SMAJIC and BOSNIAN ISLAMIC SOCIETY PERTH (WA) INC
[2021] WASAT 162
•17 DECEMBER 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: ASSOCIATIONS INCORPORATION ACT 2015 (WA)
CITATION: SMAJIC and BOSNIAN ISLAMIC SOCIETY PERTH (WA) INC [2021] WASAT 162
MEMBER: MS C BARTON, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 17 DECEMBER 2021
FILE NO/S: CC 981 of 2021
BETWEEN: SAJIT SMAJIC
Applicant
AND
BOSNIAN ISLAMIC SOCIETY PERTH (WA) INC
Respondent
Catchwords:
Incorporated association - Jurisdiction of the Tribunal - Procedure for dealing with a dispute - Grievance procedure - Application of model rules - Expulsion of a member - Resolution of a dispute - Meaning of 'attempt to resolve a dispute between themselves' - Request for appointment of a mediator
Legislation:
Associations Incorporation Act 2015 (WA), s 22, s 22(3)(a), s 22(7), s 26(1), s 28(2)(b)(i), s 182(2), s 186, s 198, Sch 1, Div 1
Associations Incorporation Regulations 2016, reg 4, Sch 1, Div 3, Sch 2, Pt 4, Div 3, Div 4, r 15(2), r 15(3), r 15(7), r 17, r 18, r 19, r 20(1), r 20(2), r 20(3), r 20(4), r 20(5), r 22, r 23, r 24, r 25
State Administrative Tribunal Act 2004 (WA), s 60(2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | Rowick & Bucolo Lawyers |
| Respondent | : | LVA Legal |
Case(s) referred to in decision(s):
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
Smajic and Bosnian Islamic Society Perth (WA) Inc. [2020] WASAT 36
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
At a committee meeting of the Bosnian Islamic Society Perth (WA) Inc (Society/respondent) on 21 April 2021, Mr Sajit Smajic (applicant) was expelled from the Society following a previous decision of the Society on 9 April 2019 to suspend him.
On 21 June 2021, the applicant applied to the Tribunal under s 182(1) of the Associations Incorporation Act 2015 (WA) (Act) to have a dispute between himself and the Society determined by the Tribunal. Section 182(1) of the Act permits an incorporated association, or one of its members, to apply to the Tribunal when a dispute cannot be resolved under the procedure provided by the rules of the incorporated association made in accordance with item 18 of Sch 1, Div 1 to the Act.
A preliminary issue arose as to whether the Tribunal had jurisdiction under s 182(1) of the Act to determine the dispute the subject of the proceeding.
On 5 October 2021, the Tribunal made an order that the preliminary issue is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
The preliminary issue to be determined
The relevant question for determination by the Tribunal is expressed in orders made by the Tribunal on 24 August 2021 as follows:
Does the Tribunal have jurisdiction under s 182(1) of the Act to deal with all or any part of the dispute the subject of this application?
The statutory framework relating to rules of an association
Section 22 of the Act sets out the general requirements for the content of the rules of an incorporated association.
Section 22(3)(a) of the Act provides that the rules of an incorporated association must address each of the matters set out in items 1-19 of Sch 1, Div 1 to the Act which includes, relevantly, a procedure for dealing with any dispute under or relating to the rules between members or between members and the incorporated association.[1]
[1] Item 18, Sch 1, Div 1 to the Act.
Section 22(7) of the Act provides that s 22 of the Act applies to an association which was already incorporated prior to the commencement of the Act. However, s 198 of the Act allows a period of three years after the commencement of the Act for those incorporated associations to alter their rules to comply with the requirements of s 22 of the Act. If the rules are not altered within the three year period, the model rules apply to the extent that the rules of the incorporated association do not address a matter referred to in Sch 1, Div 1 to the Act: s 28(2)(b)(i) of the Act.
Pursuant to s 26(1) of the Act and reg 4 of the Associations Incorporation Regulations 2016 (WA) (Regulations), the rules set out in Sch 2 to the Regulations are prescribed as model rules (Model Rules).
The nature of the dispute
The applicant says that the dispute, the subject of this proceeding, relates to the respondent's decision on 9 April 2019 to suspend the applicant as a member.[2] The applicant also identifies, as the subject of the dispute, the respondent's decision of 21 April 2021 to expel the applicant as a member (including the respondent's proposal to do so).[3] The applicant contends that the respondent unlawfully and unfairly expelled the applicant. In addition, the applicant says that the respondent's failure to comply with r 23 of the Model Rules, and appoint a mediator following the applicant's expulsion, forms part of the dispute before the Tribunal.
[2] Applicant's statement filed on 3 August 2021 pursuant to order 2 of orders made by the Tribunal on 24 August 2021, para 9.
[3] Applicant's responsive statement filed on 1 September 2021 pursuant to order 2 of orders made by the Tribunal on 24 August 2021, para 6.
The respondent's decision on 9 April 2019 to suspend the applicant as a member of the Society was the subject of a previous application to the Tribunal. In Smajic and Bosnian Islamic Society Perth (WA) Inc. [2020] WASAT 36 (Smajic), the parties agreed that the suspension of the applicant's membership formed part of the 'dispute' for the purposes of the Tribunal's determination.[4] Ultimately, the Tribunal concluded that the applicant had not initiated the grievance procedure under the Model Rules and, therefore, the Tribunal had no jurisdiction to determine the dispute.[5]
[4] Smajic at [8].
[5] Smajic at [34].
Because the suspension of the applicant's membership on 9 April 2019 has been the subject of a previous determination by the Tribunal, I find that the dispute that is the subject of this proceeding is limited to the applicant's expulsion as a member of the Society on 21 April 2021 and the respondent's purported failure to appoint a mediator.
Background to the dispute
Many relevant factual matters were not in dispute between the parties. I make the following findings of fact in relation to those matters:
1)The rules of the Society are comprised in the document entitled, 'Constitution and Rules of the Bosnian Islamic Society Perth (WA) Incorporated' (Constitution) which were approved and adopted at a special general meeting of the Society on 25 March 2016.
2)The Society is a registered association and was incorporated on 9 April 1996.
3)The Society was incorporated before the Act commenced on 1 July 2016.
4)The Society is an 'existing incorporated association' for the purposes of s 186 of the Act and, therefore, is taken to be an association incorporated under the Act.
5)By letter dated 17 March 2021, the applicant was advised that the Society was proposing to expel him as a member and that it would be determined at a committee meeting on 18 April 2021.
6)On 18 April 2021, the applicant's solicitor wrote to the Society enclosing written submissions on which the applicant intended to rely on at the committee meeting.
7)By letter dated 21 April 2021 from the Society, the applicant was advised that a decision had been made to expel him as a member of the respondent.
8)By letter dated 3 May 2021, the applicant's solicitor wrote to the secretary of the Society requesting that a mediator be appointed to resolve the dispute pursuant to r 15(7) of the Model Rules.
9)The dispute, the subject of the proceeding, is between a member of the Society and the executive committee.
10)The Model Rules apply to the dispute pursuant to s 28(2)(b)(i) of the Act because clause 24 of the Constitution, which sets out the Society's dispute procedure, is limited in its application to disagreements between officers of the executive committee or between members of the Society.[6]
The Tribunal's jurisdiction
[6] This matter was the subject of a determination by the Tribunal in Smajic at [26].
The Tribunal will have jurisdiction to determine an application made under s 182(1) of the Act if, on the facts, the parties fail to resolve their dispute despite following the grievance procedure in the rules of the incorporated association which satisfies item 18 of Sch 1, Div 1 to the Act.[7]
[7] Kelmscott Senior Football Club (Inc) and Western Australian Amateur Football League (Inc) [2018] WASAT 6 at [32].
Item 18 of Sch 1, Div 1 to the Act provides that the rules of an incorporated are to provide:
A procedure for dealing with any dispute under or relating to the rules -
(a)between members; or
(b)between members and the incorporated association.
If the rules of an incorporated association do not contain a grievance procedure which satisfies the requirements of item 18 of Sch 1, Div 1 to the Act, then the grievance procedure in the Model Rules will apply as the rules of the association.[8]
[8] Section 28(2)(b)(i) of the Act.
In Kavanagh and Pine Valley Pistol Club Incorporated [2020] WASAT 11 (Kavanagh), the Tribunal identified the situations in which the Model Rules will apply. In Smajic, I observed that the following situation applies to the Society:[9]
[I]f 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.
[9] Kavanagh at [46].
The parties agreed, and I find, that the Model Rules apply.[10]
[10] Applicant's statement filed on 3 August 2021 pursuant to order 2 of orders made by the Tribunal on 20 July 2021, para 7; respondent's statement filed on 13 August 2021 pursuant to order 3 of orders made by the Tribunal on 20 July 2021, para 7. This matter was determined by the Tribunal in Smajic at [26].
I will next consider whether the grievance procedure in the Model Rules was followed by the parties. If the grievance procedure was not followed, then the Tribunal will not have jurisdiction under s 182(1) of the Act to determine the dispute.
Application of the Model Rules
Rule 15(2) of the Model Rules provides that the secretary of the association must give a member written notice of his or her proposed expulsion at least 28 days before the committee meeting at which the proposal is to be considered by the committee. There was no dispute, and I find, that the Society gave notice to the applicant of his proposed expulsion as a member in accordance with r 15(2) of the Model Rules. There was also no dispute, and I find, that the applicant was advised that he would be given a reasonable opportunity to make written or oral submissions to the committee about the proposed expulsion as required by r 15(3) of the Model Rules.
Pursuant to r 15(7) of the Model Rules, a member who is expelled from the association may, within 14 days after receiving notice of the committee's decision, give written notice to the secretary of the association requesting the appointment of a mediator under r 23 of the Model Rules. There was no dispute, and I find, that the applicant gave written notice to the secretary of the Society in accordance with r 15(7) of the Model Rules on 3 May 2021.
Rule 18 of the Model Rules provides that the grievance procedure set out in Sch 1, Div 3 to the Regulations applies to disputes between members or between one or more members and the association. In summary, the grievance procedure set out in the Model Rules is as follows:[11]
• 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 (r 19).
• If the parties are unable to resolve the dispute, 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 (r 20(1)).
• A meeting of the management committee must be convened within 28 days after the secretary has been given notice.[12]
• The parties must be given written notice of that meeting and they are entitled to attend the meeting and make submissions to the committee about the dispute.[13]
• If the dispute is between one or more members and the association, then a party to the dispute can elect that it is not determined by the committee and that a mediator be appointed.[14]
Was the grievance procedure in the Model Rules followed?
[11] Part 4, Div 3 of Sch 2 to the Regulations.
[12] Rule 20(2) of the Model Rules.
[13] Rule 20(3) and (4) of the Model Rules.
[14]Rule 20(5), in which case r 22 - r 25 in Pt 4, Div 4 of Sch 2 to the Regulations apply.
Rule 19 provides that 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.
The applicant contends that it attempted to resolve the dispute under r 19 by sending the letter of 3 May 2021 from its solicitor to the respondent.[15] In contrast, the respondent contends that no attempt was made by the parties to resolve the dispute under r 19.[16] The respondent says that the letter of 3 May 2021 was the only communication from or on behalf of the applicant to the respondent after the decision was made by the committee to expel him.[17] It is the respondent's position that, even if r 19 had been complied with, the grievance procedure was not initiated under r 20(1) because neither party gave written notice to the secretary of the Society of the parties to the dispute and the matters that are the subject of the dispute. The respondent observes that the letter from the applicant's solicitor of 3 May 2021 to the secretary of the Society does not use the word 'dispute' in the heading but is phrased as 'Notice pursuant to Rule 15(7) of the Model Rules' and requests the appointment of a mediator.[18]
[15] Applicant's responsive statement filed on 1 September pursuant to order 2 of orders made by the Tribunal on 24 August 2021, para 6.1.4.3.
[16] Respondent's statement filed on 13 August 2021 pursuant to order 3 of the orders made by the Tribunal on 20 July 2021, para 20.3.1.
[17] Respondent's responsive statement filed on 7 September 2021 pursuant to order 3 of the orders made by the Tribunal on 24 August 2021, para 1(c).
[18] Respondent's statement filed on 13 August 2021 pursuant to order 3 of the orders made by the Tribunal on 20 July 2021, para 20.3.2.
The applicant says that the letter of 3 May 2021 cannot be anything other than a letter initiating the grievance procedure in r 20(1) because it is in writing, it was issued within 14 days after the committee's decision to expel the applicant, and it identifies the parties to the dispute and the nature of the dispute (that the applicant is dissatisfied with the committee's decision to expel him).[19]
[19]Applicant's responsive statement filed on 1 September 2021 pursuant to order 2 of orders made by the Tribunal on 24 August 2021, para 6.1.5.
I find that the letter of 3 May 2021 from the applicant's solicitor to the secretary of the Society requested the appointment of a mediator. Because the appointment of a mediator would necessarily require the involvement of a third party to assist in the resolution of the dispute, I find that this does not constitute an 'attempt to resolve the dispute between themselves' for the purposes of r 19.[20] I further find that the letter of 3 May 2021 was the first and only correspondence received by the respondent after it advised the applicant that he was expelled from the Society and, therefore, the only communication that would enable a 'dispute' to come to the respondent's attention for the purposes of r 19. Consequently, there was no communication between the parties in the 14 days following the letter of 3 May 2021 that could be relied on to support a finding that the parties had attempted to resolve the dispute between themselves. For these reasons, I find that the parties did not attempt to resolve the dispute under r 19.
[20] If the parties are unable to resolve the dispute between themselves, and the grievance procedure is initiated under r 20(1), a party may subsequently elect that the dispute not be determined by the committee and a mediator be appointed under r 20(5).
If I am incorrect, and r 19 was satisfied, I nevertheless find that the letter from the applicant's solicitor dated 3 May 2021 to the secretary of the Society did not initiate the grievance procedure under r 20(1). I make this finding because the letter requested the appointment of a mediator, pursuant to r 15(7) of the Model Rules, following the committee's decision to expel the applicant.
If the grievance procedure is initiated under r 20(1), a committee meeting must be convened within 28 days after the secretary of the Society is given notice of the dispute.[21] The letter from the applicant's solicitor of 3 May 2021 does not refer to a committee meeting but is focussed on the process for appointing a mediator. The letter relevantly provides:
…
[w]e are instructed to request that, pursuant to Rule 15(7) of the Model Rules our client requires that a mediator be appointed to resolve the issues in dispute giving rise to our client's expulsion.
As you are aware, as set out in Rule 23, the Mediator must be a person who acts as mediator for another not-for-profit body, such as a community legal centre and not have a personal interest in the matter that is the subject of the mediation, or be biased in favour of or against any party to the mediation. We propose contacting the Citizens Advice Burau to arrange a suitably qualified mediator to conduct the mediation.
[21] Rule 20(2), of the Model Rules.
Based on the content of the letter of 3 May 2021, I find that the applicant did not initiate the grievance procedure under r 20(1) but rather the applicant sought to resolve the dispute by the appointment of a mediator under r 23 of the Model Rules. There was also no evidence before me that the respondent gave written notice to the secretary of the Society about the dispute under r 20(1).
Consequently, I find that the grievance procedure set out in the Model Rules was not followed by the parties to the dispute.
Applicant's request to appoint a mediator
In its letter of 3 May 2021, the applicant's solicitor requested the appointment of a mediator under r 23 of the Model Rules. The applicant says that the respondent has failed to appoint a mediator and, because the respondent has notice of the dispute as a result of this proceeding, the Tribunal should exercise its discretion under s 182(2) of the Act and list the matter for mediation.[22]
[22] Applicant's responsive statement filed on 1 September 2021 pursuant to order 2 of orders made by the Tribunal on 24 August 2021, para 6.1.6.
Rule 23 of the Model Rules is contained in Div 4 of Sch 2 to the Regulations which does not form part of the grievance procedure set out in Div 3 of Sch 2 to the Regulations.[23] For this reason, I find that the Tribunal does not have jurisdiction under s 182(1) of the Act to deal with the applicant's complaint that the respondent failed to appoint a mediator under r 23 of the Model Rules.
[23] The expression 'grievance procedure' is defined in r 17 of the Model Rules to mean 'the procedures set out in this Division'.
Section 182(2) of the Act provides that nothing in s 182(1) prevents the Tribunal from exercising its powers to refer the dispute, or any aspect of it, for mediation. I do not accept the applicant's contention that this proceeding enlivens the Tribunal's jurisdiction under s 182(2) of the Act to appoint a mediator. Because the grievance procedure was not initiated by either party, I have no jurisdiction in respect of the dispute and, therefore, I do not have the authority to refer the dispute to mediation under s 182(2) of the Act.
Conclusion
In accordance with these reasons and the preliminary issue so framed, I find that the grievance procedure set out in the Model Rules applies to the dispute between the applicant and the Society. However, the Tribunal does not have jurisdiction under s 182(1) of the Act to determine the dispute because the parties did not attempt to resolve the dispute between themselves and neither party initiated the grievance procedure.
Accordingly, the preliminary issue is answered in the negative. That is, the Tribunal does not have jurisdiction under s 182(1) of the Act to deal with all or any part of the dispute the subject of the application.
Orders
The Tribunal orders:
1.The application is dismissed because the Tribunal does not have jurisdiction to determine the dispute under s 182(1) of the Associations Incorporation Act 2015 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C BARTON, MEMBER
17 DECEMBER 2021
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