Saxby v Saxby - [2018] QSC 314

SUPREME COURT OF QUEENSLAND

CITATION:

Saxby v Saxby & Ors [2018] QSC 314

PARTIES:

Sharon Saxby

(applicant)

v
Gavin Saxby

(first respondent)

and

Shaun Adams

(second respondent)

and

Francis McGrath

(third respondent)

FILE NO/S:

TS No 624 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

21 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

17 and 18 September 2018

JUDGE:

Brown J

ORDERS:

The orders of the Court are that:

1.   It is declared that:

a.    The meeting of 28 April 2018 was valid.

b.   The meeting of 17 June 2018 was not validly called.

c.    The removal of Mr Frank McGrath as President on 28 April 2018 was void.

d.   The termination of Ms Sharon Saxby’s position as Secretary on 6 July 2018 and 22 July 2018 was void.

e.   The election of Mr Gavin Saxby as Vice President on 28 April 2018 was valid.

f.    As at 18 September 2018, the Executive of the Club consisted of Mr McGrath as President, Mr Saxby as Vice President, Ms Saxby as Secretary and Ms Horton as Treasurer.

g.    The decision to terminate the membership of Mr Frank McGrath, by the management committee on 30 May 2018 was void.

h.   The decisions to terminate the memberships of Ms Sharon Saxby, Mr Gavin Saxby and Mr Shaun Adams at the meeting of the Club on 22 July 2018 were void.

2.   Mr McGrath, Ms Saxby and Mr Saxby are to take all reasonable steps to place these reasons on the Club’s Facebook site by 7 January 2019.

3.   The parties make submissions, if any, by 24 January 2019 as to costs.

4.   The parties make submissions as to any further relief required by 24 January 2019 arising out of this application and these reasons.

CATCHWORDS:

ASSOCIATIONS AND CLUBS – EXPULSION, SUSPENSION AND DISQUALIFICATION – EXERCISE OF POWER – GENERALLY – where the relevant Club is the NQ Speedway Kart Club Inc (the Club) – where the applicant as Secretary called a general meeting in which a resolution was passed to remove the third respondent as President, and subsequently terminate his membership – where the third respondent submits that he was not accorded a full and fair opportunity to respond to the allegations made against him and the decision was void – where the third respondent continued to act as President and purported to remove the applicant as Secretary and subsequently terminate her membership – where the Club’s management committee is presently in a state of disarray – whether each purported exercise of power was valid pursuant to the Club Rules.

Associations Incorporation Act 1981 (Qld)

Hall v NSW Trotting Club Ltd [1977] 1 NSWLR 378
Kaur v Sikh Gundwara Perth (Inc) [2017] WASC 270

Re Mullen [1995] 2 Qd R 608

COUNSEL:

The applicant appeared on her own behalf

The first respondent appeared on his own behalf

No appearance for the second respondent

D T Forbes for the third respondent

SOLICITORS:

The applicant appeared on her…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] QSC 314
Decision Date: 21 December 2018

CaseChat Overview and Summary

Saxby v Saxby was a legal dispute between members of the NQ Speedway Kart Club Inc (the Club), including Frank McGrath, Sharon Saxby, and Gavin Saxby, regarding the validity of several decisions made by the Club's management committee. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT). The core issue was whether the decisions to remove McGrath as President, and subsequently terminate his membership, as well as the decisions to remove Saxby as Secretary and terminate her membership, were valid under the Club's rules.

The Court found that while McGrath had been notified about the need to address complaints against two Club members, including his son, he had not been given a specific opportunity to respond to the allegations. Consequently, the decision to remove him as President was deemed void. Additionally, the Court found that the meeting held on 17 June 2018 was not validly called. The Court also determined that the termination of Saxby’s membership, and the election of Saxby as Vice President, were valid. The Court concluded that the Executive of the Club, as at 18 September 2018, consisted of McGrath as President, Gavin Saxby as Vice President, Sharon Saxby as Secretary, and Ms Horton as Treasurer.

The Court's decision was based on the evidence presented and the adherence to procedural fairness. The orders included the declaration that the meeting of 28 April 2018 was valid, the meeting of 17 June 2018 was not validly called, and the removal of McGrath as President and the termination of Saxby’s membership were void. The election of Saxby as Vice President was upheld as valid. The parties were required to place the Court’s reasons on the Club’s Facebook site by a specified date and make submissions on costs and further relief by another specified date.

Orders

Orders of the court

The orders of the Court are that:

1. It is declared that:

a. The meeting of 28 April 2018 was valid.

b. The meeting of 17 June 2018 was not validly called.

c. The removal of Mr Frank McGrath as President on 28 April 2018 was void.

d. The termination of Ms Sharon Saxby’s position as Secretary on 6 July 2018 and 22 July 2018 was void.

e. The election of Mr Gavin Saxby as Vice President on 28 April 2018 was valid.

f. As at 18 September 2018, the Executive of the Club consisted of Mr McGrath as President, Mr Saxby as Vice President, Ms Saxby as Secretary and Ms Horton as Treasurer.

g. The decision to terminate the membership of Mr Frank McGrath, by the management committee on 30 May 2018 was void.

h. The decisions to terminate the memberships of Ms Sharon Saxby, Mr Gavin Saxby and Mr Shaun Adams at the meeting of the Club on 22 July 2018 were void.

2. Mr McGrath, Ms Saxby and Mr Saxby are to take all reasonable steps to place these reasons on the Club’s Facebook site by 7 January 2019.

3. The parties make submissions, if any, by 24 January 2019 as to costs.

4. The parties make submissions as to any further relief required by 24 January 2019 arising out of this application and these reasons.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

While allegations were raised in relation to Mr McGrath’s conduct leading up to the meeting of 28 April 2018, it was not necessary for me to make any finding as to those matters to determine the proceedings and I have not done so. Decision to remove Mr McGrath as President Based on the evidence of Ms Saxby and documents provided, I find that the sequence of events leading to Mr McGrath’s removal as President was as follows. After Ms Saxby was elected as Secretary in February 2018, complaints were made about two Club members, one of whom was Mr McGrath’s son, Mr Chad McGrath, and the other, Mr Nucifora. Ms Saxby carried out some investigations in that regard. Ms Saxby informed Mr McGrath that a show cause meeting would need to be held in relation to Mr Chad McGrath and Mr Nucifora as a result of the investigations. Mr McGrath expressed some resistance to that occurring, in response to which Ms Saxby stated that she would raise the matter at the next general meeting, to be held on 11 March 2018. A number of members indicated that they could not attend the meeting of 11 March 2018, with the result that the date was cancelled. Ms Saxby then attempted to arrange another date for a meeting. Mr McGrath subsequently posted on Facebook on 10 April 2018 that the next meeting would be on 13 May 2018. As several members complained because that was Mother’s day, the date was subsequently changed to 28 April 2018 by Ms Saxby, without Mr McGrath’s agreement. The 28 April date was the date of the Cairns Race meeting. Ms Saxby informed Mr McGrath that she would allow everyone to contribute to the agenda and would inform them when agenda items were due and when papers would be sent out. Mr McGrath stated that he would have nothing to do with the meeting. Ms Saxby informed Mr McGrath that if he failed to call a show cause meeting with Mr Nucifora and Mr Chad McGrath, he was putting himself in a position of conflict and was not acting in the best interests of the Club, and she would raise a motion to remove him as President. Ms Saxby created a Facebook post on 13 April 2018 informing members that a general meeting was to take place and if they wanted anything on the agenda to notify her by 25 April 2018. She sent an email to members later that evening informing them of the same and that the agenda and papers would be provided on 26 April 2018. On 26 April 2018, the agenda and general meetings were posted by Ms Saxby. The agenda did not contain any item of business as to the proposed removal of Mr Frank McGrath as President. Ms Saxby fairly conceded that there was no specific item which referred to Mr McGrath’s removal but submitted that it was caught under new business and that she had told him orally that it would be raised if he did not act upon the complaints. Mr McGrath posted on Facebook that he would not be attending on 28 April 2018 as his kart would not be ready. I do not accept his evidence in this regard and find that he decided not to attend the meeting. After 13 April but prior to 28 April 2018, Ms Saxby made several attempts to contact Mr McGrath but was unsuccessful. Mr McGrath posted a message on 28 April 2018 stating that the general meeting was not to take place as it was unconstitutional on advice from “a Governing Body”. The posting of the message is consistent with a decision by him not to attend the meeting. The governing body likely referred to was the SKAA. When asked by Ms Saxby whether what she had been told by Mr McGrath was accurate, the Secretary of the SKAA stated that she was unaware of any such advice to Mr McGrath and that the SKAA committee had not met or been consulted. Mr McGrath however in cross-examination stated that he was not referring to the SKAA but did not identify to whom he was referring. I find that he was referring to the SKAA. Ms Saxby left a message on Mr McGrath’s phone prior to the 28 April 2018 meeting proceeding, informing him that she would be proposing a motion to have him removed as President.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Saxby v Saxby & Ors [2018] QSC 314
PARTIES:	Sharon Saxby (applicant) v Gavin Saxby (first respondent) and Shaun Adams (second respondent) and Francis McGrath (third respondent)
FILE NO/S:	TS No 624 of 2018
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	21 December 2018
DELIVERED AT:	Brisbane
HEARING DATE:	17 and 18 September 2018
JUDGE:	Brown J
ORDERS:	The orders of the Court are that: 1. It is declared that: a. The meeting of 28 April 2018 was valid. b. The meeting of 17 June 2018 was not validly called. c. The removal of Mr Frank McGrath as President on 28 April 2018 was void. d. The termination of Ms Sharon Saxby’s position as Secretary on 6 July 2018 and 22 July 2018 was void. e. The election of Mr Gavin Saxby as Vice President on 28 April 2018 was valid. f. As at 18 September 2018, the Executive of the Club consisted of Mr McGrath as President, Mr Saxby as Vice President, Ms Saxby as Secretary and Ms Horton as Treasurer. g. The decision to terminate the membership of Mr Frank McGrath, by the management committee on 30 May 2018 was void. h. The decisions to terminate the memberships of Ms Sharon Saxby, Mr Gavin Saxby and Mr Shaun Adams at the meeting of the Club on 22 July 2018 were void. 2. Mr McGrath, Ms Saxby and Mr Saxby are to take all reasonable steps to place these reasons on the Club’s Facebook site by 7 January 2019. 3. The parties make submissions, if any, by 24 January 2019 as to costs. 4. The parties make submissions as to any further relief required by 24 January 2019 arising out of this application and these reasons.
CATCHWORDS:	ASSOCIATIONS AND CLUBS – EXPULSION, SUSPENSION AND DISQUALIFICATION – EXERCISE OF POWER – GENERALLY – where the relevant Club is the NQ Speedway Kart Club Inc (the Club) – where the applicant as Secretary called a general meeting in which a resolution was passed to remove the third respondent as President, and subsequently terminate his membership – where the third respondent submits that he was not accorded a full and fair opportunity to respond to the allegations made against him and the decision was void – where the third respondent continued to act as President and purported to remove the applicant as Secretary and subsequently terminate her membership – where the Club’s management committee is presently in a state of disarray – whether each purported exercise of power was valid pursuant to the Club Rules. Associations Incorporation Act 1981 (Qld) Hall v NSW Trotting Club Ltd [1977] 1 NSWLR 378 Kaur v Sikh Gundwara Perth (Inc) [2017] WASC 270 Re Mullen [1995] 2 Qd R 608
COUNSEL:	The applicant appeared on her own behalf The first respondent appeared on his own behalf No appearance for the second respondent D T Forbes for the third respondent
SOLICITORS:	The applicant appeared on her…