James Bromfield v New South Wales Gun Club

Case •

[2019] NSWSC 430

•

17 April 2019

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: James Bromfield v New South Wales Gun Club [2019] NSWSC 430
Hearing dates: 18, 19, 20, 21 February, 29 March 2019
Decision date: 17 April 2019
Jurisdiction:Equity - Expedition List
Before: Sackar J
Decision:

See paras [119]-[123]

Catchwords: ADMINISTRATIVE LAW – Domestic tribunals – Disciplinary Hearing – Not a merits review – Wednesbury unreasonableness – Actual bias
Legislation Cited: Corporations Act 2001 (Cth)
Registered Clubs Act 1976 (NSW)
Cases Cited: Agricultural Societies Council of NSW Ltd v Christie (2016) 340 ALR 560
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Australian Football League v Carlton Football Club Limited [1998] 2 VR 546
Australian Workers’ Union v Bowen (No 2) (1948) 77 CLR 601
Christie v Agricultural Societies Council of NSW Ltd [2015] NSWSC 1118
Dickason v Edwards (1910) 10 CLR 243
In re Medicaments and Related Classes of Goods (No 2) [2001] WLR 700; [2001] ICR 564
Maloney v New South Wales National Coursing Association [1978] 1 NSWLR 161
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
Texts Cited: n/a
Category:Principal judgment
Parties: James Bromfield (Plaintiff)
New South Wales Gun Club Limited (Defendant)
Representation:

Counsel:
M B Evans (Plaintiff)
A K Flecknoe-Brown (Defendant)

  Solicitors:
O’Brien Lawyers (Plaintiff)
Barry Nilsson (Defendant)
File Number(s): 2018/139708

Judgment

Nature of Proceedings

  1. The Plaintiff in these proceedings, Mr James Bromfield, was found, in a series of meetings held on 14 November 2017 of the Board of Directors (‘the Board’) of the New South Wales Gun Club Limited (the Defendant)(‘the Club’), to be guilty of ‘conduct unbecoming of a member’, ‘conduct prejudicial to the interests of the Club’, and conduct that rendered him ‘unfit for membership of the Club.’ The conduct in question related to three separate incidents that had occurred in 2017. On 17 February 2018, the Board passed a resolution to expel the Plaintiff from the Club.

  2. The Plaintiff primarily seeks orders setting aside the 17 February 2018 resolution of the Board to expel him, as well as further declaratory relief that the resolution is void. The Plaintiff also seeks declaratory relief in relation to the resolutions made by the Board at the 14 November 2017 meetings.

  3. The Plaintiff also claims the resolutions were invalid by reason of bias on the part of the Board, and that the decisions were unreasonable.

Background Facts

The Parties

  1. The Defendant is a shooting Club located in Terry Hills in NSW. The Club is incorporated under the Corporations Act 2001 (Cth) as a company limited by guarantee and operates as a registered Club under the Registered Clubs Act 1976 (NSW). The Club provides facilities for both competitive and casual shooting, and runs a number of competitions and events across a range of disciplines such as sport shooting, skeet shooting and trap shooting. The current membership of the Club is in excess of 500 members. The Club operates under its Constitution, which, for example, provides that the business and general affairs of the Club are placed under the management of the Board.

  2. The Plaintiff has been a full ordinary member of the Club since 2009. To become a member the Plaintiff was required to pay an initial joining fee and then an annual subscription to continue his membership each year. The Plaintiff was a member of the Defendant until 17 February 2018, when by reason of a decision of the Board, he was expelled from the Club.

  3. There is no issue in dispute concerning the validity of the Plaintiff’s membership, nor the authority of particular directors on the Board. It was not in dispute that the Board had the authority to hold meetings and discipline members for particular behaviour. Under clause 17 of the Constitution of the Club (‘the Constitution’) the Board can impose penalties on a member in the event that member;

(a) Refuses or neglects to comply with the provisions of the Constitution,

(b)   Refuses or neglects to comply with the by-laws of the Club,

Or is otherwise guilty of;  

(c)   Conduct unbecoming of a member, or               

(d)   Conduct prejudicial to the interests of the Club, or            

(e)   Conduct that renders the member unfit to be a member of the Club.    

2009 incident with Mr Maryska

  1. Although this incident did not form part of the 2018 suspension, it does feature as part of the Plaintiff’s bias claim and is thus appropriate to briefly set out.

  2. It is generally agreed that in 2009 the Plaintiff was shooting clay targets and Mr Maryska was acting as scorer for the shoot. Mr Maryska was of the opinion that the Plaintiff was shooting too quickly for the machine, and expressed this to the Plaintiff. The Plaintiff claims this interrupted his shot, he then muttered something along the lines of ‘get fucked’ or ‘fuck off’. The dispute then escalated with both Mr Maryska and the Plaintiff swearing at each other. The Plaintiff alleges that Mr Maryska threatened to have him kicked out of the Club, Mr Maryska denies this. Mr Maryska did exclude the Plaintiff from the competition.

  3. The Plaintiff then lodged an appeal with the Club relating to the exclusion and offered an apology to the Club. The Plaintiff claims he offered Mr Maryska a personal apology, which Mr Maryska refused stating ‘You’re out’.

  4. The Plaintiff and Mr Maryska had little contact after this incident until 2013, when the Plaintiff alleges that Mr Maryska sought his investment in an invention. Mr Maryska disputes this.

The 2016 proceedings

  1. The 2016 suspension of the Plaintiff and the surrounding circumstances featured heavily as part of the Plaintiff’s bias claim. It is therefore appropriate to briefly set out the factual circumstances.

  2. On 12 April 2016 the Board passed a resolution suspending the Plaintiff’s membership of the Club for 9 months. The suspension covered the period in which the Plaintiff’s membership would be up for renewal and thus the Plaintiff would have to reapply to join the Club.

  3. The decision to suspend the Plaintiff was based on various incidents in 2015 and 2016. In October 2015, the Plaintiff witnessed the Senior-Vice President of the Club, Mr Morgan, have a verbal altercation with another Club member, Mr Coleman. In December 2015 the Plaintiff sent an ‘open letter’ to Club members, reporting the incident and requesting that the Board sanction Mr Morgan and that Mr Morgan provide an apology to Mr Coleman. This letter was tabled in a Club Board meeting on 12 January 2016. On 28 January, Ms Robertson, the President of the Club, responded to the Plaintiff. She stated that the Board reprimanded Mr Morgan and issued a letter of apology to Mr Coleman, which Mr Coleman did not accept. She noted that she asked Mr Coleman whether he was waging a vindictive campaign about Mr Morgan and Mr Bartlett, to which Mr Coleman said yes and that the two men should be thrown out of the Club. She concluded stating that since the Board handled the issue in the correct manner, no further action would be taken. The Plaintiff did not consider this response appropriate.

  4. Around January and February 2016, the Plaintiff circulated a petition calling for the resignation of Mr Morgan. The Plaintiff sent various emails to other members, alleging certain conduct on the part of Mr Morgan and commenting on the various failures on the part of the Board. Around 10 February 2016, the Plaintiff was told that Mr Morgan had resigned from the Board; this was confirmed by Ms Robertson in a letter to the Plaintiff on 21 February 2016. The Plaintiff requested that this information be circulated to other members, but Ms Robertson and other Board members refused. Also on 10 February 2016, it was alleged that the Plaintiff had followed and taunted another member of the Club and his wife. The Plaintiff admitted having a conversation with these people but denied taunting and following them.

  5. On 23 February 2016, Ms Robertson sent an email to some members of the Club requesting that they put the verbal complaints which they had made about the Plaintiff in writing. Many members submitted complaints. In particular, Mr Gancewicz and Mr Maryska lodged complaints against the Plaintiff on 24 February. On 25 February 2016, Ms Robertson lodged her own complaint. On 26 February, Ms Maytom also lodged a complaint against the Plaintiff.

  6. On 6 March 2016, the Plaintiff emailed Mr Rouse and Mr Stevens proposing to replace the Board members.

  7. On 17 March 2016, Ms Robertson wrote to the Plaintiff indicating that they would be considering the complaints made against him at the next meeting. In particular Ms Robertson noted that the Plaintiff had circulated numerous emails in which he had made unsubstantiated allegations against Club officials, questioned the financial management of the Club, questioned book-keeping standards and questioned credit-card control. She further noted the complaint that the Plaintiff had followed and taunted another member on 10 February. The Plaintiff provided a summary statement by himself and a statutory declaration of Ivan Nemcich to support his case. Mr Fardoulis and Mr Stevens also acted as witnesses for the Plaintiff at the meeting.

  8. On 12 April 2016, the Plaintiff and Mr Stevens were suspended. The Board at this meeting was comprised of:

  1. Ms Robertson,

  2. Mr Del-Ben,

  3. Mr Gancewicz,

  4. Mr Jessop,

  5. Mr Bartlett,

  6. Mr Hibbert,

  7. Mr Shepherd, and

  8. Mr Emerson.

  1. The Plaintiff was given the opportunity to appeal the decision at an Extraordinary General Meeting (‘EGM’) of the Club on 21 May 2016. Prior to the EGM on 12 May 2016, the Board sent a circular to members (not including the Plaintiff) including selected quotes from various emails sent by the Plaintiff and accompanying commentary. The circular appears to have been drafted primarily by Mr Gancewicz, with Ms Robertson providing some comments. The Plaintiff was not notified of the circular, nor given the opportunity to respond. On 21 May the EGM was held and the Plaintiff’s suspension confirmed.

  2. The Plaintiff subsequently brought proceedings in this Court seeking orders to set aside his suspension primarily on grounds that he had been denied procedural fairness. Those proceedings were resolved partly by consent when the Club agreed to reinstate the Plaintiff’s membership. The issue of costs was resolved by an order on 31 October 2016 that the Defendant pay the Plaintiff’s costs.

Further incidents in 2017

  1. Although these incidents did not form part of the 2016 or the 2018 suspension, it does feature as part of the Plaintiff’s bias claim and is thus appropriate to briefly set out.

  2. In January 2017, the Plaintiff witnessed an incident between Mr Bartlett and Mr Nemcich. The Plaintiff subsequently lodged a complaint against Mr Bartlett over his behaviour during the incident. Lawyers for the Club sent a letter to the Plaintiff on 21 May 2017, advising that they had spoken to Mr Nemcich who did not press the incident and they therefore considered the matter settled. The Plaintiff indicated he wanted to progress the complaint. The Board requested further details, including the Plaintiff particularise which Ground in clause 17 Mr Bartlett had breached. The Plaintiff did not respond to this request.

  3. In January 2017, the Plaintiff sought an apology from the Board for the publication of defamatory material about him. The defamatory material in question being the May 2016 circular produced prior to the EGM. Lawyers for the Club advised the Plaintiff of a proposed apology on 23 February 2017 as well as requesting the Plaintiff sign a Deed of Release. After some correspondence, the parties agreed on the words of the apology and the Deed of Release. The apology was apparently circulated and the Deed of Release was signed sometime around March 2017. The Club paid the Plaintiff $5000 for his legal costs.

The 2017 complaints

  1. In late 2017 certain charges were brought against the Plaintiff in respect of three separate matters. It was alleged that the Plaintiff engaged in certain conduct and this conduct was ‘conduct unbecoming of a member’, ‘conduct prejudicial to the interests of the Club’, and conduct that rendered him ‘unfit for membership of the Club’.

  2. Briefly the three complaints against the Plaintiff are as follows;

The Gancewicz complaint

  1. This complaint was lodged by Mr Andrew Gancewicz who alleged that on 29 July 2017 the Plaintiff had refused to comply with a direction of a shoot marshal (the “Gancewicz complaint”).

  2. It is accepted by both parties that on 29 July 2017, the Club held a novelty shooting event attended by the Plaintiff. It is alleged the Board had decided that there would be squads of five shooters in order to ensure the event flowed better. The Plaintiff arrived at the event with five other shooters with the intention of competing in a squad of six. The Plaintiff was then informed of the five shooter rule by the shoot office official, Mr Shepherd. It is slightly contested what happened next. Mr Shepherd stated that Plaintiff insisted on shooting with six. The Plaintiff maintains that he merely requested that Mr Shepherd check with the shoot marshal about shooting with a squad of six. It is agreed that all six paid their entry fee and went to the car park to collect their guns. In the car park, the shoot marshal for the event, Mr Gancewicz, again informed the Plaintiff of the five shooter rule. Mr Gancewicz then left and returned with Mr Maryska and Mr Laurenson to further speak with the Plaintiff about his intention to shoot with a squad of six.

  3. The Plaintiff states that a novelty shooting event is not bound by the rules of the Australian Clay Target Association (‘ACTA’), and there was, therefore, no requirement that shooting parties be no more than five. The Plaintiff states he and the rest of his group questioned the ruling, arguing that he had shot at similar events with a party of six. The Plaintiff states that Mr Gancewicz, then proceeded to tell the Plaintiff that if he ‘didn’t like it, he could leave.’ According to the Plaintiff, he remained calm and polite throughout the whole incident and was totally within his right to question the ruling of the shoot marshal. The Plaintiff contends there was no reason for the five squad rule. The Plaintiff claims that Mr Maryska stated he would call the police to have him removed from the premises. The Defendant states, on the basis of the complaint from Mr Gancewicz, that the Plaintiff challenged the ruling of the shoot marshal and indicated that he intended to shoot with six after being informed of the rule. The Defendant states that the Plaintiff was aggressive in his interactions with shoot officials. It is agreed that the incident was resolved when Mr Koudsy agreed to act as scorer and the Plaintiff shot in a squad of five.

  4. On 7 August lawyers for the Defendant sent a letter to the Plaintiff informing him they were considering the Gancewicz complaint and furnished him with a copy of the complaint and witness statements of Mr Maryska and Mr Laurenson. On 18 August, the Plaintiff responded by swearing a Statutory Declaration. On October 15 the Club sent a letter to the Plaintiff informing him they were considering the complaint at an upcoming Board meeting and supplied the Plaintiff with a copy of Mr Shephard’s statement, the ACTA rules (specifically rule 9.03) and a copy of a notice that had allegedly been displayed in the shoot office during the event on 29 July 2017 (‘the notice’). Both rule 9.03 and the notice referred to squads of five. The letter requested additional witness statements from the Plaintiff and informed him the Board was considering the complaint and whether he had breached clause 17 of the Constitution.

The undisclosed recipients complaint

  1. This complaint related to the refusal of the Plaintiff to comply with a request made to him by the Club, that the Plaintiff disclose the names of persons to whom he had sent an email on 6 April 2017 (the “undisclosed recipients complaint”).

  2. It is uncontroversial that on 6 April 2017 the Plaintiff sent an email to certain ‘undisclosed recipients’ commenting on the affairs of the Club and making arguably derogatory comments about certain Board members. The email in particular took issue with the apology issued by the Board in relation to the defamation issue that occurred early in 2017. On 12 April 2017 lawyers for the Club sent a letter notifying the Plaintiff of their concerns that certain allegations were defamatory of Ms Robertson and requesting the Plaintiff disclose who the email had been sent to. The Club noted that they had been informed about the email from people at other shooting clubs and interstate, and that they were anxious about repairing the Club’s reputation. On the same day the Plaintiff sent a letter apologising for any offence given in his email but did not concede that any of the comments had in fact been defamatory. He declined to give the names of the recipients. The Club pressed the Plaintiff to disclose who he sent the emails to, in letters on 9 May and 7 August 2017. The Plaintiff declined to provide the recipients.

  3. Lawyers for the Club sent a letter on 15 October 2017 to the Plaintiff, again requesting disclosure of the recipients, and informing him that they were considering the complaint and whether the Plaintiff had breached clause 17 of the Constitution.

The Boccanfuso complaint

  1. This complaint was lodged by Mr Ernesto Boccanfuso who alleged that the Plaintiff had spoken aggressively to him (the “Boccanfuso complaint”).

  2. It is generally agreed that on 4 January 2017 Mr Boccanfuso was standing with Mr Alexander near the Club house. The Plaintiff states that Mr Boccanfuso was staring at him, which prompted the Plaintiff to say something akin to “Have you got something to say to me”. The Defendant, based on the complaint from Mr Boccanfuso, states that Mr Boccanfuso was not staring at the Plaintiff, rather the Plaintiff approached him aggressively asking him what he was looking at.

  3. It is then agreed that Mr Boccanfuso said “what?” to the Plaintiff, who then responded (arguably aggressively) “have you got a problem”. Mr Boccanfuso then swore at the Plaintiff. It is agreed that the incident resolved when Mr Laurenson stepped in and asked everyone to calm down.

  4. On 7 June 2017 lawyers for the Defendant sent a letter to the Plaintiff advising him that the Club was considering the Boccanfuso complaint, and furnished the Plaintiff with a copy of the complaint and witness statements of Mr Laurenson and Mr Alexander. The Plaintiff responded on 9 June 2017 by swearing a statutory declaration. In a letter on 11 August the Plaintiff was invited to provide further witness statements. The Plaintiff responded by swearing a further statutory declaration on 15 August 2017. Lawyers for the Club then sent a letter to the Plaintiff on 15 October 2017 stating they would be considering the complaint and whether the Plaintiff had breached clause 17 of the Constitution.

  1. These complaints were considered at three separate Board meetings on 14 November 2017. The Board meetings are considered below.

Board meeting relating to the Gancewicz complaint

  1. The Directors present at this meeting were:

  1. Joan Robertson,

  2. Donald Jessop,

  3. Lee-Ann Maytom,

  4. Don Alexander,

  5. Gary Bartlett,

  6. Norman Emerson,

  7. Ernie Boccanfuso, and

  8. Andrew Bell.

  1. The Board considered the complaint made by Mr Gancewicz against the Plaintiff as set out in an incident report dated 29 July 2017. The complaint was advanced on four grounds:

  1. Ground 1: the Plaintiff said (allegedly) to the shoot office official that he would shoot with six shooters in his squad,

  2. Ground 2: the Plaintiff said (allegedly) to the shoot marshal, Mr Gancewicz, that although he was aware of the rule, he did not intend to comply with it,

  3. Ground 3: if found that the conduct in Grounds 1 and/or 2 occurred, whether the Plaintiff thereby wilfully attempted to disregard the published rules and procedures of the annual sporting shoot competition, and

  1. Ground 4: the Plaintiff argued (allegedly) with Club officials Mr Gancewicz, Mr Maryska and Mr Laurenson in an aggressive manner.

  1. The following evidence was before the Board;

  1. Letter from Shire Legal to the Plaintiff, dated 7 August 2017,

  2. Incident report from Mr Gancewicz dated 29 July 2017,

  3. Statement of Mr Maryska,

  4. Statement of Mr Laurenson,

  5. Statutory Declaration of the Plaintiff, sworn 18 August 2017,

  6. Notice to members from shoot marshal re squad numbers,

  7. Statement of Mr Hanuman dated 2 September 2017,

  8. Shooting rules of ACTA, and

  9. Letter from Vox Law solicitors to the Plaintiff dated (incorrectly) 16 October 2017 (the actual letter was sent on 15 October 2017).

  1. The Board found unanimously, in relation to all grounds, that on the balance of probabilities the conduct alleged in each ground had occurred and that this conduct constituted, conduct ‘unbecoming of a member’, conduct ‘prejudicial to the interests of the Club’, and conduct that ‘renders the Plaintiff unfit for membership’.

  2. On 20 November the Plaintiff was informed of the outcome of the meeting and sent a copy of the minutes. The Plaintiff was invited to make submissions.

Board meeting relating to the undisclosed recipients complaint

  1. The Directors present at this meeting were:

  1. Joan Robertson,

  2. Andrew Gancewicz,

  3. Donald Jessop,

  4. Lee-Ann Maytom,

  5. Walter Maryska,

  6. Don Alexander,

  7. Gary Bartlett,

  8. Norman Emerson,

  9. Ernie Boccanfuso, and

  10. Andrew Bell.

  1. The Board considered the request that the Club’s solicitors had made to the Plaintiff that he provide a list of the undisclosed recipients to his email dated 6 April 2017, and that the Plaintiff had failed to provide the requested information. The complaint was advanced on one ground:

  1. Ground 1: the Plaintiff has, notwithstanding numerous requests, failed to provide the Club with a list of the undisclosed recipients to his email dated 6 April 2017.

  1. The following evidence was before the Board:

  1. Email from the Plaintiff dated 6 April 2017, addressed to ‘undisclosed recipients’,

  2. Letter from the Plaintiff to the Club dated 12 April 2017,

  3. Letter from Shire Legal to the Plaintiff dated 9 May 2017,

  4. Letter from Shire Legal to the Plaintiff dated 7 August 2017, and

  5. Letter from Vox Law to the Plaintiff dated 15 October 2017.

  1. The Board found unanimously, that on the balance of probabilities the conduct alleged in Ground 1 had occurred and that this conduct constituted; conduct ‘unbecoming of a member’, conduct ‘prejudicial to the interests of the Club’, and conduct that ‘renders the Plaintiff unfit for membership’.

  2. On 20 November the Plaintiff was informed of the outcome of the meeting and sent a copy of the minutes. The Plaintiff was invited to make submissions.

Board meeting relating to the Boccanfuso complaint

  1. The Directors present at this meeting were:

  1. Joan Robertson,

  2. Andrew Gancewicz,

  3. Donald Jessop,

  4. Lee-Ann Maytom,

  5. Walter Maryska,

  6. Gary Bartlett,

  7. Norman Emerson, and

  8. Andrew Bell.

  1. The Board considered the complaint made by Mr Boccanfuso against the Plaintiff as set out in a formal written complaint dated 11 January 2017. The complaint was advanced on two grounds:

  1. Ground 1: the Plaintiff approached (allegedly) Mr Boccanfuso, and

  2. Ground 2: If found that the conduct in Ground 1 was done, whether the approach by the Plaintiff was, or could reasonably be perceived to be, confrontational.

  1. The following evidence was before the Board:

  1. Formal written complaint from Mr Boccanfuso, dated 11 January 2017,

  2. Statement of Mr Laurenson dated 25 January 2017,

  3. Statement of Mr Alexander dated 23 January 2017,

  4. Letter from Shire Legal to the Plaintiff dated 7 June 2017,

  5. Statutory Declaration from the Plaintiff sworn 9 June 2017,

  6. Letter from Shire Legal to the Plaintiff dated 11 August 2017,

  7. Statutory Declaration of the Plaintiff sworn 15 August 2017, and

  8. Letter from Vox Law to the Plaintiff dated 15 October 2017.

  1. The Board found unanimously, in relation to the two Grounds, that on the balance of probabilities the conduct alleged in each Ground had occurred and that this conduct constituted; conduct ‘unbecoming of a member’ and conduct ‘prejudicial to the interests of the Club’. The Board found 7-1 that the conduct in relation to the two grounds was conduct that rendered the Plaintiff unfit for membership.

  2. On 20 November the Plaintiff was informed of the outcome of the meeting and sent a copy of the minutes. The Plaintiff was invited to make submissions.

The 2018 expulsion

  1. On 29 November the Plaintiff wrote a letter to the Club refuting the allegations made in the various complaints and accusing the Board of bias. On 4 December 2017, the Club responded noting that the Plaintiff had been awarded procedural fairness and rejected the allegations of bias and that they would be considering sanctions shortly. The Plaintiff requested an extension of time on 6 December, the Club agreed to this request. Lawyers for the Plaintiff wrote to the Club on 24 January 2018 asserting that the Board did not have any grounds to expel or suspend the client.

3 February 2018 meeting

  1. A Board meeting of the directors of the Club was held on 3 February 2018.

  2. The Directors present at this meeting were:

  1. Joan Robertson,

  2. Donald Jessop,

  3. Norman Emerson,

  4. Andrew Bell,

  5. Lee-Anne Maytom, and

  6. Gary Bartlett.

  1. The Board considered the various complaints against the Plaintiff.

  2. In relation to the Boccanfuso complaint and the corresponding 14 November 2017 Board Meeting, the Board unanimously resolved to censure the Plaintiff.

  3. In relation to the undisclosed recipients complaint and the corresponding 14 November 2017 Board Meeting, the Board unanimously resolved to impose no penalty on the Plaintiff.

  4. In relation to the Gancewicz complaint and the corresponding 14 November 2017 Board Meeting, the Board unanimously resolved to defer consideration of any penalty to the meeting on 17 February 2018. The Board also resolved to notify the Plaintiff that the Board was considering expulsion as one of a possible range of penalties and gave the Plaintiff the opportunity to make a submission on the matter. The Board specifically invited the Plaintiff to give an apology or make an undertaking that he would in future comply with the rules of the Club and directions of the shoot marshal. The Plaintiff did not make any submissions on the matter, nor did he give an apology or an undertaking.

17 February meeting

  1. The Directors present at this meeting were:

  1. Joan Robertson,

  2. Donald Jessop,

  3. Norman Emerson,

  4. Andrew Bell,

  5. Lee-Anne Maytom, and

  6. Gary Bartlett.

  1. The Board considered the Gancewicz complaint and the relevant 14 November 2017 Board meeting as well as the 3 February 2018 meeting. The Board further considered the invitation made to the Plaintiff for further submissions and the fact that the Plaintiff had declined to make such further submissions. The Board resolved unanimously to expel the Plaintiff from the Club.

  2. Sometime around 20 February Ms Robertson contacted the Firearms Registry to inquire whether the Plaintiff was a member of another Club. On or around 28 February 2018, the Plaintiff was contacted by the NSW Police Force regarding his firearms license.

Submissions

Plaintiff

  1. The Plaintiff submits that the 14 November 2017 Board meetings and the 17 February 2018 Board meeting should be declared void and set aside.

  2. The Plaintiff submits that the Board is bound by the principles of natural justice and required to exercise its decision making processes accordingly [Plaintiff 1st sub [18]]. Further, the disciplinary powers conferred to the Board under the Constitution are powers that must be used in good faith and for a proper purpose [Plaintiff 1st sub [20]]. The Plaintiff advances his claim on the allegation that the Board’s decision was:

  1. Affected by bias, and

  2. Unreasonable.

  1. In relation to the alleged bias, the Plaintiff submits that there is clear evidence of actual bias [Plaintiff 1st sub [32]]. The Plaintiff makes out claims against the various Board members:

  1. In relation to Mr Gancewicz, the Plaintiff noted that Mr Gancewicz was intimately involved in the 2016 dispute, including being the author of the 12 May 2016 circular, lodging a complaint against the Plaintiff, and sitting on the Board that suspended the Plaintiff [Plaintiff 1st sub [33], the circular can be found at CB 2-100]. Mr Gancewicz was also the author of a complaint against the Plaintiff on 3 March 2016 [Plaintiff 3rd sub [29], Mr Gancewicz’s 2016 complaint can be found at CB 2-173]. Further, the Plaintiff later demanded an apology for the same circular in January 2017. The Board then issued an apology and paid the Plaintiff’s costs.

  2. In relation to Ms Robertson, the Plaintiff noted she notified the NSW Firearms Registry that the Plaintiff had been expelled from the Club, an action that could only be evidence of Ms Robertson’s bias towards the Plaintiff [Plaintiff 1st sub [35]]. Further she was President of the Board when the Plaintiff was suspended in 2016 and had herself lodged a complaint in February 2016 that contributed to the Plaintiff’s suspension [Plaintiff 3rd sub [22(a)], Ms Robertson’s complaint can be found at CB 2-201]. Ms Robertson was further involved in preparing the circular prior to the EGM on 21 May 2016.

  3. In relation to Ms Maytom, she provided a complaint against the Plaintiff in 2016 [Plaintiff 3rd sub [22(b)], Ms Maytom’s complaint can be found at CB 2-177].

  4. In relation to Mr Bartlett, the Plaintiff notes that he had lodged a complaint with the Club about Mr Bartlett in early 2017 [Plaintiff 3rd sub [22(c)], the Plaintiff’s complaint can be found at CB 1-150]. The Plaintiff states that this complaint was not appropriately dealt with.

  5. In relation to Mr Boccanfuso, he had lodged a complaint against the Plaintiff (the Boccanfuso complaint), but was still allowed to sit on the Board considering the Gancewicz complaint [Plaintiff 3rd sub [22(d)]].

  6. In relation to Mr Maryska, he had lodged a complaint against the Plaintiff in February 2016. Further the Plaintiff notes that he was involved in an incident with Mr Maryska in 2009 where allegedly Mr Maryska swore at the Plaintiff and threatened to have him kicked out of the Club. The Plaintiff notes that Mr Maryska asked him to invest in his invention in 2013, which the Plaintiff refused. The Plaintiff states that Mr Maryska’s view is set out in a letter to Ms Robertson on 24 February 2016, where he expresses anger at the trouble the Plaintiff has caused at the Club [Plaintiff 3rd sub [23], Mr Maryska’s letter can be found at CB 2-200].

  1. The Plaintiff stated that there is clear documentary evidence that shows Ms Robertson, Mr Gancewicz and Mr Maryska went to considerable lengths to put together a case against the Plaintiff in 2017, thus their statements that they held no particular animus towards the Plaintiff should not be accepted [Plaintiff 2nd sub [27]]. The Plaintiff states that the holding of the 3 different meetings on 14 November 2017, all considering complaints against the Plaintiff, were structured to give the apparent appearance of neutrality to disguise the bias held by the Board. Further the sheer unreasonableness of the Board’s decision is evidence of bias in itself [Plaintiff 1st sub [39]].

  2. In relation to the unreasonableness, the Plaintiff submits that the Board, in subjecting the Plaintiff to its disciplinary processes, was invoking these powers and imposing punitive sanctions in circumstances in which it was not acting in good faith and was motivated by other improper concerns. Therefore the exercise of that power was unreasonable [Plaintiff 1st sub [37]]. Further, the particular complaints were so trivial or irrelevant that the expulsion was so out of proportion as to be unreasonable [Plaintiff 1st sub [38]]. With regards to the particular complaints that were considered at the Board meetings, the Plaintiff submits the following:

  1. In relation to the Board meeting of the undisclosed recipients complaint, the Plaintiff states this complaint is essentially related to an allegation that the Plaintiff defamed Ms Robertson. It is therefore inappropriate for Ms Robertson to use her powers as President of the Club, instead of suing in her own name [Plaintiff 1st sub [40(a)]].

  2. In relation to the Board meeting of the Boccanfuso complaint, the Plaintiff alleges that while he was disciplined, Mr Boccanfuso was elevated to the Board [Plaintiff 1st sub [40(b)]]. He further notes that Mr Laurenson’s statement of 25 January 2017 makes no mention of Mr Boccanfuso swearing at the Plaintiff, although he does say this in his affidavit [Plaintiff 3rd sub [25]].

  3. Lastly in relation to the Gancewicz complaint, the Plaintiff makes several submissions:

  1. No particular five-squad shooter rule applied to the novelty, event [Plaintiff 3rd sub [2]]. The evidence before the Board, in particular the notice and the ACTA rules, could not have applied to the particular novelty event held on 29 July 2017 [Plaintiff 2nd sub [11]-[15]]. There was no other notice given to members about the rules of the novelty shoot prior to the event being held [Plaintiff 2nd sub [24]]. The Plaintiff states that he has previously shot in similar events in a group of six. Further there is evidence from other witnesses that occasionally people may shoot in squads of six [Plaintiff 3rd sub [2], [6]]. The Plaintiff states that at the next shooting event he attended he was allowed to shoot in a squad of six [Plaintiff 3rd sub [8]]. There was, therefore, no legitimate expectation of Club members being required to shoot in a squad of five [Plaintiff 2nd sub [23]]. Moreover there is no evidence that indicates the five-shooter squad rule was a safety requirement [Plaintiff 2nd sub [20(d)]], rather it is to help the competition flow better [Plaintiff 3rd sub [10]-[11]].

  2. In relation to the shoot marshal, although the Plaintiff accepts the shoot marshal’s authority, that does not mean he is unable to question a ruling. There is no document that sets out the Clubs rules as to the powers of the shoot marshal [Plaintiff 3rd sub [4]]. The discretion afforded to the shoot marshal to set the rules, naturally includes discretion to then waive such rules [Plaintiff 2nd sub [20(e)]]. The Plaintiff notes that the difference in evidence between his version of events and that of the author of the complaint and argues, contrary to the allegations in the complaint, that he merely questioned the rule and did not express an intent to disregard the shoot marshal’s ruling [Plaintiff 2nd sub [17]].

  3. The shoot marshal could have exercised his power to disqualify the Plaintiff from the novelty event. The fact he did not do so shows that the ultimate expulsion of the Plaintiff is a disproportionate response [Plaintiff 2nd sub [20(k)]].

  4. The Plaintiff refers to the various grounds upon which the Gancewicz complaint was made:

  1. With respect to Ground 1, the Plaintiff notes that the statement of Mr Shephard was an important piece of evidence relied upon by the Board. However, Mr Shephard was not available for cross-examine and this evidence should not be considered as reliable [Plaintiff 3rd sub [18]].

  2. With respect to Ground 2, the Plaintiff notes that the complaint rests, in part, on the contention that the Plaintiff intended to disregard the shoot marshal ruling. However, notwithstanding the Plaintiff’s evidence denying this, there was no way he could have disregarded the rule without the clear support of the other five shooters. There is no allegation made against any of these other five shooters [Plaintiff 2nd sub [20(g)]].

  3. With respect to Ground 3, the Plaintiff argues he could not have wilfully disregarded any published rules given that there were no published rules applying to the event [Plaintiff 3rd sub [20(b)]]. Further all the Plaintiff did was question the rule and express his disagreement with it (Plaintiff 3rd sub [20(c)-(d)]].

  1. Therefore, the findings against the Plaintiff at the 14 November 2017 meetings, as well as the ultimate expulsion at the 17 February 2018 meeting were unreasonable [Plaintiff 1st sub [40(c)].

  2. Additionally, the Plaintiff noted that the Constitution operates as a contract between the Club and its members, and submits that the Defendant has breached the implied term that the disciplinary powers available to the Board will only be invoked and applied in good faith and for a proper purpose [Plaintiff 1st sub [38]]. Therefore, the Plaintiff requests an award of damages for breach of contract [Plaintiff 1st sub [40]].

Defendant

  1. The Defendant submitted that the primary objective of the proceedings is for the Plaintiff to have his membership restored, and therefore the object of focus should be the Gancewicz complaint, which formed the basis of the Board’s decision to expel the Plaintiff from the Club in the 17 February 2018 meeting. The Defendant points out that although the Plaintiff challenges the validity of the other two resolutions, there was no sanction imposed for the undisclosed recipient complaint and the Plaintiff does not challenge the sanction arising from the Boccanfuso complaint. Those challenges, therefore, appear to have little practical utility and cannot attract the relief of the Court.

  2. With regards to which witness testimony should be preferred, the Defendant submits that generally the evidence of the Plaintiff and his witnesses should not be preferred [Defendant 2nd sub [30]]. The Defendant notes the Plaintiff’s strident and hyperbolic language and tendency to minimise his involvement in the various events [Defendant 2nd sub [31]]. The testimony of Mr Fardoulis and Mr Koudsy are brief and general and contain a series of contradictions when compared to their affidavits [Defendant 2nd sub [35]-[36]]. Further, there was little attack if any on the Club’s witnesses [Defendant 2nd sub [39]].

  3. The Defendant notes that the Plaintiff claims that the Board resolutions by reason of first bias, and second unreasonableness were invalid.

  4. The Defendant submits that when considering the decisions of a domestic forum, only a finding of actual bias will invalidate a decision [Defendant 1st sub [11]].The Defendant submitted that there was no evidence supporting the claim that each of the different meetings held on 14 November 2017 were constituted by anyone else apart from the members listed [Defendant 2nd sub [79]]. Rather the Board took care to ensure that none of the complainants or witnesses were involved in the decision about that particular complaint [Defendant 1st sub [18]]. Further the Defendant addresses the bias claim against each of the relevant Board members:

  1. With respect to Ms Robertson, the Defendant notes that the Plaintiff claims that Ms Robertson’s email to two other Club members on 22 February 2016 amounted to an attempt to ‘solicit’ complaints against him. Rather, the evidence shows that Ms Robertson was requesting that various verbal complaints she had received be put in writing [Defendant 2nd sub [82]]. Further, although Ms Robertson played a minor role in preparation of the 12 May 2016 ‘circular’, and agreed that the Plaintiff’s action had had a negative impact on the Club, she didn’t indicate she believed permanent expulsion was the solution [Defendant 2nd sub [83]]. Although she made a complaint against the Plaintiff in 2016 and participated in the Board meeting that expelled him, this does not ‘preclude her from ever bringing an open mind’ to any other matters concerning the Plaintiff [Defendant 2nd sub [84]]. Ms Robertson maintained that she put the 2016 events behind her [Defendant 2nd sub [86]].

  2. With respect to Ms Maytom, the Defendant notes that the allegations against her seem to rise no higher than the suggestion she did not like the Plaintiff. It was not put to her that the sentiment in her 2016 complaint carried forward until November 2017. Dislike alone cannot amount to bias [Defendant 2nd sub [89]].

  1. With respect to Mr Jessop, the Defendant notes that the only claim made against Mr Jessop was that he sat on the original Board that suspended the Plaintiff in 2016, this alone is insufficient to establish any bias [Defendant 2nd sub [90]].

  2. With respect to Mr Bartlett, the Defendant notes that although the Plaintiff complained about Mr Bartlett in early 2017, it doesn’t appear that Mr Bartlett was aware of the complaint, undermining any allegation of bias [Defendant 2nd sub [93]].

  3. With respect to Mr Boccanfuso, although he made a complaint about the Plaintiff considered in the proceedings, it appears the case against him only amounts to that he disliked the Plaintiff. This alone is insufficient to amount to bias. The suggestion that Mr Boccanfuso only made the complaint because he dislikes the Plaintiff has been rejected [Defendant 2nd sub [63]]. In any case, simple disliking is insufficient to amount to actual bias [Defendant 2nd sub [64]].Further Mr Boccanfuso did not participate in the decision to expel the Plaintiff in February [Defendant 2nd sub [95]-[96]].

  4. With respect to Mr Alexander, the Defendant notes that although he provided a witness statement to the Boccanfuso complaint there is no suggestion that he had a particular adverse view of the Plaintiff [Defendant 2nd sub [97]].

  5. With respect to Mr Gancewicz, the Defendant notes that he did not participate in any of the Board decisions that lead to the Plaintiff’s expulsion [Defendant 2nd sub [98]]. Further, although Mr Gancewicz authored the May 2016 circular, he stated that he only wanted to inform other members of what he believed was the Plaintiff’s inappropriate behaviour [Defendant 2nd sub [99]]. He stated he considered the 2016 matter settled [Defendant 2nd sub [100]].

  6. With respect to Mr Maryska, the Defendant notes that he rejected any suggestions of animus towards the Plaintiff, rather he just wanted the Board to look into the behaviour of the Plaintiff [Defendant 2nd sub [103]]. With regards to the 2009 incident, the Defendant states that despite the Plaintiff’s ongoing insistence that Mr Maryska had attempted to have him removed from the Club, there is no evidence that this was the case [Defendant 2nd sub [70]]. The evidence is that all he wanted was the Board to have a hearing on the matter [Defendant 2nd sub 70]]].

  7. With respect to Mr Laurenson, the Defendant notes that he did not participate in making of any impugned resolutions [Defendant 2nd sub [104]].

  1. The Defendant submits that a resolution can only be invalid if it is so unreasonable that no reasonable Board would make it [Defendant 1st sub [7]]. The Defendant then submits with regards to the unreasonableness case about the various meetings, the following:

  1. The resolutions stemming from the Boccanfuso complaint were reasonably able to be reached on the evidence before the Board [Defendant 2nd sub [73]]. Mr Boccanfuso’s account was substantially consistent with Mr Laurenson and Mr Alexander’s account [Defendant 2nd sub [60]]. However it is not necessary to reach definitive conclusions about what version is to be preferred [Defendant 2nd sub [62]]. There is nothing to suggest the Board could not have considered and consequently accepted the three statements of Mr Boccanfuso, Alexander and Laurenson [Defendant 2nd sub [62]].

  2. The resolutions stemming from the Gancewicz complaint were reasonably able to be reached on the evidence before the Board. The Defendant makes the following points:

  1. The Defendant states that the essence of the ‘conduct unbecoming’ was the Plaintiff’s failure to abide by a direction of the shoot marshal. The evidence of Mr Gancewicz is substantially consistent with the evidence of Mr Laurenson and Mr Maryska [Defendant 2nd sub [65]] and the Board was entitled to prefer this version of events. The evidence is that the Board considered the conduct extremely serious, and thus the decision to ultimately sanction the Plaintiff as opposed to simply disqualifying him from the competition was not disproportionate [Defendant 2nd sub [74]]. The Defendant notes that the Club’s decision was based on the importance of maintaining good order when firearms are involved [Defendant 1st sub [15]].

  2. Accepting that the ACTA rules did not technically apply to the novelty event, it is clear that they guide the Club in running various events [Defendant 2nd sub [5]-[6]]. Specifically Mr Laurenson pointed to the Club’s rules and by-laws which stipulated that competition shoots are to be conducted as per ACTA rules [Defendant 2nd sub [4]]. Moreover, it is clear that it was general practice amongst the Club (highlighting the notice, and the evidence of Mr Laurenson and Mr Gancewicz) that events would be run with five-shooters in a squad [Defendant 2nd sub [18]-[23]].

  3. Irrespective of whether the ACTA rules directly apply to the event, it now appears to be common ground that the shoot marshal has the discretion to determine the rules of the event [Defendant 2nd sub [9]]. For novelty events in particular, the shoot marshal will determine what rules will be adopted and whether there will be any variation from the ACTA rules [Defendant 2nd sub [12]]. In the case of the event on 29 July 2017, it appears that this was discussed sometime before the commencement of the event [Defendant 2nd sub [12]], however, as is common practice, shooters are not informed of the rules until the day of the event [Defendant 2nd sub [13]]. The Defendant refers to the advertisement for the event in the Australian Clay Target Shooting News, and notes the phrase ‘we reserve the right to alter event and usage to suit competition needs’ but features no more specifics about the rules, noting that these specifics are given on the day of the event [Defendant 2nd sub [13]]. Although there is no specific written rule that outlines the role of the shoot marshal, guidance can be drawn from the ACTA rules on 5 stand shooting, which specify that competitors entering to competitions must follow the rules and accept all official decisions, and the shoot marshal is to be in charge of all operations and personnel [Defendant 2nd sub [15]].

  1. The resolutions stemming from the undisclosed recipients complaints were reasonably able to be reached on the evidence before the Board. The reason that this conduct was considered inappropriate was that it prevented the Club from taking steps to remedy the damage to its reputation [Defendant 2nd sub [75]].

  2. The final decision in the meeting of 17 February 2018 to expel the Plaintiff on the basis of the Gancewicz complaint was also reasonable. Taking into account the seriousness of the conduct, the penalty of expulsion would have been clearly within the range of reasonable penalties. Further by 17 February, the Board was able to take into account the Plaintiff’s conduct as well as his refusal to apologise or make an undertaking to abide by the shoot marshal in the future [Defendant 2nd sub [76]].

  1. The Defendant noted that with regards to the Plaintiff’s claim for damages for breach of contract, there is no evidence of any loss to the Plaintiff [Defendant 2nd sub [108]].

Evidence

Plaintiff

  1. The Plaintiff swore one affidavit on 2 May 2018.

  1. In his affidavit, the Plaintiff set out his version of events as relating to his previous interactions with Mr Maryska, the 2016 proceedings, and the circumstances of the three complaints made against him.

  2. During cross-examination the Plaintiff was questioned about the various matters surrounding the 2017 complaints. When questioned about the Gancewicz complaint, the Plaintiff insisted that Mr Gancewicz had been the first one to approach him [T8/7]. He stated that he took issue with the fact the rules seemed to be imposed specifically on himself [T7/40], of the five shooter rule he stated:

I don’t regard five shooters as a silly rule. It’s a safety requirement [T8/45-46].

  1. The Plaintiff was further questioned about various altercations at the Club prior to 2017.

  1. George Stock swore one affidavit on 21 March 2018.

  1. In his affidavit Mr Stock states that he has been a member of the Club since 2002. He notes that he has shot in squads of more than five at the Club. Mr Stock recalls a conversation with Mr Maryska, in which Mr Maryska stated that the Board was looking for a reason to expel the Plaintiff from the Club.

  2. During cross-examination, Mr Stock stated that he had spoken about the 2016 proceedings with multiple people throughout the Club. He denied that he may have been confused about who he had the alleged Mr Maryska conversation with [T32/40-33/31].

  1. Kyriakos Fardoulis swore one affidavit on 22 March 2018.

  1. In his affidavit, Mr Fardoulis states he has been a member of the Club for some 12-14 years. He recalls attending the novelty shoot on 29 July 2017 with the Plaintiff. He states he heard Mr Gancewicz say with regards to the five squad rule, that they had changed the rules that day in order to see if it would make the scoring easier. He states that Mr Koudsy offered to act as scorer after the initial conversation with Mr Gancewicz. He states that later, Mr Maryska threatened to call the police and that the matter was resolved when Mr Koudsy stated he would act as scorer for a second time.

  2. During cross-examination Mr Fardoulis admitted that Mr Koudsy had only agreed not to shoot during the second conversation [T54/38-43]. Mr Fardoulis however, went on to state that he didn’t agree that there were parts of the conversation that he wouldn’t have heard or didn’t remember [T55/26-29]. He insisted that Mr Gancewicz had said that the five shooter squad rule was being trialled to make scoring easier.

  1. Sam Koudsy swore on affidavit on 11 July 2018.

  1. In his affidavit, Mr Koudsy states he has been a member of the Club for over twenty years. He states that he has regularly shot in a squad of six. He recalls attending the novelty shoot on 29 July 2017. He states Mr Gancewicz aggressively approached the Plaintiff in the car park stating if he didn’t like the five-squad rule he could leave. He states the Plaintiff said something like there was no way he was leaving and that the rule was stupid. He states that Mr Gancewicz said they were trialling five squads. He states that Mr Gancewicz went away and came back with Mr Laurenson and Mr Maryska, and that Mr Maryska threatened to call the police. He states that he then swore at Club officials and said he would act as scorer.

  2. During cross-examination Mr Koudsy couldn’t recall whether or not the Plaintiff had used the word silly or stupid when describing the five shooter rule [T56/35-47]. Mr Koudsy stated that he believed the last thing the Plaintiff had said was “No way, I’m not leaving” [T57/35-37].

  1. Warren Connochie swore one affidavit on 11 July 2018.

  1. In his affidavit, Mr Connochie stated that he is a member of the Club and was present at the novelty event on 29 July 2017. He stated that Mr Gancewicz approached the Plaintiff in the car park stating it was only five squads today and that the Plaintiff questioned this. He stated that Mr Gancewicz left the area and returned with Mr Maryska and Mr Laurenson who acted aggressively towards the Plaintiff. He stated that Mr Maryska threatened to call the police and that Mr Koudsy swore at the officials and then stated he would act as scorer.

  2. Mr Connochie was not required for cross-examination.

Defendant

  1. William Laurenson swore one affidavit on 30 August 2018.

  1. In his affidavit, Mr Laurenson confirmed he is a director of the Club and states that he has been shooting for a significant time. He provides a background into the safety requirements of shooting competitions and the different types of shoots. He recalls the incident surrounding the Boccanfuso complaint; he states that there was aggression on the part of both Mr Boccanfuso and the Plaintiff although he admits that he didn’t note Mr Boccanfuso’s swearing in his original witness statement. He recalls the incident on 29 July 2017, his affidavit generally accords with his original witness statement.

  2. During cross-examination Mr Laurenson was questioned about his involvement in the 2016 suspension of the Plaintiff. Mr Laurenson stated that he didn’t believe he was involved in the 2016 suspension, and didn’t discuss the issue with other directors at the time [T59/47-50]. When asked about what rules governed shoots at the Club, Mr Laurenson strongly asserted that, as per the NSW Gun Club rules and bylaws, that the majority of shoots are conducted under ACTA rules [T60/13-23]. However he admitted that novelty shoots are run under Club rules [T60/22]. There was significant discussion about the rules of shooting; what the basis of the rules was, the difference between different types of competitions and the reasons behind limiting the number of shooters.

  3. Mr Laurenson stated that the notice regarding five shooters had stood for probably five years in the office [T75/32-38]. He stated that the shoot marshal can specify the particular way the shoot will be run on the day [T78/15].

  1. Joan Robertson swore one affidavit on 3 September 2018.

  1. In her affidavit she confirms that she is the President of the Club. She recalls the 2016 proceedings and the various matters involved. She states she received numerous verbal complaints about the Plaintiff, she states she doesn’t recall writing a particular email asking for written complaints but notes that it was in the Club rules that complaints were to be made in writing. She recalls that she heard about the Plaintiff causing disruption within the Club. She states that she considered the 2016 matters were behind her, and wanted to get on with running the Club. She states that she contacted the Firearms Registry after the Plaintiff was expelled to enquire about whether he belonged to another Club. She notes the Club had never expelled someone before and thus thought it was important the Club did everything they were obliged to do.

  2. During cross-examination, Ms Robertson was questioned extensively about her opinion of the Plaintiff. She denied that she didn’t like him and in fact said that they were quite close friends until a few years ago [T82/25-29]. She stated that she was only concerned with running the Club [T82/33].

  3. Ms Robertson was questioned extensively about the events leading to the Plaintiff’s suspension in 2016. She states that she wasn’t trying to influence other directors to suspend the Plaintiff [T131/20] and denies that she formed the view that the Plaintiff should never return to the Club [T130/44-49]. She maintains she didn’t feel any ongoing resentment towards the Plaintiff [T135/47]. In any case, according to Ms Robertson, the entire 2016 affair was ‘all ancient history’ [T128/33].

  4. Ms Robertson was subsequently questioned about the various complaints in 2017 that lead to the Plaintiff’s current suspension. Regarding the Boccanfuso complaint, Ms Robertson stated that she was aware that there was some variance in the witness statements that had been produced in relation to the issue [T140/15]. She further stated that it was only a coincidence that the Boccanfuso complaint came on the same day that the Plaintiff lodged his own complaint against a Club member [T141/11]. She further stated that the Board of directors regarded ‘any complaint as serious’ [T139/10].

  5. Regarding the undisclosed recipients complaint, Ms Robertson stated that she did not take offence nor feel defamed at the contents of the Plaintiff’s email [T142/22-34]. Rather she was concerned about the contents of the email reaching people from other Clubs and interstate [T145/36-39].

  6. Ms Robertson reiterated that the number of shoot sizes was generally guided by the ACTA rules, but was ultimately a matter for the shoot marshal [T149/40-46]. She stated that it is assumed that there will be five shooters per squad [T150/12].

  7. She stated that she was involved, in her role as President, in bringing the charges against the Plaintiff in late 2017 [T154/29-36]. Regarding the differing compositions of the Board, she states that this was decided by excluding anyone who was involved or witness to the particular complaint [T157/9-11]. Although she acknowledges that many people involved in the Board decision of 2016 were involved in one or more of the 2017 Board meetings [T157/14-158/39], Ms Robertson denies that the Board meetings were arranged for the purpose of expelling the Plaintiff from the Club [T158/41-44]. She states specifically that the Gancewicz complaint in particular was regarded by the Board as extremely serious [T164/4].

  1. Lee-Anne Maytom swore one affidavit on 29 August 2018.

  1. In her affidavit, Ms Maytom confirms that she is a director of the Club. Ms Maytom recalls the complaint she made against the Plaintiff in 2016, she recalls she found him bossy and ‘bullyish’ when she shot in a squad with him.

  2. During cross examination Ms Maytom acknowledged that she felt intimidated by the Plaintiff but didn’t particularly like or dislike him, she stated he was just another member [T168/47-169/5]. Ms Maytom further stated she was not aware of the 2016 proceedings [T169/42-48], nor was she aware of the Gancewicz or Boccanfuso complaints before the Board meetings took place in November [T173/10-22].

  1. Ernesto Boccanfuso swore one affidavit on 30 August 2018.

  1. In his affidavit, Mr Boccanfuso confirms that he is a director of the Club. He recalls the incident on 4 January 2017 that lead to the Boccanfuso complaint. He states that although he may have been looking in the general direction of the Plaintiff he did not stare at him. He states that the conduct of the Plaintiff agitated him and he swore at the Plaintiff. He states that he had not really known the Plaintiff before that incident. He states that during the Board meetings held in November 2017 he was asked to leave the room when the Board considered the Boccanfuso complaint.

  2. During cross-examination Mr Boccanfuso was questioned extensively on his recollection of the events that lead to the Boccanfuso complaint. He reiterates his version of events that he was not staring at the Plaintiff when the altercation started [T179/14] and that the Plaintiff behaved in an aggressive manner [T180/20-39]. However he admits to swearing at the Plaintiff [T183/16]. Mr Boccanfuso stated that he had no particular grievance with the Plaintiff [T179/11], and denies lodging the complaint because he didn’t like the Plaintiff [T183/24].

  3. Mr Boccanfuso states that he although he believed the aggressive manner in which the Plaintiff behaved was uncalled for [T185/18] he was not seeking any particular sanction be imposed on the Plaintiff [T185/46]. Rather he states he lodged the complaint because he believed it was the right thing to do [T185/46].

  1. Donald Alexander swore one affidavit on 3 September 2018.

  1. In his affidavit, Mr Alexander confirms that he is a director of the Club and has been shooting for a long while. Mr Alexander recalls the incidents surrounding the Boccanfuso complaint, his account aligned with that in his original witness statement. He states that during the 14 November Board meetings he was asked to leave the room when the Boccanfuso complaint was considered.

  2. Mr Alexander was questioned on his recollection of the 2017 Board meetings but stated that he did not recall any specific details that were not in his affidavit.

  1. Walter Maryska swore one affidavit on 28 August 2018.

  1. In his affidavit, Mr Maryska confirms that he is a director of the Club. He recalls the 2009 incident, he states that he told the Plaintiff to slow down when shooting and the Plaintiff swore at him in return. He states that he gave the Plaintiff an opportunity to apologise, the Plaintiff swore at him again and he swore in return. He states he then disqualified the Plaintiff from the competition, but didn’t want the Plaintiff suspended, just an apology. He denies stating that he would get the Plaintiff kicked out of the Club. He states that he complained about the Plaintiff in 2016, but just wanted the Board to have a hearing. He recalls the incident surrounding the Gancewicz complaint; his affidavit is substantially similar to his original witness statement.

  1. During cross-examination Mr Maryska was questioned about the altercation between him and the Plaintiff in 2009. Counsel for the Defendant asked Mr Maryska whether he made a formal complaint against the Plaintiff because he wanted him kicked out of the Club. Mr Maryska replied:

I personally don’t have anything – I never did have any personal problems with Jim Bromfield. It’s- it’s wholly his behaviour at the Club. That’s the only reason we would have problems [T199/50-200/3]

  1. Mr Maryska was further questioned about the Gancewicz complaint. He reiterated the version of events as told in his affidavit. He stated that the issue of squad size was a matter for determination by the shoot marshal [T228/9].

  1. Donald Jessop swore one affidavit on 28 August 2018.

  1. In his affidavit, Mr Jessop confirms that he is a director of the Club. He recalls the novelty event on 29 July 2017, he recalls he was part of a Board decision prior to the event that had decided to limit squads to five shooters.

  2. During cross-examination Mr Jessop was questioned about the events surrounding the Gancewicz complaint. He confirms that he was involved in the decision to limit the squads to five-shooters [T234/13], and that this sort of decision would be communicated to the shooters who turn up to the event or there will be some sort of notice [T234/18-20].

  1. Andrew Gancewicz swore one affidavit on 39 August 2018.

  1. In his affidavit, Mr Gancewicz confirms that he is a director of the Club. He provides background on the different types of shoots that are held at the Club and the safety requirements that must be followed. He recalls the incident surrounding the Gancewicz complaint. He recalls that there was a Board meeting prior to the event where the five-squad rule was decided. His affidavit generally accords with his original witness statement. He recalls the 2016 proceedings; he states that he prepared the circular so that the members would be able to see the Board’s version of events. He states that he did not participate in the 14 November Board meeting concerning the Gancewicz complaint.

  2. Mr Gancewicz was questioned extensively about the matters surrounding the Gancewicz complaint. He stated that he was shoot marshal on that day [T237/28] and was involved in the decision to limit squad sizes to five [T234/40-44]. This decision reflected standard practice of the Club [T243/30], Mr Gancewicz recalled that occasionally squads of fewer than five were permitted but couldn’t recall squads of six [T235/21-38]. Recalling the confrontation with the Plaintiff, Mr Gancewicz reiterated his version of events. Mr Gancewicz, stated that the notice in evidence was a different notice to the one that had actually been used on the day of the competition [T244/39].

  3. When questioned about the 2016 proceedings, Mr Gancewicz stated that the Plaintiff was entitled to criticise the directors [T254/16] and that he did not hold the view that he should be removed from the Club [T254/42]. He stated that he held his own opinion about the matter but wanted the Board to consider the matter and make its own decision [T255/3-8]. He stated:

I had no like or dislike for Mr Bromfield. I hardly know the man. I had – I had an objection to his behaviour [T255/40-41].

  1. When questioned about the circular prepared before the Plaintiff was suspended in 2016, Mr Gancewicz stated that he did not send it out with the intent to blacken the Plaintiff’s name [T259/50-260/2]. Rather it was done to inform other members of the Plaintiff’s conduct [T260/9-14].

Consideration

  1. The case advanced by the Plaintiff sought to undermine the validity of the various Board resolutions on two grounds, that of bias and unreasonableness.

Was the Board biased towards the Plaintiff?

  1. The Plaintiff’s claim of bias is made generally, against persons who dealt with the three distinct charges as well as those who resolved to expel the Plaintiff, and would appear to rest on four distinct factual matters. First that there was prejudgement because some of the members of the Board who sat on the November 2017 and the February 2018 meetings had also sat on the Board that suspended the Plaintiff in 2016. Secondly, that various pieces of correspondence sent to particular members of the Board in 2016, show that these members expressed views which were derogatory of the Plaintiff. Thirdly that various Board members involved in the 14 November meetings had previously made complaints against the Plaintiff. And fourthly, that the Board or members had an animus towards the Plaintiff because they dislike him.

  2. The law makes it clear that when considering the decisions of domestic tribunals such as the Board of the Club, that a finding of actual bias will indicate that a decision of such a body was ultra vires. By way of example Dixon J in Australian Workers’ Union v Bowen (No 2) (1948) 77 CLR 601 (at 631) said;

That it is not permissible to “have present as a member of the tribunal a person who has promoted the charge and supports it as the prosecutor or one who in invincibly biased against the accused as a result of his participation in the controversy.”

  1. (See also Agricultural Societies Council of NSW Ltd v Christie (2016) 340 ALR 560.)

  2. It is uncontroversial that domestic tribunals are not held to the same stringent requirements as courts of law. Hayne J made this clear in Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, where His Honour notes that the particular features of a body will determine what is appropriate decision-making procedures (at [181]). In particular, His Honour noted that in many cases it will be important, and indeed necessary to the decision making process, that those doing the ‘judging’ have a particular expertise in a certain subject-matter. Relying on this specialised knowledge that exists beyond the particular factual confines of the case before them, will not, in and of itself, constitute bias (at [180]). His Honour went on to state (at [187]);

It is critical, then, to understand that assessing how rules about bias, or apprehension of bias, are engaged depends upon identification of the task which is committed to the decision-maker. The application of the rules requires consideration of how the decision-maker may properly go about his or her task and what kind of degree of neutrality (if any) is to be expected of the decision-maker.

  1. Findings of actual bias are rarely made out. Lord Phillips stated In re Medicaments and Related Classes of Goods (No 2) [2001] WLR 700; [2001] ICR 564 (at [36]-[37]);

Bias is an attitude of mind which prevents the judge from making an objective determination of the issues that he has to resolve…The phrase “actual bias” has not been used with great precision and has been applied to the situation (1) where a judge has been influenced by partiality or prejudice in reaching his decision and (2) where it has been demonstrated that a judge is actually prejudiced in favour of or against a party.

  1. A finding of actual bias therefore requires me to make a finding of fact that the Board here were actually biased in that they had prejudged the issues concerning the Plaintiff. It is not merely that a reasonable bystander may infer a possibility of bias. There must be positive evidence of the particular state of mind of the decision-makers. It is further clear that this state of mind must go beyond a mere dislike. As stated by Glass JA in Maloney v New South Wales National Coursing Association [1978] 1 NSWLR 161 (at 178);

The beliefs and feelings which may be inherited from past conflicts do not prevent the members sitting in judgment upon each other. The only qualification upon that implication is that the members have not agreed to subject themselves to the adjudication of those who have developed an actual bias which no evidence or argument is likely to overcome

  1. Although bias may be alleged, when certain decision-makers have already been engaged in processes involving similar subject matter or the same individual, this in and of itself is insufficient. This claim seems to suggest that there is no possible way that the Boards in 2017 and 2018, which were somewhat similarly constituted to the Board in 2016, could fairly find the Plaintiff guilty of any misconduct. This proposition is illogical and cannot be sustained. Moreover, there is no evidence in my view to suggest that the 2017 Board members who were involved in the 2016 proceedings had prejudged the matters before them. It appears to me in this case, that although the 2016 and 2017/2018 incidents involved the same person, the complaints considered were of an entirely different factual nature. The findings made against the Plaintiff in the 14 November 2017 resolutions seemed to me to be based on the particular evidence before the Board that related to the facts peculiar to those complaints.

  2. Further, the complaints previously made about the Plaintiff, do not in and of themselves lead to a finding of actual bias on the part of those previous complainants. There is no evidence that any of these people had made the complaints for anything but legitimate reasons. Moreover, it appears that everyone had put the past behind them. It cannot be sustained that merely having a prior issue with the Plaintiff of itself could now prevent the Board from considering these new complaints on the facts.

  3. The correspondence referred to by the Plaintiff does indeed evidence a concern with his behaviour at the Club and probably amounts to an expression of dislike [See generally the correspondence at CB 2-156-165; CB 2-181-187]. It is clear however, that just as the Plaintiff continuously asserted his right to criticise the Board members, so too are they entitled to express their dislike of him. It seems to me that the highest that this correspondence evidences is a dislike on both sides, which cannot, alone, amount to actual bias.

  4. Counsel for the Plaintiff put many times to the members of the Board that they held a particular animosity towards the Plaintiff and allowed this bias to affect their minds at the various Board meetings. This assertion was emphatically rejected by Ms Robertson, Mr Maryska, Mr Gancewicz, Mr Boccanfuso, and Ms Maytom (see [71]-[77] above). I accept their denials of bias, rather their actions in the Board meeting appear to be based on the facts before them.

  5. It further appears to me, that the claim of bias cannot be sustained when considering the various actions of the Board on 14 November 2017 and then 3 and 17 February 2018. The Board clearly went through the effort of ensuring that the complainant and other relevant witnesses were not on the Board considering the particular complaint they were involved in. In particular, the fact that the Board decided to impose no sanction for one of the complaints and issue a mere censure in the other is antithetical to the claim of bias. Surely it may be posed rhetorically a Board so affected with the animus alleged by the Plaintiff would have taken the opportunity to discipline him on all of the complained of conduct.

  6. I am not satisfied that the Plaintiff’s allegation of actual bias has been substantiated and that there is no reason to consider anyone was precluded from sitting on the relevant Board.

Were the decisions of the Board unreasonable?

  1. The Plaintiff rests much of his claim upon the ‘Wednesbury Principle’ in that he submits that no reasonable Board could have concluded his guilt as charged. If a decision of the Board was so unreasonable that no reasonable Board could have made it, then that decision will be ultra vires. Put another way, if the decisions of the Board were not available to them on the evidence before them, that decision will be considered an error of law, and thus can be overturned and declared void.

  2. In Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229-30, Lord Greene MR (with whom Somervell LJ and Singleton LJ agreed) famously stated:

[I]f a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming … it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether.

  1. There is no doubt that the Wednesbury principle applies to decisions of domestic tribunals. Indeed, as Kunc J has pointed out in Christie v Agricultural Societies Council of NSW Ltd [2015] NSWSC 1118 at [38], the principle that a court will interfere in the decision of a domestic tribunal where no reasonable person could have reached the relevant decision or no reasonable person could have honestly reached the relevant decision was long ago enunciated by the High Court in Dickason v Edwards (1910) 10 CLR 243.

  2. As Kunc J also observed at [38]:

The Wednesbury unreasonableness test is either identical to or completely consistent with the law as expounded in Dickason. It therefore may be applied to the decisions of domestic tribunals in Australia.

  1. Although Kunc J’s decision was overturned on appeal, the statement of law in this respect was not called into question (Agricultural Societies Council of NSW Ltd v Christie (2016) 340 ALR 560 at [11]).

  2. Although much of the cross-examination appeared to be an attempt to re-agitate the merits of the complaints themselves, that is not the object of these proceedings nor can it be the role of the court in hearing such cases. That is entirely consistent with views expressed in Dickason v Edwards. See also the decision of the Victorian Court of Appeal in Australian Football League v Carlton Football Club Limited [1998] 2 VR 546 at 549 per Tadgell JA.

  3. Domestic tribunals are necessarily accorded considerable flexibility as to their procedures and decision making. A tribunal will very often have specialised knowledge and experience which it is fully expected to deploy. A tribunal can therefore act upon that knowledge and indeed upon hearsay if satisfied it is credible and a proper opportunity is afforded to the person concerned to deal with any such matters: Australian Workers’ Union v Bowen (No 2) (1948) 77 CLR 601 at 628 per Dixon J. In Australian Football League v Carlton Football Club Limited [1998] 2 VR 546, Tadgell JA remarked (at 557-8) that:

A domestic tribunal may in general use information available to it which it is prepared to accept, whether or not it is hearsay or sworn to be true. Indeed, a tribunal might fall into error by following rules of evidence, and thereby depriving itself of information, if its true task is to conduct a broader investigation than adherence to the formal rules of evidence would permit: R. v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 C.L.R. 13.

  1. In the same case, Hayne JA (as his Honour then was) remarked (at 569) that:

The second matter that should be mentioned is the respondents’ contention that the tribunal could not act except on evidence produced at a hearing. It was submitted that the repeated references in the A.F.L. Rules and Regulations to the tribunal hearing and determining a charge before it mean that proceedings before the tribunal are adversarial and the members of the tribunal can act only on material brought forward in the course of the hearing. Rule 27 directs the tribunal to conduct the hearing “with as little formality and technicality and with as much expedition as a proper consideration of the matter permits”. It follows that the tribunal is not limited to acting on what would amount to evidence in a court of law. Thus, it may receive information in writing or orally and it is not precluded from receiving hearsay evidence or non-expert opinion evidence. Further, in my view the members of the tribunal may bring to their deliberations whatever expert knowledge they may have about football. I would go so far as to say that the members of the tribunal may inform themselves in whatever way the chairman sees fit to direct, subject only to their informing the player of the material upon which they propose to act but again I need not decide that in this case. There is no suggestion here that the tribunal acted on such material

  1. The Plaintiff seeks relief against all the 14 November resolutions as well as the February resolution that ultimately expelled him. It is appropriate, therefore, to consider each of the Board resolutions in turn, and decide whether, given the evidence before them, whether or not the decisions were reasonable.

Board meeting considering the undisclosed recipients case

  1. As noted above the Board had various letters and emails before them in the 14 November 2017 meeting. Briefly, the evidence before the Board showed that the Plaintiff had sent out a disparaging email on 6 April 2017. Members of the Board then indicated that they had been asked about the letter from members of other clubs as well as people who were out of state, who inquired about the internal conflict at the Club. The Plaintiff then refused to disclose who he sent the email to despite numerous requests.

  2. It appears that the Board considered that on the evidence before them, that the Plaintiff had expressed certain stringent criticism of the Board and had then forwarded this criticism to individuals outside the Club and interstate. The Plaintiff then refused to inform the Board to whom he sent these emails. In my view it was fully open to the Board to accept this version of events on the evidence before them. The Board was likewise entitled to conclude that given that they were precluded from taking steps to control the reputational damage to the Board, or inform those in receipt of the Plaintiff’s email of their own version of events, that this conduct of the Plaintiff in refusing to co-operate with the Board, amounted to conduct unbecoming and prejudicial to the Club and therefore that the Plaintiff was unfit to be a member. Relevantly the Board chose to impose no penalty against the Plaintiff. To me, this is an entirely reasonable response and well within the range of permissible outcomes available to the Board.

  3. I therefore am satisfied that there is no unreasonableness in relation to the findings of the undisclosed recipients complaint.

Board meeting considering the Boccanfuso complaint

  1. As noted above, the Board had various letters and statements before them in the 14 November 2017 meeting. Briefly, the evidence showed, on one view that Mr Boccanfuso was in a good mood having had a successful afternoon of shooting, he was chatting about his success with Mr Alexander near the back of the club house. On the available evidence the Plaintiff then aggressively approached Mr Boccanfuso asking what he was looking at. When Mr Boccanfuso inquired what the Plaintiff was talking about, the Plaintiff responded with further aggression. The incident escalated with Mr Boccanfuso then swearing at the Plaintiff and aggression on the part of both parties. Mr Laurenson then deescalated the situation, asking the parties to walk away.

  2. The Board was well within their rights to prefer the account of Mr Boccanfuso over that of the Plaintiff. They had various pieces of evidence corroborating the account of Mr Boccanfuso, whereas the Plaintiff chose not to provide any witnesses supporting his version. The sanction imposed by the Board, that is, a censure, was also in my view a reasonable response in all the circumstances and was open to the Board .

  3. I therefore am satisfied that there is no unreasonableness in relation to the findings of the Boccanfuso complaint.

Board meeting considering the Gancewicz complaint

  1. It is on the basis of this complaint that the Plaintiff was expelled from the Club, and thus was the decision that was subject to most scrutiny throughout the trial. The evidence before the Board, as listed above, included the principle complaint as made by Mr Gancewicz, and various other statements generally confirming his version of events. In brief, Mr Gancewicz alleged that on 29 July 2017, the Plaintiff told the shoot office staffer that he intended to shoot with 6 shooters in his squad. The rules and procedures for conducting the competition had, it was asserted, previously been agreed to by the Board, and it had been agreed that squads would consist of five shooters only. The Plaintiff was told that only five shooters would be permitted and responded insisting on five shooters and that he would write the sixth name down at the bottom of the score sheet. On one view of the available evidence, the Plaintiff then told Mr Gancewicz, who was acting as shoot marshal, that he did not intend to comply with the five shooter rule. The Plaintiff behaved aggressively stating that he didn’t care about the silly rules and that he would shoot as he liked at his Club. The situation then deescalated when it was agreed that they would shoot in a squad of five. This sequence of events was generally confirmed in the witness statements of Mr Maryska and Mr Laurenson as well as the original incident report of Mr Shephard.

  1. The Board also had before it the statutory declaration of the Plaintiff sworn on 18 August 2017. On it the Plaintiff refutes many of the allegations made against him, stating that Mr Gancewicz, along with Mr Maryska had displayed aggressive behaviour and that he was well within his rights to question a particular rule. Importantly the Plaintiff failed to supply any supporting evidence or witness statements to support his claim. It was therefore entirely within the Board’s right to prefer the four corroborating witnesses over the explanation of the Plaintiff, and to reach a conclusion about particular factual situations.

  2. The complaint however has to be read within context of the other material before the Board. The original complaint was made by Mr Gancewicz sometime in the few days after the incident on 29 July 2017. On 7 August 2017, lawyers for the Club wrote to the Plaintiff, notifying him of the complaint and providing him with copies of Mr Gancewicz’s complaint as well as witness statements from Mr Maryska and Mr Laurenson. The Plaintiff responded by swearing a statutory declaration and forwarding this to the Board sometime around 18 August 2018. On 15 October (incorrectly dated in the Board minutes as 16 October), the Board sent the Plaintiff a further letter providing a copy of Mr Shephard’s statement, and specifically drawing attention to the notice and rule 9.03 of the ACTA shooting rules.

  3. There is no doubt that the Board had before it, evidence that indicated that the Plaintiff acted in defiance of the shoot office official and the shoot marshal, and it was reasonably open to the Board to accept this evidence. However the Board resolutions appear, on one view, to have been made on an unclear basis. It is clear that a conclusion for which there is no evidence or a conclusion that no rational decision maker could arise at, will be an error of law. If this error goes to the substance of the decision, it must be set aside. The specific grounds that appear in the minutes of the 14 November 2017 Board meeting, appear to, in part, rest upon the conclusion that the Plaintiff breached a particular “published” rule when he engaged in the relevant conduct on 29 July 2017.

  4. Ground 1 purports that the Plaintiff said to the shoot official that he would shoot with six shooters in his squad. It must be read within its context to understand the allegation behind it. This context is informed by Ground 2, which states that the Plaintiff told the shoot marshal that although he was aware of the “rule”, he did not intend to comply with it. Although, Ground 2 does indicate defiance on the part of the Plaintiff, it further refers to a ‘rule’ that on its face is unclear.

  5. It is only in Ground 3 that the reader is informed on one view of what exactly the rules are that provide the necessary context for Grounds 1 and 2. Ground 3 relevantly states, that if found that the conduct in Grounds 1 and/or 2 occurred, whether the Plaintiff thereby wilfully attempted to disregard the “published rules and procedures” of the annual sporting shoot competition. It appears clear to me that these ‘published rules and procedures’ can only refer to some combination of the notice and the ACTA rules (particular rule 9.03). This is apparent first because these feature as items 6 and 8 on the materials before the Board during the meeting on 14 November 2017. Further these items are specifically brought to the attention of the Plaintiff in the 15 October 2017 letter sent by the Board to the Plaintiff. The letter notes that the Board will consider the Gancewicz complaint at a Board meeting on 14 November 2017 and furnishes the Plaintiff with more relevant materials including Rule 9.03 of the ACTA rules and the notice in question.

  6. The notice and ACTA rules featured significantly throughout the trial, and it was eventually accepted by both sides that the ACTA rules, particularly rule 9.03, could not apply to the novelty shooting event held on 29 July 2019. Looking at the ACTA rules, it is clear that rule 9.03 is not a rule of a generic nature, guiding the general process of shooting events, but instead comes from the chapter specifically governing five stand sporting. Five stand sporting refers to an event in which a squad shoots from five set stands. The event held on 29 July 2019, however, required shooters to move through various stands one by one. Rule 9.03, clearly regulates an entirely different event to the novelty event here in question, and thus is inapplicable. The rule is clearly irrelevant to the Plaintiff’s conduct on the day.

  7. There was some argument from Counsel for the Defendant that the term ‘published’ in Ground 3, was not used in any technical sense but could refer to any rule said orally, such as the decision of the shoot marshal on the day [T297/6]. In my opinion this argument cannot be sustained. Reading the phrase in total as ‘published rules and procedures of the annual sporting shoot competition’ makes clear that what the ground is referring to is not one isolated ruling of a shoot marshal, but a more comprehensive document governing procedures. Further, specifically drawing attention to, and listing as part of the documents before them, the Board clearly had in mind, and was considering both the notice and the ACTA rules. During final submissions, Mr Flecknoe-Brown stated that Rule 9.03 could have applied through a decision of the Board to apply this particular rule to the novelty event [T299/35]. However, there is simply no evidence that this happened, nor was there any indication that such a decision had been communicated to the shooters on the day is in question.

  8. Similarly, it is tolerably clear that the notice did not apply to the novelty event on 29 July. Counsel for the Plaintiff states the notice could not possibly apply to the novelty event as it specifically refers to ‘handicaps’ and the novelty event was not a handicap event [Defendant 3rd sub [5]]. Mr Flecknoe-Brown contended that only the second dot-point on the notice dealt with handicap and this second dot-point did not refer to squad size at all. Therefore the two points on the notice are independent of one another [Defendant 2nd sub [20]]. Respectfully, I cannot agree with this proposition, the two points are clearly interrelated and more than likely refer to the same event. I believe that the notice could only apply to a handicap event, which the 29 July 2017 novelty shoot was not. Although there was some discussion about a separate notice applying to the event on 29 July 2017 (see evidence from Mr Gancewicz) it is not clear what this notice said or even if it existed at all. Further it is clearly not the notice that was sent to the Plaintiff on 15 October 2017.

  9. Mr Flecknoe-Brown, further submitted that Rule 9.03 and the notice were only provided to the Plaintiff in the 15 October letter as evidence that the five shooter rule was a common rule, used throughout the Club [T311/47]. Again however, the evidence seems to suggest, given the reference to these items in the Board minutes, that the Board believed these particular documents to apply to the novelty event.

  10. Therefore it appears that the finding that the conduct alleged in Ground 3 occurred and that this in turn was conduct unbecoming of a member, prejudicial to the interests of the Club and rendered the Plaintiff unfit for membership, to be based on an erroneous belief that the ACTA rules and notice governed the event. It seems, furthermore, that given the context that Ground 3 provides for the allegations in Grounds 1 and 2, that likewise those findings are based, indirectly, on this misunderstanding. Although it was agreed by both parties that the shoot marshal did indeed have the ultimate discretion to determine the rules on the day, and there was copious evidence before the Board that the Plaintiff did in fact defy this ruling, it does not appear that this is what the Plaintiff was charged with. Rather it seems that the Board was confused as to precisely what type of misconduct had occurred, and ultimately the Plaintiff was found in breach of rules that did not govern the particular competition.

  11. Ground 4, on the other hand, appears to stand independently from Grounds 1-3. The complaint contained within this ground is based not on some specific rule, but the general understanding within the Club that aggressive argumentative behaviour is not to be tolerated. The Board had before it several witness statements that indicated the Plaintiffs defiant and aggressive conduct towards officials on 29 July 2017 and were in my view entirely within their rights to accept this evidence and condemn the Plaintiff accordingly.

  12. However, although the finding in Ground 4 remains separate, it appears that upon the Board’s decision to sanction the Plaintiff in the 17 February 2018 meeting, the resolution to expel was explicitly based on the findings in Grounds 1-4. The minutes of this meeting do not say which Ground, if any, was given more weight, or whether any of the Grounds were not so relied on when deciding how to sanction the Plaintiff. One cannot disentangle one Ground from the other and they all appear, cumulatively, to have resulted in the Board’s final decision to expel the Plaintiff.

  13. It therefore seems to me that there is a fundamental flaw in the reasoning of the Board. The minutes of the Board meeting considering the Gancewicz complaint on 14 November 2017 clearly rest much of the finding on the fact that the Plaintiff disregarded a particular published rule. It now appears that no such published rule applied to the particular event. At the very least Ground 3 clearly rests on a proposition that cannot reasonably be sustained. Even supposing that some flaws in this reasoning would not necessarily undermine the final outcome, it appears clear from the minutes of the 17 February Board meeting that the ultimate decision to expel the Plaintiff was based on the findings in Grounds 1-4 inclusive. I therefore find that the findings in relation to the Gancewicz complaint and therefore the ultimate decision to expel the Plaintiff unreasonable.

Breach of contract

  1. In addition to the above, although it did not feature significantly in submissions, it was asserted by the Plaintiff that the Constitution of the Club amounted to a contract as between the Club and the Plaintiff. It was submitted that this contract contained an implied term that the disciplinary powers available to the Board will only be invoked and applied in good faith and for a proper purpose.

  2. In my opinion this is the correct view of the law and based on my findings above that the Defendant may have breached this contract to a limited extent. However there were no submissions about what if any damages flowed from the breach.

Conclusion

  1. Based on the reasons as above, I would refuse relief predicated on any finding of bias on the part of the Board. I would also refuse relief relating to the findings of the Board in respect of the Boccanfuso complaint and the undisclosed recipients complaint and the relevant Board meetings that considered them. I would grant relief to the Plaintiff on unreasonableness grounds in relation to the Gancewicz complaint. The findings of the relevant Board meeting on 14 November 2017 as well as the 17 February 2017 resolution seeking to expel the Plaintiff were made in an error of law and are void.

  2. In the light of my reasons I will hear the parties on the precise form of relief to which the Plaintiff is entitled and any further submissions on damages. I will also hear them on the question of costs if this issue is not agreed.

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Decision last updated: 23 April 2019

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Cases Cited

7

Statutory Material Cited

2

Australian Workers' Union v Bowen (No 2) [1948] HCA 35
Randall Pty Ltd v Chepan Pty Ltd [2009] NSWSC 783
Agricultural Societies Council of NSW v Christie [2016] NSWCA 331