Snow v Consumer Association of South Australia (No 2) - [2018] SADC 65

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
SNOW v CONSUMER ASSOCIATION OF SOUTH AUSTRALIA (No 2)
[2018] SADC 65
Judgment of His Honour Judge Tilmouth
19 June 2018
ASSOCIATIONS AND CLUBS - EXPULSION, SUSPENSION AND DISQUALIFICATION
Although the court makes orders quashing decisions of the respondent to suspend and expel the applicant, it is inappropriate to make further consequential orders in view of the membership structure of the Association and the irretrievable breakdown in the relationship between the parties.
Snow v Consumer Association of South Australia [2018] SADC 49; R v Wymond and Evans [2013] SASCFC 12; Associations Incorporation Act 1985 (SA) s 61, s 61(4)(f), s 61(4)(g); Pettit v The South Australian Harness Racing Inc & Ors (2006) 95 SASR 543; Popovic & Ors v Tanasijevic & Ors (No 5) [2000] SASC 87; Wayde v New South Wales Rugby League Limited (1985) 180 CLR 459; Howard Smith Ltd v Ampol Petroleum Ltd [1974] 1 NSWLR 68; Millar v Houghton Table Tennis and Sports Club Inc (2003) 225 LSJS 241; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, referred to.
Chief Constable v Evans [1982] 1 WLR 1155, applied.

SNOW v CONSUMER ASSOCIATION OF SOUTH AUSTRALIA (No 2)
[2018] SADC 65
Procedures for final orders
Background

The underlying proceeding in this matter was an application by Mr Snow initiated in the small claims jurisdiction of the Adelaide Magistrates Court for orders setting aside his suspension and expulsion from the Incorporated Consumer Association of South Australia (Consumers SA). His application before the Magistrate failed on all grounds.
An application for review to this court succeeded to the extent that the decisions to suspend and later expel him from Consumers SA were quashed.[1] These were made respectively at a Committee meeting of 4 August 2015 and a general meeting of 9 February 2016.
[1] Snow v Consumer Association of South Australia [2018] SADC 49.
The matter returns to the court for consideration of the appropriate final orders to be entered in light of those conclusions. Both Mr Snow in person and Mr Parkinson on behalf of Consumers SA, made further submissions as to the consequential orders they each sought. Mr Snow argued for numerous wide ranging orders, including the reinstatement of his membership. For its part Consumers SA understood that since the Committee decision to expel Mr Snow was upheld, the proper course was to reconvene a general meeting to reconsider Mr Snow’s appeal from the decision of the Committee, in accordance with its Constitution.
Reconvening a general meeting
The allegations against Mr Snow were essentially that he used Consumers SA as a vehicle for his own agenda, made representations outside the policies of the Association, that he behaved in a manner that was obstructive of process and that he was openly abusive or critical of members, particularly Committee members. Mr Snow remains adamant that the factual basis for these allegations remains unproven, even though he at no time took the opportunities presented to refute them.
A difficult preliminary consideration is the utility of reinstatement given the structure of Consumers SA itself. Consumers SA has around 30-32 members, has a very small budget, no employees and is essentially run by a small volunteer Committee of around six members. Generally few other members actively participate or attend general meetings, other than by exercising proxy voting rights.
The situation here is that Mr Snow desires to reinstate his appeal to a general meeting from the decision of the Committee. Those participating members in the adverse decisions to suspend and then expel, are disqualified from attending or participating in such a general meeting.[2] Matters are compounded by the Constitution and Rules of Consumers SA, in as much as rule 8.4.a requires that 10 members must attend general meetings either ‘personally or by proxy’ in order to constitute a quorum for the transaction of business. Rule 8.4.e thereof provides that the President shall preside as Chairperson. On the other hand rule 8.4.d of the Rules and Constitution states:
… if the President is not present … the members may choose a committee member of one of their own number to be the chairperson of that meeting.
The President was one of the Committee members voting to uphold the motion for expulsion.
[2] Ibid [59], [64].
Mr Snow now claims that as 15 of the proxy nominations to the general meeting expelling him were forwarded to the Chair and Secretary respectively, they are disqualified from participating in a further meeting. In an unsolicited written submission filed with the court on 14 May 2018, Mr Snow demonstrates the chances of attaining a quorum of at least 10 members is therefore a slim one at best. The position is clear that making orders for reconvening a general meeting of Consumers SA will prove both impractical and futile.
Reinstatement of membership
The position of Consumers SA is that the process of expulsion was exercised in good faith on substantial grounds. This position was upheld by the Magistrate.[3] Its position remains that Mr Snow’s conduct was antithetical and disruptive of its work and tended to promote and foster his own agenda at the expense of the views of the members, and the Committee. This attitude served to unduly burden the processes of decision making and of promoting its consumer orientated objectives.[4] The minutes of various meetings and the materials submitted by him to both courts, amply demonstrate Mr Snow’s often pedantic obsession with technicality.
[3] Snow v Consumer Association of South Australia, AMCCI-16-2757 [68].
[4] Snow v Consumer Association of South Australia, [2018] SADC 49, [18]-[19].
The question then clearly arises whether it is appropriate to reinstate Mr Snow in the circumstances where he has shown a bent for disruption, obsessive technicality and the pursuit of his own objectives. It is true enough that the allegations that he questioned the integrity of some members of the Committee at the meeting of 4 August 2015 were not spelt out, but of course Mr Snow was plainly aware of them as he was present at that meeting.[5]
[5] Ibid, [49]-[51].
The first particular of misconduct was disregarding an email of 29 July 2015 instructing him not to attend a meeting with another organisation, in which it was made clear to him that if he did attend it would be on his own behalf and not on behalf of Consumers SA.[6] The two emails constituting the remaining two particulars of misconduct of 3 November 2014 and 15 January 2015, were critical of the Association ‘could have been far more cooperative and supportive’ and ‘I have had great difficulty in dealing with Consumers SA …’, clearly laid a proper foundation for expulsion.[7] In his submission to the District Court, Mr Snow failed to disclose these were authored by him.[8]
[6] Ibid, [17], [46].
[7] Ibid, [47].
[8] Ibid [47]-[48].
Given the conclusions contained in the primary judgment, and although it appeared at first sight appropriate to consider reinstatement, the history of poor relations between Mr Snow and Consumers SA, and the course of the proceedings in both courts, call into question the efficacy of reinstatement, in the sense that it is most unlikely they could work effectively together.
Overall the situation is as the Magistrate rightly characterised the relationship as one that ‘waxed and waned, but eventually it had broken down’.[9] As her Honour further observed his:[10]
… correspondence failed to address the gravamen of the complaints against him, and focussed on form rather than substance … [which] …demonstrated a clear unwillingness to address the substance of the allegations being made.
and:[11]
… his preference to deal with technicalities and form as opposed to addressing the substance of the matter.
This court characterised his stance over the persistent demands for further and better particulars of the charges as a ‘rouse for delay and obfuscation’.[12]
[9] AMCCI-16-2757, [65].
[10] Ibid [67].
[11] Ibid [72].
[12] Ibid [50].
Further submission by Mr Snow
In a written submission of 6 June 2018, Mr Snow raised a number of further issues apart from the above. He points to the powers contained within s 61 of the Associations Incorporation Act 1985 (SA) to make orders regulating the conduct of Consumers SA’s affairs in the future, for altering the rules of the Association and the residual power to make any other order that the court thinks ‘necessary to remedy any default or to resolve any dispute’ contained in s 61(4)(g). In this submission he seeks for the first time, the preclusion of two further members of the Committee from further decision making on the question of expulsion, as well as the 10 proxy members. He further seeks, again for the first time, the imposition of penalties against those members involved in his suspension and expulsion, and a consideration of changing ‘the structure and function of the Association’.
The ambit of s 61(4)(g) of the Associations Incorporations Act is admittedly wide. However it is tempered by the kind of orders the court is entitled to make under the preceding sub-sections, to such further orders as are ancillary, incidental or necessary to give effect to them. The use of this power is one which must therefore be ‘analogous to the purposes prescribed by the preceding sub-paragraphs’: see by analogy R v Wymond and Evans.[13] Still further, those powers are directed at or to an Association at fault, and persons who are office holders and members of that Association, not to third parties.
[13] [2013] SASCFC 12, [26].
Relying on these powers of disposition contained in s 61(4), Mr Snow submits an independent panel must be established to consider his appeal. This however goes well beyond the reach of s 61(4) of the Associations Incorporation Act, and is a course not provided for in the Rules and Constitution of Consumers SA. It is well established that the court will not assume the role of supervising decisions within the powers of management made in good faith: Howard Smith Ltd v Ampol Petroleum Ltd.[14] As pointed out in Pettit v The South Australian Harness Racing Inc & Ors,[15] and in Millar v Houghton Table Tennis and Sports Club,[16] the courts are not concerned with reviewing the underlying merits of management decisions. In that case White J made the following observation:[17]
[12] An association may have many reasons for rejecting membership applications. It may determine that the aims and aspirations of an applicant are not consistent with the objects of the association.
[14] [1974] 1 NSWLR 68, 74.
[15] (2006) 95 SASR 543, [26].
[16] (2003) 225 LSJS 241.
[17] Ibid [26].
It remains true of course that the law attaches great store in adherence to the provisions of an Association’s Constitution in expelling members. This is because the failure to comply ‘has the effect of depriving members of their right, as members, to have the affairs of the entity conducted in accordance with its constitution and rules’: Popovic & Ors v Tanasijevic & Ors (No 5).[18] On the other hand as Lord Brightman observed in Chief Constable v Evans,[19] in a passaged quoted with approval by Brennan J in Ainsworth v Criminal Justice Commission,[20] the supervisory jurisdiction of the courts is not concerned with the decision under review, but rather to ‘ensure that the individual receives fair treatment’, so that it is to usurp power to interfere with a decision otherwise ‘correct in the eyes of the court’.
[18] [2000] SASC 87, [505].
[19] [1982] 1 WLR 1155, 1173.
[20] (1992) 175 CLR 564, 597.
At the invitation of the court, Mr Snow was asked to address in writing the question of ‘whether it is practical to order [his] reinstatement given [his] submission of 14 May 2018’. This he did in the lengthy submission of 4 June 2018. In this he repeats and elaborates the points made in the first submission. More than that, he proceeds over the course of 10 pages containing some 71 paragraphs, to re-agitate numerous issues raised before the Magistrates Court and again in the District Court, most of which are subject to concurrent adverse findings of both courts.
These written submissions only serve to reinforce the conclusion that his disruptive and obsessive behaviour is bound to continue and indeed widen. Quite apart from the fact that additional issues are raised in the two written submissions that were not raised in the earlier hearings, they serve to illustrate that there will be no end to his complaints, and which are very likely to bring the effective management of Consumers SA to an end.
The power of reinstatement derives from s 61(4)(f) of the Associations Incorporation Act. In exercising this power it is necessary to balance the respective interests of Consumers SA on the one hand and those of Mr Snow as an expelled member, on the other. As expressed by Brennan J in Wayde v New South Wales Rugby League Limited,[21] this question involves weighing:[22]
… the importance of furthering the corporate object on the one hand and the disadvantaged, disability or burden which their decision will impose on a member on the other’: see also Becker v Sturt Pistol and Shooting Club Inc.
[21] (1985) 180 CLR 459, 466.
[22] [2014] SADC 210, [337]-[338].
Conclusion and orders
Applying the above principles to the particular circumstances of the case, the application for reinstatement is refused on the grounds of impracticality and futility. The relationship between the parties has irretrievably broken down and Mr Snow continues to demonstrate a pedantic obsession with procedure over substance so much so that reinstatement is no longer for the benefit of the other members of Consumer SA as a whole.
The orders of the court are therefore as follows:
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 substituting in lieu thereof orders:
(a) Quash the decision of Consumers SA suspending Mr Snow from membership made on 4 August 2015;
(b) Quash the decision of Consumers SA expelling him from the Association made at the General Meeting of 9 February 2016;
2.Dismiss the application for review on all other grounds including reinstatement.
3.Otherwise affirm the order of the Magistrate to dismiss his statutory application in all other respects.
Given that Mr Snow succeeded in demonstrating errors in the approach of the Magistrate and was vindicated to the extent of securing declarations of wrongful suspension and expulsion, but otherwise failed to obtain orders for reinstatement or for a rehearing of his appeal to a general meeting, there will be no order as to costs.