McNeill v The Australian Children's Choir Incorporated
[2022] VMC 30
•2 November 2022
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
Case No. M10102383
| SUSAN JOY MCNEILL | Plaintiff |
| v | |
| THE AUSTRALIAN CHILDREN’S CHOIR INCORPORATED and CARMEL SCOTT | First Defendant Second Defendant |
---
MAGISTRATE: | Magistrate T. W. Greenway |
WHERE HELD: | Melbourne Magistrates’ Court |
DATE OF HEARING: | 24 - 26 October 2022 |
DATE OF DECISION: | 2 November 2022 |
CASE MAY BE CITED AS: | McNeill v The Australian Children’s Choir Incorporated |
MEDIUM NEUTRAL CITATION: | [2022] VMC 30 |
---
INCORPORATED ASSOCIATION – whether Plaintiff a member – alleged oppressive conduct – appropriate relief.
---
APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Mr D. Mortimer | DF Mortimer & Associates |
| For the Defendant | Ms S. Hooper | Gilchrist Connell |
HIS HONOUR:
Introduction
The plaintiff (McNeill) was a member and committee member of the Australian Children’s Choir Inc (Association), an entity incorporated under the Associations Incorporation Reform Act 2012 (Act).
The Association is an important non-for-profit organisation that provides children with musical education, training, and performance experience. It is regulated by Rules dated November 2016 (the Rules).
At a special general meeting of the Association convened on 13 August 2020, McNeill was suspended and consequently, was not permitted to attend or vote at an annual general meeting of the Association held on 7 November 2020 (AGM).
McNeill alleges that the purported suspension was oppressive conduct within the meaning of s 68 of the Act and that the Association contravened s 61 of the Act by prohibiting McNeill from participating in the AGM.
Since commencing this proceeding, McNeill has resigned as a member of the Association and does not wish to be reinstated. [1] Instead, McNeill seeks orders that:
(a) the Association pay a pecuniary penalty of $3,304.40 for the alleged contravention of s 61 of the Act; and
(b) the Association publish a statement to its membership to the effect that: “The Australian Children’s Choir Inc confirms Susan McNeill was authorised to access children’s medical records as Performance Coordinator and it regrets any suggestion made by the Australian Children’s Choir Inc or its officers that she was not so authorised”.
[1]Exhibit P1, 596.
The Association denies these allegations. First, it contends that McNeill has no standing to seek a pecuniary penalty for a contravention of the Act. Secondly, it maintains that McNeill was not a member on 13 August 2020 and that her suspension related to her role as Performance Co-ordinator and committee member. In those circumstances, the Rules governing disciplinary procedures and suspension of members did not apply to McNeill.
Alternatively, if the Court concluded McNeill was a member, the Association accepted that the disciplinary process under the Rules had not been followed.
Standing to seek pecuniary penalty
The question of McNeill’s standing to seek a pecuniary penalty under the Act is a matter of statutory interpretation.[2] Section 61 of the Act provides as follows:
[2]R v A2 [2019] 269 CLR 507, 32.
61 Rights of member to attend and vote at general meeting
(1) At any general meeting of an incorporated association, the association must not do anything with the intention of preventing –
(a) any member of the association from attending the meeting; or
(b) any member who is entitled to do so from voting at the meeting.
Penalty: 20 penalty units.
(2) Subsection (1) does not apply in relation to a member of the association whose rights as a member have been suspended under the rules of the association.
(3) A contravention of subsection (1) by an incorporated association constitutes oppressive conduct by the association for the purposes of section 68(1)
Note
Under section 68, a member of an incorporated association who believes that the association has engaged or proposes to engage in oppressive conduct may apply to the Magistrates’ Court for an order seeking relief from the conduct. [3]
[3]Associations Incorporation Reform Act 2012, s 61.
McNeil submits that, as a member of an association, she has standing to seek an order under section 61 of the Act. Her submissions were as follows.
Under Part 14, the Act makes provision for infringement notices. No-one other than the Registrar, an authorised officer or an inspector may issue an infringement notice for an offence against the Act or its regulations. [4]
[4]Associations Incorporation Reform Act 2012, Part 14.
Section 212 provides:
(1) An authorised officer may serve an infringement notice on any person who the officer has reason to believe has committed an offence against this Act or the regulations that is prescribed for the purpose of this subsection.
(2) An offence referred to in subsection (1) for which an infringement notice may be served is an infringement offence within the meaning of the Infringements Act 2006.
(3) For the purposes of subsection (1), an infringement notice must –
(a) be in the form required by the Infringements Act 2006; and
(b) include details of the additional steps (if any) required to expiate the offence.
(4) Despite anything to the contrary in the Infringements Act 2006, a notice under subsection (1) may be served on an incorporated association in accordance with this section.
(5) The Registrar may, in writing, authorise a person to serve infringement notices under this section.
(6) In this section –
authorised officer means –
(a) the Registrar;
(b) a person authorised by the Registrar under subsection (5);
(c) an inspector;
Person includes an incorporated association. [5]
[5]Ibid, s 212.
Section 18 of the Associations Incorporation Reform Regulations 2012 (Regulations) then states what prescribed offences may be subject to infringement notices. These offences are set out in Schedule 3:
18 Infringement notices for prescribed offences
(1) For the purposes of Division 2 of Part 14 of the Act –
(a) an offence committed against a provision of the Act specified in Column 2 of Schedule 3 and described opposite in Column 3 is prescribed as an infringement offence; and
(b) the prescribed infringement penalty for the infringement offence is the amount specified opposite in Column 4 of Schedule 3.
(2) A description of an offence in Column 3 of Schedule 3, opposite a provision specified in Column 2, is for convenience of reference only and is not to be taken to affect the nature or elements of the offence to which it refers or the operation of these Regulations. [6]
[6]Associations Incorporation Reform Regulations 2012, s 18.
Importantly, Schedule 3 does not prescribe section 61 as an infringement notice offence.
In the absence of any provision in the Act, section 194 of the Australian Consumer Law and Fair Trading Act 2012 (ACLFTA) sets out who may bring proceedings for various offences under “Consumer Acts”.
Who can bring proceedings for offences?
(1) Proceedings for an offence against this Act or the regulations under this Act or a Consumer Act[7] or the regulations under that Act may only be brought by—
[7]Consumer Act means an Act listed in Schedule 1 of the Australian Consumer Law and Fair Trading Act 2012 (ACLFTA).
(a) the Director [of Consumer Affairs Victoria]; or
(b) a person authorised by the Director for the purposes of this section.
(2) In proceeding for an offence against this Act or the regulations under this Act or a Consumer act or the regulations under that Acct it must be presumed, in the absence of evidence to the contrary, that the person bringing the proceedings was authorised to bring the proceedings.
(3) This section does not apply to proceedings for an indictable offence.
(4) Subsection (1) does not apply to a Consumer Act or the regulations under a Consumer Act if express provision is made in that Act specifying who may bring proceedings for offences against that Act or the regulations under that Act. [8]
[8]Ibid, s 194.
Schedule 1 of the ACLFTA includes the Act.
McNeill contended that s 194(1) did not apply. It was submitted that, when construed as a whole, s 61(3), the accompanying note, and s 68 specified McNeill as a person ‘who may bring proceedings for offences against the Act’. This was because section 68 expressly conferred standing on association members and former members to commence proceedings against an association for oppressive conduct. By 61(3), a contravention of s 61 was oppressive conduct and a member could therefore prove a contravention.
As McNeill had commenced proceedings pursuant to section 68, she had standing to seek an order under section 61 if the Court determined such a penalty was appropriate.
The Association advanced an alternative interpretation. It submitted that proceedings for an offence under the Act may only be brought by the Director of Consumer Affairs or a person authorised by the Director.
It was submitted that, for s 194(1) of the ACLFTA to have no application, the Act must make “express provision… specifying who many bring proceedings for offences against that Act”. Nothing in the Act or s 61 itself satisfied this requirement.
The Association summarised its position as follows:
(a) section 61 does not specify who many commence proceedings for an offence against s 61(1);
(b) the Act also does not otherwise specify who may commence proceedings for offences against it;
(c) in those circumstances, s 194(1) of the ACLFTA applies and limits the person who can commence civil proceedings for offences against the Act to the Director of Consumer Affairs Victoria and persons authorised by the Director for the purposes of s 194(1).
Determination
In my opinion, the interpretation advanced by the Association should be preferred. Only the Director or a person authorised by the Director, is conferred standing to pursue a civil penalty for contravention of s 61 of the Act.
Contrary to McNeill’s submissions, I do not consider that s 61(3) read together with the note and s 68 constitute an express provision identifying who may commence a proceeding within the meaning of s 194(4). The bar in s 194(1) therefore operates.
The words in s 194(4) are clear and unequivocal. Section 61(3) itself does not contain express words specifying who may bring proceedings for offences against the Act. Rather, it states that a contravention of s 61(1) constitutes a form of oppressive conduct for the purposes of s 68. The note then provides a summary of a member’s right to apply to the Magistrates’ Court for relief against oppressive conduct. The Magistrates’ Court’ broad powers to make orders in relation to oppressive conduct are set out in s 68(4):
Section 68(4) provides:
(4) On hearing the application, the Magistrates’ Court may, if satisfied that the incorporated association has engaged, or proposes to engage, in oppressive conduct, 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 do so 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) an order terminating a person’s membership of the association;
(h) subject to subsection (5), any other order that is, in the opinion of the Court, necessary to remedy any default or resolve any dispute.
(5) The Magistrates’ Court must not make an order that an incorporated association be wound up. [9]
[9]ACLFTA, s 68 (4).
These provisions support the conclusion that ss 61 and 68 are distinct causes of action. As the note intimates, a member may apply to the Magistrates’ Court for relief against oppressive conduct. A sub-category of such conduct is a contravention of s 61. Therefore, conduct which contravenes s 61 may also amount to oppressive conduct and an aggrieved member may rely upon s 61(3) when claiming relief from oppression.
In such a circumstance, the Court is empowered to order appropriate relief to redress the conduct pursuant to s 68(4).[10] However, a pecuniary penalty is not specified. Nor is such a penalty ‘necessary to remedy any default or resolve any dispute’ arising from oppressive conduct.
[10]Moala v Free Wesleyan Church of Tonga in Australia (Victoria) Inc (No4) [2020] VSC 50, 33.
Furthermore, McNeill cannot utilise the presumption of authorisation set out in s 194(3). On 6 December 2021, General Counsel, Regulatory Transaction Services for the Department of Justice and Community Safety wrote the parties as follows:
We refer to your email of 2 December 2021 in relation to the above matter.
We understand that whether the Director of Consumer Affairs Victoria (Director) is required to give authorisation under section 194(1) of the Australian Consumer Law and Fair Trading Act 2012 (Vic) (ACLFTA) to bring proceedings for offences against the ACLFTA or the Associations Incorporation Reform Act 2012 in this matter is a live issue and a question currently before the Magistrates’ Court of Victoria (MCV).
If it assists the MCV, we confirm, following a search of our records, it would appear that the Director has not given authorisation under section 194(1) of the ACLFTA in relation to this matter – assuming the MCV determines that such approval is required. [11]
[11]Exhibit P1, 597.
For those reasons, I do not consider McNeill has standing to seek the imposition of a pecuniary penalty.
McNeill’s Membership Status
The basis of McNeill’s claim is that she was an “association committee member”, holding the position of Association Performance Co-ordinator.[12] In opening, McNeill clarified that she was also relying upon the category of ‘staff membership’ under the Rules.
[12]Ibid, 6.
The Association asserts that McNeill was not a member in August 2020.
Rule 8 identifies who is eligible to be a member of the Association. It provides:
(1) Appointed Member
Any person who has been granted appointed membership status by the Committee and may or may not pay a fee to the Association as determined by the Committee.
(2) Family member
Any person who supports the purposes of the Association and is one parent/guardian of a chorister (ie one enrolled chorister has one adult membership through the payment of enrolment fees and annual subscription is eligible for family membership).
(3) Lifetime member
Any person who has been granted lifetime membership status by the committee and does not ay an enrolment fee to the Association.
(4) Staff member
Any person who is currently contracted to work for the Association and does not pay an enrolment fee to the Association. [13]
[13]Rules dated November 2016, Rule 8.
A person may apply to become a member of the Association in accordance with Rule 9:
(1) To apply to become a family member of the Association, a person must submit a written application to a committee member stating that the person—
(a) wishes to become a member of the Association; and
(b) supports the purposes of the Association; and
(c) agrees to comply with these Rules.
(2) The Committee will consider applications for Appointed or Lifetime membership in written form from any member outlining their rationale regarding quality and length of service to the Association or skills to support the purpose of the Association. The decision to appoint Appointed and Lifetime membership is solely at the discretion of the Committee.
(3) The Committee will engage staff from time to time. Details of their membership must be included in their letter of engagement. [14]
[14]Ibid, Rule 9.
Upon receipt of an application for membership, the Committee must consider the application pursuant to rule 10:
(1) As soon as practicable after an application for family lifetime or appointed membership is received, the Committee must decide by resolution whether to accept or reject the application.
(2) The Committee must notify the applicant (in the case of family membership) or nominating member (in the case of appointed or lifetime membership) in writing of its decision as soon as practicable after the decision is made.
(3) If the Committee rejects the application, it must return any money accompanying the application to the applicant.
(4) No reasons need be given for the rejection of an application. [15]
[15]Rules dated November 2016, Rule 10.
The new membership commences as set out in Rule 11:
(1) If an application for family, appointed or lifetime membership is approved by the Committee, or a person is engaged as a staff member –
(a) the resolution to accept the membership must be recorded in the minutes of the committee meeting; and
(b) the Secretary must, as soon as practicable, enter the name and address of the new member, and the date of becoming a member, in the register of members.
(2) A person becomes a member of the Association and, subject to rule 13(2), is entitled to exercise his or her rights of membership from the date, whichever is the later, on which –
(a) the Committee approves the person’s membership; or
(b) the person pays the joining fee. [16]
[16]Ibid, Rule 11.
A joining fee and an annual subscription fee are also payable under Rule 12. No reliance is placed on this rule.
Rule 13(2) then provides:
A member is entitled to vote if—
(a) the member is a member; and
(b) more than 10 business days have passed since he or she became a member of the Association; and
(c) the member’s membership rights are not suspended for any reason. [17]
[17]Rules dated November 2016, Rule 13 (2).
The Rules also contain an express rule concerning the cessation of membership:
15 Ceasing membership
(1) The membership of a person ceases on resignation, expulsion or death.
(2) If a person ceases to be a member of the Association, the Secretary must, as soon as practicable, enter the date the person ceased to be a member in the register of members. [18]
[18]Ibid, Rule 15.
Part 5 of the Rules relates to the Committee. Rule 43 set outs the composition of the Committee as follows:
(a) a President; and
(b) a Secretary; and
(c) a Treasurer; and
(d) a Performance Coordinator; and
(e) up to 4 ordinary members
(f) the Artistic Director (who is appointed). [19]
[19]Ibid, Rule 43.
Division 3 of the Rules provides for the election of committee members and their tenure of office:
48 Who is eligible to be a Committee member
A member is eligible to be elected or appointed as a committee member if the member –
(a) ifs 18 years or over; and
(b) is entitled to vote at a general meeting.
49 Position to be declared vacant
(1) This rule applies to –
(a) …
(b) any subsequent annual general meeting of the Association, after the annual report and financial statements of the Association have been received.
(2) The Chairperson of the meeting must declare all positions on the Committee vacant and hold elections for those positions in accordance with rules 50 to 53.
50 Nominations
(1) Prior to the election of each position, the Chairperson of the meeting must call for nominations to fill that position.
(2) An eligible member of the Association may—
(a) nominate himself or herself; or
(b) with the member’s consent, be nominated by another member.
(3) A member who is nominated for a position and fails to be elected to that position may be nominated for any other position for which an election is yet to be held.
51 Election of President etc.
(1) At the annual general meeting, separate elections must be held for each of the following positions—
(a) President;
(b) Secretary;
(c) Treasurer;
(d) Performance Coordinator.
(2) If only one member is nominated for the position, the Chairperson of the meeting must declare the member elected to the position.
(3) If more than one member is nominated, a ballot must be held in accordance with rule 53.
(4) …
54 Term of office
(1) Subject to subrule (3) and rule 55, a committee member holds office until the positions of the Committee are declared vacant at the next annual general meeting.
(2) A committee member may be re-elected.
(3) A general meeting of the Association may—
(a) by special resolution remove a committee member from office; and
(b) elect an eligible member of the Association to fill the vacant position in accordance with this Division.
58 Vacation of office
(1) A committee member may resign from the Committee by written notice addressed to the Committee.
(2) A person ceases to be a committee member if he or she –
(a) ceases to be a member of the Association; or
(b) fails to attend 3 consecutive committee meetings (other than special or urgent committee meetings) without leave of absence under rule 66; or
(c) otherwise ceases to be a committee member by operation of section 78 of the Act. [20]
[20]Rules dated November 2016, Division 3.
McNeill’s membership of the Association commenced in 2011 when her daughter joined as a chorister.
More recently, by resolution passed at a special general meeting of the Association held on 13 May 2017, McNeill[21] was appointed the Performance Coordinator. [22] The agenda for that meeting included an item for the “application for membership Susan Wade”. [23]
[21]Then Mrs Susan Wade.
[22]Exhibit P1, 138.
[23]Exhibit P1, 139.
On 18 December 2018, McNeill wrote an email to the Committee concerning her membership of the Association. That email read as follows:
Dear All,
With the end of the year rapidly approaching I would like to clarify my membership with the ACC. I will no longer be an eligible family member as of 31 December 2018 with Greer’s resignation.
I can either be eligible as:
an appointed member (if my application for an appointed membership is approved and I am granted membership status by the committee a resolution to accept must be recorded in the Minutes of a Committee Meeting) or as a contracted staff member (I must be currently contracted to work for the Association and details of membership recorded in a letter of engagement or contract).
It is my intention to continue with The ACC next year on as Saturday rehearsal support (paid or unpaid) and on the COM until at least the 2019 AGM and at this stage probably continuing (if elected to the COM at the 2019 AGM).
Please let me have your thoughts so I can either apply to be an appointed member or enter into a staff contract before the end of the year. [24]
[24]Exhibit P1, 551.
Maureen Milton, President of the Association responded: “either way id [sic] good Sue, thank you.”
In 2018, McNeill’s daughter re-joined as a chorister.
On 25 May 2019, an annual general meeting of the Association was convened. The minutes of that meeting recorded the following resolution:
Election of Office Bearers for the calendar year 2019. Amanda Bendle Training Choir Manager. As no other nominations were received prior to AGM, the following nominees were appointed to The Committee of Management for 2019:
Chairperson: Maureen Milton OAM
Secretary: Carmel Scott
Treasurer: Sze Tan
Performance Coordinator: Susan Wade [McNeill]
General Members: Flora Liu, Helen Finlay. [25]
[25]Exhibit P1, 326.
In or around February 2019, the Association engaged McNeill to assist with choir rehearsals and performances. No formal employment contract was executed. Instead, McNeill invoiced the Association for her services as a contractor and was paid as agreed by the Committee. [26]
[26]Exhibit D1.
McNeill provided services to the Association until approximately March 2020. Then the COVID-19 pandemic and lockdowns intervened. The in-person rehearsals and performance ceased, and McNeill was not asked to provide her services. Nonetheless, she continued volunteering her services on-line for some time afterwards.
The 2020 annual general meeting of the Association was scheduled for 15 August 2020. On or around 8 August 2020, McNeill nominated for the position of Chairperson.[27]
[27]Exhibit P1, 552.
On 9 August 2020, Carmel Scott, Secretary of the Association responded:
Dear Sue,
Thank you for your nomination.
Going forward you will need to write to the Committee to request membership for the next term if you are wishing to nominate for a position on the committee. [28]
[28]Exhibit P1, 553.
Later on 9 August 2020, Carmel Scott wrote a further email to McNeill:
Dear Sue,
The appointed membership is only for that year as has already been discussed with you. It is not a life membership.
There is no Saturday position and so you do not retain your membership as a contractor.
There is no face to face rehearsal, and when we return, the reduced number of choristers will not warrant the position you previously held.
I thank you for your work in the supervisory role, but must advise you the position you held is obviously redundant and ACC will not be requiring your contracted services for this paid position again. [29]
[29]Exhibit P1, 554.
On 11 August 2020, McNeill wrote to the Committee regarding the annual general meeting scheduled for 15 August 2020. McNeill was concerned that full biographies had not been provided for all members nominating for a committee position.
Dear Maureen and Committee
I have not had a reply to my email regarding my nomination for a committee position.
Full biographies for all members nominating will need to be provided to all members. I will forward my full biography for provision to members and I will be asking all other nominees to do the same. Providing full biographies for some and brief description for others is not a level playing field.
I have requested that my performance report be included on the Agenda and provided to members and this has not been done. This report will also need to be sent to members. Failure to provide my report to members places me at a disadvantage.
Information has been prepared and distributed to families without any consultation with me as a committee member. Could you please tell me when a meeting was held to discuss and vote on the issues and procedures surrounding the AGM? There are so many issues that should have been discussed and decided by all committee members. The process cannot be considered transparent if I did not contribute to or vote on the process including appointing Lorna Gelbert to receive email votes. I had raised the issue of having a returning officer when the AGM was discussed. The returning officer should be responsible for counting all votes.
Our Rules allow for any person who is not successful in their preferred position to nominate for another position. The postal vote does not allow for this process and is therefore not valid. All nominees are able to re-nominate for a position during the election process. Postal / pre-voting is not in accordance with our Rules.
Our Rules state that our voting is to be held by secret ballot. I understand the online system presents challenges but raising your hand via Zoom is not in accordance with our Rules and does not take into account proxy votes. There have been several different emails providing different direction to members for provision of proxy forms – one email asked for forms to be sent to Sze, replies to AGM to admin, the proxy form asks members to “fill it in and give it to someone who will be in attendance” it does not say that it must be sent to the Secretary.
The Zoom administrator must be independent and not be a person nominating for a position on the committee.
Carmel could you please provide me with a copy of the Register of members.
We are all nominating for positions (except Maureen) and we all need to ensure that the process is transparent and impartial.
Failure to comply with our Rules will result in complications and uncertainty for the organisation and the risk of an invalid meeting. [30]
[30]Exhibit P1, 555.
Later on 11 August 2020, Scott replied:
Sue, the Committee is still waiting for your reply regarding your discussions with parents members and stating the committee is toxic among other things. I have also just had an upsetting but not surprising phone call from a parent asking how you are able to be nominated for Chairperson.
The nomination form clearly states to list your skill as many have done. All nominees will have the chance to speak at the AGM and put forward their ideas. It is clear as states on the nomination form to list your skills, as Dr Nikki and Charmian has done. If nominees are not diligent about communicating their skills and qualifications, how do they expect to be nominated especially as insurance requests CoM members must be qualified to hold the role. Have you been communicating with parents regarding standing for the committee? It is just incredible there are so many willing helpers all of a sudden.
The reports are not written to gain advantage for a personal gain. The reports are written for communication with the members, not to promote yourself. The Chairperson instructed it was not to go out with AGM documents.
Discussion regarding the AGM was held on July 23rd meeting. I don’t recall you mentioning a returning officer, but suggested ACC hire a firm to run the AGM. Because Sze’s husband Bernie has been nominated for a position as General members, there is a conflict. The Chairperson has the authority to appoint a returning officer and does not need permission from the committee. I am wondering why this would be an issue for you, and we can certainly request Lorna to count all votes. In fact we were going to have more than 1 person counting votes anyway.
You need to have nominated for more than 1 position by 5.00pm August 10, as Louise, Phillipa, Helen and I have done. Yes the early vote does allow for this and is valid. If they have nominated prior to August 10th at 5.00pm. There is no rule stating pre-voting is not valid.
Stephanie is doing the hosting now.
No, I cannot do that Sue. You made unfair allegations about Maureen regarding members’ details and now you are requesting The Register of members. The register of members, their addresses and contact details is private and confidential. It as come to our attention you have been canvassing members for your benefit and undermining the committee by stating you were afraid you were going to be left out. This is an unfair situation and you have used your position to gain advantage for yourself. You have also requested from members if they had any other contact details from other ACC members.
How can this be so when you are canvassing members and communicating your upset to them?
This meeting may be invalid to your actions Sue. We will discuss this on Thursday night’s meeting. [31]
[31]Exhibit P1, 556 (paragraphs are responsive to McNeill’s previous email).
A special general meeting of the Committee was convened over Zoom for 8:00pm on 13 August 2020. The Committee advised McNeill not to join until 8:40pm, as there would be discussion around alleged breaches of the Association’s Code of Conduct.
The minutes of the 13 August 2020 meeting record the following:
Members register and ACC contact details
Question was raised as to why SW wished to have a copy of the Member Register. SW wished to have it so as to know who was a member for AGM. It was reminded to SW the Secretary and Helen were organizing the AGM, voting & process. It was advised the Member’s register would never be emailed due to the privacy risk and could only be provided to a member upon permission from The Chairperson and Secretary where members could view the document only…
The question was raised to SW as to why she had accessed the Care Monkey (now Operoo) online medical software program. SW replied she had accessed the program to update her address and noted CS would have received an email regarding the fact. The question was asked – did you access the program to get contact details of members to contact them to encourage them to vote for you.
SW replied she had accessed the program to update her address and noted CS would have received an email regarding the fact. The question was asked – did you access the program to get contact details of member to contact them to encourage them to vote for you.
SW replied she did not and stated to the committee her new address which she states she accessed the program to update. The Secretary shared a report on screen of an audit report received from Operoo (previously Care Monkey) on August 12, 2020. As tabled, the report states: “From what we can see, Susan looked in and reconfirmed her profile but didn’t actually change anything. Please see below the latest profiles viewed”. A list of accessed chorister profiles was displayed from the date of July 30, 2020 to August 11, 2020. Susan stated she did not access their medical files and looked in the program to ascertain the membership. Susan stated she already had the Jiang’s phone number and had no need to access this. The question was then asked, why did you access her file… SW responded she did not access private medical details and wanted to see the membership. SW stated she did not know how many members ACC had at present. This was refuted, as a comprehensive report was provided to Committee on July 22nd and tabled at July 23rd meeting. It was reiterated it was a serious breach of privacy and question was asked why did you click on each of these chorister’s profiles to gain access to their private file. SW again stated she did not access the medical file and was not informed of the name change of Care Monkey to Operoo. SW apologised, and committee stated an apology was not sufficient as it had placed the organisation at risk and will cause a loss of trust in ACC from the member. [32]
[32]Minutes of the 13 August 2020 meeting record.
Following these matters, the Chairperson put forward a motion that McNeill be suspended until further notice, pending completion of an investigation. As frankly acknowledged by the Association, the Rules conferred no power on the Committee to order an interim suspension. [33]
[33] Under Rule 19(1), if the Committee is satisfied that there are sufficient grounds for taking
disciplinary action against a member, the Committee must appoint a disciplinary subcommittee to hear the matter and determine what action, if any, to take against the member. This processed was not followed by the Committee.
Submissions as to McNeill’s Membership of the Association
The Association’s position was that McNeill was a staff member pursuant to Rule 8(4) until approximately 30 March 2020, when her causal contractor work was interrupted by the COVID-10 lockdown. Reliance was placed upon the temporal requirement in r 8(4) that a staff member is ‘currently contracted to work for the Association’.
McNeill’s last invoice was dated 30 March 2020 for work performed on 21 March 2020. After this time, the Association did not call on McNeill for assistance. Properly construed, the Rules only conferred membership upon staff and contractors while they were ‘currently contracted’. This was consistent with the Code of Conduct which made separate provisions for members, committee members, and staff. Such an interpretation also reflected McNeill’s understanding as set out in her 18 December 2018 email.
For the same reasons, the Association submitted that McNeill’s committee membership as Performance Coordinator also ceased from 30 March 2020. However, it was common ground that no steps were taken to remove McNeill from the committee.
McNeill submitted that the Rules must be construed as a whole. Further, it was not permissible for the Court to consider extrinsic evidence, policy documents, or subjective interpretations when giving meaning to the Rules. [34]
[34]Faehrmann v Van Vucht [2018] NSWSC 397, 77.
When the Rules are considered in toto, McNeill’s membership did not cease from 30 March 2020. To be elected to Performance Coordinator, one must be a member. [35] Once elected as Performance Coordinator at an annual general meeting, McNeill remained on the committee (as a member) until that position was declared vacant at the next annual general meeting.
[35]Rules dated November 2016, Rules 48, 49, 50, 51 and 54.
Further and alternatively, McNeill submitted that rule 14 expressly governed the cessation of membership. As the events specified in that rule had not occurred, McNeill remained a member on 13 August 2020.
Determination
The Rules of an incorporated association are taken to constitute the terms of a contract between the association and its members.[36] In Law of Associations, the learned authors say the following regarding interpretation of an association’s rules:
Broadly speaking, what [interpretation] involves is giving meaning to the words used, construed to their context, as evidence of the objective intention of the contracting parties. Addressing commercial contracts, the High Court, in this vein, has made clear that the meaning of contractual terms is to be decided by what a reasonable business person would have understood them to mean. This rests on the language used by the parties, the surrounding circumstances known to them and the commercial objects to be secured by the contract, the latter being facilitated by an understanding of the genesis of the transaction, the background, the context and the market in which the parties are operating. When translated to the association’s scenario, this dictates that rules of those associations must be read in the context of the rules (or constitution) as a whole, ‘by reference to the language of the document, and the evident purpose or object of [its originators] as discerned from its provisions and any admissible extrinsic evidence. [37]
[36]Associations Incorporation Reform Act 2012, s 46.
[37]LexisNexis Butterworths 2018, [6.51] G E Dal Pont.
Applying these principles, McNeill’s interpretation of the Rules is to be preferred. I consider that McNeill was a member of the Association as at 13 August 2020. There are several reasons for this.
First, under rule 48 only a member is eligible to be elected or appointed a Committee member. [38] By operation of rule 54, McNeill held office as a committee member from her appointment on 25 May 2019 until the 2020 annual general meeting, which took place on 7 November 2020. [39]
[38]Rules dated November 2016, Rule 48.
[39]Ibid, Rule 54.
Rule 58 then states that a person ceases to be Committee member if they cease to be a member of the Association. Under rule 15, cessation of membership occurs upon resignation, expulsion or death of the member. In my view, the words and effect of rule 15 are unambiguous in that the rule specifies the circumstances in which membership of the Association comes to an end.
Such an interpretation is reinforced by the Full Federal Court decision of Turner v Australasian Coal and Shale Employees Federation where it was stated:
Normally, a person who is admitted to membership of an organisation remains a member until he or she dies or until the member or the organisation terminates that membership in accordance with the rules of the organisation. Section 145 of the Act contains provisions relating to the right of a member to resign his membership of an organisation. Under reg 115(d)(viii) of the Conciliation and Arbitration Regulations (1956), the rules of an organisation must provide for the times when, and the terms on which, persons shall become or cease to be members. It has been held that a member of an organisation of employees registered in or in connection with an industry, who ceases to be employed in or in connection with that industry, does not thereby cease to be a member of the organisation unless some provision in the rules of the organisation produces that result. [40]
[40]Turner v Australasian Coal and Shale Employees Federation (1984) 6 FCR 177, 193 - 1944.
By analogy, s 47(2) of the Act requires that the rules of an Association must make provision for the matters specified in Schedule 1 – item 6: Provisions for the resignation of a member or cessation of membership. Rule 15 provides three avenues for the cessation of members. The process of resignation is set out in Rule 16, including a provision where a failure to pay annual subscriptions or respond to a notice is deemed to be members’ resignation. Expulsion occurs through the disciplinary sub-committee procedures in Division 2 of the Rules and death is not applicable.
Secondly, becoming a member of the Association requires three steps. First, an applicant must be an eligible member and satisfy the requirements in s 8. Then an applicant must submit a written application to the Committee in accordance with rule 9. In the case of a staff member, rule 9(3) provides that the Committee must include details of their membership in their letter of engagement.
The requirements for a family member (an enrolled chorister) and a staff member (currently contracted) are matters of eligibility for membership to be considered by the Committee. There is no rule setting out the consequences of a member ceasing to be an eligible member.
Contrary to rule 9(3) the Committee did not specify details of McNeill’s membership. In the absence of a clear limitation expressed by the Committee, there is nothing in the Rules which mandate the conclusion that McNeill’s membership ceased because the Association did not request her services as a contractor. At that time, McNeill had been the Performance Coordinator since 2018 and an appointed member.[41] Given a cessation of membership and the resultant loss of rights in the Association, I consider that clear words would be required before Association membership would impliedly cease. No such intention is implied by the Rules.
[41]Exhibit P1, 139; and see appointment as Performance Co-ordinator from 25 May 2019, 319.
Accordingly, I find that McNeill was a member as at 13 August 2020.
Appropriate Form of Relief
As to the form of appropriate relief, McNeill sought an order requiring the Association to circulate a written notice as set out above. [42]
[42]As set out in paragraph (5)(b) above and the Complaint Order 2.
In my view such an order is not appropriate. Ordinarily, a court will not interfere with the decisions of an Association unless it exceeds its powers and the decision results in injury to property or to civil rights.[43]
[43]Dickason v Edwards (1910) 10 CLR 243, 255.
It was common ground that the relevant disciplinary process under the Rules was not observed by the Association. Therefore, there is no basis for the Court to enquire further into the underlying dispute between the parties.
In those circumstances, the appropriate relief is a declaration. It is well established that before making declarations, three requirements should be satisfied:
(a) the question must be a real and not a hypothetical or theoretical one;
(b) the plaintiff must have a real interest in raising it; and
(c) there must be a proper contradictor
Although, McNeill has since resigned as a member of the Association, I nevertheless consider that there are sufficient grounds to make a declaration as to her unlawful suspension.
As events transpired, there was no resolution to the underlying dispute between the parties. However, McNeill’s suspension remains, and continues to affect her. In this area, it has long been accepted that reputation is an interest attracting the protection of the rules of natural justice. [44]
[44]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 578.
In circumstances where the proper procedure surrounding McNeill’s suspension was not followed, I will declare that McNeill’s suspension from the Association on 13 August 2020 was unlawful, void and was of no legal effect.
I will hear the parties on the questions of costs and any consequential orders.
MAGISTRATE GREENWAY
2 November 2022
0
6
0