoy the facilities of the Club, would tend strongly against the making of such a declaration.Conclusion This is a case which falls within the category described in Cameron v Hogan and, thus, the court should not intervene in the internal affairs of the Club. If it were a case which allowed for intervention, then the plaintiff has failed to demonstrate that the ballot was conducted in breach of the Rules. The application is dismissed. I will hear the parties on costs.

Ratio Decidendi

Legal Principle Established

The requirement that a member write his number on the envelope rather than having a numbered envelope provided will still serve the purpose of identifying those members entitled to vote which must be the substantial purpose, under the Rules, for the inclusion of the membership number. This is a minor departure from a part of the procedures set out under Rule 14. The practical effect remains the same. The process adopted was substantially consistent with the process for elections by postal ballot set out in Rules 13 and 14.Are there discretionary reasons for not making a declaration? The defendants also argued that, even if the process adopted was not “substantially consistent” with the voting process, then discretionary relief should not be granted. The court will not, generally, grant relief where all that can be shown is a minor breach of the rules without any apparent consequence for the integrity of the election. It was put this way by Hope and Priestly JJA in Rivers v Bondi Junction-Waverley RSL Sub-Branch Ltd:[33]“ … The discretion to make declarations is very wide, but it is nonetheless a discretion; a plaintiff does not have an automatic right to a declaration because he can point to a failure by the defendant to comply with some requirement. … No doubt it is often as well to have a member of the club who is concerned with procedural requirements and who seeks, within the club, to have them carried out. There are however other factors than mere non-compliance which the court must consider in deciding whether it should intervene and exercise its discretion to make a declaration.”[34][33] (1986) 5 NSWLR 362[34] At 376-377 In arriving at that conclusion, their Honours affirmed the statement by Holland J in Ryan v South Sydney Junior Rugby League Club Ltd:[35]“ … I think that it would be going too far to say that the court would have no option but to declare an election void if there was any breach of a member’s rights under the articles even though, on the evidence before the court, it appeared that the majority of voters had not been prevented from electing the candidates of their choice or that there was no reasonable ground for believing that the majority might have been so prevented. To do so would be to give no weight to the interest of the members as a whole in having an election to settle a contest for control of the company brought to a conclusion with reasonable expedition so as to remove uncertainty and avoid the delay and expense involved in a succession of elections because of some breach of the articles.”[36][35] (1974) 3 ACLR 486[36] At 499 In this case, it was not contended that the method of placing members’ numbers on the envelope led to any member being disenfranchised. The completion of the envelope was in the hands of each member and the procedure adopted did not prevent any member from taking part in the ballot. Where the rules provide that the process for a ballot is to be “substantially consistent” with the manner of electing Committee members, and where the members have decided upon a lower threshold for the acceptability of the process, then those matters, together with the other matters referred to, lead to the conclusion that a court would not interfere on the basis advanced by the plaintiff.