Jason Gaske v Motorcycling Western Australia (with Motorcycling Australia)

[2022] NST NST-E22-13711

Case number: NST-E22-13711

Case Title: Jason Gaske v Motorcycling Western Australia (with Motorcycling Australia)

Determination National Sports Tribunal

General Division

sitting in the following composition:

Panel Member  Mr Anthony O’Reilly

in the arbitration between

Mr Jason Gaske  (Applicant)

Unrepresented

And

Motorcycling Western Australia  (Respondent)

Represented by Carl Grossetti and Brendan Taylor

And

Motorcycling Australia  (Applicant Sporting Body)

Represented by Anthony Hynes

PARTIES

1. This arbitration in substance involves the determination of disciplinary proceedings brought against Mr Jason Gaske, by Motorcycling Western Australia Incorporated (MWA).

2. MWA is the State Controlling Body that administers motorcycling competitions under common Motorcycling Australia rules in Western Australia. Mr Gaske is a member and director of MWA.

3. Although Mr Gaske is listed as the Applicant to the arbitration, this reflects the order in which various applications were brought before the National Sports Tribunal (NST) and not the substance of what is being determined. A description of the various applications before the NST are set out later in this determination.

4. The third party to the arbitration is Motorcycling Australia, the national governing body for motorcycling competitions in Australia, who took no active part in the proceedings other than to submit that the NST was the relevant body to hear and determine the dispute.

NST JURISDICTION

1. The NST has jurisdiction to hear this dispute under section 24(1)(b)(i) and section 24(1)(c)(i) of the National Sports Tribunal Act 2019 (Cth), and clause 4.6 of Motorcycling Australia’s Complaints Resolution Policy.

BACKGROUND

1. MWA is a not for profit association incorporated under the Associations Incorporations Act 2015 (WA). Its Constitution provides that its members include clubs, motorcycling associations, private promoters and individuals (as holders of licences issued by MWA)1.

2. The board of MWA is composed of six elected directors and up to two appointed directors. The elected directors must be members of MWA – see clause 14.3 of the Constitution.

3. Mr Gaske is an individual member of MWA. He was elected as a director on 25 March 2019 and was elected for a further term in April 2021.

4. Clause 8 of the MWA Constitution (Constitution) imposes various obligations on its members. These relevantly include to:

   a.at all times act for and on behalf of the interests of MWA, its members and Motorcycling – clause 8(b)(ii));

   b.act in good faith and loyalty to ensure the maintenance and enhancement of MWA and Motorcycling, and the standard, quality and reputation of MWA and Motorcycling to the collective and mutual benefit of the members and Motorcycling – clause 8(b)(iv); and

   c.at all times operate with and promote mutual trust and confidence between MWA and the members in pursuit of the objects - clause 8(b)(v).

5. Clause 11 of the Constitution provides that the board may discipline a member, including by expulsion, suspension or fine, if it considers that the member has:

1 Clause 6.2(a).

a.breached, failed, refused or neglected to comply with a provision of the Constitution;

b.acted in a manner unbecoming of a member or prejudicial to the Objects and interests of MWA, or another member; or

c.brought themselves, MWA, Motorcycling or another member into disrepute.

1. Clause 11.5 provides that the board may delegate its rights and obligations under the clause to a hearing panel, which for the purposes of this arbitration has been agreed by the parties to include the NST.

2. Clause 17.8 of the Constitution imposes an obligation on directors to declare an interest in any contractual, selection, disciplinary or financial matter in which a conflict of interest arises or may arise and clause 17.9 requires it to do so at the meeting of the board at which the relevant matter is first taken into consideration, or at the next meeting of the board if a Director subsequently becomes interested in a matter.

3. The directors of MWA are subject to a Board Governance Charter and Policy Manual (Governance Manual)2, which includes a Board Code of Conduct and Conflict of Interest Policy. The obligations that are imposed on directors include to:

   a.recognise that their primary responsibility is to the organisation as a whole, having regard for the interest of all MWA stakeholders - clause 2.1(b) of the Code of Conduct;

   b.act with honesty, integrity, in good faith and in the best interests of MWA – clause 2.2(a) of Code of Conduct;

   c.not engage in conduct likely to bring discredit upon MWA - clause 2.2(b) of Code of Conduct;

   d.avoid being placed in the actual, apparent or potential situation of making a decision in relation to MWA business that might be affected by a personal interest – clause 2.3(a) of Code of Conduct;

   e.promptly disclose conflicts of interest and act in accordance with the Conflict of Interest Policy – clause 2.3(b) of Code of Conduct;

   f.not take improper advantage of their position as a board member – clause 2.3(e) of Code of Conduct;

   g.comply with the spirit, as well as the letter of the law, the principles of this Code of Conduct and all applicable MWA policies and procedures, and not take any action that may breach the law or applicable MWA policies, procedures or practices - clause 3 of Code of Conduct;

   h.disclose, and take reasonable steps to avoid, any actual or apparent conflict of interest - clause 2.2 of Conflict of Interest Policy;

2 HB 72. The materials before me at the hearing were contained in a paginated hearing bundle. Where a footnote has a reference HB with a number following, that records the page in the bundle at which the relevant document is located.

i.immediately disclose to the President the existence of any actual or potential conflict of interest - clause 2.3 of Conflict of Interest Policy; and

j.immediately disclose in writing to the President the existence of any actual or potential conflict of interest that arises - clause 4.1, Conflict of Interest Procedures.

1. There is no specific disciplinary procedure under the Constitution for directors, although the directors who are members are subject to the clause 11 provisions. They are subject to removal if:

   a.in the opinion of the board, the director has acted in a manner unbecoming or prejudicial to the Objects and interests of MWA, or has brought MWA into disrepute – clause 16.2(h); or

   b.they are removed by a special resolution of the members in a general meeting3.

2. The relevant events that give rise to this dispute took place in late 2021 and early 2022.

3. On 21 September 2021 the board of MWA discussed at a meeting the increased risk to MWA posed by the Western Australian Chapter of the Australian Motorcycle Association (AMA) attempting to expand influence in WA4.

4. On 18 and 19 November 2021, Mr Gaske registered 4 business names associated with well- known motorcycling events in Western Australia:

   a.“Manjimup 15,000”, a motocross event associated with the Manjimup Motorcycle Club and Dirt High Promotions5;

   b.“Kid of the Sand”, a motocross event associated with the Wanneroo Junior Motocross Club6;

   c.“Best of the West”, a motocross event associated with the Bunbury Motorcycle Club known as “Best in the West’7; and

   d.“King of the Sand”8, a motocross event associated with the AJS Motorcycle Club.

5. Each of the clubs is a member of MWA.

6. Mr Gaske registered the business names to his personal company – Megabeast Enterprises Pty Ltd – and he did so without the knowledge of any of the clubs or promoters usually associated with the events. He also did so without discussing it with or informing any of his fellow MWA directors.

7. The next day he informed his brother, Mr Craig Gaske of AJS Motorcycle Club9, of what he had done but he did not at this time inform any representative of the other three clubs. He told his brother that he had registered “King of the Sand” to protect it from falling into the hands of

3 This requires not less than ¾ of the votes to support the resolution – section 51(1) of Associations Incorporations Act 2015 (WA)

4 MWA board minutes HB 212

5 ASIC Registration documents HB 256-60

6 ASIC Registration documents HB 239-43

7 ASIC Registration documents HB 247-51
8 ASIC Registration documents HB 229-32

9 Letter of Craig Gaske HB 201

another sporting body, AMA, that was trying to register names for other events across Australia. Craig Gaske says that he thought that this was a good idea to protect the event.

1. The fact that Mr Gaske had registered the names came to the attention of a director of MWA, Paul Donohoe, who searched the relevant registration registers after he was informed by Mr Gaske that Dwayne Kings had registered “Kid of the Cross” and “King of the Cross”, two event names associated with an unaffiliated Club. He then checked other WA event names, which disclosed that Mr Gaske had registered the four business names associated with the member clubs10.

2. Mr Donohoe informed Mr Brendan Taylor, the President of MWA and Mr Carl Grossetti, its CEO, on 22 November 2021, of what Mr Gaske had done11. That evening, Mr Taylor asked Mr Grossetti to convene a MWA board meeting to discuss his concerns about the conduct of Mr Gaske12.

3. On 23 November 2021, Mr Grossetti received a telephone call from Mr Willie Thomson of Dirt High Promotions, an MWA member who was the promoter of Manjimup 15,000 motocross event conducted by Manjimup Motorcycle Club, complaining about Mr Gaske’s personal registration of the business name of the event13.

4. On the evening of 23 November 2021, the board of MWA, met to discuss Mr Gaske’s conduct in registering the four business names of events associated with its member clubs. Mr Gaske was excluded from the meeting14.

5. Following the board meeting, Mr Taylor contacted Mr Gaske and asked him if he had registered the business names associated with its member club significant events. Mr Gaske admitted that he had registered the business names and said that he had done it to prevent the rival organisation, AMA, registering them as they had done with other significant events in other states15.

6. Mr Taylor then asked Mr Gaske why he had not brought the issue to the MWA board for advice and for it to take action. Mr Gaske responded that he did not think that it was a matter for the board and he had to act fast to protect the names. Mr Gaske also informed Mr Taylor that he intended to transfer the names to the member clubs that ran the events16.

7. In late November 2021 representatives of the Bunbury Motorcycle Club learned that Mr Gaske had registered the business name “Best of the West”17. They decided to take no action and did not make a formal complaint to MWA, although the President of the Club raised it with Mr Grossetti, as the name registered was in error, as the name the club used for its motocross event was “Best in the West”.

10 Statement of Paul Donohue HB 116

11 Statement of Brendan Taylor HB 149-163 par 6-8

12 Statement of Brendan Taylor par 14
13 Statement of Carl Grossetti HB 165-181 par 8-11

14 MWA board minutes HB 206-07

15 Statement of Brendan Taylor par 22-23
16 Statement of Brendan Taylor par 24-29

1. On 6 December 2021, MWA received a complaint from Southern Cross Motorcycle Club, a former affiliated member club of MWA which was considering re-affiliation, complaining about the activities of Mr Gaske in registering club names18.

2. On or about 7 December 2021 Mr Gaske completed the business names transfer documents for:

   a.“Manjimup 15,000” and sent them to the Manjimup Motorcycle Club19;

   b.“Best of the West” and sent them to Bunbury Motorcycle Club despite the error in the registered name20; and

   c.“King of the Sand”21, and provided them to the AJS Motorcycle Club.

3. On 13 December 2021 Mr Taylor received a letter from Mr Thomson of Dirt High Promotions22, formally complaining about the conduct of Mr Gaske in registering the name Manjimup 15,000, which he said was ‘not really fitting behaviour’ for a board member of MWA. Mr Thomson does not appear to be aware that Mr Gaske by this time had sent a business name transfer document to the club.

4. On 13 December 2021 the board of MWA again met to discuss the conduct of Mr Gaske - he was excluded from the meeting. The board resolved to refer the conduct to Motorcycling Australia for it to investigate and to suspend Mr Gaske, including withdrawing his MWA accreditation while the process was underway23.

5. At this stage the business names remained in the name of Mr Gaske’s private company, as ASIC had not yet registered any transfer of the event names registration24.

6. On 14 December 2021, Mr Taylor on behalf of the board sent a letter to Mr Gaske, which stated that25:

   a.     his conduct in registering the business names of the club events had caused significant concerns amongst the members;

   b. he was alleged to have breached clause 11.1(b) of the Constitution;

   c.     the letter was a show cause notice, the outcome of which may result in the matter being referred to Motorcycling Australia for the purpose of it undertaking an independent investigation;

   d.     the letter was giving him an opportunity to respond and show cause why he should not be removed as a director under clause 16.2 of the Constitution; and

   e.     he was for the duration of the process suspended as a director of MWA and from any role where accreditations as a MWA official were required.

18 Email Gary Guerni to Carl Grossetti HB 204

19 HB 261-68

20 HB 254-59
21 HB 234-36

22 HB 193

23 MWA board minutes HB 208-9
24 ASIC Record HB 186

1. On 21 December 2021 a solicitor retained by Mr Gaske sent a letter to Mr Taylor in which he disputed the validity of the show cause letter on a number of bases and stated that his letter was a notice of dispute under clause 32 of the Constitution, which he requested be referred to Motorcycling Australia26.

2. On 13 January 2022, Ms Nicol Novello, the President of the Wanneroo Junior Motocross Club rang Mr Grossetti to raise the concerns of the club as to the conduct of Mr Gaske in registering “Kid of the Sand”, a motocross event the club conducted, as a business name to his private company. She said that the club was concerned that Mr Gaske had done this for his own personal gain and she asked MWA to investigate his conduct27.

3. Mr Taylor did not respond to the December letter from Mr Gaske’s solicitor – it apparently was caught in the spam filter - and Mr Gaske’s solicitor sent a further letter to Mr Taylor on 14 January 202228, noting that he had not received a reply. He again asserted that the original notice was invalid and said that his client intended to now take the matter to Motorcycling Australia or the NST.

4. Mr Taylor responded on 17 January 202229. Mr Taylor said that while Mr Gaske has been issued a letter asking him to explain his conduct to the board, he was not subject to any formal disciplinary process. He said that MWA was happy for Mr Gaske escalating the review to a different body.

5. On 19 January 2022 Mr Gaske’s solicitor sent a letter in response to Mr Taylor30. He asserted that MWA’s position was confusing as to what process was being undertaken and submitted that any complaint against Mr Gaske was required to be heard by an independent body.

6. The board of MWA met on 21 January 2022. They resolved to refer the matter to Motorcycling Australia for external inquiry and that the suspension of Mr Gaske as an a director and official be lifted31.

7. On 24 January 2022 Mr Taylor sent a letter to Mr Gaske advising that his conduct had been referred to an external body for independent investigation and that his temporary suspension as an MWA director, and in respect of his associated duties as an MWA official, had been lifted32.

8. Following this letter Mr Gaske complained to Motorcycling Australia about the manner in which MWA had dealt with him in relation to the complaints and the suspension as a director that had been imposed in him.

9. On 3 February 2022, Ms Novello sent to Mr Grossetti a letter of complaint, on behalf of the Wanneroo Junior Motocross Club, about the conduct of Mr Gaske in registering as a business name “Kid of the Sand”33. She said that she had been informed at the end of 2021 that Mr

26 HB 273-76

27 Statement of Nicol Novello HB 132-34

28 HB 277-78
29 HB 279-80

30 HB 281-82

31 MWA board minutes HB 210-11

32 HB 205

Gaske was going to transfer the name back to the club but she had heard nothing and the club was concerned that Mr Gaske was acting for his own monetary gain.

1. On 4 February Mr Gaske sent an email to Ms Novello saying that he had sent previous emails to the club to organise the transfer of the business name registration but he had received no reply34.

2. On 24 February 2022 Ms Novello made a formal complaint against Mr Gaske on behalf of the Wanneroo Junior Motocross Club, saying that the club was still waiting for the business name to be transferred to the club35. She disputed that Mr Gaske had made any attempt to contact the club before 4 February 2022. She raised the concern of the club that Mr Gaske was acting for his own personal gain.

3. On 13 April 2022 ASIC recorded36 that it had received the request from Mr Gaske’s private company to transfer the registration of the business name “Kid of the Sand”.

PROCEEDINGS BEFORE THE NST

1. On 31 January 2022 Motorcycling Australia filed an application to the NST. It requested that the NST resolve the dispute between Mr Gaske and MWA. It stated the relief that Mr Gaske was seeking other than his re-instatement to the board, which had occurred, was:

   a.the resignation of Mr Taylor as President of MWA;

   b.the replacement of Ms Senior, Vice-President, with a voted member; and

   c.an apology from the board of MWA.

2. On 15 February MWA provided its response to that application. It said that:

   a.Mr Gaske had allegedly engaged in conduct in breach of the Constitution and his duties, responsibilities and obligations as an MWA director and member;

   b.Mr Taylor had on a temporary basis voluntarily stood aside as President;

   c.Ms Senior had already been replaced by a voted member as Vice-President; and

   d.It sought that Mr Gaske be stood aside from his role as a director on a temporary basis until the dispute had been determined.

3. Although Motorcycling Australia was the referring body it adopted a neutral position and sought no relief other than the determination of the dispute by the NST.

4. A Preliminary Conference Agreement was entered into by the parties on 2 March 2022, in which orders for the preparation of the case were agreed by the parties and the parties entered into arbitration agreement for the resolution of the dispute by the NST.

5. The arbitration initially came before me on 3 March 2022, principally for the purpose of determining two applications for interim orders that had been made by MWA.

34 HB 244-246

35 HB 198

36 HB 296

1. The first order sought was that Mr Gaske be stood down from the board of MWA on a temporary basis while the NST determined the dispute.

2. I declined to make this order. It was unclear to me at that initial stage whether there is power in the Constitution to suspend a director, or indeed whether it was open to me as arbitrator to exercise that power, but even if it was accepted that there is such power, which Mr Gaske disputed, I did not think that there was a basis in the evidence then before me to prevent a lawfully appointed director from continuing in office.

3. The second order sought by NWA was that Mr Gaske be prohibited from contacting or communicating with any potential witnesses in relation to the dispute. I declined to make this order. There is no property in a witness and the parties in my view were entitled to approach potential witnesses as they saw fit.

4. I also made orders to better define the matters in dispute between the parties, as they were not well defined by the application and response that had been filed in the NST. I directed each party to file with the NST a document that set out the issues that each party wished to have determined in the arbitration. I requested that if a party was alleging that a person contravened a relevant rule or policy provision, they were to identify:

   a.the relevant rule or policy provision;

   b.the precise conduct that was said to contravene the rule or policy; and

   c.the consequence of that contravention.

1. I also requested that the parties consider the following issues for discussion in the directions hearing that I had scheduled for 15 March 2022:

   a.What are the powers that the board of MWA has to remove a director and, if so, under what rule or provision?

   b.Does the board of MWA have power to suspend a director and, if so, under what rule or provision?

   c.Do the parties contend that an arbitrator in my position is able to exercise any powers of the board in (a) or (b) and, if so, what is the basis on which I am able to do this?

   d.Is an arbitrator in my position able to compel a director to resign or to be replaced and, if so, what is the basis of the power that I have to do this, including what is the relevant policy that has been breached that enables me to exercise that power?

   e.Whether there is any utility in me determining whether Mr Gaske has breached his obligations as a director, in the absence of the board having determined that Mr Gaske has acted in breach of either clause 11.1(b) or 16.2(h) of the Constitution?

2. On 10 March 2022 Mr Grossetti on behalf of MWA filed its issues document. It stated at the outset that as MWA had sought to refer the dispute to Motorcycling Australia, and given the nature of the issues in the dispute, it was counter-intuitive for it to be the respondent to the arbitration. MWA further stated that it considered that the issues for resolution were whether Mr Gaske had by his conduct:

   a.breached clauses 8(b)(ii), (iv), (v), (vi) and 17.9 of the Constitution;

b.breached clauses 2.1(b), 2.2(b), 2.3(a), (b) and (e), and 3 of the Board Code of Conduct, clauses 2.2 and 2.3 of the Conflict of Interest Policy, and clause 4.1 of the Conflict of Interest Procedures;

c.acted in a manner unbecoming of a member and prejudicial to the interests of MWA or another member - clause 11.1(b)(ii) of the Constitution; and

d.brought himself and MWA into disrepute - clause 11.1(b)(iii) of the Constitution;

e.contravened his obligations under sections 44 to 47 of the WA Associations Incorporation Act 2015.

1. The conduct upon which MWA relied was that of Mr Gaske, without notice to the MWA board or to relevant member clubs, in registering the 4 business names of the club events. MWA also relied on the angst and distress that this caused amongst members, and the effect that this had on the relationship between the board, MWA and member clubs, and consequently, on MWA’s operations. It said that the disharmony that this created at the board level made Mr Gaske’s position as a director of MWA untenable.

2. In response to the questions I had raised, MWA said that:

   a.MWA’s board has power to remove a director under clause 14.2 (general power to manage the business of the Association), 14.3 and 11.1(a)(i) (power to expel a member as elected directors must be members) and 16.2(h) (power to determine that a director has acted in a manner unbecoming or prejudicial to the Association’s interests, or has brought the Association into disrepute).

   b.Although the Constitution did not directly provide for these issues to be resolved by arbitration, clause 11.5 of Constitution permitted the board to delegate its rights and obligations under clause 11 to a “Panel” and that given that the MA Complaints Policy refers complaints (including disciplinary matters raised by a State Controlling Body such as MWA) to the NST, the NST is able to perform the role of the “Panel” in clause 11.5.

   c.Other than by exercise of the above powers as a ‘Panel’ under clause 11.5, there is no power in the Constitution or policies that allows the NST to compel a director to resign (or be replaced), although a recommendation by an NST Member (acting independently) to that effect, should carry significant weight in a director’s own thought processes, as well as to any opinion of the board in relation to reaching a decision on the matters set out in clauses 11.1(b) and 16.2(h).

   d.There was utility to me in determining the question of whether Mr Gaske had breached his obligations as a director even in the absence of the board having determined that Mr Gaske had acted in breach of either clause 11.1(b) or 16.2(h) of the Constitution, as the arbitration process would provide a resolution to the matter through a process independent of the MWA board. It further submitted that the NST sitting as a clause 11.5 Panel, being the delegate of the board, could exercise the powers of the board under clause 16.2(h) to remove the director.

3. MWA further submitted that the NST sitting as a clause 11.5 Panel was delegated with authority to determine whether Mr Gaske has breached the Constitution and acted in a manner

unbecoming of a member, prejudicial to the interests of MWA and in doing so brought himself and MWA into disrepute, and if so, the penalty under clause 11.1(a) that ought to apply.

1. The document that Mr Gaske provided as to the issues that he wanted determined in the proceedings was a short one. He only identified two issues:

   a.Whether MWA in the handling of the complaint against him had afforded him procedural fairness as required by the processes set out in the Constitution?

   b.If he was afforded procedural fairness, what was the appropriate resolution of the complaint?

2. The parties attended a pre-hearing conference on 15 March 2022.

3. Given the matters set out in the MWA issues document, it was apparent that in substance there were two matters that MWA wanted determined:

   a. A disciplinary process under clause 11 of the Constitution against Mr Gaske as member of MWA; and

   b.     Whether Mr Gaske had contravened various obligations that he owed as a director of MWA.

4. It requested that I, as an NST Member, act as a Panel delegated to exercise the board’s powers under clause 11.5 of the Constitution.

5. Mr Gaske also requested that I act in this capacity. Motorcycling Australia, as the referring party of the dispute to the NST, made the same request.

6. Given the agreement of the parties, I did not formally consider whether the proper construction of the Constitution and the Motorcycling Australia policies permit the appointment of the NST in this manner. To the extent that the appointment is not consistent with the requirements of clause 11.5 of the Constitution and the MA policies, the appointment is by agreement of the parties.

7. Given my view that what MWA principally wanted determined was a disciplinary process under clause 11 of the Constitution, I directed that it file and serve a document in the form of a notice to Mr Gaske that set out each of the breaches of the Constitution, Board Code of Conduct, Conflict of Interest Policy and any other Policy, that are alleged against Mr Gaske together with particulars of his conduct for each alleged breach that is said to constitute the contravention. This is in substance a disciplinary breach notice under clause 11 of the Constitution.

8. I also made a number of procedural directions for the preparation of the proceedings, which I do not extract here other than to note that I requested that the parties provide outlines of the evidence of any witness on which they proposed to rely at hearing and that they, in response, advise whether they required that any witness of the other party to give oral evidence and, if so, the basis on which this was required.

1. MWA filed its document in the form of a disciplinary breach notice under clause 11, which it titled ‘Notice of Allegations’37. It set out detailed conduct allegations against Mr Gaske and alleged that he had:

   a.breached clauses 8(b)(ii), (iv), (v), (vi) and 17.9 of the Constitution;

   b.breached clauses 2.1(b), 2.2(a) and (b), 2.3(a), (b) and (e), and 3 of the Board Code of Conduct, clauses 2.2 and 2.3 of the Conflict of Interest Policy, and clause 4.1 of the Conflict of Interest Procedures;

   c.acted in a manner unbecoming of a member and prejudicial to the interests of MWA or another member, or brought himself and MWA into disrepute - clauses 11.1(b)(ii) and 11.1(b)(iii) of the Constitution; and

   d.contravened his obligations under sections 44 to 47 of the WA Associations Incorporation Act 2015.

2. The procedural directions given were largely complied with by the parties. No party submitted that any witness was required to give oral evidence but at the pre-trial directions hearing that occurred on 6 May 2022, I directed that Mr Taylor and Mr Gaske make themselves available at the hearing for some questions that I had.

3. The arbitration was heard on 10 May 2022. Given the fact that principal issue to be determined was the allegations made by MWA that Mr Gaske had breached a number of provisions of the Constitution and MWA Governance Policies, MWA was in effect treated as the applicant in the arbitration and Mr Gaske the respondent.

MATERIAL OF THE PARTIES

1. The parties pursuant to the directions made by the Tribunal filed a considerable amount of evidence, as well as written submissions. A full list of the evidence filed is contained at the conclusion of this determination.

2. As I discuss later in this determination, despite the extensive evidence there were a limited number of factual questions in dispute. The extensive matters set out in the background section of this determination were all matters established by the evidence without contradiction.

3. This means that while I have read and considered all the evidence it has not been necessary for me to refer to the evidence of all witnesses in my determination. I have only done so where necessary to explain my reasoning. I have similarly read and considered all written submissions but only referred to a particular submission when I consider it necessary to do so.

4. One observation that I wish to make is that because none of the parties were legally represented, the conduct and determination of this arbitration has been difficult. If the parties had been legally represented, that would have likely assisted the parties in focusing on the specific claims that they wished to make and identifying the evidence and submissions that were required to support those claims.

5. In the absence of legal representation, it has been necessary for me to consider some factual and legal questions without assistance from the parties. If the parties had been legally

37 HB 37

represented it is likely that there would have been some matters on which I would have sought assistance and it may be that that assistance might have led to further submissions or evidence being provided. It is also possible that legal representatives may have elected to cross examine particular witnesses, which may have meant that it was open to me to reach different conclusions about the evidence of those witnesses than I did. In this respect, an arbitrator in my position as a fact finder will generally be unable to reject as untruthful, uncontested evidence of a witness who is not cross examined if that evidence is not inherently improbable.

1. I am making this observation to encourage the parties to obtain legal representation in any future disputes in which they might be involved. While that will involve some additional expense, it will be to the benefit of the parties and any arbitrator in ensuring that a just result is obtained. It is not enough for the parties to simply rely on the legal qualifications of an arbitrator, as his or her role is to determine the dispute that is brought before him or her, not to assist the parties to put their case in the manner which is most advantageous to them.

MATTERS IN DISPUTE

1. The questions that I am required to determine in this dispute are38:

   a.Whether Mr Gaske by his conduct:

   i.      breached clauses 8(b)(ii), (iv) and (v), 17.8 and 17.9 of the Constitution;

   ii.      breached clauses 2.1(b), 2.2(a) and (b), 2.3(a), (b) and (e), and 3 of the Board Code of Conduct, clauses 2.2 and 2.3 of the Conflict of Interest Policy, and clause 4.1 of the Conflict of Interest Procedures;

   iii.acted in a manner unbecoming of a member or prejudicial to the interests of MWA or another member - clause 11.1(b)(ii) of the Constitution;

   iv.has as a member brought himself or MWA into disrepute – clause 11.1(b)(iii) of the Constitution;

   v.acted in a manner unbecoming of a director or prejudicial to the interests of MWA - clause 16.2(h) of the Constitution; and

   vi.has as a director brought MWA into disrepute – clause16.2(h) of the Constitution

   b.Whether MWA in the handling of the complaint against Mr Gaske has afforded him procedural fairness as required by the processes set out in the Constitution?

   c.If Mr Gaske is afforded procedural fairness, what is the appropriate resolution of the complaint?

   d.If Mr Gaske has breached any of the provisions set out above what penalty, if any, should be imposed on him.

2. I note that in the written submissions MWA filed it stated that while it alleged that Mr Gaske had contravened his obligations as a director under sections 44-47 of the Associations

38 To the extent that these issues differ from those set out in MWA’s Notice of Allegations document, this reflects the way in which MWA put its case at the hearing.

Incorporations Act 2015 (WA), those allegations were outside the scope of this process. I have therefore not considered them in the determination.

1. I further note that to the extent that MWA might initially contended that I was able sitting as an arbitrator to exercise the power of the board to remove a director, it accepted in its written submissions that the NST did not have the power to form the ‘opinion of the board’, that was required under clause 16.2(h) to remove Mr Gaske as a director. It therefore did not ask that I determine whether Mr Gaske should be removed as a director under clause 16.2(h) but pressed that I express my independent opinion whether he had engaged in the conduct that would permit his removal under the provision.

CONSIDERATION OF MWA’S DISCIPLINARY PROCESS AGAINST MR GASKE

What was the conduct in which Mr Gaske engaged?

1. There is almost no dispute as to the factual matters relevant to the conduct of Mr Gaske.

2. There is in substance only one factual matter in dispute in relation to the conduct of Mr Gaske, being what was his purpose in registering the business names of the relevant club events that he did?

3. Mr Gaske’s evidence is that he had heard rumours that a rival national motorcycling body, the Australian Motorcycle Association (AMA), was going to register these names and he registered the names of the four events to protect ‘these iconic events for the Motocross Community’39. He says that he did it to ensure that the clubs associated with the four events could continue to use the event names which had been associated with their clubs for many years40.

4. This is disputed by MWA. It does not positively assert in its submissions, as I understand it, that Mr Gaske registered the business names in the pursuit of some personal financial interest, but submits that Mr Gaske should not be believed when he says that he was acting to protect the interests of the clubs.

5. MWA relies on a number of matters in support of this submission:

   a.Mr Gaske did not inform the President or CEO of MWA of the threat that he perceived, prior to registering the business names of the iconic club events to his personal company. It says that if he truly had the interests of MWA or its member clubs at the forefront of his mind, he would have consulted the MWA before acting.

   b.Even if Mr Gaske believed that urgent action was required to protect the names, such that he did not have time to consult with the President of the CEO, if he was acting in good faith he would have informed them, and the representatives of the affected clubs, immediately after registering the business names. He did not disclose this to the board of MWA and with the exception of the club associated with his brother, the clubs found out about what happened through rumours in the motorcycling community.

39 See introductory paragraph and paragraph 3 of statement of Mr Gaske dated 5 April 2022 HB 285- 88.

40 Letter of Mr Gaske distributed to MWA Board members on 8 March 2022 – HB 284

c.AMA and its emerging activities in Western Australia were well known to all MWA directors, including Mr Gaske, to the extent that the potential risk to MWA membership was discussed at a board meeting in September 202141.

d.Mr Gaske registered the business names to his personal company rather than to MWA (or any other relevant entity).

e.The 4 events for which Mr Gaske registered business names are all profitable events on the motocross calendar.

f.The historical conduct of Mr Gaske of personally registering motorcycling associated names or events associated with Southern Cross Motorcycle Club while he worked with the promoter WAMX42.

g.Mr Gaske is the former chairman of WAMX, a promoter of motocross events in WA.

h.In November 2021, around the same time that Mr Gaske registered the 4 business names, Mr Gaske’s associate Mr Kings commenced trade mark applications to (personally) register names for Southern Cross Motorcycle Club events43.

1. The contentions of MWA are disputed by Mr Gaske. His evidence is that he believed on the information that he had that AMA was going to register the names of the iconic events and that he had to act urgently to provide the business names falling into their hands.

2. He further says that he did not notify MWA because he did not think that it was an issue for them. In particular, he says that he did not want to protect the names by registering them with MWA as he did not agree with the club names being registered in the name of MWA, as that would mean that if the clubs decided to de-affiliate from MWA, they would not have control of names of the events that they conducted.

3. In his oral submissions at the hearing he strongly disputed the evidence of Ms Della Bosca that he had in the past sought to register event names associated with the Southern Cross Motorcycle Club. While he gave no formal evidence on this point, I do not think that the evidence of Ms Della Bosca is of much assistance to me in this case as it is far from clear what were the relevant circumstances in the past matters to which she refers.

4. This factual dispute as to what was the purpose of Mr Gaske in registering the business names of the four iconic events is not an easy one to resolve. It is apparent that the conduct of Mr Gaske caused some members to conclude that he was acting in the pursuit of his own financial interests. Mr Thomson for one did not believe his explanation that he was acting to protect the clubs and Mr Gaske’s history of being a promoter of motocross events may have influenced some members to reach the same conclusion44.

5. The failure of Mr Gaske to inform the MWA board of the threat that he believed was posed by AMA is on one view puzzling given that it was an easy thing for him to do and MWA no doubt

41 HB 212-13

42 Statement of L Della Bosca HB 144-47

43 Statements of L Della Bosca and P Donohoe (HB116)
44 Statement of W Thomson at HB 120

could have registered the business names on an urgent interim basis to prevent them falling into the hands of AMA.

1. It is however explicable in light of the evidence of Mr Gaske that it did not “sit right” with him that MWA register the names45 as the member clubs might want to de-affiliate from MWA and they would not then have control of their event names. He was protecting the interests of the clubs against AMA but in doing so he also wanted to ensure that he protected their interests as against MWA, as he perceived them. This to me is a plausible reason why Mr Gaske did not raise the matter with MWA and it is an explanation that is consistent with his contention that he was acting to protect the interests of the member clubs.

1. The failure of Mr Gaske to immediately inform the clubs of what he was proposing to do is surprising, or to at least have immediately informed them that the names had been registered, if his purpose was to protect the interests of the clubs. He was unable in the hearing when I asked him questions about this to provide any explanation for his failure to immediately disclose the registrations after they had been done. He did of course disclose it to his brother, as president of the AJS club, in respect of the registration of “King of the Sand”46.

2. The evidence of Ms Kerry O’Leary47 is however supportive of Mr Gaske having a purpose of acting to protect the interests of the clubs. She says that on 18 November 2021 when she arrived at work:

   a.she was told by Mr Gaske that he had heard rumours that AMA were setting up events and possibly registering business names for those events;

   b.she was asked by Mr Gaske to do an ASIC search on the business names that AMA had registered;

   c.the ASIC search showed that AMA had recently registered at least 50 names of events across Australia;

   d.in response to this Mr Gaske told her that he needed to act quickly to protect the interests of the clubs; and

   e.Mr Gaske then directed her to register the business names of the four iconic events.

3. Ms O’Leary is an employee of Mr Gaske, and appears from the minutes of the meeting of the AJS club48 to have some involvement in the club, and she is therefore not an independent witness. That said, I have no basis to reject her evidence as being untruthful or unreliable, when she was not cross-examined at the hearing and there is nothing that it is inherently improbable about her evidence. There is accordingly evidence that I am required to accept that provides contemporary support to Mr Gaske’s version of events. While it is possible that he may have made statements to Ms O’Leary that disguised his true purpose, it is difficult to reconcile the request that she undertake the ASIC search, and the resulting disclosure of the names of 50 registered events, with a conscious plan to pursue his own private financial interests.

45 Statement of J Gaske HB 285-88 par 4

46 Letter Craig Gaske HB 291

47 Statement of K O’Leary HB 292         48 AJS Club meeting minutes HB 202-03

1. Another matter which supports Mr Gaske’s contention that he was acting to protect the clubs, is his disclosure to his brother the next day, in his brother’s capacity as the president of the AJS club, that he had registered the event name but would be transferring it to the club49.

2. Further, when Mr Taylor spoke to Mr Gaske after the board meeting on 23 November 202150, Mr Gaske informed him that he would be transferring the registered names to the relevant clubs. This is only five days after the names had been registered. It is possible that he only agreed to do this because his registration of the names has been discovered, but this conclusion is not consistent with the evidence of Ms O’Leary and his brother, Craig Gaske.

3. Having regard to all the evidence before me on the issue, I am therefore satisfied on the balance of probabilities that in registering the four iconic event names, Mr Gaske was, as he says, seeking to protect the interests of the clubs and he was not acting in pursuit of this own financial interests. In reaching this conclusion, I observe that there are elements of Mr Gaske’s conduct that are difficult to understand but when the totality of the evidence in this arbitration is considered, this is the most likely explanation for his conduct.

4. This conclusion does not however mean that Mr Gaske has not acted in breach of his obligations as a member or director of MWA. It is a finding of the purpose of his conduct, not whether that conduct met the obligations he owed as a member or director. I address this in the following section of my determination.

What impact did the conduct of Mr Gaske have on MWA and other members?

1. The conduct I have found that Mr Gaske has engaged in is that he:

   a.registered business names to his private company, being the names of four iconic Western Australian motorcycling events, each of which had a long association with a particular motorcycle club which is a member club of MWA;

   b.registered the business names without discussing it with MWA or informing MWA immediately after he had done it; and

   c.registered the business name without discussing it with the member club associated with the event, or informing it of his purpose in registering the business name.

2. I have determined that Mr Gaske registered the business names because of his belief that they were at risk of being registered by the rival organisation, AMA, and he wanted to protect the names for the benefit of the relevant member clubs.

3. It is my view that the act of Mr Gaske in unilaterally seeking to help the clubs, by registering the names without discussing it with MWA and the member clubs, was a poorly thought out and misconceived idea. It was conduct that was likely to cause the club members of MWA to be concerned that he was acting to obtain some financial interest in their events, the pursuit of which was likely to be considered improper for a member of the MWA board, given his obligations to act in the best interests of MWA. It was therefore conduct that would create tension in the relationship between MWA and its members, irrespective of his intentions, and potentially damage it. This should have been apparent to him.

49 HB 291

50 Statement of Brendan Taylor HB 155 par 27

1. Mr Gaske concedes in hindsight that registering the event names as business names without discussing it with the club associated with the event, would have caused the club concern and anxiety. He accepts that he should not have done that. He also accepts that he should have referred his concerns of the risk to the event names to the MWA board and that his conduct had the potential to create dissention between MWA and its member clubs.

2. The extent to which Mr Gaske’s registration activities created anxiety and dissention amongst the member clubs is a matter in which there is dispute between the parties.

3. MWA submits that the conduct caused considerable angst and distress amongst the member clubs of MWA. It says that Mr Gaske’s registration of event names associated with the clubs became widely known in the motorcycle community in Western Australia and this created negative perceptions amongst members and other persons of both Mr Gaske, and MWA given his membership of the board, which affected the relationship between the board and the member clubs and, as a consequence, the operations of MWA.

4. This is disputed by Mr Gaske. He says that while he appreciates in hindsight that registering the event names as business names to his private company caused the relevant clubs concern, he has apologised to them, explaining why he did what he did, and transferred the business name to the clubs as he always intended. He contends that this largely addressed their concerns, that MWA has wrongly paid attention to a complaint made by a non-affiliated club, being Southern Cross Motorcycle Club51, and that it had all been blown out of proportion.

5. MWA in support of its contrary contention relies on evidence from a number of persons.

6. Mr Willie Thomson, the principal of Dirt High Promotions, is a promoter and member of MWA and has promoted and run the Manjimup 15000 event together with Manjimup Motor Cycle Club since 2009. He says that when he first became aware that Mr Gaske had registered the business name to the event, he considered that this was a financially threatening act to both the Manjimup Motor Cycle Club and Dirt High Promotions. He also says that he did not believe Mr Gaske when he said that he was acting to protect the interests of the Club52.

7. I have no basis to not accept this evidence from Mr Thomson. While I have determined that the evidence establishes that Mr Gaske was seeking to protect the interests of the member clubs, given the clandestine manner in which he did this and his history as a promoter of events, it is not surprising that a person in the position of Mr Thomson formed the view that he did.

8. Mr Thomson wrote a formal letter of complaint to Mr Grossetti and Mr Taylor dated 13 December 202153, in which he requested that the board of MWA address what he considered was behaviour of a director that was ‘not really fitting behaviour of one in that position’. He said that he had now gone to the expense of registering the event name as a trademark in light of Mr Gaske’s conduct.

9. MWA also relies on the evidence of Ms. Novello54, the President of the Wanneroo Junior Motocross Club, which conducts the event ‘Kid at the Sand’, an event name registered by Mr

51 HB 204

52 HB 118-122

53 HB193
54 HB 132-36

Gaske. She states that when she became aware that Mr Gaske had registered the name she was concerned that he was seeking to obtain a financial benefit from it. She wrote two letters on behalf of the Club55 to Mr Grossetti of MWA, complaining about Mr Gaske registering the business name and his delay in transferring the business name back to the Club, and asking that MWA undertake an investigation into Mr Gaske’s conduct.

1. Other evidence on which MWA relies is:

   a.Shane Blakers, President of the Manjimup Motor Cycle Club56 – he says he raised his Club’s concern about the registration by Mr Gaske’s private company of the club’s event name, Manjimup 15000, with Mr Grossetti. He also told Mr Grossetti that other MWA member clubs had the same concern and that the matter had become widely known in the motocross community.

   b.Luke Few, Vice President of the Bunbury Motorcycle Club57 – he says that he became aware that Mr Gaske’s private company had attempted to register what was his clubs event name, ‘Best in the West’. He also says that Mr Gaske’s registration of the club names was widely known in the motorcycle community.

   c.Carl Grossetti, CEO of MWA – he says that between November 2021 and January 2022 he was contacted by a number of club members and other members of MWA who were aware that Mr Gaske had registered Club names and wanted to know what action MWA would take to address his conduct58.

   d.Gary Guerini - President, Southern Cross Motor Cycle Club – in his email dated 6 December 202159 he said that the Southern Cross Motorcycle Club were considering re- affiliating to MWA but that Mr Gaske’s registration of high-profile motocross events as businesses concerned the club, given that he was an MWA board member.

2. Against the evidence relied upon by MWA, Mr Gaske relies on:

   a.The letter of his brother, Craig Gaske, the President of the AJS Motorcycle Club, that the club had no issue with what Mr Gaske had done, was making no complaint and that it had been a good idea60;

   b.The witness statements that he has provided as to his transfer of the business name and the provision of apologies to various clubs61;

   c.his evidence that once he explained to the Clubs what he was doing, they understood it; and

   d.the evidence of Ms. O’Leary as to the transfer of the event business names62.

55 HB 198-99

56 Statement of Shane Blakers HB 124-28

57 Statement of Luke Few HB 138-40
58 Statement of Carl Grossetti HB 177 par 35

59 HB 204

60 HB 201

61 HB 293-95, 290

62 HB 292

1. At the hearing I also asked some questions of Mr Taylor and Mr Gaske to better understand some of the evidence in their written outlines.

2. Mr Taylor in response to my question as to the current state of the relationship between MWA and the member clubs, said that some clubs were still not over the issue and there had been talk that some organisations might de-affiliate because of it, but none had done so. He said that he thought that the damage caused was repairable, but this was because the board had acted swiftly.

3. I asked Mr Gaske a series of questions about his understanding of his obligations as a member and a director. He conceded that he had contravened some of his obligations, that his conduct had caused concern to the clubs and that while he did not appreciate it at the time, he now understood that his registration activities might create dissention between the MWA and the member clubs given his position as a director. He conceded that ‘I got this completely wrong’.

4. Having regard to all the evidence I accept in substance the submission of MWA that the conduct of Mr Gaske caused distress to some of the MWA Clubs and created friction in the relationship between MWA and some of its members. I also accept that dealing with the issue was disruptive to the proper working of the MWA board.

5. I do not accept Mr Gaske’s submission that the concerns of the relevant clubs had been largely addressed after he had explained things and that the issue had been blown out of proportion by MWA. His conduct in my view did have on-going consequences given his position as a well-known director of MWA and it is likely that there will be members now who believe that he registered the event names in an attempt to secure some financial gain or obtain some other personal benefit.

6. Given this belief, some members and non-members, such as the Southern Cross Motor Cycle Club, will have regarded the conduct as being improper or unethical behaviour for a director of MWA. In order for MWA to continue to operate effectively it needs its members to have confidence that the members of the board can be relied upon to act in the best interests of the organisation. In the event that MWA did not make clear its disapproval of the conduct, that may lead members to lose confidence in the ability of the board to manage the company. The email of Mr Guerini, the President of the Southern Cross Motor Cycle Club, is an example of the potential impact that such conduct might have on a club considering affiliating.

7. In rejecting Mr Gaske’s submission, I am not accepting the submission of MWA that I should have primary regard to the conduct of Mr Gaske in November 2021 and not to Mr Gaske’s subsequent conduct in transferring the business names and apologising for his conduct. I am required to have regard to the totality of his conduct in considering the effect that it had on the club members, MWA and the relationship between them, and I have done so in the conclusions that I have reached.

8. In this respect, Mr Gaske’s transfer of three of the four business name registrations within three weeks of their original registration, and his apologies, will have ameliorated some of the damage that his conduct has caused. As Mr Taylor conceded, it is likely that the damage that has been caused to relevant relationships is repairable. This is no doubt partly a product of Mr Gaske transferring the event name registrations and his apologies and explanations, but is also

a function of work done by the board of MWA, including the bringing of these disciplinary proceedings, which is a matter known to the affected clubs.

Has Mr Gaske by his conduct breached any of his obligations as a member of MWA

1. It is alleged by MWA that by his conduct Mr Gaske has:

   a.contravened his obligation under clause 8(b)(ii) of the Constitution to at all times as a member act for and on behalf of the interests of MWA, its members and Motorcycling;

   b.contravened his obligation under clause 8(b)(iv) of the Constitution to act in good faith and loyalty to ensure the maintenance and enhancement of MWA and Motorcycling, and the standard, quality and reputation of MWA and Motorcycling to the collective and mutual benefit of the members and Motorcycling;

   c.contravened his obligation under clause 8(b)(v) of the Constitution to at all times operate with and promote mutual trust and confidence between MWA and the Members in pursuit of the objects;

   d.pursuant to clause 11.1(b)(ii) of the Constitution acted in a manner unbecoming of a member or prejudicial to the interests of MWA or another member;

   e.pursuant to clause 11.1(b)(ii) of the Constitution has as a member brought himself or MWA into disrepute.

Did Mr Gaske by his conduct contravene his obligation under clause 8(b)(ii) of the Constitution to at all times as a member act for and on behalf of the interests of MWA, its Members and Motorcycling?

1. There is an inherent tension that exists in the obligations that are imposed on a member by this provision as the interests of MWA and its members will not always be aligned and it may therefore not be possible for the member to act in the interests of both. In this case for example, Mr Gaske asserted that he registered the business names in the name of his private company rather than seek to have them registered by MWA, as he did not think that it was right that MWA have control of the business names as they belonged to the member clubs.

2. While I have accepted that on the evidence before me, Mr Gaske was seeking to protect the interests of the member clubs by registering the event names, this was misconceived and I do not accept that his conduct was in fact in the interests of the member clubs. By registering the event names without discussing it with the relevant member club, or informing it of his purpose in doing so, he caused unnecessary concern to the member clubs and created unnecessary tension in their relationship with MWA.

3. His conduct was certainly not in the interests of MWA, irrespective of his intentions, given the concerns that it created amongst some members as to the propriety of the conduct of an officer of MWA, with the potential for on-going damage to be caused to its relationship with its members.

4. In these circumstances, it is my view that Mr Gaske by his conduct has breached his obligations under clause 8(b)(ii) of the Constitution.

1. It is important to recognise that although the obligation which Mr Gaske breached was one that he owed as a member not as a director, the fact that he was well known as a director meant that the breach of his obligation as a member had greater consequence and was therefore more serious, because of its impact, actual and potential, on the relationship between MWA and its members, and on the proper working of the MWA board.

Did Mr Gaske by his conduct as a member contravene his obligation under clause 8(b)(iv) of the Constitution to act in good faith and loyalty to ensure the maintenance and enhancement of MWA and Motorcycling, and the standard, quality and reputation of MWA and Motorcycling to the collective and mutual benefit of the members and Motorcycling?

1. This provision relevantly imposes an obligation on Mr Gaske as a member to act with good faith and loyalty to ensure the maintenance and enhancement of MWA and its reputation to the collective and mutual benefit of the members and motorcycling.

2. The case that is put by MWA as I understand it is that the conduct of Mr Gaske damaged its reputation and that this was contrary to the collective and mutual benefit of the members.

3. Given the findings that I have made, I agree that Mr Gaske’s conduct would have caused some initial damage to the reputation of MWA amongst its members, or at the very least did not enhance it, and that this was contrary to the interests of members.

4. The question therefore is whether the conduct of Mr Gaske is a failure as a member to act with good faith and loyalty.

5. Given that I have concluded that the evidence does not establish that his conduct was motivated by his personal interests, I do not agree that a failure to act in good faith is made out. His conduct was misconceived and not in the interests of either MWA or its members but this is not of itself evidence of bad faith given the findings that I have made as to his motives.

6. Although the drafting is a little unclear, it is my view that the obligation of loyalty that is imposed by the provision is one that is owed by members to MWA. In my view the conduct of Mr Gaske was not consistent with an obligation of loyalty to MWA, as he registered the relevant event names without discussing it with MWA or informing MWA immediately after he had done it. Further, he did this consciously with the intention of preferring the interests of the member clubs over those of MWA.

1. Given this, it my view that Mr Gaske by his conduct has also breached his obligations under clause 8(b)(iv) of the Constitution.

2. I again observe that the obligation which Mr Gaske breached was one that he owed as a member not as a director, but the fact that he is a director has caused the relevant damage to the reputation of MWA contrary to the interests of the members and motorcycling.

Did Mr Gaske by his conduct as a member contravene his obligation under clause 8(b)(v) of the Constitution to at all times operate with and promote mutual trust and confidence between MWA and the members in pursuit of the objects?

1. Given the findings that I have made, it is my view that the conduct of Mr Gaske breached this obligation.

1. His conduct as a member, who was well known as an MWA director, in clandestinely registering business names of events associated with member clubs in the name of his private company, did not promote mutual trust and confidence between MWA and its members and had the potential to cause it ongoing damage. Rather than promoting mutual trust and confidence it had the opposite effect.

Has Mr Gaske by his conduct as a member acted in a manner unbecoming of a member or prejudicial to the interests of MWA or another member in contravention of clause 11.1(b)(ii) of the Constitution?

1. There are two separate bases on which a member might contravene this clause.

2. The first is by engaging in conduct that is unbecoming of a member.

3. The Constitution does not define what is conduct that is ‘unbecoming of a member’. The phrase derives from disciplinary charges issued in military tribunals. The Naval Discipline Act 1861 (UK) in article 24 relevantly provided that ‘…every Officer subject to this Act who shall be guilty of any other Conduct unbecoming the Character of an Officer shall be dismissed, with or without Disgrace, from Her Majesty's Service.’

4. The term was considered in Oei v The Australian Golf Club (2016) NSWSC 846 at 82-84, where the Court accepted that the deliberate flouting of the Rules by a golf club member ‘would reasonably be in context regarded as conduct unbecoming.’

5. The Macquarie Dictionary (6th ed) defines unbecoming to include ‘not becoming: not appropriate; unsuited; improper; unseemly.’

6. It seems to me that conduct that contravenes a provision of the Constitution is not by itself conduct that is ‘unbecoming of a member’, as the conduct needs to contain an element of moral or ethical shortcoming when measured against the standard of conduct that is expected of a member of MWA.

7. In my view the conduct of Mr Gaske as I have found it on the evidence does not have this additional element. It was misconceived and poorly thought through, and while it should have been apparent to Mr Gaske that it was not in the interests of either MWA or the member clubs who ran the relevant events, this was a failure of judgement and good sense rather than a moral or ethical one.

8. The second ground on which a member might contravene this provision is where he acted in a manner that is prejudicial to the interests of MWA or another member.

9. Mr Gaske has in my view contravened the clause on this basis. His conduct as I have found was prejudicial to the interests of MWA, the member clubs who ran the events whose names he registered, as well as their collective interests.

Has Mr Gaske by his conduct as a member brought himself or MWA into disrepute in contravention of clause 11.1(b)(iii) of the Constitution?

1. A prohibition against bringing yourself, or an organisation with which you are associated, into disrepute is common in Codes of Conduct that regulate member behaviour.

1. The Court of Arbitration for Sport (CAS) in D’Arcy v AOC [2008] CAS 2008/A/1539, which con- cerned a physical altercation between the Australian swimmer Nicholas D’Arcy’s and a fellow swimmer, considered a clause of Mr D’Arcy’s “membership agreement” of the Australian Olympic swimming team which stated that Mr D’Arcy could not engage in conduct which, if pub- licly known, would be likely to bring him into disrepute.

2. The CAS appeal panel held that “bringing a person into disrepute is to lower the reputation of a person in the eyes of ordinary members of the public to a significant extent”.

3. This in my view correctly states the test that is to be applied under the Constitution in this case. It is a factual question to be determined on the evidence – i.e. does the evidence establish that Mr Gaske by his conduct lowered his reputation in the eyes of ordinary persons to a significant extent.

4. It is important to recognise that unlike the wording of some disrepute clauses, what is required under this provision is conduct that causes actual disrepute not conduct that ‘likely to have’ to have this effect or which would ‘have this tendency’63.

5. It is also required to be established by evidence. This was considered in another case before an appeal panel of the Court of Arbitration for Sport64. Zubkov was an Ukrainian swimming coach who had been sanctioned by FINA, the world swimming body, under a provision where sanctions could be imposed where a person brought “the sport into disrepute”.

6. Zubkov argued that the provision dealt with actually bringing the sport into disrepute and that actual disrepute was required for sanctions to be imposed. The CAS panel agreed, stating:

   ‘The language of the relevant provision does not refer to “potential” disrepute, nor to conduct “having the potential” of bringing the sport into disrepute. When determining the proper meaning of Section 12.1.3 the starting point must be the ordinary meaning of the words used. If the meaning of the words used is clear, it is not permissible, in our view, to read other meanings, or qualified meanings, into such words. This is particularly so in our view when one has regard to the possible sanctions and to the actual sanction imposed by the Disciplinary Committee here. Therefore, when Section 12.1.3 speaks of “disrepute”, it does not cover potential disrepute.

   Section 12.1.3 speaks about “bringing the sport into disrepute”. The conduct in question must thus result in the sport of swimming – as opposed to, for example, individuals involved in the sport of swimming – being brought into disrepute. In other words: public opinion of the sport of swimming must be diminished as a result of the conduct in question.

   Proceeding on the basis of the foregoing analysis, we have concluded that there is no evidence to establish actual disrepute of the sport of swimming.’

7. The CAS panel upheld the appeal of Zubkov on the basis that there was no evidence before the panel of actual dispute.

63 Patrick George, ‘Sport in Disrepute’ (2009) Australian and New Zealand Sports Law Journal , Vol 4 No.1, pp 35-36

64 Zubkov v FINA [2007] CAS 2007/A/1291 at [60]

1. In my view there is evidence before me that the conduct of Mr Gaske as I have determined it, has lowered his reputation to the extent required to bring him into disrepute. His conduct was the subject of formal complaint by members, who came to MWA seeking to have something done about conduct that one member had described as ‘not really fitting’ for someone in his position. The evidence of Mr Grossetti, which I accept, is that the conduct of Mr Gaske was widely known in amongst members of the motorcycle community in Western Australia65.

2. While his subsequent transfer of the business names to the relevant member clubs will have gone some way to addressing the concerns of member clubs, I think that it is likely that there will remain some residual belief amongst members of the motorcycle community in Western Australia that he was pursuing his own interests. This is a consequence of him having no convincing explanation as to why he did not tell the MWA and the clubs in advance of what he was doing. There will certainly likely remain a view that irrespective of his motives, the judgement he exercised fell well short of that which is expected of a director of MWA. As Mr Gaske conceded at the hearing, ‘I got this completely wrong’.

3. Given this evidence I am satisfied that by his conduct in registering the club events in the name of his private company, Mr Gaske has lowered to a significant extent his reputation in the eyes of ordinary members of the public who would have knowledge of the circumstances.

4. Mr Gaske has therefore contravened clause 11.1(b)(iii) of the Constitution by his conduct bringing himself into disrepute.

5. The question of whether Mr Gaske by his conduct has brought MWA into disrepute is a more difficult question.

6. MWA in its submission relies on the impact that this conduct had on its members, the complaints that they made, and on the concerns that they considered in this board meetings. They also rely on the email from Mr Guerini from Southern Cross Motorcycle Club to Mr Grossetti66 that raised its concerns about re-affiliation to MWA given the conduct of Mr Gaske.

7. I have no doubt that the conduct of Mr Gaske was a matter of concern to each of the persons who made the complaints, and that it was also a matter of concern to each of them that this was conduct of a person who was a director of MWA, who they expected would be acting in the sport generally. I also have no doubt that this conduct was not in the best interests of MWA and did not assist good relations and harmony between MWA and these members.

8. The question for me to decide however is whether on the evidence before me the conduct of Mr Gaske has lowered to a significant extent the reputation of MWA in the eyes of ordinary mem- bers of the public who would have knowledge of the relevant circumstances

9. I am not persuaded on the evidence that the conduct of Mr Gaske has had this effect.

10. It is important to note that the members who made the formal complaints to MWA, did so asking MWA to investigate and respond to what they were regarded as improper conduct for a director of MWA. The members of MWA are aware that MWA has responded to that conduct with disciplinary proceedings that are now before the NST, therefore responding to their complaints in a reasonable manner and demonstrating that his conduct was not acceptable to

65 HB 177 – paragraph 35

66 HB 204

MWA. The members also know that Mr Gaske has transferred the event registrations to the relevant clubs.

1. There is little support in the evidence of the members that they regard the reputation of MWA as being lowered to any significant extent. Mr Taylor informed me that while some of the members still had issues over what had occurred, he thinks that this will be repaired over time. This does not support the view that there has been significant damage to the reputation of MWA, as any significant damage in my view is likely to have more than short term effect.

2. The primary evidence in support of there being significant and on-going damage to the reputation of MWA is the email of Mr Guerini of Southern Cross Motorcycle Club to Grossetti67. This records a complaint that he makes against Mr Dwayne Kings and Mr Gaske about Mr Kings making trademark applications for event names of that club. It is unclear from this email what are the full circumstances in which this has occurred but in any event the principal complaint is in relation to the conduct of Mr Kings. Given this, it is this conduct that appears to largely have been the source of his statement that the Club is ‘having major reservations about the thought of re-joining MWA.’ More significantly, the conduct the subject of the complaint does not form part of the conduct that I have found against Mr Gaske and given this apparent lack of connection, the statement of Mr Guerini is not sufficient to support a finding that Mr Gaske’s conduct as determined has brought MWA into disrepute to the extent required.

3. It therefore has not been established on the evidence that Mr Gaske contravened clause 11.1(b)(iii) of the Constitution by his conduct bring MWA into disrepute.

Has Mr Gaske by his conduct acted in breach of any of his obligations as a director of MWA

1. As a director of MWA, Mr Gaske has a duty to discharge his duties in accordance with sections 44-47 of the Associations Incorporations Act 2015 (WA). These obligations, which also reflect the general law, are:

Section 44. Duty of care and diligence

44 (1) An officer of an incorporated association must exercise his or her powers and discharge his or her duties with the degree of care and diligence that a reasonable person would exercise if that person -

(a)were an officer of the association in the association’s circumstances; and

(b)  occupied the office held by, and had the same responsibilities within the association as, the officer.

Section 45. Duty of good faith and proper purpose

An officer of an incorporated association must exercise his or her powers and discharge his or her duties-

(a)in good faith in the best interests of the association; and

(b)for a proper purpose.

Section 46. Use of position

67 HB 204

An officer of an incorporated association must not improperly use his or her position to -

(a)gain an advantage for the officer or another person; or

(b)cause detriment to the association.

Section 47. Use of information

A person who obtains information because the person is, or has been, an officer of an incorporated association must not improperly use the information to — (a) gain an advantage for the person or another person; or (b) cause detriment to the association. Penalty: a fine of

$10 000.

1. MWA asserts that Mr Gaske has contravened his obligations as a director under these provisions but does not ask me to make any determination as to whether the conduct that I have found contravenes these provisions.

2. The specific director’s breaches that were pressed by MWA at the hearing for me to determine in this arbitration were:

   a.clauses 17.8 and 17.9 of the Constitution;

   b.clauses 2.1(b), 2.2(a) and (b), 2.3(a), (b) and (e), and 3 of the Board Code of Conduct, clauses 2.2 and 2.3 of the Conflict of Interest Policy, and clause 4.1 of the Conflict of Interest Procedures;

   c.whether Mr Gaske has by his conduct acted in a manner unbecoming of a director or prejudicial to the interests of MWA - clause 16.2(h)(i) of the Constitution; and

   d.whether Mr Gaske has by his conduct as a director brought MWA into disrepute – clause 16.2(h)(ii) of the Constitution

3. There is a considerable degree of overlap between many of the alleged breaches of director’s duties. I propose to deal with them in the following categories:

   a.Conflict of Interest - Clauses 17.8 and 17.9 of the Constitution, clauses 2.3(a), 2.3(b) and 2.3(e) of the Code of Conduct, clauses 2.2 and 2.3 of the Conflict of Interest Policy, and clause 4.1 of the Conflict of Interest Procedures;

   b.General Conduct – clauses 2.1, 2.2(a), 2.2(b) and 3 of the Code of Conduct;

   c.Conduct unbecoming, prejudicial or bringing into disrepute – clause 16.2(h) of the Constitution.

Conflict of Interest

1. The conduct of Mr Gaske that is relied upon by MWA on the conflict of interest counts is his failure to inform the board, whether formally or informally, of his intention to register the business names or their subsequent registration.

2. The evidence establishes that:

   a.the event names were registered by Mr Gaske on 18 & 19 November 2021;

   b.Mr Taylor became aware of the registrations on 22 November 2021;

c.a board meeting without Mr Gaske was held on 23 November 2021 to discuss his conduct;

d.following the board meeting, Mr Taylor rang Mr Gaske. He informed Mr Taylor that he:

i.          had registered the event names;

ii.          had done it to prevent AMA registering them;

iii.          had not told the board as he did not think that it was a matter for it; and

iv.          intended to transfer the names to the member clubs that ran the events.

1. The Constitution deals with director conflicts of interest in two provisions – clauses 17.8 & 17.9.

2. Clause 17.8 relevantly imposes an obligation on a director to declare an ‘interest in any contractual ..or financial matter in which a conflict of interest arises or may arise.’ Clause 17.9 provides that the interest ‘must be declared at the meeting of the board at which the relevant matter is first taken into consideration’, or at the next meeting of the board if a director subsequently becomes interested in a matter.

3. It is not clear to me that the conduct of Mr Gaske infringes either provision. While the conduct of Mr Gaske in registering the event names was conduct contrary to the interests of MWA, it was disclosed by Mr Gaske within 4-5 days and at no stage did he participate in any board discussion in relation to the matter in the absence of disclosure. In circumstances where he informed Mr Taylor on 23 November 2021 that he would be transferring the registered event names to the member clubs, a statement that I accept on the evidence reflects his intention, it is also not clear to me what is the actual conflict of interest that was required to be disclosed.

4. This is not to say that Mr Gaske was correct in not informing the board of his concerns and what he proposed to do. He was not, but this is not because he had any relevant financial or contractual conflict of interest but because it was conduct that would likely have a divisive and disruptive impact on members and their relationship with the MWA.

5. In these circumstances, there is no contravention of clause 17.8 or 17.9 of the Constitution that is established on the evidence.

6. For the same reasons as set out in the above paragraphs, I also do not think that any contravention by Mr Gaske has been established of his obligations under clause 2.3(b) of Code of Conduct, under clauses 2.2 and 2.3 of the Conflict of Interest Policy or under clause 4.1 of the Conflict of Interest Procedures.

7. The allegation that Mr Gaske contravened clause 2.3(a) of Code of Conduct is also in my view not established.

8. The prohibition imposed is on a director being placed in the actual, apparent or potential situation of making a decision in relation to MWA business that might be affected by a personal interest. MWA has not however identified any relevant decision in relation to MWA business that Mr Gaske has participated in, or might participate in, in respect of which he was placed in an actual, apparent or potential conflict situation. In the absence of a specific decision, Mr Gaske cannot be in the position of conflict that the provision requires.

1. The final conflict of interest contravention that is alleged is under clause 2.3(e) of the board Code of Conduct. This prohibits a board member taking improper advantage of his or her position as a board member.

2. MWA has not identified any conduct on the part of Mr Gaske that it contends involves him taking any improper advantage of his board position. Whatever criticisms can be made of Mr Gaske, his registration of the event names was unconnected to his position as a board member. In the absence of this connection, there cannot be any relevant improper advantage being taken.

3. I am therefore unpersuaded that any breach of a conflict of interest provision has been established against Mr Gaske.

General Conduct

1. There are three allegations of general misconduct under the Board Code of Conduct that are made against Mr Gaske, being:

   a.contravention of clause 2.1(b) in that he failed to recognise that his primary responsibility as a director is to MWA as a whole, having regard for the interests of all MWA stakeholders;

   b.contravention of clause 2.2(a) in that he failed to act with honesty, integrity, in good faith and in the best interests of MWA;

   c.contravention of clause 2.2(b) in that he engaged in conduct likely to bring discredit upon MWA.

2. MWA also rely on a catch-all provision, being a contravention of clause 3, being the obligation to comply with the spirit, as well as the letter of the law, the principles of this Code of Conduct and all applicable MWA policies and procedures, and not take any action that may breach the law or applicable MWA policies, procedures or practices.

1. In my view a contravention of clause 2.1(b) is established on the evidence. As I have determined earlier in this judgement, the conduct of Mr Gaske in registering the event names, without informing or discussing it with either the board of MWA or the relevant clubs, was conduct that was not in the interests of any of the MWA stakeholders, let alone all of them. It was misconceived and damaging to the interests of stakeholders, as well as to the proper and orderly function of the management of MWA.

2. While I have accepted that Mr Gaske was seeking to protect the interests of the member clubs by registering the event names, it was extremely unwise and reflected poor judgement on his part, which led to unnecessary disruption being caused to both MWA and the relevant member clubs, as well as to their respective relationships.

3. This was a serious failure on his part, given his role as a director of MWA. I accept that Mr Gaske did not understand at the time the vice in what he was doing but it should have been apparent to him. His failure to understand this does not reflect a good understanding on his part of what is reasonably expected of him as a director of an organisation such as MWA.

4. I also consider that a contravention of clause 2.2(a) is established on the evidence.

1. It is important however that I make clear the basis upon which I have reached this view. Clause

   2.2 requires a director to act with honesty, integrity, in good faith and in the best interests of MWA.

2. Given the findings that I have made I do not think that Mr Gaske has breached his obligations of honesty, integrity or good faith. His conduct was ill-considered but without mala fides and therefore no finding of lack of honesty or bad faith is available on the evidence.

3. For the reasons that I have set out at length, his conduct was plainly not in the best interests of MWA and it is on that basis that I have found that he has contravened clause 2.2(a).

4. The third general conduct contravention alleged is that in contravention of clause 2.2(b) Mr Gaske engaged in conduct as a director likely to bring discredit upon MWA.

5. This question involves different considerations as to whether the conduct of Mr Gaske brought MWA into disrepute, as in my view the test for bringing ‘discredit upon’ is a lesser one than that of disrepute. Disrepute requires lowering reputation to a significant degree but the question of whether conduct brings discredit upon another is whether the conduct is such that it does not reflect well on that person, even on a temporary basis.

6. In my view the conduct of Mr Gaske did not reflect well on MWA, at least initially. While it has sought to address it with the action that it has taken against Mr Gaske, the fact of an MWA director registering in his private company the business names of events associated with member clubs, without informing either the member clubs or the MWA board, either before or immediately after he did it, is conduct that is embarrassing to MWA by its association with Mr Gaske.

7. The contravention of clause 2.2(b) is therefore in my view made out.

8. Given that I have determined that Mr Gaske has contravened clauses 2.1(b), 2.2(a) and 2.2(b) of the Board Code of Conduct, as well as the other contraventions that I have determined, I also find that Mr Gaske has as a consequence contravened clause 3 of the Board Code of Conduct.

Clause 16.2(h) of the Constitution

1. The final allegations that are made by MWA against Mr Gaske is that by his conduct he has as a director:

   a.acted in a manner unbecoming or prejudicial to the Objects and interests of MWA; or

   b.brought MWA into disrepute.

2. Under clause 16.2(h) of the Constitution, the board may remove a director if they determine in their opinion that the director has acted in a manner that falls within the conduct as defined in the clause. Given this, any opinion that I reach on this issue, not being an opinion reached by the board, does not determine whether the conduct of Mr Gaske is caught by clause 16.2(h).

3. MWA however submits that I should form a view as to whether in my independent opinion the conduct of Mr Gaske falls within that required by clause 16.2(h). It says that the independent view that I reach will be taken into account by the board in determining whether it ought form an opinion under clause 16.2(h).

1. Given that this is ultimately a matter for the board of MWA, I have decided not to make any formal finding that Mr Gaske has engaged in conduct as defined in the clause but to instead determine whether on the evidence before me it would be open to the board to reach that conclusion. This would avoid the board being put in a position where it felt compelled to form the opinion that Mr Gaske had engaged in conduct as defined in the clause, with the significant consequences that necessarily follows, simply because that was the view that I had expressed in what can be no more than an advisory opinion.

2. By expressing my view in this manner, it remains open to the board to conclude that the conduct is not established or to decide that the conduct does not warrant any action being taken.

3. In this respect, I note that I have not been so limited in the views that I have expressed as to the alleged contraventions of the Board Code of Conduct. These contraventions however do not determine whether a case under clause 16.2(h) is made out as they involve different questions.

4. Turning now to clause 16.2(h)(i), the question of whether the conduct of Mr Gaske falls within the first limb of clause 16.2(h)(i) raises in substance the same questions as I considered earlier in paragraphs 137-142 of my determination in relation to clause 11.1(b)(ii).

5. Consistent with what I stated in those paragraphs it is my view that for the conduct of Mr Gaske to amount to conduct that is unbecoming for him as a director of MWA, the conduct has to contain an element of moral or ethical shortcoming when measured against the standard of conduct that is expected of him as a director of MWA.

6. It remains my view that the conduct of Mr Gaske as I have found it on the evidence does not have this additional element of moral or ethical failure. Although the standard of conduct expected of him as a director is higher than that of a member, there is still insufficient evidence to support a conclusion that his conduct was the result of moral or ethical failure as opposed to a lack of understanding of his role as a director and the exercise of poor judgement.

7. In these circumstances, it is my view that the evidence is not capable of supporting a finding that Mr Gaske acted in a manner unbecoming of a director of MWA.

8. It would however in my view be open to the board on the available evidence to reach the alternate finding under clause 16.2(h)(i), that Mr Gaske acted in a manner prejudicial to the interests of MWA.

9. Mr Gaske’s conduct in clandestinely registering in his private company the business names of events associated with member clubs, without discussing it with either the member clubs or the MWA board, is conduct of a director which is open to the board to determine was prejudicial to the interests of MWA.

10. It was prima facie likely to create dissension amongst the member clubs of MWA and concern about MWA as the state governing body, and to raise questions in the minds of both members and non-members as to the professionalism of at least one person who had been elected to the MWA board. The evidence is capable of establishing that it did in fact have this effect to the required extent and that it has been disruptive to the proper working of the MWA board. While it

appears that the damage caused will resolve over time this has required the MWA board to take steps that should have been unnecessary, including the bringing of this disciplinary action.

1. The conduct in my view is also capable of being held to be prejudicial to the Objects of MWA, which principally are to ‘encourage, promote, manage and foster Motorcycling, and to coordinate, develop, facilitate and control the sport of Motorcycling in Western Australia.’68

2. The conduct of Mr Gaske has the tendency to undermine confidence in the management of MWA. It is open to the board to determine that this is prejudicial to its objects of fostering and controlling the sport of Motorcycling in Western Australia.

3. The question of whether Mr Gaske’s conduct engages clause 16.2(h)(ii) is determined by whether it has as an objective matter brought MWA into disrepute.

4. As I have set out earlier in this determination, this question is determined by whether the conduct of Mr Gaske has lowered the reputation of MWA in the eyes of ordinary members of the public to a significant extent.

5. The conclusions that I have reached in relation to the same provision under clause 11.1(b)(iii) of the Constitution apply equally to this provision. There, in accordance with the principle identified in Zubkov, needs to be evidence of actual disrepute, that is the lowering of its reputation to a significant degree, that has been caused by the conduct of Mr Gaske. While I think that there is evidence before me that would support a finding by the board that Mr Gaske has brought himself into disrepute by his conduct, there is not sufficient evidence in my opinion to support a finding by the board that that conduct has brought MWA into disrepute.

6. This is generally a high burden for an organisation such as MWA to establish when the impugned conduct is not its own but that of a person with whom they are associated. The question of whether that conduct will bring the organisation into disrepute is a function of a number of factors, including the nature and extent of the conduct, whether it is common or one- off event for the organisation, and the manner in which the organisation responds to the conduct, including the extent to which dissociates itself from and disapproves of the conduct.

7. It is therefore my view that it is not reasonably open for the board on the evidence before me to determine that MWA has been brought into disrepute. i.e. its reputation has been lowered to a significant extent, by the conduct of Mr Gaske that I have found.

8. It is important to emphasise that this conclusion is limited to the evidence that is before me. If there is further evidence of damage to the reputation of MWA that is available to the board in its consideration of this issue, then it may be that that is sufficient to support a finding that it has been brought into disrepute. It depends on the evidence that is before the board at the time that it forms its opinion.

Summary of findings in MWA’s disciplinary action against Mr Gaske

1. The findings that I have therefore made in the disciplinary process brought by MWA against Mr Gaske are that by his conduct as found he:

68 Clause 3(a) of the Constitution

a.contravened his obligation as a member under clause 8(b)(ii) of the Constitution to at all times act for and on behalf of the interests of MWA and its members;

b.contravened his obligation as a member under clause 8(b)(iv) of the Constitution to act with loyalty to ensure the maintenance and enhancement of MWA and its reputation to the collective and mutual benefit of the members;

c.contravened his obligation as a member under clause 8(b)(v) of the Constitution to at all times operate with and promote mutual trust and confidence between MWA and the members in pursuit of the objects;

d.acted in a manner that was prejudicial to the interests of MWA and its members in contravention of clause 11.1(b)(ii) of the Constitution;

e.acted in a manner that brought himself into disrepute in contravention of clause 11.1(b)(iii) of the Constitution;

f.contravened clause 2.1(b) of the Board Code of Conduct in that he failed to recognise that his primary responsibility as a director was to MWA, having regard for the interests of all MWA stakeholders;

g.contravened clause 2.2(a) of the Board Code of Conduct in that he failed to act in the best interests of MWA;

h.contravened clause 2.2(b) in that he engaged in conduct likely to bring discredit upon MWA;

i.contravened clause 3 of the Board Code of Conduct.

1. I have also found that on the evidence before me it would be open to the board to make a finding under clause 16.2(h)(i) of the Constitution that Mr Gaske by his conduct as found in this arbitration acted in a manner prejudicial to the interests of MWA.

CONSIDERATION OF THE CLAIMS MADE BY MR GASKE

1. Mr Gaske has identified as the matters that he wants determined whether he has been provided procedural fairness by MWA in its handling of the complaint to date as required by the processes set out in the Constitution and if he is provided with procedural fairness, ‘what is the appropriate resolution of the complaint’?

2. Dealing with the second issue first, this arbitration is determining the disciplinary process initiated by MWA in a hearing process to which the parties have consented. It is one where Mr Gaske has been given notice of the misconduct alleged against him, where he has been given a full opportunity to put his case and be heard in response and where the allegations are determined by an independent arbitrator.

3. The process is therefore one where he is being provided with procedural fairness. Given this, the ‘appropriate resolution of the complaint’ which Mr Gaske is seeking, is the determination of the disciplinary process that the parties have agreed to me undertaking, which this determination records. There is no other matter in my view that arises for me to determine on this issue.

1. The question of whether Mr Gaske has been provided procedural fairness by MWA in accordance with the Constitution in its handling of the complaint to date is with one exception an academic exercise, given that there has been no determination of the complaint prior to this determination and any previous failure to comply with the processes set out in the Constitution will have been remedied by the current NST process.

2. That said, I understand that the parties agree to me determining the issues raised by Mr Gaske and I propose therefore to consider the question whether MWA has complied with the processes set out in the Constitution in its handling of the disciplinary process to date.

3. The disciplinary process was commenced by MWA on 14 December 2021, when Mr Taylor, the President of MWA, sent on behalf of the board a letter to Mr Gaske69 which:

   a.alleged that he had breached clause 11.1(b) of the Constitution in registering the business names of the club events;

   b.described itself as a show cause notice, the outcome of which may result in the matters being referred to Motorcycling Australia for the purpose of it undertaking an independent investigation;

   c.stated that he was being giving an opportunity to show cause in writing within the next 28 days why he should not be removed as a director under clause 16.2 of the Constitution; and

   d.stated that he was for the duration of the process suspended as a director of MWA and from any role where accreditations as an MWA official were required.

4. The board of MWA had met the previous day and resolved to refer the conduct to Motorcycling Australia for it to investigate and to suspend Mr Gaske as a director, including withdrawing his MWA accreditation while the process was underway70.

5. The show cause letter is a confusing one. It purports to be commencing a show cause process under clause 11.2, which is a disciplinary process against members determined by either the board or a hearing panel to which the decision is delegated by the board, but the letter contemplates that the outcome of the process might be the referral of the matter to Motorcycling Australia for an independent investigation. This in fact appears to be the decision that was made by the board at its meeting on 13 December 2021.

6. Further, the show cause letter contends that the alleged breaches of clause 11.1(b) of the Constitution were in his capacity as a director when the provisions only deal with the misconduct of members. There is no power in a disciplinary process conducted under clause 11 for the removal of a director.

7. Given these defects the show cause notice in my view is not one that complies with the procedures set out in clause 11.

69 HB 269-70

70 MWA board meeting minutes HB 208-09

1. A solicitor retained by Mr Gaske responded to the show cause letter in two letters that he sent to Mr Taylor71. He disputed the validity of the show cause letter, correctly in my view, and said that his client intended to take the matter to Motorcycling Australia or the NST.

2. Mr Taylor responded by letter dated 17 January 202272. This letter continued the confusion caused by the show cause letter as he stated that Mr Gaske was not subject to any formal disciplinary process and the show cause letter was not a notice of alleged breach issued under clause 11.2 of the Constitution.

3. Given the contents of this letter it is difficult to understand what process was being undertaken by the board – Mr Taylor was suggesting that it was a process antecedent to a disciplinary process under clause 11 but that is not consistent to the references to clauses 11.1 and 11.2 that are contained in the show cause letter.

4. Whatever process was being undertaken it was not one that complied with the procedures set out in the Constitution.

5. On 19 January 2022 Mr Gaske’s solicitor sent a letter73 in which he unsurprisingly pointed out the confusion in MWA’s position and requested that any complaint against Mr Gaske be referred to an independent body for hearing.

6. The board of MWA met on 21 January 202274 and resolved to refer the matter to Motorcycling Australia for external inquiry and that the suspension of Mr Gaske as a director, and in respect of his associated duties as an MWA official, be lifted. Mr Taylor informed Mr Gaske of the decision by letter dated 24 January 202275.

7. The failure of MWA to at this stage comply with the disciplinary procedures set out in the Constitution was a failure on its part to comply with procedural fairness procedures as required by the Constitution. Mr Gaske was requested to respond to a show cause letter that was confusing in its effect and to participate in a process that was entirely uncertain. In substance he did not know the case he had to meet, including what disciplinary action was proposed against him.

8. However, as I have indicated above, with one exception to which I refer below, this failure is of no consequence. No issue was determined in respect of Mr Gaske at this time and the disciplinary process was referred to the NST by Motorcycling Australia on 31 January 2022, which has led to the present arbitration. Any defect in the process that occurred at that time has been remedied by the NST process.

9. The one exception was the decision of the board of MWA to suspend Mr Gaske as a director, and from any role where accreditations as an MWA official were required.

71 HB 273-76, 277-78

72 HB 191-92

73 HB 281-82

74 HB 210-11

75 HB 205

1. Mr Gaske’s solicitor in his letter to Mr Taylor dated 21 December 202176 disputed the power of MWA to suspend Mr Gaske as a director at all, or in the absence of a process pursuant to the Constitution.

2. There is no express power in the Constitution for the board to suspend a director. This is an orthodox position as a director is generally elected by the members in general meeting and a board will generally not have the power to suspend a director, thereby preventing him or her from carrying out the functions and responsibilities of their elected office.

3. In the absence of an express power of suspension, the only power that the board in my view arguably has to suspend Mr Gaske as a director was pursuant to a suspension by him as a member under clause 11.1. If the membership of an elected director was suspended, then this might provide a basis for the director being suspended from sitting as a director, given that clause 14.3(a) of the Constitution requires elected directors to be members. It would be an odd outcome if the rights of membership were suspended but a director, whose eligibility to be elected was determined by being a member, could continue to perform his elected role.

1. It is not necessary for me to determine whether the suspension of Mr Gaske’s membership would have justified his suspension as a director however, as to the extent that the power exists it can only be validly exercised after the process contemplated in clauses 11.2 and 11.3 of the Constitution is undertaken. No such process was undertaken prior to the board suspending Mr Gaske, as it suspended him without notice or having any opportunity to be heard at the board meeting on 13 December 2021.

2. It was put to me in oral submissions at the hearing on behalf of MWA that although the letter used the word suspension, the better description of what occurred was a ‘stand aside’ and that this was a common occurrence in industry when issues like this arose.

3. I do not see any distinction between the two terms in the current circumstances. The board did not ask Mr Gaske to stand aside on a voluntary basis, but decided that he was on a temporary basis not permitted to perform his elected role as a director. The board had no power in these circumstances to unilaterally prevent Mr Gaske acting as a director, whether it be a suspension or stand aside.

4. The decision to suspend Mr Gaske as a director was therefore in my view invalid.

PENALTY

1. In order to consider the question of penalty it is necessary to focus on the specific conduct findings that I have made against Mr Gaske and the relevant disciplinary breaches that they have resulted in.

2. I have determined that Mr Gaske:

   a.without discussing it with either the relevant clubs or any director of MWA, unilaterally determined to register in the name of his private company, the business names of four iconic Western Australian motorcycling events conducted by the clubs;

76 HB 273-76

b.registered the event names because of his belief that they were at risk of being registered by a rival organisation, AMA, and that he had to act quickly to protect the names for the clubs;

c.acted without MWA’s knowledge because he did not want MWA to register the event names, even on an interim basis, because he wanted them to remain in the hands of the clubs;

d.failed without good reason to promptly inform all the clubs and MWA that he had registered the event names;

e.in acting as he did caused the relevant clubs genuine concern that he was seeking to obtain some unwarranted financial interest in their events, a consequence that should have been apparent to him, and which caused them to make complaints to MWA against him and created friction in the relationship between them and MWA;

f.engaged in conduct that was misconceived and badly thought out and led to members having serious concerns as to whether he was acting out of self-interest, or alternatively was incapable of acting as a director of MWA given the responsibilities of the role,

and that by this conduct:

i. contravened his obligation as a member under clause 8(b)(ii) of the Constitution to at all times act for and on behalf of the interests of MWA and its members;

ii. contravened his obligation as a member under clause 8(b)(iv) of the Constitution to act with loyalty to ensure the maintenance and enhancement of MWA and its reputation to the collective and mutual benefit of the members;

iii. contravened his obligation as a member under clause 8(b)(v) of the Constitution to at all times operate with and promote mutual trust and confidence between MWA and the members in pursuit of the objects.

iv. acted in a manner that was prejudicial to the interests of MWA and its members in contravention of clause 11.1(b)(ii) of the Constitution;

v. acted in a manner that brought himself into disrepute in contravention of clause 11.1(b)(iii) of the Constitution;

vi.          contravened clause 2.1(b) of the Board Code of Conduct in that he failed to recognise that his primary responsibility as a director was to MWA, having regard for the interests of all MWA stakeholders;

vii.          contravened clause 2.2(a) of the Board Code of Conduct in that he failed to act in the best interests of MWA;

viii.          contravened clause 2.2 (b) in that he engaged in conduct likely to bring discredit upon MWA;

ix.          contravened clause 3 of the Board Code of Conduct.

1. MWA submits that the penalty that should be imposed on Mr Gaske is that he be suspended as a member of MWA for a period of six months.

1. In support of this penalty, MWA relies on what they say was the covert nature of Mr Gaske conduct and what it submits was the potential for him to obtain personal gain from the various registrations. They also rely on the impact that this conduct had on the reputation of MWA as members assumed that given the position of Mr Gaske as a director, that he had acted with the authority of the board.

2. The principal difficulty that I have with this submission is that it is made on the assumption that the evidence supports a finding that Mr Gaske acted with the intention of seeking personal gain.

3. As I have set out earlier in these reasons, the evidence does not support a finding of this character. While I have concluded that Mr Gaske has relevantly breached his obligations as a member, his conduct was not undertaken for the purpose of his own gain but in a misconceived, ill-advised and poorly thought out attempt to protect the interests of individual members. His conduct had the effect of creating unnecessary angst and concern amongst the relevant members, significantly damaging his reputation and was contrary to the interests of MWA and its members by creating dissension and friction between them.

4. If his conduct had been as MWA had assumed in its submission a six-month sanction would in my opinion have been more than justified. As a lesser finding has been made, a lesser sanction is required.

5. Mr Gaske apologises for his conduct, which he says that he now realises, but did not at the time understand, was contrary to his obligations. He submits that as he was suspended as a director, and in his associated roles as an MWA official, for a month in December 2021 that is sufficient punishment.

6. Prior to determining whether Mr Gaske should be given any credit for the period in which he was suspended as a director and official it is necessary to consider what period of suspension, if any, should be imposed on him.

7. The fact that Mr Gaske was acting in what he thought were the interests of clubs in registering the names of the club events, might be regarded as basis for not imposing any period of suspension on him for the relevant disciplinary breaches that have been found against him.

8. I do not agree. Mr Gaske’s conduct, which he accepts was contrary to his obligations and was ‘completely wrong’, was contrary to and damaged the interests of MWA, as well as creating unnecessary heartache and angst for the member clubs whose event names he registered. It should have been obvious to him that this was the likely consequence of his conduct, particularly given that he was a well-known director of MWA. It was presumptuous and reckless for him to register the event business names of the member clubs without their prior knowledge, irrespective of his motives, and this was compounded by his failure to immediately disclose what he had done.

9. In my view a period of suspension as a member is required. This is to sanction Mr Gaske for the disciplinary breaches that have been found against him and their consequences. It is to also make clear to its members that MWA dissociates itself from his conduct and regards it as unacceptable for a member who holds an elected office as a director of MWA to act in such a manner.

1. In my view the period of suspension that should be imposed on Mr Gaske as a member is three months.

2. It is further my view that some credit should be given to Mr Gaske for the interim period of suspension as a director of 41 days that has already been imposed on him. A period of interim suspension will generally be taken into account in the ultimate period of suspension imposed. There is a reasonable argument for this even if it is accepted that the interim suspension was validly imposed, but the argument is overwhelming given the invalidity of the suspension decision.

3. In my view Mr Gaske should be given a credit of one month for the period of the interim suspension, such that the period of suspension of three months is reduced to two months. This period of suspension should commence from the date of this judgement unless the parties agree otherwise. Absent any agreement between the parties for a different start date for the suspension, it will therefore conclude on 20 August 2022.

4. One question that arises is whether Mr Gaske is entitled to sit as a director while he is subject to suspension as a member. This was not an issue that arose for determination in the arbitration so the view that I have does not bind the parties. That said, my view is that his role as an elected director is one of the rights that Mr Gaske exercises as a member - see clause

   14.3 of the Constitution – and he therefore should not sit as a director while he is suspended as a member.

5. MWA has not asked me to impose any additional sanction on Mr Gaske for the breaches of his duties as a director that I have found have occurred. This is rightly so given the lack of a sanction process in the Constitution or Board Code of Conduct for a breach of obligation by a director. The only express power of sanction in the Constitution is that of removal by the board under clause 16.2(h) and that is a decision that only the board can make.

THE TRIBUNAL THEREFORE DETERMINES THAT:

1. Mr Gaske has by his conduct:

   a.contravened his obligation as a member under clause 8(b)(ii) of the Constitution to at all times act for and on behalf of the interests of MWA and its members;

   b.contravened his obligation as a member under clause 8(b)(iv) of the Constitution to act with loyalty to ensure the maintenance and enhancement of MWA and its reputation to the collective and mutual benefit of the members;

   c.contravened his obligation as a member under clause 8(b)(v) of the Constitution to at all times operate with and promote mutual trust and confidence between MWA and the Members in pursuit of the objects;

   d.acted in a manner that was prejudicial to the interests of MWA and its members in contravention of clause 11.1(b)(ii) of the Constitution;

   e.acted in a manner that brought himself into disrepute in contravention of clause 11.1(b)(iii) of the Constitution;

f.contravened clause 2.1(b) of the Board Code of Conduct in that he failed to recognise that his primary responsibility as a director was to MWA, having regard for the interests of all MWA stakeholders;

g.contravened clause 2.2(a) of the Board Code of Conduct in that he failed to act in the best interests of MWA;

h.contravened clause 2.2 (b) in that he engaged in conduct likely to bring discredit upon MWA;

i.contravened clause 3 of the Board Code of Conduct.

1. Mr Gaske be suspended as a member of MWA for a period of three months.

1. Mr Gaske be given a credit of one month towards the period of his suspension as a member, for the period of interim suspension that was imposed on him on 17 December 2021.

2. Absent agreement between the parties, the period of suspension will commence from the date of this judgement and will conclude at midnight on 20 August 2022.

Date: 21 June 2022

Anthony O’Reilly

List of Materials relied upon by the parties

Materials of MWA

1.    ASIC extract – Megabeast Enterprises Pty Ltd – Business name Holder 14/12/21

2.    Australian Business Registry extract – Megabeast Enterprises Pty Ltd 14/12/21 recording four business names registered

3.    MWA Constitution

4.    MWA Board Governance Charter

5.    WA Associations Incorporations Act 2014

6.    MWA letter to Jason Gaske 14/12/21

7.    MWA letter to Jason Gaske 17/1/22

8.    Dirt High Promotions – Letter of complaint with ASIC extract

9.    Email (7/12/21) from Shane Blakers & ASIC Transfer of registration of business name

10.   Wanneroo Junior Motocross Club Letters of complaint 3/2/22 & 24/2/22 with Jason Gaske email 4/2/22

11.   Witness statement of Luke Few, Bunbury Motorcycle Club, 24/03/22

12.   Letter of AJS Motorcycle Club 1/03/22 and meeting minutes of 7/12/21

13.   Southern Cross Motorcycle Club Email complaint

14.   Witness statement of Paul Donohoe 24/03/22

15.   Witness statement of W Thomson 23/03/22

16.   Witness statement of Shane Blakers 14/03/22

17.   Witness statement of Nicol Novello 22/03/22

18.   Witness statement of L Della Bosca

19.   Witness statement of Brendan Taylor 29/03/22

20.   MWA letter to Jason Gaske 24/1/22

21.   Letters Wakefield Legal dated 21/12/21, 14/01/22, 19/01/22

22.   Witness Statement of Carl Grossetti 29/03/22

23.   Out of session MWA Board Meeting minutes 23/11/2021

24.   Out of session MWA Board meeting minutes 23/11/2021

25.   Out of session MWA Board meeting minutes 21/1/2022

26.   Out of session MWA Board meeting minutes 21/9/2021

27.   ASIC Company extract and Business Name Register – MegaBeast Enterprises Pty Ltd 2/2/2022

Materials of Mr Gaske

1.    Record of Registration and Transfer of Business Name – King of the Sand

2.    Record of Registration of Business Name – Kid of the Sand

3.    Record of Registration and Transfer of Business Name – Best of the West

4.    Record of Registration and Transfer of Business Name – Manjimup 15,000

5.    MWA Letter to Jason Gaske 14/12/2021 – show cause letter

6.    Lawfield Letter dated 21/12/2021

7.    Lawfield Letter dated 14/01/2022

8.    MWA letter to Jason Gaske 17/01/2022

9.    Lawfield Letter dated 19/01/2022

10.   MWA Letter to Jason Gaske dated 24/01/2022

11.   Letter to board of directors from Mr Gaske

12.   Jason Gaske Statement of Events - regards to what transpired in registering business names

13.   Copy of Text Message between Mr Taylor and Mr Gaske

14.   Witness Statement – Meaghan Andrews

15.   Witness Statement – AJS Motorcycle Club

16.   Witness Statement – Kerry O’Leary

17.   Telephone Conversation Statement – Mr Gaske’s recollection of telephone conversation with Shane Bakers on the 6th December 2021

18.   Telephone Conversation Statement – Mr Gaske’s recollection of telephone conversation with Aaron Chircop on the 7th December 2021

19.   Transfer of Registration of business name – Kid of the Sand – 13 April 2022