Kelmscott Senior Football Club (Inc) and Western Australian Amateur Football League (Inc)
[2018] WASAT 6
•25 JANUARY 2018
KELMSCOTT SENIOR FOOTBALL CLUB (INC) and WESTERN AUSTRALIAN AMATEUR FOOTBALL LEAGUE (INC) [2018] WASAT 6
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2018] WASAT 6 | |
| ASSOCIATIONS INCORPORATION ACT 2015 (WA) | |||
| Case No: | CC:1029/2017 | 21 SEPTEMBER 2017 | |
| Coram: | JUDGE T SHARP (DEPUTY PRESIDENT) MS L EDDY (MEMBER) | 25/01/18 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | KELMSCOTT SENIOR FOOTBALL CLUB (INC) WESTERN AUSTRALIAN AMATEUR FOOTBALL LEAGUE (INC) |
Catchwords: | Application under s 182 Associations Incorporations Act 2015 (WA) Incorporated association Dispute Jurisdictional fact Statutory interpretation Dispute resolution process By-laws of association Tribunal lacks jurisdiction to consider matter. |
Legislation: | Associations Incorporation Act 1987 (WA) Associations Incorporation Act 2015 (WA), s 22, s 22(3), s 23, s 27, s 28(2), s 30, s 182, s 182(1), Pt 16 Div 2 Subdivision 4, s 188, s 198, Sch 1 Div 1 Item 18 |
Case References: | Bhalsod v Perrie [2016] WASC 412 Mustac v Medical Board of Australia [2007] WASCA 128 Peskett and Leonora Clay Target Club [2017] WASAT 50 |
Orders | 1. The application is dismissed on the basis that the Tribunal lacks jurisdiction to consider the matter. |
Summary | Three football players and members of the Kelmscott Senior Football Club (Inc) (KSFC), were called to attend an interview with the Competition Integrity Officer of the Western Australian Amateur Football League (Inc) (WAAFL) to answer questions about alleged breaches of the WAAFL's bylaws. The KSFC considered that it would be unfair for the players to have to attend the interview without knowing more information about the alleged breach of rules. Consequently, the players did not attend the interview and were suspended from playing. The KSFC applied to the Tribunal about what the KSFC said was a dispute between it, a member of the WAAFL, and the WAAFL in relation to the way the players had been treated. The KSFC's application was made under s 182(1) of the Associations Incorporation Act 2015 (WA) (Act), which allows an incorporated association, or one of its members, to apply to the Tribunal when a dispute cannot be resolved 'under the procedure provided for as required by Schedule 1 Division 1 Item 18 of the Act'.,The WAAFL argued that the power to bring an application to the Tribunal in relation to a dispute between a member of an incorporated association and the incorporated association, is conditional on there being a failure to settle the dispute after following the dispute resolution process specified in the rules of the incorporated association. The WAAFL said that it does not currently have any dispute resolution process in its rules of incorporation and therefore there is no ability to bring an application under s 182(1) of the Act until such time as it does have rules of that kind. ,The Tribunal concluded that it does not have any power to determine the dispute in this case because there is no dispute resolution procedure incorporated into the WAAFL's rules, as required by Sch 1 Div 1 Item 18. The Act does not provide for the determination of any dispute by the Tribunal except where the rules of the incorporated association include a dispute resolution procedure, as required by Sch1 Div 1 Item 18 of the Act.,The Tribunal dismissed the KSFC's application. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : ASSOCIATIONS INCORPORATION ACT 2015 (WA) CITATION : KELMSCOTT SENIOR FOOTBALL CLUB (INC) and WESTERN AUSTRALIAN AMATEUR FOOTBALL LEAGUE (INC) [2018] WASAT 6 MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT)
- MS L EDDY (MEMBER)
- Applicant
AND
WESTERN AUSTRALIAN AMATEUR FOOTBALL LEAGUE (INC)
Respondent
Catchwords:
Application under s 182 Associations Incorporations Act 2015 (WA) Incorporated association Dispute Jurisdictional fact Statutory interpretation Dispute resolution process By-laws of association Tribunal lacks jurisdiction to consider matter.
Legislation:
Associations Incorporation Act 1987 (WA)
Associations Incorporation Act 2015 (WA), s 22, s 22(3), s 23, s 27, s 28(2), s 30, s 182, s 182(1), Pt 16 Div 2 Subdivision 4, s 188, s 198, Sch 1 Div 1 Item 18
Result:
Application dismissed
Summary of Tribunal's decision:
Three football players and members of the Kelmscott Senior Football Club (Inc) (KSFC), were called to attend an interview with the Competition Integrity Officer of the Western Australian Amateur Football League (Inc) (WAAFL) to answer questions about alleged breaches of the WAAFL's bylaws. The KSFC considered that it would be unfair for the players to have to attend the interview without knowing more information about the alleged breach of rules. Consequently, the players did not attend the interview and were suspended from playing. The KSFC applied to the Tribunal about what the KSFC said was a dispute between it, a member of the WAAFL, and the WAAFL in relation to the way the players had been treated. The KSFC's application was made under s 182(1) of the Associations Incorporation Act2015 (WA) (Act), which allows an incorporated association, or one of its members, to apply to the Tribunal when a dispute cannot be resolved 'under the procedure provided for as required by Schedule 1 Division 1 Item 18 of the Act'.
The WAAFL argued that the power to bring an application to the Tribunal in relation to a dispute between a member of an incorporated association and the incorporated association, is conditional on there being a failure to settle the dispute after following the dispute resolution process specified in the rules of the incorporated association. The WAAFL said that it does not currently have any dispute resolution process in its rules of incorporation and therefore there is no ability to bring an application under s 182(1) of the Act until such time as it does have rules of that kind.
The Tribunal concluded that it does not have any power to determine the dispute in this case because there is no dispute resolution procedure incorporated into the WAAFL's rules, as required by Sch 1 Div 1 Item 18. The Act does not provide for the determination of any dispute by the Tribunal except where the rules of the incorporated association include a dispute resolution procedure, as required by Sch1 Div 1 Item 18 of the Act.
The Tribunal dismissed the KSFC's application.
Category: B
Representation:
Counsel:
Applicant : Mr M Lourey
Respondent : Ms R Cosentino
Solicitors:
Applicant : Chapmans Barristers & Solicitors
Respondent : Slater and Gordon
Case(s) referred to in decision(s):
Bhalsod v Perrie [2016] WASC 412
Mustac v Medical Board of Australia [2007] WASCA 128
Peskett and Leonora Clay Target Club [2017] WASAT 50
Introduction
1 Simon Donovan, Shane Collard and Callum Collard (the players), all keen football players and members of the Kelmscott Senior Football Club (Inc) (KSFC), were called to attend an interview with the Competition Integrity Officer (CIO) of the Western Australian Amateur Football League (Inc) (WAAFL) to answer questions about alleged breaches of the WAAFL's bylaws. The notice to the players required their attendance at the interview and contained a warning that if the player did not attend the interview, he could be fined or suspended from playing.
2 The KSFC considered that it would be unfair for the players to have to attend the interview without knowing more information about the alleged breach of the bylaws. The KSFC wrote to the CIO and stated that the players would not attend an interview until they had been given further information. The CIO did not provide the further information requested. Consequently, the players did not attend the interview scheduled by the CIO. When the players did not attend the interview with the CIO, the CIO suspended them from playing and/or coaching in any football game in the WAAFL for most of the month of June 2017.
3 The KSFC applied to the Tribunal about what the KSFC said was a dispute between it, as a member of the WAAFL, and the WAAFL in relation to the way the players had been treated. The KSFC's application was made under s 182(1) of the Associations Incorporation Act2015 (WA) (Act), which allows an incorporated association, or one of its members, to apply to the Tribunal when a dispute cannot be resolved 'under the procedure provided for as required by Schedule 1 Division 1 Item 18 of the Act'. In its application, the KSFC described the orders sought as:
1. That the purported suspension of Callum Collard, Simon Donovan and Shane Collard be declared to be invalid.
2. That the letter of 7 June 2017 to Callum Collard, Simon Donovan and Shane Collard be set aside.
4 The grounds on which these orders were sought were described as:
1. That the Respondent's Integrity Officer purported to exercise powers which were not available to him at all, were not available to him in these circumstances, or alternatively were exercised when the requirements of that exercise of power were not first established.
2. The Respondent's integrity officer failed to provide procedural fairness to the three members of the Applicant.
5 The WAAFL in reply claimed that there was no dispute between the KSFC and the WAAFL, and even if there had been, that there had been no attempt between those two parties to resolve that dispute.
6 The WAAFL also argued that the power to bring an application to the Tribunal in relation to a dispute between a member of an incorporated association and the incorporated association, is conditional on there being a failure to settle the dispute after following the dispute resolution process specified in the rules of the incorporated association. The WAAFL said that it does not currently have any dispute resolution process in its rules of incorporation, and therefore there is no ability to bring an application under s 182(1) of the Act until such time as it does have rules of that kind.
7 In an earlier decision of a single member of the Tribunal, the Tribunal had determined that it is open to make an application to the Tribunal, under s 182(1) of the Act, even if an incorporated association's rules do not contain any dispute resolution procedure: Peskett and Leonora Clay Target Club [2017] WASAT 50 (Peskett). In Peskett, the Tribunal determined that it is sufficient that the parties had, as a matter of fact, attempted to resolve their dispute and been unable to resolve it. In light of its submissions on the power of the Tribunal under s 182(1) of the Act, the WAAFL asked the Tribunal to consider whether that earlier decision of the Tribunal was clearly wrong and, as such, should not be followed.
8 After hearing the parties address the point of whether the Tribunal had any power to determine this dispute under s 182 of the Act, the Tribunal reserved its decision.
Who are the parties involved in a dispute?
9 The WAAFL submits that the decision of the CIO to suspend the players was a decision made in relation to the players, and not a decision made in relation to a member of the WAAFL. Therefore any dispute that arose was one between the WAAFL and the players concerned and not between the WAAFL and the KSFC. The players are not members of the WAAFL and, as such, there is no dispute between the WAAFL and any of its members.
10 The KSFC submits that, by way of letter dated 6 June 2017 to the CIO, the KSFC questioned whether the CIO had the power to require the KSFC's players to attend an interview, without first providing them with further detail about the matters that were to be the subject of investigation at the interview: bundle of documents which the respondent proposes to rely on, dated 8 September 2017 (Respondent's Bundle), page 90. In addition, the KSFC submits that following the decision of the CIO to suspend the players, the KSFC sent an email to the CIO disputing the power of the WAAFL to suspend the players in the circumstances and disputing that there had been any breach of the bylaws: Respondent's Bundle, page 103. It is submitted that by sending these communications, it was the KSFC that was, as a member of the WAAFL, objecting to the actions of an officer of the WAAFL.
11 In his emails to the players (which were in substantially identical form), the CIO advised that he was writing '… to schedule an interview with you to discuss an alleged breach of the [WAAFL's] by-laws as it relates to the accuracy of the B-Grade team sheets where you were listed as coach'[.] A date and time of the 'meeting' was provided followed by a statement that 'if you are unable to attend at this time please contact me … to schedule an alternative meeting.' Following this is a statement that the CIO 'has the power that at any time may investigate (formally or informally) any matter that may undermine the integrity of the competition …'. Near the conclusion of the email it is stated 'failure to attend may result in a fine and/or a suspended fine (bond) not exceeding $500 and suspension from participating in the WAAFL': (Respondent's Bundle, pages 87 88).
12 The letter sent to the CIO signed in the name of the KSFC (Respondent's Bundle, pages 90 92) relevantly stated that:
Each of the persons concerned, and this Club, are happy to co-operate with you within the limits of the By-Laws, … Before things go any further, can you please first clarify the following for us:
(i) Which players in the matches referred to in your emails are said to be ineligible; and
(ii) In relation to each of those players, which of the By-Laws you have listed do you say made that player ineligible? …
…
Further to the above point, can you outline the By-Law(s) that give(s) you the power to:
…
(iv) Fining and suspending any coach who does not attend the meeting as directed by you[.]
13 The notice of suspension issued to each of the players by the CIO (Respondent's Bundle, pages 98, 100 and 102) relevantly stated in each case:
RE: Suspension from WAAFL – [name of player] (By Law 35.10)
…
As you failed to attend or make alternative arrangements with me for an interview, as permitted under By-law Part 1 35.10(c) you are suspended from playing and/or coaching in the WAAFL until such time that you make yourself available for an interview with me.
…
14 Mr Rob Renton, General Manager of the KSFC, emailed the CIO on behalf of the KSFC and, amongst other things, stated (Respondent's Bundle, page 103):
…
As you know the Club does not agree that you are following the By-Laws and does not believe you have the powers to run things the way you have set out so far. The Club also disputes your power to fine and suspend in these circumstances under By-Law 35.10 that you have quoted in your letters[.]
15 By-Law 35.9 relevantly provides:
a) the Board may from time to time appoint, remove or replace a Competition Integrity Officer.
b) The Competition Integrity Officer may at any time investigate (formally or informally) any matter that may undermine the integrity of the competition including but not limited to amateur status, drugs in sport, ineligible players, vilification, player, coach and spectator behaviour and the Spirit of the Game.
c) The Competition Integrity Officer shall have the authority to;
i. conduct investigations in such manner as he thinks fit.
ii. hear and determine matters of alleged breaches of the Laws of Australian Football or alleged breaches of WAAFL rules, bylaws and policies.
iii. hear all witnesses to the matter as he in his absolute discretion deems to be relevant, and give such weight to the evidence he hears as he determines in its absolute discretion.
iv. inform himself of any matter he sees fit.
…
vi. issue a caution or impose penalties as he sees fit and/or fines.
…
d) any decision of the Competition Integrity Officer may be subject to appeal in accordance with bylaw 35.9(e)
e) Appeal of Competition Integrity Officer decisions
i. A club, player and/or club official is permitted to appeal the severity of a decision made against them by the Competition Integrity Officer.
ii. The appeal shall be;
- in writing from the club president to the general manager.
- lodged within 24 hours of the decision of the Competition Integrity Officer.
- accompanied by a $200 bond which will be refunded if the appeal is upheld.
iii. The appeal will be referred to the Competition Integrity Committee for consideration in accordance with Part 3, Bylaw 5.
Respondent's Bundle, page 66
16 From the terms of the KSFC's letter to the CIO, it is apparent that the KSFC was questioning, amongst other things, the CIO's ability to require the players to attend at the specified time and place for the purpose of an investigation, by the CIO, without the provision of further information and to fine or suspend any player who did not attend the meeting as directed by the CIO.
17 There is no evidence before the Tribunal of any communication from any of the players themselves raising any dispute with the CIO or with the WAAFL. Putting aside for the moment the question of whether the KSFC had any ability under the by-laws or the rules of the WAAFL to raise such a dispute, the Tribunal is satisfied that it was the KSFC that was in fact involved in a dispute with the CIO in relation to decisions made by him in relation to some of the KSFC's players.
Dispute justiciable under s 182?
18 This question raises two issues. The first is, whether it is necessary for there to be a dispute resolution procedure in an association's rules in order to make an application under s 182 of the Act. Secondly, assuming the answer to the first question is no, or alternatively that there is in fact a dispute resolution procedure in the WAAFL's rules, the issue is whether the dispute between the KSFC and the CIO in this case was a dispute able to be referred to the Tribunal under s 182 of the Act.
19 As stated above, the WAAFL submits that, unless there is a dispute resolution procedure as required by Sch 1 Div 1 Item 18 of the Act in the rules of an association, then an application cannot be made under s 182 of the Act.
20 The WAAFL also submits that the dispute the subject of the application is not a dispute in relation to a right or obligation created by the association's rules. By inference, it is submitted that only a dispute in relation to a right or obligation created by the association's rules may be the subject of an application under s 182(1) of the Act. It is submitted that the decision of the CIO to suspend the KSFC's players was made under the WAAFL's bylaws and not under any of the WAAFL's rules.
21 The KSFC submits that it is not necessary for there to be a dispute resolution procedure incorporated in the rules of the association for an application to be made to the Tribunal under s 182 of the Act. Applying the Tribunal's decision in Peskett, the KSFC submits that it is sufficient that there is a dispute and that the parties have attempted, but failed, to resolve that dispute. In the alternative, the applicant submits that there is a dispute resolution procedure in the WAAFL's rules, which is contained in the WAAFL's by-laws.
22 The KSFC also submits that the WAAFL's bylaws are incorporated into the association's rules, and as such, a dispute in relation to the bylaws was a dispute in relation to the WAAFL's rules.
Need for dispute resolution procedure
23 The KSFC relies on the decision of the Tribunal in Peskett in support of its argument that there is no need for an association to have a dispute resolution procedure in the association's rules, in order to found the ability to make an application under s 182(1) of the Act. In Peskett, at [66] [72], the then constituted Tribunal stated:
The Tribunal considers that the general purpose and policy of s 182 of the AI Act is to provide a means for a dispute to be determined. The leading provision is the ability of the Tribunal to determine the dispute if it cannot be resolved under the procedure. The Tribunal considers this outcome will promote consistency and fairness and will achieve the result that will best give effect to the purpose and language of this provision.
To construe the provision in the way contended for by the respondent would allow associations to act unfairly towards their members and force those affected to abandon their rights or seek relief in the Supreme Court, further burdening that court’s resources in circumstances where the obvious forum for resolving the dispute expeditiously and with less formal technicality is, if the parties are unable to, this Tribunal.
In support of its argument that the provision was meant to act as a filter and therefore compliance with the dispute resolution procedure was mandatory to enliven jurisdiction, the respondent referred to page 54 of the Explanatory Memorandum to the Associations Incorporations Bill 2014 (WA).
If recourse were required to the Explanatory Memorandum in order to construe the meaning of s 182(1) of the AI Act, the Tribunal would find that the provision are intended to increase the forums available for the resolution of the dispute, rather than to restrict them. Relevantly, the express words of the Explanatory Memorandum, at cl 182 are:
…
The purpose of subclause (1) is to introduce a further dispute resolution process to apply where a dispute cannot be settled through an application of the association’s own dispute resolution process.
(Tribunal emphasis)
This suggests a greater capacity for parties to engage in dispute resolution processes rather than limiting their capacity by acting as a filter to stop disputes from reaching the Tribunal.
The Tribunal finds that it would be inconsistent with the purpose and policy of this provision that, for a three year period, the Tribunal might lack jurisdiction to determine such complaints, and that the Supreme Court might be the sole repository of such disputes.
The Tribunal agrees that s 182(1) of the AI Act does create a jurisdictional prerequisite that must be satisfied before the Tribunal can have jurisdiction in a matter. However, that threshold is lower than the threshold argued for by the respondent. In this instance, the threshold was passed as the dispute could not, as a matter of fact, be resolved under the procedure because the respondent, as a matter of law, was not required to have the procedure included in its Rules.
24 As stated above, the respondent submitted that the Tribunal's decision in Peskett was wrong and should not be followed.
25 The principle of judicial comity was usefully summarised by his Honour Martin CJ in Mustac v Medical Board of Australia [2007] WASCA 128, where at [38] [42], his Honour explained:
The practice of judicial comity is, of course, distinct from, but related to, the doctrine of precedent (or stare decisis) which compels each court in a judicial hierarchy to follow and apply decisions of any court higher in that hierarchy on questions of law. The practice of judicial comity applies to augment that doctrine by creating a non-binding practice applicable to decisions of courts of co-ordinate jurisdiction, or as between a court in one judicial hierarchy, and a court at the same or a higher level in another judicial hierarchy, and provides that questions of law should usually (but not always) be determined the same way. The practice was described well by Justice Burchett in La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 in the following terms at page 204:
"The doctrine of stare decisis does not, of course, compel the conclusion that a judge must always follow a decision of another judge of the same court. Even a decision of a single justice of the High Court exercising original jurisdiction, while 'deserving of the closest and respectful consideration', does not make that demand upon a judge of this court: Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 504. But the practice in England, and I think also in Australia, is that 'a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance [scil of coordinate jurisdiction] unless he is convinced that the judgment was wrong': Halsbury, 4th ed, vol 26, para 580. The word 'usually' indicates that the approach required is a flexible one, and the authorities illustrate that its application may be influenced, either towards or away from an acceptance of the earlier decision, by circumstances so various as to be difficult to comprehend within a single concise formulation of principle. (For example, it has been suggested that decisions upon the effect of sections of the Income Tax Assessment Act 1936 (Cth) present a special need for consistency: Rabinov v FCT 82 ATC 4517 at 4523. Understood as expressing a usual or general rule, the following statement of Rogers J in Hamilton Island Enterprises Pty Ltd v FCT [1982] 1 NSWLR 113 at 119 is consistent with the proposition I have quoted from Halsbury:
'In my view it is of cardinal importance in the proper administration of justice that single judges of State Supreme Courts exercising federal jurisdiction should strive for uniformity in the interpretation of Commonwealth legislation. Unless I were of the view that the decision of another judge of coordinate authority was clearly wrong I would follow his decision.'"
The importance of the application of the practice to uniform national legislation was endorsed by the High Court in Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, 492.
In R v Hookham (1993) 31 NSWLR 381, Priestley JA cited the following passage from the decision of Street CJ in R v Abbrederis [1981] 1 NSWLR 530, 542:
"As a matter of precedent this Court is not, of course, bound by the decision of the Full Court of Victoria. But I have not the slightest doubt that, where a Commonwealth statute has been construed by the ultimate appellate court within any State or Territory, that construction should, as a matter of ordinary practice, be accepted and applied by the courts of other States and Territories so long as it is permitted to stand unchanged either by the court of origin or by the High Court. The risk of differing interpretations amongst the States is thus negated and, in practical terms, a uniform application of Commonwealth laws throughout Australia is assured."
Priestley JA went on to observe (at 391):
"An important sentence in this passage is the one which states that this Court is not bound by decisions of the Full Court of Victoria. It follows from that statement, as appears a little further down in the passage, that the rule of comity followed by the court in that case is not one binding upon the Court but is 'a matter of ordinary practice' as Street CJ said. This Court is not bound by its own decisions: see R v Mai (1992) 26 NSWLR 371 where Hunt CJ at CL explained the position, noting that the court only departs from previous decisions with caution and when satisfied that justice seems to require the earlier decision to be overturned (at 380). The position cannot be different in regard to the decision of another court with the same standing in its jurisdiction as this Court has in New South Wales. It may be that in regard to decisions on Commonwealth legislation by appellate courts of other jurisdictions particular caution should be exercised by this Court before departing from them, for the reasons given by Street CJ, but nevertheless it seems inescapable that this Court retains jurisdiction to reach its own decision, different from that of the other court, in a case where it feels convinced that the law and justice of the case require a different decision."
In Mitchforce Pty Ltd v Starkey (No 2) (2003) 130 IR 378, Wright and Walton JJ described judicial comity at [19] as "a flexible concept the strength or application of which will inevitably vary with the circumstances of the particular case".
26 Section 182 of the Act provides:
182. Jurisdiction of SAT in respect of disputes
(1) 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.
(2) Nothing in subsection (1) prevents the State Administrative Tribunal from exercising its powers to refer the dispute, or any aspect of it, for mediation.
(3) In a proceeding under subsection (1), the State Administrative Tribunal may make orders giving such relief as the Tribunal considers appropriate, including one or more of the following orders
(a) an order giving directions for the observance of the rules of the incorporated association by any person who has an obligation to observe those rules;
(b) an order declaring and enforcing the rights and obligations of members of the incorporated association between themselves;
(c) an order declaring and enforcing the rights and obligations between the incorporated association and any member or members of the association.
(3) Subject to section 23, the rules of an incorporated association must at all times
(a) address each of the matters set out in Schedule 1 Division 1; and
(b) comply with any applicable requirement under Schedule 1 Division 2; and
(c) be otherwise consistent with this Act.
29 The transitional provisions of the Act provide that an incorporated association existing at the time of the commencement of the Act is taken to be an association incorporated under the Act: s 188 of the Act. Section 198 of the Act provides that any new requirement, that is, a requirement for the content of an association's rules contained in s 22 of the Act, does not apply to an existing incorporated association until the expiry of 3 years after the commencement of the Act or such longer period as the Commissioner allows. As it is not yet 3 years after the commencement of the Act, the WAAFL is not presently required to comply with the requirements of s 22 of the Act. In particular, it is not yet required to have a rule that provides a dispute resolution procedure for dealing with any dispute under or relating to the rules of the WAAFL.
30 Under the Associations Incorporation Act 1987 (WA)(Repealed Act), which was repealed by the Act, the WAAFL was not required to have any rule containing a dispute resolution process. The Repealed Act contained no provision for making any application to the Tribunal in relation to disputes between members or between members and the association. That jurisdiction was introduced, together with the need for an association's rules to contain a dispute resolution procedure, by the Act.
31 The principles of statutory construction were conveniently summarised recently in Bhalsod v Perrie [2016]WASC 412 (Bhalsod), 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.
32 In this case, in our opinion the text of the legislation, read in context, points to the conclusion that there must be a dispute resolution procedure in an association's rules, and on the facts a failure to resolve the dispute despite following the specified dispute resolution procedure, before an application can be made to the Tribunal under s 182 of the Act. The Act introduces a requirement on all associations to have a dispute resolution procedure in their rules, and if they do not, the model dispute resolution procedure is incorporated automatically: s 28(2) of the Act. In this context, it is understandable why the text of s 182 of the Act refers to a failure to resolve a dispute under the procedure required by Sch 1 Div 1 Item 18.
33 The requirement to include in an association's rules a dispute resolution procedure (amongst other things) provided for in s 22 of the Act, applies to associations incorporated under the Repealed Act. However, this is subject to the proviso contained in the transitional provisions in Pt 16 Div 2 Subdivision 4 of the Act, that allow existing incorporated associations three years leeway to bring their rules into line: s 27 of the Act. Thus, the Act expressly allows existing incorporated associations time before they are required to introduce a dispute resolution procedure. In this context, if it had been intended to allow disputes in existing incorporated associations to be referred to the Tribunal, it would seem logical that the drafter would have used broader terminology in s 182 of the Act, rather than referring only to a dispute that had not been resolved under the procedure provided for as required by Sch 1 Div 1 Item 18.
34 In the second reading speeches and debates, several references are made to the introduction of the requirement for an association to have a dispute resolution procedure, and the availability of referral to the Tribunal in the event that the procedure fails to resolve the dispute. These references are generally consistent with the words of the Mr PT Miles, giving the second reading speech in the Assembly (Hansard 11 September 2014, p6122b 6124a, at page 2):
…. In an effort to avoid costly disputes, the bill requires each association to have an internal dispute resolution process in its rules or constitution, and provides that any unresolved disputes between members of an incorporated association, between incorporated associations and their members, can be heard by the State Administrative Tribunal. This option provides relief in situations in which, until now, the only recourse was to the Supreme Court.
35 In relation to the transitional provision allowing three years before compliance with the new requirements for existing incorporated association's rules, the Hon Michael Mischin said (Hansard 20 October 2015, p7520b 7529a at page 9):
…
As far as the operation of the amended rules and dispute resolution processes is concerned, yes there will be a three-year transitional period, and in the meanwhile members and associations' operations will be governed, except those mandated by law, by the rules of the association before the new rules are adopted. Again, what is being done here is being solicitous and understanding of the voluntary nature of these associations rather than forcing them into a particular course of conduct and position that may be oppressive to them and discouraging for members to form them let alone be involved in them.
…
36 Having regard to the legislative history, which did not allow for the referral to the Tribunal of any dispute between members of an incorporated association, or between members and the association, to the text used in s 182 of the Act and to the existence of transitional provisions aimed at allowing time for associations to adapt to the new requirements imposed by the Act, we are satisfied that it was never intended for s 182 of the Act to have any application to an existing incorporated association that has not yet introduced a dispute resolution procedure in accordance with Sch 1 Div 1 Item 18 into its rules.
37 With all due respect to the single Tribunal member who determined Peskett, we are of the view that his conclusion that s 182 of the Act did apply to existing incorporated associations who have not yet included a dispute resolution procedure in their rules is plainly wrong. As such, the decision in Peskett should not be followed. We consider that the member's reliance on the purpose of s 182, namely to allow for unresolved disputes to go to a less expensive jurisdiction (which is correct), does not have regard to the fact that the transitional provisions also have a purpose, that is to maintain the status quo for existing incorporations. In light of the text used in s 182 of the Act we think the member has fallen into the error by attempting to derive the purpose of legislation, using the words from Bhalsod, 'from some a priori assumption about its purpose or any assumption about the desired or desirable reach or operation of the relevant provisions applying', rather than from the text of the legislation.
Existence of a dispute resolution procedure in WAAFL's rules
38 The applicant submitted that r 11.6 and r 11.8 of the WAAFL's rules provide a dispute resolution procedure in the WAAFL's rules. Rule 11 provides for the powers of the board, and in particular it states:
Without limiting the powers conferred in rule 3, the Board shall have the power to also do any or more of the following acts;
11.1 To make, repeal and amend ByLaws, not inconsistent with these Rules or with the provisions of the Act, as it may deem necessary for the proper conduct and management of the League and to carry out the objects of the League, provided that all ByLaws made by the Board shall have effect immediately following the meeting of the Board at which they have been made, repealed or amended and are subject to disallowance or amendment at the next general meeting.
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11.3 The Board may delegate to one or more subBoards (consisting of such persons or members of the League as the Board thinks fit) the exercise of such functions of the Board as are specified in the delegation other than
(a) the power of delegation; and
(b) a function which is a duty imposed on the Board by the Act or any other law.
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11.6 To investigate at its discretion any protest, dispute or other matter which may arise and which does not automatically come before the Protest and Disputes Tribunal.
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11.8 To do all such lawful things as the Board may deem to be incidental and conducive to the attainment of the objects of the League[.]
39 We are not satisfied that any of these provisions in isolation, or together, provide for a dispute resolution procedure. They provide power for the board to make bylaws, which might include a dispute resolution procedure. However, such a dispute resolution procedure would not, in our view, be one provided for in the rules. For the following reasons, we are not persuaded by the KSFC's submission to the contrary.
40 The process by which the WAAFL may amend its rules is specified in cl 20 of those rules. As is required by the Act, the rules may be changed by special resolution and not otherwise. This is in accordance with the requirement in s 30 of the Act.
41 The board of the WAAFL has made some bylaws, and a copy of those issued on 24 April 2017 (By-Laws) is contained in the Respondent's Bundle, pages 32 86. The applicant relies on the opening sentence of the introduction on page 2 of the By-Laws that '[t]hese By-Laws are made under the authority of the Rules of the Western Australian Amateur Football League (Inc) ("WAAFL") to ensure fair and equitable competition' to support its submission that the ByLaws are part of the rules of the WAAFL.
42 However, as can be seen from the rules, the By-Laws are made by the Board and are not made by special resolution of the association as a whole. They therefore cannot form part of the rules of the WAAFL. To find otherwise would be inconsistent with the requirement for any alternation of rules of an association to be made by special resolution of the members of an association, dictated by s 30 of the Act.
43 Rule 11.6 provides an investigation power, which is something quite different to a dispute resolution procedure in our view. An investigation is a means for the board to look into a matter and potentially make a determination. We do not see how this can be viewed as a means for the resolution of disputes between members or between members and the associations.
44 The Tribunal is not satisfied that there is any dispute resolution procedure, as is required by Sch 1 Div 1 Item 18 of the Act, in the WAAFL's rules.
Conclusion
45 The Tribunal does not have any power to determine the dispute in this case because there is no dispute resolution procedure incorporated into the WAAFL's rules, as required by Sch 1 Div 1 Item 18. The Act does not provide for the determination of any dispute by the Tribunal except where the rules of the incorporated association include a dispute resolution procedure, as required by Sch 1 Div 1 Item 18 of the Act.
Orders
1. The application is dismissed on the basis that the Tribunal lacks jurisdiction to consider the matter.
I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT
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