Snow v Consumer Association of South Australia
[2018] SADC 49
•11 May 2018
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
SNOW v CONSUMER ASSOCIATION OF SOUTH AUSTRALIA
[2018] SADC 49
Judgment of His Honour Judge Tilmouth
11 May 2018
ASSOCIATIONS AND CLUBS - EXPULSION, SUSPENSION AND DISQUALIFICATION
The applicant applies for the review of decisions of a Magistrate upholding his suspension and expulsion from an Incorporated Association on the grounds of oppressive and unreasonable conduct and breaches of the rules of natural justice.
Held:
1. As there was no express or implied provision in the constitution of the Association, the resolution of suspension was invalid.
2. As six members of the Association were participants in a Committee Meeting expelling Mr Snow, and as those six members participated in a General Meeting upholding the resolution for suspension, the later resolution was infected by bias and is therefore quashed.
Associations Incorporations Act 1985 (SA) s 18(1), s 20(1), s 23(1), s 40, s 61(1), s 61(4); Magistrates Court Act 1991 (SA) s 38(1)(a), ss 38(1)(e) & (f), s 38(7)(d), s 61(3), Part 5 Division 2; Kanda v Government of Malaya [1962] AC 332; Christian Revival Crusade Inc v Milne & Others (2007) 252 LSJS 113; R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; National Companies and Securities Commission v News Corporation Ltd (1984) 15 CLR 296; Harradine v District Court of South Australia (2012) 280 LSJS 572; Hadeler v Antonious (2009) LSJS 193; Pettit v South Australia Harness Racing Club (2006) 95 SASR 543; Millar v Houghton Table Tennis and Sports Club Inc [2003] SASR 1; Alford v Healy (1951) 70 CAR 432; Makin v Gallagher [1974] 2 NSWLR; Joseph v Elliot (1952) 74 CAR; Minister for Immigration and Cultural Affairs v Bhardwaj (2002) 209 CLR 597; Minister for Immigration and Cultural Affairs v Jia Legeng (2001) 205 CLR 507; Isbester v Knox City Council (2005) 255 CLR 135; Plenty v Seventh Day Adventist Church of Port Pirie (2003) 226 LSJS 214; Ridge v Baldwin [1964] AC 40; Australian Worker's Union v Bowen [No 2] (1948) 77 CLR 601; Twist v Randwick Municipal Council (1976) 136 CLR 106; Re Marks; Ex parte Australian Building Construction Employee's and Builders Labourers' Federation (1981) 147 CLR 471; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Baker v University of Ballarat (2005) 225 ALR 218; Polglaze v Veterinary Practitioners Board of NSW [2001] NSWCA 4; Clayton Utz (a Firm) v Dale (2015) 47 VR 48; McGuire v Ministry of Justice [2014] NZCA 556; Mazinski v Bakka (1979) 20 SASR; Petitt v South Australian Tattersall's Club [1930] SASR 258; R v Optical Board of Registration [1933] SASR 1; King v Strickland (1991) 56 SASR 225; Michael Wilson and Partners Ltd v Nicholls (2011) 244 CLR 427; R v Sussex Justices; Ex Parte McCarthy [1924] 1 KB 256; Dickason v Edwards (1910) 10 CLR 243; Stollery v Greyhound Racing Control Board (1972) 128 CLR 509; The Queen v The Justices of Suffolk (1852) 118 ER 156; MacSween v Fraser (1986) 1 FLR 10; Lynch v McLachlan (No 2) (1962) 3 FLR 242; Wade v New South Wales Rugby League Ltd (1985) 180 CLR 459, referred to.
Calvin v Carr [1980] AC 574; Dimes v Proprietor of Grand Junction Canal (1852) 3 HL Cas 759; Isbester v Knox City Council (2015) 255 CLR 135; Stollery v Greyhound Racing Control Board (1972) 128 CLR 509, applied.
SNOW v CONSUMER ASSOCIATION OF SOUTH AUSTRALIA
[2018] SADC 49Contents
Introduction
Notice of Appeal
Statutory Context – oppressive and unreasonable conduct
The Appeal Process
Detriment – none proffered by respondent
No Rule 10 meeting
No power to suspend
Special/ Committee Meetings
Particulars of Charges
Bias
Falsification of minutes – Conflicting evidence
Invalid meeting and proxy notices
Inspection of records
Changes to the Constitution
Conflict of Interest
Disposition
Introduction
Christopher Snow applies for the appellate review of a decision refusing him relief from allegedly oppressive and unreasonable actions committed by the Consumer Association of South Australia Inc. By its constitution this body operates under the title ‘Consumers SA’. The focus of his appeal was the validity of his purported suspension and expulsion from the Association. These reasons proceed to analyse the many issues raised by Mr Snow and to conclude there is some merit in a number of points taken by him.
Notice of Appeal
By notice of appeal filed in the Civil Division of the Adelaide Magistrates Court on 8 August 2016, Mr Snow sought orders quashing various decisions of Consumers SA made between 4 August 2015 and 9 February 2016, claiming them to be invalid and of no effect. He sought orders for the removal of specified Committee or other members of the Association, and from preventing them from holding office for a period of five years. Still further he sought court intervention to require the Association to convene a Special general meeting to elect a new Committee and to preclude specified members from participating in such a meeting.
As it will appear, the orders sought were largely founded upon what is claimed to be multiple denials of natural justice in one form or another. His application was dismissed on the basis that no allegation of oppressive or unreasonable conduct was made out. His application for review essentially repeats the same issues as were agitated in the court below.
Statutory Context – oppressive and unreasonable conduct
The power to make orders of the kind sought, derive from s 61 of the Associations Incorporation Act 1985 (SA) which provides to the extent presently relevant:
61—Oppressive or unreasonable acts
(1) A member or former member of an incorporated association may apply to the Supreme Court or the Magistrates Court for an order under this section on the ground that the association has engaged, or proposes to engage, in conduct that is oppressive or unreasonable.
…
(4) The Court hearing a proceeding under this section may, if satisfied that the association has engaged, or proposes to engage, in conduct that is oppressive or unreasonable, make one or more of the following orders:
(a) an order for regulating the conduct of the association's affairs in the future;
(b) an order directing the association to institute, prosecute, defend or discontinue specified proceedings, or authorising a member of the association to institute, prosecute, defend or discontinue specified proceedings in the name and on behalf of the association;
(c) an order restraining a person from engaging in specified conduct or from doing a specified act or thing;
(d) an order requiring a person to do a specified act or thing;
(e) an order for the alteration of the rules of the association;
(f) an order that a former member be reinstated as a member of the association;
(g) any other order that is, in the opinion of the Court, necessary to remedy any default, or to resolve any dispute.
In this context oppression connotes ‘the exercise of an authority or power in a burdensome or unjust manner’, it is not susceptible of precise meaning, but contemplates the notion of unfairness, according to ordinary standards of reasonableness and fair dealing: Popovic v Tanasijevic (No 5),[1] Pettit v South Australian Harness Racing Club Inc.[2] Section 61(15) of the Associations Incorporation Act proceeds to identify the kind of conduct that is taken to amount to ‘oppressive or unreasonable’ for the purposes of s 61:
[1] (2000) 34 ACSR 1, [503]-[504].
[2] (2006) 95 SASR 543, [25]-[26].
(15)For the purposes of this section—
(a)an association has engaged, or proposes to engage, in conduct that is oppressive or unreasonable if—
(i)it has taken action, or proposes to take action, to expel a member from the association in circumstances in which the action was, or would be, oppressive or unreasonable;
Accordingly it is necessary to consider each of the elements contained in s 61 that is questions of ‘oppression’, ‘unfairly prejudiced’, ‘unfairly discriminatory’ or ‘contrary to the interests of the members as a whole’ in their turn: Millar v Houghton Table Tennis Sports Club.[3]
[3] (2003) 225 LSJS 241; [2003] SASC 1, [135].
Proceedings of the kind contemplated by s 61 of the Associations Incorporation Act are deemed to be a minor statutory proceeding for the purposes of the Magistrates Court Act 1991 (SA), by s 61(3) thereof. And by virtue of s 3(1) of the Magistrates Court Act, a ‘minor statutory proceeding’ includes ‘any other proceedings declared by statute to be a minor statutory proceeding, as is the case here. The conduct of such proceedings are governed by Part 5 Division 2 of the Magistrates Court Act. As minor civil claims, the court is required to conduct ‘an inquiry … into the matters in dispute between the parties rather than an adversarial contest…’: s 38(1)(a), and it is ‘not bound by the rules of evidence and must act according to equity, good conscience and substantial merits of the case without regard to technicalities and legal forms’: s 38(1)(e) & (f). Just how such proceedings are to be conducted pursuant to these provisions is detailed in Harradine v District Court of South Australia.[4]
[4] (2012) 280 LSJS 572, [46]-[49].
The proceedings before the Magistrate occupied a whole day on 2 June 2017. In a lengthy judgment delivered on 11 October 2017 her Honour systematically dealt with the plethora of complaints made by Mr Snow. In the end her Honour concluded:[5]
[74] … that the Association did not act oppressively or unreasonably in the expulsion of the applicant, including the chairing of the meetings by Mr Parkinson and the adherence to the Constitution.
[5] Snow v Consumers Association of South Australia Inc AMCCI-16-2757, 11 October 2017.
Lying at the core of the powers of objudication of incorporated associations is the requirement of procedural fairness by complying with the rules of natural justice as required by s 40 of the Associations Incorporation Act.
40—Rules of natural justice to be applied in relation to adjudication of dispute
Where the committee of an incorporated association exercises any power of adjudication that it may have in relation to a dispute between its members, or a dispute between itself and members of the association, the rules of natural justice must be observed.
Expressed at the most basic level, the essential characteristics of the principles of natural justice are that no person should be condemned unheard and that every decision must be free of bias. The twin pillars supporting these fundamental propositions are impartiality and fairness: Kanda v Government of Malaya.[6]The obligation under s 40 of the Associations Incorporation Act imports into the decision making processes minimum standards of fairness: Christian Revival Crusade Inc v Milne & Others.[7] The fulfilment of the requirements of natural justice in a given case depends upon the circumstances, the nature of the inquiry, the subject matter involved and the operative rules of the Association under which the abjudicative decision is made: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group,[8] National Companies and Securities Commission v News Corporation Ltd.[9]
[6] [1962] AC 332, 337.
[7] (2007) 252 LSJS 113, [100].
[8] (1969) 122 CLR 546, 552-553.
[9] (1984) 15 CLR 296, 319-320.
The Appeal Process
The right of Review exercised by Mr Snow is conferred on the District Court by s 38(6) of the Magistrates Court Act, and is conducted in much the same way as in the court below pursuant to s 38(7) thereof: Harradine v District Court of South Australia.[10] The Review court has powers of affirmation, rescission and to ‘substitute a judgment that [it] considers appropriate’, but it has no power of ‘remission’: s 38(7)(d) Magistrate Court Act.
[10] (2012) 280 LSJS 572, [82]-[84].
The scope and nature of the Review process so conferred is discussed at length in Hadeler v Antoniou.[11]Importantly the review process does not authorise an underlying merits review: Pettit v South Australia Harness Racing Club.[12] Mr Snow’s numerous grounds of appeal are those contained in a ‘second application to review’ supported by an affidavit filed with the District Court in early February 2018, essentially reproducing those maintained before the Magistrate.
[11] (2009) LSJS 193; [2009] SADC 113, [14]-[24].
[12] (2006) 95 SASR 543, [26].
These reasons proceed to consider the grounds of appeal substantially in the order they were pursued by Mr Snow. As her Honour observed, Consumers SA ‘champions consumer rights in South Australia’, predominantly in relation to utility services and product safety. These objectives are detailed in a document comprised in Exhibit D1 before the Magistrate, entitled ‘2015 CSA Consumer Policy Agenda and Priorities.’ At the behest of Mr Snow ‘Legal Regulation’ was added to these, an interest he acquired as a consequence of default by an Adelaide Legal firm in respect of various clients’ trust monies, one of whom was him. The Association has approximately 30 members, with no employees. The Committee members act in honorary positions on behalf of the Association and who essentially run the organisation.
The rules of the Association operative at the time of hearing before the Magistrate and before this court, were those ‘reviewed and updated’ as of June 2008. There were apparently subsequent amendments, as will appear later. It is an association incorporated pursuant to 18(1) of the Associations Incorporation Act. It follows the Corporate Affairs Commission having the duty of administration of the Act necessarily considered the rules of the Association comply with the requirements of s 20(1) thereof. By virtue of s 23(1) thereof the Rules of Consumers SA ‘bind the association and all the members of the association’. It is now appropriate to consider the arguments raised by Mr Snow under the subjects identified by him in his written summary of submissions.
Detriment – none proffered by respondent
The rules of Consumers SA provide for the expulsion of members. Rule 5.4a provides:
5.4 Expulsion of a member
a Subject to giving a member an opportunity to be heard or to make a written submission, the committee may resolve to expel a member upon a charge of misconduct detrimental to the interests of the Association.
The position of Mr Snow with respect to his expulsion from the Association in the manner outlined later, is that the prerequisite of ‘misconduct detrimental to the interests of the Association’ was simply not present.
The allegations of misconduct as first communicated in written form to Mr Snow through the receipt of the Association’s letter of 18 August 2015:[13]
The particulars of the alleged misconduct detrimental to the Association are your disregard for the authority of the Acting President in relation to SA Power Networks TSS Workshop of 30 July 2015, writing to the Consumers Federation of Australia (CFA) on two occasions making derogatory and untrue statements about CSA’s conduct which could have had damaging effect on our relationship with CFA; and at meetings, personal attacks on the integrity of other committee members.
[13] Exhibit P1, 24.
They were enlarged to their final version in a letter to Mr Snow of 3 October 2015, into these particulars:[14]
[14] Exhibit P1, 32.
Members were shown emails containing particulars of the alleged misconduct as identified in my letter of 18 August 2015. In summary the allegations related to-
.Disregarding the email dated 29 July 2015 from Ian Butterworth Acting President which instructed you not to attend the meeting of SA Power Networks TSS Workshop on 30 July 2015 on behalf of Consumers SA by holding yourself out to be representing Consumers SA (Confirmed by minutes of that meeting)
.Email sent to Jo Benvenuti Chair Consumers Federation of Australia on 3 November 2014 alleging that Consumers SA advocates for lawyers and landlords.
.Email of 15 January 2015 to Jo Benvenuti and others stating you had great difficulty in dealing with Consumers SA and alleging incompetence and not allowing discussion on legal regulation and a ‘lack of confidence in Consumers SA’
.At the Consumers SA Committee meeting of 4 August 2015 questioning the integrity of some Committee members and alleged members had deliberately held up sending a letter to John Rau in relation to legal regulation.
This letter proceeded to point out to Mr Snow:
The meeting noted that you were present at the meeting when the misconduct was alleged, had made no request for fuller and better particulars than those stated in the letter of 18 August and had not disproved any of the alleged misconduct in his letter on 23 September 2014 or at any other time.
The content of these combined particulars clearly pertain to questions of detriment. It was pointed out by Mr Parkinson the Association’s Public Officer before her Honour and again in the appeal process, that Mr Snow’s conduct at times went beyond authority and at others adversely affected its reputation with associated organisations and others whom it lobbies in pursuing its objectives. He added that the work of the Committee suffered considerably from disruptions of a procedural nature and that the competence of various members of the Committee were constantly called into question by Mr Snow. Mr Parkinson described both ‘internal detriment and external detriment’, internal in the sense of squabbling within the body and external in the sense of lowering the standard of the Association in the eyes of the bodies it lobbies and deals with.[15]
[15] T50.18-51.10, 15 February 2018.
In her judgment, the Magistrate accurately described the particulars as ‘not cryptic nor obscure’, and her Honour reasoned ‘the detriment that would inevitably flow from such conduct is apparent’: Snow v Consumer Association of South Australia Inc.[16] The import of her Honour’s observation is clear enough; those allegations self-evidently demonstrated detriment to Consumers SA as a matter of common sense. Disharmony within the Association itself would clearly inhibit the effective administration and performance of its objectives, would necessarily cause unproductive distractions draining its time and energies and to outward appearances, lead observers to think that it was disorganised, fractious and even ineffective. Persistent insistence on tedious procedural issues or process is inherently likely to be inimical to the best interests of Consumers SA, as would a lack of insight or appreciation of the corporate decision – making process. Mr Snow did not express at this time or in his letter to the Committee of 22 August 2015 any difficulty with the particulars so supplied. Nor did he at any time contradict the factual basis for the allegations.[17]
[16] AMCCI-16-2757, [51].
[17] Exhibit P1, 26.
As there is simply no difficulty in understanding from the very nature of the allegations that detriment is inherent, this basis of appeal must fail.
No Rule 10 meeting
As noted, the rules of the Consumers SA provide for disciplinary action by way of expulsion. Rule 5.4.b provides as follows:
Particulars of the charge shall be communicated to the member, by notice posted to his last known address, at least one month before the meeting of the committee at which the matter will be determined. A motion for the expulsion of a member shall be carried only by a majority vote of the whole Committee.
The question of Mr Snow’s expulsion first arose unbeknown to him shortly before a meeting of the Committee on the 4th of August 2015. A Committee member Ms Attwood raised with the acting President the prospect of asking Mr Snow to resign from the executive Committee and if he did be not, she foreshadowed moving a motion for ‘the expulsion of committee member Chris Snow under s 10 of the… Constitution’.[18] This note concluded:
… until the formalities afforded to the member are complete, I will move a second motion to suspend Chris Snow from taking any further part in the business of the Association to limit any further detriment to the Association.
[18] Exhibit D2, last page.
In the meantime Mr Snow continued to express his own concerns over ‘issues that had been going on way back’.[19] It was agreed that these be dealt with under the agenda item for the meeting later that day, ‘united approach’. The minutes of the meeting on the 4th of August 2015 attended by Mr Snow, recorded this:[20]
[19] T7.27-.28.
[20] Exhibit P1, 25, Italics in original.
7. Other Business
·United Approach – Chris raised a number of issues including legal regulation letter, Chris’s December presentation note not going and meeting to discuss legal representation terminated. Following a discussion concerning Chris’s conduct which the Committee believed was detrimental to the interest of the Association the following motion was Agreed – that Committee Member Chris Snow be expelled from Consumers SA under the rules of the Association which read, in part, ‘the committee may resolve to expel a member upon a charge of misconduct detrimental to the interests of the Association.’; and until the formalities are complete Chris Snow be suspended from taking further part in the business of the Association to limit any further detriment to the Association. Moved Brian Attwood Seconded John Furbank.
Obviously to this point of time, no particulars of the allegations within the meaning of rule 5.4.b was given to Mr Snow, still less was there one month’s notice. Mr Snow was critical of the resolution in as much as it effected his expulsion. When properly understood however the minute amounts to no more than an expectation of proceedings commencing to expel ‘under the rules of the Association’. So much is conveyed in the words ‘may resolve to expel’. These minutes clearly contemplated the opportunity to be heard upon proper notice as prescribed by Rule 5.4 itself by anticipating possible expulsion once the formal notifications were complete. There was accordingly no extent resolution for expulsion at this point in time, so this contention has no merit.
The reference by Mr Snow to rule 10 of the Association’s Constitution is misplaced. That relates to ‘dispute resolution’, whereas questions of expulsion are properly dealt with outside the mechanism for dispute resolution under rule 5.
No power to suspend
The resolution to suspend him ‘from taking any further part in the business of the Association’ is however a different matter. There is no express rule in the Association’s rules permitting that course. As a member of Consumers SA, Mr Snow had an interest in not being unduly excluded therefrom as well as an interest in ensuring the Club carries on its operations in accordance with the constitution: Millar v Houghton Table Tennis and Sports Club Inc.[21]Clearly he was not given due notice of any motion to suspend, either under the expulsion mechanism of the Constitution or by any other reasonable means.
[21] (2003) 225 LSJS 241; [2003] SASR 1 [136].
At Common law the power of incorporated associations to suspend members must be clearly expressed in the rules of the Association before it becomes available: Alford v Healy,[22] and Makin v Gallagher.[23] Even then if such a power does exist, it remained necessary to give adequate notice of the basis upon which the power is to be exercised and a reasonable opportunity to meet it: Joseph v Elliot,[24] Minister for Immigration and Multicultural Affairs v Bhardwaj,[25] and Ridge v Baldwin.[26] Neither occurred in this instance.
[22] (1951) 70 CAR 432, 463.
[23] [1974] 2 NSWLR, 559, 576.
[24] (1952) 74 CAR 36, 38, 39 & 43.
[25] (2002) 209 CLR 597, [40].
[26] [1964] AC 40.
Mr Parkinson submitted there was an implied power of suspension contained in Rule 6.1.a of the Association, which provides:
The affairs of the Association shall be managed and controlled by a committee which in addition to any powers and authorities conferred by these rules may exercise all such powers and do all such things as are within the objects of the Association, and are not by the Act or by these rules required to he [sic ‘be’] done by the Association in general meeting.
This contention cannot be accepted. First, the powers and duties conferred by this rule pertain to the objects of Associations SA spelled out in Rule 3. These are consumer protection orientated. The provisions of Rule 5.4 relating to expulsion of members is effectively a Code governing the procedures of the Association when expulsion arises, which lies outside the objects of the Association.
Furthermore, even if the power was to be implied, the failure to give due notice is fatal to the Association so far as the motion of suspension goes during the meeting of 4 August 2015. Even then the notion of suspension appears to run contrary to Rule 5.4e of the Association’s Constitution, in as much as it provides that in the event of an appeal to a general meeting of the Association from a Committee resolution to expel, ‘membership of the Association shall not be terminated unless the determination of the Committee to expel the member is upheld…’. It would be anomalous to allow for suspension prior to an appeal, but not after one was instituted. This construction is further supported by r 5.4c which provides that a motion to expel does not take effect until ’14 days after the Committee has communicated its determination to the member’.
The Magistrate detailed the course of the August 2015 meeting and the preceding events in her reasons.[27] However she made no express findings and drew no legal conclusions with respect to it, probably for the reason that her Honour considered thereby the later [28]
… calling of a special meeting to discuss the allegations afforded the applicant sufficient opportunity to discuss the ‘dispute’ with committee members.
and that:[29]
… any confusion at the meeting on 4 August 2015 about the status of the motion was clarified by the Association’s letter of 18 August 2015.
[27] At [20]-[25].
[28] At [54].
[29] At [58].
The only conclusion to be drawn in the circumstances is that Mr Snow was denied a reasonable opportunity to respond to the suspension resolution in breach of the Association’s rules and that he was thereby denied natural justice in breach of s 40 of the Associations Incorporation Act because of it. These actions were also ‘oppressive and unreasonable’ within the meaning of s 61(15)(4)(i) and unfairly prejudicial within the meaning of s 61(15)(a)(ii) of the Associations Incorporation Act. There were in any event no powers to suspend. These aspects of Mr Snow’s appeal must therefore succeed; the consequences are considered later.
Special/ Committee Meetings
Mr Snow was formally advised of the above resolutions by letter dated 18 August 2015, specifically advising him: [30]
…a special meeting under s 5.4 of the Constitution giving you the opportunity to be heard or to make a written submission will be held at 5.15pm on Wednesday the 23rd of September…
He responded on 22 August complaining that the Committee’s decision on 4 August was contrary to rules 5.4.a and 5.4.b, as well as raising a number of other matters. He called upon the Committee to rescind its 4 August 2015 motion suspending him and sought that the regularly scheduled meeting of 1 September ‘proceed as normal’. In its response of 22 August, the Association advised Mr Snow the Committee was aware of the requirements of the Constitution in relation to expulsion, but that the motion of 4 August 2015 was necessary ‘to action the formal procedure’, advising him again that he now has the ‘opportunity to be heard or make a written submission’ and that the Committee ‘will make a determination regarding expulsion at the meeting of 23 September’.[31]
[30] Exhibit P1, 24, quoted in part earlier.
[31] Exhibit P1, 27.
It was not until his letter of 23 September 2015 on the cusp of this meeting, that Mr Snow first raised the question of inadequacy in the particulars. In it he asserted ‘the charges cannot be responded to either in person or in a written submission’.[32] The secretary duly notified him on 3 October 2015 of the expulsion resolution of the 23rd, restating in identical terms the four bullet point allegations of his misconduct quoted above. This letter also pointed out that he had the right to appeal under Rule 5.4.b of the Constitution ‘to the Association in General Meeting against the expulsion’.[33]
[32] Exhibit P1, 31.
[33] Exhibit P1, 32.
During his submission in the appeal process, Mr Snow conceded there was ‘sufficient notice of 23 September 2015’, but maintained that ‘the respondents did not provide me with sufficient particulars of the charge for me to be able to mount a defence’.[34] In response to her Honour’s conclusion that his failure to attend this meeting was ‘indicative of an unwillingness to try and resolve the matters within the Committee’, he explained that he did not do so specifically because of ‘insufficient particulars’, thus confirming the same stance he maintained beforehand in his letter of 23 September.[35]
[34] T11.32-38.
[35] T13.1-14.38.
In his letter of 5 October, Mr Snow stubbornly insisted, ‘that there was no substantiation of the allegations and therefore no case to answer’,[36] and by another of 7 October 2015, he gave notice of his intention to appeal under Rule 5.4b of the Constitution against the decision of 23 September 2015.[37] He formalised the appeal to a general meeting of the Association in a lengthy document dated 11 September 2015 by making a wide array of complaints, which once again he largely regurgitated before the Magistrate and again before this court.[38]
[36] Exhibit P1, 34.
[37] Exhibit P1, 35.
[38] Exhibit P1, 43.
By a notice dated 2 January 2016, the Association purported to call a special general meeting for 9 February 2016:[39]
… to hear the allegations from the Committee in relation to their action to expel a member of the Association and to provide for the member to respond to the allegations [in accordance with Rule 5.4].
In this notice the four bullet point allegations originally raised by the Committee were again repeated verbatim. The notice also recorded that ‘the decision to expel a member was not taken lightly’, and it attached a form for proxy votes.
[39] Exhibit P1, 46.
This notice was not received by Mr Snow until 9 January. He sent a letter attached to an email of 19 January 2016 which he asked to be distributed to all members of the Association, seeking to reverse the decision of 4 August to expel him, censuring the Committee and seeking documents giving the personal addresses of individual members of the Association, amongst other things.[40] He added further particulars to his grounds of appeal to the special general meeting in another email of 9 February 2016.[41]
[40] Exhibit P1, 47.
[41] Exhibit P1, 49.
The special general meeting proceeded as planned on 9 February 2016, which Mr Snow attended. Mr Parkinson reiterated as acting chair of the meeting:[42]
[42] Exhibit D1.
…the letter relating to the meeting of the 4th of August 2015 was not a notice of motion to expel Chris but agreement to start expulsion procedures and that he be suspended in the meantime.
Mr Snow questioned his membership status, maintaining correctly as it turns out, that ‘you are a member until the appeal is heard’ and that his appeal was ‘based on a lack of proper procedure’. He proposed the charges be dropped and referred back to the Committee. He then made extensive representations, summarised with Mr Snow’s agreement as to accuracy, in nine points duly noted in the minutes:[43]
[43] Exhibit D1.
1. Section 10 of the Constitution which states there must be a meeting between disputed parties and Section 10 should have been used. There should have been an independent chair.
2. He was not properly heard on 4th August 2015 as the Chair interrupted him.
3. Resolution changed during the meeting and was not Brian’s resolution of 4 August 2015.
4. Suspension was unlawful. He should not have been suspended while holding office as a Committee member. He could only be removed by a meeting of general members.
5. Particulars of charges in letter of 18 August 2015 were inadequate to allow him to form a defence.
6. No evidence produced on by the Committee on 23rd September 2015 meeting to substantiate particulars. At no stage had evidence been produced to Chris.
7. No evidence produced of emails to CFA which improperly obtained evidence and inadmissible.
8. Personal attacks on members impossible to answer without detail being provided.
9. No detriment to the Association at any time had been established.
Mr Parkinson then addressed the identified issues, during which Mr Snow maintained with respect to clarification of the particulars, that it was:
…not a question to be answered. He did not have to seek particulars. The Committee were required to provide them.
Eventually Mr Parkinson moved a motion ‘that the determination of the Committee of 23 September 2015 to expel Mr Snow be upheld’, a motion carried 16-1, only Mr Snow himself voting against. His alternative motion to rescind the suspension lapsed for want of a seconder. Her Honour dealt with the circumstances of this meeting in some detail,[44] and later made these observations:[45]
I accept that the applicant was afforded procedural fairness by way of proper notice of the meetings of 23 September 2015 and 9 February 2016. He was given sufficient time to prepare (noting that he was permitted an extension of time for lodging his appeal in November 2015, when requested due to ill-heath). Ultimately the applicant declined to attend the hearing on 23 September 2015. Given this, I find that the Association’s failure to convene a specific r 10 meeting under the Constitution was of no material consequence.
[44] Paragraphs [42]-[49].
[45] Ibid [71].
As noted above, Mr Snow conceded adequate notice and time to prepare. The minutes of the meeting disclose there was considerable discussion and interchange with him about whether the motion to expel should proceed and of the underlying merits. In those circumstances he had every opportunity to present his case. He made the points he wished to make and they were dealt with point by point before the resolution to expel was passed. On that footing there is no basis to suppose there was any denial of natural justice as a matter of process or compliance with the Constitution, so far as this meeting is concerned.
Of course the application of the natural justice principles will not be the same for a decision-maker who is not a judicial officer, so that it must necessarily recognise and accommodate flexible differences between court proceedings and the kinds of domestic decision-making in question here: Minister for Immigration and Multicultural Affairs v Jia Legeng,[46] Isbester v Knox City Council,[47] Plenty v Seventh Day Adventist Church of Port Pirie.[48] Putting to one side issues of bias considered later, the authorities demonstrate as a general proposition, that a fair subsequent hearing can cure defects stemming from a denial of procedural fairness in an earlier hearing. This principle appears to have its origin in modern administrative law in Lord Reid’s speech in Ridge v Baldwin,[49] to the effect that if a body under a duty to hear a person threatened with dismissal against whom a charge has been made fails to hear him, it may rectify a breach of natural justice by giving him a full and fair hearing de novo, in which event it is the later rather than the earlier decision that is effective. His Lordship observed:[50]
I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording the to the person affected a proper opportunity to present his case, then its later decision will be valid.
[46] (2001) 205 CLR 507, [181].
[47] (2005) 255 CLR 135, [22].
[48] (2003) 226 LSJS 214, [93].
[49] [1964] AC 40.
[50] Ibid, 79.
With slight qualification, this principle was accepted by the Privy Council Calvin v Carr.[51]The Board held a hearing undertaken by a Committee of the Australian Jockey Club, was capable of curing defects in an original Steward’s decision expelling Mr Calvin. On the broader question of principle, the Board reasoned that although no clear and absolute rule can could be laid down:[52]
… on the question whether defects in natural justice appearing at an original hearing, whether administrative or quasi-judicial, can be "cured" through appeal proceedings. The situations in which this issue arises are too diverse, and the rules by which they are governed so various, that this must be so. There are, however, a number of typical situations as to which some general principle can be stated. First there are cases where the rules provide for a rehearing by the original body, or some fuller or enlarged form of it. This situation may be found in relation to social clubs. It is not difficult in such cases to reach the conclusion that the first hearing is superseded by the second, or, putting it in contractual terms, the parties are taken to have agreed to accept the decision of the hearing body, whether original or adjourned.
…
At the other extreme are cases, where, after examination of the whole hearing structure, in the context of the particular activity to which it relates (trade union membership, planning, employment, etc), the conclusion is reached that a complainant has the right to nothing less than a fair hearing both at the original and at the appeal stage.
…the conclusion to be reached, on the rules and on the contractual context, is that those who have joined in an organization, or contract, should be taken to have agreed to accept what in the end is a fair decision, notwithstanding some initial defect. In their Lordships’ judgment such intermediate cases exist. In them it is for the court, in the light of the agreements made, and in addition having regard to the course of proceedings, to decide whether, at the end of the day, there has been a fair result, reached by fair methods, such as the parties should fairly be taken to have accepted when they joined the association. Naturally there may be instances when the defect is so flagrant, the consequences so severe, that the most perfect of appeals or rehearings will not be sufficient to produce a just result.
[51] [1980] AC 574.
[52] Ibid, 592-593.
This statement of broad principle has acquired wide acceptance by Australian courts in the context of reviewing administrative decisions. Tacit acceptance of the principle was given by Latham CJ and Rich J in Australian Workers' Union v Bowen [No 2],[53] and by Barwick CJ in Twist v Randwick Municipal Council,[54] even before Calvin v Carr was decided. Subsequent approval of the High Court can be found in Re Marks; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation,[55] and in Ainsworth v Criminal Justice Commission.[56]These principles were also applied by the Full Federal Court in Baker v University of Ballarat,[57] and more recently by the New South Wales and Victorian Supreme Courts of Appeal in Polglaze v Veterinary Practitioners Board of NSW,[58] Clayton Utz (a Firm) v Dale,[59] and in McGuire v Ministry of Justice.[60]
[53] (1948) 77 CLR 601, 618-619.
[54] (1976) 136 CLR 106, 116-117.
[55] (1981) 147 CLR 471, 484-485.
[56] (1992) 175 CLR 564, 59-594, per Brennan J (Aickin and Wilson JJ agreeing).
[57] (2005) 225 ALR 218, [23].
[58] [2001] NSWCA 4, [13].
[59] (2015) 47 VR 48, [96].
[60] [2014] NZCA 556, [15].
Applying these considerations to the issue at hand, results in the conclusion that any defect on account of the failure to give due notice at committee stages was cured by convening the general meeting (as Mr Swan concedes) and that the particulars of misconduct were well known to him, as is found to be the case above. These aspects of the appeal therefore must fail.
Particulars of Charges
As seen above, a persistent and predominant point in the mind of Mr Snow was the adequacy of the particulars of the charges. The four bullet point particulars in question are quoted earlier. The first (disregarding an email of 29 July 2015 from the acting President not to attend the meeting of the SA Power Network) was well known to Mr Snow, as he was the recipient. The email itself was sent to Mr Snow on 30 July 2015, that is a few short days before the meeting of 4 August that year, and just a month before the particulars were supplied in the correspondence on 3 October 2015, quoted above. The relevant portion of the acting President’s email of the 29th of July 2015 referred to in the first bullet point were:[61]
Chris
Elaine and Brian have forwarded on to me some emails regarding your attendance at tomorrows meeting. Primarily the fact that 4 were attending not the approved 3. This appeared to me as an embarrassment to them and therefor to us.
Chris, any person who is to represent Consumers SA at any function or meeting is normally approved at a committee meeting, failing that, approval gained by email distribution around the committee.
I cannot recall you being one of those selected for tomorrows meeting. It is normal procedure to do this. While it is too late to ‘do the rounds’ to get this approval, I agree that you can attend, but primarily on your own behalf and not on behalf of Consumers SA. Should however, you over-reach your time or cause any embarrassment to Consumers SA, action will be discussed at the next meeting.
IAN
Acting President CSA
It can be readily seen there could be no mistaking in the mind of Mr Snow exactly what the first particular of misconduct was. It was not a difficult subject to comprehend and it is not one he was likely to have forgotten.
[61] Exhibit D2.
The second and third bullet points referencing the emails of 3 November 2014 and 15 January 2015, as it turns out derive from emails originally composed and sent by Mr Snow himself to the Consumers Federation of Australia. The person Jo Benvenuti referred to in the particulars, was the Chairperson of the Consumers Federation of Australia. Mr Snow sent those emails to her in terms disparaging of the Consumers SA. In the first of 3 November 2014 Mr Snow wrote this:[62]
The lack of funding for CFA and also ConsumersSA concerns me and I have several ideas for alleviating the problem. But I have to say that at present I’m ambivalent about the consumer movement – ConsumersSA could have been far more co-operative and supportive and while I thought one recent strong stand had solved the problem it seems at least another may be necessary. It’s disturbing when attempts to progress and issue which has been adopted are frustrated – and when there’s advocacy for suppliers, e.g. lawyers and landlords, in a consumer organisation – and there I’ll rest my case for the present.
[62] Exhibit D2.
He was equally critical of the Association in the latter email of 15 January 2015:
8. This background, plus details of the horrors of existing systems should have been with CFA a long time ago, but as mentioned in previous communication, Jo, I’ve had great difficulty in dealing with ConsumersSA which I joined last March after battling as a single advocate for several years. Not on the agenda, missing from minutes, in included in newsletters (twice), culminating in notice of a briefing it was agreed I would give on December 2 not being advised as planned, then (with my agreement) being changed to a Q&A about a policy paper I’d prepared but then that not being brought on, other policy matters taking priority.
It is difficult to imagine how Mr Snow could have completely forgotten the gist of these two emails, or at the very least that he did not remember the substance of them, even assuming they were no longer available to him as of 23 September 2015, or 9 February 2016 for that matter. One would have thought he would seek copies had that been the situation. Furthermore, they were read out at the first meeting although it appears rather quickly. At the meeting of 23 September he made no request for any other particulars, and he did not ‘disprove any of the alleged misconduct in his letter of 23 September 2015, or at any time’ to quote from the minutes of the committee meeting held that day.[63] As for the fourth bullet point of misconduct, since Mr Snow was present at the meeting of 4 August 2015, he knew exactly what it was that he said with respect to Committee members and was well placed to challenge any assertion he disagreed with, which significantly he did not.
[63] Exhibit D1.
In those circumstances the request for further and better particulars can only be seen as a rouse for delay and obfuscation. His persistent refusal to engage in substance at the expense of procedure, amounts to nothing more than a triumph of form over substance. This is precisely how her Honour assessed the situation when she observed the ‘failure to attend the special meeting on 23 September 2015 was indicative of an unwillingness to try to resolve issues within the Committee’.[64] As her Honour further noted, the only information he did request was contact details of membership.[65] It is unsurprising therefore that her Honour held Mr Snow was ‘advised of the allegations with sufficient particularity…’,[66] and that ‘he had the ability to request such information and did not do so… [as]… an indication that he had sufficient particulars…’.[67]
[64] At [54].
[65] At [60].
[66] At [66].
[67] Ibid at [72].
Insofar as there was a suggestion that the two emails referred to in the particulars were obtained illegally, the situation is that of her own accord Jo Benvenuti alerted Consumers SA to the emails (through Mr Furbank who was coincidentally on the Board of Consumers Federation), out of a concern to ‘try to sort out internal squabbling’.[68] Whilst later internal discussions took place as to the appropriateness of this disclosure from the point of view of preserving confidentiality within Consumers Federation of Australia, that does not affect the fact that Mr Snow knew himself what they contained because he authored them, irrespective of how they came into the hands of the Association. They came into possession of Consumers SA in good faith in the belief that they might be damaging to it in the eyes of the Consumers Federations of Australia and not for any ulterior purpose.
[68] T58.17-28, 15 February 2018.
Her Honour found that these were not marked ‘confidential’ and that the Association itself ‘did not seek to recall the emails when the Applicant notified it of the disclosure’.[69] The submission of Mr Snow appears to rest on an unstated assumption that these emails were illegally obtained and therefore inadmissible. That may well prove to be the position in criminal proceedings, but it is not so in the civil arena: Mazinski v Bakka.[70] This aspect of the appeal therefore has no merit.
[69] Ibid [73].
[70] (1979) 20 SASR 350 & 360.
Bias
Several issues were raised by Mr Snow in respect of bias. He points to the fact that Mr Parkinson as Chair of the expulsion meetings effectively sat in judgment in his own cause. The material giving rise to the decision to initiate the expulsion process does not mean the participating members of the Committee were thereby compromised when it came to the meeting of 23 September 2015. On the contrary, they were then required to inquire into the matter and to adjudicate in accordance with the principles of natural justice, as required by s 40 of the Associations Incorporation Act, and in accordance with the procedures required by Rule 5.4 of the Constitution.
Insofar as Mr Parkinson was elected to chair the expulsion meeting of 9 February 2016, it is true enough that he voted in favour of the resolution of 23 September. Mr Parkinson explained during the course of the appeal that the reason he offered to chair this meeting, was that the notice of motion to expel on 4 August 2015 caught him by surprise and that he wasn’t ‘privy to this undercurrent of things that had been going on’.[71] He explained that he was prepared to ‘step in’ having legal training, considering it appropriate to bring the principles of natural justice to bear upon the hearing.[72]
[71] T62.8-12.
[72] T62.14-16.
The fact of the matter is that the Constitution of the Association provides in Rules 8.4.c and 8.4.d ‘that General Meetings must be presided over by the President or a member of the Committee’. There was nothing irregular in this process so far as it goes. Quite apart from s 23(1) of the Associations Incorporation Act, the extract from Calvin v Carr quoted earlier demonstrates that by his membership of the Association, Mr Snow agreed to abide by its Rules, including those providing for an internal appeal from the Committee to a General meeting. Of course s 40 of the Associations Incorporation Act continues to apply at both appellate stages.
The fact remains that the only procedure for an appeal is that provided for in the Constitution. An appeal from the Committee to the Association in general meeting is in accordance with the procedural requirements for the conduct of general meetings is contained in s 8.2 of the Constitution. As pointed out earlier, the decision of 8 August 2015 was merely anticipatory, except for the invalid decision to suspend. The decision of 23 September 2015 passed the expulsion resolution which Mr Snow did not attend, substantially because he did not dispute the allegations. When it comes to the appeal meeting of 9 February 2016, the situation was that the process of expulsion was completely reconsidered at length, Mr Snow was given every opportunity to present his case and which as the minutes convey, he clearly did.
In respect of bias issues, her Honour duly noted that Mr Parkinson volunteered to chair the meeting ‘because he had not had any role in the substantial matters to be discussed’,[73] and that from ‘a practical perspective… [the chair]… would need to be made a member of the Association for the purposes of the special meeting’.[74] Her Honour returned to these later in her judgment. After duly noting that the Committee members passing the Resolution of 23 September 2015 ‘were the only members who attended at the appeal hearing on 9 February 2016 in any event’, proceeded to resolve the question adversely to Mr Snow on the footing that there was no ‘evidence that his actual conduct whilst chairing either meeting was inappropriate’.[75]
[73] At [34].
[74] At [42].
[75] At [62].
It is trite law that any person may not be both judge and accuser. This long standing principle is fundamental as explained by Lord Camplellin in Dimes v Proprietor of Grand Junction Canal:[76]
No-one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern: but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause be held sacred. And that is not to be confined to a cause in which he is a party but applies to a cause in which he has an interest … This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest but to avoid the appearance of labouring under such an influence.
[76] (1852) 3 HL Cas 759. The fact of the matter is “Long before judgment was given (Lord Cottenham) had not only quitted the woolsack but had left behind him the troubles of his transitory life: it was a common belief that Dimes had killed Lord Cottenham.” Atlay, Victorian Chancellors, I, p. 415, Smith, Elder & Co, 1906.
Partiality or bias in an individual taking part in proceedings as an accuser is liable to create in the minds of the reasonable person a suspicion of bias: Petitt v South Australian Tattersall’s Club;[77] R v Optical Board of Registration,[78] King v Strickland,[79] Michael Wilson and Partners Ltd v Nicholls.[80] In this particular case Mr Parkinson was not an accuser at the meeting of 8 August 2015, although he did participate in the resolution. The resolution of expulsion of 23 September that year was passed by precisely the same six members of the Committee participating in both meetings (apart from Mr Snow and Mr Pratt), at least one of whom proposed the expulsion motion. The final vote of 16-1 included an additional 10 proxy votes. The same six Committee members participated in the meetings of 23 September and 9 February. On the other hand, as will be seen it is clear law that if the Committee resolved on disciplinary action and a general assembly is to conduct an appeal, the members of the Committee participating in voting on expulsion, should not participate or vote in general assembly.
[77] [1930] SASR 258.
[78] [1933] SASR 1.
[79] (1991) 56 SASR 225, 229.
[80] (2011) 244 CLR 427, [31]-[33].
The principle at stake here is whether any member of the committee determining the question of expulsion ‘is disqualified if a fair-minded lay observer might reasonably apprehend that the members might not bring an impartial mind to the resolution of the question the judge is required to decide’, as it applies to others kinds of decision makers other than judicial officers: Ebner v Official Trustee in Bankruptcy.[81] This principle requires the identification of what might lead a decision-maker to decide a case other than on its legal and factual merits, the identification of the nature of that interest, and the articulation of the logical connection between that interest and the feared deviation from the course of deciding the case on its merits.[82] Accordingly, the principle relating to apprehended bias on account of conflict of interest depends upon the nature of the decision and its statutory and constitutional context, applied with flexibility according to the circumstances in which a power is exercised.[83] It derives from the fundamental tenant famously captured by Lord Hewart in R v Sussex Justices; Ex Parte McCarthy,[84] that it is of ‘fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done’.
[81] (2000) 205 CLR 337, [4] & [6].
[82] Ibid [8].
[83] Ibid [23].
[84] [1924] 1 KB 256, 258-259.
In Dickason v Edwards[85] the High Court determined the rule of natural justice by which no man should be judge in own cause, applies to domestic tribunals unless expressly or by necessary implication excluded under the rules of that body, and that when a person who is disqualified by interest sits in judgment, the person's presence vitiates the proceeding even though taking no active part in it. Briefly stated, the facts were that a charge was brought against a member of the Society of conduct calculated to bring disgrace on the Society consisting of personal abuse of a District Chief Ranger. The District Chief Ranger presided at the Tribunal hearing the charge, but took no active part in the proceedings. The member was found guilty and was expelled from the Society. It was held that the entire proceedings were vitiated by reason of the presence of the District Chief Ranger on the Tribunal, that the expulsion was ineffectual, and that the member was entitled to declarations accordingly.
[85] (1910) 10 CLR 243.
The rules of the Society provided that the District Chief Ranger, who was the head of the society, ‘shall preside at’ certain meetings, including those of a certain judicial tribunal constituted by the rules. Yet it was held this rule did not require or permit the District Chief Ranger to preside, even informally during the Tribunal hearing, because the District Chief Ranger was in the position of a person complaining of an offence against himself personally.[86] Likewise in Stollery v Greyhound Racing Control Board,[87] the High Court considered that a person in the position of an accuser was disqualified from acting as a member of a Board deliberating on charges of conduct impinging the proper regulation and control of the sport of greyhound racing.
[86] Per Griffiths CJ at 252-253, O’Connor J at 255-257 and Isaacs J at 258-261.
[87] (1972) 128 CLR 509.
These decisions were affirmed relatively recently in Isbester v Knox City Council.[88]Following a hearing before the Knox Domestic Animals Act Committee, a decision was made that a dog owned by the appellant be destroyed. The Council’s Co-ordinator of Local Laws had directed Council employees to further investigate dog attacks and determined that six charges should be laid, arranged for summonses to be drafted and signed some of the charges, including one as informant, to which the appellant pleaded guilty in a summary court. Subsequently a Panel consisting of three Council officers was convened to consider whether a dog owned by the appellant should be destroyed, one being the Co-ordinator. A decision to destroy the animal was then made, during which she participated fully in the decision-making process. After discussing the applicable principles, the plurality judgment concluded (footnote omitted):
[50] A fair-minded observer might reasonably apprehend that Ms Hughes might not have brought an impartial mind to the decision… This conclusion implies nothing about how Ms Hughes in fact approached the matter. It does not imply that she acted otherwise than diligently, and in accordance with her duties, as the primary judge found,42 or that she was not in fact impartial. Natural justice required, however, that she not participate in the decision and because that occurred, the decision must be quashed.
[88] (2015) 255 CLR 135.
The situation confronted by the court here is that the six members of the Committee who passed the suspension motion on 4 August 2015, also participated and voted in favour of the expulsion resolution on 23 September. The same six members likewise voted in favour of a upholding this resolution at the general meeting of 9 February 2016. The application of the above principles to this situation necessarily means that a fair-minded observer might reasonably apprehend that the six members participating and voting in favour of the resolution on 9 February might not have brought an impartial mind in making that decision. On that basis and in keeping with the outcome in Isbester v Knox City Council,[89] the appropriate consequence is to quash the latter decision.
[89] (2015) 255 CLR 135, [71].
On this aspect of the matter her Honour erred in thinking that the ‘motion would have carried at each meeting absent Mr Parkinson’s vote in any event’.[90] As seen earlier a person sitting on a decision making body compromised by apprehended bias on account of a conflict of interest, vitiates the decision so made: The Queen v The Justices of Suffolk,[91] MacSween v Fraser,[92] Lynch v McLachlan (No 2).[93]
[90] At [62].
[91] (1852) 118 ER 156.
[92] (1986) 1 FLR 10.
[93] (1962) 3 FLR 242.
This approach was affirmed in Isbester v Knox City Council:[94]
For the reasons given in Dickason and Stollery, the participation of others does not overcome the apprehension that Ms Hughes’ interest in the outcome might affect not only her decision-making, but that of others.
[94] (2015) 255 CLR 135, [48].
The passages from Dickason the court appears to have in mind are those of Griffiths CJ and Isaacs J respectively: Dickason v Edwards.[95] O’Connor J took a slightly different view.[96] The Chief Justice said this:[97]
It is said the District Chief Ranger did not take any part in the proceedings. I am willing to give the fullest credit to that, but I do not think it is material. He 'Was a member of the tribunal that tried the case; he was present when it was heard, and, applying the ordinary rules, I cannot say that his being there did not vitiate the proceedings altogether.
and Isaacs J this:[98]
It does not matter if the person who is alleged to be disqualified is only present in a nominal capacity…. The principle then is plain that if a Judge is disqualified, he must not even be present during the hearing of the case.
[95] (1910) 10 CLR 243.
[96] At 255-256.
[97] At 252-253.
[98] At 259.
The underlying rationale for this approach is that the mere presence of a conflicted person is sufficient to invalidate a decision, either because of the influence the person may have during the hearing on the other participants, or because the mere presence of such a person might inhibit or affect the deliberations of others: Stollery v Greyhound Racing Control Board.[99]This aspect of the appeal is therefore established. This constituted a breach of the rules of natural justice and hence of s 40 of the Associations Incorporation Act.
[99] (1972) 128 CLR 509, 517& 527.
Falsification of minutes – Conflicting evidence
This complaint suggests the minutes of 4 August 2015 Committee meeting were falsified, and that her Honour failed to reconcile supposed conflicting evidence given by Mr Parkinson and Mr Butterworth about it. The evidence as to this meeting is summarised in her Honour’s judgment.[100] The point as I understood it, was that the note of the same date foreshadowing the motion to expel was expressed in terms of ‘I foreshadow that I will move the expulsion…’, whereas the actual resolution ‘be expelled’ amounted to a final resolution for his expulsion. For reasons explained earlier that was not the case. This resolution merely foreshadowed initiating expulsion proceedings ‘until the formalities are complete’. It is not therefore necessary to enter into an analysis of the evidence before her Honour about this, given by both men as well as that of Mr Snow. The issue of whether Mr Snow was asked to leave or not is equally of no consequence, because the subsequent events completely cured the defects in this meeting so far as fair notice and the opportunity to be heard are concerned. There is no merit in this aspect of the appeal.
[100] At paras [21]-[23].
Both Mr Butterworth and Mr Parkinson gave evidence before the Magistrate. As discussed above, this centred upon the preceding events to the meeting of 4 August 2015, and correspondence from Mr Snow expressing his concern as to compliance with the procedures required by the Constitution. These issues were developed in confusing terms before her Honour.[101] It is suggested that Mr Parkinson gave contradictory evidence to that of Mr Butterworth concerning just how the ‘united approach’ resolution and came about.[102] A further issue in the mind of Mr Snow appears to be whether following the meeting of 4 August 2015, he was asked to leave and if he did, whether there was further discussions before the resolution was finally crystallised as quoted in the minutes. Whatever the true situation, this point is of no substance and it is equally of no consequence. There was no fault in asking Mr Snow to leave either because of the purported suspension/expulsion had by then taken effect, or because alternatively as might be more likely, the Committee wished to discuss the matter, in his absence before taking a vote. It is not difficult to accept that the Committee desired to discuss the matter in private so as to promote full and frank discussion about the matter which the presence of Mr Snow would inhibit. This aspect of Mr Snow’s appeal is therefore of no substance.
[101] T69.22-70.32.
[102] T39.35-40.33, 31 July 2017 [Mr Parkinson] and T67.4-.26 and T76.8-77.27 [Mr Butterworth].
Invalid meeting and proxy notices
Mr Snow complains that the contents – or rather lack thereof - of the notice of the meeting for 9 February 2016 was misleading in as much as its stated purpose was to discuss the allegations of misconduct, whereas his appeal to the general meeting was based principally on the grounds of process. This meeting was first called by the notice of 2 January 2016 specifically ‘to hear the allegations from the Committee in relation to their action to expel’ Mr Snow. The allegations of misconduct were reproduced in the notice in the same four identical bullet points referred to earlier. The fact of the matter is that this notice was sufficient to convey the substance of the charges. As detailed above, the questions of process were fully agitated and documented at length during the course of this meeting, as the minutes clearly demonstrate. There is nothing of substance in this point.
Mr Snow’s next point was that because the notice was inadequate, it was likewise ineffective to bring sufficiently to the attention of members what the true nature of the allegations were. To this extent that argument must be rejected for the reasons discussed above. A further point made by him was that the proxy notices were in a general form without any allusion to ‘an appointment for a definite purpose and the business or matter in respect in which the proxy is to act’.[103] This argument marries with the submission with respect to the notices themselves and therefore takes the matter no further. The proxies attached to the notice were clearly for the specific purpose of the disciplinary proceedings to follow. This point must therefore fail for the same reason.
[103] T25.6-.8, 31 July 2017.
Having said that, the Committee would be better advised to have provided greater details of the allegations of misconduct for the benefit of members who did not attend the earlier meetings: Plenty v Seventh Day Adventist Church of Port Pirie.[104] This was readily achieved by adding to each bullet point a short summary of the allegations, for example what was said to ‘question the integrity’ of the Committee and so on. This shortcoming was nevertheless overcome by a complete agitation of the issues at that subsequent general meeting, during which Mr Snow did not contest the underlying facts upon which the particulars of misconduct were founded.
[104] (2003) 226 LSJS 214, [95].
Inspection of records
The circumstances are that Mr Snow sought access to membership records to permit him to write to all members putting his case to them before the appeal in February 2016. It is most unclear what the problem was here. In response to an email from Mr Snow of 12 November 2014, Mr Butterworth sent the email addresses of 28 members of the Association in return.[105] From submissions made to this court, the criticism seems to be that he wanted an updated list for this purpose.
[105] Exhibit P1, 8.
The fact of the matter is that Rule 17 of the Association’s rules provides that:
(A)ll records by the Association shall be open for inspection of any member at any reasonable time.
Provided Mr Snow’s request to inspect was for legitimate purposes, as it appears to be in this instance, they ought to be made available to him. This complaint is however of no further consequence because of this court’s decision to quash the resolution of the general meeting of 9 February 2016.
Changes to the Constitution
This issue was barely raised by Mr Snow at the hearing before the Magistrate, as was observed by her Honour:
[75] An ancillary issue was raised by the applicant in his Application in relation to changes to the Association’s Constitution made at the AGM in October 2015. The applicant asserted that the amendments were invalid. This argument was not developed at the hearing, and there was no evidence about the impact of those amendments on the applicant (if any) and whether they constituted oppressive or unreasonable acts.
The same observation pertains in respect of the appeal. Mr Snow submitted before the Magistrates that ‘changes to the Constitution… were made invalidly’,[106] but that appears to be as far as it went. What is at stake is apparently a change to the Constitution during an annual general meeting held in late 2015. The minutes of the AGM of 6 October that year (at which Mr Snow was present) record a resolution was passed which read:
Constitution The Constitution Reviewed and updated October 2015 was tabled and discussed. Following discussion the following changes were made:
…
New Clause 5.4f ‘Should a member be expelled by the Committee and the members where applicable of the Association, they shall not be eligible to seek membership of the Association in any class for a period of 5 years. Proposed Elaine Seconded Tony.
…
Motion: ‘That this meeting agrees to the Constitution Reviewed and updated October 2015 with changes as agreed above and lodged with CBS by the Public officer’ Proposed Elaine Seconded Tony. Carried.
[106] T33.18.19, 31 July 2017.
Neither side produced copies of the Constitution as so amended. Mr Parkinson accepted there was a change but was not sure whether it imposed a prohibition of two or five years. In any event he maintained that whatever the situation, it would not be applied retrospectively to Mr Snow.[107]
[107] T66.26-67.9.
There is fundamentally insufficient material available to the court to adjudicate this issue. No evidence other than mere assertion of the circumstances in which the Constitutional changes were made was adduced. The core issues in the application in the lower court were those of expulsion and suspension. Furthermore it is not apparent whether the issue of the validity of constitutional changes comes within disputes between a member and the Association within the meaning of Rule 10 of its Constitution, or fall within the ambit of s 40 of the Associations Incorporation Act, except that it might be suggested the rule change was directed specifically to Mr Snow and hence were oppressive and unreasonable within the meaning of s 61(15)(a)(iii) of the Associations Incorporation Act.
This issue was not mentioned in his original statutory application filed in the Magistrates Court or in his first application to this Court. Ground 13 of the ‘second application to review’ simply alleged ‘the issue of amendments to the Constitution is raised as new evidence’. Putting aside these fatal procedural impediments, this aspect of Mr Snow’s appeal must fail for lack of substantiation and because it was not agitated in the court below. It might be added it appears to be somewhat incongruous that he considers these changes to the Constitution to be invalid, and yet on the other hand to seek the preclusion of certain persons as members for a period of five years, presumably in accordance with the amended rules of the Association.
Conflict of Interest
This matter was first agitated by Mr Snow in an affidavit filed on 7 February 2018 in this court. The issue arose in this way. Towards the end of proceedings before the Magistrate, and in a rather prolix submission whether by design or forgetfulness, he pointed out for the first time that Mr Parkinson was ‘an advisor to the State Government during the legal profession bill 2007 debate’.[108] Mr Snow proceeded to inform her Honour that he was a victim of the Magarey Farlam Lawyers Trust Account default. Her Honour pointed out there was no evidence about that and then stated: [109]
I don’t need to know what happened with the bill or with the legal regulation issue. I dealt with it enough when I was with the Law Society.
Mr Snow contends now that her Honour’s involvement as a Law Society member was sufficient to disqualify her for conflict of interest.
[108] T82.27-.31, 31 July 2017.
[109] T83.1-.13.
It may be acknowledged that in its initial response to the application in the Magistrates Court, Consumers SA alleged the action was: [110]
An attempt by the Applicant to appropriate the name, goodwill and resources of the Association to pursue reform of the governance of the legal profession.
This line of defence was however abandoned following a first directions hearing. There is no doubt that Mr Snow became actively involved in making representations to Government with respect to the reform of the legal profession at around the times substantial amendments to the Legal Practitioners Act,[111] were under consideration by the State Government and open for public debate. This was a matter of legitimate public interest and one that Mr Snow was perfectly entitled to pursue. By the same token even, presuming the Magistrate was at one time a sitting member of the Council of the South Australian Law Society, she and the Society held an equally legitimate interest in making representations to the Government as to the drafting and scope of the proposed changes. The decision-making of the Society was a corporate one. No reasonable fair minded observer could possibly think by reason of such involvement, that the Magistrate was in any way compromised in these proceedings. On the contrary, a reasonable fair minded observer may think that detailed knowledge of the trust account defaults were more likely to generate sympathy for the victims. This aspect of Mr Snow’s appeal fails for those reasons, quite apart from his failure to ‘spell out’ the precise nature of the perceived conflict of interest, or identify any ‘logical connection between that interest’ and the ‘feared deviation from the course of deciding the case on its merits’: Isbester v Knox City Council.[112] The fact that Mr Parkinson may have advised the Government is merely serendipitous.
[110] Para [5].
[111] 1981 (SA).
[112] (2015) 255 CLR 136, [21].
Disposition
To this point the court has determined that:
1The resolution of suspension made by the Committee on 4 August 2015 was invalid;
2Any defects so far as notice and providing particulars are concerned with respect to the Committee meeting of 23 September 2015, were cured by the general meeting of the Consumers SA of 9 February 2016.
3The notice of the meeting of 9 February 2016 as inadequate, but inconsequential.
4The resolution of the general meeting of 9 February 2016 is quashed.
5Mr Snow was wrongly denied access to records of the Association.
6In all other respects his appeal fails.
The Magistrate erred in determining otherwise. Even so, the court does not enjoy the powers of remission under s 38(7)(d), but it does retain the power to rescind the judgment pursuant to s 38(7)(d)(ii) of the Magistrates Court Act. In that event the court is further empowered to ‘substitute a judgment that the court considers appropriate.’
This means in effect that the Court acquires such of the powers of disposition available to the Court below as are contained in s 61(4) of the Associations Incorporation Act.[113]These powers are wide and permissive; wide in the sense that they authorise the court to regulate and control the affairs of an Association in the ways referred to therein in the future; permissive in the sense that they import a discretion to make any one of more orders permitted thereunder, or none at all.
[113] Reproduced above.
The prerequisite for making any order is satisfaction that the Association has for the purpose of this case, ‘engaged in conduct that is oppressive or unreasonable’. Since the conclusions reached in respect of the lack of power to suspend and the flawed meeting of 9 February 2016, unquestionably resulted from such conduct, the powers to invoke the remedies provided for in s 61(4) are thereby triggered. Obviously the remedies to apply must be directed to the nature of the oppressive and unreasonable conduct involved. Neither Mr Snow nor Mr Parkinson turned their minds to the precise orders considered appropriate. This is unsurprising since much was contingent upon the conclusion the court reaches on the substantive issues.
On the face of the above conclusions, it might or might not on one view of matters be appropriate to order the reinstatement of Mr Snow pursuant to s 61(4)(c) of the Associations Incorporation Act in the meantime, and to direct the Association to convene another Committee or general meeting to consider afresh any motion to expel. That may involve a direction that specified members may not participate in any such meeting(s). It may also involve directions as to the nature of the minimum particulars of misconduct required, as well as other consequential directions.
On the other hand it might be the case that no such orders should be made in exercise of discretion on the grounds of futility, or that orders prove unworkable or impractical. For his part Mr Snow should appreciate that disruptive, disharmonious and single-mindedness can readily provide sufficient grounds for expulsion, and that by subscribing to membership of Consumers SA he necessarily binds himself to comply with its Constitution, under which decision-making is co-operative and corporate. For its part Consumers SA should appreciate that informed debate and the expression of different views on policy issues are legitimate components of corporate decision-making, and should they wish to expel Mr Snow, they must do it by the book.
Both parties should bear in mind that in considering further orders the court is not concerned with the underlying merits of the decisions to suspend and expel and nor is it empowered to interfere by means of supervising decisions made in committee or membership meetings: Wade v New South Wales Rugby League Ltd.[114]
[114] (1985) 180 CLR 459, 466, 468-470.
For the time being the orders of the court are:
1Rescind the decision of the Magistrate given on 11 October 2017 dismissing Mr Snow’s application for relief under s 61 of the Associations Incorporations Act, and by substituting in lieu thereof orders:
(a) Quashing the decision of Consumers SA suspending Mr Snow from membership made on 4 August 2015;
(b) Quashing the decision of Consumers SA expelling him from the Association made at the General Meeting of 9 February 2016;
2Listing the matter for directions to take further submissions as to the appropriate orders in light of these reasons.
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