Morris v Victorian Farmers Federation

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 01172

IAN MORRIS	Plaintiff
v
VICTORIAN FARMERS FEDERATION	Defendant

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	26-27 May 2022
DATE OF JUDGMENT:	19 July 2022
CASE MAY BE CITED AS:	Morris v Victorian Farmers Federation
MEDIUM NEUTRAL CITATION:	[2022] VSC 407

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ASSOCIATIONS AND CLUBS – Expulsion, suspension and disqualification – Exercise of powers of expulsion under the defendant’s constitution – Inadequate particularisation of impugned conduct – Denial of natural justice.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P E King, with Ms O Callahan	HWL Ebsworth Lawyers
For the Defendants	Mr A T Broadfoot QC, with Mr L J S Molesworth	Gadens

HIS HONOUR:

Introduction

The plaintiff, Ian Morris, challenged the decision of the defendant, the Victorian Farmers Federation (‘VFF’), to terminate his membership. For the reasons that follow, I declare that the defendant’s decision and resolution of 1 April 2022 terminating the plaintiff’s membership is invalid and of no force and effect.

The VFF is an Australian public company, incorporated under the Corporations Act 2001 (Cth), and limited by guarantee. It is neither a public body, nor established pursuant to statute, and does not exercise governmental power. As a private member organisation, it promotes the interests of farmers. Various commodity groups operate under its auspices that are dedicated to issues affecting the interests of a particular form of primary production or products. This includes United Dairyfarmers Victoria (‘UDV’), of which Mr Morris is a member.

The core question is whether the VFF validly exercised its power to terminate Mr Morris’s membership under cl 4.8 of the VFF Constitution (‘Constitution’). This clause provides, in relevant part:

4.8.1The membership of a Member will be terminated and the Member’s name removed from the register of Members at the sole discretion of the Board if the Member:
(a)acted contrary to, or in disregard of the Constitution of the Federation;
(b)acts in any manner prejudicial or detrimental to the interests of The Federation;
(c)fails to pay the prescribed subscription and/or levy within 120 days of the date shown on the renewal notice; or
(d)on the grounds prescribed and published from time to time by the Board.

4.8.2The Member shall receive not less than thirty (30) days notice of the proposal for his or her removal from membership and what is alleged against that person and shall have the opportunity to appear before the Board to render the Member’s personal explanation or have delivered to the Board an explanation in writing.

At the heart of the plaintiff’s case was the complaint that the VFF’s decision, taken by a domestic tribunal in the form of the board, was invalidated by procedural unfairness. The pleadings only raised narrow issues.

Preliminary rulings

At trial, Mr Morris sought to lead evidence and make submissions relevant to unpleaded points, substantively directed towards merits review. In all, the plaintiff made three attempts to broaden the scope of his case. The VFF objected to this course although, in anticipation, it served answering affidavits. The admissibility of many of these affidavits depended on these rulings.

First, Mr Morris claimed that the VFF had to establish, and could not, as an objective jurisdictional fact, that Mr Morris had engaged in the conduct he was accused of, and that this conduct was prejudicial or detrimental to the interests of the VFF, before the board could exercise its discretion under cl 4.8 of the VFF Constitution to terminate his membership. Secondly, Mr Morris sought to rely on Lee v The Showmen’s Guild of Great Britain (‘Lee’),[1] as supporting his entitlement to contest the merits of the board’s decision. Thirdly, on the second day of the trial, Mr Morris sought to make amendments to his statement of claim. I disallowed all three applications. The plaintiff could advance no reason to justify the late and fundamental shift in his case. I stated that I would give my reasons for these rulings in the final judgment which are attached as Annexure A to these reasons.
[1][1952] 2 QB 329 (‘Lee’).

The evidence admitted at the trial was:

(a) Two affidavits of Mr Morris.

(b) Three affidavits of Jessica Rae Cullin, solicitor for the plaintiff.

(c) Three affidavits of Emmanuele Vanessa Germano, president of the VFF.

(d) One affidavit of Danyel Cucinotta, vice president of the VFF; and

Mr Morris, Ms Germano and Ms Cucinotta were cross examined. A court book of uncontentious documents was also tendered.
Factual background

Once the genuine issues in this case were properly confined to those pleaded, the key facts were not in dispute, emerging substantially from the contemporaneous documents.

Since July 2015, Mr Morris has been a member of the VFF, and the UDV within the VFF. He was the Secretary of the Corangamite Branch of the UDV and a recent member of the Colac Branch.

Ms Germano encountered Mr Morris at a VFF AGM and VFF Grains Conference on 24 February 2020 when she attended a meeting at which he was present. She described his conduct as unnecessarily disparaging of individuals on the policy council and aggressive and critical about the governance of the UDV policy council.

Board meeting minutes dated 30 June 2020 record a verbal update from a grievance panel constituted to investigate allegations against Mr Morris, among others. The minutes stated:

(a) A ‘WestVic dairy meeting resulted in claims and counterclaims by VFF members of what may be considered inappropriate conduct under the VFF Code of Conduct. ‘

(b) ‘On 29 May 2020, the VFF/UDV received a formal letter of complaint from the Chair of WestVic Dairy, naming a number of VFF/UDV members who she claimed were engaging in inappropriate behaviour. She sought action from the VFF.’

(c) ‘The Panel subsequently met with office bearers of the Corangamite and Wannon branches to discuss the matters at hand on Thursday 25 June. Members/Office bearers were reminded of their obligations under the code of conduct; a number of policy concerns were discussed; the Panel re-affirmed expectations regarding behaviour and the code of conduct.’

Mr Morris claimed that the minutes of the grievance panel meeting were inaccurate. He said that he did not appreciate at the time that it was a grievance panel meeting and that the meeting of 25 June 2020 did not involve members being reprimanded for any behaviour. A warning was not given at the meeting about breaching the member’s Code of Conduct. There was no reference to any complaint against the members or sanctions against the members at the meeting.

However, on 8 July 2020, the VFF wrote to Mr Morris notifying him of the outcome of the grievance panel. The letter said:

As discussed, due to several complaints and ongoing issues the VFF enacted its Grievance Panel. The Panel initially resolved to formally remind Branch office-bearers and members within the Corangamite, Colac and Wannon branches of their obligations under the VFF Members Code of Conduct. However, given ongoing and escalating issues the Panel sought your attendance at the VFF.
The VFF Board seeks to ensure that all members adhere to the VFF Member Code of Conduct (attached again for your reference) …
VFF support robust and open advancement of views, but ultimately these views need to be advanced in a professional and courteous way that are both consistent with the obligations in the VFF Member Code of Conduct and that amongst other things do not bring the VFF into disrepute. As discussed with you when you met with the Panel on 25 June, there have been occasions where this has not occurred, including the use of the VFF/UDV title and standing to write to a third party organisation calling for the resignation or dismissal of a director of that organisation.
The VFF Board met Monday 29 June 2020 and after due consideration the VFF Board resolved to issue you with a formal warning, and in so doing, advise you that any further breaches of the VFF Member Code of Conduct may result in the termination of your membership with the Victorian Farmers Federation.[2]

[2]Emphasis in original.

On 13 December 2021, Mr Morris attended a meeting of an organisation called WestVic Dairy, in Camperdown. At the end of the meeting, he interacted with another UDV/VFF member, Peter Delahunty, in the restroom at the venue.

The next day, Lachlan Sutherland, an attendee at the meeting, contacted Ms Germano either by telephone or text, regarding Mr Morris’s behaviour at the meeting. Mr Sutherland was not willing to put a complaint in writing at that stage.

Ms Germano then spoke with Mr Delahunty. She told Mr Delahunty that she had been alerted by Mr Sutherland and another member of Mr Morris’s conduct towards him and asked him whether he wanted to pursue a formal complaint about Mr Morris’s conduct. Mr Delahunty stated he did not want to pursue a complaint, but he described Mr Morris’s conduct at the meeting to Ms Germano in detail.

He told her that Mr Morris was disruptive as soon as the meeting commenced and throughout and that he asked Mr Morris several times to refrain from repeating the same aggressive statements. Mr Delahunty stated that he was frequently bullied and harassed by Mr Morris and that he has on a few occasions felt unsafe around Mr Morris. At the conclusion of the meeting, Mr Morris followed him into the restrooms and stood in the doorway. He physically prevented Mr Delahunty from leaving and continued to harass him verbally, refusing to move to allow him to exit the restroom. To leave, Mr Delahunty had to push through the doorway with body contact occurring between the two of them.

Ms Germano was concerned that this incident would cause Mr Delahunty to cease involvement with the VFF. Mr Delahunty encouraged many young people in his region to become involved in the affairs of the VFF. She was also concerned that young people and members generally viewing this conduct would not want to attend VFF meetings or wish to be involved with or be members of the VFF.

On 15 December 2021, the VFF board met. Paul Mumford, another board member, raised the issue of Mr Morris’s behaviour and that he ‘noted that these complaints had been raised at VFF board meetings many times previously’ and that ‘Many board members stated that they were concerned about potential reputation damage to the VFF caused by the Plaintiff’s behaviour’. Ms Germano stated to the meeting ‘that the board needed to be committed to protecting its employees from being subjected to the type of bullying and harassing behaviour that the Plaintiff was engaging in’ and ‘that in [her] opinion the Plaintiff’s behaviour was incompatible with these objectives’. She told the board that she was ‘satisfied that the Plaintiff had engaged in ongoing bullying, harassing and aggressive behaviour to members and staff of the VFF and that had continued to cause damage to the VFF. It was appropriate therefore in [her] opinion for his membership to be terminated in the best interests of the VFF’.

The minutes recorded a unanimous resolution:

The Board resolves, subject to legal opinion being obtained, to terminate the membership[] of … Ian Morris … as a result of repeated breaches of the VFF Code of Conduct. Behaviour exhibited is irreconcilable with the expectations of the VFF and may cause reputation damage. The process is to be managed by EG & PM. Supporting legal opinion, internal or external, is to be obtained before enacting the termination. The Board is to be provided a copy of the opinion and the termination letters once issued to members.

On 20 December 2021, Mr Sutherland ultimately provided a formal written complaint to Ms Germano about the events of 13 December 2021. He described a verbal and physical confrontation in the bathroom between Mr Morris and Mr Delahunty.

On 21 December 2021, the VFF wrote to Mr Morris, the letter signed by Ms Germano, as President, and Jane Lovell, as CEO. The letter read:

I have regrettably received numerous complaints of an incident that occurred on 13^th December 2021 at the Colac Branch Meeting where you were abusive toward a VFF member, including bullying and threatening behaviour.
In July 2020 you received a warning regarding your conduct (see attached). You were informed of the Board’s intention to terminate your membership should you further breach the VFF Member Code of Conduct.
Considering ongoing and repeated breaches of the Code of Conduct and the Board’s commitment to providing a safe space for all members to be able to contribute to the organisation, I regret to inform you that your membership of the VFF will be terminated on the 20^th of January 2022. This letter serves as 30 days’ notice of termination in keeping with section 4.8.2 of the VFF Constitution. You also have the opportunity to render a personal explanation about the matter to the Board in person or in writing. Please contact Delshea Sobhee via email to [email address] should you wish to arrange to do so.
This is a decision of the VFF Board with the support of the VFF UDV Executive.
You may apply for a membership with the organisation after a period of three years in writing to the Board should you wish.

On 23 December 2021, Mr Morris responded by email, noting that the meeting was not a Colac Branch Meeting but a Dairy Australia/WestVic meeting. He asked:

To ensure procedural fairness I believe I should be afforded information on just what I am supposed to have done: (i) reference numerous complaints of my behaviour at the above referenced meeting; and (b) “considering ongoing and repeated breaches of the Code of Conduct.”

Sometime in January 2022, the VFF board resolved to appoint its vice president, Ms Cucinotta, to investigate allegations made against Mr Delahunty and another member. During these investigations, Ms Cucinotta said she became aware of allegations against Mr Morris.

On 13 January 2022, HWL Ebsworth Lawyers, acting for Mr Morris, wrote to Ms Germano and Ms Lovell, relevantly stating:

We consider your action to be without due process, not in accordance with published VFF policy, to be unlawful and open to judicial review.
We demand that you immediately retract the letters sent to our clients.
You have not provided adequate details of the alleged complaints, have not provided our clients with an opportunity to respond, and appear to have set yourselves up as some form of ‘kangaroo court’ in making a judgment on these matters without any form of hearing or independent review.
If it is considered that our clients have breached a relevant code of conduct or rules of the VFF they should be provided with full details of the relevant compliant, a proper opportunity to respond, and a review by an unbiased committee or panel to determine whether or not the breach has occurred, and if so what steps should be taken.
…
VFF has a code of conduct and a grievance policy published on the VFF website. You have not followed your own process. There has been no proper inquiry and no panel established to which our clients have been afforded an opportunity to present. Given that you intend to terminate membership, a very serious outcome, the grievance policy indicates appointment of an independent lawyer to conduct a review.

On 14 January 2022, Mr Morris emailed the VFF:

I am writing formally in response to the letter to Ian dated December 21, 2021 terminating me from the VFF on January 20, 2022 unless I challenge the determination.
My lawyer, Mr Mark Bartley, of HWL Ebsworth, has responded to VFF on my behalf under separate cover dated 13 January 2022. This letter is also attached to this email.
In response to your letter of December 21 this email is designed to make it clear I intend to respond decisively to the charges (unspecified) which seem to have been made against me. I consider ‘your action to be without due process, not in accordance with published VFF policy, to be unlawful and open to judicial review’. I believe procedural fairness requires that ‘adequate details of the alleged complaints’ need to be provided in order for me to be able to even begin to respond.
I will respond when I have an understanding of what transgressions I am supposed to have perpetrated and that I will avail of the opportunity to respond to specifics with the VFF Board if VFF continues with the action.
For the record, on 13^th December, 2021 I attended a WestVic Dairy Australia meeting at the Commercial Hotel in Camperdown at the invitation of WestVic and as per the advice of the notification of meeting RSVP’d to WestVic Dairy. It was not a Colac Branch Meeting as referenced in your letter.

On 17 January 2022, HWL Ebsworth emailed:

I refer to our letter of last Thursday morning. I note we haven’t received a response as yet.
Before we take any further steps I think it would be useful to have a discussion about this situation, so I understand VFF’s position.

On 18 January 2022, Ms Germano’s executive assistant, Ms Sobhee, responded:

Just confirming on Emma’s behalf that we received your e-mail.
All correspondence will be forwarded to the board and we will respond in due course.

Later that same day, Mr Morris replied:

I remain perplexed as to why this action has been initiated and is being continued by the VFF as I do not accept that I attended a UDV/VFF meeting on 13^th December 2021. As previously stated it was a WestVic/Dairy Australia meeting – opened, chaired and closed by WestVic/DA. It emphatically was not a Colac Branch meeting.
Notwithstanding this critical point can VFF President and CEO confirm that the Notice of Termination from the VFF dated 21 December will not take place on January 20^th, 2022 until due process including as outlined in the Framework for Resolving Grievances Involving Members.
I also ask what process for review of the issues (including whether VFF has jurisdiction of my case) does the VFF have in mind. I can only presume, on the basis of documentation, that the Grievance Panel has met and made decisions (the letter of 21^st December) without hearing evidence from each side. This is not consistent with my understanding of due process.
Related to this course is the fact that I do not know what specific complaints against me and/or what transgressions I am supposed to have made. I thus ask for a formal statement of: (i) what the ‘numerous complaints made about the 13^th December meeting’ are; and (ii) what the ‘ongoing and repeated breaches of the Code of Conduct’ are. (ref letter of 21^st December).
I note that an important theme of the Framework for Resolving Grievances Involving Members is the need for confidentiality as far as is possible. To this end I am perplexed as to why the matter was referred to the UDV Executive for endorsement. This would seem to be highly inappropriate as no one on the UDV Executive attended the WestVic Dairy/DA meeting on December 13^th. Further, they have no role in the stated grievance procedure.
I await your reply before January 20^th.

On 13 January 2022, the plaintiff’s solicitors wrote to the defendant and on 19 January 2022, Ms Germano responded to that letter.

For background, should you not be aware, the VFF draw to your attention the following details of the lengthy and due process undertaken by the VFF in relation to allegations as referred to in the letters dated 21 December 2021.
The Allegations
These allegations against your clients are of a serious nature and include harassment and bullying against a fellow VFF member.
The victim has lodged a written account to the VFF Board of the alleged incident and a witness to the incident has also lodged a written account of the event. Further, despite warnings regarding inappropriate behaviour that contravened the VFF code of conduct, your clients continue to behave in an unsatisfactory and unconscionable manner towards other members of the VFF.

Warnings
The VFF President has previously communicated with your clients in relation to numerous alleged misdemeanours. The VFF President spoke directly with one of your clients to discuss the serious nature of the breach of conduct and future concerns that the VFF held in allowing your clients to remain as VFF members.
The members are very much aware of the allegations of inappropriate behaviour, their conduct which has given rise to the breaches of Code of Conduct, and the requirements for adherence to the Code should they wish to remain a member of the VFF.
… Ian Morris appeared before a VFF Grievance committee on 25 June 2020 and subsequently received a written formal warning from the VFF Board on 8 July 2020. …
The VFF has provided your clients with:
(a)Previous consultation and communications, including appearances at the outlined VFF Grievance Committee in relation to the behaviours with multiple requests to cease said behaviours; and
(b)At least 30 days’ notice of the VFF’s right to remove your clients as members of the VFF pursuant to section 4.8.2 of the VFF Constitution; and
(c) An invitation to your clients, with the stated and specific opportunity, pursuant to section 4.8.2, to appear before the Board to render your client’s personal explanation or an opportunity to deliver to the Board this requested explanation in writing pursuant to the letters and emails dated 21 December 2021.

The VFF would also like to further remind your clients of the following statement contained within the published policies which include:
This framework has been established by the VFF Board. The framework is not intended to be definitive, or prescriptive. Instead, it describes some options and processes which may be used to resolve grievances involving members. These processes may be applied flexibly to suit particular circumstances, and other processes may be used instead. The Board, represented by the Grievance Committee (see below) has, subject to the constitution, an absolute discretion as to how the Federation will deal with a particular grievance.

We acknowledge the incorrect suggestions that the meeting that Ian Morris attended where the alleged incident took place was a VFF Colac branch meeting. It was in fact a meeting of West Vic Dairy. This is immaterial as the people in attendance at that meeting were invited as Members of the VFF/UDV. This meeting was not an open meeting of all levy payers. Therefore, Ian attended this event as a representative of our organisation.
The VFF requests that you instruct your clients that the letters advising of termination will not be withdrawn.
Further, your clients have until 5pm Tuesday 1 February 2022 to deliver to the Board in writing details as to why the VFF should not terminate their membership, including an explanation in relation to why your clients have failed in relation to the VFF’s specific previous, and frequent requests to cease the alleged behaviours, what actions will be taken to correct such behaviour and a commitment regarding compliance with the VFF’s Code of Conduct …

On 24 January 2022, Ms Cucinotta shared, by telephone, with Ms Germano her preliminary findings in her investigations. Ms Cucinotta reported:

(a) She was told by many members of the VFF that Mr Morris created an environment that fosters intimidation, hostility and repeated poor behaviour towards other individuals, which in turn she considered caused reputational damage for the UDV/VFF.

(b) A number of members she contacted during the course of the investigation insisted that Mr Morris engaged in serious bullying and abuse of other members and elected office bearers of the VFF.

(c) Mr Delahunty confirmed that Mr Morris was aggressive and intimidating towards him at the 13 December 2021 meeting and stated that Mr Morris confronted and physically blocked him in the bathroom so he could not get out.

(d) An attendee of the 13 December 2021 meeting said Mr Morris was toxic to the organisation and causes members and stakeholders not to attend industry meetings in fear of being confronted and intimidated.

(e) Five members of the Colac Branch of VFF stated that they were frustrated with Mr Morris’s conduct at meetings, in that he is selfish and pushes his own agenda, aggressively attacks people with different opinions and caused a number of younger members to avoid engaging at branch level to avoid being intimidated and bullied. They also reported that he caused the organisation reputational damage through his comments to stakeholders of the industry.

On 27 January 2022, Ms Cucinotta followed up with an email report to Ms Germano. The email contained ‘[s]ome brief notes’. It did not speak to the allegations against Mr Morris, save a statement that ‘It is important to note that my findings from the phone calls from all 3 members have indicated the events [i.e., the allegations against other VFF members, including Mr Delahunty] did happen (not in the aggressive manner as described) however, not to Bruce as it explains but rather Ian Morris.’

On 31 January 2022, HWL Ebsworth requested a 7-day extension to respond to Ms Germano’s letter. On 1 February 2022, HWL Ebsworth asked again for a confirmation of the extension of the deadline for response.

On 2 February 2022, Ms Cucinotta emailed to the VFF board a letter that set out the background to the matter and annexed the exchanged correspondence, noting that Mr Morris had an extension until ‘COB Friday 4^th February’ to respond before the board met the following week to deliberate.

Later on 2 February 2022, Ms Germano responded to HWL Ebsworth noting the earlier correspondence and affording Mr Morris until 4 February 2022 to respond.

On 4 February 2022, HWL Ebsworth responded to Ms Germano.

The VFF Board has duties of natural justice to Mr Morris not only by express and implied agreement under its own Constitution but under the general law. The three VFF letters, and the conduct of the VFF, summarised above demonstrate a complete failure of the Board of the VFF as described by its President Ms Germano to adopt its constitutional processes for addressing grievances against members by members [assuming in this case another member has made the complaint], a total failure to provide to Mr Morris natural justice in relation to the substantive decision to terminate his membership, by failing to give adequate particulars and reasonable notice of the decision to be made, and of ostensible bias in respect of any such decision whether made or to be made, and inconsistency, uncertainty and confusion as to the Board’s position, each of which is such as to render the decision notified on 21 December 2021 in the first VFF letter invalid and of no effect.
…
Explanation from Ian Morris
Ian Morris does not consider that his behaviour at the 13 December 2021 meeting constituted aggressive or bullying behaviour. He maintains he engaged in spirited debate including asking some challenging questions of the presenters at the meeting.
He has not been provided with any information as to what behaviour was regarded as bullying or aggressive, nor to whom he was supposedly behaving this way.
He firmly believes he has not transgressed the VFF Code of Conduct in any manner …
He is aged 83, has never been accused of bullying before, and at his advanced age is highly unlikely to be able to overawe or bully anyone. He has not engaged in personal attacks on individuals as he has a strong belief in working according to appropriate codes of conduct. He has always been respectful to members and has always focused on the issues at hand. …
He does not, despite asking twice by email, have details of his supposed transgression(s) notwithstanding that in the VFF Grievance process document it is stated: ‘the Respondent will be given details of the allegation(s) against him/her and be given a reasonable opportunity to explain his/her side of the story.’
The letters from the VFF suggest/purport that he has repeatedly transgressed the VFF Code of Conduct and that he has had multiple requests to cease such behaviours. He reiterates that he has never previously been accused of bullying or inappropriate behaviour by the VFF/UDV. The Official letters to him in the context of this case on that subject are simply wrong. He has not been so warned by VFF and/or UDV. He respectively requests that the VFF document detail his supposed past transgressions …
As outlined in the grievance process and in the initial letter of December 21 he intends to avail himself of the opportunity to front the grievance committee, with his lawyer, to argue his case, including the lack of detail of what he is supposed to have done which is causing a serious lack of procedural fairness.

On 15 February 2022, members of the board informally discussed Mr Morris’s termination. The board informally determined that, having been provided with correspondence from Mr Morris and further information on the allegations put against him, the VFF would instruct its lawyers to write to Mr Morris again to ensure that he properly understood the nature of the complaints against him, and to afford him a further period of 30 days to respond to those allegations.

On 16 February 2022, Gadens, now acting for the VFF, wrote to HWL Ebsworth:

As you would be aware from our client’s response of 2 February 2022, the VFF has not yet terminated the membership of Ian Morris. The VFF has instead afforded your client significant time and opportunity to respond to the allegations put to him and to provide your client’s explanatory response to the proposed termination by 20 January 2022, which it later agreed to extend to 4 February 2022.
Furthermore, the VFF maintains that it is entitled to conclude its review of your client’s response in accordance with the 14-day time period outlined in its 2 February 2022 letter to you (which time period concludes today), with such review to determine whether the allegations and any sanction imposed on your client is to be affirmed or amended.
Our client also maintains it has at all times acted in accordance with its constitution and its Framework for Resolving Grievances Involving Members dated 14 April 2015. The VFF strongly denies that it failed to afford your client due process or that its processes lacked procedural fairness.
Notwithstanding this view, on a without admission basis, in the circumstances of the concerns raised by your client in his response to the allegations and proposed termination of his membership, and in light of new evidence that has come to the attention of VFFM the VFF has decided to provide your client with a further opportunity to respond to the allegations set out below. Please note that the allegations below include matters already put to your client and new allegations to which your client may wish to provide further explanation and response.
Allegations
It has been alleged that:
(a)on or around 13 December 2021, following the dinner hosted by Dairy Australia/WestVic, Mr Morris:
(i)barred Mr Peter Delahunty in the toilet by blocking the doorway; and
(ii)verbally accosting and ‘shirt fronting’ Mr Delahunty when he attempted to exit the toilet;

(b)at VFF/UDV meetings, including on or around 13 December 2021, 16 December 2021 and 17 December 2021, acted in an aggressive manner towards other VFF members, failed to allow other people to be heard in such meetings, pursued an individual agenda at meetings and verbally attacked other VFF members and their views at such meetings;
(c)in or around February 2020, used his VFF/UDV title and standing to write to a third party organisation calling for the resignation or dismissal of a director of that organisation, conduct which led to the issue by the VFF of a written formal warning to him that his membership may be terminated in the future; and
(d)disclosed to third parties, confidential information and matters relating to the proposed termination of his VFF membership, including the fact that the grievance has been raised, the name of the person who is the subject of the grievance, and the nature of the grievance, in each case in breach of the Framework for Resolving Grievances Involving Members. Such persons include [the persons were listed],
(Allegations).

If substantiated, the VFF board of directors (VFF Board) considers that:
(a)the Allegations would demonstrate that your client acted in a manner prejudicial or detrimental to the interests of the VFF and its members by acting in an abusive manner towards one or more VFF members, through bullying and threatening behaviour;
(b)the Allegations would demonstrate that your client acted in a manner prejudicial or detrimental to the interests of the VFF and its members by failing to provide a safe space for all members to be able to contribute to the organisation and participate in discussions, without fear of abusive or threatening behaviour;
(c)the Allegations would demonstrate that your client acted in a manner prejudicial or detrimental to the interests of the VFF and its members by acting in a discourteous and unprofessional manner towards one or more VFF members;
(d)the Allegations would demonstrate that your client acted in a manner prejudicial or detrimental to the interests of the VFF and its members by failing to conduct himself in accordance with the Members Code of Conduct and the Framework for Resolving Grievances Involving Members; and
(e)the Allegations would demonstrate that your client acted in a manner prejudicial or detrimental to the interests of the VFF and its members by failing to treat people with respect and equally, irrespective of their views and regardless of who they are,
(Preliminary Assessment).

Consequence if Allegations are substantiated

If the VFF Board considers that the Allegations are substantiated, the VFF will be entitled to take a range of actions, including the termination of your client’s membership. As already communicated to your client, the VFF considers that the Allegations are sufficiently serious to merit consideration of terminating his membership.
Opportunity to respond
We invite your client to:
(a) respond to the Allegations;
(b) respond to the Preliminary Assessment by the VFF Board of the impact of the Allegations’ impact on the VFF and the standard set for members pursuant to the VFF’s constitution and its Member Code of Conduct; and
(c)provide submissions to the VFF Board as to whether termination of his membership would be an appropriate decision for the VFF to make should the Allegations against him be sustained,

by no later than 5:00pm on Friday, 18 March 2022. If your client does not respond in that timeframe, our client reserves its rights to finalise its decision without further notice to your client.

On 23 February 2022, Ms Cucinotta reported to a board meeting of the VFF that, given her investigations:

(a) she considered the allegations against Mr Morris in relation to his engagement in unwanted and hostile behaviours were substantiated;

(b) she considered that the behaviour would be likely to continue and would likely cause reputational damage to the VFF; and

(c) the risk posed by the behaviour was a risk to the VFF in that it is obliged to protect its staff and members from exposure to this kind of behaviour, for their overall wellbeing. The VFF’s members’ Code of Conduct and Constitution are clear that conduct of this nature is not acceptable within the organisation and is a ground for termination of a member’s membership.

On 16 March 2022, Mr Morris nominated himself for the position of president of the UDV. In the event there was more than one candidate for the position, there was to be an election process commencing 8 April 2022.

On 18 March 2022, HWL Ebsworth, on behalf of Mr Morris, wrote to Gadens:

The VFF’s letter dated 2 February 2022 was marked ‘without prejudice’. Your client has not, in an open letter, responded to our request that it withdraw the letter sent to Mr Morris dated 21 December 2021 in which the VFF stated:
1.‘your membership of the VFF will be terminated on the 20^th of January 2022’;
2.that this ‘(was) a decision of the VFF Board with the support of the VFF UDV Executive’; and
3.Mr Morris could ‘apply for a membership with the organisation after a period of three years in writing’.

These statements are consistent with a decision having been made. Whilst there was reference to an ‘opportunity to render a personal explanation’ to the Board there was no indication of what purpose this served or what consideration it would be given.
Therefore it is clear that the purpose of the VFF’s letter to Mr Morris dated 21 December 2021 was to notify him of its decision to terminate his membership. There has been no genuine and unqualified withdrawal of any decision to terminate, as also indicated by the reference to ‘the proposed termination of his membership’ on the first page of your letter and the unexplained ‘Preliminary Assessment’ in the last paragraph of your letter.
…
Allegations
Notwithstanding this, without prejudice to our client’s right to object at a later time, we accept the VFF’s invitation to respond to the Allegations set out in your letter dated 16 February 2022 … (some of which are raised for the first time) in corresponding order.

The letter then responded to each allegation in some detail. The responses may be summarised as follows:

(a) The event was not a VFF event, but a Dairy Australia/WestVic event. The VFF has been inconsistent in its approach to behaviour of VFF members at non-VFF events; on another occasion it refused to deal with a complaint about a member’s conduct at such an event on the grounds it was outside the VFF’s jurisdiction.

(b) Mr Morris did not bar Mr Delahunty in the toilet, verbally accost or ‘shirt-front’ him. He gave his account of what happened which was that they had a heated exchange in which Mr Delahunty who was intoxicated became increasingly angry. Mr Morris, upon exiting the bathroom, realised his pants were undone. In order to avoid walking into the room full of people he turned back into the bathroom to do up his pants, inadvertently blocking Mr Delahunty from leaving. They both tried to get around one another. Mr Morris left the bathroom. Mr Delahunty used explicit language towards Mr Morris and was then taken home by a colleague.

(c) Mr Morris did not attend any VFF meetings on 16 or 17 December 2021 as alleged. He did not act in an aggressive manner towards other VFF members, fail to allow others to be heard, or pursue an individual agenda. He acted appropriately at the meeting on 13 December 2021, and in accordance with the member’s code.

(d) Mr Morris admitted to signing a letter in around February 2020, together with five other individuals, calling for the resignation of the chairperson of WestVic Dairy but denied that it was sent on a VFF or UDV letterhead and that he used his standing or title with those organisations to write the letter.

(e) Mr Morris noted that there was nothing in the 21 December 2021 letter that indicated it was confidential. While the grievance policy mentions confidentiality, it was necessary to use the information in the letter to mount a defence to the allegations. In addition, there was no grievance process adopted in respect of Mr Morris.

(f) Even if the above allegations were substantiated, they do not cause detriment or prejudice to the VFF in the manner contemplated in cl 4.8 of the Constitution, certainly not to a degree that would justify membership termination.

(g) Terminating his membership would have serious negative consequences for the UDV, the dairy industry and for Mr Morris’s standing in the community.

Seven members of the VFF wrote letters to the board in support of Mr Morris. The letters addressed the allegations about Mr Morris’s conduct at the Dairy Australia/WestVic meeting on 13 December 2021. The letters made it clear that the meeting invitation was issued to Mr Morris and other UDV members (as UDV members) to discuss the policy support work that Dairy Australia was undertaking. The letters generally confirmed that:

(a) the discussions at the meeting were mostly in good humour, albeit candid or robust;

(b) during the meeting, Mr Morris’s behaviour was not bullying, threatening or inappropriate to anyone;

(c) the witnesses believe the accusations against Morris are unfounded; and

(d) some witnesses made competing allegations of aggressive behaviour by Mr Delahunty.

In one of the letters, the member said:

… I became aware of Peter speaking aggressively to Ian Morris outside the entrance to the toilets. A younger guy who was an attendee approached Peter, I have now been led to believe this younger guy told Peter he was driving him home.
As Peter and the younger guy left, Ian approached me, I asked him ‘what’s happening?’, Ian replied that Peter Delahunty had just told him to ‘fuck off’ then brushed past him when the younger guy told him he was driving him home.

On 31 March 2022 and 1 April 2022, the board considered Mr Morris’s response via his lawyers. The board resolved that it was satisfied the allegations against Mr Morris were accurate and that his conduct was sufficient to warrant the board terminating his membership. Ms Germano stated during the discussion that in her opinion, ‘the Plaintiff’s conduct over numerous years as revealed by what [she] had witnessed and the many complaints made to [her] and the VFF about the Plaintiff, established a pattern of aggressive, intimidating and bullying conduct by the Plaintiff that had been sufficiently substantiated and warranted the termination of his membership.’ The board resolved to terminate the plaintiff’s membership immediately.

Cross examined, Ms Germano explained that what she meant by conduct over ‘numerous years’ was over the years 2020 and 2021, since she met Mr Morris. She conceded that some but not all of these allegations had been put to Mr Morris. When asked to identify in the material any reference to a pattern of aggressive, intimidating and bullying conduct, Ms Germano said, ‘At the very least in the warning letter that Mr Morris received in July of 2020’. She conceded that the particular allegations she put to the board about her own information and opinion on the matter, were not put to Mr Morris. ‘I agree that we didn’t verbalise or articulate to Mr Morris that it was a pattern per se. The fact that it was a pattern of conduct was because of numerous complaints that had been made to me from various people, Mr Mumford’s own account to the board, and my own encounters with Mr Morris.’ Ms Germano conceded that Mr Morris was on notice only about the specific incident on 13 December 2021 and the notice he received in July 2020.

Ms Cucinotta, when asked about the basis of the board’s decision to terminate Mr Morris’s membership and whether the decision was based on the fact that Mr Morris had exhibited a pattern of aggressive, intimidating and bullying conduct, stated ‘Yes, the board as a whole made that unanimous decision … We discussed a number of concerns that the board had with the plaintiff’s behaviour, and we came to the final decision that it all created a systemic, repetitive bullying problem that was [causing] reputational damage to the VFF’.

Ms Germano explained that the board had been engaging with the allegations against Mr Morris since 15 December 2021 and there had been ‘ongoing discussion amongst the board about this particular issue.’ The ad hoc meeting was called purely to vote on the proposal for his termination.

The board minutes of 31 March 2022 reflect that the meeting was just over an hour. The minutes read:

The Board considered the confidential legal advice as prepared by Gaden’s Lawyers in order to assist the Board in making a decision in regards to the termination of membership for … Mr Ian Morris …
AD requested that the list of questions prepared by Gaden’s to assist the board with its decisions regarding the member terminations have further information, a summary of actions to date and recommendations from management for each of the members and be circulated to the board.
It was agreed that this would take place, prior to the board making any decision regarding the members termination.
This would be provided by close of business and the board agreed to meet the following morning to deliberate.

In the papers before the board when it made its decision on 1 April 2022 was a management report to board members entitled ‘Review of Member Responses to Allegations’. The report stated, relevantly:

Based on the responses provided and the evidence presented to date, a decision with respect to termination of Mr Morris’s membership is open to the VFF Board based on the nature of the allegations and pages 5-6 of the VFF grievance framework as referenced in attachment 1.
(a)Are the circumstances at the 13 December 2021 meeting and after the meeting substantiated?
Mr Morris attended this meeting hosted by Dairy Australia/WestVic under the jurisdiction of the VFF. Charlie McCalholm who confirmed that this was an invitation to UDV Members and specific to the VFF Branch. Mr Morris attended this meeting as a representative of the VFF.
Following the dinner, it was reported that Mr Morris barred Mr Peter Delahunty in the toilets by holding the door shut and preventing Mr Delahunty from exiting the toilet and that Mr Morris further verbally and physically assaulted Mr Delahunty shortly after Mr Delahunty left the toilet. It has reported that this commotion was also overheard by other meeting attendees.
In all subsequent character reference letters in relation to Mr Morris, not one person has denied the altercation and allegation was false.
Given the nature of the detailed reports and overheard commotion in relation to this incident by multiple parties, a reasonable man may surmise that an altercation of some kind did occur.
(b)Are there witnesses that have not been interviewed as part of the process?
Yes. However, they have not witnessed the events but have given accounts of Mr Morris’s behaviour in meetings and subsequent arenas that potentially mirror untoward or questionable conduct.
Given the nature of the detailed reports and character references opposing Mr Morris’s general conduct by multiple parties, a reasonable person may surmise that an altercation of some kind did occur.
(c)Has the VFF contacted the persons in support of Mr Morris to establish whether they witnessed the events in the bathroom after the meeting?
No; They were not contacted. Regarding the original allegations, because we had received a complaint from Lachie Sutherland, character reference letters were received in relation to the incident after the investigation concluded.
(d)Is there a basis for a contention that writing to a third-party organisation calling for a resignation when not using VFF/UDV letterhead or title, capable of damaging VFF reputation?
Yes; this is disputed in relation to whether they used the titles on letters in relation to calling for a resignation. The chair at the time came to the VFF with a bullying complaint against VFF members so even if he did not use titles or letterhead, reputational damage could be highly likely.
(e)Do any of the factors highlighted by Mr Morris, in relation to his termination, mitigate the action of termination of his membership?
No; character reference letters were sent however Mr Morris made no effort to explain his behaviours or mitigate by approaching the Board in a considered form. Mr Morris was afforded 30 days ++ and was repeatedly asked to explain the alleged behaviours and Mr Morris has failed to explain any issue raised. Mr Morris has also previously, in July 2020, received a formal warning which outlined the following: …
Recommendation
1.That the membership of Mr Ian Morris be terminated pursuant to section 4.8 of the Constitution of the Victorian Farmers Federation effective immediately.

Despite being named in the report as one of its authors, Ms Germano said she did not write it. The author was an employee of the VFF who wrote it urgently overnight under circumstances of personal stress resulting in some inaccuracies. The report made some erroneous claims about allegations of physical violence by Mr Morris against Mr Delahunty, which on all versions of the event were incorrect. Both Mr Germano and Ms Cucinotta pointed out these errors to the other board members at the meeting and the board was not operating under any misapprehension as to the allegations.

The board minutes of 1 April 2022 reflected that the meeting lasted 12 minutes. The minutes read:

The Board considered and discussed management’s recommendations against the questions provided by Gaden’s lawyers in regards to the termination of Mr Ian Morris’ membership of the VFF.
…
That the VFF Board terminate the membership of Mr. Ian Morris, effective immediately. That Mr Morris be further notified that he is ineligible to stand for the Presidency of the UDV due to no longer being a member of the VFF.
Outcome: Approved.

Later that day, Gadens wrote to HWL Ebsworth:

The VFF board of directors (Board) has reviewed the responses provided by your client and has determined that the Allegations are substantiated.
Following such a determination, the Board separately considered whether the Allegations demonstrated that your client acted in any manner prejudicial or detrimental to the interests of the VFF and in a manner consistent with the Preliminary Assessment. The Board determined that he did.
On this basis, the Board subsequently determined that clause 4.8.1 of the constitution of the VFF (Constitution) applied in the circumstances. The Board has determined that the sanction and consequence of the substantiation of the Allegations, is that your client’s membership with the VFF is hereby terminated and his name will be removed from the register of members, with immediate effect.
…
Please note that the VFF is not required to provide reasons for its determination.
In light of the above, your client should also note that with immediate effect, he is no longer eligible to be elected to any positions within VFF that have a threshold eligibility requirement of VFF membership, including for example election to certain office bearer positions as outlined in the Constitution.

Plaintiff’s submissions

The plaintiff submitted that the VFF board impermissibly made two decisions to terminate his membership, which it was not empowered to do under the Constitution.[3] The first decision made on 15 December 2021 was communicated by the letter of 21 December 2021, which was in fact a termination letter. It was defective in that it did not follow the VFF Framework for Resolving Grievances Involving Members (‘Grievance Framework’) nor cl 4.8 of the Constitution. This defective decision could not be cured by the letter of 16 February 2022, affording the plaintiff a further opportunity to meet the allegations against him, because the Constitution did not authorise the board to take a second decision or reverse their first decision, once taken. Even if they were authorised to do so, in order to cure such an error, the board needed to recognise that its earlier decision was flawed and then reconsider the matter afresh.[4] It expressly did neither, invalidating both the decision made on 15 December 2021 and the decision made on 1 April 2022. Instead, it purported to advance further grounds to support the original invalid decision.
[3]Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.
[4]Ibid 603 [5].

Secondly, the VFF failed to afford Mr Morris natural justice as the process was procedurally unfair and/or it breached the implied right to legal reasonableness because the grievances were not adequately particularised. In addition, Mr Morris did not receive any notice during the period 2020 to 2021 that anyone considered anything he was doing inappropriate. He said that although Ms Germano reported there were various board meetings about his conduct and various complaints over this period, he never received particularised details of those matters.

The VFF is a domestic entity whose decisions are justiciable.[5] The board’s decision to terminate Mr Morris’s membership was not authorised by cll 4.8.1 and 4.8.2 of the Constitution because:
[5]Lee [1952] 2 QB 329, 342; Dixon v Australian Society of Accountants (1989) 87 ACTR 1.

(a) The staged process for membership removal provided by those clauses was not followed in substantial respects, rendering the two termination letters unauthorised and void.[6] The contemplated stages are: (1) the board considers and adopts a proposal for Mr Morris’s removal; (2) Mr Morris receives 30 days’ notice of what is alleged; (3) Mr Morris is then given an opportunity to appear before the board to answer the accusation or to give an explanation in writing; (4) The board then proceeds subject to a duty of legal reasonableness to remove or not remove Mr Morris from the register of members. None of the first three stages were complied with. If one fails, the final decision is bad.[7] Alternatively, the membership was a valuable right of intangible property and there was an implied right to natural justice which Mr Morris did not receive.[8]
[6]Ku-ring-ai Council v West [2017] NSWCA 54, [241] (‘Ku-ring-ai’).
[7]Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381, 393 [41]-[42]; Ku-ring-ai [2017] NSWCA 54, [241].
[8]Kioa v West (1985) 159 CLR 550; SAAP v Minister [2005] 79 ALJR 1009, 1045-6 [207]-[208]; Annetts v McCann [1990] 170 CLR 596, 598-600; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82.

(b) The board failed to follow the VFF mandated Grievance Framework procedure.

(c) The removal involved an error of law and/or was misconceived because it was based on the ground that Mr Morris’s conduct was prejudicial to the interests of the Federation. This conclusion was based on the principal allegation about Mr Morris’s misconduct at the 13 December 2021 meeting. That meeting was not a Colac Branch meeting, but a Dairy Australia meeting, at which feedback was requested and Mr Morris honestly and properly provided that feedback.

(d) The board’s decision was legally unreasonable[9] as it accepted Mr Morris’s eligibility for nomination for the position of UDV president on 17 March 2022 but then excluded him from the ballot on 1 April on the ‘perverse’ ground that he had prepared a defence to the earlier charge by marshalling evidence and material in support of his case, claiming that this was a breach of confidentiality. This conduct compounded the problems with the original letter of 21 December 2021 and rendered the 1 April decision void and of no effect.[10]

(e) The board misdirected itself or acted on an error of law or misconception in that it based its decision on conduct at a Colac branch meeting of the VFF on 13 December 2021, when it was a Vic Dairy meeting. The letters reference two other dates of meetings in December 2021 that Mr Morris never attended. Clauses 4.8.1 and 4.8.2 refer to conduct at VFF meetings or events, not those conducted by other bodies to which Mr Morris pays levies. The suggestion that the VFF can prevent a dairy farmer from assisting a Commonwealth public inquiry is nonsensical and a breach of the freedom of political communication, such that the general provision in the Constitution would be read down to make provision for its exercise.

[9]‘Where one party has an express power the exercise of which will significantly affect the interests of the other party (e.g., by cancellation of their supply contract) if the holder of the power is satisfied that a certain state of affairs exists, the words of the contract are fairly readily construed (and the more so when the parties have given such a power to a third party) as requiring a reasonable as well as honest state of satisfaction … But this is a result arrived at by a process of construction of the express terms in the contract as a whole. It is best not seen at all as the implication of a further term’: Service Station Association Ltd v Berg Bennet & Associates Pty Ltd (1993) 45 FCR 84, 94.

[10]Palmer v Western Australia [2021] HCA 5, [286]; Minister for Home Affairs v DUA16 [2020] 95 ALJR 54, 61.

Thirdly, Mr Morris argued that the VFF was subject to a conventional estoppel that Mr Morris was and remained a member of the VFF. The estoppel arose when the VFF accepted his nomination for president of the UDV on 16 March 2022 and represented formally to him that it was ‘correctly filled and received’, and that the plaintiff continued to pay, and VFF continued to levy and receive, his monthly membership dues through South West Dairy Ltd. However, no Constitutional basis for termination arose after 16 March 2022 and before his termination on 1 April 2022. Alternatively, he claimed that VFF waived by its conduct any right to terminate his membership.

During oral submissions, Mr Morris cited MH6 v Mental Health Review Board,[11] which considered whether counsel’s conduct in a hearing amounting to a waiver of his client’s right to procedural fairness or natural justice, by reference to which he submitted the VFF was well aware of the complaint against Mr Morris, but it nevertheless accepted his client’s nomination for presidency and accepted his money from levies, then terminated his membership. The VFF thereby represented that Mr Morris’s nomination was valid and therefore that his membership was valid. The VFF then did not attempt to backtrack or reverse the payments until after it received Mr Morris’s statement of claim which articulated his estoppel point. It was unconscionable, he said, that the VFF went back on the acceptance of money and receipt of nomination and then ‘turned around’ and terminated his membership.
[11](2009) 25 VR 382, 395-6 [46]-[50], [53].

It was unclear whether Mr Morris was attempting to advance a waiver point or a claim of estoppel. I was not referred to authority. Nor was this submission developed in any detail. It was never explained how either the elements of waiver or estoppel were each met. The court was left to speculate.

Defendant’s submissions

The VFF submitted that its decision to terminate Mr Morris’s membership was justified and made in accordance with the Constitution. It submitted that:

(a) Over an extended period, from at least June 2020, Mr Morris was accused of and was found to have engaged in bullying and harassing behaviour directed towards other members of the VFF. This pattern of behaviour culminated in the incident of 13 December 2021.

(b) In addition to the complaint that gave rise to the grievance panel in June 2020, and the letter of warning of 8 July 2020, during 2020 and 2021, further complaints were made to VFF board members about Mr Morris and further examples of Mr Morris’s poor conduct were experienced by Ms Germano.

(c) On 13 December 2021, Mr Morris was accused of a serious incident at a WestVic Dairy meeting, to which VFF/UDV members were invited. At the conclusion of the meeting, Mr Morris verbally harassed Mr Delahunty, the president of the Colac branch of the UDV/VFF, in the men’s toilet. He blocked the doorway and prevented Mr Delahunty from leaving. He refused to move and intimidated Mr Delahunty. Mr Delahunty pushed passed him but felt under threat of violence.

Under cl 4.8 of the Constitution, the board is empowered with a wide (and sole) discretion to terminate the membership of a member, if it is satisfied the member acted in a manner prejudicial or detrimental to the interests of the VFF (cl 4.8.1(b)) or on any grounds prescribed and published by the board (cl 4.8.1(d)). The board properly exercised its power to terminate on either or both of these bases.

Grounds prescribed by the board include the member Code of Conduct, which provides:

The VFF Member Grievance process outlines the manner in which inappropriate behaviour is to be reported and the process that will be followed in investigating a complaint. The behaviours outlined below are subject to possible sanction through the VFF Member Grievance process.

…
·Abusive language towards a guest, member or VFF staff
·Bringing the VFF into disrepute
·Discourtesy or rudeness to a fellow member or participant at a VFF event
·Actual or threatened violence
·Conduct endangering the life, safety, health or well-being of others
·Bullying or taking unfair advantage of another person

Possible sanctions include termination of membership.

The VFF submitted that the process was procedurally fair and in conformity with the Constitution and that I should find that:

(a) The complaints were discussed at the board meeting on 15 December 2021. There was, in addition to discussion about the 13 December 2021 event, further discussion by the board that Mr Morris had been the subject of warnings about his behaviour previously and the risk of such behaviour causing reputational damage to the VFF. The board resolved to terminate Mr Morris’s membership subject to obtaining a legal opinion. This was not a final decision.

(b) The letter of 21 December 2021 merely notified Mr Morris of the board’s proposal to remove his membership pursuant to cl 4.8.2 of the Constitution. It provided Mr Morris with an opportunity to provide a personal explanation. It did not communicate that a final decision had been made. It said, ‘I regret to inform you that your membership of the VFF will be terminated on the 20^th of January 2022. This letter serves as 30 day’s notice of termination in keeping with section 4.8.2 of the VFF Constitution. You also have the opportunity to render a personal explanation about the matter to the Board in person or in writing.’

(c) A number of letters were exchanged between Mr Morris and the board or Ms Germano after that letter. Mr Morris had further opportunities to seek clarity and explain his position; the board further clarified the accusations levelled against him.

(d) On 15 February 2022, the board discussed the issue of the termination of Mr Morris’s membership. The board informally determined that, having been provided with correspondence from Mr Morris and further information on the allegations put against him, they would send him a further letter detailing these complaints. This resulted in the letter of 16 February 2022. This letter clarified that Mr Morris’s membership had not been terminated; set out in detail, with sufficient particularity, the allegations against Mr Morris; and gave him 30 days to respond.

(e) On 18 March 2022, Mr Morris, through his solicitors, gave his answer to the allegations.

(f) The board considered Mr Morris’s response and account of events, and, on 1 April 2022, resolved to terminate his membership.

Clause 4.8.2 of the Constitution provides that in terminating a membership, the member shall receive not less than thirty days’ notice of the proposal to remove them from membership; details of what is alleged against them; and the opportunity to appear before the board to render a personal explanation or have delivered an explanation in writing. The VFF submitted that these requirements were met.

The Grievance Framework is not prescriptive and so any deviation from its terms is irrelevant.

The process followed by the board, provided Mr Morris with sufficient particularity of the allegations against him in order to be able to ‘properly defend’ himself – which is the threshold it was required to meet to satisfy natural justice.[12] As the court held in Young v New South Wales Radio Yachting Association (‘Radio Yachting’):

Clause 7(a) of the Constitution requires the Committee to communicate particulars of the conduct said to be detrimental to the interests of NSWRYA and to do so not less than 30 days before the date of the meeting called to consider the question of expulsion. It does not require the Committee to give particulars of its previous deliberations leading it to consider that the relevant member should be expelled. Nor does it require it to explain why the Committee has concluded that the conduct is detrimental to the interests of the NSWRYA. What it requires is that particulars be given of the conduct in question.[13]

[12]Ridgway v Sporting Shooters’ Association of Australia Hunting and Conservation Branch (SA) Inc [2015] SASC 7, [142] (‘Ridgway’), citing Plenty & Plenty v Seventh-Day Adventist Church [2003] SASC 68, [92] (‘Plenty & Plenty’).

[13][2013] NSWSC 383, [47] (‘Radio Yachting’).

The VFF also submitted that it was irrelevant whether the board considered other matters that were not particularised or that were raised after notice was given to Mr Morris, relying on Radio Yachting:

Mr Newton relies on the fact that the minutes of the meeting held on 12 April 2012 record that Mr Condie had additional information for Attachment B. It is unclear what that information was. However, it can be inferred that it was additional evidence relevant to the incident that occurred … The Committee was not bound only to consider the evidence it had given to Mr Young in its letter. . . It was entitled to consider other evidence relevant to the conduct that it had already particularised.[14]

[14]Ibid [53].

The VFF emphasised that there was no obligation on the VFF to inform Mr Morris of all of the evidence, of every detail of the allegations against him, or of internal deliberation processes – what was required was sufficient notice of the alleged conduct, to allow him to defend himself.

The VFF contended that it was not open to the court to intervene in the merits of the board’s decision making about membership of the organisation. A court will not interfere with internal decision making, other than in egregious examples of unreasonableness, malice, actual bias, corruption or lack of bona fides.[15]
[15]Ridgway [2015] SASC 7, [159]; Australian Football League v Carlton Football Club Limited (1998) 2 VR 546, 549 (‘Australian Football League’); Wayde v New South Wales Rugby League (1994) 180 CLR 459, 472-3; Hewett v Royal Volunteer Coastal Patrol [2001] NSWSC 1140, [14]-[16].

The courts should refrain from implying terms imposing any higher duty of legal reasonableness in the constituent documents of membership organisations. The courts have declined, for example, to find an implied term in an organisation’s constitution that membership applications should be considered and assessed in a consistent, fair and reasonable manner:

There is no need, as a matter of business efficacy, to imply a term of good faith performance and fair dealing into the contract between Soccer NSW and each of its members … nor is such a contract one that, of its nature, should be found to be subject to such an implied term. This is because the statutory and general law context in which company constitutions operate and are to be construed in relation to decision making entrusted to directors provides a comprehensive – indeed, exhaustive – set of rules dealing with the relevant subject matter in a way that leaves no room for any implied term.[16]

[16]St George Soccer Football Assn Inc v Soccer NSW Ltd [2005] NSWSC 1288, [49]-[50].

As to implied terms informing obligations of notice and proper process in an incorporated association’s constitution, in Bull v Australian Quarter Horse Association, the New South Wales Supreme Court summarised the principles applicable to construing such a constitution. These principles mirror the general rules applicable to the interpretation of contracts, emphasising that in a company constitution on which third parties will rely, the court should be reluctant to read in an implied term.[17]
[17][2014] NSWSC 1665, [309]-[310].

The VFF submitted that if the 21 December 2021 notice was non-compliant, this was cured by the 16 February 2022 notice. This was because when there is error in an initial notice, if a later notice is valid, the court need not declare the first notice invalid. The relevant question is not whether at some other point in time a suspension or termination of membership was valid, but whether there was a proper basis for it at the time of the actual effective implementation. The fact of an earlier termination, valid or otherwise, is not relevant when the board later validly determined to terminate Mr Morris’s membership.[18] The authorities relied on by Mr Morris concerning any fresh reconsideration of the matter pertain to public administrative decision making and not the board in this case.
[18]Campolongo v Club Marconi of Bossley Park Social Recreation and Sporting Centre [2012] NSWSC 750, [107]-[113].

In respect of Mr Morris’s estoppel point, the VFF contended that this was misplaced. The board had notified Mr Morris of an intention to terminate his membership and there was an ongoing process of engagement with Mr Morris in this regard when Mr Morris’s nomination for UDV president was received. Mr Morris has failed to identify any material facts capable of giving rise to an estoppel by convention, nor any evidence to establish the requisite elements. The requirements are:[19]
[19]Alpha Wealth Financial Services Ltd v Frankland River Olive Co Ltd (2008) 66 ACSR 594, 602 [27], 629 [164]. See also Thompson v Palmer (1933) 49 CLR 507, 547; Grundt v Great Boulder Pty Gold Miners Ltd (1937) 59 CLR 641.

(a) The parties proceeded on the basis of any underlying assumption of fact, law, or both, of sufficient certainty to be enforceable (the assumption);

(b) Each party has, to the knowledge of the other, expressly or by implication accepted the assumption as being true for the purposes of the transaction;

(c) Such acceptance was intended to affect their legal relations in the sense that it was intended to govern the legal position between them;

(d) The proponent was entitled to act and has, as the other party knew or intended, acted in reliance upon the assumption being regarded as true and binding;

(e) The proponent would suffer detriment if the other party were allowed to resile or depart from the assumption; and

(f) In all the circumstances it would be unconscionable to allow the other party to resile or depart from the assumption.

Legal principles

The jurisdiction of a domestic tribunal is founded on a contract, express or implied. The set of rules of the organisation contains the contract between the members and is justiciable in the court as any contract would be.[20] If a member is expelled by a committee in breach of contract, the court will grant a declaration that their action is ultra vires.[21] Parties are not, however, free to make any contract they like. There are important limitations imposed by public policy. The tribunal must, for instance, observe the principles of natural justice. They must give the member notice of the charge and a reasonable opportunity of meeting it.[22] They also cannot oust the jurisdiction of the courts. While they can leave questions of law and fact to the domestic tribunal to decide, and they can make the tribunal the final arbiter on questions of fact, they cannot make it the final arbiter on questions of law.[23]
[20]Lee [1952] 2 QB 329, 341; Dixon v Australian Society of Accountants (1989) 87 ACTR 1, 5.
[21]Lee [1952] 2 QB 329, 341.
[22]Ibid.
[23]Ibid 342.

Where the domestic tribunal sits in judgment on the members of a trade or profession, as opposed to a purely social club, the court has greater power to intervene. The court will examine the tribunal’s decision to see that it has observed the law, including the correct interpretation of the rules. The tribunal only has such jurisdiction as the contract on its true interpretation confers on them, not what they think it confers. The scope of its jurisdiction is a matter for the courts and not the parties. The tribunal must first construe the rules; and then apply the rules to the facts. The first is a question of law which they must answer correctly; the second is a question of fact which is essentially a matter for the tribunal. The point of giving jurisdiction to a committee is so that it can determine the facts and decide what is to be done about them. If, however, the two questions are inextricably linked, or the facts before the committee were incapable of being held to be a breach of the rules, then the court can infer that the committee misconstrued the rules and exceeded their jurisdiction.[24]
[24]Ibid 345.

It is not clear that membership of the UDV/VFF is integral or important to Mr Morris’s ability to engage in dairy farming. It is likely his membership is somewhere on the continuum between social club and professional organisation that has the power to ‘interfere with a man’s livelihood’.[25] It is evidently of some value to Mr Morris to be able to lobby for policies that affect him and, as such, the VFF does play a more crucial role than a social club. The board is not a domestic tribunal of a kind that enlivens the considerations identified in Lee.
[25]Australian Football League (1998) 2 VR 546, 576.

A domestic forum acting under rules resting upon a consensual basis, is a tribunal that has no rules of evidence and can inform itself in any way it chooses. Members may act upon their own knowledge and upon hearsay, if they are satisfied of the truth of what they learn and if they give the member with whom they are dealing a proper opportunity of answering the charge and defending himself. The tribunal is bound to act honestly, that is to say it must have an honest opinion that what the member did amounted to misconduct and its decision must be given in the interests, real or supposed, of the body it represents and not for ulterior or extraneous motives.[26]
[26]Radio Yachting [2013] NSWSC 383, [55], citing Australian Workers Union v Bowen (No 2) (1948) 77 CLR 601, 628.

A domestic tribunal is obliged to observe any procedural rules that are explicitly established and to observe, to the extent the rules regulating the body are silent, the rules of natural justice. This includes procedural fairness – the right to be heard.[27]
[27]Australian Football League (1998) 2 VR 546, 577.

A more flexible standard of natural justice is to be applied to disputes involving domestic tribunals. However, even so, natural justice still requires the adoption of certain basic procedures so as to allow the parties the opportunity to properly defend themselves. The degree of particularity required in a notice to a member in these circumstances is to be assessed against what was necessary for the plaintiff to be able to properly defend himself.[28] 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.[29]
[28]Ridgway [2015] SASC 7, [142].
[29]Ibid [134]. I pause to note, as the Court explains, that this proceeding was heard in South Australia and the Associations Incorporation Act 1985 (SA) s 40 applied, which explicitly provided that rules of natural justice should apply to disputes between committees of incorporated associations and their members. However at this point the Court is considering the common law requirements of natural justice that existed prior to the enactment of s 40: at [132].

In Plenty & Plenty v Seventh-Day Adventist Church of Port Pirie (‘Plenty & Plenty’),[30] the Plentys had been disfellowshipped from their church. The court considered whether the church’s decision-making body had met the more flexible standard of natural justice applicable to a private body. In particular, whether the allegations against them were sufficiently particularised.
[30][2003] SASC 68. I note that the Full Court allowed an appeal against the declaration that the decision to disfellowship the Plentys was void, but on the basis that the declaration was unnecessary because the Plentys did not wish to re-join the church. The finding of a breach of natural justice was not disturbed: Plenty v Seventh Day Adventist Church of Port Pirie [2009] SASC 10, [112].

(a) The charges were that Mr Plenty engaged in disorderly conduct that brought disrepute on the church (the letter gave no indication whether this involved a single incident or a series of incidents); wilful and habitual falsehood (which consisted in being convicted of assault of a police officer and subsequent correspondence relating to that matter in local papers); and persistent refusal to recognise properly constituted church authority or to submit to the order and discipline of the church (the only indication of instances of this being ‘Church Board Letters’, with the individual letters not specified).

(b) Mrs Plenty was also charged with wilful and habitual falsehood. The particulars given were that she made false statements at the time of Mr Plenty’s court case but the statements were not set out, nor were there references to the circumstances in which it was alleged that they were made, and that the falsehood related to subsequent correspondence about the court case in the local papers. The second charge was persistent refusal to recognise properly constituted church authority or to submit to the order and discipline of the church. The particulars were ‘eg:- Church Board Letters’. The use of the abbreviation ‘eg’ suggested that other unspecified instances of such breaches might have been contemplated.

(c) While the parties had further discussions, the content of which was disputed, the court found that on the church’s version, very little information was provided to the plaintiffs at this meeting which would have been of assistance to them in defending the charges.[31]

[31]Plenty & Plenty [2003] SASC 68, [47]-[66].

The Court held that the allegations made by the church were too broad and suffered from a lack of particularisation.

The requirement of sufficient particulars is of particular importance in the present case. Many of the authorities on particulars arise from charging of offences or breaches of discipline with broad descriptions such as ‘misconduct’; and ‘conduct detrimental’.
In such cases the person whose conduct is brought into question must be given more precise particulars to meet the requirements of sufficient notice. This is so in the present case. Broad allegations such as ‘disorderly conduct’ and ‘attitude towards those in authority’ which were used in the present case required particularisation which I find was not forthcoming.[32]

[32]Ibid [94]-[95].

In Ridgway v Sporting Shooters’ Association of Australia Hunting and Conservation Branch (SA) Inc (‘Ridgway’),[33] the plaintiff contended that he was not provided with proper notice of a number of the grounds ultimately relied on by the defendant in support of its decision to expel. He was not given proper notice of the complaints that the defendant had received advice from a psychologist that the alleged threat he made was something it needed to act on; that the defendant’s parent branch had recommended the plaintiff’s expulsion on account of his alleged threat; that the plaintiff’s membership was only ever of provisional status; and the plaintiff had not completed his accreditation training. The plaintiff maintained he was deprived of any sufficient opportunity to respond to these particular grounds at the show cause meeting.[34] However, the court held:

The plaintiff was entitled to ‘sufficient notice’ of the allegation he was required to meet, the required degree of particularity of which is to be assessed against what was necessary for the plaintiff to be able to properly defend himself. In this case, the plaintiff was given precise details of the relevant allegation which, in my view, constituted sufficient notice in the circumstances. His solicitor was on notice of the terms of the plaintiff’s written statement that was in issue and that the defendant perceived it, rightly or wrongly, as an express or implied threat to the effect that, under sufficient pressure or provocation, use of a firearm might be resorted to by the plaintiff.

The VFF’s contention was that, as in Radio Yachting and Ridgway, the critical conduct was put to Mr Morris and the rest of the ‘gloss’ or other information considered by the board was simply additional evidence that spoke to the likelihood of the critical events having taken place, or could be properly categorised as internal deliberations, neither of which needed to be put to the plaintiff. This contention found some support in the evidence.

(a) In the 21 December 2021 letter, when Ms Germano referred to ‘ongoing and repeated breaches of the Code of Conduct’, this reference followed two preceding paragraphs where the 13 December 2021 incident is referred to, as well as the 8 July 2020 letter. The 8 July 2020 warning notice did make clear that there were allegations against Mr Morris, among others, that he had advanced his views in a way that exceeded ‘robust and open discussion’ and failed to meet the standards of professional and courteous engagement, consistent with the Code of Conduct. This could possibly be argued to be adequate to constitute sufficient particulars of ‘ongoing and repeated’ breaches.

(b) In the management report to the board prepared overnight before it made its final decision, the report characterises as corroborating evidence of the 13 December 2021 incident the accounts of other witnesses about ‘Mr Morris’s behaviour in meetings and subsequent arenas that potentially mirror untoward or questionable conduct’. It concluded, ‘Given the nature of the detailed reports and character references opposing Mr Morris’s general conduct by multiple parties, a reasonable person may surmise that an altercation of some kind did occur.’ This analysis could support the notion that the other ‘complaints’ were merely evidence in support of the critical focus of the board on the events of 13 December 2021.

Mr Morris argued that this was an attempt, in court, to belatedly narrow the case against him in contrast to the way it was put to the board on 1 April 2022 and earlier on 15 December 2021. Mr Morris evidently did not have full knowledge of what was initially alleged against him and did not have an opportunity to respond to it at that time because he wrote asking for these particulars. To speak of numerous complaints or breaches of a code of conduct, plainly broad and unparticularised language, was not procedurally fair because he could not know with precision what conduct was being investigated by the board. Mr Morris submitted that Ms Germano put to the board that the plaintiff’s conduct over numerous years, as revealed by what she had witnessed and many complaints made to her and the VFF about him, established a pattern of aggressive, intimidating and bullying conduct that was sufficiently substantiated and warranted his termination, after which, in a 12-minute meeting, his membership was terminated.

I am satisfied that the board considered the following allegations against Mr Morris:

(a) Ms Germano’s impression of Mr Morris’s conduct at various meetings beginning with the VFF Grains Conference in February 2020.

(b) Complaints made in a formal letter of complaint from the Chair of WestVic Dairy that Mr Morris, among others, engaged in inappropriate behaviour, including bullying, and breached the VFF Code of Conduct.

(c) The reports from Mr Delahunty and Mr Sutherland about the events of 13 December 2021, as well as complaints from Mr Delahunty of Mr Morris’s behaviour more generally in meetings.

(d) Ms Germano’s statements to the board that she was ‘satisfied’ Mr Morris had ‘engaged in ongoing bullying, harassing and aggressive behaviour’.

(e) Mr Mumford’s concern over Mr Morris’s behaviour, from his own observations, as well as his noting that ‘these complaints had been raised at VFF board meetings many times previously’.

(f) Ms Cucinotta’s report to Ms Germano arising from her investigations, that Mr Morris created a hostile environment; that ‘members she contacted’ insisted Mr Morris engaged in serious bullying and abuse of other members and office bearers; reports that Mr Morris was ‘toxic’ to the organisation; complaints from five members of the Colac branch who stated they were frustrated with Mr Morris’s conduct and his aggression at meetings, as well as complaints of intimidation and bullying.

(g) Ms Germano’s statement to the board that the plaintiff’s conduct over ‘numerous years as revealed by what [she] had witnessed and the many complaints made to [her]’ established a pattern of aggressive, intimidating and bullying behaviour.

(h) The board’s discussion about ‘a number of concerns that the board had with the plaintiff’s behaviour’ that Ms Cucinotta stated led the board to unanimously decide that these concerns ‘created a systemic, repetitive bullying problem’.

(i) The management report which referred to accounts of Mr Morris’s behaviour in ‘meetings and subsequent arenas’ and ‘detailed reports and character references opposing Mr Morris’s general conduct by multiple parties’.

(j) The VFF’s own submissions stated that it based its decision on the fact that, over an extended period, from at least June 2020, Mr Morris was accused of and was found to have engaged in bullying and harassing behaviour directed towards other members of the VFF. This pattern of behaviour culminated in the incident of 13 December 2021. It also submitted that, in addition to the complaint that gave rise to the grievance panel in June 2020, and the letter of warning of 8 July 2020, during 2020 and 2021, further complaints were made to VFF board members about Mr Morris and further examples of Mr Morris’s poor conduct were experienced by Ms Germano. That this pattern of conduct over time was the basis of the board’s decision was clear from the evidence of Ms Germano and Ms Cucinotta.

I am satisfied that Mr Morris was effectively put on notice only of the allegations around the 13 December 2021 meeting. In the 16 February 2022 letter, the board appeared to narrow and limit the significance it placed on the 8 July 2020 warning letter. While in prior correspondence the VFF contended that the letter represented a warning based on prior breaches of the Code of Conduct (which could pertain to poor behaviour at meetings), the 16 February 2022 letter stated that the ‘formal warning’ pertained to the accusation about Mr Morris writing to a third party organisation without the authority of the VFF.

In the 21 December 2021 letter, the board made critical allegations about Mr Morris’s ‘ongoing and repeated breaches of the Code of Conduct’. In the 16 February 2022 letter, the VFF said, ‘at VFF/UDV meetings, including on or around 13 December 2021, 16 December 2021 and 17 December 2021, acting in an aggressive manner towards other VFF members, failed to allow other people to be heard in such meetings, pursued an individual agenda at meetings and verbally attacked other VFF members and their views at such meetings.’ The board did not dispute Mr Morris’s response that he did not attend any meetings on 16 and 17 December 2021. What Mr Morris did at the 13 December meeting remained unparticularised, stated only at that time in broad terms. These circumstances bear closer analogy to Plenty & Plenty than to Ridgway.

Because the prior warning, as an allegation, was limited in this way, and only the 13 December 2021 meeting was referred to, these incidents could not have comprised the ‘pattern’ of conduct supporting the board’s termination decision. The VFF’s submission, that the board concluded from those two incidents that there was a pattern sufficient for termination cannot be accepted. I am satisfied that it was the conduct, the complaints, the numerous breaches, the personal experience of Mr Mumford and Ms Germano, and the results of the investigation by Ms Cucinotta, that really concerned the board, the matters noted above at [113].

On multiple occasions, Mr Morris in correspondence invited the board to particularise the ongoing and repeated occasions of breach of the Code to properly understand the allegations against him. If the board intended only to rely on the 13 December 2021 incident and the letter of 8 July 2020, it could have clarified that. Instead, it continued to make generalised references in its 16 February 2022 letter, to ‘VFF/UDV meetings’, indicating the scope of the relevant impugned conduct was broader, and, by reference to what it actually did consider, I am satisfied Mr Morris was not put on notice of the critical issue on which the board’s decision would turn.

Whether the outcome would have been different if the board had based its decision only on those two incidents alone, or if Mr Morris had been given particulars of each instance of poor conduct that the board had in mind, constituting the ‘pattern’ or ‘systemic’ behaviour he was accused of, is not a matter for this court. As a matter of practical justice, what is evident is that Mr Morris, in the particular circumstances of this case, was not in a position to properly defend himself against the accusations that led to the termination of his membership because he did not have proper details of them.

Mr Morris was not afforded natural justice in the process that concluded with the decision to terminate his membership. He was not provided with proper ‘notice’ of ‘what is alleged against’ him, and was therefore not given a meaningful ‘opportunity’ to give a personal explanation to the board, as contemplated by cl 4.8.2 of the Constitution. The board did not comply with the Constitution and the decision is invalid.

Conclusion

I will declare that the board’s resolution of 1 April 2022 is invalid and of no effect. The remaining relief sought is unnecessary and, if granted, would constitute inappropriate interference in the domestic affairs of the VFF. The defendant is discharged from the undertakings initially given to Keogh J on 13 April 2022 and later extended before me until the determination of the proceeding.

I will hear submissions from counsel on the matter of costs.

Annexure A
The pleaded case

To understand the issues that developed at trial, I should explain the pleaded case. Initially, Mr Morris sought urgent interim and interlocutory relief as the termination of his membership affected his eligibility to seek election as president of the UDV. The VFF undertook to the court that it would not take any further steps to conduct an election for that position before the determination of the proceeding.

Mr Morris filed a statement of claim. In summary, he alleged:

(a) The VFF breached its contract with Mr Morris by failing to follow the mandated due process for terminating membership under the Constitution, in that:

(i) The VFF’s letter to Mr Morris on 21 December 2021 was a purported, but invalid, notice of termination.

(ii) The VFF’s solicitors’ letter to Mr Morris on 16 February 2022 did not cure the invalid decision to terminate his membership. The letter was both misconceived and erroneous on several grounds.

(iii) The VFF breached an implied contractual entitlement to natural justice and the decision to terminate was therefore void.

(iv) The contract between Mr Morris and the VFF also required the VFF to act reasonably in exercising its powers under the Constitution and it did not do so.

(b) Alternatively, the allegations made against Mr Morris in the 21 December 2021 and 16 February 2022 letters were insufficiently particularised or substantiated. Even if substantiated, termination of Mr Morris’s membership of the VFF and his disqualification, without any reasonable explanation or notice, from standing as president of the UDV were unjustifiable consequences.

(c) Alternatively, the VFF was estopped from denying that Mr Morris is a member of the VFF and from denying that he is eligible to stand for election as president of the UDV. Alternatively, the VFF waived any objection to Mr Morris standing for election as president of the UDV.

In its defence, the VFF stated that:

(a) The VFF did not breach its contract with Mr Morris, either in respect of cll 4.8.1 and 4.8.2 of the Constitution nor any implied term of natural justice:

(v) The 21 December 2021 letter did not purport to immediately terminate his membership. It provided a process that conformed with cl 4.8.2 of the Constitution, giving Mr Morris an opportunity to respond to the board in person or in writing to sufficiently particularised allegations.

(vi) If the 21 December 2021 letter was invalid, any defect was cured by the 16 February 2022 letter, or that letter itself stood as a valid notice of a proposal to remove the plaintiff as a member, in conformity with cl 4.8.2 of the Constitution. That letter provided sufficient information to Mr Morris as to what was alleged against him, satisfying cl 4.8.2 of the Constitution, and he was invited to respond to those allegations. Mr Morris accepted this invitation and made substantive written responses to the allegations against him.

(vii) Mr Morris’s membership was terminated on 1 April 2022, pursuant to a resolution of the board of directors at a meeting on 31 March and 1 April 2022 when the board considered Mr Morris’s responses.

(viii) The Grievance Framework, in its own terms, is not prescriptive and may be applied flexibly and at the absolute discretion of the board of the VFF.

(ix) The VFF acted reasonably in the circumstances of this case in making its decision to terminate Mr Morris’s membership. Clause 4.8.1 of the Constitution vests sole discretion in the board to remove a member in certain circumstances. The board considered the allegations made against Mr Morris, afforded him an opportunity to respond to them, and considered his responses.

(b) The VFF was not estopped from terminating Mr Morris’s membership on 1 April 2022.

As noted in these reasons, I made three rulings during the trial.

Jurisdictional fact

First, Mr Morris claimed that the VFF had to establish, and could not, as an objective jurisdictional fact, that Mr Morris had engaged in the conduct he was accused of, and that this conduct was prejudicial or detrimental to the interests of the VFF, before the board could exercise its discretion under cl 4.8 of the VFF Constitution to terminate his membership. Such a claim could enable him to relitigate the merits of the board’s decision. Further, the board’s Constitutional discretion related only to the penalty to be applied, not to whether the wrongdoing occurred and was conduct that was prejudicial or detrimental to the interests of the VFF. He contended that ‘detrimental to the interests’ of the VFF meant prejudicial to that which is necessary for its existence or maintenance, as opposed to detrimental to its members or others in the community.

Mr Morris contended that whether the conduct occurred and whether it was prejudicial to the interests of the VFF were matters on which the court could receive evidence, independently of the board’s determinations, to prove the absence of jurisdictional facts entitling the board to enter upon a decision-making process concerning his membership.

The VFF objected, correctly, that this ‘jurisdictional facts’ claim was neither pleaded nor noted in any document or communication between the parties prior to trial and had been raised for the first time. No material facts were pleaded to the effect that Mr Morris’s conduct, if proven, was not contrary to the interests of the VFF such that the board’s power under cl 4.8 was not engaged.

Mr Morris could not answer this objection. He submitted that the reference to ‘legal reasonableness’ in the pleadings could be construed as incorporating the concept of jurisdictional fact. He submitted that it was open to the court to consider whether no reasonable person could have come to the view, given the evidence before the board, that Mr Morris’s conduct was detrimental or prejudicial to the interests of the VFF. I rejected this submission on the basis that the language of the pleading could not support it. A jurisdictional fact is a fact that must exist, objectively, before an administrative jurisdiction to exercise a power is enlivened.[56] Such matters can and must be pleaded. The failure of the plaintiff to specifically identify the basis for his claim was prejudicial to the defendant. It appeared to be a ‘back door’ to merits review. As I have set out elsewhere in these reasons, it is not for this court to intervene in the merits of the decision taken by a domestic tribunal as to whether Mr Morris’s membership should be terminated.[57]
[56]Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120, 139 [43]; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 148 [28]; Plaintiff M70/2011 v The Minister for Immigration and Citizenship (2011) 244 CLR 144, 179 [57], 194 [107].
[57]See, eg, Australian Football League (1998) 2 VR 546, 549.

The principle in Lee v Showmen’s Guild

Mr Morris then sought to rely on Lee,[58] as supporting his entitlement to contest the merits of the board’s decision. In that case, a member of a guild was found to have contravened a guild rule preventing unfair competition and was expelled. The court held that it had jurisdiction to examine any decision of the committee that involved a question of law, including interpretation of the rules. It found that the committee misconstrued the rule and acted ultra vires. The decision was void.
[58][1952] 2 QB 329.

Denning LJ explained, in a passage on which Mr Morris relied:

The question in the present case is: To what extent will the courts examine the decisions of domestic tribunals on points of law? … On any expulsion they will see that there is fair play. They will see that the man has notice of the charge and a reasonable opportunity of being heard. They will see that the committee observe the procedure laid down by the rules, but will not otherwise interfere. It is very different with domestic tribunals which sit in judgment on the members of a trade or profession. They wield powers as great, if not greater, than any exercised by the courts of law. They can deprive a man of his livelihood. They can ban him from the trade in which he has spent his life and which is the only trade he knows. They are usually empowered to do this for any breach of their rules, which, be it noted, are rules which they impose and which he has no real opportunity of accepting or rejecting. In theory their powers are based on contract. The man is supposed to have contracted to give them these great powers, but in practice he has no choice in the matter. If he is to engage in the trade, he has to submit to the rules promulgated by the committee. Is such a tribunal to be treated by these courts on the same footing as a social club? I say: ‘No.’ A man's right to work is just as important, if not more important, to him than his rights of property. These courts intervene every day to protect rights of property. They must also intervene to protect the right to work.[59]
[59]Ibid 343 (citations omitted).

The court concluded that in the latter case, it could still intervene to determine legal questions like interpretation of the rules. However, Denning LJ’s later clarification must be noted:

In most of the cases that come before such a domestic tribunal the task of the committee can be divided into two parts—(i) they must construe the rules; (ii) they must apply the rules to the facts. The first is a question of law which they must answer correctly if they are to keep within their jurisdiction. The second is a question of fact which is essentially a matter for them. The whole point of giving jurisdiction to a committee is so that they can determine the facts and decide what is to be done about them. The two parts of the task are, however, often inextricably mixed together. The construction of the rules is so bound up with the application of the rules to the facts that no one can tell one from the other. When that happens, the question whether the committee has acted within its jurisdiction depends, in my opinion, on whether the facts adduced before them were reasonably capable of being held to be a breach of the rules. If they were, then the proper inference is that the committee correctly construed the rules and have acted within their jurisdiction. If, however, the facts were not reasonably capable of being held to be a breach and yet the committee held them to be a breach, then the only inference is that the committee have misconstrued the rules and exceeded their jurisdiction. The proposition is sometimes stated in the form that the court can interfere if there was no evidence to support the finding of the committee, but that only means that the facts were not reasonably capable of supporting the finding.[60]

[60]Ibid 345.

I need not decide if it were open to Mr Morris to first raise this claim at trial without proper notice on the pleadings, and with no explanation for that failure, because the point is without merit for the following reasons.

(a) The evidence before the court does not establish that Mr Morris could not be a farmer or engage in his chosen work if he lost his membership in the VFF. This was not a case where the consequences of expulsion justified a greater degree of scrutiny.

(b) This was also not a case where the facts and the law are so bound up that the question can only be answered by asking whether the facts before the board were reasonably capable of supporting its finding. Clause 4.8 established a decision-making body, with its own processes, to make this determination for the organisation. The Constitution provided that termination is to be determined ‘at the sole discretion of the Board’. On a common-sense and purposive interpretation of the clause, it does not reserve the board’s discretion only to the question of penalty or sanction and require the court’s intervention to determine the merits of the assessment of the member’s conduct for each and every termination. The provision empowered the board to make exactly such decisions. Otherwise cl 4.8.2 would be redundant. It affords members the opportunity to identify and explain their conduct to the board after being apprised of what is alleged against them. There would be no need for such an explanation, if the board was not expected to determine whether such allegations were substantiated, and whether such allegations were prejudicial to the interests of the organisation.

(c) The Code of Conduct provides for termination of membership for abusive language towards a member of the VFF, bringing the VFF into disrepute, threatened violence, endangering the safety or well-being of others, and bullying or taking unfair advantage of another person. This is not restricted to incidents at VFF events. Whether the alleged conduct on which the decision was based actually occurred and whether it fell within one of these categories is squarely a dispute that fell within the board’s remit.

For these reasons, I ruled that the plaintiff could not lead any evidence to advance a misconceived ‘jurisdictional fact’ claim or otherwise in respect of the merits of the board’s decision. The trial proceeded on the basis of the statement of claim, requiring an inquiry into the validity of the board’s decision. As a result, many of the affidavits filed by both parties (and some portions of those admitted) were struck out as irrelevant.

Further application to amend

On the second day of the trial, Mr Morris sought to amend his statement of claim;[61]
[61]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 36.04(1)(b).

(a) to include a ground of apparent bias on the part of one of the members of the VFF board, Ms Germano; and

(b) to invalidate the board’s resolution on the basis that there was insufficient notice given of the relevant board meeting at which the decision was taken.

Both of these amendments, like those already dealt with, were made far too late and Mr Morris provided no satisfactory explanation for this delay.

The High Court held in Aon Risk Services Australia Ltd v Australian National University that a party does not have an entitlement to amend a pleading at any stage, conditioned simply on compensation for costs thrown away.[62] Whether the other party would suffer any prejudice is not the test. There is an irreparable element of unfair prejudice in unnecessarily delaying proceedings and wasting publicly funded resources. The court will consider, in exercising its discretion, the stage the litigation had reached when the amendment was sought and the explanation for any delay in applying for amendment.[63] This consideration was particularly acute in this case, because both parties had assured the court that the trial was confined to narrow issues identified on reviewing the correspondence between the parties and would take only one day. On that basis, the proceeding received an expedited hearing date ahead of many other litigants.
[62](2009) 239 CLR 175.
[63]Ibid 181, 215.

Of greater significance, I was not persuaded that the claims sought to be introduced by the proposed amendments had any reasonable prospect of success.

The VFF submitted that the board’s decision was unanimous. A reasonable apprehension of bias on the part of Ms Germano alone would not necessarily assist Mr Morris. In Radio Yachting,[64] the court considered whether an allegation – that two members of a committee had personal animosity towards the plaintiff – could support a claim of bias sufficient to vitiate the committee’s decision.[65] The court held that there was no breach of natural justice. The two members did not act as prosecutors in the meeting to expel the plaintiff and they were not ‘invincibly biased’, despite having formed the view that the plaintiff should be expelled.
[64][2013] NSWSC 383.
[65]Ibid [58]-[59].

The statements of Ms Germano relied upon in the proposed amendment to satisfy bias similarly could not amount to her being ‘invincibly biased’. Ms Germano’s evidence was that she did not even introduce the motion to terminate Mr Morris’s membership to the board, let alone act as prosecutor. In order to succeed, the proposed amendment would need to plead the material facts that would lead to the conclusion that Ms Germano’s ‘apparent bias’, if established, had infected the board’s decision as a whole. The proposed amendment, as it stood, was inadequate.

The application was not renewed.

The further claim about insufficient notice of the meeting was unsustainable. Mr Morris claimed that cl 10.3 of the Constitution required that the board be given 7 days’ notice of the meeting, with details of the matters proposed to be raised and the time and place of the meeting. This, he contended, was not done in respect of the 31 March and 1 April 2022 meetings at which the resolution to terminate Mr Morris’s membership was passed.

The VFF submitted that even if this submission be accepted, which need not be determined, such insufficiency of notice was evidently waived by the directors. Further, s 1322(2) of the Corporations Act 2001 (Cth), provides that a proceeding under the Act is not invalidated because of any procedural irregularity (which includes deficiency of notice or time) unless the court is of the opinion that the irregularity has caused or may cause substantial injustice that cannot be remedied by any order of court and by order declares the proceeding to be invalid.[66] The adoption of a resolution at a meeting of directors is a proceeding for the purposes of this section.[67]
[66]See also Corporations Act 2001 (Cth) s 1322(3). This section provides that ‘a meeting notice of which is required to be given in accordance with the provisions of this Act, or any proceeding at such meeting, is not invalidated only because of the accidental omission to give notice of the meeting or the non-receipt by any person of notice of the meeting, unless the Court, on the application of the person concerned, a person entitled to attend the meeting or ASIC, declares proceedings at the meeting to be void.’ Clause 10.3.4 of the Constitution provides that a notice of a meeting of directors must be given in accordance with the Corporations Act.
[67]McCarthy v Saltwood Pty Ltd [2020] TASSC 19, [43].

It is evident from the meeting minutes that a quorum of board members was present for the meeting and there is nothing to suggest any injustice arose from the assumed short notice.

The plaintiff’s application to amend his statement of claim was refused.

[2022] VSC 407

19 July 2022