KABAY and DIEBACK WORKING GROUP INC
[2020] WASAT 87
•3 AUGUST 2020
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 s 161(1) of the AI Act, the Commissioner for Consumer Protection (Commissioner) must keep a register of associations (register) which are incorporated under the AI Act (each an incorporated association) and a copy of the rules of each incorporated association, any alteration to those rules and every other document required to be lodged with the Commissioner under the AI Act.
Under s 162(1)(c) of the AI Act a person may, on payment of the prescribed fee, obtain from the Commissioner an extract of information (extract) from the register and a certified copy of any document lodged with the Commissioner.
Pursuant to an order by the Tribunal, Mr Kabay filed with the Tribunal:
1)an extract in respect of DWG (DWG extract); and
2)a certified copy of the current rules of DWG, dated September 2018 and stamped as lodged with the Commissioner on 5 December 2018 (DWG Rules).
The DWG extract states that DWG was incorporated on 17 April 2014. That incorporation would have occurred under the Associations Incorporation Act 1987 (WA) (Repealed Act), which was repealed by the commencement of the AI Act on 1 July 2016: s 185 of the AI Act.
An association that was incorporated under the Repealed Act is taken to be an incorporated association under the AI Act: s 188 of the AI Act.
Therefore, DWG is an incorporated association under the AI Act.
Under s 27 of the AI Act, the rules of DWG in force immediately prior to the commencement of the AI Act on 1 July 2016 continued to have effect.
Section 30(1) of the AI Act provides that an incorporated association may alter its rules by passing a special resolution (the requirements of which are set out in s 51 of the AI Act). However, an alteration of the rules of an incorporated association does not take effect unless a notice of the special resolution setting out the alterations, a certificate signed by a member of the management committee that the resolution was passed and a consolidated copy of the rules (including the alterations made by the special resolution) are lodged with the Commissioner within one month of the passing of the special resolution: s 30(3), (4), (5) and (6) of the AI Act.
The DWG Rules must have been lodged with the Commissioner in accordance with the requirements of s 30 of the AI Act and the Tribunal is satisfied that they are the current rules of DWG.
Rules 6, 7, 8 and 9 of the DWG Rules deal with how a person can become a member of DWG and provide as follows:
Part 3 - Membership
6.Qualifications for membership of Association
Any person who supports the objects or purposes of the Association is eligible to apply to become a member.
7.Applying for membership
(1)A person who wishes to become a member must apply for membership to the committee in writing.
(2)The application must include a current member’s nomination of the applicant for membership.
(3)The application must be signed by the applicant and the member nominating the applicant.
(4)The applicant must specify in the application the class of membership, if there is more than one, to which the application relates.
8.Dealing with membership applications
(1)The committee members must consider each application made under rule 7 at a committee meeting and must, at the committee meeting or the next committee meeting, accept or reject that application.
(2)An applicant whose application for membership of the Association is rejected under sub¬rule (1) must, if he or she wishes to appeal against that decision, give notice to the Secretary of his or her intention to do so within a period of 14 days from the date he or she is advised of the rejection.
(3)When notice is given under sub-rule (2), the Association in a general meeting no later than the next annual general meeting, must either confirm or set aside the decision of the committee to reject the application, after having afforded the applicant who gave that notice a reasonable opportunity to be heard by, or to make representations in writing or by email to, the Association in the general meeting.
9.Becoming a member
An applicant for membership in the Association becomes a member when:
(1)the committee accepts the application;
(2)the applicant pays any membership fees payable to the Association under rule 11.
Preliminary issue
Section 182(1) of AI Act provides as follows:
If a dispute cannot be resolved under the procedure provided for as required by Schedule 1 Division 1 item 18
(a)the incorporated association concerned; or
(b)a member of the association involved in the dispute,
may make an application to the State Administrative Tribunal to have the dispute determined by that Tribunal.
The Tribunal has decided to determine, entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA), the following preliminary issue:
Does the Tribunal have jurisdiction under s 182(1) of the AI Act to determine the dispute the subject of this application, in which the applicant is seeking an order by the Tribunal directing the committee of the respondent to accept his membership application of 15 November 2019? (preliminary issue)
The Tribunal has given the parties the opportunity to file submissions on the preliminary issue. Mr Kabay filed a submission, but DWG chose not to file a submission.
Mr Kabay's contentions
Mr Kabay's main contention, set out in his eight page written submission, is that a person who is applying to become a member of an incorporated association (such as DWG) is a member of the incorporated association for the purposes of s 182(1) of the AI Act, because the person is an 'initiate' member during the period within which he or she is applying for membership.
In support of that main contention Mr Kabay makes the following points:
1)It should be implied from the various 'interactions' between an incorporated association and individuals and various 'constituted groups' that people applying for membership of an incorporated association should be classed as members to be able to make an application to the Tribunal under s 182(1) of the AI Act.
2)Section 182(2) of the AI Act (which provides that nothing in s 182(1) of the AI Act prevents the Tribunal from exercising its powers to refer a dispute which falls within s 182(1) for mediation) should be construed to mean that people who are applying for membership of an incorporated association are members of the incorporated association and have the right to apply to the Tribunal for mediation as members.
3)'Member' is not defined in the AI Act and the definition of 'full voting rights' in s 3 of the AI Act as 'the right to vote at [an incorporated association's] general meetings' indicates that there may be more than one type of member of an incorporated association.
4)Items 3 and 8 in Sch 1 Div 1 of the AI Act provide that there may be qualifications to become a member of an incorporated association and there can be several classes of members of an incorporated association. Mr Kabay says that those provisions do not 'inhibit' an incorporated association from having a class of members called 'joining/applying/initiate' members, who have 'at least the basic right of review of [incorporated association] decisions and not any other rights such as voting'.
5)Mr Kabay says the term 'member' of an incorporated association is a 'very fluid/flexible concept within the [AI] Act' and, therefore, the word 'member' in s 182(1) of the AI Act can 'be regarded flexibly as well and can relate to 'initiate' members of an [incorporated association]'.
6)Mr Kabay refers to rules 6, 7, 8 and 9 of the DWG Rules and says that when a person who wishes to become a member of DWG and the member who is nominating that person for membership both sign the membership application the person applying for membership becomes an 'initiate' member of DWG and is then able to become a 'full' member after an 'administrative action' by the committee of DWG. Mr Kabay says that if the DWG committee rejects the membership application the 'applying' member has a right of review under the DWG Rules and is able to make an application to the Tribunal under s 182(1) of the AI Act as a type of 'member' of DWG during this review period.
7)Mr Kabay says analysis of the Tribunal's determination in Kavanagh and Pine Valley Pistol Club Incorporated [2020] WASAT 11 (Kavanagh) 'logically indicates' that there can be a dispute between an 'initiate' member of an incorporated association and the incorporated association that can be taken to the Tribunal.
8)Mr Kabay refers to the rules of two associations (International Surfing Association and Association of Professional Staffing Companies Australia Ltd) which he says have rules which give 'applying' members rights. Mr Kabay contends that 'natural justice demands others to have similar rights such as for the 'initiate' member who has been shown to logically exist as a legitimate class/type of [incorporated association] member'.
9)Mr Kabay say that both a refugee who arrives in Australia, who has his or her refugee status rejected, or an overseas visitor to Australia, who is refused a visa, has the right to a review of that decision and 'natural justice would demand that people who have a legal right to be in Australia should at least have a right of review when rejected in their application to be a member of an [incorporated association] and make an application to [the Tribunal] for mediation of that dispute'.
10)Mr Kabay says that when the DWG 'group' realised that there was a major legal problem with the DWG register of members, the Chair of DWG sent an email to all those people on the DWG email list inviting them to reapply for DWG membership, which created a 'legitimate expectation' that Mr Kabay would be accepted as a member and would have the right to make an application to the Tribunal if the expectation was not met. The 'unrealised legitimate expectation' was that DWG regards Mr Kabay as a 'potential real DWG member' and 'as such [the Tribunal] must regard [Mr Kabay] as a [m]ember for the purposes of [s 182(1) and (2) of the AI Act'.
11)Mr Kabay says that '[t]he Social and Cultural Processes involved in people joining a group of similar minded people are very similar to those that involve Legal processes of joining groups created by Acts but have a greater acceptance and reliability of being the 'correct process' based on fundamental common sense, 'religious' ideologies, human feelings for social justice and Homo sapiens evolution of grouping behaviour and cognitive characteristics'. Mr Kabay says that '[t]hus those who are applying for legal membership should be regarded as being part (ie a member) of that group as the human processes of membership to social/cultural groups'.
Consideration
In Kavanagh, the applicants (Mr Kavanagh and two other persons) applied to the Tribunal under s 182(1) of the AI Act for orders that the decision of the committee of the Pine Valley Pistol Club Incorporated to decline to renew their memberships of the club was void and of no effect and that their memberships be renewed.
One of the issues which the Tribunal considered in Kavanagh was the meaning of the words 'a member of the association involved in the dispute' for the purposes of s 182(1) of the AI Act.
The Tribunal, at [28] and [29] of Kavanagh stated:
The proper construction of s 182(1) of the AI Act
28Before considering the preliminary issue the Tribunal will consider the proper construction of s 182(1) of the AI Act.
The principles of statutory construction
29As was noted by the Tribunal in Kelmscott Senior Football Club at [31], the principles of statutory construction were conveniently summarised in Bhalsod v Perrie [2016] WASC 412 at [18]-[19], as follows:
The High Court has confirmed on many occasions in recent years that questions of construction are determined by reference to the text, context and purpose of the Act. See for example Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 26; (1998) 194 CLR 355; Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27; Australian Education Union v Dept of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1; Certain Lloyd's Underwriters Subscribing to Contract Number IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378.
The applicable principles of statutory construction include the following. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The context and purpose of a provision are important to its proper construction because the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The legal meaning of the relevant provision is to be decided by reference to the language of the instrument viewed as a whole. The purpose of the statute resides in its text and structure. The purpose of legislation must be derived from what the legislation says, and not from some a priori assumption about its purpose or any assumption about the desired or desirable reach or operation of the relevant provisions.
Then, at [74] [84] of Kavanagh the Tribunal stated:
What is the legal meaning of the words 'a member of the association involved in the dispute' for the purposes of s 182(1) of the AI Act?
74As stated in [29] above, in construing the legal meaning of a provision in legislation, the language which has actually been employed in the text of the legislation is the surest guide to legislative intention, with the context and purpose of a provision being important to its proper construction, so that it is construed to be consistent with the language and purpose of all the provisions of the statute. The purpose of legislation must be derived from what the legislation says, and not from some a priori assumption (or, in other words, an assumption that is regarded as being true without the need to prove it) about its purpose or any assumption about the desired or desirable reach or operation of the relevant provisions.
75Section 182(1) of the AI Act states that a 'member of the association involved in the dispute' may apply to the Tribunal (if a relevant dispute cannot be resolved under a relevant dispute resolution procedure).
76The words 'member of the association', 'members of the association', 'member of the incorporated association', 'member of an incorporated association' or 'members of the incorporated association' are used in s 21(1), s 22(1)(c), s 35(2), s 36(1)(a), s 51(1)(b), s 51(3) and s 56(1) of the AI Act. In all those instances it is clear that the reference is to a current member of an incorporated association.
77Section 18 of the Interpretation Act provides that in the interpretation of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object. However, as stated above, the purpose of the written law must be derived from what it says, and not from some a priori assumption about its purpose or any assumption about the desired or desirable reach or operation of the relevant provisions.
78Section 19 of the Interpretation Act provides that in the interpretation of a provision of a written law, consideration may be given to an explanatory memorandum relating to the Bill containing the provision or the second reading speech made to a House of Parliament regarding the Bill.
79The Tribunal has considered the second reading speeches for the Associations Incorporation Bill 2014 (WA), which were given by Mr PT Miles (Parliamentary Secretary) in the Assembly (Hansard 11 September 2014, p 6122-6124) and by the Hon Michael Mischin (Minister for Commerce) in the Council (Hansard 26 March 2015, p 2283-2285). There is nothing in either of those speeches which refers to an intent that a former member or a non-member of an incorporated association would be entitled to make an application to the Tribunal under the provision which became s 182(1) of the AI Act. Both of those speeches state that 'association members' would have the ability to apply to the Tribunal if a dispute cannot be resolved.
80The Tribunal has also considered the debates in both the Assembly and the Council regarding the Associations Incorporation Bill 2014 (WA) and notes that there was one occasion when a concern was raised in the Assembly regarding whether a former member of an incorporated association would be able to apply to the Tribunal for the resolution of a dispute.
81During the second reading debate in the Assembly on 20 November 2014, Mr P Abetz (Member for Southern River) said (Hansard 20 November 2014, p 8573):
Another issue has emerged from one of the organisations in my electorate about the dispute resolution process. The organisation has a dispute resolution process in its constitution and a person decided to initiate that process, but the committee proceeded to expel him from the association. It therefore said, 'You are no longer a member. You have no right to use the dispute resolution process'. I hope that there will be some provision in this bill to prevent that kind of misuse of the powers of a committee. I hope that a person will still be able to go to SAT and have the dispute resolved there; otherwise, I believe that will be an abuse of process.
82On 27 November 2014, in the Assembly Mr PT Miles (Parliamentary Secretary) said (Hansard 27 November 2014 p 9022):
The member for Southern River posed some questions. One of his questions was whether a body could expel a member to prevent that member from using its dispute resolution process to try to challenge it. The Associations Incorporation Bill 2014 requires that every incorporated body has to have a dispute resolution process; we are making that very clear. However, it is going to be left up to each individual to decide what process they need to take after that. The draft model rules, which have been out for public consultation, include a suggested process for the expulsion or suspension of a member. The rules provide that a body can expel or suspend a member and is able to use the dispute resolution process in situations in which the membership has ceased, but no more than six months after that dispute has occurred. The model rules also provide for expelled or suspended members to apply to the State Administrative Tribunal to determine the dispute in situations in which the dispute cannot be resolved under the dispute resolution process. There is quite a bit of a process that can be set up there.
83Rule 17 of the Model Rules provides that a person who has ceased to be a member within six months before a dispute comes to the attention of each party to the dispute can use the grievance procedure set out in division 3 of the Model Rules. However, that provision does not have any bearing on the proper construction of s 182(1) of the AI Act. A dispute resolution procedure in the rules of an incorporated association cannot give a former member a right to apply to the Tribunal under s 182(1) of the AI Act if a dispute is not resolved under that procedure, unless the provisions of s 182(1) of the AI Act allow that. Rule 17 of the Model Rules simply allows a former member the opportunity to use the grievance procedure in the Model Rules within six months of ceasing to be a member.
84In the Tribunal's view, the proper construction and legal meaning of the words 'a member of the association involved in the dispute' in s 182(1)(b) of the AI Act, by reference to the text and read in context, is that they refer to a person who is a current member of an incorporated association at the time that they make an application to the Tribunal under s 182(1) of the AI Act.
The Tribunal will now consider each of the 11 points made by Mr Kabay, by reference to the numbering of those points in [20] above:
1)There is no legal basis for implying that a person who applies for membership of an incorporated association becomes a member before his or her membership application is accepted by the incorporated association.
2)The Tribunal does not accept Mr Kabay's contention that the provisions of s 182(2) of the AI Act should be construed to mean that a person who is applying for membership of an incorporated association has the right to apply to the Tribunal as a member of the incorporated association for mediation of a dispute with that association. Section 182(2) of the AI Act merely provides that the Tribunal may refer a dispute which falls within s 182(1) of the AI Act to mediation. To fall within s 182(1) of the AI Act a dispute must be between an incorporated association and a member of the incorporated association or between two or more members of an incorporated association (and be a dispute under or in relation to the rules of the incorporated association which cannot be resolved under the dispute resolution procedure provided in those rules).
3)The fact that 'member' is not defined in the AI Act and that 'full voting rights' is defined in s 3 of the Act does not give any legal basis for Mr Kabay's contention that an applicant for membership of an incorporated association is a member of that incorporated association before his or her membership application is accepted.
4)The provisions in items 3 and 8 of Sch 1 Div 1 of the AI Act, which provide that the rules of an incorporated association may set out qualifications for membership and classes of membership, do not give rise to there being a class of members of an incorporated association which might be called 'joining/applying/initiate members'.
5)The Tribunal does not accept Mr Kabay's contention that the word 'member' in s 182(1) of the AI Act can 'be regarded flexibly' and be construed to include persons who Mr Kabay refers to as 'initiate' members. The word 'member' must be construed according to the principles of statutory construction referred to by the Tribunal in Kavanagh at [29].
6)The Tribunal does not accept Mr Kabay's contention that rules 6, 7, 8 and 9 of the DWG Rules give rise to a right for a person whose membership application to an incorporated association has been rejected to make an application to the Tribunal under s 182(1) of the AI Act. As the Tribunal stated in Kavanagh at [83], the rules of an incorporated association cannot give a person a right to apply to the Tribunal under s 182(1) of the AI Act. Rule 9 of the DWG Rules expressly states that an applicant for membership of DWG becomes a member when the committee accepts the application and the applicant pays any membership fees payable to DWG under rule 11 of the DWG Rules. Rule 8 of the DWG Rules provides for a right of appeal to a general meeting by an applicant whose application for membership has been rejected. That appeal process does not have any bearing on the proper construction of s 182(1) of the AI Act. The Tribunal notes that rules 7, 8 and 9 of the DWG Rules specifically refer to a person who wishes to become a member of DWG as an 'applicant' at all times until such person becomes a member under rule 9 of the DWG Rules.
7)The Tribunal does not accept Mr Kabay's contention that its determination in Kavanagh 'logically indicates' that there can be a dispute between an 'initiate' member of an incorporated association and that incorporated association. The Tribunal refers to its reasons and conclusion in Kavanagh at [74] [84].
8)Mr Kabay's reference to the rules of other associations, which he says have rules which give 'applying' members rights, has no relevance to the proper construction of s 182(1) of the AI Act.
9)Mr Kabay's reference to review rights of refugees and 'overseas visitors' to Australia seeking a visa has no relevance to the proper construction of s 182(1) of the AI Act.
10)The Tribunal does not accept Mr Kabay's contention that the expectation he had that his membership application would be accepted by the DWG committee means that he is a member of DWG for the purposes of s 182(1) of the AI Act. There is no legal basis for that contention.
11)The Tribunal does not accept Mr Kabay's contention that a person who applies for membership of an incorporated association should be regarded as a member of that incorporated association before the membership application is accepted by the incorporated association due to 'the human processes of membership to social/cultural groups'. There is no legal basis for that contention.
Conclusion
The Tribunal is not persuaded by any of Mr Kabay's contentions that its statement in [84] of Kavanagh is incorrect.
A person who applies to become a member of an incorporated association whose membership application is rejected is not a member of that incorporated association. Therefore, that person is not able to make an application to the Tribunal under s 182(1) of the AI Act.
Accordingly, the preliminary issue is answered in the negative. The Tribunal does not have jurisdiction under s 182(1) of the AI Act to determine the dispute the subject of this application, because Mr Kabay is not a member of DWG for the purposes of s 182(1) of the AI Act.
The Tribunal will therefore dismiss the application.
Orders
The Tribunal will make the following orders:
1.The preliminary issue:
Does the Tribunal have jurisdiction under s 182(1) of the Associations Incorporated Act 2015 (WA) to determine the dispute the subject of this application, in which the applicant is seeking an order by the Tribunal directing the committee of the respondent to accept his membership application of 15 November 2019?
is answered as follows:
No.
2.The application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR D AITKEN, SENIOR MEMBER
3 AUGUST 2020
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