SIVANPATHAKUMAR and THE MANAGEMENT COUNCIL OF SAIVA MAHA SABAI OF WA INC - [2022] WASAT 96

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: ASSOCIATIONS INCORPORATION ACT 2015 (WA)
CITATION:   SIVANPATHAKUMAR and THE MANAGEMENT COUNCIL OF SAIVA MAHA SABAI OF WA INC [2022] WASAT 96
MEMBER:   MS C CONLEY, MEMBER
HEARD:   8 AUGUST 2022
DELIVERED          :   4 NOVEMBER 2022
FILE NO/S:   CC 1952 of 2021
BETWEEN:   JEYAKODY SIVANPATHAKUMAR
First Applicant
KANAGARATHAM THANABALASINGAM
Second Applicant
VASANTHI SIVANPATHAKUMAR
Third Applicant
SUNDARAKANTHY NADESAN
Fourth Applicant
GEETHA DEVADAS
Fifth Applicant
SIVAPRAGASAM ARULPRAGASAM
Sixth Applicant
AND
THE MANAGEMENT COUNCIL OF SAIVA MAHA SABAI OF WA INC
First Respondent
SABANATHAN VARAGUNANATHAN
Second Respondent
GANESHASUNDARAM RAGURAGAVAN
Third Respondent
GERALD YOGENDRAN XAVIER
Fourth Respondent

Catchwords:

Incorporated association - Application under s 182 of the Associations Incorporation Act 2015 (WA) in respect of four disputes - Application to dismiss - Jurisdiction of Tribunal - Whether parties followed dispute resolution procedure in rules of incorporated association - Whether Tribunal has jurisdiction to grant relief sought - Application dismissed because Tribunal does not have jurisdiction to determine disputes

Legislation:

Association Incorporation Regulations 2016 (WA), reg 4, Sch 2
Associations Incorporation Act 2015 (WA), s 3(b)(ii), s 7(3), s 7(3)(b)(ii), s 21, s 22, s 22(3)(a), s 23, s 26, s 29(1), s 29(5), s 30, s 30(1), s 30(6), s 31, s 33, s 91, s 182, s 182(1), s 182(2), s 182(3), Sch 1, Div 1, Pt 3
Australian Charities and Not-for-profits Commission Act 2021 (Cth)
Interpretation Act 1984 (WA), s 5
Rules of the Supreme Court 1971 (WA)
State Administrative Tribunal Act 2004 (WA), s 15(1), s 87(4)

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Applicant	:	Mr J Sivanpathakumar
Second Applicant	:	Mr J Sivanpathakumar
Third Applicant	:	Mr J Sivanpathakumar
Fourth Applicant	:	Mr J Sivanpathakumar
Fifth Applicant	:	Mr J Sivanpathakumar
Sixth Applicant	:	Mr J Sivanpathakumar
First Respondent	:	Mr PG McGowan
Second Respondent	:	Mr PG McGowan
Third Respondent	:	Mr PG McGowan
Fourth Respondent	:	Mr PG McGowan

Solicitors:

First Applicant	:	Sivan Legal
Second Applicant	:	Sivan Legal
Third Applicant	:	Sivan Legal
Fourth Applicant	:	Sivan Legal
Fifth Applicant	:	Sivan Legal
Sixth Applicant	:	Sivan Legal
First Respondent	:	Barry Nilsson Lawyers (WA)
Second Respondent	:	Barry Nilsson Lawyers (WA)
Third Respondent	:	Barry Nilsson Lawyers (WA)
Fourth Respondent	:	Barry Nilsson Lawyers (WA)

Case(s) referred to in decision(s):

Cockman v Gorman [2022] WASC 125; 366 FLR 284
Green and Port Hedland Pony Club Inc [2019] WASAT 16
Harper v Racing Penalties Appeal Tribunal of Western Australia (1995) 12 WAR 337
Kavanagh and Pine Valley Pistol Club Incorporated [2020] WASAT 11
Kelmscott Senior Football Club (Inc) and Western Australian Amateur Football League (Inc) [2018] WASAT 6
Norton v The Queen [2001] WASCA 207; (2001) 24 WAR 488
Sea Shepherd Australia Ltd v State of Western Australia and Others [2014] WASC 66; (2014) 200 LGERA 348
Smith and Murray Districts Carriage Driving Club Incorporated [2021] WASAT 44
Travelex Ltd v Commissioner of Taxation [2010] HCA 33

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Saiva Maha Sabai of WA Inc (SMS Association) is an association incorporated under the Associations Incorporation Act 2015 (WA) (AI Act). The SMS Association was incorporated on 19 August 1996.
The first applicant was a member of the SMS Association prior to his expulsion.
The management council of the SMS Association (Management Council) is the first respondent.
The second, third, fourth, fifth and sixth applicants and the second, third and fourth respondents are all members of the SMS Association.
On 5 December 2021, the applicants lodged an application with the Tribunal under s 182(2) of the AI Act (Application) seeking to have the following four disputes determined by the Tribunal:
a)a dispute about an election held on 28 March 2021 (Election) and the inspection of documents relating thereto (Dispute 1);
b)a dispute about various alleged breaches of the rules of the SMS Association between 2018 and 2021 (Dispute 2);
c)a dispute about voting on proposed new rules (Proposed New Rules) to be adopted by the SMS Association, namely that the first applicant's proposed amendments to the rules of the SMS Association were not considered at a Special General Meeting but were rejected by the Management Council (Dispute 3); and
d)a dispute about the proposed expulsion/expulsion of the first applicant from the SMS Association (Dispute 4).[1]
[1] See also Further and Better Particulars of Dispute 4 dated 11 April 2022.
The relief being sought by the applicants in respect of each dispute is set out in the table below:[2]
[2] See the Attachment to the Application to the Tribunal dated 5 December 2021 headed 'Consolidated Disputes' (Consolidated Disputes Document).

Dispute

Relief Sought

Dispute 1

a)  an order that the Election held on 28 March 2021 for the positions of Assistant Secretary, Treasurer, and the ordinary council members is declared null and void;

b)  an order directing the fourth respondent to hold a fresh election for the positions of Assistant Secretary, Treasurer, and seven ordinary council members;

c)  an order that members eligible to vote as at 28 March 2021 shall only be able to cast votes on the fresh election; and

d)  an order directing the first respondent to discover and allow inspection of documents identified in a request dated 27 May 2021.

Dispute 2

a)  an order declaring that the one or more of the respondents jointly and severally breached the rules of the SMS Association;

b)  an order directing the first respondent to initiate disciplinary action against the second and third respondents;

c)  an order that the first respondent, second respondent and third respondent pay financial loses and damages to the SMS Association and Siri BalaMurugan (Temple);

d)  an order that the second and third respondents pay to the first applicant the financial loss and damages suffered by him due to the breaches committed against him; and

e)  an order directing the first respondent to discover and allow inspection of documents in the request for preaction discovery of documents.

Dispute 3

An order declaring that the rules passed at the Special General Meeting held on 29 August 2021 be declared null and void.

Dispute 4

a)     a declaration that the grounds on which the first respondent issued a notice of expulsion to the respondent are unlawful and unconstitutional;

b)    until a final declaration or further order for relief is made, that the first respondent be restrained by an urgent injunction restraining the first respondent from hearing the expulsion of the first applicant from the membership of the SMS Association;

c)     an order dispensing with the requirement to follow the dispute resolution procedure; and

d)  any other relief the Tribunal considers fit.

On 29 April 2022 the respondents made an interim application to the Tribunal seeking the dismissal of the Application because the Application falls outside the scope of the Tribunal's jurisdiction or because the relief sought cannot be provided by the Tribunal (Dismissal Application).

The issue to be determined

The issue to be determined on the Dismissal Application is whether or not the Tribunal has jurisdiction under s 182 of the AI Act to determine each dispute or grant the relief sought in respect of each dispute.

Tribunal proceedings

A hearing in relation to the Dismissal Application was held in the Tribunal on 8 August 2022 (Hearing).
Prior to the Hearing, each of the parties filed:
a)statements of issues, facts and contentions;[3]
b)a bundle of documents;[4] and
c)written submissions in relation to the interim application.[5]
[3] First applicant's Statement of Issues, Facts and Contentions dated 21 February 2022 (Applicant's SIFC); applicants' agreed facts dated 11 April 2022 (Applicants' facts); Respondents' Statement of Issues, Facts and Contentions dated 18 March 2022 (Respondents' SIFC); Respondents' Facts in Support of the Respondents' Application filed 29 April 2022 dated 19 May 2022 (Respondents' Facts);
[4] Applicants' Bundle of Documents filed on 18 February 2022; and Respondents' Bundle of Documents dated 18 March 2022.
[5] Outline of respondents' Submissions on Interim Application dated 7 June 2022 (Respondents' Written Submissions); and first applicant's response to the respondents' submission on interim application and first applicant's submission to the respondents' interim application dated 20 June 2022 (First Applicant's Written Response).
During the Hearing, the Applicants' Bundle of Documents was taken into evidence as Exhibit 1 and the Respondents' Bundle of Documents was taken into evidence as Exhibit 2. Further, each party made oral submissions to supplement its written submissions.
At the Hearing, the applicants contended that they had complied with the dispute resolution procedure. However, the respondents contended that each of the four disputes had reached a point part way through the dispute resolution procedure but the first applicant elected to come to the Tribunal rather than complete the procedure.[6]

Legislative framework

[6] ts 16, 8 August 2022.

Section 182 of the AI Act provides:
(1)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.
(2)Nothing in subsection (1) prevents the State Administrative Tribunal from exercising its powers to refer the dispute, or any aspect of it, for mediation.
(3)In a proceeding under subsection (1), the State Administrative 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.

Jurisdiction of the Tribunal under s 182 of the AI Act

A matter arising under s 182 of the AI Act falls within the Tribunal's original jurisdiction as set out in s 15(1) of the State Administrative Tribunal Act 2004 (WA) (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.
In my view, there are three requirements which must be satisfied before an application can be made to the Tribunal under s 182(1) of the AI Act.
The first requirement is that there must be a dispute for the purposes of s 182(1) of the AI Act.
The second requirement is that there must be a dispute resolution procedure in the rules of an incorporated association which satisfies the requirements of Item 18 of Sch 1, Div 1 of the AI Act.[7]
[7] Kelmscott Senior Football Club (Inc) and Western Australian Amateur Football League (Inc) [2018] WASAT 6 (Kelmscott SFC) at [32].
The third requirement is that there must be a failure to resolve the dispute despite following that dispute resolution procedure.[8]

Dispute for the purposes of s 182(1) of the AI Act

[8] Kelmscott SFC at [32].

A dispute for the purposes of s 182(1) of the AI Act is a dispute under or relating to the rules of the incorporated association either between members, or between one or more members and the incorporated association.[9]
[9] Kavanagh and Pine Valley Pistol Club Incorporated [2020] WASAT 11 (Kavanagh) at [54].
The term 'dispute' means 'argumentation; verbal contention; a debate or controversy; a quarrel'.[10]
[10] Kavanagh at [54] referring to the definition of that term in the Macquarie Dictionary Online.
The term 'under' imports a direct connection between the dispute and the rules of the incorporated association.
The term 'relating to' is of wide import and requires that there be a degree of connection between the dispute and the rules of the incorporated association.[11]
[11] See Travelex Ltd v Commissioner of Taxation [2010] HCA 33 at [25].
An allegation that a particular rule in the rules of the incorporated association has been contravened in some way may give rise to a dispute between members, or between one or more members and the incorporated association. One example is where a rule has been completely ignored by the members or the incorporated association. Another example is where a rule has not been correctly followed by the members or the incorporated association.
The expression 'rules of the incorporated association' means the rules of the incorporated association for the purposes of Pt 3 of the AI Act which are in force at the time of the dispute.
If a decision or an action is made or taken by the management committee, or a general meeting of members under the rules of an incorporated association, which affects a member of the incorporated association, then this may give rise to a dispute between the member and the incorporated association for the purposes of s 182(1) of the AI Act.[12]
[12] Kavanagh at [68] and [71].
A dispute which is not under or relating to the rules of an incorporated association cannot be the subject of an application under s 182(1) of the AI Act.[13] For example, a dispute under or in relation to the AI Act or the AI Regulations is not a dispute under or relating to the rules of the incorporated association.

Dispute resolution procedure

[13] Kavanagh at [55].

Section 22(3)(a) of the AI Act provides that the rules of an incorporated association must address each of the matters set out in Sch 1, Div 1. Relevantly for present purposes, those matters include 'a procedure for dealing with any dispute under or relating to the rules between members and the incorporated association'.[14]
[14] AI Act, Item 18, Sch 1, Div 1.
Under s 26 of the AI Act, regulations are to be made prescribing model rules for incorporated associations (Model Rules). The Model Rules are set out in Sch 2 of the Association Incorporation Regulations 2016 (WA) (AI Regulations).[15]
[15] AI Regulations, reg 4.
In Kavanagh at [46] the Tribunal set out four situations in which the Model Rules apply to an incorporated association as follows:
•a proposed incorporated association can approve the Model Rules to be its rules at the time when it applies to be incorporated: s 28(1)(b) of the AI Act;
•the Model Rules will apply if the association does not have its own rules when it is incorporated: s 28(2)(a) of the AI Act;
•if an incorporated association has its own rules when it is incorporated, but those rules do not address all of the matters referred to in Sch 1, Div 1 of the AI Act then the Model Rules apply as the rules of the association to the extent necessary to ensure that all of those matters are addressed: s 28(2)(b)(i) of the AI Act; or
•if an incorporated association, which was already an incorporated association under the Repealed Act when the AI Act commenced on 1 July 2016, had rules which did not address all of the matters referred to in Sch 1, Div 1 of the AI Act and the incorporated association did not alter its rules within the three year transition period provided in s 198 of the AI Act to ensure that it addressed all of those matters, then after 1 July 2019 under s 201(2)(a) of the AI Act the Model Rules are deemed to apply to its rules to the extent that its rules do not address those matters.
Accordingly, the dispute resolution procedure in the Model Rules will apply where the rules of an incorporated association do not make provision, or adequate provision, for a dispute resolution procedure.

Failure to resolve the dispute

In Kavanagh, the Tribunal considered the meaning of the words 'cannot be resolved under the procedure provided for as required by Sch 1 Div 1 Item 18'. The Tribunal held at [60]-[61] that:
60If each party to the dispute does everything that it is required to do under the dispute resolution procedure, but the dispute is not resolved then clearly it is open to each party to apply under s 182(1) of the AI Act to have the dispute determined by the Tribunal, provided the party applying is a member of the incorporated association or the party applying is the incorporated association.
61However, if a party to a dispute which falls within s 182(1) of the AI Act has done everything that it is required to do under the dispute resolution procedure in the rules of the incorporated association, but another party to the dispute has not done so and therefore it has not been possible for the dispute to be resolved under that procedure, in the Tribunal's view, it can be said that the dispute cannot be resolved under the dispute resolution procedure. Consequently, it will be open to that party to apply under s 182(1) of the AI Act to have the dispute determined by the Tribunal, provided the party is a member of the incorporated association or the party is the incorporated association.

Tribunal's powers to give relief

The Tribunal's powers to give relief in respect of a proceeding under s 182(2) of the AI Act are set out in s 182(3). An examination of subsection (3) makes it clear that:
a)the Tribunal has been conferred with a very broad discretion to grant relief in that the Tribunal 'may make orders giving such relief as the Tribunal considers appropriate'; and
b)the matters set out in paragraphs (a), (b) and (c) of s 182(3) are not exhaustive in respect of the orders which may be made by the Tribunal.
However, the broad discretion of the Tribunal to grant relief must be considered in the context of the disputes which the Tribunal has the power to determine, namely disputes under or relating to the rules of the association arising between members, or between members and the incorporated association.[16]
[16] Green and Port Hedland Pony Club Inc [2019] WASAT 16 at [61].
In Smith and Murray Districts Carriage Driving Club Incorporated [2021] WASAT 44 (Smith and Murray) at [22] the Tribunal expressed the view that:
… the reference in s 182(3)(b) of the AI Act to the rights and obligations of members of an incorporated association between themselves and the reference in s 182(3)(c) of the AI Act to the rights and obligations between an incorporated association and any member or members of it are references to the rights and obligations contained in the rules of the incorporated association.
Relief may be denied if it exceeds the rights conferred, or obligations imposed, on members or the incorporated association by the rules of the incorporated association.

The rules of an incorporated association

Nature and content of rules

An application for the incorporation of an association must be accompanied by a copy of the association's proposed rules or a statement to the effect that the association has approved the adoption of the Model Rules.[17] On registration of an incorporated association under the AI Act, the rules of the incorporated association are the rules that accompanied the application, or the Model Rules including the information provided under s 7(3)(b)(ii) or s 29(5) of the AI Act.[18]
[17] AI Act, s 7(3).
[18] AI Act, s 29(1).
The rules of an incorporated association under the AI Act must comply with the requirements of s 22 of the AI Act.

An incorporated association may alter its rules by special resolution but not otherwise.[19] However, an alteration of the rules does not take effect until the incorporated association has lodged the required documents with the Commissioner for Consumer Protection.[20]
[19] AI Act, s 30(1). This power is subject to AI Act, s 31 and s 33.
[20] AI Act, s 30(6).
The rules of an incorporated association are not subsidiary legislation as that term is defined in s 5 of the Interpretation Act 1984 (WA) because they do not, in my view, have legislative effect.[21] The rules are not of general application in the community but rather they are the rules which bind the association and the members of the association as if they contained an agreement on the part of each member to be bound by and observe all the provisions of the rules and as if that agreement were duly executed by each member.[22]
[21] Sea Shepherd Australia Ltd v State of Western Australia and Others [2014] WASC 66; (2014) 200 LGERA 348; Norton v The Queen [2001] WASCA 207; (2001) 24 WAR 488 at [153][155]; Harper v Racing Penalties Appeal Tribunal of Western Australia (1995) 12 WAR 337 at 345346.
[22] AI Act, s 21.
The fact that a group chooses to incorporate, and to be bound by the rules of that incorporated association, is an indication that there is an intention to create legal relations between its members.[23]
[23] Cockman v Gorman [2022] WASC 125; 366 FLR 284 at [93]-[94].
The rules of an incorporated association generally set out:
a)the objectives of the incorporated association;
b)the powers of the incorporated association;
c)requirements relating to matters such as membership, meetings, elections, voting and dissolution;
d)obligations imposed on the management council and various members of the management council such as the President, Secretary and Treasurer; and
e)rights conferred on members of the incorporated association.

Relevant rules of the SMS Association

There are four sets of rules which are relevant to the disputes between the parties:
a)the rules of the SMS Association dated 25 October 2010 (2010 Rules);[24]
b)the Model Rules;[25]
c)the rules of the SMS Association which were approved by the SMS Association on 9 February 2019 (2019 Rules)[26] and which the Department of Consumer Protection decided on 21 April 2020 were not the applicable rules of the SMS Association;[27] and
d)the rules of the SMS Association which were adopted by a special resolution of members on 29 August 2021 (2021 Rules)[28] and which the Commissioner for Consumer Protection advised were effective from 20 September 2021.[29]
[24] Exhibit 1 at pages 217-235.
[25] Set out in the AI Regulations.
[26] Exhibit 1 at pages 236-261.
[27] Exhibit 1 at pages 15-18.
[28] Exhibit 1 at pages 262-296 and Exhibit 2 at pages 23-24.
[29] Exhibit 2 at pages 25-26.
I find that the 2010 Rules were in force until 19 September 2021 and the 2021 Rules were in force from 20 September 2021.

The dispute resolution procedure of the SMS Association

The 2010 Rules did not contain a dispute resolution procedure. Accordingly, I find that the dispute resolution procedure in the Model Rules applied whilst the 2010 Rules were in force (until 19 September 2021).
The 2021 Rules contain a dispute resolution procedure. Accordingly, I find that the dispute resolution procedure in the 2021 Rules applied from 20 September 2021 when the 2021 Rules came into effect.
The dispute resolution procedure set out in the Model Rules and the dispute resolution set out in the 2021 Rules are expressed in almost identical terms. This means that where the dispute resolution procedures in the Model Rules and the 2021 Rules apply to a dispute, there is a seamless transition from one set of the rules to the other.
The steps involved in the dispute resolution procedure in the Model Rules and the 2021 Rules (collectively referred to as the SMS Rules) are set out below:
a)Step 1: Attempt to resolve the dispute between the parties
The parties to a dispute must attempt to resolve the dispute between themselves within 14 days after the dispute has come to the attention of each party.[30]
[30] Model Rules, r 19; 2021 Rules, r 17(2).
b)Step 2: Commencement of formal grievance procedure
If the parties are unable to resolve the dispute between themselves, then a formal grievance procedure may be started by any party to the dispute by giving written notice to the secretary of the incorporated association of the parties to the dispute and the matters that are the subject of the dispute.[31]
[31] Model Rules, r 20(1); 2021 Rules r 17(3).
c)Step 3: Meeting of management committee to be convened
A meeting of the management committee must be convened to consider and determine the dispute within 28 days after the secretary has been given notice.[32]
[32] Model Rules, r 20(2); 2021 Rules, r 17(4).
d)Step 4: Notice of management committee meeting
The secretary must give the parties written notice of the management committee meeting at least seven days before the meeting is held. The notice must set out: when and where the committee meeting is to be held; and that the party, or the party's representative, may attend the meeting and will be given a reasonable opportunity to make written or oral, or both written and oral, submissions to the committee about the dispute.[33]
[33] Model Rules, r 20(3) and (4); 2021 Rules, r 17(5) and (6).
e)Step 5: Management committee meeting held to consider and determine dispute
At the management committee meeting at which a dispute is to be considered and determined, the management committee must: give each party or their representative an opportunity to make written or oral, or both written and oral, submissions; give due consideration to any submissions made; and determine the dispute.[34]
[34] Model Rules, r 21(1); 2021 Rules, r 17(8).
However, if the dispute is between one or more members and the association, then any party to the dispute may give written notice to the secretary stating that the party does not agree to the dispute being determined by the management committee and requesting that a mediator be appointed in which case the management committee must not determine the dispute.[35]
[35] Model Rules, r 20(5); 2021 Rules, r 17(7).
f)Step 6: Written notice of determination of management committee
The management committee must give each party to the dispute written notice of the management committee's determination, and the reasons for the determination, within seven days after the committee meeting at which the determination is given.[36]
g)Step 7: Request for appointment of mediator
A party to the dispute may make a written request to the Secretary, within 14 days after receiving notice of the management committee's determination, for the appointment of a mediator.[37]
h)Step 8: Appointment of mediator
If a request has been made for the appointment of a mediator under r 15(7) of the Model Rules or r 16(7) of the 2021 Rules, the mediator must be chosen by agreement between the member and the management committee but, if agreement cannot be reached, then the management committee must appoint the mediator.[38]
If a request has been made for the appointment of a mediator under r 20(5)(b) or r 21(3) of the Model Rules or r 17(7) or r 17(10) of the 2021 Rules, the mediator must be chosen by agreement between the parties to the dispute but, if agreement cannot be reached, then the management committee must appoint the mediator.[39]
i)Step 9: Mediation
The parties to the dispute must participate in the mediation and attempt in good faith to settle the matter that is the subject of the dispute.[40]

The four disputes

[36] Model Rules, r 21(2); 2021 Rules, r 17(9).

[37] Model Rules, r 21(3); 2021 Rules, r 17(10).

[38] Model Rules, r 23(1)(a) and r 23(2); 2021 Rules, r 18(1)(a) and (2).

[39] Model Rules, r 23(1)(b) and r 23(2); 2021 Rules, r 18(1)(b) and (2).

[40] Model Rules, r 24(1); 2021 Rules, r 19(1).

I will now deal with each of the four disputes in turn.

Dispute 1: election process and inspection of documents

Based on the documentary evidence before the Tribunal, I make the following findings of fact in respect of Dispute 1:
a)by email dated 22 March 2021, Mr Murugesu Ramachandran, on behalf of a number of members of the SMS Association including the applicants, wrote to the Returning Officer, the Secretary and the President requesting a number of procedures and protocols be adopted for the forthcoming Election to ensure that the election process would be 'fully transparent, fair to all candidates with no room for challenging the integrity afterwards';[41]
[41] Exhibit 1 at pages 137-139.
b)on 28 March 2021, the SMS Association held an Annual General Meeting (AGM) and the Election was held;[42]
[42] Exhibit 1 at page 136.
c)following the Election, a number of the applicants who were nominated for appointment to positions on the Management Council were not elected to those positions;
d)by email dated 5 April 2021, the applicants wrote to the Returning Officer and the Secretary to protest the manner in which the Election was held for the positions of Assistant Secretary, Treasurer and seven council members.[43] In particular, the applicants stated that they believed that the '[E]lection was not conducted in free and fair basis'. The applicants expressed concern that: persons who voted at the Election might not have been members of the SMS Association because there were no cross checks of the Members' Register prior to handing over ballot papers; ballot papers were distributed in sealed envelopes; a number of families did not receive notice of the AGM; and a number of non-eligible/non-members cast votes at the Election. The applicants also requested access to a copy of the Members' Attendance Register signed by members who attended the AGM;
[43] Exhibit 1 at pages 136-137.
e)by email dated 20 April 2021, the Returning Officer wrote to the applicants in which he described the allegations made in respect of the Election as 'baseless and unfounded'.[44] The Returning Officer also requested the applicants provide evidence or proof to substantiate their allegations;
[44] Exhibit 1 at pages 140-141.
f)by letter dated 27 May 2021, the applicants wrote to the Secretary requesting, within 14 days, the inspection of, and the taking of extracts and copies from, a number of documents of the SMS Association specified in the letter.[45]
[45] Exhibit 1 at pages 154-155.
g)by email dated 19 June 2021, the Secretary wrote to the applicants to advise that their request to view a list of documents had been accepted by the Management Council on 16 June 2021.[46] The letter requested the applicants attend a meeting at the Temple on 27 June 2021 or 4 July 2021 to discuss the scope and timeframe for the provision of the documents. It was noted that some of the documents were only available electronically and that the applicants had not specified the purpose for which the documents were needed;
[46] Exhibit 1 at page 156.
h)by letter dated 20 June 2021, the applicants sent a notice of dispute to the Secretary.[47] The applicants noted that by their email dated 5 April 2021 they 'disputed/protested' the manner in which the Election was held for a number of positions to the Management Council. The applicants also stated that they were not satisfied with the response provided by the Returning Officer and that they had not been allocated a date for the inspection of documents requested in their letter dated 27 May 2021. Finally, the applicants requested the determination of their dispute by the Management Council under r 20 of the Model Rules;
[47] Exhibit 1 at pages 157-158.
i)by email dated 24 June 2021, the applicants wrote to the Secretary to advise that they would attend the Temple on 4 July 2021 for the purpose of inspecting the documents requested in their letter dated 27 May 2021. The applicants also requested that all documents listed in their letter be made available and sought access to documents retained electronically;[48]
[48] Exhibit 1 at page 159.
j)by email dated 27 June 2021, the Secretary wrote to the applicants to acknowledge receipt of the email dated 24 June 2021.[49] The email stated that once the parties had agreed the scope and timeframe to access the documents, confirmed that the purpose for which access was required was connected with the affairs of the SMS Association, they would request the applicants to sign a 'Confidentiality Declaration Form to Access SMS Documents' (Confidentiality Declaration)[50] and then provide access to the documents as per the agreed scope and timeframe;
[49] Exhibit 1 at page 160.
[50] The Confidentiality Declaration is Exhibit 1 at pages 202-203.
k)by letter dated 12 July 2021, the Secretary acknowledged receipt of the notice of dispute.[51] In the letter the Management Council[52] requested all the signatories to attend a meeting on 21 July 2021 at a time and location stated therein. It is also stated in the letter that the applicants would be given a reasonable opportunity to make their submissions to the Management Council about their dispute;
[51] Exhibit 2 at page 13.
[52] The Management Council of the SMS Association is also referred to as the Management Committee, or Committee. For the purposes of consistency, the term Management Council is used.
l)by letter dated 20 July 2021, the applicants wrote to the Secretary to advise that they would not be attending the meeting due to another commitment and set out their written submission to the Management Council.[53] The applicants also stated that they were unable to provide any additional information with respect to their dispute until such time as they had had an opportunity to inspect the documents they had previously requested. The applicants also noted that they attended the meeting for such an inspection but the Management Council did not make the requested documents available;
[53] Exhibit 1 at pages 161-163.
m)on 21 July 2021 the Management Council made a determination in respect of Dispute 1.[54] The Management Council determined that the Election was conducted by an independent returning officer in accordance with r 11 (of the 2010 Rules). The Management Council also determined that since the applicants had asked for multiple documents, the Management Council had requested them to sign a Confidentiality Declaration but that the applicants had chosen not to sign the Confidentiality Declaration at a meeting specifically called to discuss the request. The Management Council concluded that it was unable to provide the requested documents due to non-signing of the Confidentiality Declaration but expressed its readiness to provide the documents once the applicants signed the Confidentiality Declaration;
[54] Exhibit 2 at pages 14-16.
n)by email dated 28 July 2021 the Secretary wrote to the applicants to inform them of the determination made by the Management Council;[55]
[55] This email is referred to in a letter to the Secretary dated 8 August 2021 which is in Exhibit 1 at page 164.
o)by letter dated 8 August 2021, the applicants wrote to the Secretary to advise that they did not accept the decision of the Management Council and requested the appointment of a mediator.[56] The letter also stated that the mediator must be agreed within 14 days from the date of the letter and proposed the Citizens Advice Bureau as the mediator;
[56] Exhibit 1 at pages 164-165.
p)in the letter dated 8 August 2021, the applicants stated that the Management Council requested they sign a confidential disclosure agreement for the inspection of a number of documents, and not a declaration stating the purpose for which they required the documents;
q)by letter dated 25 August 2021, the Secretary wrote to the first applicant seeking consent from the other five applicants by way of their signatures to participate in a mediation/legal proceeding;[57]
[57] Exhibit 1 at page 189.
r)on 29 August 2021, a special general meeting of the SMS Association was held. The minutes of that meeting record that when a query was raised by the sixth applicant about the declaration form required to access the SMS Association documents, Mr Jayabalan, a member of the SMS Association, advised that members needed to sign a statutory declaration form to access the documents. The minutes also record that the third respondent advised that some members requested to access not only member register information but confidential member application details, bank account details and, as such, the Management Council requested that they sign a Confidentiality Declaration.[58]
[58] Exhibit 2 at pages 23-24.
s)by letter dated 9 September 2021, the applicants wrote to the Secretary stating that all six applicants had requested the appointment of a mediator and that, unless a mediator was appointed under r 23 of the Model Rules within seven days, the applicants would appoint the Citizens Advice Bureau as a mediator;[59]
[59] Exhibit 1 at page 188.
t)by email dated 10 September 2021, the Secretary wrote to the first applicant to advise that the SMS Association would not consider their application for mediation unless they received a 'signed consent' from each of the other applicants listed by the first applicant;[60]
[60] Exhibit 1 at pages 190-191.
u)by letter dated 22 September 2021, the first applicant wrote to the Secretary.[61] In that letter, the first applicant stated that he was referring all three disputes (including Dispute 1) for mediation to a mediator because of 'your refusal to appoint the Mediators within the time frame';
[61] Exhibit 1 at pages 194-195.
v)by letter dated 25 September 2022, the first applicant wrote to the Secretary to advise that he had engaged a professional mediator to conduct mediation in respect of three disputes (including Dispute 1), and seeking confirmation as to whether or not the Management Council would participate in the mediation;[62]
[62] Exhibit 1 at page 196.
w)by letter dated 28 September 2021, the Secretary wrote to the first applicant to advise that the SMS Association was in the process of obtaining legal advice and would endeavour to respond by the end of the week;[63]
[63] Exhibit 1 at page 197.
x)by letter dated 6 October 2021, Mr Nilsson, the legal representative for the SMS Association, wrote to the first applicant.[64] In that letter it is stated as follows:
[64] Exhibit 2 at pages 27-31.
14.… the [Management Council] agrees for a Mediator to be appointed in relation to the determination, however, considers that its ability to advance matters any further at a proposed Mediation will necessarily need to be subject to evidence and submission being provided by you in relation to your concerns (and to advance matters as they currently stand) prior to such Mediation.
15.On that basis, please confirm:
15.1If you intend to provide the [Management Council] with any further documents in relation to the concerns that you have raised;
15.2Whether you have received any correspondence from the Citizens Advice Bureau as to their ability to conduct the proposed Mediation; and
15.3That you will meets the costs of the Mediation (pursuant to rule 24.6 of the … Model Rules).
y)by letter dated 11 October 2021 the first applicant wrote to Mr Nilsson.[65] In that letter it is stated that the first applicant implied from the letter of 6 October 2021 that the respondents agreed and accepted that the disputes could not be resolved under the procedure provided in the Model Rules and wanted to have the disputes determined by the Tribunal. The first applicant complained that they had been denied inspection of the documents sought in their letter of 27 May 2021 and that execution of the Confidentiality Declaration would prevent them from providing any evidence to support 'that the election of 28 March 2021 was rigged'. The first applicant also submitted a request for pre-action discovery of documents;[66]
z)by letter dated 20 October 2021, the first applicant wrote to Mr Nilsson.[67] In the letter, the first applicant complained that initially the respondents demanded the execution of a Confidentiality Declaration to access the documents of the SMS Association and then wrote to the members informing them that if the applicants said the purpose of inspection, they would allow an inspection. The first applicant stated that he could not see anything in the SMS Rules that required a statutory declaration for the inspection of documents. The first applicant then stated that steps would be taken to issue an application with the Tribunal; and
aa)on 5 December 2021 the applicants lodged an application with the Tribunal under s 182(2) of the AI Act in relation to four disputes, including Dispute 1.
Is Dispute 1 a dispute under or relating to the rules of the SMS Association?
[65] Exhibit 1 at pages 198-199.
[66] The request for pre-action discovery is Exhibit 1 at pages 204-206.
[67] Exhibit 1 at pages 207-208.

The applicants say that Dispute 1 is a dispute between the applicants and the respondents concerning alleged non-compliance with r 8, r 11(8), r 11(15), r 18 and r 25 of the 2010 Rules in respect of the Election and the inspection of documents relating to the Election.[68]
[68] Dispute 1 in the Consolidated Disputes Document; Applicants' SIFC at pages 2-4; and Applicants' Agreed Facts at pages 5-6.
Rule 11(8) of the 2010 Rules provides that the election for positions on the Management Council shall be conducted by a Returning Officer, who shall be an ordinary or life member of the SMS Association, appointed by the Management Council or an official from the Electoral Commission. It is not clear from the materials filed with the Tribunal how it is alleged r 11(8) has been breached. However, the only way in which r 11(8) can be breached is if the Returning Officer was not an ordinary or life member of the SMS Association or the Returning Officer was not appointed by the Management Council or an official from the Electoral Commission.
Rule 11(15) of the 2010 Rules relevantly provides that each member (ordinary and life member) present (not by proxy) at the AGM shall be entitled to vote at the election in accordance with rule 18(5). Rule 18(5) of the 2010 Rules provides that a member is only eligible to vote if at the time of voting the person has been a member for not less than six months prior to the date of the general meeting. The applicants allege that some of the persons who voted at the Election were not eligible to vote either because they were not members of the SMS Association or because they were not eligible members.[69]
[69] Dispute 1 in the Consolidated Disputes Document; and Applicants' Agreed Facts at page 5.
Rule 18(2) of the 2010 Rules provides that written notice of each and every AGM shall be mailed by the Secretary to all members of the SMS Association not less than 21 days prior to the date of the meeting. The applicants allege that twelve families who joined the SMS Association as ordinary members did not receive notice of the AGM on 28 March 2021.[70]
[70] Dispute 1 in the Consolidated Disputes Document; and Applicants' Agreed Facts at page 5.
Rule 8 of the 2010 Rules provides that the Secretary must keep and maintain an up-to-date register of members of the SMS Association and, upon the request of a member, shall make the register available for inspection to the member within 14 days from the date of such request. The applicants appear to be alleging that they were not permitted to inspect the register of members following their request on 27 May 2021.[71]
[71] Dispute 1 in the Consolidated Disputes Document; and Applicants' Agreed Facts at page 5.
Rule 25 of the 2010 Rules provides that a member may at any reasonable time inspect without charge the books, documents, records and securities of the SMS Association. The applicants allege that they have not been permitted to inspect the books, documents and records of the SMS Association.[72] Further, it would seem that the applicants are alleging that there is nothing in the 2010 Rules which requires them to sign the Confidentiality Declaration and/or or a statutory declaration about the purpose for which they want access to the documents before they are permitted to carry out an inspection.
[72] Dispute 1 in the Consolidated Disputes Document; and Applicants' Agreed Facts at page 5.
I find that Dispute 1 is a dispute under or relating to the rules of the SMS Association between members, or between one or more members and the SMS Association, to the extent that Dispute 1 relates to alleged contraventions of rules 8, 11(15), 18 and 25 of the 2010 Rules.
However, I find that Dispute 1 is not a dispute under or relating to the rules of the SMS Association between members, or between one or more members and the SMS Association, to the extent that Dispute 1 is said to relate to an alleged contravention of r 11(8) of the 2010 Rules. This is because there is no allegation that the Returning Officer was not an ordinary or life member of the SMS Association and no allegation that the Returning Officer was not appointed by the Management Council or an official from the Electoral Commission.
Dispute resolution procedure
The dispute resolution procedure in the Model Rules applied to Dispute 1 until 19 September 2021 and the 2021 Rules applied to Dispute 1 from 20 September 2021.
I have set out the content of the dispute resolution procedure in the Model Rules and the 2021 Rules above. I find that the dispute resolution procedure in the Model Rules and the 2021 Rules satisfies the requirements of Item 18 of Sch 1, Div 1 of the AI Act.
Have the parties complied with the dispute resolution procedure in relation to Dispute 1?
The applicants submitted that the first respondent had not unconditionally agreed to attend a mediation and that the first respondent imposed conditions on attendance at the mediation and refused to allow inspection of documents.[73]
[73] First applicant's written response at page 2; and ts 27-28, 8 August 2022.
The respondents submitted that no response was received from the first applicant in relation to the request by the SMS Association to progress any mediation and, in those circumstances and where a mediation has not occurred, the first applicant has failed to complete the dispute resolution procedure in the Model Rules prior to commencing the proceeding in the Tribunal.[74] In oral submissions at the Hearing, counsel for the respondents submitted that:
The applicant can't arrogate and derogate. The applicant can't, on the one hand, seek to nominate a mediator, fail to follow through with that, on the one hand, and then, on the other hand, come to the [T]ribunal and say, well, the matter can't be resolved, so let the [T]ribunal determine it. The answer lies in the applicant's own hands, and the applicant is in a position to take the matter further and elected not to.[75]
[74] Outline of Respondents' Submissions on Interim Application dated 7 June 2022 at para 12.
[75] See also AI Act, s 30.
I find, on the basis of the documentary evidence referred to above, that the parties did not comply with Step 8 in the dispute resolution procedure in the SMS Rules in relation to Dispute 1. This is because the applicants engaged a mediator before seeking the agreement of the respondents in circumstances where the mediator must be chosen by agreement between the parties and, if there is no agreement, by the Management Council. In addition, no further steps were taken by the parties to progress the matter to a mediation.
Contrary to the applicants' view expressed in the letter dated 21 October 2021, there is nothing in the letter from the respondents' legal representative dated 6 October 2021 from which it could be implied that the respondents agreed and accepted that Dispute 1 could not be resolved under the dispute resolution procedure.
I do not consider that it was inappropriate for the first respondent to seek confirmation in respect of any of the matters referred to in [50(x)] above or that the request for confirmation of those matters involved the imposition of conditions on the mediation. This is for the following reasons:
a)the matters in relation to which confirmation was sought were matters to progress the mediation;
b)given the dispute between the parties, it was important to ascertain whether the applicants had any further information to provide for the purposes of the mediation;
c)the applicants had proposed the appointment of the Citizens Advice Bureau as mediator hence it was necessary for the respondents to seek information about the availability of such a mediator; and
d)the applicants requested the appointment of a mediator in circumstances where the SMS Rules provide that the costs of the mediation are to be paid by the party or parties to the mediation who requested the appointment of the mediator.
Further, in my view, the requirement for the signing of a Confidentiality Declaration was imposed on the applicants as a condition precedent to inspecting the documents rather than as a condition precedent to engaging in mediation.
Finally, the inspection of the documents is part of Dispute 1. Accordingly, the question as to whether or not the respondents could require the applicants to sign a Confidentiality Declaration before inspecting the documents was relevant to the resolution of Dispute 1.
Given my finding that the parties did not comply with the dispute resolution procedure, I find that the Tribunal does not have jurisdiction to determine Dispute 1.
Does the Tribunal have jurisdiction to grant the relief sought in respect of Dispute 1?
Given my finding that the Tribunal does not have jurisdiction to determine Dispute 1, it is not necessary for me to consider whether the Tribunal has jurisdiction to grant the relief sought in respect of Dispute 1.
However, there is one observation which I will make and that is in respect of the order sought by the applicants' concerning discovery of documents.
In my view, there is nothing in the 2010 Rules which requires the SMS Association to provide discovery of documents in their possession, custody or control. Rule 25 of the 2010 Rules merely provides for inspection of the books, documents, records and securities of the SMS Association. That rule does not require the SMS Association to disclose what documents are in their possession, custody or control. Accordingly, in my view, the Tribunal could not order the SMS Association to provide discovery as this exceeds the right conferred on a member to inspect documents of the SMS Association and the obligation imposed on the SMS Association to provide inspection of those documents.

Dispute 2: various breaches and claim for damages

Based on the documentary evidence before the Tribunal, I make the following findings of fact in respect of Dispute 2:
a)by letter dated 3 August 2021, the first applicant wrote to the Secretary in respect of a number of potential breaches of the 2010 Rules, the AI Act and duties described in governance standards under the Australian Charities and NotForProfits Commission Act 2021 (Cth);[76]
[76] Exhibit 1 at pages 166-176.
b)by letter dated 16 August 2021, the Secretary requested the first applicant attend a Management Council meeting on 25 August 2021 to hear his disputes. The time and location of the meeting was set out in the letter. The letter also stated that the first applicant would be given a reasonable opportunity to make submissions to the Management Council about his disputes;[77]
[77] Exhibit 2 at page 17.
c)on 25 August 2021, the Management Council issued a determination in respect of Dispute 2 which addressed each of the allegations made by the applicants and concluded that 'the Association has conducted its affairs in accordance with the SMS Rules and other relevant legislation, no further action is required'. In that determination, it was noted that the first applicant had advised that he did not intend to attend the hearing in person;[78]
[78] Exhibit 2 at pages 18-22.
d)by letter dated 7 September 2021, the President notified the members of the SMS Association of the determination;[79]
[79] Attachment B to Affidavit of the first applicant dated 20 December 2021.
e)by letter dated 11 September 2021, the first applicant wrote to the Secretary.[80] In that letter, the first applicant stated that he did not accept the determination in full and requested the appointment of a mediator pursuant to r 23 of the Model Rules within seven days;
[80] Exhibit 1 at page 193.
f)by letter dated 22 September 2021, the first applicant wrote to the Secretary.[81] In that letter, the first applicant stated that he was referring all three disputes (including Dispute 2) for mediation to a mediator because of 'your refusal to appoint the Mediators within the time frame';
[81] Exhibit 1 at pages 194-195.
g)by letter dated 25 September 2022, the first applicant wrote to the Secretary to advise that he had engaged a professional mediator to conduct mediation in respect of three disputes (including Dispute 2), and seeking confirmation as to whether or not the Management Council would participate in the mediation;[82]
[82] Exhibit 1 at page 196.
h)by letter dated 28 September 2021, the Secretary wrote to the first applicant to advise that the SMS Association was in the process of obtaining legal advice and would endeavour to respond by the end of the week;[83]
[83] Exhibit 1 at page 197.
i)by letter dated 6 October 2021, the legal representatives for the SMS Association wrote to the first applicant.[84] In that letter, it is stated as follows:
[84] Exhibit 2 at pages 27-31.
22.… the findings sought by you in the request issued for the appointment of a Mediator are not matters which can (or should be) dealt with by our client in circumstances where the [Management Council] does not have the power to make declarations about member's actions or to enforce damages against individual members of the SMS. We are necessarily unsure as to how a position to the contrary can be asserted. They are also not matters that can be determined at a Mediation or by a Mediator.
23.We otherwise consider that the matters raised in your 'Notice of Dispute' and request for an appointment of a Mediator have already been addressed as part of the Supreme Court proceedings previously commenced by you. There is no basis (or ability) for matters which were the subject of Supreme Court proceedings to now be re-agitated.
24.Taking the above matters into account, we are instructed that the [Management Council] request that you meaningfully articulate the basis of how the 'Notice of Dispute' relating to the former [Management Council] raises any new matters which have not been the subject of those earlier proceedings. Absent further explanation, the [Management Council] consider that this matter has (on its understanding of your grievance) been finalised.
j)by letter dated 20 October 2021 the first applicant on behalf of the applicants wrote to Mr Nilsson.[85] In the letter it is stated:
The earlier Supreme Court action only dealt with the issue of non-acceptance of my membership renewal and nothing else. A reference was made regarding the legitimacy of the Management Council. But otherwise the matter was settled on a without prejudice basis. Your clients accepted that there was no legal basis not to accept the renewal of my membership. Earlier Supreme Court action has no bearing on the current disputes.
k)on 5 December 2021 the applicants lodged an application with the Tribunal under s 182(2) of the AI Act in relation to four disputes, including Dispute 2.
Is Dispute 2 a dispute under or relating to the rules of the SMS Association?
[85] Exhibit 1 at pages 207-208.
The applicants say that Dispute 2 is a dispute between the applicants and the respondents concerning alleged non-compliance with r 3(1), r 3(2), r 3(3), r 11(1), r 11(2), r 11(3), r 11(7), r 11(10), r 11(18), r 13(1)(a), r 17(4), r 17(9) and r 17(10), r 19(1), r 19(2)(d), and r 23 of the 2010 Rules.[86]
Alteration of the rules of the SMS Association.
[86] Dispute 2 in the Consolidated Disputes Document; Applicants' SIFC at pages 3-4; Applicants' Agreed Facts at pages 6-11.
Rule 13(1)(a) of the 2010 Rules provides that the President must 'ensure that the affairs of the Sabai are conducted in the best interest of the Sabai'.
Rule 22 of the 2010 Rules provides that the SMS Association may alter or rescind the 2010 Rules or make additional rules in accordance with the procedure set out in the rule.[87]
[87] See also AI Act, s 30.
The applicants allege that between February 2019 and April 2020 the first, second and third respondents took decisions and acted on the 2019 Rules which were not the applicable rules of the SMS Association. The applicants alleged that this contravened r 13(1)(a) and r 22 of the 2010 Rules.[88]
Extension of term of office of Management Council and loss of quorum
[88] Dispute 2 in the Consolidated Disputes Document; Applicants' SIFC at pages 2-3; and Applicants' Agreed Facts at page 6.
Rule 11(1) of the 2010 Rules provides that the Management Council shall consist of thirteen members consisting of six executive council members (President, Vice-President, Secretary, Treasurer, an Assistant Secretary and Assistant Treasurer) and seven ordinary council members.
Rule 11(2) of the 2010 Rules provides that members must be elected to the Management Council at an AGM or appointed under subrule 17 and/or 18.
Rule 11(3) of the 2010 Rules provides that the office of each member of the Management Council shall become vacant at each and every AGM.
Rule 11(7) of the 2010 Rules provides that the Secretary shall call for nominations for the positions which fall vacant at the forthcoming AGM and that every ordinary and life member desirous of being elected as a member of the Management Council must forward a nomination form not less than seven days before the election date.
Rule 17(4) of the 2010 Rules provides that seven members of the Management Council (of whom three are executive council members) constitute a quorum.
Rule 19(2)(d) of the 2010 Rules provides that the business of the AGM includes the election of a new Management Council.
The applicants allege that the Management Council's term of office was extended under r 37(2) of the 2019 Rules and that the AGM was deferred. The applicants also allege that the Management Council lost their quorum in May 2020 due to resignations and/or removal of three members of the Management Council but continued to function. The applicants allege that this contravened r 11(1), r 11(2), r 11(3), r 11(7) and r 11(18), r 17(4) and r 19(2)(d) of the 2010 Rules.[89]
Treasurer
[89] Dispute 2 in the Consolidated Disputes Document; Applicants' SIFC at page 3; and Applicants' Agreed Facts at pages 6-7.
Rule 11(18) of the 2010 Rules provides that when a casual vacancy for an executive council member occurs in the membership of the Management Council, the Management Council may appoint any member within the Council or co-opt an ordinary life member of the SMS Association who then holds office until the election of council members at the next AGM.
The applicants allege that the Management Council functioned without a Treasurer between 18 May 2020 and 28 March 2021 and, instead, the first and/or second and/or third respondents employed and paid professionals to manage the accounts of the SMS Association. The applicants allege that this contravened r 11(18) of the 2010 Rules.[90]
Alleged mismanagement of spiritual affairs
[90] Dispute 2 in the Consolidated Disputes Document; Applicants' SIFC at page 3; and Applicants' Agreed Facts at page 7.
Rule 3(1) of the 2010 Rules provides that it is an objective of the SMS Association 'to provide a place of worship for Saivities who wish to practise religion in accordance with vedha siva agarma traditions'.
Rule 3(2) of the 2010 Rules provides that it is an objective of the SMS Association 'to erect, develop and maintain a temple according to South Indian State of Tamil Nadu's architectural design and such temple shall accommodate Murugan, the traditional God of Tamils, as the principal deity with other deities namely Ganapathi, Siva, Shakthi (shall include Kali), Ayyappa Swami, Vishnu (shall include Krishna and Rama), Bairavar and Navagraha'.
Rule 3(3) of the 2010 Rules provides that it is an objective of the SMS Association 'to arrange for and provide facilities and conduct religious activities at the temple according to vedha siva agarma traditions'.
The applicants allege that the respondents mismanaged the spiritual affairs of the SMS Association in two ways. First, the second and third respondents failed to reappoint two priests in a timely fashion in 2018. Second, the first and/or second and/or third respondents terminated a senior priest's appointment on 30 June 2020 instead of applying for a JobKeeper payment. The applicants allege that this was a contravention of r 3(1) and r 3(3) and r 13(a) of the 2010 Rules.[91]
Renovation and major maintenance works to the Temple
[91] Dispute 2 in the Consolidated Disputes Document; Applicants' SIFC at page 4; and Applicants' Agreed Facts at page 7.

The applicants allege that the second and third respondents took over responsibility for renovation and major maintenance works to the Temple owned by the SMS Association from a subcommittee, of which the first applicant was a member, and only carried out minor renovation and maintenance works at a cost of more than $600,000 when the subcommittee would have completed the full renovation, and major maintenance works at a cost of under $500,000. The applicants allege that this was a contravention of r 3(1), r 3(2) and r 3(3) and r 13(1)(a) of the 2010 Rules.[92]
Closure of Temple
[92] Dispute 2 in the Consolidated Disputes Document; Applicants' SIFC at page 4; and Applicants' Agreed Facts at page 8.
The applicants allege that the first and/or second and/or third respondents unnecessarily closed the Temple for regular functioning during the period that the renovation and maintenance works were being carried out which caused significant financial loss to the Temple when the subcommittee would not have closed the Temple for the same length of time. The applicants allege that this was a contravention of r 3(1), r 3(2) and r 3(3) and r 13(1)(a) of the 2010 Rules.[93]
Sri Balamurugan Devasthanam Trust
[93] Dispute 2 in the Consolidated Disputes Document; Applicants' SIFC at page 4; and Applicants' Agreed Facts at page 8.
The applicants allege the second respondent commenced a process to set up a new private Sri Balamurugan Devasthanam Trust to take over from the Sri Balamurugan Temple Devasthanam Trust and sought to register the trust with the Australian Charities and Not-for-Profits Commission without the approval of, or consultation with, members of the SMS Association. Further, that the second respondent spent thousands of dollars on professional fees. The applicants allege that this was a contravention of r 13(1)(a) of the 2010 Rules.[94]
Government Grant
[94] Dispute 2 in the Consolidated Disputes Document; Applicants' SIFC at page 4; and Applicants' Agreed Facts at page 4.
Rule 17(9) of the 2010 Rules provides that the capital expenditure budget for any capital works exceeding $50,000 shall be referred to a general meeting.
Rule 17(10) of the 2010 Rules provides that any capital works arising from donation from organisations or individual shall be referred to an AGM.
The applicants allege a grant of $250,000 from the Federal Government was not referred to an AGM of the SMS Association and members of the SMS Association were not provided with any details on how the sum of $250,000 was spent. The applicants allege that this was a contravention of r 17(9) and r 17(10) of the 2010 Rules.[95]
Transparency
[95] Dispute 2 in the Consolidated Disputes Document; Applicants' SIFC at page 3; and Applicants' Agreed Facts at page 9.
The applicants allege that the second and third respondents dismissed as unfounded concerns that they have raised about the SMS Association, expel members or send hate and misinformation against those members who raise concerns such that members have cased taking part in spiritual activities at the Temple as being unfounded. The applicants allege that this was a contravention of r 13(1)(a) of the 2010 Rules.[96]
Legal actions and fees
[96] Dispute 2 in the Consolidated Disputes Document; Applicants' SIFC at page 4; and Applicants' Agreed Facts at page 9.
The applicants allege that the SMS Association has spent thousands of dollars in legal fees defending legal actions after deliberately breaching the rules of the SMS Association. In particular, it is alleged that the second respondent kept choosing different lawyers to defend each action. The applicants allege that this was a contravention of rule 13(1)(a) of the 2010 Rules.[97]
Postponement of AGM for 2020/2021 financial year
[97] Dispute 2 in the Consolidated Disputes Document; Applicants' SIFC at page 4; and Applicants' Agreed Facts at pages 9-10.
Rule 11(10) of the 2010 Rules provides that after the date and time specified for the closing of nominations, the Returning Officer shall open all nominations, scrutinize them and prepare a list of valid nominations for each position and deliver the same to the Secretary.
Rule 19(1) of the 2010 Rules provides that the AGM shall be held as soon as practicable after the first day of July in each year but in any event not later than the 30^th day of September.
The applicants allege that the 2020/2021 AGM was meant to be held in September of 2020 but instead was postponed until February 2021 and then March 2021. The applicants also allege that nominations for the Management Council positions were called for twice rather than once and, that the third respondent posted to members an objection to the nomination of two candidates. The applicants allege that this was a contravention of r 19(1) and r 11(10) of the 2010 Rules.[98]
Breaches against the first applicant
[98] Dispute 2 in the Consolidated Disputes Document; and Applicants' Agreed Facts at page 10.
The applicants allege that the first and/or second and/or third respondents breached the rules of the SMS Association, which caused the first applicant to spend considerable time and money, by:
a)expelling the first applicant from the SMS Association in September 2019 and by refusing to refer to his appeal against expulsion to a general meeting and requesting the appointment of a mediator before reinstating his membership from 23 September 2019;
b)by denying the first applicant a right to vote at the special general meeting held on 21 June 2021; and
c)by refusing to accept the first applicant's application for renewal of his membership of the SMS Association until the first applicant took the matter to the Supreme Court.
The applicants allege that this was a contravention of r 13(1)(a) of the 2010 Rules.[99]
Breach of agreement
[99] Dispute 2 in the Consolidated Disputes Document; and Applicants' Agreed Facts at pages 10-11.
Rule 22(2) of the 2010 Rules provides that the 2010 Rules bind every member and the SMS Association to the same extent as if every member and the SMS Association had signed and sealed these rules and agreed to be bound by all their provisions.
The applicants allege that the first and/or second and/or third respondents contravened r 23(1) of the 2010 Rules in respect of the matters contained in Dispute 2 because they jointly and severally breached the relevant provisions of the 2010 Rules and thereby breached the agreement to be bound by the 2010 Rules of the SMS Association.[100] The reference to r 23(1) is clearly intended to be a reference to r 22(2) of the 2010 Rules.
[100] Dispute 2 in the Consolidated Disputes Document; Applicants' SIFC at page 3; and Applicants' Agreed Facts at page 11.
The respondents submitted that the matters raised by the applicants in relation to Dispute 2 do not fall within the definition of a dispute for the purposes of s 182 of the AI Act, in circumstances where the matters relate to the conduct of respondents in various ways and not to the rules themselves.[101]
[101] Outline of Respondents' Submissions on Interim Application dated 7 June 2022 at paragraph 15.
I do not agree with this submission. A dispute under or relating to the rules of an incorporated association may involve an allegation that a particular person has, by his or her conduct, contravened a rule of an incorporated association. If the person who is alleged to have contravened the rules is a person who is subject to an obligation under the rule in question, then the dispute is a dispute under or relating to the rules. The situation would be different if the person who is alleged to have contravened the rules is not subject to any obligation under the particular rule.
I find that Dispute 2 is a dispute under or relating to the rules of the SMS Association between members, or between one or more members and the SMS Association, to the extent that Dispute 2 relates to alleged contraventions of r 3(1), r 3(2) and r 3(3), r 11(1) and r 11(10), r 11(2), r 11(3), r 11(7) and r 11(18), r 13(1)(a), r 17(4), r 17(9) and r 17(10), r 19(1), r 19(2)(d), and r 22 of the 2010 Rules except that:
a)rule 13(1)(a) of the 2010 Rules imposes an obligation on the President and is not, therefore a rule which may be contravened by the Management Council or the Secretary as alleged;
b)rule 11(18) of the 2010 Rules imposes a power on the Management Council and is not, therefore, a rule which may be contravened by the President or the Secretary as alleged; and
c)rule 22 of the 2010 Rules imposes an obligation on the SMS Association and is not, therefore, a rule which may be contravened by the President or the Secretary as alleged.
Dispute resolution procedure
The dispute resolution procedure in the Model Rules applied to Dispute 2 until 19 September 2021 and the 2021 Rules applied to Dispute 2 from 20 September 2021.
As per [60] above, I find that the dispute resolution procedure in the Model Rules and the 2021 Rules satisfies the requirements of Item 18 of Sch 1, Divi 1 of the AI Act.
Have the parties complied with the dispute resolution procedure set out in the Rules in relation to Dispute 2?
The applicants submitted that steps were taken by the first applicant to resolve Dispute 2 under the Model Rules.[102]
[102] Dispute 2 in the Consolidated Dispute Document; and Applicants' Agreed Facts at pages 3-4.
I find, on the basis of the documentary evidence referred to above, that the parties did not comply with Step 8 in the dispute resolution procedure in relation to Dispute 2. This is because the applicants engaged a mediator before seeking the agreement of the respondents in circumstances where the mediator must be chosen by agreement between the parties and, if there is no agreement, by the Management Council. In addition, no further steps were taken by the parties to progress the matter to a mediation.
Given my finding that the parties have not followed the dispute resolution procedure in the SMS Rules in respect of Dispute 2, the Tribunal does not have jurisdiction to determine Dispute 2 under s 182 of the AI Act.
Does the Tribunal have jurisdiction to grant the relief sought in respect of Dispute 2?
In oral submissions at the Hearing, counsel for the respondents, submitted that the relief sought in relation to Dispute 2 for loss and damages 'is immediately at odds with what, on any stretch of the imagination would be the [T]ribunal's jurisdiction'.[103]
[103] ts 23, 8 August 2022.
Given my finding that the Tribunal does not have jurisdiction to determine Dispute 2, it is not necessary for me to consider whether the Tribunal has jurisdiction to grant the relief sought in respect of Dispute 2.
However, there are two observations which I will make in respect of the relief sought by the applicants.
First, in my view, the Tribunal does not have the power to make orders for the payment of compensation for financial losses and damages alleged to have arisen as a result of a breach of the 2010 Rules. This is because there is nothing in the 2010 Rules which gives a member of the association a right to receive compensation for financial losses and damages for a contravention of the 2010 Rules or which imposes an obligation on the SMS Associations or its members to pay compensation to a member. Had Parliament intended that the Tribunal have the power to make orders for the payment of compensation in respect of a dispute, then it is my view that this would have been expressly stated in the AI Act.
Second, for the same reasons set out in [71] above, there is nothing in the 2010 Rules which requires the SMS Association to provide discovery or preaction discovery of documents. Pre-action discovery is generally governed by rules of Court such as Order 26A of the Rules of the Supreme Court 1971 (WA).

Dispute 3: proposal to adopt the 2021 Rules

Based on the documentary evidence before the Tribunal, I make the following findings of fact in respect of Dispute 3:
a)by letter dated 21 April 2020, the Manager Associations and Charities at the Department of Mines, Industry Regulation and Safety and Consumer Protection notified the Management Council that the 2019 Rules had no effect because they were not passed by special resolution in accordance with s 51 of the AI Act;[104]
[104] Exhibit 1 at pages 16-18.
b)by notice dated 4 January 2021, Mr Murugesu Ramachandran proposed a motion for the appointment of a subcommittee for restructuring the SMS Association (Motion);[105]
[105] Exhibit 1 at page 185.
c)by email in or around July 2021, the Secretary sent members of the SMS Association a copy of an update to the Constitution of the SMS Association prepared by Solomon Brothers and seeking comments by 8 July 2021.[106] The letter also notified members that a workshop had been arranged on 11 July 2021 to discuss the written comments received and that all comments would be presented to the lawyers following the workshop;
[106] Exhibit 1 at pages 177-178.
d)by email dated 8 July 2021, the first applicant sent the Secretary his proposals to alter the 2010 Rules;[107]
[107] Exhibit 1 at page 179.
e)by notice dated 31 July 2021, the Secretary of the SMS Association provided 'Notice of Special General Meeting' (Notice) to its members.[108] The letter advised that the business of the Special General Meeting was to consider and, if thought fit, to pass without amendment a special resolution for the 2010 Rules to be rescinded and the Proposed New Rules (that is, the 2021 Rules) to take effect from the date on which the SMS Association lodged them with the Commissioner. That letter also contained information about the alternative proposal by the first applicant;
[108] Exhibit 1 at pages 180-182.
f)by letter dated 21 August 2021, the first applicant wrote to the Secretary of the SMS Association to dispute the Proposed New Rules and the agenda contained in the Notice for the reasons set out in that letter.[109] The first applicant requested the Management Council appoint a subcommittee for restructuring the SMS Association among the members in accordance with the Motion. Further, the first applicant alleged that there had been breaches of r 19(f) and r 22(1)(c) of the 2010 Rules and a breach of s 30(1) of the AI Act;
[109] Exhibit 1 at pages 183-184.
g)on 29 August 2021, a Special General Meeting of the SMS Association was held. The minutes of that meeting record that a special resolution was passed to rescind the 2010 Rules and adopt and approve the Proposed New Rules (that is, the 2021 Rules);[110]
[110] Exhibit 2 at pages 23-24.
h)by letter dated 7 September 2021, the first applicant wrote to the Secretary of the SMS Association to advise, inter alia, that he did not agree to the dispute being determined by the Management Council. The first applicant also requested the appointment of a mediator under r 23 of Model Rules and proposed the Citizen Advice Bureau as the mediator;[111]
[111] Exhibit 1 at page 187.
i)by letter dated 20 September 2021, the Commissioner for Consumer Protection (Commissioner) advised the SMS Association that the Notice of Special Resolution to change the rules form had been received by the Department of Consumer Protection and the changes had been lodged effective 20 September 2021;[112]
[112] Exhibit 2 at pages 25-26.
j)on 12 September 2021, the first respondent listed the Notice of Dispute in relation to Dispute 3 for hearing on 22 September 2021;
k)by letter dated 22 September 2021, the first applicant wrote to the Secretary.[113] In that letter, the first applicant stated that he was referring all three disputes (including Dispute 3) for mediation to a mediator because of 'your refusal to appoint the Mediators within the time frame';
l)by letter dated 25 September 2021, the first applicant wrote to the Secretary to advise that he had engaged a professional mediator to conduct mediation in respect of three disputes (including Dispute 3), and seeking confirmation as to whether or not the Management Council would participate in the mediation;[114]
m)by letter dated 6 October 2021 the legal representatives for the SMS Association wrote to the first applicant.[115] In that letter it was stated that the matters the subject of the Notice of Dispute were considered by the Management Council at a meeting on 22 September 2021. The letter also made reference to what was determined at that meeting. In the letter, it is stated:
In circumstances where the new rules have been voted on by the SMS at the [Special General Meeting] on 29 August 2021 and have now been approved by the Commissioner for Consumer Protection, we request that you confirm how our client attending a Mediation with you is going to assist in progressing your concerns in relation to the new rules (within the powers our client has), in order for our client to determine how to address your request. Against, they are not matters that can be dealt with at Mediation or by a Mediator.
n)by letter dated 20 October 2021, the applicant wrote to Mr Nilsson to state that steps would be taken to issue an application with the Tribunal;[116] and
o)on 5 December 2021 the applicants lodged an application with the Tribunal under s 182(2) of the AI Act in relation to four disputes, including Dispute 3.
Is Dispute 3 a dispute under or relating to the rules of the SMS Association?
[113] Exhibit 1 at pages 194-195.
[114] Exhibit 1 at page 196.
[115] Exhibit 2 at pages 27-31.
[116] Exhibit 1 at page 207.
The applicants say that Dispute 3 is a dispute between the applicants and the respondents concerning alleged non-compliance with r 19(f) and r 22(1)(c) of the 2010 Rules and s 30(1) of the AI Act.[117]
[117] Dispute 3 in the Consolidated Disputes Document; Applicants' SIFC at pages 4-5; and Applicants' Agreed Facts at pages 11-12.
There is no r 19(f) in the 2010 Rules. This would appear to be a reference to r 19(2)(f).
Rule 19(2)(f) of the 2021 Rules provides that the business of the AGM shall include any other business requiring consideration by the SMS Association at that meeting. The applicants appear to be alleging that this rule was breached because the motion that was presented to the AGM of 2019/2020 to appoint a subcommittee for restructuring the SMS Association, including drafting new rules, was never taken up for consideration at that AGM. Instead, the first respondent rushed through a new rule without proper consultation.[118]
[118] Applicants' Agreed Facts at page 11.
Rule 22(1)(c) of the 2010 Rules provides that the SMS Association may alter or rescind the 2010 Rules, or make rules additional to the 2010 Rules in accordance with the procedure contained in that subrule. In particular, 'any member so wishing to move for rescission alteration of addition to any of the rules of the SMS Association shall give at least twenty-eight days' notice in writing to the Secretary prior to the holding of the general meeting at which the motion for rescission alteration of addition is to be considered. The applicants allege that there was a breach of r 22(1)(c) of the 2010 Rules because the first applicant submitted his own rules to the SMS Association and they were rejected by the Management Council but should have been included in the Notice for consideration by the members of the SMS Association.[119]
[119] Applicants' Agreed Facts at page 12.
Section 30(1) of the AI Act makes provision for the alteration of the rules of an incorporated association by means of a special resolution. The applicants allege that the 2021 Rules were not presented by the SMS Association but by the Management Council contrary to s 30(1) of the AI Act.
I find that Dispute 3 is a dispute under or relating to the rules of the SMS Association either between members, or between one or more members and the SMS Association, to the extent that the dispute relates to alleged contraventions of r 19(2)(f) and r 22(1)(c) of the 2010 Rules.

I find that the applicants' Application in respect of Dispute 4 was clearly unmeritorious from the outset. This is because the Tribunal found that the applicants lodged their application in the Tribunal before even drawing the respondents' attention to the fact that there was a controversy.[149] That is, there was no attempt by the applicants to comply with the dispute resolution procedure in respect of Dispute 4 and the applicants effectively conceded as much during the hearing.[150]
[149] Sivanpathakumar and the Management Council of Saiva Maha Sabai of WA Inc [2022] WASAT 96 at [146].
[150] Sivanpathakumar and the Management Council of Saiva Maha Sabai of WA Inc [2022] WASAT 96 at [142].
The respondents' assert that the jurisdictional issue was raised as early as 21 December 2021. However, I do not have any evidence before me to support that assertion. On the evidence before me, I find that the jurisdictional issue was first raised formally on 24 April 2022 when the respondents lodged the Dismissal Application. The respondents' facts and submissions in support of the Dismissal Application were filed on 29 April 2022 and 7 June 2022 respectively.
I find that the applicants' application in respect of Disputes 1, 2 and 3, was clearly unmeritorious from 24 April 2022 when the respondents filed the Dismissal Application. From that point on, the applicants were on notice that their application was unmeritorious. The respondents' facts and submissions in support of the Dismissal Application further articulated to the applicants the basis on which the respondents asserted that the Tribunal did not have jurisdiction to determine the dispute under s 182 of the AI Act.

Other matters raised by the Applicants

Alleged errors in the Tribunal's decision

It is not appropriate for an unsuccessful party to proceedings in the Tribunal in opposing costs sought by the successful party to argue that the Tribunal erred in its decision and, therefore, the Tribunal should not award costs. The Tribunal has made its decision and the decision stands unless overturned on appeal. If the applicants are dissatisfied with the Tribunal's decision, then they may appeal to the Supreme Court under s 105 of the SAT Act.[151]
[151] It is noted that the applicants' application for review of the Tribunal's decision in Sivanpathakumar and The Management Council of Saiva Maha Sabai of WA Inc [2022] WASAT 96 was dismissed by the Tribunal on 13 December 2022 pursuant to s 47(1)(a) of the SAT Act.
Accordingly, the applicants' dissatisfaction with the Tribunal's decision is not relevant to the exercise of the Tribunal's discretion to award costs.

Duty to ensure that a matter is within the Tribunal's jurisdiction

The applicants' application was filed with the Tribunal on 6 December 2021. The respondents lodged their Dismissal Application on 24 April 2022. This was after the first applicant was given leave to withdraw the interim application for an interim injunction on 21 December 2021 and following the exchange of the parties' SIFC.
In Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 (Citta) the High Court set out a number of principles in respect of the role of a non-court State tribunal (tribunal) in determining State jurisdiction. One of those principles is that the tribunal has a duty and concomitant authority to ensure that a complaint referred to it is and remains within its jurisdiction to hear and determine.[152]
[152] Citta at [17] and [62].
As the Tribunal observed during the hearing, the parties cannot confer jurisdiction on the Tribunal. Accordingly, if there is an issue about whether or not the Tribunal has jurisdiction to determine a matter, then it is appropriate that this matter be brought to the attention of the Tribunal and dealt with as soon as possible, including by way of an application to dismiss or an application to determine a preliminary issue. Such an approach is consistent with the objectives of the Tribunal because if the Tribunal does not have jurisdiction, then the matter is brought to an end as soon as possible without going to a final hearing and thus minimises the costs to parties.
Given that the Tribunal is duty bound to ensure that it acts within jurisdiction, it is my view that legal practitioners representing a party in Tribunal proceedings are duty bound to raise any jurisdictional issue of which they are aware.
The fact that there may not be any cases before the Tribunal in which a particular jurisdictional issue has been raised in a dispute arising under s 182 of the AI Act is irrelevant. There is always going to be a first time for a jurisdictional issue to be raised in relation to a particular enactment which confers jurisdiction on the Tribunal.
However, notwithstanding the applicants' assertion to the contrary, there are at least two published decisions in which the same jurisdictional issue has been raised in the Tribunal in a matter arising under the AI Act. In Smajic and Bosnian Islamic Society Perth (WA) Inc [2021] WASAT 162 and Watson and Sporting Shooters Association of Australia (WA) Inc. [2021] WASAT 11, the question as to whether or not the Tribunal had jurisdiction under s 182 of the AI Act was dealt with as a preliminary issue. In each case the applications were dismissed because the Tribunal did not have jurisdiction to determine the dispute due to non-compliance with the applicable dispute resolution procedure.[153]
[153] Smajic and Bosnian Islamic Society Perth (WA) Inc [2021] WASAT 162 at [34] - [35]; Watson and Sporting Shooters Association of Australia (WA) Inc. [2021] WASAT 11 at [62].
I find that there was nothing inappropriate in relation to the raising of the jurisdictional issue by the respondents.
Accordingly, I do not accept the applicants' submission that the Dismissal Application impaired the Tribunal's statutory objectives or significantly increased the parties' costs.

Legal representation

There is nothing in either the AI Act or the SAT Act which precludes a party from being represented, in proceedings arising under the AI Act, in the Tribunal. Section 39 of the SAT Act makes it clear that a party to a proceeding in the Tribunal may appear in person or be represented by another person, including a legal practitioner.
The respondents were at all times represented by legal practitioners in the Tribunal proceedings.
The applicants were represented by a legal practitioner from Butcher Paull and Calder between 10 January 2022 and 8 May 2022. Thereafter, the applicants were represented by the first applicant who is a legal practitioner.
The fact that the respondents chose to be legally represented is not a reason for refusing to make a costs order, particularly in circumstances where the applicants were also legally represented. However, the number of legal practitioners involved may be relevant to the quantum of costs if the Tribunal decides to award costs.

The requirement to file and serve a SIFC and bundle of documents

It is common practice for the Tribunal to make orders requiring parties to file and serve SIFCs in both original and review proceedings before the Tribunal.[154]
[154] Orders GP 300 - 301b and Orders GP 350 - 351b inclusive in the Standard and Regularly Used Orders published on the Tribunal website.
An order that a party file a SIFC is not intended to be punitive. The purpose of making such an order is to 'allow the Tribunal to quickly understand the key issues, facts and arguments in the proceeding.'[155]
[155] D R Parry and B De Villiers, Guide to Proceedings in the Western Australian State Administrative Tribunal, Lawbook Co. Thomson Reuters (2012) at [1201].
At a directions hearing held on 1 February 2022, the Tribunal ordered each party to file a SIFC and a bundle of documents.
The Tribunal was greatly assisted by each SIFC and the bundle of documents, especially since no witnesses were called at the hearing of the Dismissal Application. This is reflected in the references to those SIFCs and those documents in the Tribunal's reasons for decision. Further, the Tribunal observes that some of the documents in the respondents' bundle were not documents contained in the applicants' bundle but were clearly relevant to the disputes.
The fact that there may not be any other matters arising under the AI Act in which the Tribunal has ordered the parties to file a SIFC and a bundle of documents is irrelevant. However, it is noted that in Green and Port Hedland Pony Club Inc [2019] WASAT 16, a matter arising under the AI Act, the parties filed a SIFC and a bundle of documents.
Accordingly, the fact that the Tribunal ordered each party to file a SIFC and a bundle of documents is not a reason for refusing to make a costs order. Nor is the fact that the applicants could not find any previous cases where parties were required to do so in a dispute under the AI Act.

Conduct of the respondents

The applicants made a number of submissions in relation to the conduct of the respondents[156] which I have taken to be submissions as to why the respondents should be denied their costs. I will deal with each of those submissions in turn.

Suspension and expulsion of the first applicant

[156] Applicants' Costs Submissions at [11]-[20].

In Kavanagh and Pine Valley Pistol Club Incorporated [2020] WASAT 11, the Tribunal held that an application can be made under s 182(1) of the AI Act if an incorporated association contends that the membership of a person who has been a member of the incorporated association has ceased, but that person disputes that their membership has ceased because they contend that the incorporated association has not complied with its rules.[157]
[157] At [86].
Accordingly, I do not accept that there is any merit in the applicants' submission that the respondents deliberately suspended and expelled the first applicant so as to prevent him from applying to the Tribunal. This is because the first applicant would not have been precluded from making an application to the Tribunal. Further, and in any event, the suspension of the first applicant was conduct which occurred before the Application was filed in the Tribunal and both the suspension and expulsion were central to Dispute 4 in the Application.

Failure to file a response

The respondents were not ordered by the Tribunal to file a response to the applicants' Application. The respondents were ordered by the Tribunal to file a SIFC[158] and complied with the order to do so.[159] Subsequent to the filing of the respondents' SIFC, the respondents' Dismissal Application was filed, and the programming orders made thereafter related to the Dismissal Application rather than the Application.[160]
[158] Orders made on 1 February 2022.
[159] A SIFC was filed by the respondents on 18 March 2022.
[160] See Orders made on 9 May 2022 and 24 June 2022.
Accordingly, I do not accept that there is any merit in the applicants' submission that the respondents did not respond to the Application.

Failure or refusal to appoint a mediator

There is a clear difference between engaging a person to act as a mediator and nominating a person for appointment as a mediator.
The Tribunal did not find that the respondents had refused to appoint a mediator. The Tribunal found that the parties had not complied with the dispute resolution process of the SMS Association. This was because the applicants engaged a mediator before seeking the agreement of the respondents in circumstances where the dispute resolution procedure stipulated that the mediator must be chosen by agreement and, if there was no agreement, by the Management Council.
Accordingly, I do not accept that there is any merit in the applicants' submission that the respondents refused to appoint a mediator or adopted a double standard by refusing to accept a mediator nominated by the applicants but then later requested the first applicant to appoint mediators.
Further, although the respondents submitted that the first applicant issued a request for a mediator in relation to Dispute 3 prior to the hearing of the SMS Association being heard,[161] the respondents' counsel, quite properly in my view, conceded at the hearing that the first applicant appeared to have requested the first respondent not to determine the dispute. As a consequence, the Tribunal found that the Management Council determined Dispute 3 in circumstances where they were not permitted to do so.[162]
[161] Outline of respondents' submissions on interim application at [19].
[162] Sivanpathakumar and The Management Council of Saiva Maha Sabai of WA Inc [2022] WASAT 96 at [129] and [131].
Accordingly, given the correction made by the respondents' counsel at the Hearing, I do not accept that there is any merit in the applicants' submission that the respondents falsely submitted that the first applicant requested the appointment of a mediator before the Management Council made any determination.

Reconsideration of decision

Contrary to the submissions of the applicants, I find that the Tribunal did not on 29 March 2022 order the respondents to reconsider their decision to expel the first applicant from the SMS Association. None of the 15 sets of orders made in relation to this proceeding contain such an order.
Accordingly, there is no merit in the applicants' argument in relation to reconsideration.

Arguments in respect of relief sought

The basis for the Dismissal Application was twofold. First, an argument that the parties had not complied with the dispute resolution procedure. Second, an argument that the Tribunal could not grant the relief sought. Given that the Tribunal found that the Tribunal did not have jurisdiction to determine the disputes due to non-compliance with the dispute resolution procedure, it was not necessary to determine the alternate ground relating to the relief sought. However, the Tribunal did make some observations which raised doubt whether the Tribunal could grant all of the relief sought by the applicants.
Contrary to the submission of the applicants, the Tribunal did not indicate that any breach of the Rules of the SMS Association come within the power of the Tribunal. The Tribunal observed that a dispute under or relating to the rules of an incorporated association may involve an allegation that a particular person has, by his or her conduct, contravened a rule of an incorporated association and, in particular, where that person is subject to an obligation under the rule in question.[163]
[163] Sivanpathakumar and the Management Council of Saiva Maha Sabai of WA Inc [2022] WASAT 96 at [106].
Accordingly, I do not accept that there is any merit in the applicants' argument that the respondents acted inappropriately in raising the issue as to whether or not the Tribunal could grant the relief sought.

Exercise of discretion in relation to costs

Taking into account the statutory framework, the principles relating to awards of costs by the Tribunal, and all of the matters referred to above at [24] to [71], I find that the respondents are entitled to a portion of their reasonable costs in relation to the proceeding.

Quantum of costs

The disposition of this proceeding in the Tribunal, other than the interim application for an interim injunction, involved:
(a)the filing of the Application (28 pages in length excluding the Rules of the SMS Association);
(b)the filing of notices of legal representation;
(c)attendance at five directions hearings held by teleconference each approximately 30 minutes in duration;[164]
(d)attendance at a hearing in relation to the Dismissal Application which was less than 3 hours in duration and where no witnesses were called;[165]
(e)the filing by each party of a SIFC (the applicants' SIFC was 14 pages in length and the respondents' SIFC was 9 pages in length);
(f)the filing by each party of a bundle of documents (there were 330 pages of documentary evidence lodged with the Tribunal: 296 pages from the Applicants' bundle and 34 pages from the Respondents' bundle);
(g)filing of further and better particulars by the applicants concerning Dispute 4 (4 pages in length); and
(h)the filing of agreed facts and written submissions in relation to the Dismissal Application (the respondents' facts and submissions were 12 pages in length and the applicants' facts and submissions were 26 pages in length); and
(i)the filing of written submissions and documents in relation to the respondents' costs application.
[164] The directions hearings were held on 1 February 2022; 29 March 2022; 3 May 2022; 9 May 2022 and 24 June 2022.
[165] The hearing was held on 8 August 2022.
The invoices submitted by the respondents are summarised below:

Date of Invoice and relevant time period

Invoice No.

Amount

22 December 2021

For the period from 9 December 2021 to 22 December 2021

363585

$10,139.60 made up of:

Professional fees Barry Nilsson Lawyers $3,979.80

Counsel fees: $6,160.

Note: redacted line items not included; GST included.

31 January 2022

For the period from 23 December 2021 to 31 January 2022

365214

$7,123.05 made up of Professional fees Barry Nilsson Lawyers

28 March 2022

For the period from 31 January 2022 to 18 March 2022

368077

$16,949.80 made up of Professional fees Barry Nilsson Lawyers

31 May 2022

For the period from 28 March 2022 to 30 May 2022

372748

$15,038.10 made up of Professional fees Barry Nilsson Lawyers

30 June 2022

For the period from 2 June 2022 to 26 June 2022

375851

$6,162.75 made up of Professional fees Barry Nilsson Lawyers

31 August 2022

For the period from 8 July 2022 to 30 August 2022

379744

$17,202.90 made up of:

Professional fees Barry Nilsson Lawyers $8,241.

Counsel fees: $8,580

Note: redacted line items not included; GST included.

Total

$72,616.62

I find that the respondents have provided sufficient information to enable the Tribunal to consider and evaluate their claim for costs.
The applicants submitted that costs should not be awarded in relation to items which have been redacted. As a general proposition, I would agree. However, where a line item has been completely redacted on the invoices submitted by the respondents, it is apparent that the respondents are not claiming those line items by way of costs. This is reflected in the fact that the costs claimed are in the amount of $60,000 rather than the total amount of the invoices submitted. I have deducted the redacted line items from the total costs claimed in the invoices in the tables set out above.
There are also a number of line items which have been partially redacted. I do not consider that these redactions are significant or that they cast doubt about the genuineness of the tax invoices as there is still sufficient information to conduct an evaluation. Further, having regard to other unredacted line items, the redactions appear to be the names of individuals at AXA to whom emails were addressed and telephone calls made.
I find that the amount of costs of $60,000 claimed by the respondents is not reasonable. This is for the following reasons.
First, the costs are on their face excessive when one has regard to the following factors:
(a)the proceeding only progressed as far as the Dismissal Application;
(b)costs in relation to the interim application for an interim injunction were dealt with by way of a separate costs order;[166]
(c)all of the directions hearings were held by teleconference;
(d)the hearing of the Dismissal Application was less than 3 hours in duration and no witnesses were called; and
(e)the matter was factually, but not legally, complex.
[166] Orders made on 29 March 2022.
Second, given that the matter was not legally complex, it was not, in my view, necessary to appoint counsel.
Third, the hourly rates charged by counsel for the respondents significantly exceeds the maximum allowable rates under the Costs Determinations. In particular, the agreed hourly rate of $700 exclusive of GST for counsel is significantly more than the maximum hourly rate (inclusive of GST) under both the 2020 Costs Determination and the 2022 Costs Determination ($363 and $385 respectively). Whilst it is open to a client to enter into a written costs agreement with a legal practitioner to pay more than the maximum hourly rates, the client should not expect to recover more than the maximum hourly rate under the relevant Costs Determinations when seeking costs in the Tribunal from another party to the proceedings.

Fourth, it is apparent from an examination of the invoices submitted that there was duplication of work by the legal practitioners engaged by the respondents. For example, each legal practitioner was involved in the drafting of submissions in circumstances where those submissions were not great in length or legally complex.
Fifth, some items do not appear to be relevant to the Application in question. For example, the applicants are seeking $598.50 for the drafting of costs submissions on 2 February 2022. However, these costs submissions relate to the application for costs in respect of the interim application for an interim injunction. Further, for example, other costs were incurred by the respondents after the hearing but before the decision was delivered.

Application of s 87(4) of the SAT Act

In the Tribunal's reasons for decision, it was noted that s 87(4) of the SAT Act applies only to costs in respect of proceedings which come within the Tribunal's review jurisdiction. The application brought by the applicants did not fall within the Tribunal's review jurisdiction and that subsection is therefore inapplicable to the question of costs in this matter. I remain of that view notwithstanding that the applicants have referred to that subsection in their outline of submissions.

Conclusion

Taking a broadbrush approach in a robust fashion and taking into account the Costs Determinations and the matters to which I have referred above in [73] to [84], I am of the view that a total amount of $10,000 (including GST) ought to be recovered by the respondents from the applicants.
While the amount of $10,000 has been fixed in a robust manner, it results in a total costs award which is, in my view, fair and reasonable and not excessive in nature. Further, in my view, the amount of costs fixed accords with the nature of the proceeding, the stage which the proceeding had reached, the amount of work involved in the Dismissal Application, and the objectives of the Tribunal.

Orders

The Tribunal orders:
1.Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the applicants shall pay the respondents' costs fixed at $10,000 (including GST).
2.The respondents' application for costs is otherwise dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS C Conley, MEMBER

6 FEBRUARY 2023

Dispute	Relief Sought
Dispute 1	a) an order that the Election held on 28 March 2021 for the positions of Assistant Secretary, Treasurer, and the ordinary council members is declared null and void; b) an order directing the fourth respondent to hold a fresh election for the positions of Assistant Secretary, Treasurer, and seven ordinary council members; c) an order that members eligible to vote as at 28 March 2021 shall only be able to cast votes on the fresh election; and d) an order directing the first respondent to discover and allow inspection of documents identified in a request dated 27 May 2021.
Dispute 2	a) an order declaring that the one or more of the respondents jointly and severally breached the rules of the SMS Association; b) an order directing the first respondent to initiate disciplinary action against the second and third respondents; c) an order that the first respondent, second respondent and third respondent pay financial loses and damages to the SMS Association and Siri BalaMurugan (Temple); d) an order that the second and third respondents pay to the first applicant the financial loss and damages suffered by him due to the breaches committed against him; and e) an order directing the first respondent to discover and allow inspection of documents in the request for preaction discovery of documents.
Dispute 3	An order declaring that the rules passed at the Special General Meeting held on 29 August 2021 be declared null and void.
Dispute 4	a) a declaration that the grounds on which the first respondent issued a notice of expulsion to the respondent are unlawful and unconstitutional; b) until a final declaration or further order for relief is made, that the first respondent be restrained by an urgent injunction restraining the first respondent from hearing the expulsion of the first applicant from the membership of the SMS Association; c) an order dispensing with the requirement to follow the dispute resolution procedure; and d) any other relief the Tribunal considers fit.

Date of Invoice and relevant time period	Invoice No.	Amount
22 December 2021 For the period from 9 December 2021 to 22 December 2021	363585	$10,139.60 made up of: Professional fees Barry Nilsson Lawyers $3,979.80 Counsel fees: $6,160. Note: redacted line items not included; GST included.
31 January 2022 For the period from 23 December 2021 to 31 January 2022	365214	$7,123.05 made up of Professional fees Barry Nilsson Lawyers
28 March 2022 For the period from 31 January 2022 to 18 March 2022	368077	$16,949.80 made up of Professional fees Barry Nilsson Lawyers
31 May 2022 For the period from 28 March 2022 to 30 May 2022	372748	$15,038.10 made up of Professional fees Barry Nilsson Lawyers
30 June 2022 For the period from 2 June 2022 to 26 June 2022	375851	$6,162.75 made up of Professional fees Barry Nilsson Lawyers
31 August 2022 For the period from 8 July 2022 to 30 August 2022	379744	$17,202.90 made up of: Professional fees Barry Nilsson Lawyers $8,241. Counsel fees: $8,580 Note: redacted line items not included; GST included.
Total	$72,616.62