WATSON and SPORTING SHOOTERS ASSOCIATION OF AUSTRALIA (WA) INC. - [2021] WASAT 11

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: ASSOCIATIONS INCORPORATION ACT 2015 (WA)
CITATION:   WATSON and SPORTING SHOOTERS ASSOCIATION OF AUSTRALIA (WA) INC. [2021] WASAT 11
MEMBER:   MS R PETRUCCI, MEMBER
HEARD:   21 JANUARY 2021
DELIVERED          :   3 FEBRUARY 2021
FILE NO/S:   CC 870 of 2020
BETWEEN:   PETER WATSON
First Applicant
PETER NELLA
Second Applicant
AMANDA NELLA
Third Applicant
GLENN PATTULLO
Fourth Applicant
SCOTT TILLOTSON
Fifth Applicant
LARRY GROHVAZ
Sixth Applicant
MICHAEL EDWARDS
Seventh Applicant
JAMES BAINBRIDGE
Eighth Applicant
AND
SPORTING SHOOTERS ASSOCIATION OF AUSTRALIA (WA) INC.
Respondent

Catchwords:

Incorporated association - Application under s 182 of the Associations Incorporation Act 2015 (WA) - Whether Tribunal has jurisdiction to determine dispute - Preliminary issues - Whether each applicant a member of the incorporated association - Whether the applicants followed the dispute resolution procedure in the Constitution (Rules) - Grievance procedure under the Constitution (Rules) - Turns on own facts

Legislation:

Associations Incorporation Act 2015 (WA), s 22, s 22(7), s 23(3)(a), s182, s182(1), s 186, s 198, Sch 1, Div 1

Result:

Preliminary issue determined
Application dismissed

Category: B

Representation:

Counsel:

First Applicant	:	In Person
Second Applicant	:	In Person
Third Applicant	:	In Person
Fourth Applicant	:	In Person
Fifth Applicant	:	In Person
Sixth Applicant	:	No Appearance
Seventh Applicant	:	In Person
Eighth Applicant	:	No Appearance
Respondent	:	G Cruise and MA MacLennan

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
Third Applicant	:	N/A
Fourth Applicant	:	N/A
Fifth Applicant	:	N/A
Sixth Applicant	:	N/A
Seventh Applicant	:	N/A
Eighth Applicant	:	N/A
Respondent	:	Bennett + Co

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

Kavanagh and Pine Valley Pistol Club Incorporated [2020] WASAT 11
Kelmscott Senior Football Club (Inc) and Western Australian Amateur Football League (Inc) [2018] WASAT 6

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The dispute, the subject of this proceeding, concerns the suspension of membership of Mr Peter Watson, Ms Amanda Nella, Mr Glenn Pattullo, Mr Scott Tillotson, Mr Larry Grohvaz, Mr Michael Edwards and Mr James Bainbridge (each an applicant and together the applicants) by the Sporting Shooters Association of Australia (WA) Inc. (respondent or Association) on or about 6 September 2019. There is also a dispute between the parties about whether $4,000 'paid in good faith by way for fines pending the appeal processes'[1] should be returned to the applicants.
[1] Exhibit 1 at page 4.
The applicants applied to the Tribunal on 24 July 2020 to have the disputes between them and the respondent determined by the Tribunal.
The application is made under s 182(1) of the Associations Incorporation Act 2015 (WA) (AI Act), which allows an incorporated association, or one of its members, to apply to the Tribunal when a dispute cannot be resolved 'under the procedure provided for as required by Schedule 1 Division 1 item 18' of the AI Act. The dispute in question must be under or relating to the rules of the incorporated association.
It is common ground that the:
1)respondent was incorporated before the AI Act commenced on 1 July 2016;
2)respondent is an 'existing incorporated association' for the purposes of s 186 of the AI Act and, therefore, is taken to be an association incorporated under the AI Act; and
3)current rules of the respondent are the rules set out in the document entitled, 'Constitution (Rules)' (Constitution) which was ratified on 25 August 2018.
Next, the Tribunal sets out the preliminary issue to be determined.

The preliminary issue to be determined

The parties agreed at the hearing that the respondent's suspension of the applicants as members of the respondent constitutes the 'dispute' for the purposes of determining the preliminary issue. The Tribunal respectfully agrees. In Kavanagh and Pine Valley Pistol Club Incorporated [2020] WASAT 11 the Tribunal[2] stated at [71]:
[I]f a decision or an action is made or taken by the management committee or a general meeting of members under the rules of an incorporated association, which affects a member of the incorporated association, then it can give rise to a dispute between the member and the incorporated association for the purposes of s 182(1) of the AI Act.
[2] Mr D Aiken, SM.
The preliminary issue for the Tribunal to determine is whether or not it has jurisdiction under s 182(1) of the AI Act to decide the dispute. The particular questions for determination by the Tribunal was articulated as follows in orders made by the Tribunal on 3 November 2020:
Question 1:Is each applicant a member of the respondent?
Question 2:Prior to making this application did the applicants follow the dispute resolution procedure in Part 4 Division 3 of the Constitution (Rules) of the respondent and, in particular, did the applicants start the grievance procedure under rule 20 of the constitution?
At hearing the parties agreed that each applicant (as set out earlier at [1]) is a member of the respondent. The Tribunal respectfully agrees. This leaves only question 2, as set out above, to be determined by the Tribunal.

Relevant procedural history and evidence

The parties were required by orders made by the Tribunal on 3 November 2019 to file with the Tribunal, and give to each other, written submissions in relation to the determination of the preliminary issue.
In determining the preliminary issue, the Tribunal has relied on the written submissions provided by the parties,[3] the oral submissions made at the hearing on 21 January 2021 and the following documents accepted into evidence:[4]
1)the applicants' application to the Tribunal dated 24 July 2020;
2)the Constitution;
3)the notification of membership suspension dated 5 September 2019 from Mr Ron Bryant, the president of the respondent, to each of Mr Nella and Mrs Nella;
4)the email dated 10 September 2019 from Mr Nella to the respondent;
5)the email dated 20 September 2019 from Mr Nella to the respondent; and
6)the response dated 26 September 2019 from Mr MacLennan of Bennet + Co for the respondent to Mr Nella.
[3] Applicants' written submissions dated 30 November 2020 and respondent’s written submissions dated 17 November 2020.
[4] Exhibit 1.
All the applicants apart from Mr Grohvaz and Mr Bainbridge attended the hearing on 21 January 2021 in person. Mr Nella made oral submissions on behalf of the applicants. Mr Tillotson also made oral submissions. Finally, Mr MacLennan of counsel made oral submissions on behalf of the respondent.
After each party made its respective oral submissions on whether the Tribunal had power to determine the dispute under s 182(1) of the AI Act, on 21 January 2021, the Tribunal reserved its decision.
Before setting out the parties' main contentions, the Tribunal, next, sets out the statutory framework relating to the rules of an incorporated association.

The statutory framework relating to rules of an incorporated association

AI Act

Section 22 of the AI Act sets out the general requirements for the content of the rules of an incorporated association. In particular, s 22(3)(a) of the AI Act provides that the rules of an incorporated association must address each of the matters set out in items 1-19 of Sch 1, Div 1 to the AI Act which includes, relevantly, a procedure for dealing with any dispute under or relating to the rules between members or between members and the incorporated association (item 18).
Section 22(7) of the AI Act provides that s 22 of the AI Act applies to an association which was already incorporated prior to the commencement of the AI Act. However, s 198 of the AI Act allows a period of three years after the commencement of the AI Act for those incorporated associations to alter their rules to comply with the requirements of s 22 of the AI Act. In this case, the respondent's Constitution was ratified on 25 August 2018.
Section 182(1) of the AI Act provides that if a dispute cannot be resolved under the procedure provided for as required by Sch 1 Div 1 item 18 then:
(a)the incorporated association; or
(b)a member of the association involved in the dispute,
may make an application to the Tribunal to have the dispute determined by the Tribunal.
As explained earlier, before the Tribunal can determine the dispute between the parties, the Tribunal must be satisfied that it has jurisdiction to hear the matter.
In this proceeding, the Tribunal must determine whether the applicants, prior to making their application to the Tribunal, followed the disputed resolution procedure as set out in Division 3 of Part 4 of Constitution, and in particular whether the applicants started the grievance procedure set out in rule 20.

Constitution

The relevant provisions of the Constitution, for the purpose of this proceeding, are the rules in Division 3 of Part 4.
It is useful to first set out the definition of the following terms used in Division 3 of Part 4 of the Constitution. The definitions appear in Division 1 of Part 1 of the Constitution as follows:
…
general member means an individual member of a club/branch who is a financial member of the Association;
member means a person (including a body corporate) who is a club/branch or a general member of the Association;
…
secretary means the committee member holding office as the honorary secretary of the Association;
…
State Executive means the management committee of the Association;
State Executive meeting means a meeting of the State Executive;
State Executive member means a member of the State Executive[.]
Division 3 of Part 4 of the Constitution sets out how disputes are to be resolved as follows.
PART 4 - DISCIPLINARY ACTION, DISPUTES AND MEDIATION
…
Division 3 - Resolving disputes
17. Terms used
In this division –
grievance procedure means the procedures set out in this Division;
party to a dispute includes a person -
(a)who is a party to the dispute; and
(b)who ceases to be a member within 6 months before the dispute has come to the attention of each part to the dispute.
18. Application of Division
The procedure set out in this Division (the grievance procedure) applies to disputes -
(a)between members; or
(b) between one or more members and the Association.
19. Parties to attempt to resolve dispute
The parties to a dispute must attempt to resolve the dispute between themselves within 14 days after the dispute has come to the attention of each party.
20. How grievance procedure is started
(1)If the parties to a dispute are unable to resolve the dispute between themselves within the time required by rule 19, any party to the dispute may start the grievance procedure by giving written notice to the secretary of -
(a)the parties to the dispute; and
(b)the matters that are the subject of the dispute.
(2)Within 28 days after the secretary is given the notice, a State Executive meeting must be convened to consider and determine the dispute.
(3)The secretary must give each party to the dispute written notice of the State Executive meeting at which the dispute is to be considered and determined at least 7 days before the meeting is held.
(4)The notice given to each party to the dispute must state:
(a)when and where the State Executive meeting is to be held; and
(b)that the party, or the party's representative, may attend the meeting and will be given a reasonable opportunity to make written or oral (or both written and oral) submissions to the State Executive about the dispute.
(5)If -
(a)the dispute is between one or more members and the Association; and
(b) any party to the dispute gives written notice to the secretary stating that the party -
(i)does not agree to the dispute being determined by the State Executive; and
(ii)requests the appointment of a mediator under rule 23,
the State Executive must not determine the dispute.
21. Determination of dispute by State Executive
(1)At the State Executive meeting at which a dispute is to be considered and determined, the State Executive must -
(a)give each party to the dispute, or the party's representative, a reasonable opportunity to make written or oral (or both written and oral) submissions to the State Executive about the dispute; and
(b)give due consideration to any submissions so made; and
(c)determine the dispute.
(2)The State Executive must give each party to the dispute written notice of the State Executive's determination, and the reasons for the determination, within 7 days after the State Executive meeting at which the determination is made.
(3)A party to the dispute may, within 14 days after receiving notice of the State Executive's determination under subrule (1)(c), give written notice to the secretary requesting the appointment of a mediator under rule 23.
(4)If notice is given under subrule (3), each party to the dispute is a party to the mediation.
The Tribunal turns, next, to set out the main contentions of each party in regards to question 2 (set out earlier at [7]) as to whether the applicants followed the dispute resolution procedure set out in the Constitution.

The applicants' main contentions

The applicants' main contentions that the Tribunal has jurisdiction to hear this matter may be summarised as follows:
1)Rule 19 does not articulate that each party must be identified as that rule refers to 'parties to the dispute'.
2)The respondent did not respond to Mr Nella's email of 10 September 2019 nor did the respondent advise that it had received the email or that it had been accepted it as a dispute. The first communication the applicants received from the respondent was from the respondent's legal representative by letter dated 26 September 2019.
3)The respondent did not attempt to resolve the dispute with the applicants within the required 14 days of 10 September 2019 as the respondent did not acknowledge or respond to Mr Nella's email.
4)Written notice complying with rules 20 and 21 was provided to the respondent regarding the parties to the dispute by Mr Nella's email of 10 September 2019. Rule 20(1) does not articulate that there is a requirement to provide specific names of the parties to the secretary of the respondent. The respondent did not request any information but rather chose not to acknowledge or respond to Mr Nella's email at that time.
5)As a result of the respondent's reticence to communicate or acknowledge the grievance submitted by the applicants, rule 20(2) to 20(5) and rule 21 were not invoked and as such the grievance was not progressed by the respondent. Because of this, the parties identified in Mr Nella's email of 10 September 2019 were denied procedural fairness.

The respondent's main contentions

The respondent's main contentions that the Tribunal does not have jurisdiction to hear this matter may be summarised as follows:
1)The respondent first became aware that at least some of the applicants disputed their suspension of membership when it received Mr Nella's email of 10 September 2019.
2)Mr Nella's email of 10 September 2019 does not identify each party to the dispute because:
a)the email refers to the respondent's decision to suspend 'most of the 'Canning Club Committee' but does not identify (apart from Mr Tillotson) the persons on whose behalf the letter is written; and
b)although the email is copied to varies persons who are now listed as applicants in this proceeding, it is not copied to each of them, and it was not made clear at the time the reason for which these persons were copied into the email.
3)The email sent by Mr Nella on 10 September 2019 does not constitute written notice for the purposes of rule 20(1) because:
a)such notice could only have been given if the parties were unable to resolve the dispute between themselves within 14 days after the dispute had come to the attention of each of the parties to the dispute and Mr Nella's email of 10 September 2019 was the first time the dispute was brought to the respondent's attention; and
b)Mr Nella's email of 10 September 2019 failed to identify each of the parties to the dispute and is therefore not a valid notice under rule 20(1).
4)Rules 20 and 21 require that for the written notice starting the grievance procedure to be valid it must identify each person who is a party to the dispute so that the respondent can comply with the requirements of rule 21 and rules 20(3) and (4) to give each party to the dispute the opportunity to be heard.
5)The purpose of rule 20(3) and (4) and rule 21 which are engaged by a notice under rule 20(1) is to ensure that procedural fairness is afforded to each party to the dispute.
6)The applicants have not exhausted (or started) the dispute resolution procedure under rule 20.

The Tribunal's consideration

It is common ground that at 9:52 am on 6 September 2019 the respondent by its president, Mr Ron Bryant, issued a notice, by email to various Canning Club Inc. committee members suspending their membership of the respondent with effect from midday on 6 September 2019 until further notice. Further, it is common ground that at 11:00 am on 6 September 2019 the Canning Club Inc. resigned as a member of the respondent.
Mr Nella in his capacity as secretary of the Canning Club Inc. sent an email on 10 September 2019 to the secretary of the respondent. The following persons were copied in that email:
1)Ms Nella (third applicant);
2)Mr Dennis Rawson;
3)Mr Pattullo (fourth applicant);
4)Mr Ivan Bullich;
5)Mr John Mather;
6)Mr Grohvaz (sixth applicant);
7)Mr Leon King;
8)Mr Luke Staal;
9)Mr Michael Edwards (seventh applicant);
10)Mr Peter Liron;
11)Mr Peter Watson (first applicant);
12)Mr Rodney Gaskin;
13)Mr Scott Tillotson (fifth applicant); and
14)Mr Steve Dowsett.
Mr Rawson, Mr Bullich, Mr Mather, Mr King, Mr Staal, Mr Liron, Mr Gaskin and Mr Dowsett are not applicants in this proceeding. Mr Bainbridge who is an applicant was not copied in Mr Nella's email of 10 September 2019. According to Mr Tillotson, Mr Bainbridge does not have an email address.[5]
[5] ts 14, 21 January 2021.
It is useful at this point to set out Mr Nella's email of 10 September 2019. It provides as follows:
Suspension of Canning Club Committee
10 September 2019 at 9:28:23 pm AWST
[Peter Nella's email address][6]
[6] Email addresses redacted by the Tribunal.
Secretary [email address]
Amanda Nella [email address]; Dennis Rawson [email address]; Glenn PATTULLO [email address]; Ivan Bulled [email address]; John Mather [email address]; Larry Grohvaz [email address]; Leon King [email address]; Luke Staal. [email address]; Michael Edwards [email address]; Peter Liron [email address]; Peter Nella [email address]; [Peter Watson email address];Rodney Gaskin [email address]; Scott Tillotson [email address]; Steve Dowsett [email address]
Dear Secretary
I refer to the recent communication from the SSAAWA in which most of the Canning Club Committee were suspended as members from the SSAA.
Firstly, can you advise the date of the meeting that the State Executive made the decision to suspend most of the Canning Club Committee. Further, under Rule 15(2) of your Rules of Association, you as Secretary, must provide the said Committee members written notice of the proposed suspension or expulsion at least 28 days before the State Executive meeting at which the proposal is to be considered by the State Executive. Further you have not advised the Committee Members when the State Executive Committee is to be held and you have not given the Committee members the opportunity to make written representation to the State Executive Committee.
Therefore with respect to the notice provided to Committee Members by the President on Friday 6 September 2019, you have breached the following provisions of the SSAAWA Rules of Association:
Rule 35(2);
Rule 35(3); and
Rule 35(4).
Based on breaches of those sub-rules, the SSAAWA's suspension of the Canning Club Committee members is invalid and as such the Canning Club Committee members are still legitimate members of the SSAA.
With respect to Committee members I expect that you advise the President of the Canning Club as to why Mr R Hill was also not included in the suspension of Canning Club Committee members. At the time that the complaints were made against the Canning Club and the allegations proffered against the Canning Club Committee, Mr R Hill was member of the Canning Club Committee. In fact Mr Hill has not resigned from the Committee and should have been served with the invalid suspension notice.
On the other hand, Mr Scott Tillotson was only voted onto the Committee following the resignation of a Committee Member and after the complaints and allegations proffered against the Committee Members. I therefore expect that the letter of suspension against Mr Tillotson be retracted by the SSAAWA.
I would like to further advise of the unreasonable action taken by the SSAAWA.
The Canning Club was advised of the determination of the Tribunal Hearings on 1 August 2019 following the hearings being held on 30 July 2019.
Within the determinations, a number of sanctions were imposed including fines and also the threat of suspension should those sanctions not be complied with. Most of the sanctions were given 21 days to comply with and one sanction being given 14 days to comply.
As per the provisions of the Member Protection Policy, Canning Club appealed against both tribunal determinations and provided notice to the Secretary SSAAWA within the time limit and duly paid the appeal application fees.
The Canning Club was not made aware as to when the State Executive determined whether or not to accept the appeal, however was notified on 24 August 2019 by letter which was dated 23 August 2019, that the appeal had not been accepted by the State Executive.
As you can see by the above dates, the appeal letter dismissing the appeal was received on 24 August 2019, which is 24 days after the tribunal determination and sanctions imposed.
It was therefore made impossible for the Canning Club to comply with the majority of sanctions given advice regarding the appeal was not provided until after the sanctions had expired. This action was unethical and unjust.
As you will be aware, the Secretary of the Canning Club emailed you on Monday 26 August 2019, seeking urgent direction as to when the sanctions were to apply from given the notice of dismissal of appeal, (see attached email). In all reasonableness and in line with procedural fairness and natural justice, there was an expectation by the Canning Club that the sanctions would apply from the date the appeal was dismissed being 23 August 2019. You did mot (sic) respond to this email.
A further email was forwarded from the Secretary Canning Club to you dated 30 August 2019 again asking you to advise us urgently as to the date the sanctions were to commence. It is noted that you made telephone contact on that day (30 August 2019) with the President of the SSAAWA regarding payments made by the Canning Club with respect to two of the sanctions. You also did not respond to this email.
By purposely not advising the Canning Club, you have endeavoured to suspend the Canning Club Committee.
Further, you have not applied procedural fairness or natural justice to the Canning Club by backdating the sanction date to 1 August 2019, when you were aware that the compliance dates had already expired when the SSAAWA advised the Canning Club of the appeal dismissal.
The Canning Club expects that due to the breach of the SSAAWA Rules of Association that you rescind your suspension of the Committee Members. The Canning Club also requests that you refund the $4000.00 that was paid to the SSAAWA with respect to the fines imposed given our resignation from the SSAAWA. The Canning Club also requests that you notify all Canning Club members that the suspensions have been rescinded based on breaches of your Constitution.

In concluding his email of 10 September 2019, Mr Nella stated, amongst other things, that the Canning Club Inc. expected the respondent to rescind the suspension of the committee members due to the respondent's 'breach of the SSAAWA Rules of Association'.[7]
[7] Exhibit 1 at page 46.
It is common ground that the applicants rely on Mr Nella's email of 10 September 2019 to be the applicants' 'written notice' for the purposes of rule 20(1). No other document was sought to be tendered into evidence to constitute the applicants' 'written notice' for the purposes of rule 20(1).
Mr Nella did not receive a reply to his email of 10 September 2019, and so on 20 September 2019 he emailed the secretary of the respondent and requested a response by 27 September 2019.
The respondent, through its legal representative, wrote to Mr Nella at the Canning Club Inc. on 26 September 2019 stating they were providing advice to the respondent and anticipated responding by 4 October 2019.
In determining question 2 (set out above at [7]), the Tribunal will work through the applicants' main contentions.

No attempt to resolve dispute

It is the applicants' contention that the respondent did not attempt to resolve the dispute within 14 days of Mr Nella's email of 10 September 2019 as required by rule 19. The applicants' submit that the first communication they received from the respondent was from the respondent's legal representative on 26 September 2019 but that was not in an attempt to resolve the dispute.
The respondent accepts that the applicants sought to bring to its attention the dispute by Mr Nella's email of 10 September 2019. The respondent says its legal representative sent a letter dated 26 September 2019 to Mr Nella acknowledging his emails of 10 and 20 September 2019 and stated they were providing advice to the respondent and would respond to his emails by 4 October 2019.
Further, it is the respondent's position that applicants sought to effectively 'leapfrog' the provisions of the Constitution in favour of resolving the dispute in proceedings before the Tribunal. According to the respondent, had the applicants followed the procedure set out in Division 3 of Part 4 of the Constitution then all the expense and inconvenience of the applicants' application to the Tribunal would have been avoided, which the respondent says is the whole purpose of s 182 of the AI Act. Finally, the respondent submits that there is nothing to stop this matter still being resolved pursuant to the provisions of the Constitution.
The starting point is to consider Division 3 of Part 4 of the Constitution which sets out the procedure for resolving disputes between members of the respondent and the respondent.
In resolving a dispute, the first step is for the parties to attempt to resolve the dispute within 14 days after the dispute has come to the attention of each party (rule 19). The applicants submit that the respondent did not attempt to resolve the dispute within 14 days after Mr Nella's email of 10 September 2019 as required by rule 19.
In this case, it is common ground that Mr Nella's email of 10 September 2019 to the secretary of the respondent was the first time that the respondent became aware of the dispute.
Setting aside who are the 'parties to the dispute' (which is considered in detail by the Tribunal below), in the Tribunal's view, the parties had 14 days from 10 September 2019, when the respondent became aware of the dispute, until 25 September 2019 to attempt to resolve the dispute.
The Tribunal finds there was no discussion or meeting between the parties during the period from 10 September 2019 to 25 September 2019. The only correspondence during this period was an email from Mr Nella to the secretary of the respondent on 20 September 2019 wherein Mr Nella referred to his earlier email of 10 September 2019 and requested a response by 27 September 2019.
There is nothing in Mr Nella's emails of 10 September 2019 or 20 September 2019 that refers to rule 19 or that Mr Nella stated that he was seeking to have the dispute resolved within 14 days. Mr Nella's email of 10 September 2019 does however, refer to various other rules including rules 15(2), 35(2), 35(3) and 35(4) and concludes with the statement that the 'Canning Club expects that [the respondent] rescind you (sic) suspension of the Committee Members'.
The Tribunal finds that Mr Nella's email of 10 September 2019 does not state if, or when he required a response from the respondent by (unlike his email of 20 September 2019 wherein he requested a response by 27 September 2019).
It is therefore understandable, on these findings, that the respondent replied as it did on 26 September 2019. The Tribunal accepts that the respondent was seeking to engage with Mr Nella and that its legal representative anticipated responding to the contents of Mr Nella's emails by 4 October 2019.
The Tribunal finds that before the respondent had the opportunity to engage in an attempt to resolve the dispute, the applicants had concluded that the respondent failed to attempt to resolve the dispute and sought to move onto the grievance procedure (which the Tribunal will return to consider in detail below).
In conclusion, the Tribunal is not satisfied that the parties have worked through the procedure set out in rule 19. In the alternative, even if a finding could be made that the parties attempted to resolve the dispute per rule 19, for the reasons which follow, the Tribunal is not satisfied that the applicants have, using the words of the respondent, exhausted (or started) the grievance procedure as set out in rule 20.

Identity of parties

The applicants submit that rule 19 does not require each party to be identified as that rule refers to 'parties to the dispute'. It is the applicants' evidence that Mr Nella's email of 10 September 2019 identifies that a number of the Canning Club Inc. committee members are parties to the dispute without identifying specific names. Further, it is the applicants' evidence that they envisaged that subsequent communications between the parties would establish what information the respondent required to progress the grievance and the complaint process to be followed.
In addition, the applicants submit that rule 20(1) does not require the applicants to provide specific names in the written notice to the secretary of the respondent. The applicants submit that, in any event, the respondent had the opportunity to request the specific names of the parties if the respondent was of the view that that information was required to progress the grievance in accordance with rule 20(1). According to the applicants, the respondent did not request that information, nor did it acknowledge or respond to Mr Nella's email of 10 September 2019.
The respondent submits that the construction of Division 3 of Part 4 of the Constitution, and in particular rules 20 and 21, that written notice identifying each person who is a party to the dispute is required. The respondent submits:
(a)rule 20(3) requires the respondent's secretary to give to 'each party to the dispute' written notice of the meeting of the respondent's State Executive at which the dispute is to be considered and determined;
(b)rule 20(4)(b) requires the notice under rule 20(3) to state that 'the party or the party's representative' will be given a reasonable opportunity to make written or oral submissions to the State Executive about the dispute;
(c)rule 21(1)(a) requires the State Executive of the respondent to give each party to the dispute an opportunity to be heard and written notice of the State Executive's determination and reasons for its determination under rule 21(2); and
(d)rule 20(5) provides that a party to the dispute can object to the State Executive determining the dispute and request that the dispute be referred to mediation and if this occurs, the State Executive must not determine the dispute.
It is the respondent's position that it is necessary for each party to the dispute to be identified so that the respondent can comply with the requirements under rules 20(3) and (4) and rule 21. Further, the respondent submits that if the parties to the dispute are not clearly identified, then it would not be possible for the State Executive to determine to whom it owes the obligations under rules 20(3) and (4) and rule 21 and it would be impossible for the State Executive to know who has the right under rule 20(5) to object to the State Executive hearing the dispute.
Finally, the respondent submits that Mr Nella's email of 10 September 2019 does not identify each party to the dispute because:
(a)it refers to the respondent's decision to suspend 'most of the Canning Club Committee' but does not identify (apart from Mr Tillotson) the person(s) on whose behalf the email is written; and
(b)although the email is copied to various people who are now listed as applicants in this proceeding, it is not copied to each of the applicants, and it was not made clear at the time the reason for which all the people were copied into the email.
The starting point to identifying the 'parties to the dispute' is Mr Nella's email of 10 September 2019. This is because, as noted earlier by the Tribunal, it is common ground, that the applicants' position is that Mr Nella's email of 10 September 2019 is the 'written notice' for the purposes of rule 20(1).
While Mr Nella's email of 10 September 2019 identifies the dispute, the Tribunal is not satisfied that the email identifies the 'parties to the dispute' as required by rule 20(1). The email is addressed to the secretary of the respondent and various people are copied into the email, including all but one of the applicants in this proceeding, and to other persons who are not applicants in this proceeding. The Tribunal finds nothing in the body of the email of 10 September 2019 sets out which of the Canning Club Inc. member(s) Mr Nella is writing on behalf of apart from Mr Tillotson (the fifth applicant in this proceeding) and a Mr R Hill (who is not an applicant in this proceeding). Further, Mr Tillotson is copied into the email but Mr Hill is not copied into the email.
It is not possible to discern from Mr Nella's email of 10 September 2019 (and indeed the email of 20 September 2019 which does not copy in any of the persons copied into the email of 10 September 2019) who are the parties to the dispute, apart from the respondent.
For reasons of procedural fairness, it is necessary for the parties to be clearly identified. This is supported by rules 20 and 21. Importantly rule 20(3) requires the secretary of the respondent to give to each party to the dispute written notice of the State Executive meeting at which the dispute is to be considered and determined. Further, rule 20(4) allows each party, or the party's representative to attend the meeting to make written or oral submissions. In addition, rule 20(5) provides that any party may give written notice to the secretary requesting a mediator to be appointed under rule 23. Finally, rule 21 requires, among other things, that the State Executive give to each party (member) the reasons for its determination.
In the Tribunal's view, rule 20 envisages that there may be one member or many members who are a party to the dispute. In this regard, there may be some members who are self-represented, others who have representation and other members who may want to have the dispute mediated. Because of this, and because of the requirement for the State Executive to give each party (member) to the dispute a written notice of its determination, the identity of each party (member) needs to be clearly stated. The identity of a party (member) may be identifiable by the member's name or by his or her membership number.
The Tribunal concludes that a reference to the 'Canning Club Inc. committee members' in Mr Nella's email of 10 September 2019 does not identify who is the party (member(s)) to the dispute. It is therefore not possible for one party to attempt to resolve the dispute under rule 19 without the identity of who the other party(ies) to the dispute is (are).

Written notice for rule 20(1)

The applicants submit that Mr Nella's email of 10 September 2019 to the respondent constitutes a formal grievance in line with rules 19, 20 and 21 in that it was an attempt to have the dispute resolved.
Mr Nella explained that by his email of 10 September 2019, he wanted to bring to the attention to the secretary of the respondent that they were representing the Canning Club Inc. committee members. Further, Mr Nella said they did this in a 'collective way' instead of each committee member having to write to the secretary of the respondent.[8]
[8] ts 8, 21 January 2021.
It is applicants' position that the Canning Club Inc. committee members who are the subject of the dispute were identified in the top part of the email of 10 September 2019. However, Mr Nella conceded at hearing that there are names listed in the top part of the email who are not applicants in this proceeding and that Mr Bainbridge, who is an applicant in this proceeding was not listed in the email of 10 September 2019.[9] Mr Tillotson explained that Mr Bainbridge does not use email but accepted that there is no reference to Mr Bainbridge in the email of 10 September 2019.[10]
[9] ts 8-9, 21 January 2021.
[10] ts 14, 21 January 2021.
The respondent refutes the applicants' position and submits that the applicants did not exhaust (or start) the grievance procedure under rule 20. It is the respondent's position that Mr Nella's email of 10 September 2019 does not constitute written notice for the purposes of rule 20(1) for two reasons. First, such notice under rule 20(1) could only be given if the parties were unable to resolve their dispute within 14 days after the dispute had come to the attention of each of the parties and Mr Nella's email of 10 September 2020 was the first time the dispute was brought to the respondent's attention. Second, Mr Nella's email of 10 September 2020 failed to identify each of the parties to the dispute and is therefore not a valid notice under rule 20(1).
The respondent submits that a written notice is not a valid notice under rule 20(1) if it does not identify each party to the dispute. It is the respondent's position that the purpose of rules 20(3) and (4) and rule 21, are engaged by a notice under rule 20(1) and are to ensure that procedural fairness is afforded to each party to the dispute. Further, in the respondent's view, a written notice that does not identify the specific parties to the dispute is not a valid notice as to do so would render the provisions, intended to ensure procedural fairness to the parties, as unworkable.
The Tribunal respectively agrees with the respondent's position. The Tribunal concludes that Mr Nella's email of 10 September 2020 failed to identify each party (member) to the dispute and is therefore not a 'written notice' for the purposes of rule 20(1).

Grievance not progressed

The applicants submit that rules 20(2) to 20(5) and rule 21 were not invoked and as such the applicants' grievance was not progressed by the respondent. Because of this, the applicants submit that the persons identified in Mr Nella's email of 10 September 2019 were denied procedural fairness.
The respondent says the earliest the applicants could have started the grievance procedure under rule 20(1) was 25 September 2019. This is because, according to respondent, under rule 19, the parties are required to attempt to resolve the dispute among themselves within 14 days after the dispute has come to the attention of each party. Further, the respondent says that it is only after the 14 day period has expired that a party to the dispute can start the grievance procedure in rule 20, which as submitted earlier, could only have started on 25 September 2019. The respondent submits that the applicants did not exhaust (or start) the grievance procedure in rule 20 as they failed to identify the parties to the dispute in Mr Nella's email of 10 September 2019 which, as noted earlier, it was common ground that the email was the 'written notice' for the purposes of rule 20(1).
The Tribunal does not accept the applicants' position that the respondent failed to progress the grievance procedure. Rather, the Tribunal, accepts the respondent's position that the applicants did not exhaust (or start) the grievance procedure under rule 20. As the applicants' written notice (Mr Nella's email of 10 September 2019) failed to identify the 'parties to the dispute', in the Tribunal's view, the first step in starting the grievance procedure in rule 20 was not started.
Finally, a stated by the Tribunal[11] in Kelmscott Senior Football Club (Inc) and Western Australian Amateur Football League (Inc) [2018] WASAT 6, at [32], before an application can be made to the Tribunal under s 182(1) of the AI Act, on the facts, there must be a failure to resolve the dispute despite following the dispute resolution procedure in the rules of the incorporated association (which satisfies item 18 of Sch 1, Div 1 to the AI Act that the rules of an incorporated association is to provide a procedure for dealing with any disputes under or relating to the rules between members or between members and the incorporated association).
[11] Mr D Aitken, SM.
Because the Tribunal has found that the applicants have not exhausted (or started) the grievance procedure under rule 20 of the Constitution, the Tribunal concludes that it does not have jurisdiction under s 182(1) of the AI Act to determine the dispute.

Conclusion

In accordance with these reasons and the preliminary issue so framed, the Tribunal concludes that the dispute resolution process in the Division 3 of Part 4 of the Constitution was not followed, and in particular the applicants did not exhaust (or start) the grievance procedure under rule 20, therefore, the Tribunal does not have jurisdiction under s 182(1) of the AI Act to determine the dispute. The Tribunal will therefore dismiss the application.

Orders

The Tribunal orders:
1.The Tribunal has determined, as a preliminary issue, that it does not have jurisdiction to deal with the application under s 182 of the Associations Incorporation Act 2015 (WA).
2.The application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R PETRUCCI, MEMBER
3 FEBRUARY 2021