Kenny v Sturt Pistol & Shooting Club Inc - [2017] SADC 67

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
KENNY v STURT PISTOL & SHOOTING CLUB INC
[2017] SADC 67
Judgment of Her Honour Judge Davison
29 June 2017
ASSOCIATIONS AND CLUBS - EXPULSION, SUSPENSION AND DISQUALIFICATION
ASSOCIATIONS AND CLUBS - INCORPORATED ASSOCIATIONS - MEMBERS
MAGISTRATES - APPEAL AND REVIEW
The applicant was a member of the Sturt Pistol and Shooting Club. Membership of a firearms club is a requirement to maintain a certain class of gun licence and participate in the sport of shooting that class of firearm.
The applicant became concerned about a security breach by the respondent. That security breach related to the personal details of approximately 1,000 members of the South Australian Revolver and Pistol Association Inc. (SARPA). The applicant proceeded to correspond with SARPA and a number of pistol clubs, other than the respondent, in relation to the security breach.
The Management Committee of the respondent met on two occasions and resolved that the applicant should be expelled from the Club.
Two charges against the applicant were found proven and his expulsion from the Club was ordered. The applicant appealed the decision. At a Special Meeting convened on 9 August 2014 his appeal was unsuccessful. His membership was not reinstated.
The applicant took action pursuant to s 61 of the Associations Incorporation Act. The Magistrate found that the expulsion of the applicant from the respondent was open to the members and was not oppressive or unreasonable and the principles of natural justice had been observed at the Special Meeting. He dismissed the application.
Having heard submissions by the applicant and respondent and having considered the transcript from the Magistrates Court, I can detect no error in the judgment or the reasons of the learned Magistrate.
Held: Appeal dismissed.
No order as to costs.
Associations Incorporation Act (SA) 1985 s 61; Magistrates Court Act 1991 s 38; Listening and Surveillance Devices Act (SA) 1972, referred to.
Kenny v The Sturt Pistol & Shooting Club Inc [2015] SAMC 90; Ridgeway v Sporting Shooters’ Association of Australia Hunting & Conservation Branch (SA) Inc [2015] SASC 7; Plenty & Plenty v Seventh-Day Adventist Church of Port Pirie [2003] SASC 68; Harradine v District Court of South Australia [2012] SASC 96; Becker v Sturt Pistol & Shooting Club Inc [2014] SADC 210; Calvin v Carr & Others (1979) 22 ALR 417; Commissioner of Main Roads v Jones (2005) 215 ALR 418; Fox v Percy (2003) 214 CLR 118; Halsbury's Laws of Australia Vol 456; Disciplined for Bringing a Sport into Disrepute: A Framework for Judicial Review (2001) 25(3) MULR 654; Kenny v The Sturt Pistol & Shooting Club Inc [2015] SAMC 90, considered.

KENNY v STURT PISTOL & SHOOTING CLUB INC
[2017] SADC 67

This is an application to review a judgment delivered by a Magistrate in a minor civil action.[1] On 26 November 2015 Auxiliary Magistrate Hiskey delivered his decision, having heard argument on 13, 14 and 16 October 2015.
[1] Kenny v The Sturt Pistol & Shooting Club Inc [2015] SAMC 90.
In that minor civil action the applicant, Trevor John Kenny, complained that the Sturt Pistol and Shooting Club Incorporated, (the Respondent) had expelled him from membership. The applicant claimed that the respondent had engaged in conduct that was oppressive and unreasonable as provided by s 61 of the Associations Incorporation Act 1985 (‘the Act’). The applicant further claimed that the respondent had not observed the rules of natural justice as defined in s 40 of the Act. The applicant sought orders that the decision by the respondent to expel the applicant be set aside and that the applicant’s membership be reinstated.
The learned Magistrate ultimately found that although natural justice was not afforded to the applicant at the initial stages, that failure had been rectified by an appeal hearing. The learned Magistrate refused to set aside the decision to expel the applicant and did not reinstate his membership.
The applicant now applies to this Court for a review of the learned Magistrate’s decision.
Facts
I will briefly summarise the facts of the matter.
The applicant was a member of the respondent. In late 2012 the applicant became concerned about a security breach by the respondent. That security breach related to the personal details of approximately 1,000 members of the South Australian Revolver and Pistol Association Inc. (“SARPA”), including names and addresses, being disclosed to persons not authorised to have such details. The applicant proceeded to correspond with SARPA about the security breach. In late 2012 the applicant also sent correspondence to a number of pistol clubs, other than the respondent, in relation to the security breach.
On 17 June 2013 the Management Committee of the respondent met. The minutes of that meeting record under ‘business arising from correspondence’ the following: ‘Complaint re T Kenny’. On 15 July 2013 the management committee met again and the minutes of that meeting state: ‘Resolved that subject to the result of the Becker Directions Hearing a letter should be sent to Mr T Kenny expelling him from the club as a result of complaints from numerous other clubs and in line with the agreement signed by him when he joined the club’.
The respondent held its Annual General Meeting on 20 July 2013. The minutes of that meeting record that the chairperson ruled there was to be no electronic recording of that meeting other than photographs of trophy winners.
In August 2013 the respondent resolved to summon the applicant to a hearing to answer charges against him. The charges related to the unsolicited correspondence with the other pistol clubs regarding the security breach. The charges also alleged that the applicant had electronically recorded the AGM on 20 July 2013 in contravention of the ruling made by the chairperson. Throughout late 2013 and early 2014 there was considerable correspondence between the applicant and the respondent. On 14, 15 and 16 July 2014 the respondent’s Management Committee found two of the charges against the applicant proven, and by way of penalty, ordered his expulsion from the club. I will refer to this meeting as the “Management Committee Meeting.”
The applicant appealed the decision made at the Management Committee Meeting. A General Meeting was convened on 9 August 2014 to hear the applicant’s appeal. I will refer to this meeting as the “Special Appeal Meeting.” The applicant was not successful at the Special Appeal Meeting and his membership was not reinstated.
The applicant then applied to the Magistrates Court for a review of the respondent’s decision.
Magistrates Court: Grounds of Review
It is helpful to set out the power of the Magistrates Court to review the decision made by the respondent to expel the applicant from membership. Section 61(1) of the Act provides:
(1)A member or former member of an incorporated association may apply to the Supreme Court or the Magistrates Court for an order under this section on the ground that the association has engaged, or proposes to engage, in conduct that is oppressive or unreasonable.
…
(15)    For the purposes of this section –
(a)     an association has engaged, or proposes to engage, in conduct that is oppressive or unreasonable if –
(i)it has taken action, or proposes to take action, to expel a member from the association in circumstances in which the action was, or would be, oppressive or unreasonable; or
(ii)it has engaged, or proposes to engage, in conduct that was, or would be, oppressive or unfairly prejudicial to, or unfairly discriminatory against, a member or was, or would be, contrary to the interests of the members as a whole; or
(iii)the rules of the association contain, or are proposed to be altered so that they will contain, provisions that are oppressive or unreasonable;
(b)     a reference to engaging in conduct includes a reference to refusing or failing to take action.
Section 61(4) of the Act provides:
(4)The Court hearing a proceeding under this section may, if satisfied that the association has engaged, or proposes to engage, in conduct that is oppressive or unreasonable, make one or more of the following orders:
(a)     an order for regulating the conduct of the association's affairs in the future;
(b)     an order directing the association to institute, prosecute, defend or discontinue specified proceedings, or authorising a member of the association to institute, prosecute, defend or discontinue specified proceedings in the name and on behalf of the association;
(c)     an order restraining a person from engaging in specified conduct or from doing a specified act or thing;
(d)     an order requiring a person to do a specified act or thing;
(e)     an order for the alteration of the rules of the association;
(f)    an order that a former member be reinstated as a member of the association;
(g)     any other order that is, in the opinion of the Court, necessary to remedy any default, or to resolve any dispute.
Section 61(1) of the Act does not provide the Magistrates Court or the Supreme Court with the power to conduct a merits review of an association’s decision.[2] The role of the Court in such a case is to assess whether the association has engaged in conduct that is oppressive or unreasonable for the purposes of s 61. Only when a finding in the affirmative is made will such a Court be empowered to make an order in terms of s 61(4) of the Act.
[2] Ridgeway v Sporting Shooters’ Association of Australia Hunting & Conservation Branch (SA) Inc (2015) SASC 7 per Nicholson J at [159].
The Magistrates Court must also consider s 40 of the Act. Section 40 provides:
Where the committee of an incorporated association exercises any power of adjudication that it may have in relation to a dispute between its members, or a dispute between itself and members of the association, the rules of natural justice must be observed.
The rules of natural justice demand that procedural fairness apply to the decision-making process. In Plenty & Plenty v Seventh-Day Adventist Church of Port Pirie[3] Duggan J held at [92]–[93]:[4]
The requirements of procedural fairness include sufficient notice of the nature of the allegations which the plaintiffs were required to meet. The degree of particularity called for falls to be assessed against what was required in order for the plaintiffs to properly defend themselves. Particulars are also necessary in order for the decision-making body to be aware of the nature of the conduct which is the subject of the enquiry.
It must be acknowledged that in these respects domestic tribunals are not to be placed upon the same footing as criminal courts. Regard must be had to the fact that charges are laid and issues are decided by persons who are, for the most part, untrained in legal procedures. Nevertheless, natural justice requires the adoption of procedures which meet the basic requirements of proper notice, time to prepare and a fair hearing.
[3] [2003] SASC 68.
[4] Ibid.
Decision of the Magistrate
The learned Magistrate made findings of fact based on documentary evidence that was received. These findings of fact formed the background against which the evidence of the witnesses was given and findings of credit were made.
The following are facts that flow from the receipt of the documentary material before the Court. These findings are either not in dispute or are based upon evidence which I accept. I make these findings without considering the extent to which they prove the case of either party.
1On 10 October 2012 the plaintiff wrote to SARPA complaining that its security was lacking and that there had been a major breach of that security about 18 months previously.
2SARPA responded to that letter replied stating inter alia that ‘The SARPA executive confirm that all information it kept at a secure location with access granted to one authorized person only’.
3On 12 November 2012 the plaintiff again wrote to SARPA reiterating his complaints and again saying that the SARPA security arrangements were unsatisfactory.
4On 9 December 2012 SARPA wrote to the plaintiff sending him a copy of the Constitution and telling him that future correspondence ‘must’ be via the Sturt Club.
5At about that date the plaintiff wrote to a number of clubs in terms of the letter referred to earlier in these reasons – see para. 8 above and para. 9.1.1 of pleaded defence, the full content of which letter is set out below at para. 26.
6On 27 December 2012 Mount Gambier club wrote to the plaintiff advising that it had received and considered the correspondence but wishes to remain impartial. On the same date that club wrote to SARPA to the same effect.
7On 10 January 2013 the plaintiff wrote to SARPA again complaining of lack of security.
8On 30 January the plaintiff was advised by SARPA that it intended to take legal advice on the matter.
9On 28 February 2013 SARPA wrote to the plaintiff referring to his correspondence as inflammatory, saying that evidence had not been produced to support the claims and asking the plaintiff to withdraw his allegations.
10On 22 March 2013 the plaintiff sent an email to SARPA enclosing correspondence between himself and Mr Becker saying there would be no withdrawal and seeking a withdrawal by SARPA of its accusations against him.
11On 8 May 2013 SARPA by email advised that his correspondence would be referred to its lawyers.
12On 11 June 2013 Noarlunga Pistol Club wrote to the plaintiff saying it had received his correspondence, that it was ‘very concerned’ about the problem and hoping that the issue would be resolved quickly.
13On 12 June the solicitors for SARPA wrote to the plaintiff advising of steps that SARPA had taken to deal with the security issues raised by the plaintiff and saying that his correspondence with other clubs was ‘unhelpful’.
14On 16 June 2013 the Penfield Club wrote to the Sturt Club saying that the correspondence it had received from the plaintiff was ‘unhelpful’ and asking Sturt Club to ensure that there be no further mail from the plaintiff as it did ‘little more’ than to damage the reputation of the sport, the association and the Sturt Club.
15On 17 June 2013 the management committee met and the minutes of that meeting record under ‘business arising from correspondence’ the following: ‘Complaint re T Kenny’.
16On 27 June 2013 the plaintiff wrote to the solicitors for SARPA in response to their earlier correspondence.
17On 15 July 2013 the management committee met and the minutes of that meeting state ‘Resolved that subject to the result of the Becker Directions Hearing a letter should be sent to Mr T Kenny expelling him form the club as a result of complaints from numerous other clubs and in line with the agreement signed by him when he joined the club’.
18On 17 July 2013 the Mount Gambier Club wrote to the Sturt Club and said it ‘wished to express its concern’ at the unsolicited mail from the plaintiff and requesting that future correspondence be through the ‘correct channels’.
19On or about the same date as above the Maitland Cub wrote to the defendant asking it to direct the plaintiff to stop writing.
20The Club held its AGM on 20 July 2013. The minutes record that the Chair ruled that there was to be no electronic recording of that meeting other than that pictures would be allowed of trophy winners.
21I find that such a ruling was given at that meeting.
22On 20 July 2013 the plaintiff handed a note to Mr Robb, the secretary of the club, in which the plaintiff complained of the manner in which the AGM had been conducted.
23The committee of the club met on 19 August 2013 and it was then resolved that the plaintiff be summoned to a hearing to be held on 12 September 2013 ‘to answer the charges against him’.
24On 20 August 2013 a ‘notice of hearing’ was sent by the club to the plaintiff advising him of two charges against him and setting out the charges. Those charges were based upon an email from the plaintiff of 3 July 2013 and secondly upon the plaintiff’s correspondence with other clubs. He was given notice that the hearing would be on 12 September 2013.
25On 29 August the plaintiff wrote to the defendant seeking a postponement of the hearing and claiming that the allegations lacked ‘particulars’.
26On 7 September 2013 the club wrote to the plaintiff providing him with an amended notice of hearing and nominating 10 October 2013 as the hearing date.
27On 16 September 2013 the plaintiff advised the defendant that he was unable to attend a hearing on 10 October as he was travelling in the outback; he asked for other evidence to be made available to him.
28On 17 September 2013 the club gave a second amended notice of hearing nominating 13 February as the new hearing date.
29On 21 October 2013 the plaintiff sent an email to the club. In it he contested that he had done anything to prejudice the reputation of the club. In that he said inter alia: ‘I will NOT under any circumstances discuss this matter with the committee of Sturt P&SC. I will engage counsel if and when necessary’. He further said that the matter was between himself and SARPA and nothing to do with the club. But he did go on to say that he asked the club to dismiss the charges in their entirety and that he would not waive his right to engage counsel.
30On 18 November 2013 the plaintiff requested a further postponement of the hearing as he was required to give evidence in the Magistrates Court on or about 24 February 2014.
31On 25 November 2013 the club advised the plaintiff that the matter would proceed on the set date and did not accept that he had given a valid reason for a postponement.
32On 9 December 2013 the plaintiff wrote to the defendant objecting to the person proposed to be the Chair at the hearing and saying that he was unsuitable as he was a member of the committee. He further said he would not attend before he had given evidence in the matter in the Magistrates Court.
33On 24 December 2013 the defendant advised the plaintiff that they would postpone the hearing.
34On 15 June 2014 the plaintiff wrote to SARPA about the ‘leaking’ of sensitive personal information and naming Mrs Deb Rowe as the person responsible.
35On 19 June 2014 SARPA wrote to the club saying that the plaintiff had made defamatory statement about two members of SARPA. It asked the Sturt Club to ‘investigate these matters; and take appropriate action’.
36On 15 June 2014 the plaintiff wrote again to SARPA and again named Deb Rowe as the source of the ‘leaking’.
37On 5 July 2014 the defendant gave the plaintiff notice of a disciplinary hearing to be held on 17 July 2014.
38On 10 July 2014 the plaintiff wrote to the club stating inter alia that ‘I am therefore not prepared to hold any discourse with you whatsoever on this matter…’ and also saying ‘Therefore, I will not be attending any hearing at any place until the conclusion of the court case at hand’.
39On 14, 15 and 16 July 2014 the MC of the club met and found 2 of the charges against the plaintiff proven and by way of penalty ordered his expulsion from the club.[5]
[5] [2015] SAMC 90 at [17].
He then analysed the oral evidence and made findings of fact as a result.
The plaintiff makes a number of complaints concerning the decision of the MC. Insofar as he asserts that the charges were not sufficiently specific, I do not accept that. The plaintiff was put upon notice of what would be alleged as being the basis of the hearing, he was put upon notice as to the detriment that the club claimed it had suffered and told of the material to be considered by the committee.
I am satisfied and I find that the minutes accurately record what happened at the various meetings. My satisfaction arrived in part from the very favourable view that I have formed of Mr Robb. In addition to that, the format of the minutes is consistent and well expressed. There is nothing to contradict what appears on the face of the minutes.
The Chair of the meeting followed an appropriate protocol in asking whether members had a conflict of interest. Mrs Rowe and Mr Robb properly and appropriately withdrew from the meeting at relevant times. I am satisfied and I find that the committee members approached the mater in a bona fide manner and that they considered the evidence and made their decisions conscientiously. I accept the evidence that is before me that the MC members considered the possible penalties that could be imposed and voted in favour of ‘expulsion’ in good faith.[6]
[6] Ibid [68]-[69].

Having made those findings he concluded that the processes before the Management Committee (MC) had been fatally flawed due to a failure to act with procedural fairness, in that the appellant had not been given adequate notice that the meeting had been brought forward, and that the penalty had been determined without giving the appellant an opportunity to be heard.
In respect of the Appeal meeting that followed on 9 August 2014, the learned Magistrate made the following findings:
I find as follows:
1The appeal meeting was convened in accordance with the requirements of the Constitution of the Club.
2Mr Robb maintained a record of attendance on a laptop computer and the printout produced is a true and accurate record of attendance.
3In addition there was an attendance book which members who attended could sign. The document produced as an exhibit is a true copy of that document.
4The chairman made a statement to the meeting which statement was prepared in advance of the meeting and was a statement giving directions to ensure that procedural fairness principles were observed.
5Whilst there were interruptions during the course of the meeting the plaintiff was afforded the opportunity to speak and was heard. The plaintiff came to the meeting with a statement that he had prepared in advance. He was allowed to read that statement to the meeting.
6The members present knew of the issues – the minutes of the meeting record that there were separate votes on the issues of the correspondence with other clubs and the use of a tape recorder at the AGM held July 2013.
7Procedural fairness principles were observed (contrary to para. 11.1 of the claim).
8The plaintiff had adequate time to prepare his defence - the issues had been alive and known to him for 18 months or so before the appeal meeting (contrary to para 11.5 of the claim).
9Whilst the appeal meeting was rowdy and there were interruptions, the meeting was not so disorderly or irregular that what happened was to deny the plaintiff procedural fairness (contrary to para 11.7 of the claim).
10A proper record of membership was maintained – I accept the evidence of Mr Robb – contrary to para 11.8 of the claim.
11A proper ballot was held. The question of whether the vote should be by show of hands or secret ballot was put to the members and by a majority the members agreed that a secret ballot was not required. It was within the power of the Chair to direct that there be such a vote.
12Whilst at the first count of hands the vote was in favour of the plaintiff the Chair correctly did not act on that as the vote for and against did not tally with the numbers voting and the Chair was correct in directing that there be a further vote taken (contrary to para. 11.10 of the claim).
13That vote was invalid whether or not the Chair gave reasons at the time (contrary to para.11.12 of the claim).
14The address of the Chair given at the outset of the meeting was in order and designed to ensure that the meeting was properly conducted. The Chair did not address the meeting ‘to influence’ the meeting in any improper way (para. 11.12 of the claim).
15The three additional ballots were held only because the earlier votes did not reconcile the numbers who voted with the votes recorded.
16The minutes adequately document the outcome of the ballots (para.11.14 of the claim).
17The plaintiff pleads that he received no official outcome of the appeal to members – but he was present at the meeting and well knew and knows what the outcome was.[7]
[7] Ibid [83].
The learned Magistrate then found that the Chair had the power to direct that there should not be any electronic recording of a meeting contrary to the submission made by the appellant and that the process adopted at the appeal meeting had been adequate.
In respect of the penalty imposed he found that the expulsion of the appellant from the respondent was open to the members and was not oppressive or unreasonable and that the principles of natural justice had been observed.
He dismissed the application.
Review by the District Court
Section 38(6) of the Magistrates Court Act 1991 (SA) provides:
The District Court (constituted of a single Judge) may, on the application of a party dissatisfied with a judgment given in a minor civil action, review the matter.
Section 38(7) of the Magistrates Court Act governs the hearing of such a review:
The following provisions apply to such a review by the District Court:
(a) the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(b) the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c)the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
(d) in determining the matter, the Court may—
(i)      affirm the judgment; or
(ii)     rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii)     if the review arises from a default judgment or summary judgment, rescind the judgment and—
(A) substitute a judgment that the Court considers appropriate; or
(B)remit the matter to the Magistrates Court for hearing or further hearing;
(e) in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
In Harradine v District Court of South Australia[8] Blue J found that the following principles apply to a review by a District Court judge of a minor civil action with regards to s 38(7) of the Magistrates Court Act:
1.The review is not in the nature of an appeal stricto sensu.
2.The review is not necessarily a hearing de novo in that the Court is entitled to have regard to the evidence adduced before a magistrate and “may” rehear that evidence.
3.The review is not necessarily an appeal by way of rehearing in that it is a “review” (not an “appeal”), the Court may inform itself as it thinks fit, the Court must act according to the substantial merits of the case and the Court may rehear evidence without being confined by the “fresh evidence” rules which apply to appeals by way of rehearing.
4.The Court can tailor the nature of the hearing to the circumstances. In a case where the review will not turn on findings of fact or credibility of witnesses, the Court might simply have regard to the evidence adduced before a magistrate and a magistrate’s findings of fact. In a case which does turn on disputed issues of fact or credibility, the Court might simply proceed to hear the evidence afresh.
5.If the District Court concludes that a magistrate made an error vitiating the judgment and had not made findings of fact necessary to determine the matter, it will be necessary for the Court itself to hear the evidence relevant to those findings of fact (as it does not have power to remit the matter for rehearing).
6.To the extent that the Court does itself hear evidence, it should proceed in a similar manner to that provided by s 38(1), namely adopting the form of an inquiry by the Court rather than an adversarial contest between the parties. This is because s 38(7) provides that the Court may inform itself as it thinks fit and also because it would be incongruous if the District Court were to adopt a radically different approach to the hearing to that required to be adopted by a magistrate at first instance given that there is no power of remitter.
[8] Harradine v District Court of South Australia [2012] SASC 96.
Grounds of Appeal
The amended application to review a minor civil decision was filed in this Court on 6 May 2016. The applicant was not represented by legal counsel during the hearing. The applicant applies for a review of the learned Magistrate’s decision on a number of grounds. I will address each of these grounds separately.
·Ground 1:
The Magistrate at [69] of his Judgment found that with regards to the Management Committee Meeting that occurred on 16 July 2014, “the process is fatally flawed due to there having been a failure to act with procedural fairness.” The applicant contends therefore that the Magistrate should have concluded that the ultimate decision to expel the applicant must also be flawed.[9]
[9] DCT11, Minor civil review hearing before Judge Davison 9 May 2016.
This is the primary ground of review and requires the greatest consideration. The question to be asked is this: if the Management Committee Meeting was flawed in that it did not adhere to the rules of natural justice then could this deficiency be cured by the Special Appeal Meeting being conducted in accordance with such rules?
The learned Magistrate found that the Management Committee Meeting was flawed because the applicant was not afforded procedural fairness. The reasons for making that finding are outlined at [72] of the learned Magistrate’s judgment.
The plaintiff was given notice that there would be a hearing on 17 July 2014. The plaintiff was not given adequate notice that that date would be cancelled and the issue brought forward to 14 July 2014. The plaintiff was informed by email at 8.38pm and by phone at 8.45pm on that day and told he needed to appear that night. That was not adequate notice.
The reasons go on at [78]:
My sole reason for finding that those decisions should be set aside is that the meeting was brought forward from the date first given to the plaintiff, that in the circumstances he did not receive adequate notice of the hearing and that a decision as to penalty was made before the plaintiff was heard and that such notice as was given was too short.
Had the committee met on the date first advised to the plaintiff and had it then found the charges proven and had it then given the plaintiff notice of that and given him, say 14 days, to address the committee as to penalty, I would not have upheld the plaintiff’s challenge to the validity of those decisions.
I agree that the Management Committee Meeting did not accord with the rules of natural justice for the reasons given by the learned Magistrate. The effect of a failure to afford the applicant procedural fairness would similarly constitute conduct that was unreasonable and oppressive as provided by s 61 of the Act.[10]
[10] Becker v Sturt Pistol & Shooting Club Inc [2014] SADC 210 at [283]; “In short, making an arguable but nevertheless wrong decision to expel a person, particularly if for example motivated by malice or improper motives unrelated to the club’s interests, or conducting a plainly unfair hearing denying a member facing expulsion natural justice, is in my opinion potentially oppressive and unreasonable conduct within the meaning of s 61 of the Act.”
The respondent conceded that there was a failure to afford the appellant a hearing in accordance with the rules of natural justice by failing to provide adequate notice. The respondent’s outline of argument at paragraph 6 provides:
The respondent does not challenge the finding of the Magistrate that it fell into error by, having received correspondence from the applicant indicating his refusal to participate in any hearing, bringing the hearing of the charges forward from 17 July 2014 to 14 and 15 July 2014 without sufficient notice to the applicant.
The respondent submitted however that this deficiency was remedied by the respondent conducting an appeal consistent with the terms of the constitution and principles of natural justice.[11]
[11] DCT35.
There is a considerable body of law on the issue of whether a denial of procedural fairness can be cured or remedied by a second hearing. By way of summary Halsbury’s Law of Australia provides:[12]
Curing by second hearing - Where a denial of procedural fairness occurs in the making of a decision, a further hearing provided by way of internal review or by an external decision-maker may cure the defect in the original decision by affording a hearing which complies with procedural fairness. Much depends upon which decision is the operative decision, a breach of procedural fairness at an earlier stage not being capable of invalidating a second decision which is the operative decision.
[12] Halsbury's Laws of Australia, Vol 456.
The question whether a second hearing cures a defect in the first hearing can be categorised into three types of cases as follows:
(1)Cases where the second hearing is conducted by a body consisting of the same members or possibly a larger number of members but being otherwise the same body. In these cases, the defect is cured. Where the second hearing is provided by an independent tribunal and is a full de novo appeal on the facts and the law, it can either be said that the defect in the original decision has been cured, or that there is a legislative intention to exclude procedural fairness in relation to the original decision. However, a statutory appeal to an independent tribunal providing a full de novo hearing on the law and the facts may be construed by the court as indicating a limitation upon the available remedies for denial of procedural fairness rather than a legislative intention to exclude procedural fairness.
(2)In an intermediate category, the question whether the second hearing can cure a defect in the first hearing depends upon all the circumstances of the case. Factors which may be important include whether or not the appeal is restricted as to the evidence or matters it can consider and hence is not capable of curing the original defect. Another factor is whether there is a need for speedy decisions at the first stage, so as to make a court more inclined to conclude that the second hearing can cure a defect at the first stage.
(3)Cases where a fair hearing is required at both stages, a situation which arises particularly in the case of employment, trade union, dismissal and equal opportunity cases.
The Privy Council case of Calvin v Carr and Others[13] (‘Calvin’) stands for the general proposition that, in some cases, a fair appellate hearing can cure a defect stemming from a denial of procedural fairness in an original hearing. In Calvin the Court held that a hearing given by an internal appeal body, being the Committee of the Australian Jockey Club, was capable of curing a defect of an original decision given by stewards in relation to expelling Mr Calvin from the Australian Jockey Club.
Although, as will appear, some of the suggested inconsistencies of decisions disappear, or at least diminish, on analysis, their Lordships recognize and indeed assert that no clear and absolute rule can be laid down on the question whether defects in natural justice appearing at an original hearing, whether administrative or quasi-judicial, can be "cured" through appeal proceedings. The situations in which this issue arises are too diverse, and the rules by which they are governed so various, that this must be so.
There are, however, a number of typical situations as to which some general principle can be stated. First there are cases where the rules provide for a rehearing by the original body, or some fuller or enlarged form of it. This situation may be found in relation to social clubs. It is not difficult in such cases to reach the conclusion that the first hearing is superseded by the second, or, putting it in contractual terms, the parties are taken to have agreed to accept the decision of the hearing body, whether original or adjourned ….
…. At the other extreme are cases, where, after examination of the whole hearing structure, in the context of the particular activity to which it relates (trade union membership, planning, employment, etc), the conclusion is reached that a complainant has the right to nothing less than a fair hearing both at the original and at the appeal stage …[14]
[13] (1979) 22 ALR 417.
[14] Ibid p 428.
I will apply the factors considered in the case of Calvin. The present case does not concern employment, trade union membership or planning such that a deficiency in a trial body would not be capable of being cured by an appellate body. The present case concerns a pistol shooting club where members join for predominantly recreational reasons.
The Special Appeal Meeting was a rehearing by a fuller or enlarged body of the club. The document entitled “Minutes of Management Committee meeting held 14 July 2014” records that 8 people voted for expelling – 0 voted against and that J Robb and D Rowe Abstained. The Minutes of General Meeting (the Special Appeal Meeting) held on 9 August 2014 provide that on the third and operative vote the final figures were: “3 voted For, Against 47, abstentions 7.” A significantly larger number of members voted at the Special Appeal Meeting compared to those who voted at the Management Committee Meeting.
The Special Meeting had the power, as prescribed by the respondent’s constitution, to be the operative decision as to whether the applicant should be expelled from the club.
Having considered the case of Calvin, I consider that the Special Appeal Meeting was capable of remedying a defect in the Management Committee Meeting provided it was held in accordance with the rules of natural justice and s 61 of the Act.
The Special Appeal Meeting
The learned Magistrate made a number of findings as to what occurred at the Special Appeal Meeting[15]. The applicant submits that many of these findings are erroneous on various grounds. For completeness, I think it is necessary to consider each of these grounds separately. I will refer to the findings made by the learned Magistrate where relevant to the submissions made by the applicant.
· Ground 7
With regards to the Special Appeal Meeting, the applicant submits that the Magistrate erred in that he failed to take account that the minutes of the special general meeting were not accurate.[16]
[15] See [83].
[16] DCT11L7.
I have considered the document headed “Sturt Pistol & Shooting Club Inc. Minutes No GM20140809.docx Minutes of General Meeting held 9^th August 2014.” I accept that Mr John Robb prepared this document. The applicant submitted that the minutes are not complete and that no reasonable person could make conclusions as to what actually happened at the Special Appeal Meeting based on them.[17] The applicant also submitted that there were problems with Mr Robb’s evidence in the Magistrates Court hearing, such that no reasonable person could conclude that Mr Robb recorded the minutes of the meeting accurately.[18] The applicant submitted that in particular the minutes omit a speech made by the applicant at the meeting.[19] I note from the minutes however that they do record a dispute regarding the recording of this same speech.
[17] DCT28L18.
[18] DCT5L3-16.
[19] DCT9L17 and T5L13.
The learned Magistrate said at paragraph [45] of the judgment:
The minutes in my view are perfectly adequate. This is a club run by volunteers. It is an important club and carries out a valuable function within the community but it is not a business organisation.
I agree with the learned Magistrate. The minutes are adequate for their purpose. Inferences of what actually occurred at the Special General Meeting can be drawn from their contents. If there was some evidence that the minutes do not properly record a substantive issue, such as the actual results of the votes against the applicant, then this would be another matter. Nevertheless, these key findings have not been disputed by the applicant. I see no reason to depart from the findings of the learned Magistrate in this regard.
· Grounds 8 and 10
With regards to the Special Appeal Meeting, the applicant contends that the Magistrate erred in that he failed to consider that the applicant was not afforded the option of a secret ballot at the special general meeting.[20]
[20] DCT5L35 and T6L1-14. Also on the amended Grounds 8 -10.

The Special Appeal Meeting was convened pursuant to s 18 of the respondent’s constitution. Section 18 of the constitution provides:
18.     Appeals
(a)     Any member who has been fined, suspended, disqualified or expelled shall have the right of appeal against such penalty, but such appeal must be lodged with the Secretary within 21 days of notice being given to that Member. If any such appeal should be lodged, a General Meeting shall be held within 21 days of receipt of the notice of appeal, at which meeting the penalized member shall be summoned and who shall be entitled to explain his or her actions or answer the charges.
(b)     Should the meeting not be unanimous in its decision on such appeal, a vote shall be taken and unless 75 per cent of the entitled members present vote against the appeal, such appeal shall be upheld and the member reinstated.
Section 43 of the respondent’s constitution provides:
…. In the absence of rules in this Constitution or in the by-laws of the Club the proceedings of the club's committee and management meetings and annual and general meetings, shall be conducted in accordance with the current edition of the book published by Anthony David Lang entitled, 'Horsley's Meetings: Procedure, Law and Practice published by LexisNexis Butterworths'.
The applicant tendered a current edition of Horsley's Meetings: Procedure, Law and Practice (‘Horsley’s Meetings’). The applicant submitted that the respondent could not refuse the applicant’s request for the votes at the Special Appeal Meeting to be conducted by secret ballot.[21] I am unable to find any reference to the mandatory requirement for a secret ballot upon the request of a member in “Horsley’s Meetings” except in relation to a poll. Indeed to the contrary there is reference to the common law method of voting being by a show of hands.[22] A poll is usually conducted where there is a need for votes to be cast by reference to varying voting powers or where there are absentee voters and then it is done in writing. It is not a secret ballot. Although there is reference in “Horsley’s Meetings” to a secret ballot being used in relation to the expulsion of a member this is not mandatory.[23] There is a specific reference[24] in the constitution to a secret ballot being held for the election of office bearers but no such provision in respect of the expulsion.
[21] DCT7L28.
[22] Horsley’s Meetings para 14.4.
[23] Ibid para 14.7.
[24] SP & SC Constitution s 23.
Neither the respondent’s constitution nor Horsley’s Meetings required the vote taken at the Special Appeal Meeting to be conducted by secret ballot nor is there any right for the appellant to demand a secret ballot. There is no error by the learned Magistrate relation to this ground.
· Further Ground:
That the Magistrate failed to adequately consider whether the committee members had actually based their decision to expel the applicant based on the letters that were sent to the other clubs by the applicant, or whether it was based on some other matter.[25]
[25] DCT13L26.
The learned Magistrate did consider the grounds on which the committee members made their decision to expel the applicant. At [82.6] of the Judgment the learned Magistrate makes the following finding:
The members present knew of the issues – the minutes of the meeting record that there were separate votes on the issue of the correspondence with other clubs and the use of the tape recorder at the AGM held July 2013.
I do not think it is necessary for the respondent to prove that each person who voted at the Special Appeal Meeting actually saw the correspondence that resulted in the applicant being expelled from the respondent club. If there was some evidence or suggestion that the respondent had concealed the correspondence or made misrepresentations about its contents, then this would be another matter. However, such considerations do not arise in the case before me. It is adequate for present purposes for the respondent to demonstrate that those voting at the Special Appeal Meeting were aware of the issues and the grounds for the expulsion of the applicant.
The Minutes of the Special Appeal Meeting state that separate votes were taken in relation to the correspondence sent to other clubs and the use of the tape recorder at the AGM. The members of the respondent club were sent a letter titled “Notice of General Meeting” dated 28 July 2014. The attachment to that document discloses the reasons why the Management Committee resolved to expel the applicant from the club. This was sufficient to allow the members to form a view in good faith to vote as they did at the Special Appeal Meeting. There is no error made by the learned Magistrate.
· Ground 3
The Magistrate erred in that he did not take into consideration that the correspondence between the applicant and the other clubs, had nothing to do with the Sturt Pistol and Shooting Club.[26]
[26] DCT16L1.
The learned Magistrate did consider the correspondence between the applicant and the other clubs. At [88] of his judgment, the learned Magistrate said:
I have regard to the correspondence received by the club. I have earlier summarized the letters. When the content of the letters from Penfield Club of 16 June 2013, from Mount Gambier Club of 17 July 2013 and from the Maitland Club are considered it is evident that those clubs objected to the plaintiff’s unsolicited correspondence and believed that, if he wrote at all, that he should have written via the club secretary. The club committee and the membership at the appeal meeting could genuinely and in good faith form the view that the plaintiff’s conduct was action detrimental to the interests of the club. I am satisfied and find that the management committee and the members at the appeal meeting did in good faith form that view.
I agree with the reasoning of the learned Magistrate in this regard.
· Further Ground:
The Magistrate erred in that he denied the applicant the right to cross-examine Mrs Rowe on new evidence being exhibits R8, R9 and R10.[27]
[27] DCT18L35 (each exhibit tendered at pages 171 and 172 of Magistrate Court hearing transcript).
The applicant complains he was only provided with a copy of R8 after the exhibit was tendered. The applicant complains that he was not provided with copies of R9 or R10. None of these documents were provided to the applicant in discovery.
The Magistrates Court rules 2013 provides:
20. (1) A person intending to bring an action may, by notice in writing to another person, request the other person to make discovery, and disclose the present whereabouts, of any document or property that is relevant to the proposed action.
Where the failure of a successful party to have made proper discovery only comes to light on an appeal it does not mean that the appeal has to succeed but only that the Appeal Court will carefully scrutinize the additional documents to see whether their availability at trial could have made a difference.[28]
[28] Commissioner of Main Roads v Jones (2005) 215 ALR 418, 84.
R8 is described as a statement of Deborah Kaye Rowe tendered by Mr Redden.[29] This was a statement read in Court by Mrs Rowe during her examination in chief.[30] The document also has annexed to it correspondence between the applicant and SARPA.
[29] MCT171.
[30] MCT171L11.
R9 is a letter from Crawford Legal dated 26 September 2014.[31] The letter states that Crawford Legal represent SARPA. The letter is addressed to the Senate Legal & Constitutional Affairs Committee. The letter requests an extension of time to make a further submission to the committee. The request is in response to the applicant making a submission to the committee. I note in the transcript that there is some discussion that R9 could be privileged.[32]
[31] MCT171.
[32] MCT170L5.
MFI R10 is an email from Ian Horne to Deborah Rowe dated 13 July 2014.[33]
[33] MCT172.
Having considered these documents I do not think that if they had been discovered to the applicant then they would have made a difference at the trial. None of the documents contain anything of material interest to suggest that the respondent failed to provide the applicant procedural fairness or that the respondent has acted in contravention of s 61 of the Act. There is no substance to these claims.
· Ground 2
The Magistrate erred in that he did not refer to the matter of Becker v Sturt Pistol and Shooting Club 2014 SADC 2010.[34] The Magistrate erred in that he did not consider the Listening and Surveillance Devices Act 1972.[35]
[34] Amended Appeal Ground 2 and DCT25L2 and T32L2.
[35] DCT27L29 and Ground 2.
The learned Magistrate provides his reasons for not referring to the above mentioned matter at [4] of his Judgment:
There has been previous litigation relating to a dispute between another member of the club and the club itself. That dispute ended up in Court with a hearing in the Magistrates Court and subsequently by way of review in the District Court. The applicant in those proceedings was Klaus Becker who has given evidence in these proceedings. I have taken the view that I must decide the present matter based upon the evidence which is before me and nothing else. I was urged by the applicant in this action to have regard and also on review in the District Court including findings by the judicial officers concerned as to the credit of witnesses. I made this ruling based upon the view that I cannot be bound by the views as to credit expressed in those other forums. I decide this case solely upon the evidence that is before me.
In the case referred to by the applicant a number of the same witnesses gave evidence by statement. Some were called to give evidence on oath and to be cross-examined. That case also concerned allegations against the respondent that it had engaged in conduct that was oppressive and unfair pursuant to s 61 of the Act. However, it was not the same conduct complained of by the applicant in the present case. The expulsion of the applicant in the present case by the respondent was not being considered in that case. Therefore it would not be appropriate to consider the findings made by the District Court or the Magistrates Court in relation to the other matter concerning credit of witnesses or the ultimate findings. The Magistrate was correct to not consider the case referred to.
The applicant submitted that his conduct to record the 2013 AGM in contravention of the Chairman’s direction was not an unlawful act as provided by the Listening and Surveillance Devices Act (SA) 1972. The applicant submitted that as the act was not unlawful it was not sufficient grounds for the respondent to expel the applicant. This is a higher test than that which needed to be applied. The learned Magistrate correctly considered whether the applicant’s conduct in recording the AGM in contravention of the Chairman’s decision was an act that was capable of being considered detrimental to the interest of the club or its members by those members who voted at the Special Meeting. The learned Magistrate provided at [89]:
With respect to the attempt to record the AGM against the ruling of the Chair, the position in my mind is clear cut. The AGM in 2013 was obviously an important and potentially contentious meeting. It was important that those present should feel free to express their views and opinions openly. If it was known that everything said was to be recorded, common sense says that the freedom of expression by members may have been curtailed. But more important than that is the consideration that the conduct of the plaintiff was an action in defiance of the Chair. It was conduct detrimental to the club in that it undermines the confidence that members should be able to have in each other.
On this point the learned Magistrate did not fall into error.
· Further Ground
That the Magistrate did not consider whether the respondent had complied with the Code of Conduct.[36]
[36] DCT28-31.
During the hearing before this Court the applicant tendered the Pistol Australia Inc (‘PA’) Code of Conduct (‘The Code’). Mr Robb submitted that the respondent operates by the Code. For present purposes, it is not necessary to consider whether the respondent was bound by the Code, nor whether the respondent breached the Code. The Code provides:
PA reserves the right to take any and all appropriate disciplinary action against any person and/or organisation bound by the Code if breached.
Pistol Australia is the appropriate forum to decide whether a person bound by the Code has breached it. In some circumstances a sporting body’s decision may be appealed to the Courts and that decision subject to judicial review. However those grounds are quite limited and for present purposes not necessary to consider.[37]
· Further Ground
The Magistrates Court did not consider the applicant’s good character.[38]
[37] See generally Kosla M, “Disciplined for ‘Bringing a Sport into Disrepute’: A Framework for Judicial Review” (2001) 25 MULR 654.
[38] DCT32L8.
Section 61(1) of the Act does not provide the Magistrates Court or the Supreme Court with the power to conduct a merits review of an association’s decision. There was no requirement to consider the character of the applicant.
· Ground 9
The Magistrate gave undue weight to the evidence of Mr John Robb[39] and Mrs Deb Rowe in that the Magistrate failed to consider that the witnesses were present in Court during the proceedings[40] and the Magistrate did not recognise the inconsistencies in their evidence.
[39] DCT3L33.
[40] DCT39L32.
The applicant submitted that the witnesses were present in Court during the proceedings.^[41] The respondent submitted that Mr Robb and Mrs Rowe were not in the Court when other witnesses were giving evidence.
[41] DCT39.
I have considered the Magistrates Court hearing transcript on this point. I note the following passages from the transcript:
·T18L36 - His Honour: “But what I’m going to do is I’m going to get all the other witnesses in and have a chat to them and tell them they don’t need to be back until 2:15pm.”
I assume from this statement that the other witnesses in the trial were not present in the Court before this.
·T23L4 - His Honour invites the witnesses in to Court to address them.
·T24L24 - His Honour: “…it’s not possible really to permit you to be in court before you’re giving your evidence. That’s to protect everybody. To protect you the witness from any suggestion that “Ah you’ve been sitting in court listening so you know what to say.” I want your evidence to come out just your own evidence. If it’s consistent with that of another witness or inconsistent so long as it’s your evidence to the best of your knowledge truthful and it makes it much more believable if you come in like that not having heard what somebody else has said it being suggested that you bent the truth a bit to fit in.”
·T25L19 - His Honour: “Everybody else leave save Mr Becker and Mr Harris can come forward and sit at the front.”
This statement appears to have been made addressing the body of the Court and the potential witnesses who were present in the Court at the time.
·T68L25 - His Honour addresses Ms Tillmanns after she has given evidence and says “You can stand down and I see no reason now that you’ve given your evidence why you can’t stay and listen to others if you wish to.”
·T69L29 - His Honour addresses Ms Tillmans: “I’ll do the same with the other witnesses but that’s subject to this risk. There’s a risk that something might arise later that I need to call you back. The evidence might be a bit contaminated. I think the risk is very slight so I’ll leave it to you. If you’d like to stay and listen that’s fine, but subject to one other thing, you are not to discuss with other witnesses who have yet to be called, any evidence that you now hear…”
·T80L14 - His Honour addressing Ms Becker: “By the way, Ms Becker, I have been telling other witnesses, once they have given their evidence, if they want to stay and listen I don’t think there is an issue about that, except for this proviso, that you are not to discuss your evidence or other evidence that you hear of witnesses who are yet to be called. On that understanding I will permit you to be here.”
·T92L8 - His Honour addressing Mr Kinlay: “If you wish to stay and hear other evidence you can so long as you don’t discuss the evidence with another witness or potentional witness.”
·T106L15 - Mr John Robb and Mr Klaus Becker are invited into Court.
This suggests these witnesses were outside during the rest of the day.
·T120 - Mr John Robb called as a witness.
·T157 - Mr John Robb released.
·T159 - Mrs Deb Rowe called as a witness.
·T195 - Mrs Deb Rowe released.
From the passages of the transcript I have referred to, I find that the learned Magistrate did not err in the manner submitted by the applicant such that the witnesses were present in the Court during the proceedings. It appears clear from the transcript that the learned Magistrate only permitted witnesses to be present in the Court room once they had finished giving their evidence. The learned Magistrate gave appropriate warnings that the witnesses were not to discuss their evidence with any other witnesses. There is no evidence to suggest that any of the witnesses did discuss their evidence with other witnesses. There is no evidence to suggest that Mr John Robb or Mrs Deb Rowe were present in the Court whilst other witnesses were giving their evidence. I also note that neither Mr John Robb nor Mrs Deb Rowe were recalled after giving evidence.
The learned Magistrate did make favorable findings of credit in relation to the evidence of Mr John Robb and Mrs Deb Rowe. The applicant’s primary concern seems to be in relation to the evidence given by each witness of what occurred at the Special Appeal Meeting.
There exists an established principle that a finding of fact by a trial judge when based on the credibility of a witness, may only be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the judge’s conclusions are erroneous or where it is concluded that the decision at the trial was glaringly improbable or contrary to compelling inferences in the case.[42]
[42] Fox v Percy (2003) 214 CLR 118.
Having heard the submissions made by the applicant and having considered the transcript from the Magistrates Court hearing I do not think that such a case is made out. The inconsistencies complained of by the applicant are quite minor. The learned Magistrate was entitled to make the findings of credit that he did.
I note that per s 38(7)(c) the District Court in a minor civil review may, if it thinks fit, re-hear evidence taken before the Magistrates Court. In the circumstances, I do not think that recalling the witnesses is required.
There were a number of grounds that went to the merit of the decision made by the respondent. It is not the function of this court to consider the merits of the decision as I have indicated earlier. I have not done so.
I can detect no error in the judgment or the reasons of the learned Magistrate. I therefore affirm the judgment and dismiss the appeal.
There is no order as to costs.