KABAY and DIEBACK WORKING GROUP INC - [2020] WASAT 87

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: ASSOCIATIONS INCORPORATION ACT 2015 (WA)
CITATION:   KABAY and DIEBACK WORKING GROUP INC [2020] WASAT 87
MEMBER:   MR D AITKEN, SENIOR MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   3 AUGUST 2020
FILE NO/S:   CC 1927 of 2019
BETWEEN:   DAVE KABAY
Applicant
AND
DIEBACK WORKING GROUP INC
Respondent

Catchwords:

Incorporated association - Whether a person whose membership application to an incorporated association is rejected can make an application to the Tribunal under s 182(1) of the Associations Incorporation Act 2015 (WA)

Legislation:

Associations Incorporation Act 1987 (WA)
Associations Incorporation Act 2015 (WA), s 3, s 27, s 30, s 51, s 161(1), s 162(1)(c), s 182(1), s 182(2), s 185, s 188, Sch 1, Div 1
State Administrative Tribunal Act 2004 (WA), s 60(2)

Result:

Preliminary issue determined
Tribunal does not have jurisdiction to determine dispute
Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	In Person

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Kavanagh and Pine Valley Pistol Club Incorporated [2020] WASAT 11

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction and background

In this proceeding the applicant, Mr Dave Kabay (Mr Kabay / applicant) is seeking a number of orders against the respondent, Dieback Working Group Inc (DWG / respondent) under s 182(1) of the Associations Incorporation Act 2015 (WA) (AI Act), including the following order:
[The Tribunal] is to direct the DWG Committee to accept [Mr] Kabay's DWG membership application of the 15th November 2019.
In a previous proceeding in the Tribunal (Matter CC 1534/2019), which was also an application by Mr Kabay under s 182(1) of the AI Act, Mr Kabay alleged that applications for membership of DWG had not been 'fully processed', because they had not been accepted by the DWG committee and recorded in the minutes of a meeting of the DWG committee, as required under the rules of DWG. Mr Kabay contended that instead of a register of members, all that DWG had was an 'email list' of people who were interested in the activities of DWG.
At the first directions hearing in that proceeding, Mr Kabay accepted that, on the basis of his contentions, he was not a member of DWG and the Tribunal raised the issue of whether it had jurisdiction to deal with the matter.
At that directions hearing, Mr Cameron Crowe, the Chair of DWG agreed to write to everyone on the email list and request them to apply for membership of DWG in accordance with the rules of DWG if they wished to be a member and Mr Kabay withdrew that proceeding.
In this proceeding Mr Kabay says that when he submitted his application for membership of DWG it was rejected by the DWG committee and he is seeking, amongst other things, an order by the Tribunal that the DWG committee accept his membership application.

Is DWG incorporated under the AI Act and what are its current rules?

Under…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] WASAT 87
Decision Date: 3 AUGUST 2020

CaseChat Overview and Summary

The plaintiff, Kabay, applied for membership to the Dieback Working Group Incorporated, which was refused. Kabay then applied to the Tribunal under section 182(1) of the Associations Incorporation Act 2015 (WA), seeking a review of the decision to refuse the membership application. The Dieback Working Group Incorporated contested the application on the basis that the Tribunal did not have the jurisdiction to review the decision. The central legal issue was whether the Tribunal has the jurisdiction to review a decision of an incorporated association to refuse an application for membership.

The court found that the Tribunal's jurisdiction to hear an application under section 182(1) is limited to decisions made under the Act or rules made under the Act. The court held that a decision by an incorporated association to refuse an application for membership is not a decision made under the Act or rules made under the Act. Therefore, the Tribunal did not have jurisdiction to hear Kabay's application for review. The court noted that the Act provides for a different process for resolving disputes about membership of an incorporated association, and that the Tribunal's role is limited to reviewing decisions made under the Act or rules made under the Act.

The court dismissed Kabay's application for review and held that the Tribunal did not have jurisdiction to review the decision of the Dieback Working Group Incorporated to refuse Kabay's application for membership. The court did not make any orders as the application was dismissed. This decision clarifies the limited jurisdiction of the Tribunal in relation to decisions of incorporated associations and the importance of following the correct process for resolving disputes about membership.

Orders