Peskett and Leonora Clay Target Club
[2017] WASAT 50
•27 MARCH 2017
PESKETT and LEONORA CLAY TARGET CLUB [2017] WASAT 50
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 50 | |
| ASSOCIATIONS INCORPORATION ACT 2015 (WA) | |||
| Case No: | CC:1417/2016 | 14 DECEMBER 2016 | |
| Coram: | MR D MACLEAN (MEMBER) | 27/03/17 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Decision to revoke membership invalid Notice of decision of 7 May 2014 set aside Respondent to provide detail to applicants of how they might apply for membership with the respondent and the applicants are at liberty to apply for membership with the respondent and to have their applications considered in accordance with the rules of the respondent and the right to be informed of and to respond to any objection to their applications to renew their memberships | ||
| B | |||
| PDF Version |
| Parties: | ROSS PESKETT GEOFFREY IAN SIMPSON LEONORA CLAY TARGET CLUB |
Catchwords: | Application under s 182 Associations Incorporations Act 2015 (WA) Jurisdictional fact Procedural fairness; statutory interpretation Relief in circumstances where association small and applicants participation in affairs limited Tribunal has jurisdiction to determine disputes Section 182(3) Declarations Decision to revoke membership invalid Notice set aside Respondent to provide detail to applicants of how they might apply for membership and directions to afford procedural fairness to applicants in that enterprise |
Legislation: | Associations Incorporation Bill 2004 (WA) Associations Incorporations Act 2015 (WA), s 182, s 182(1), s 198(2) Interpretation Act 1984 (WA), s 18 State Administrative Tribunal Act 2004 (WA), s 15(1) |
Case References: | Caltex Australia Petroleum Pty Ltd and Town of Vincent [2010] WASAT 79 Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43 Kioa v West (1985) 159 CLR 550 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 |
Orders | For the reasons set out above the Tribunal:,1. Declares that the decisions of 6 May 2014 to revoke the applicants' memberships are invalid.,2. Sets aside the letters of 7 May 2014 from the respondent to the applicants by which the respondent informed the applicants of the decision made on 6 May 2014.,3. The respondent is, within 14 days of the date of these orders, to provide detail to the applicants of how they might apply for membership with the respondent.,4. The applicants are at liberty to apply for membership with the respondent and to have their applications considered in accordance with the Rules of the applicants and the respondent is to inform the applicants of any objection to their membership application in writing and with sufficient particularity so that the respondent might reply to the objections within 21 days of their receipt.,5. In the event that the applicants exercise their right of reply the respondent is to reconstitute for the purposes of hearing and determining if the applicants' applications for membership are to be accepted and must give notice to the applicants of such hearing and allow them the opportunity to attend at, or provide representations to, the hearing.,6. The applications are otherwise dismissed. |
Summary | The applicants were members of the respondent's association which was incorporated under the Associations Incorporations Act 2015 (WA). The respondent had 12 members and was based in Leonora. The applicants resided 1,000 kilometres away from the respondent. The applicants derived enjoyment from clay target shooting. However, they had not participated in the administration of or in any social pursuits with the respondent. The respondent was a club and conducted clay target shoots and was a member of the Western Australian Clay Target Association (WACTA). ,To participate in clay target shooting the applicants had to be a member of an association that was a member of WACTA.,Between 28 February and 1 March 2014 the Bunbury Clay Target Association (BCTC) held an event at which the applicants were said to have acted in an unsportsmanlike manner on these dates at the scene where the event was to occur.,Mr Peskett wrote to the BCTC by letters dated 1 and 2 March 2014 asserting the applicants' version of events. ,On 7 March 2014, the BCTC wrote to the applicants informing that that they were banned from any further shoots or competitions held at or by the BCTC. ,On 10 March 2014, an official with the BCTC wrote to WACTA and made allegations about the conduct of the applicants at the BCTC shoot. On 25 March 2014 WACTA wrote to the respondent and provided the material that had been submitted to it by the BCTC, together with a direction to the respondent to deal with breaches of the WACTA Member Protection Bylaw. ,On 6 May 2014, the respondent convened a special committee meeting and a motion was passed unanimously revoking the applicants' memberships.,On 7 May 2014 the respondent provided a written notice to the applicants revoking their membership with immediate effect.,The applicants were not invited to attend the special committee meeting or were not aware that it was to take place.,The respondent argued that the Tribunal did not have jurisdiction to receive the applicants' application and determine the dispute. However, in the event, the Tribunal found that it did have jurisdiction, the respondent conceded that it was obliged to afford procedural fairness to the applicants in the course of making the decision to revoke the applicants' memberships and that procedural fairness was not extended to the applicants. ,The Tribunal found that it did have jurisdiction and that the decision was invalid and the notice was set aside.,The respondent argued that the applicants ought not be readmitted to the membership on the basis of their conduct, the animosity between the parties, and the applicants very limited participation with the respondent and the respondent's very small membership which would result in an injustice to the respondent.,The Tribunal did not reinstate the memberships, but declared the respondent is to provide details of how the applicants might apply to be members and what the membership fee for one year's membership was and the applicants were entitled to make a new application for membership and to have their applications considered in accordance with the rules of the respondent and with the right to be informed of any objection to their membership renewal and to reply to any objection. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : ASSOCIATIONS INCORPORATION ACT 2015 (WA) CITATION : PESKETT and LEONORA CLAY TARGET CLUB [2017] WASAT 50 MEMBER : MR D MACLEAN (MEMBER) HEARD : 14 DECEMBER 2016 DELIVERED : 27 MARCH 2017 FILE NO/S : CC 1417 of 2016 BETWEEN : ROSS PESKETT
- GEOFFREY IAN SIMPSON
Applicants
AND
LEONORA CLAY TARGET CLUB
Respondent
Catchwords:
Application under s 182 Associations Incorporations Act 2015 (WA) Jurisdictional fact Procedural fairness; statutory interpretation Relief in circumstances where association small and applicants participation in affairs limited Tribunal has jurisdiction to determine disputes Section 182(3) Declarations Decision to revoke membership invalid Notice set aside Respondent to provide detail to applicants of how they might apply for membership and directions to afford procedural fairness to applicants in that enterprise
Legislation:
Associations Incorporation Bill 2004 (WA)
Associations Incorporations Act 2015 (WA), s 182, s 182(1), s 198(2)
Interpretation Act 1984 (WA), s 18
State Administrative Tribunal Act 2004 (WA), s 15(1)
Result:
Decision to revoke membership invalid
Notice of decision of 7 May 2014 set aside
Respondent to provide detail to applicants of how they might apply for membership with the respondent and the applicants are at liberty to apply for membership with the respondent and to have their applications considered in accordance with the rules of the respondent and the right to be informed of and to respond to any objection to their applications to renew their memberships
Summary of Tribunal's decision:
The applicants were members of the respondent's association which was incorporated under the Associations Incorporations Act 2015 (WA). The respondent had 12 members and was based in Leonora. The applicants resided 1,000 kilometres away from the respondent. The applicants derived enjoyment from clay target shooting. However, they had not participated in the administration of or in any social pursuits with the respondent. The respondent was a club and conducted clay target shoots and was a member of the Western Australian Clay Target Association (WACTA).
To participate in clay target shooting the applicants had to be a member of an association that was a member of WACTA.
Between 28 February and 1 March 2014 the Bunbury Clay Target Association (BCTC) held an event at which the applicants were said to have acted in an unsportsmanlike manner on these dates at the scene where the event was to occur.
Mr Peskett wrote to the BCTC by letters dated 1 and 2 March 2014 asserting the applicants' version of events.
On 7 March 2014, the BCTC wrote to the applicants informing that that they were banned from any further shoots or competitions held at or by the BCTC.
On 10 March 2014, an official with the BCTC wrote to WACTA and made allegations about the conduct of the applicants at the BCTC shoot. On 25 March 2014 WACTA wrote to the respondent and provided the material that had been submitted to it by the BCTC, together with a direction to the respondent to deal with breaches of the WACTA Member Protection Bylaw.
On 6 May 2014, the respondent convened a special committee meeting and a motion was passed unanimously revoking the applicants' memberships.
On 7 May 2014 the respondent provided a written notice to the applicants revoking their membership with immediate effect.
The applicants were not invited to attend the special committee meeting or were not aware that it was to take place.
The respondent argued that the Tribunal did not have jurisdiction to receive the applicants' application and determine the dispute. However, in the event, the Tribunal found that it did have jurisdiction, the respondent conceded that it was obliged to afford procedural fairness to the applicants in the course of making the decision to revoke the applicants' memberships and that procedural fairness was not extended to the applicants.
The Tribunal found that it did have jurisdiction and that the decision was invalid and the notice was set aside.
The respondent argued that the applicants ought not be readmitted to the membership on the basis of their conduct, the animosity between the parties, and the applicants very limited participation with the respondent and the respondent's very small membership which would result in an injustice to the respondent.
The Tribunal did not reinstate the memberships, but declared the respondent is to provide details of how the applicants might apply to be members and what the membership fee for one year's membership was and the applicants were entitled to make a new application for membership and to have their applications considered in accordance with the rules of the respondent and with the right to be informed of any objection to their membership renewal and to reply to any objection.
Category: B
Representation:
Counsel:
Applicants : In Person
Respondent : Mr M Rennie
Solicitors:
Applicants : N/A
Respondent : Michael Rennie
Case(s) referred to in decision(s):
Caltex Australia Petroleum Pty Ltd and Town of Vincent [2010] WASAT 79
Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43
Kioa v West (1985) 159 CLR 550
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28
This application
1 This application arises from a decision of the respondent to immediately revoke the membership of two members of the Leonora Clay Target Club.
2 The applicants, Mr Ross Pestkett and Mr Geoffrey Simpson sought:
1. reinstatement to the membership of the respondent;
2. an order that the respondent send a letter to all Western Australian Clay Target Association (WACTA) affiliated clay target clubs in Western Australia, apologising for the revocation and informing them that the applicants memberships had been restored; and
3. a statement of account to be emailed to the applicants informing them of the cost of subscriptions to join the respondent for the following year.
Background
3 In August 2012, the applicants were members of the Bunbury Clay Target Club (BCTC) and attended a shoot in Leonora organised by the respondent. In or about November 2012, the applicants became members of the respondent and remained members until their expulsion in May 2014.
4 The respondent is an association incorporated under the Associations Incorporations Act 2015 (WA) (AI Act). The respondent provides its members with the opportunity to participate in clay target shooting. The respondent is a member of WACTA and was obliged by its membership of that association to comply with a WACTA Member Protection Bylaw (Bylaw).
5 Prior to their expulsion, the applicants attended two shoots in Leonora, one shoot as members. The applicants played no part in the administration of the respondent and did not attend any social function held by the respondent.
6 The respondent had 12 members and was small club in a remote area of Western Australia.
7 A shoot was held by the BCTC. The applicants attended on 28 February 2014 and were members of the respondent.
8 On the morning of 1 March 2014, the applicants were involved in a discussion with members of the BCTC about events said to have occurred the previous night and the applicants left the shoot.
9 Mr Peskett wrote to the BCTC by letters dated 1 and 2 March 2014, putting forward his position and purporting to speak also on behalf of Mr Simpson as to the events of 28 February and 1 March 2014.
10 On 7 March 2014, the BCTC wrote to the applicants informing that that they were banned from any further shoots or competitions held at or by the BCTC.
11 On 10 March 2014, an official with the BCTC wrote to WACTA complaining about the applicants and supplied witness statements. The BCTC also gave notice to WACTA. On 25 March 2014, WACTA wrote to the respondent and provided the material that had been submitted to it by the BCTC, together with a direction to the respondent to deal with breaches of the Bylaw. WACTA claimed that the materials were provided to the respondent in confidence and that they must remain confidential.
12 The applicants were not provided with the WACTA correspondence or the material it enclosed. They were not provided with an opportunity to respond.
13 On 6 May 2014 the respondent convened a special committee and a resolution was put forward and passed, revoking the applicants' memberships with the respondent (decision).
14 On 7 May 2014 the respondent provided a written notice to the applicants revoking their membership with immediate effect (Notice).
The evidence and the parties' positions
15 The applicants were represented by Mr Peskett who presented the case for the applicants and who gave evidence in support of the applications.
16 According to the applicants, the issue for the Tribunal to determine was stated in Mr Peskett's reply to the respondent's Statement of Issues, Facts and Contentions (SIFC), namely, 'we were not afforded natural justice in the process by which we were expelled from the respondent's club, we were not provided with proper notice of the respondent's claims against us, and we had no time to prepare a written or verbal defence'.
17 Following their expulsion, Mr Peskett gave uncontradicted evidence that the applicants had applied to three further clubs, but that their memberships had not been accepted and would not be while the expulsions stood. The respondent submitted that the applicants may have applied to more clubs but the Tribunal accepts the applicants' evidence and is satisfied that the expulsion worked to prevent them from joining another WACTA affiliated club.
18 The respondent contended that the Tribunal did not have jurisdiction to hear the application as the Respondent's Rules (Rules) did not have a procedure for dealing with the dispute between the applicants and the respondent and therefore the applicants could not meet a threshold requirement to enliven s 182 of the AI Act.
19 Section 182(1) of the AI Act provides:
If a dispute cannot be resolved under the procedure provided for as required by Schedule 1 Division 1 item 18
(a) the incorporated association concerned; or
(b) a member of the association involved in the dispute,
may make an application to the State Administrative Tribunal to have the dispute determined by that Tribunal.
20 Schedule 1 Division 1 of the AI Act provides matters that are to be addressed in the rules of an incorporated association. This includes Item 18 which requires:
A procedure for dealing with any dispute under or relating to the rules
(a) between members; or
(b) between members and the incorporated association.
(Dispute Resolution Procedure)
21 Section 198(2) of the AI Act applies so an association has three years after the commencement day to ensure that its rules include the dispute resolution procedure.
22 The respondent was not, at the time of the dispute, required to have a dispute resolution procedure in its Rules.
23 The respondent's position was that it did not have to have a procedure for dealing with any dispute under, or relating to, the Rules between members and itself, the dispute was therefore not scrutinised by the procedure, since it was not required to have one and, as such, the Tribunal could not determine these disputes.
24 Mr Peskett contended that the Bylaw was used as the procedure in the expulsion and, as such, had a Dispute Resolution Procedure.
25 Mr Peskett contended that Rule 11 of the Bylaw should have been used. The applicants contended that the respondent did have, by reason of Rule 11 of the Bylaw, a Dispute Resolution Procedure and, as such, the Tribunal did have jurisdiction to determine the application. This rule contemplated an informal disposition of the complaint with the complainant having the carriage of the process.
26 Rule 11 of the Bylaw provided that a person or organisation may make a complaint about a person or organisation to whom the Bylaw applies, if they consider a person or organisation has, or may have, committed a breach of any part of the Bylaw.
27 The respondent called Mr Dan Yates, the respondent's president, who gave evidence as to the circumstances in which the applicants joined the respondent. Through Mr Michael John Mulcahy, the respondent's club secretary, it was established that the respondent was incorporated on 9 January 1973 and that the club's records included the Rules which were stamped by the Company's Office, Perth, dated 11 February 1972, and that the club had not ever changed or amended its Rules.
28 A copy of the Rules was tendered by Mr Mulcahy.
29 Rule 22 of the Rules provided:
MANAGEMENT
The Management of the club shall be invested in the Officers and Committee. They shall have the power to make bylaws not inconsistent with the rules for the management of the club and the enforcement of the rules, appoint subcommittees, authorise all expenditure, inflict fines or suspension for breach of the rules or bylaws, and exercise all such powers and do all such acts as are not hereby expressly required to be exercised or done by the Club's General Meeting.
30 This Rule allowed the respondent to:
• enforce the Rules
• appoint a subcommittee; and
• impose a penalty for breach of the Rules.
31 The Tribunal concludes the power could also include a power to investigate a breach of the Rules and to engage in dispute resolution. This is an incident of the express powers under the Rule and dispute resolution collectively describes their purpose.
32 The respondent appointed a special committee to consider the WACTA complaint and to resolve to revoke the applicants' memberships. The words special committee do not appear within Rule 22 of the Rules although the respondent had the power to appoint subcommittees. The use of the term 'special committee' may have engendered in the minds of the applicants a belief that the respondent had convened a Special General Meeting to consider and determine the WACTA complaints as some of the correspondence from Mr Peskett to the respondent, by which he sought to challenge or negotiate the decision, referred to requirements for constitutionality that are normally associated with a special general meeting.
33 Rule 41 provided:
MISCONDUCT
Any member charged with misconduct may be summoned before the Committee, who shall after hearing the complaint and taking such evidence as they may consider proper, if they find the charge proved inflict a penalty of suspension from all or any of the privileges of a member for not more than twelve months, or fine not exceeding $4.00. There shall be no appeal from such decision. If the Committee consider that one proved charge of gross misconduct suspension or fine as above is insufficient, they may call on a member to resign, and if he neglects or refuses to resign within ten days, they may declare him expelled from the club, but in such case the accused shall have the right to appeal to a Special General Meeting, whose decision shall be final.
34 Rule 42 provided:
DISPUTES
Any dispute between members may be referred by either disputant in writing to the Committee, whose decision thereon, subject to the rules, shall finally settle the matter. The Complainant shall, with his complaint, deposit $2.10 with the Secretary or Treasurer, and if the Committee considered the Complaint to be frivolous, they may order the amount to be forfeited to the funds of the club.
35 The respondent referred to Rule 42 but said it did not fulfil the criteria as it provided a dispute resolution procedure only between members. This is a narrow view of the Rule. In this instance, the respondent's president received the complaint on behalf of the respondent. The complaint was made by WACTA and the respondent was bound by the By-laws. As an officer of the respondent, the president was obliged to prosecute the complaint. The Tribunal considers that it was open to find that the dispute was a dispute between members and that the dispute resolution procedure in Rule 42 was enlivened and applied.
36 WACTA is the state governing body of clay target shooting clubs and the respondent is bound by the Bylaw. The applicants were members of the respondent and agreed to be bound by the respondent's Rules.
37 By his affidavit at paragraph 15 and in support of the applicants' contention that the Tribunal had jurisdiction, Mr Peskett contended that 'there is no evidence … the respondent used the Rules in the applicants' expulsion and asserted the contrary, namely that the evidence was that the respondent did not use the Rules but rather relied on the By-laws. It is not necessary for the Tribunal to decide whether the respondent used the Rules or the By-laws to accept the complaints and revoke the applicants' memberships. The respondent used a combination of the Rules and the Bylaws in the process. The basis for this conclusion is that the complaint was made by the BCTC; the WACTA forwarded the complaint with a request to the respondent to keep it confidential and to manage it, according to the Bylaw and the respondent called a special committee meeting pursuant to Rule 11 and kept the matters confidential. Specifically, the respondent did not inform the applicants of the complaints or invite them to participate and the Bylaws were used to frame the complaint and the penalty.
38 The respondent, a small organisation and not an expert in procedural fairness or administration, found itself in the difficult position of attempting to apply its own Rules and the Bylaw to the complaints made against the applicants.
39 At the hearing, the respondent contended that if the Tribunal did have jurisdiction the issues to be determined were:
1) whether the respondent followed its own Rules in expelling the applicants;
2) if the respondent did not apply its Rules what are the consequences and what is the appropriate relief; and
3) whether the applicants should have exercised their right of appeal to a special general meeting under Rule 41.
40 The materials that were provided to the respondent, namely Mr Peskett's letters of 1 and 2 March 2014, made it very clear that Mr Peskett did not accept that he or Mr Simpson had acted in an unsportsmanlike manner. Mr Peskett's letter of 1 March 2014 (the letter) was intemperate and might reasonably have been regarded as being threatening in tone. Nominating, as it did, areas visited by BCTC members and expressing and representing that he and Mr Simpson also not only held a grudge for life, but would act without regard for consequences in matters that they said that they would do and further represented that the applicants were happy to accommodate the BCTC in the event that they wanted a feud. The letter was signed by Mr Peskett only and there is no evidence that it was endorsed by Mr Simpson. Mr Peskett's evidence was that he alone was responsible for the letter.
41 At an early stage following the respondents' decision, Mr Peskett, by email dated 28 May 2014, objected to the decision and suggested that the respondent had made a mistake and suggested that the way forward was for the parties, BCTC and WACTA to meet and discuss the matters. It was clear that Mr Peskett did not accept that there was a basis for the decision. His position was shared by Mr Simpson although, for the main, Mr Peskett was the correspondent.
42 Subsequently the respondent, by email dated 16 June 2014, informed the applicants that the decision of the special committee was based on the contents of a letter said to be from the applicants to the BCTC.
43 The letter was 'the catalyst for immediate termination as opposed to other approaches which could have been taken'.
44 The respondent assured the applicants that if the meeting held by the special committee proved to be unconstitutional, it will be rectified; the outcome will remain the same.
45 Although the letter provided a place for each applicant to sign, it appears that it moved from Mr Peskett solely and further appears that the respondent later accepted that this was the case.
46 The observation as to the constitutionality of the special committee meeting was made, it seems, in reply to complaints by the applicants that the meeting of the special committee was not held in accordance with the provisions of the respondent's constitution and was therefore invalid.
47 Superficially the respondent's email represented:
1) a shift in the basis on which the decision was made; namely from the conduct of the applicants at the BCTC meet on 28 February and 1 March 2014, to the letter; and
2) a representation that the outcome of the decision was not likely to change, whatever the constitutional default, given the reliance on the letter and that whatever the applicants provided to the respondent, less than proof that they had not sent the letter, in the event that they had an opportunity to address the respondent, would not work to change the decision.
48 The respondent's exhortation to the applicants to prove that they had not sent the letter was a reversal of the responsibility, which was upon the respondent, to establish that of the applicants breached the respondent's Rules and that the penalty imposed was justified. The respondent's reversal of the responsibility for establishing a breach persisted when the respondent's purported basis for the decision to revoke the applicants' memberships turned to discussion about their conduct at the shoot in February 2014 in which the respondent invited the applicants to call witnesses to give evidence that nothing had taken place.
49 Mr Peskett replied by email dated 18 June 2014 again complaining that the meeting of the respondent was unconstitutional as notice for the meeting had not been advertised. Although not necessary for the resolution of this application, the Tribunal considers that the assertion that the meeting was unconstitutional was likely misconceived. It appears probable that the respondent called a special committee meeting rather than a Special General Meeting. This was a subcommittee meeting styled as a special committee and permissible under Rule 22.
50 The lack of clarity with regard to the reason for the decision was further aggravated by the respondent's email of 26 June 2014, by which it:
• offered to entertain the possibility of mediation if the applicants discharged an onus to refute claims and statements of BCTC members and unidentified others in circumstances where the responsibility for establishing the misconduct ought to have rested with the respondent;
• asserted that the applicants' denials were inconsistent and put the responsibility on the applicants to prove nothing happened by calling witnesses;
• represented that it had not relied on claims of vandalism that could not be proved, in circumstances where the reference to them gave rise to the impression that the existence of such unproven and unprovable claims added to the merit of the respondent's decision;
• asserted that the respondent needed to hear proof that the applicants did not verbally insult and abuse BCTC members on the Friday night at Collie and carry on with abuse and threats when asked to leave on Sunday morning, when it was clear from Mr Peskett's correspondence that this conduct was denied;
• referred to the letter said previously to be the catalyst for immediate termination as aggravating the grounds for misconduct; and
• asserted that Mr Simpson was not aware of the letter, but put the responsibility on Mr Peskett for its decision to rely on the letter which it acknowledged did not come from Mr Simpson.
51 The lack of clarity in the basis for the revocation is clear in Mr Simpson's email of 16 August 2014 in which Mr Simpson complained that he still had no idea what he had been charged with.
52 The respondent was a small club. Neither it nor the applicants were legally qualified or had the benefit of legal assistance. The parties were acting bona fide to resolve the dispute and doing their best to apply the requirements of the Rules and the Bylaws as they understood these to apply.
53 Substantively, the correspondence demonstrated attempts by the applicants to resolve the dispute. Their entreaties to negotiate were rejected by the respondent but the applicants' grounds were considered and, although erroneously, the respondent advanced a basis on which the decision might be revisited. There was clearly an effort by the parties to resolve the dispute.
54 Mr Peskett's correspondence to the respondent was at times intemperate. The respondent's correspondence was also unhelpful. However, it is not the Tribunal's role to adjudicate on the tone of the correspondence passing between the parties. The Tribunal finds the decision was flawed from the outset and that the parties attempted to resolve the dispute by engaging in this correspondence.
55 The respondent conceded that procedural fairness had not been advanced to the applicants and accepted that if the Tribunal found that it did have jurisdiction to determine the disputes that the decision and the Notice could not stand. The issue would then be what remedy would issue.
56 In the end, the relief pressed for by the applicants was for the decision to be set aside so that the applicants might apply to become members of another clay target shooting club in order that they might continue to pursue their pastime.
57 One purpose of the dispute resolution procedure is that parties might attempt to resolve matters between themselves before making an application to the Tribunal.
58 The respondent submitted that the provision operates as a filter to stop minor or spurious disputes from advancing beyond an association level. This submission, if accepted, is sensible. A filter might operate to preserve the resources of the Tribunal so that those resources are used only following an engagement by the parties in a dispute resolution procedure. This might result in the parties themselves resolving the dispute, thus saving the resources of the Tribunal.
59 If the Tribunal were to find that it did not have the jurisdiction to determine the dispute, the applicants would be confronted with two choices. To abandon their claims and therefore the opportunity to continue to enjoy an important pastime to them, or commence proceedings in the Supreme Court, bringing on the associated expense, complexity and delay occasioned by proceedings with that arena. Neither option is especially palatable.
Statutory construction
60 The issue as to whether the Tribunal has jurisdiction to determine turns on the construction of s 182 of the AI Act.
61 Section 18 of the Interpretation Act 1984 (WA) provides:
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.
62 It is clear that the purpose of s 182 of the AI Act is to allow an applicant to make an application to the Tribunal to determine a dispute, if the dispute cannot be resolved under the Dispute Resolution Procedure.
63 It is not clear from this provision what is to happen if there is no dispute resolution procedure. If there is none, might the purpose of the provision be overwhelmed by the lack of either the dispute resolution procedure or compliance with it? Is compliance with the dispute resolution procedure a matter of greater purpose than determining the dispute, to achieve the promotion of the purpose of this provision?
64 In Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 (Project Blue Sky) the majority of the High Court provided authorative guidance as to reconciling conflicting statutory provisions.
65 In this instance, the issue is as to the construction of s 182 of the AI Act and not the resolution of a conflict between that provision and another, however, the principles expressed by the High Court are informative as to how s 182 should be construed. In Project Blue Sky the majority said at [69] [70], citations and footnotes omitted:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. … 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
66 The Tribunal considers that the general purpose and policy of s 182 of the AI Act is to provide a means for a dispute to be determined. The leading provision is the ability of the Tribunal to determine the dispute if it cannot be resolved under the procedure. The Tribunal considers this outcome will promote consistency and fairness and will achieve the result that will best give effect to the purpose and language of this provision.
67 To construe the provision in the way contended for by the respondent would allow associations to act unfairly towards their members and force those affected to abandon their rights or seek relief in the Supreme Court, further burdening that court's resources in circumstances where the obvious forum for resolving the dispute expeditiously and with less formal technicality is, if the parties are unable to, this Tribunal.
68 In support of its argument that the provision was meant to act as a filter and therefore compliance with the dispute resolution procedure was mandatory to enliven jurisdiction, the respondent referred to page 54 of the Explanatory Memorandum to the Associations Incorporations Bill 2014 (WA).
69 If recourse were required to the Explanatory Memorandum in order to construe the meaning of s 182(1) of the AI Act, the Tribunal would find that the provision are intended to increase the forums available for the resolution of the dispute, rather than to restrict them. Relevantly, the express words of the Explanatory Memorandum, at cl 182 are:
…
The purpose of subclause (1) is to introduce a further dispute resolution process to apply where a dispute cannot be settled through an application of the association's own dispute resolution process.
(Tribunal emphasis)
70 This suggests a greater capacity for parties to engage in dispute resolution processes rather than limiting their capacity by acting as a filter to stop disputes from reaching the Tribunal.
71 The Tribunal finds that it would be inconsistent with the purpose and policy of this provision that, for a three year period, the Tribunal might lack jurisdiction to determine such complaints, and that the Supreme Court might be the sole repository of such disputes.
72 The Tribunal agrees that s 182(1) of the AI Act does create a jurisdictional prerequisite that must be satisfied before the Tribunal can have jurisdiction in a matter. However, that threshold is lower than the threshold argued for by the respondent. In this instance, the threshold was passed as the dispute could not, as a matter of fact, be resolved under the procedure because the respondent, as a matter of law, was not required to have the procedure included in its Rules.
73 However, if necessary to decide the Tribunal would have found that there was a dispute resolution procedure, namely Rules 22, 41 and 42, and that the parties attempted to resolve the dispute by correspondence, following the decision, but failed to do so.
74 The respondent referred to the decision of Pritchard DP in Caltex Australia Petroleum Pty Ltd and Town of Vincent[2010] WASAT 79 at [30] [31].
75 The principles referred to, namely the Tribunal, is required to consider the limits of its own authority to determine the application in order to ensure that it does not exceed the authority given to it by the relevant enabling Act and the State Administrative Tribunal Act 2004 (WA), are not in dispute. The Tribunal considers that it has jurisdiction under the AI Act to determine the applications.
76 The respondent asserted that there was a jurisdictional fact that is a criteria which had to be satisfied in order for the Tribunal to have the jurisdiction to accept the application. The respondent referred to the decision of the High Court in Gedeon v Commissioner of the New South Wales Crime Commission[2008] HCA 43, which at [43] provided an explanation as to the meaning of the expression. The Tribunal respectfully accepts the definition of the expression however, is satisfied that the resolution of the jurisdictional fact must be that the Tribunal does have the jurisdiction to determine the applications.
77 Section 182(1) of the AI Act gives the Tribunal jurisdiction to determine a dispute between a member and the respondent. The applicants in this matter invoked that jurisdiction by their application to the Tribunal on 22 September 2016.
78 The matter falls within the Tribunal's original jurisdiction: s 15(1) of the SAT Act. In exercising its original jurisdiction, the Tribunal is to deal with the matter in accordance with the SAT Act and the AI Act.
79 Section 182(3) of the AI Act provides the Tribunal may make orders, giving such relief as the Tribunal considers appropriate, including one or more of the following orders:
(a) an order giving directions for the observance of the rules of the incorporated association by any person who has an obligation to observe those rules;
(b) an order declaring and enforcing the rights and obligations of members of the incorporated association between themselves;
(c) an order declaring and enforcing the rights and obligations between the incorporated association and any member or members of the association.
Procedural fairness
80 The respondent conceded that if the Tribunal found that it had jurisdiction to determine the dispute that procedural fairness was not afforded to the applicants in the decision.
81 Although the Tribunal considers that the concession was correctly made, the Tribunal is required to consider the matter as it is relevant to the relief sought by the applicants and the Tribunal's capacity to grant relief.
82 To make an order under s 182(3)(a) (c) of the AI Act, the Tribunal must identify either the Rule to be observed in s 182(3)(a), or the rights and obligations that might be enforced under s 182(3)(c) of the AI Act.
83 If the applicants' claims for relief, namely:
1. Reinstatement to the membership of the respondent;
2. An order that the respondent send a letter to all WACTA affiliated clay target clubs in Western Australia, apologising for the revocation and informing them that the applicants' memberships had been restored; and
3. A statement of account to be emailed to the applicants informing them of the cost of subscriptions to join the respondent for the following year.
- fall within the orders that are open to the Tribunal under the provision the Tribunal must consider whether they should be made following the concession, and finding that the applicants were denied procedural fairness.
84 The rules of procedural fairness are concerned with process rather than outcomes. The rules of procedural fairness apply to the process by which a decision, pursuant to the exercise of power, will be made. To satisfy the condition of procedural fairness, the respondent was obliged to adopt a procedure which conformed to that procedure which a reasonable and fair repository of the power to be exercised would adopt in the circumstances: Kioa v West (1985) 159 CLR 550 at 627.
85 The consequence of the respondent's finding that the applicants had breached the Rules or the Bylaws, assuming that the applicants were bound by them, could affect the interests of the applicants. It could prevent them from enjoying, potentially throughout the State, a pastime from which they derived great enjoyment. A particular injustice was visited upon the applicants by reason of the respondent's failure to extend procedural fairness to them. The respondent should have afforded procedural fairness to the applicants as persons who may have been adversely affected by its findings. The Tribunal considers that the respondent was obliged to adopt a procedure which a reasonable and fair repository of the power to be exercised would adopt in the circumstances.
86 In these instances the procedures would have included:
1. informing the applicants of the complaints;
2. providing the applicants with the complaints and supporting materials;
3. inviting them to respond;
4. expressing a view on penalty, if it found that the complaints were established;
5. inviting a response as to the proposed penalty;
6. notifying the applicants of the decision; and
7. informing them of any right of appeal and how that might be exercised.
87 The Tribunal finds there was an implied condition that governed the exercise of the powers that the respondent had to revoke the applicants' membership and that there was a breach of this condition, namely, the obligation to afford procedural fairness by the respondent and that the breach worked to deprive the applicants of the possibility of a successful outcome in relation to these complaints. The applicants were not informed that the complaints were made, that they were being considered, and were not afforded an opportunity to respond to them or to suggest what penalty might be imposed. They were not informed of a right of appeal or of how to exercise such a right. After the decision was made, the discussions were in circumstances where it was not clear why the applicants' memberships had been revoked and the respondent framed the issue, so that the onus for resisting the complaints and outcomes was on the applicants.
88 The respondent also referred to Rule 41 which dealt with misconduct. This Rule provided that the committee may summon the charged member to appear before the committee. The respondent submitted that the use of the word may suggests that the committee had discretion as to whether or not to summon the members to appear before the committee.
89 The Tribunal does not accept that the use of the word may afforded the discretion contended by the respondent. The Tribunal notes the concession made by the respondent that procedural fairness was not afforded to the applicants, but for completeness, expresses the view that the use of the word may could not relieve the respondent of the obligation to afford procedural fairness to the applicants by extending to them detail of the charges and an opportunity to respond. The word confers a power that the respondent might have exercised in dispute resolution in the course of complying with its obligation to provide procedural fairness, namely, a power to invite the applicants to attend before them in order to provide an informed response to the complaints.
90 The respondent also referred to the right of appeal which exists under the Rules. However, in circumstances where procedural fairness was not afforded to the applicants, the Tribunal takes the view that the decision under review was irretrievably flawed and cannot stand. The prospects of any appeal, if exercised, were amply telegraphed by the content of the respondent's correspondence to the applicants prior to the institution of this application.
91 The applicants cannot be criticised for not exercising a right of appeal and, in view of the strident correspondence, might be forgiven for concluding that the exercise of such a right would only produce a confirmation of the outcome of the original flawed decision.
92 The Tribunal considers, under s 183(3)(c) of the AI Act, that a declaration should be made that the decision made by the respondent was invalid because of the failure of the respondent to afford procedural fairness to the applicants and that a further order be made declaring that the respondent's Notice to the applicants was invalid and must be set aside.
93 The Tribunal does not consider that it is able to make an order reinstating the applicants' memberships to the respondent. The evidence was that the memberships were for a period of 12 months. Membership is dependent upon the completion of a membership form and payment of a fee. The Tribunal does not have the power to order reinstatement given the passage of time between the revocation of the membership and this decision and the Tribunal does not have the capacity to order waiver of the membership fee or for the submission of the application papers. Even if it did, the Tribunal would not order reinstatement or the waiver of the subscription or the applications for membership, because of the lack of engagement between the applicants and the respondent, the small number of members of the respondent and the obvious animosity between the applicants and the respondent. The Tribunal does, under s 183(3)(c) of the AI Act, have the power to declare that the applicants have a right to reapply for membership to the respondent and to direct that the applications are considered in accordance with the rules and the Tribunal will make these declarations.
94 The Tribunal does not have the capacity and would not order the respondent to either:
a) send a letter to all WACTA affiliated clay target clubs in Western Australia, apologising for the revocation and informing them that the applicants' memberships had been restored; or
b) order that a statement of account to be emailed to the applicants informing them of the cost of subscriptions to join the respondent for the following year.
Orders
For the reasons set out above the Tribunal:
1. Declares that the decisions of 6 May 2014 to revoke the applicants' memberships are invalid.
2. Sets aside the letters of 7 May 2014 from the respondent to the applicants by which the respondent informed the applicants of the decision made on 6 May 2014.
3. The respondent is, within 14 days of the date of these orders, to provide detail to the applicants of how they might apply for membership with the respondent.
4. The applicants are at liberty to apply for membership with the respondent and to have their applications considered in accordance with the Rules of the applicants and the respondent is to inform the applicants of any objection to their membership application in writing and with sufficient particularity so that the respondent might reply to the objections within 21 days of their receipt.
5. In the event that the applicants exercise their right of reply the respondent is to reconstitute for the purposes of hearing and determining if the applicants' applications for membership are to be accepted and must give notice to the applicants of such hearing and allow them the opportunity to attend at, or provide representations to, the hearing.
6. The applications are otherwise dismissed.
I certify that this and the preceding [94] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D MACLEAN, MEMBER
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