Wayde v Western Suburbs Leagues Club Limited - [2025] NSWSC 511

Supreme Court

New South Wales

Medium Neutral Citation: Wayde v Western Suburbs Leagues Club Limited [2025] NSWSC 511
Hearing dates: 24 March 2025
Date of orders: 24 March 2025
Decision date: 23 May 2025
Jurisdiction: Equity - Duty List
Before: Meek J
Decision:
Limited injunctive relief granted.

Catchwords:
ASSOCIATIONS AND CLUBS — Sporting Clubs — Dispute regarding affairs of rugby league “leagues club” — Plaintiff in late 2024 was a member and director of defendant club (Club) and was served with Notices of Charge and Suspension by the Disciplinary Committee (Committee) of the defendant —Disciplinary hearing found part of the alleged conduct was established and, pursuant to a penalty decision, the plaintiff’s membership of the Club was suspended for a minimum of 8 years — Urgent though somewhat belated relief sought in context of elections, including relevantly for directorship, due to commence within days of the Court being approached
INTERLOCUTORY INJUNCTION — Prima facie case — Plaintiff seeks to enforce his contractual rights against the Club as a member and director of the Club invoking the Court’s equitable jurisdiction for this purpose, and the Court’s jurisdiction with respect to civil matters arising under the Corporations Act conferred by by s 1337B(2) for orders under s 1322(2) — Plaintiff submits the proceedings of the Committee were infected by apprehended bias, alternatively, actual bias and also by a lack of quorum
INTERLOCUTORY INJUNCTION — Balance of convenience — Considerations in circumstances in which attenuated notice precluded Club from adducing evidence in respect of prima facie case
INTERLOCUTORY INJUNCTION — Undertaking as to Damages — Plaintiff in straitened circumstances — Limited undertaking proffered
INTERLOCUTORY INJUNCTION — Effect of Delay

Legislation Cited:
Corporations Act 2001 (Cth)
Registered Clubs Act 1976 (NSW)
Registered Clubs Regulation 2015 (NSW)

Cases Cited:
Agricultural Societies Council of NSW Ltd v Christie [2016] NSWCA 331; (2016) 340 ALR 560
Anderson v Lismore City Council [2011] NSWSC 1058; (2011) 185 LGERA 239
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1
Calvin v Carr [1979] 1 NSWLR 1
Claremont Petroleum NL v Cummings (1992) 110 ALR 239
Cordiant Communications (Aust) Pty Ltd v The Communications Group Holdings Pty Ltd [2005] NSWSC 1005; (2005) 55 ACSR 185
Cronulla Sutherland Leagues Club Ltd v Commissioner of Taxation (Cth) (1990) 23 FCR 82; (1990) 21 ATR 300
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Forbes v New South Wales Trotting Club Limited (1979) 143 CLR 242; [1979] HCA 27
Harris v Evans [2018] FCA 1856
In the matter of JC Jewels Pty Ltd ACN 628 983 773 [2024] NSWSC 532
In the matter of Old Newingtonians’ Union Incorporated [2024] NSWSC 619
Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20
Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440
Khan v Khan; Re Islamic Association Western Suburbs Sydney Inc [2015] NSWSC 638
Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
Macksville & District Hospital v Mayze (1987) 10 NSWLR 708
May v Walker [2023] NSWSC 1628
New South Wales Rugby League Limited v Australian Rugby League Commission Limited [2022] NSWSC 570
Northern Star Agriculture Pty Ltd v Morgan and Banks Developments Pty Ltd [2007] NSWSC 98
Organic Marketing Australia Pty Ltd v Woolworths Ltd [2011] FCA 279
Re Courtesy Real Estate (NSW) Pty Limited [2013] NSWSC 1666; (2013) 96 ACSR 593
Stollery v Greyhound Racing Control Board (1972) 128 CLR 509; [1972] HCA 53
Talacko v Talacko [2009] VSC 349
Varley v Varley [2006] NSWSC 1025

Texts Cited:
Dal Pont, G E, Equity and Trusts in Australia (6th ed, 2015, Lawbook Co, Thomson Reuters)
Encyclopaedic Australian Legal Dictionary (LexisNexis, online ed)
Gibson, Jack (with Ian Heads), The Last Word (ABC Books, 2003)
Heydon, JD, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed, 2014, LexisNexis)
Macquarie Dictionary, online ed
NRL, “About us: ARL commission” (Webpage) (see endnotes for accessible link)
NRL, “About us” (Webpage) (see endnotes for accessible link)
Young, Peter, Clyde Croft and Megan Smith, On Equity (2009, Thomson Reuters)

Category: Procedural rulings
Parties: Frederick Wayde (Plaintiff)
Western Suburbs Leagues Club Limited (Defendant)
Representation:
Counsel:
S Docker SC with J Rodgers (Plaintiff)
J C Hewitt SC (Defendant)
Solicitors:
Di Girolamo Lawyers (Plaintiff)
Clayton Utz (Defendant)

File Number(s): 2025/108995

JUDGMENT

Introduction

HIS HONOUR: Rugby league in Australia is a community-based sport with a rich history dating back to 1908. [1] Operating from 2012, the controlling body for rugby league in Australia is the Australian Rugby League Commission. It “has responsibilities for fostering, developing and funding the game from the junior to the elite levels” and organises various competitions including relevantly the National Rugby League (NRL) and the Women’s Premiership competitions, the State of Origin and Australian representative matches. [2]
1. NRL, “About us”, accessible at: See also: NRL, “About us: ARL commission”, accessible at:
2. NRL, “About us”, accessible at:
Generally, there is a close connection between "leagues clubs" such as the defendant (Club), which are social recreational bodies for the benefit of members and which derive income in various forms, and "football clubs" devoted to the pursuit of rugby league football, conducting matches under the auspices of the NRL. The precise connection between such clubs has varied both over time and within the NRL and its predecessors. Historically, leagues clubs provided much of the funding for football clubs, together with advertising and other financial sponsorships. [3]
3. See e.g. Cronulla Sutherland Leagues Club Ltd v Commissioner of Taxation (Cth) (1990) 23 FCR 82 per Lockhart J at 85; (1990) 21 ATR 300.
Sadly, the Club has been marked to some degree in recent years by what has been described as a toxic relationship at the Board level. [4]
4. T 15.15-.30 (Mr Cook).
Within football clubs, each aspect of the organisation impacts others and may well have wider effects. The great rugby league coach Jack Gibson famously said: [5]

To have the front office right is the whole thing in football. If you haven’t got that, your football team will crumble away. Nothing surer.
5. Jack Gibson (with Ian Heads), The Last Word (ABC Books, 2003) at 47.

Several variations of Gibson’s quote have been coined and attributed to him, including “Winning starts in the front office”. The truism of Gibson’s observation as to parts of a football club affecting other parts is no less true of the operations of leagues clubs such as the Club.
The full ramifications of the present dispute on the Club are presently hard to gauge and will remain to be seen.
On 24 March 2025, I heard an urgent application relating to the affairs of the Club arising out of a dispute between the plaintiff (Mr Wayde) and the Club as to whether Mr Wayde has been validly removed as being a director of the Club.
In circumstances in which an election was due to be held the following day, Mr Wayde sought to restrain the Club from certain action, being relevantly: [6]
6. Summons (interlocutory relief) [12], [13].

acting on the basis that, or representing that:

Mr Wayde’s membership of the Club has been suspended or cancelled (as detailed below), or

that he is no longer a director of the Club because his membership has been suspended or cancelled; and

holding an election, or appointing a person, to fill the position on the board of the Club.

On the hearing of the application, Mr S Docker SC appeared with Mr J Rodgers for Mr Wayde and Mr J Hewitt SC appeared for the Club.
I gave a limited form of injunction, though not as extensive as sought by Mr Wayde, to restrain the Club from holding an election to fill the position of what is described below as the General Member Director.
Given the proceedings were urgent and heard in the Duty List, the parties were agreeable to proceed on the basis that I would announce a decision and later give reasons for judgment. [7] These are my reasons for judgment.
7. T 33.5-.7.

Hearing

On 20 March 2025, Mr Docker SC approached me as Duty Judge seeking urgent leave to file in court and serve a summons seeking final relief against the Club. I made orders which permitted the serving of the summons (and evidentiary material) on solicitors acting for the Club, with the summons to be returnable before myself as Duty Judge on 24 March 2025. Mr Docker SC also sought leave to urgently serve a subpoena addressed to Simon Cook (Mr Cook), CEO and Secretary of the Club, [8] for him to give evidence on the return date. I permitted issue of that subpoena.
8. ND1 [12].
The final relief sought in the summons may be summarised as follows: [9]
9. POS [1].

declarations that the purported suspension and cancellation of Mr Wayde’s membership by the Club are void on the grounds of bias (actual and apprehended) and denial of procedural fairness;

orders declaring Mr Wayde’s suspension and cancellation invalid under s 1322(2) of the Corporations Act 2001 (Cth) (Corporations Act) because the Disciplinary Committee of the Club (Committee) that made the decisions had no quorum;

declarations that Mr Wayde’s position as director was not vacated; and

an injunction restraining the Club from interfering with Mr Wayde’s rights and functions as a director or member of the Club.

On 24 March 2025, on the hearing of the matter, Mr Wayde relied upon:

affidavits of himself sworn on 20 March 2025 (W1) (and exhibit FW-1 (FW)) and 24 March 2025 (W2); and

affidavits of Nicholas Anthony Di Girolamo (Mr Di Girolamo) sworn on 20 March 2025 (ND1) (and exhibit NAD-1 (NAD)) and 24 March 2025 (ND2); and

oral evidence from Mr Cook who was subpoenaed to give evidence.

The Club relied upon an affidavit of George Paul Pasas (Mr Pasas) sworn 24 March 2025 (GP) (and exhibit GPP-1 (GPP)).
The affidavit evidence adduced in the case of Mr Wayde was read without objection. [10] Whilst there was objection to part of the affidavit of Mr Pasas, I admitted it for the purposes of the interlocutory hearing. [11]
10. T 12-13.
11. T 17.17-18.1.
Mr Wayde’s counsel provided a written outline of submissions (POS) and both Mr Docker SC and Mr Hewitt SC made oral submissions.
I will cite the material in the proceedings, as I already have, by reference to the abbreviations I have given to the affidavits, exhibits, submissions and transcript (T). The Club has a Constitution [12] and unless specified otherwise, my reference to “rules” are the rules of that Constitution.
12. FW 1-29.
Having regard to the attenuated notice given to the Club of the application, Mr Hewitt SC indicated that the Club was not in a position where it was able to bring forward evidence to answer substantive issues raised by Mr Wayde. In those circumstances, he accepted, for the purpose of the injunctive relief contest, that there is a serious question to be tried as to the issues of procedural fairness and the declaration sought in prayer one of the summons (that the purported decisions of the Club by its Committee on 20 and 31 December 2024 (respectively Decision 1 and Decision 2) are void and of no effect. [13]
13. T 41.28-.36.
From the Club’s perspective, the first notice it had of the interlocutory application was 20 March 2025. [14] From Mr Wayde’s perspective, some notice of intention to challenge the decision was given in Mr Di Girolamo’s letter dated 31 January 2025 which outlined the basis for his complaint and foreshadowed that, unless there was compliance with requests to quash the decision and reinstate (relevantly) Mr Wayde, Mr Di Girolamo was instructed to commence proceedings to seek appropriate orders. [15]
14. T 41.28-.31.
15. T 52.36-53.6 citing in particular the letter at CB 110[82].
In those circumstances, counsel were agreed that the decisive battle as to whether interlocutory injunctive relief ought be given related to the question of balance of convenience. [16]

Parties

16. T 41.36-.39.

The Club

The Club is an unlisted and non-profit public company limited by guarantee registered under the Corporations Act. [17] The Club’s Constitution was last amended on 25 March 2023 and excludes the replaceable rules in the Corporations Act. [18] The Club may make by-laws not inconsistent with the Constitution and by-laws have been made and were last amended on 28 November 2023. [19]
17. POS [5].
18. POS [5], rule 5.
19. POS [5], rule 56(b); ND2 pp 22-29.
By force of the Corporations Act, the Club’s Constitution has effect as a contract (a) between the Club and each member; (b) between the Club and each director and company secretary; and (c) between a member and each other member, under which each person agrees to observe and perform the Constitution and rules so far as they apply to that person. [20]
20. POS [34]; Corporations Act s 140(1).
The Board cannot exercise its powers to do acts and things required to be done in General Meetings. The Board’s powers are also subject to the Corporations Act, the Registered Clubs Act 1976 (NSW) (Registered Clubs Act) and the Constitution. [21] The Board may delegate its powers to committees, [22] such as the Committee in this case (being the Disciplinary Committee of the Club).
21. POS [6], rule 56.
22. POS [6], rule 56(a).

Objects

The objects of the Club include: [23]

To provide for members and members' guests a social and sporting Club with all the usual facilities of a Club including residential and other accommodation liquid and other refreshment libraries and provision for sporting musical and educational activities and other social amenities.
23. FW 4, rule 10(a).

The objects also reveal purposes associated with the operation of football within the district covering the Western Suburbs of Sydney, including clubs such as the football club: [24]

(b) To assist generally in the promotion, conduct and propagation of Rugby League football in the Rugby League Football District of the Western Suburbs of Sydney or elsewhere and to provide or assist in the provision of training and conditioning and teaching facilities for football played in accordance with the rules of the New South Wales Rugby Football League.
…
(l) To render aid either financial or by other means to clubs or associations in the Rugby League Football District of the Western Suburbs of Sydney or elsewhere which clubs or associations are playing or conducting football played in accordance with the Rules of the New South Wales Rugby Football League.

24. FW 4, rule 10(b), (l).

Officers

The Board has 7 directors, [25] and is permitted, in the case of a casual vacancy, to appoint up to 2 additional persons as members of the Board. [26] The 7 directors of the Board are elected by the general body of Full members. [27] Of these 7 directors, 5 must be nominated by the debenture holders and the other 2 cannot be nominated for nor held by debenture holders. [28] Thus there is a distinction between Debenture Holder Directors and General Member Directors. [29] The directors are elected for three years on a rolling basis, so two or three of them come up for election every year. [30]
25. NAD p 82; POS [7], rule 50(a).
26. POS [7], rules 50(a), (b), along with s 30(1)(b1) of the Registered Clubs Act and reg 31 of the Registered Clubs Regulation 2015 (NSW).
27. POS [7], rule 54(a).
28. POS [7], rules 54(e) and (f).
29. POS [13].
30. T 3.16-.21 governed by the Registered Clubs Act. Schedule 4 of that Act contains what's called the "triennial rule".
There are a maximum of 20 debenture holders. [31] No member who is under suspension shall be elected or appointed as a director or a member of any committee of the Club. [32] A person’s office as director will be immediately vacated and a casual vacancy created if the person ceases to be a member entitled to hold office on the Board. [33] The Board has power to appoint an eligible person to the Board to fill a casual vacancy until the next AGM. [34]
31. POS [7], rule 53.
32. POS [8], rule 51(a).
33. POS [8], rule 67(i).
34. POS [8], rule 68.
By mid-July 2024 and for the period up to 31 October 2024, there were 7 directors of the club, being relevantly: [35]
35. NAD pp 56, 82; POS [9(a)], W1 [1.3], [21], [29]-[30].

Julie Romero, Chair and a debenture holder (Ms Romero);

Dennis Burgess, Deputy-Chair and a debenture holder (Mr Burgess);

Stephen Montgomery, a debenture holder (Mr Montgomery);

Vince Tropiano, a debenture holder (Mr Tropiano);

David Gilbert, a debenture holder (Mr Gilbert);

Anthony Andreacchio, former Chair, a non-debenture holder (Mr Andreacchio); and

Mr Wayde, a non-debenture holder.

By that time (mid-July 2024), the Board had split into 2 factions, Ms Romero, Mr Burgess, Mr Montgomery and Mr Tropiano in one faction and Mr Andreacchio, Mr Gilbert and Mr Wayde in the other. [36]
36. POS [11], W1 [30].
Mr Wayde was a General Member Director, having been elected to that position for a fifth time in March 2024 for a 3-year term, for which he was remunerated. [37] He also, at relevant times, appears to have been a director of the Western Suburbs District Rugby League Football Club Limited (referred to as Magpies). [38]
37. POS [13]-[14], W1 [16]-[17].
38. FW 30.
Publicly, the position regarding directorship of the Club has recently varied.
As at 10 March 2025, an ASIC search [39] revealed 5 directors of the Club, being relevantly Mr Burgess, Ms Romero, Mr Tropiano, Mr Montgomery and Brian Hare (appointment date unknown). [40] Mr Andreacchio, Mr Gilbert and Mr Wayde were all listed as being “previous” directors having ceased on 6 November 2024 (but recorded for ASIC purposes as ceasing on 16 January 2025), [41] consequent upon the lodgement of a Notice to Change to Company Details signed and lodged by Mr Cook on 16 January 2025. [42]
39. W2 p 8.
40. W2 p 8.
41. W2 pp 8-9.
42. NAD pp 97-98, W2 p 20.
On the other hand, as at 18 March 2025, Mr Rick Yabsley (Mr Yabsley) and Mr Francesco Primerano (Mr Primerano) are shown on the Club’s website as having been recently appointed to the Board. [43]
43. ND1 [13], NAD 94-96.

Committee

On 16 July 2024, the Committee passed a resolution for Mr Gilbert not to preside (or relevantly sit) on the Committee dealing with charges (see below) against Mr Wayde (the resolution noting) because he is also the subject of disclosures and complaints and has a clear material personal interest in the charges against Mr Wayde. [44]
44. FW 53[18].
Mr Wayde asserts that, immediately prior to 6 November 2024, he had never received a complaint about his conduct as a director of the Club. [45]
45. POS [15], W1[18].
As at 6 November 2024, the directors of the Club remained as stated above and the members of the Committee were Ms Romero, Mr Montgomery, Mr Burgess, Mr Gilbert and Mr Cook. [46] Mr Gilbert, as noted, was precluded from dealing with the claims against Mr Wayde. Mr Cook was an ex officio member by reason of his position as CEO. [47] However, Mr Cook was of the view that he was not on the Committee, stating he had a management representative, being Mark Thatcher. [48] Ms Romero was the de facto chair of the Committee. [49]
46. FW 53[14], cf T 3-4.
47. FW 53[14].
48. T 14.30-.38.
49. FW 53[14].
By arrangement and in circumstances revealed below, Mr Cook had agreed with Mr Montgomery to take some time away from his position (a form of sabbatical). The agreed time was from 1 July 2024 to 31 December 2024. However, it started two weeks earlier and he returned three months earlier than agreed (i.e. returning on the first Monday in October 2024). [50]
50. T 16.12-.25.

Mr Cook became aware of the disciplinary charges against Mr Wayde on 6 November 2024. He did not have any role in the charges being laid nor in the disciplinary process thereafter. [51]
51. T 16.27-.44.
Accordingly, for the purposes of the contested decisions, the members of the Committee comprised Ms Romero, Mr Montgomery and Mr Burgess. [52] Mr Hewitt SC appeared to accept that it was a reasonable inference that, as at 6 November 2024, the Committee is comprised of those persons. [53]
52. FW 53[19].
53. T 45.21-.27.

Membership

The Constitution provides for certain types of members, including, relevantly, ordinary members (including general members, social members and junior sporting members), life members, honorary members, temporary members and provisional members. [54]
54. Rules 15-20, 24-30.
The rights of members are addressed in the Constitution in a number of places but, in particular, in rules 21-23.

Subsidiary companies and associated clubs

The Club appears to have 3 subsidiary companies associated with it, being Western Suburbs District Rugby League Football Club Limited, Wests Magpies Pty Limited, and Wests Tigers Rugby League Football Pty Ltd. [55]
55. NAD pp 86-87.
The Club appears to be branded as the Holman Barnes Group [56] (or at least part of that Group), which also encompasses three particular clubs designated as Wests Ashfield, Croydon Sports and Markets Club. [57]
56. ND1 [9], NAD p 53.
57. NAD p 33.
Despite the portrayal of close association of the Club with the subsidiaries and other clubs, including consolidation of financial accounts, [58] the exact interaction of the Club with all these entities is not fully explained in the evidence. However, I do not suggest that for the purposes of the hearing it was necessary for such an explanation to be given.
58. NAD p 43.

Disciplinary rules

Various provisions of the Constitution bear upon disciplinary provisions. However, specific provisions regarding discipline referenced during the hearing are set out in rule 46, which is as follows: [59]
59. FW 12-13.

46. If a member refuses or neglects to comply with any of the provisions of this Constitution or the By-laws thereof or be in the opinion of the Board or the Board's duly constituted disciplinary committee (as referred to in paragraph (g) below), guilty of any conduct prejudicial to the interests of the Club or be in the opinion of the Board or the disciplinary committee, guilty of conduct which is unbecoming of a member or which shall render the member unfit for membership, the Board or the disciplinary committee shall have power to reprimand, suspend from all privileges of membership for such period as it considers fit, expel or accept the resignation of such member and to make a notation to that effect against the person's name in the Register of members, provided that:
(a) Such member shall be notified of any charge against the member pursuant to this Rule by notice in writing to the member at least fourteen (14) clear days before the meeting of the Board or disciplinary committee at which such charge is to be heard. The notice shall set out the facts, matters and circumstances giving rise to the charge. This notice may be issued by the Secretary or the Secretary's authorised delegate.
(b) The member charged shall be entitled to attend the hearing for the purpose of answering the charge or may answer the charge in writing, and is entitled to call witnesses in his or her defence.
(c) The voting by the members of the Board or disciplinary committee present at such meeting shall be by secret ballot if requested by any member of the Board or disciplinary committee, and no resolution by the Board or disciplinary committee to reprimand, suspend or expel a member shall be deemed to be passed unless at least two-thirds of the members of the Board or disciplinary committee present vote in favour of such resolution.
(d) After the Board or disciplinary committee has considered all the evidence put against the member it shall come to a decision as to the member's guilt or innocence in relation to the charge: Once it has decided the issue of guilt or innocence, the Board or disciplinary committee shall inform the member prior to considering any penalty.
(e) The member charged shall be given a further opportunity to address the Board or disciplinary committee in relation to the penalty appropriate to the charge of which the member has been found guilty.
(f) If the member fails to attend such meeting the charge may be heard and dealt with and the Board or disciplinary committee may decide on the evidence before it, the member's absence notwithstanding, but having regard to any representations made to it in writing by the member charged.
(g) The powers of the Board under this Rule may be exercised by a disciplinary committee appointed by the Board and comprising not less than 3 members of the Board. A quorum of the disciplinary committee shall be 3 members of the Board.
(h) Any decision of the Board or disciplinary committee at such hearing or any adjournment thereof is final and the Board or disciplinary committee is not required to assign any reason for its decision.
(i) In the event that a notice of charge is issued to a member pursuant to paragraph (a) of this Rule, the Board or disciplinary committee, or the Secretary or the Secretary's authorised delegate, has the power to immediately suspend that member from all privileges of membership until the charge is heard and determined. Notice of such suspension must be notified in writing to that member and may be included in the notice of charge referred to in paragraph (a) of this Rule.
(j) The Secretary, or in the Secretary's absence his or her delegate, shall not vote but may assist the Board or disciplinary committee in its deliberations.

The prefacing words and other provisions of rule 46 admit of the possibility that the Board itself as a whole may deal with disciplinary matters as distinct from a disciplinary committee of the Board. However, there is no suggestion that, in relation to the proceedings involving Mr Wayde, the Board acted other than by its Committee. [60]
60. T 10.3-.18.

Disputed conduct and hearings

The charges and decisions the subject of the Court application related only to Mr Wayde. However, by way of background (though not directly relevant to the determination of the application), there were separate charges and hearings in relation to Mr Gilbert and Mr Andreacchio. [61]
61. T 4.10-.11, 4.49-5.4.

Suspension of Mr Wayde

On 6 November 2024, Ms Romero, “by order of the Company’s disciplinary committee under Rule 46 of the Constitution” gave Mr Wayde, without prior notice to him:

a Notice of Disciplinary Charge (Charge Notice); [62] and

a Notice of Suspension (Suspension Notice) pursuant to rule 46(i) of the Constitution until the charges were heard and determined. [63]
62. POS [16], W1 [33], FW 30-39.
63. POS [16], W1 [33], FW 40-41.

The Suspension Notice asserted that, as a suspended member, Mr Wayde ceased to be a director, and his office is immediately vacated. [64]
64. POS [17], W1 [33], FW 40-41.
Further, consequent upon the suspension:

Mr Wayde’s remuneration as a director was terminated on 6 November 2024 with his monthly payment on 12 or 13 November 2024 being for the period to 6 November 2024; [65] and

Mr Wayde was also immediately barred from the Club’s premises. [66]
65. POS [17], W1 [60].
66. POS [18], W1 [35].

Charges

The Charge Notice specified 3 charges (Charges) against Mr Wayde, namely, it was alleged that he: [67]

refused or neglected to comply with the Constitution and by-laws (Charge 1); and/or

he had engaged in conduct prejudicial to the interests of the Club (Charge 2); and/or

had engaged in conduct which is unbecoming of a member (Charge 3).
67. POS [21], FW 30.

The Charge Notice provided 6 particulars.
The first 3 particulars stated that at all material times Mr Wayde was: (1) a member of the Club; (2) a director of the Club; and (3) a director of the Magpies. [68]
68. FW 30.
The fourth to sixth particulars were as follows: [69]
69. FW 30-31.

4. You engaged in inappropriate and unreasonable conduct as set out in Schedule 1.
5. Your conduct was in breach of your obligations in the Western Suburbs leagues Club Directors Handbook, including:
a. As a Director, in pursuing the objectives of the Club, your obligations to:
i. set the right tone and culture of the Club (2.iii); and
ii. behave with the highest standards of ethics (2.iv).

b. As a Board member, your obligations to:
i. promote ethical and responsible decision-making. including:
A. acting in the best interests of the Club;
B. acting with high standards of personal and professional integrity; (3.5(a)(i)-(ii))

ii. promoting Board solidarity, including in the event of disagreement, making every effort to resolve the issues and avoid dissension (7.3); and
iii. maintain confidentiality in matters discussed at Board meetings (10.2).

6. Your conduct was in breach of your obligations in the Club By-Laws, including:
a. intimidating, harassing or bullying other persons on Club premises (5d); and
b. conducting yourself in an offensive manner which is prejudicial to the good order of the Club, or to the comfort or welfare of any member or use any offensive language (5e).

The Charge Notice invited Mr Wayde to provide any evidence and/or submissions to the Committee by 5 December 2024 and noted that the Committee would hear the Charges at 6 pm on 12 December 2024 in the “Club’s Board Room”. [70]
70. FW 31.
Schedule 1 specified “Particulars allege conduct”, stating:

In or around 2020 - 2024, you engaged in unreasonable conduct towards other Holman Sames Group (HBG) Board members and/or their spouses and/or Wests Magpie Board members, Including:
….

Various particulars were specified over two pages. I will not reproduce all the content. The alleged unreasonable conduct was divided into 11 paragraphs (numbered 1, 2, 2.1, 3, 3.1, 3.2, 3.3, 3.4, 3.5, 3.6 and 4), many of which contained subparagraphs. Further, there were 2 attachments (referenced in paragraphs 3.5. and 4). [71]
71. POS [22(b)] FW 33-35.
Broadly speaking, the alleged conduct consisted of things Mr Wayde was alleged to have said or done in meetings or social settings. [72]
72. POS [22(b)]; T 25.21-.23.
Relevantly, the particulars of the charges expressly assert conduct by Mr Wayde against Mr Burgess (3.1, 3.3, 3.4, 3.5. 4, Attachment 1) and Mr Burgess’ wife (3.4). Particular 3.2(a) also assert conduct against directors generally, one of whom is Mr Burgess.
Nothing in Schedule 1 identified whether any of the alleged conduct supported Charge 1, Charge 2 or Charge 3. [73]

First hearing and Decision 1 (12, 20 December 2024)

73. POS [22(b)].

On 11 December 2024, the day before the scheduled hearing, the Club’s solicitors, Clayton Utz, sent an email letter to Mr Marsh (a solicitor representing Mr Wayde) attaching a report by a firm, Workdynamic, [74] that 6 contained factual findings arising from its investigation which were said to be relevant to the upcoming hearing. The letter also stated that the investigation was being treated as a report under the Club’s Whistleblower Policy. [75] The email concluded by indicating that the Committee had elected to withdraw charge “4.1” against Mr Wayde. [76] It is not entirely clear to me what was meant by that. There is no “Charge 4.1”, nor a “Particular 4.1”, nor a “Paragraph 4.1” in Schedule 1. [77]
74. FW 42.
75. POS [25], W1 [44], FW 42-50.
76. FW 42.
77. FW 30-35.
On 12 December 2024, Mr Wayde attended the hearing with Mr Marsh. Decision 1 records the Committee as consisting of Ms Romero, Mr Montgomery and Mr Burgess, with Mr Montgomery presiding as the “Chair”. [78] Mr Montgomery read out the Charges and Mr Wayde denied each one. [79]
78. FW 53[19], 54[30].
79. POS [26], W1 [47].
In respect of the hearing, Mr Docker SC, based on Mr Wayde’s evidence, contended the following occurred:

When Mr Montgomery asked Mr Marsh to call Mr Wayde as a witness, Mr Marsh refused until the Club’s witnesses were called, specifically objected to Mr Burgess being on the Disciplinary Committee on the grounds he was both a complainant and a witness and objected to the whole committee on the basis they were all conflicted as witnesses and there could not be a fair hearing. [80]
After an adjournment, Mr Montgomery informed Mr Marsh that the Club would not be calling any witnesses and Mr Burgess will remain in the room but not participate. [81]
Mr Marsh then objected on the basis there was no quorum. This objection was rejected by Mr Montgomery. Mr Marsh indicated that because the Club was calling no witnesses, he would not call Mr Wayde, and made submissions as to why the charges should not be substantiated. [82]
80. POS [27], W1 [48].
81. POS [28], W1 [51].
82. POS [29], W1 [52], [53].

It is clear that the Committee relied upon and took into account a schedule of findings in the report of Workdynamic, [83] and that no witnesses were called by the Club. [84] Mr Docker SC observes that this was the context in which Mr Wayde did not give evidence. [85] Thus, Mr Docker SC contended, and it seems undisputed, that the only “evidence” before the Committee was the Schedule of the investigator’s findings. [86]
83. FW 59 [41]-[48].
84. W1 [51]; T 27.12-.15.
85. T 27.15.
86. FW [56]; T 31.1-.9.
On 20 December 2024, the Committee handed down Decision 1. [87] The record reveals, regarding Mr Burgess’ participation, that: [88]

33. We note that whilst Mr Burgess was present with the committee at the hearing for the purposes of the quorum, he did not participate in any deliberation nor was he present with the other committee members in relation to the assessment of any allegation against Mr Wayde.
34. Our decision has been reached as a result of a neutral evaluation of the material before us and Mr Burgess did not participate in that evaluation. As noted, he was not present during the deliberations which resulted in the decision or in making a recommendation with respect to the decision be made. We note though that he was present {but did not vote) when the disciplinary committee then met to duly pass a motion to accept and approve this decision.
87. POS [30], W1 [54], FW 51-65.
88. FW 54-55 [33]-[34].

Seemingly, the “Consideration” of the Committee of the allegations were limited to the matters set out in Schedule 1 [89] (which, it will be recalled, expressly related to only Particular 4 of the 6 particulars).
89. FW 56[60]-64[98]; T 31.15-32.7.
The Committee found allegations 1, 2, 3.3, 3.5 and 4 [of Schedule 1] were substantiated and, as a result, all 3 Charges were found to be proven. [90] No separate findings were made for Charge 1, Charge 2 or Charge 3.
90. POS [30], FW 64; T 26.17-.18.

Second hearing and Decision 2 (27, 31 December 2024)

On 27 December 2024, Mr Marsh appeared before the Committee for the penalty hearing and made submissions on behalf of Mr Wayde. [91] Those submissions included submissions that the Committee was not adequately constituted, which were rejected. [92]
91. POS [31], W1 [55].
92. FW 68[13]-69[18]; T 33.44-.48.
On 31 December 2024, the Committee handed down Decision 2 on penalty, [93] suspending Mr Wayde’s membership of the Club for a minimum of 8 years. [94]
93. POS [32], W1 [56], FW 66-73.
94. POS [33], FW 73.
On 18 February 2024, an Election Notice was issued for four positions on the Board, being relevantly 2 members nominated by Debenture Holders (to hold office until the conclusion of the 2028 AGM) and two members nominated by non-debenture holders (created by casual vacancies on the Board arising by dint of Mr Wayde and Mr Andreacchio ceasing to hold office, with the successful candidates to hold office until the conclusion of the 2027 AGM). [95]
95. FW 74.
For the election, Mr Burgess and Michael (Mick) Liubinskas, candidates for the two Debenture Holder positions (held by Mr Burgess and Mr Gilbert), were nominated and accepted to fill those roles by resolutions made before the AGM [96] (due 27 March 2025). [97] There are proposed resolutions before the AGM for the election of Mr Burgess and Mr Liubinskas as Debenture Holder directors to be confirmed. [98]
96. FW 80.
97. FW 74 and especially FW 77-81; NAD 122-126.
98. FW 80; NAD 125; T 5.11-.24.
The ballot for the elections was to be conducted between the hours of 12 noon to 8pm respectively on each of Tuesday, 25 March 2025 and Wednesday, 26 March 2025. [99]

Legal principles regarding interlocutory injunctive relief

99. FW 75.

There was no relevant debate regarding the principles applicable to interlocutory injunctive relief. Mr Docker SC cited the exposition principles of McGrath J in May v Walker [2023] NSWSC 1628 at [130]-[142] per McGrath J; see also In the matter of Old Newingtonians’ Union Incorporated [2024] NSWSC 619 (Old Newingtonians’ Union) at [26] per McGrath J. Mr Hewitt SC did not venture debate regarding the applicable principles.
Precisely what is meant by an ‘injunction’ varies according to context. [100] Injunctive relief arises from various sources and takes various forms. Its most frequent use is as a form of a restraining order but it may take the form of a mandatory order directing action to be taken. [101] In a practical sense, its use is often employed in circumstances where other forms of relief, such as compensation by damages are assessed to be inadequate to address the circumstances of the matter. [102]
100. Peter Young, Clyde Croft and Megan Smith, On Equity (2009, Thomson Reuters) (On Equity) at [16.30] p 1016.
101. On Equity at [16.30] p 1016.
102. On Equity at [16.60] p 1018.
An injunction is ‘interlocutory’ (from the Latin word interloqui meaning “speaking between” two points) when it operates from the time of the application for provisional relief until the final determination of the proceedings. It is often expressed as being made “pending further order” and is distinguished from interim injunction, which is usually of much shorter duration, expiring at a fixed date and time set out in the order [103] which may in some cases be overnight or days.
103. On Equity at [16.310] p 1038.
Conventionally, an injunctive purpose is said to preserve the status quo until the hearing of the main action. [104] On a broader view of matters, courts, when approached for urgent injunctive relief, have choices amongst remedies which involve a type of case management decision-making. Options [105] include whether (a) it is better for the status quo to be preserved; or (b) the parties will be adequately protected by keeping full and open accounts of the disputed dealings; or (c) to accept undertakings to the Court; or (d) to fix an early hearing and in that way minimise damages that will flow if the plaintiff is correct in its claims.
104. JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed, 2014, LexisNexis) (MGL) at [21-340] p 759.
105. On Equity at [16.330] p 1039.
The requirements for establishing interlocutory relief are variously expressed in caselaw and texts. Broadly speaking, it has been said that such relief involves considering the following matters: [106]
106. On Equity at [16.340] p 1048.

whether there is a prima facie case or a serious question to be tried;

whether the balance of convenience favours the grant rather than the refusal of the injunction;

whether the plaintiff will suffer irreparable injury for which damages are not inadequate remedy if the injunction is not granted; and

whether there are any discretionary factors, such as a lack of clean hands, which will disentitle the plaintiff to relief.

The notion of a “prima facie case” or “serious question to be tried” refers to an assessment of whether the underlying elements of the action or equity or other right contended for will be established on a final hearing. [107] However, the exact nature of what is required has been expressed by courts including the High Court in different ways. [108]
107. MGL at [21-350] p 761.
108. MGL at [21-350] p 761; On Equity at [16.350] p 1040; G E Dal Pont, Equity and Trusts in Australia (6th ed, 2015, Lawbook Co, Thomson Reuters) pp 986-990.

In a passage which has been regularly referred to, Gummow and Hayne JJ in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 (O’Neill) at [65]-[72] in respect of applications for interlocutory injunctions, cited an extract from Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 1 at 622-623 per Kitto, Taylor, Menzies and Owen JJ; [1968] HCA addressing two main inquiries as follows:

“The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.”
By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:
“How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.”

Gleeson CJ and Crennan J in O’Neill at [19] described the approach to interlocutory injunctions in terms of “organising principles” and referenced the decision of Doyle CJ in Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440 at 442-443, stating (omitting footnotes):

…As Doyle CJ said in the last-mentioned case, in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the Court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd should be followed.

Each of Mr Docker SC [109] and Mr Hewitt SC [110] used the terminology of “serious question to be tried”. Neither suggested in the circumstances of this case that any material difference depended upon use of that expression rather than a “prima facie case”.
109. T 10.47, 34.12, 36.46-37.3.
110. T 41.34-.35.
The cogency of the matters bearing upon injunctive relief obviously vary in each case and their relative strength is considered in the overall assessment of whether relief ought to be granted or not: e.g. Northern Star Agriculture Pty Ltd v Morgan and Banks Developments Pty Ltd [2007] NSWSC 98 per Young CJ in Eq at [20]; Government of Russian Federation v Commonwealth of Australia [2023] HCA 20; (2023) 410 ALR 223; (2023) 97 ALJR 545 per Jagot at [28].
That assessment is not a matter of precise calculation but directed to determining what course is best calculated to achieve justice between the parties in the circumstances of the particular case, pending the final hearing. This was expressed by McLelland J in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535C-E as follows:

Where a plaintiff's entitlement to ultimate relief is uncertain, the Court, in deciding to grant or refuse an interlocutory injunction, must consider what course is best calculated to achieve justice between the parties in the circumstances of the particular case, pending the resolution of the uncertainty, bearing in mind the consequences to the defendant of the grant of an injunction in support of relief to which the plaintiff may ultimately be held not to be entitled, and the consequences to the plaintiff of the refusal of an injunction in support of relief to which the plaintiff may ultimately be held to be entitled: see, eg, Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208 at 216; A v Hayden (No 1)(1984) 59 ALJR 1 at 4-5; 56 ALR 73 at 79.

Mr Wayde’s contentions

Mr Docker SC outlined [111] that Mr Wayde seeks to enforce his contractual rights against the Club as a member and director of the Club. To this end, he seeks to invoke the Court’s equitable jurisdiction and the Court’s jurisdiction with respect to civil matters arising under the Corporations Act conferred by s 1337B(2) [112] of the Corporations Act in so far as he seeks orders under s 1322(2). [113] Mr Docker SC submits Mr Wayde has a strongly arguable case, and that it is relevant to the balance of convenience. [114]
111. POS [35] citing Agricultural Societies Council of NSW Ltd v Christie (2016) 340 ALR 560; [2016] NSWCA 331 (Christie) at [29]-[53] per Meagher JA (Ward and Leeming JJA agreeing at [83] and [84] respectively).
112. The POS references “s 1377B(2)”, though I infer that was intended to be a reference to s 1337B(2).
113. POS [36] noting s 1322(2) refers to “the Court”, which is defined to include this Court under s 58AA(1).
114. POS [39], [87].

Prima facie case

In summary, the plaintiff’s submission is that there is a “serious question to be tried” in that the proceedings of the Committee (from the time of the Notice of Charge and Notice of Suspension until the conclusion of Decision 2) were infected by apprehended bias, or alternatively, actual bias and also by a lack of quorum (resulting in a substantive injustice within the meaning of s 1322(2) of the Corporations Act). [115]

Alleged apprehended bias

115. POS [38]; T 6.6-.8, 6.17-.22, 10.47-.49.

Mr Docker SC contends that:

the apprehended bias rule applies to the Committee hearing and was not ousted; [116]

the Club breached the Constitution by allowing Mr Burgess to participate in the proceedings by the Committee in circumstances where he had a personal interest in the proceeding as a prosecutor and accuser; [117] and

a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made against Mr Wayde because of this interest. [118]
116. POS [41] citing Christie at [54]-[59]; T 8.29-.31, 34.15-.24.
117. POS [40] citing Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 (Isbester) at [20] per Kiefel, Bell, Keane and Nettle JJ; T 6.24-.36.
118. Ibid.

Specifically, he contends that there is a two-step approach to determining the existence of possible bias. [119] The first step is identifying what is said might lead a decision-maker to decide a case other than on its legal and factual merits (including the decision-maker’s interest if that is the basis for the alleged apprehension of bias). The second step is to articulate the logical connection between the interest and the feared deviation from the course of deciding the case on its merits. [120]
119. POS [42].
120. POS [42] citing Isbester at [21], where the plurality referred with approval to Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [8]; T 34.26-.29.
The first step, Mr Docker SC submits, is established by reference to Mr Burgess’ interest as an accuser, prosecutor or other moving party, regarding conduct alleged in the Particulars 3.1, 3.2(a), 3.3, 3.4, 3.5 and 4 against Mr Wayde. [121] Further, he submits that Mr Burgess’ personal involvement in the alleged facts as the alleged victim added another dimension to his level of involvement as a prosecutor or accuser. [122]
121. POS [43].
122. POS [44] citing Isbester at [45] per Kiefel, Bell, Keane and Nettle JJ; T 34.31-.36.
The second step, Mr Docker SC submits, is established by a conflict-of-interest amounting to “incompatibility” in Mr Burgess’s role as the victim of the alleged conduct and his prosecutorial role such that “disqualification would seem to be the only possible outcome”. [123]
123. POS [45] citing Isbester at [34], [47]; T 34.38-.41.
Further, Mr Docker SC submits there was a breach of the apprehended bias rule by the Committee [124] in the following respects: [125]
124. POS [52].
125. POS [47].

(a) on 16 July 2024, passed a resolution that Mr Gilbert is not to preside on the Disciplinary Committee dealing with the Charges against Mr Wayde;
(b) on 6 November 2024, decided to lay the Charges and issued the Notice of Disciplinary Charges;
(c) on 6 November 2024, determined Mr Wayde was suspended pending the determination of the Charges and issued the Notice of Suspension;
(d) on 11 December 2024, via its solicitors, sent the report and findings of Workdynamics to Mr Marsh;
(e) on 12 December 2024, conducted the hearing of the Charges against Mr Wayde. The hearing commenced with Mr Burgess’ full involvement but, during the hearing, the Disciplinary Committee resolved that Mr Burgess had an (unidentified) interest in the Charges against Mr Wayde that should not disqualify him from being present at the hearing but disqualified him from voting: Decision 1 at [28]-[29], p 54 FW-1;
(f) on 20 December 2024, handed down Decision 1, in which it was satisfied all 3 Charges against him were proven as a consequence of finding that allegations 1, 2, 3.3, 3.5 and 4 were substantiated, and fixed the penalty hearing for 27 December 2024: Decision 1 at [99]-[104], pp 64-65 FW-1. Decision 1 at [33]- [34] records that Mr Burgess was present at the hearing and when the Disciplinary Committee met to duly pass a motion to accept and approve Decision 1, but not during its deliberations: pp 54-55 FW-1;
(g) on 27 December 2024, conducted the penalty hearing, with Mr Burgess present;
(h) on 31 December 2024, handed down Decision 2, where at [16] it found that its previous resolution concerning Mr Burgess’ involvement satisfied the requirements of Rule 65 of the Constitution and rejected Mr Marsh’s submissions that the resolution failed to satisfy the Constitution because the Disciplinary Committee failed to identify the nature and extent of Mr Burgess’ interest or, if Mr Burgess was not part of the committee, the requirement of 3 members of the Board was not satisfied: at [14]-[17], pp 68-69 FW-1.

Mr Docker SC emphasised that Mr Burgess participated fully in the Committee’s processes up to and including the hearing on 12 December 2024, was present during the hearing and when the Committee “met to duly pass a motion to accept and approve this decision,” and was also present for the penalty hearing and the decision on penalty. [126]
126. POS [48]; T 35.1-.7.
Mr Docker SC says the mere presence of an accuser as a member of a tribunal is contrary to the rules of natural justice [127] and thus the presence of Mr Burgess at some stages (even if non-voting) impermissibly impacted the other stages. [128]

Alleged lack of quorum

127. POS [49] citing Stollery v Greyhound Racing Control Board (1972) 128 CLR 509; [1972] HCA 53; Isbester at [36]-[37]; T 6.37-.43, 35.9-.20.

128. POS [50]-[51].

A quorum of the Committee is 3 members of the Board. [129] Mr Docker SC contends that:
129. Rule 46(g).

rule 46(c) (which deals with voting) is subject to there being a quorum, such that if there is no quorum no resolution can be passed; [130]

there was no effective quorum because there were only two voting members of the Committee who were relevantly both available and able to participate in the proceedings relating to Mr Wayde, being Ms Romero and Mr Montgomery; [131]

Mr Burgess was precluded from participating by reason of apprehended bias; and

the proper construction of the Constitution did not permit Mr Burgess to participate.
130. T 21.22-.24.
131. T 8.33-9.46.

I pause at this point simply to note that Mr Hewitt SC contended that Mr Burgess was present for the purposes of rule 46(c) and that the two members who did vote (being Ms Romero and Mr Montgomery) were sufficient to satisfy the requirements of rule 46(c). [132]
132. T 23.15-.40.
Mr Docker SC made submissions as to the impact of rules 65(d)-(e) of the Constitution on the resolution of the Committee on 12 December 2024 to allow Mr Burgess to continue to be present at the hearing. [133]
133. POS [53]-[61]; T 35.22-36.44.
Decision 1 under the heading “The Disciplinary Committee” references rules 65(d) and (e) as follows: [134]
134. FW 53.

15 . The disciplinary committee is cognisant of clause 6S(d) of the Constitution which provides that:
(d) A Director who has a material personal interest in a matter that is being considered at a meeting of the Board:
(i) must not vote on the matter ... and
(ii) must not be present while the matter ... is being considered at the meeting.
16. This clause applies also to meetings of the disciplinary committee pursuant to clause 56(a) of the Constitution. It is noted that under clause 65(e) of the Constitution, the disciplinary committee has a discretion to pass a resolution that they are satisfied that the material personal interest of a director should not disqualify the Director from voting or being present.
17. Mr David Gilbert is a member of the committee, however, as will be apparent from the Notice, Mr Gilbert is also the subject of disclosures and complaints and has a clear material personal interest in the consideration of the Notice. Accordingly, it is not appropriate that he preside in this and related matters.
18. On 16 July 2024 the committee passed a resolution that Mr Gilbert is not to preside on the Committee dealing with these matters.
19. A quorum of members of the disciplinary committee at all times has comprised Ms Romero, Mr Stephen Montgomery and Mr Dennis Burgess.

Further, under the heading “Committee resolutions”, Decision 1 cites rule 65(e) as follows: [135]

29 A motion that the disciplinary committee was satisfied that the interest of Mr Burgess should not disqualify him from being present at the hearing but disqualifying Mr Burgess from voting was duly passed by the members present and entitled to vote at the hearing-this accorded with clause 65(e) of the Constitution.
135. FW 54 [29].

It appears that in relation to the first hearing Ms Romero was unwilling to act as Chair, as was Mr Burgess, and a motion was proposed to elect Mr Montgomery as Chair which was passed. [136]
136. FW 54 [30].
Decision 2 under the heading “Submissions as to the Constitution of the Committee” cites rule 65 as follows: [137]

15. Mr Marsh further submitted that after the other Committee members had made the determination that some of the Allegations had been established, Mr Burgess was involved when the committee duly passed a motion to accept and approve the decision. He submitted that it would be unfair to Mr Wayde for Mr Burgess to be part of the Committee. On the other hand, if Mr Burgess was not part of the Committee, Mr Marsh submitted the requirement that the Committee comprise at least three members of the board has not been satisfied.
16. We do not agree with that submission. We are satisfied that all necessary disclosures have been made and that the requirements of clause 65 of the Club's Constitution have been satisfied.
137. FW 54.

Mr Docker SC submitted in essence:

the existence of rule 65(d)-(e) of the Constitution does not negative the application of the apprehended bias rule because the rule does not apply to the Committee and, even if it does apply, it does not expressly negative the apprehended bias rule and there is no necessary implication to that effect; [138]

there was no quorum when the resolution was purportedly passed and so the rule was not negatived, [139] specifically, contending that if Mr Burgess could not vote on the resolution that he be permitted to remain in the hearing, he did not count towards the quorum; [140] and

the resolution did not satisfy the requirements of rule 65(e)(i) because it did not identify “the nature and extent of the Directors interest in the matter and its relation to the affairs of the Club”, accordingly, the resolution did not have the effect that rule 65(d) did not apply and, therefore, rule 65(d) continued to require that Mr Burgess must not vote or be present. [141]
138. POS [54]-[56].
139. POS [57]-[58].
140. POS [59] referencing inter alia Claremont Petroleum NL v Cummings (1992) 110 ALR 239 at 260 per Wilcox J citing Yuill v Greymouth Point Elizabeth Railway Co [1904] 1 Ch 32 at 34; see further T 37.3-.13.
141. POS [60].

Mr Docker SC further contended that for the purposes of s 1322(2) of the Corporations Act, the absence of a quorum caused substantial injustice [142] by reason of the fact that a different result may have been produced had the procedural irregularity not occurred [143] and because Club members were deprived of the right to have disciplinary proceedings against its duly elected director determined by a Committee or the Board in accordance with the Constitution. [144]
142. POS [64]-[65]; T 37.15-.34.
143. POS [66] citing Cordiant Communications (Aust) Pty Ltd v The Communications Group Holdings Pty Ltd [2005] NSWSC 1005; (2005) 55 ACSR 185 at [98]; Khan v Khan; Re Islamic Association Western Suburbs Sydney Inc [2015] NSWSC 638 (Khan) at [84] per Black J.
144. POS [68] citing Khan at [85]; T 37.39-38.1.
Mr Hewitt SC did not develop any particular arguments regarding the operation of rule 65 nor the provisions of s 1322 of the Corporations Act.

Alleged actual bias

Mr Docker SC further asserted that there was a prima facie case of prejudgment by the Committee, established by evidence of Mr Cook. [145]
145. POS [63] read with [62]; T 36.49-37.1.
Mr Cook was called pursuant to the subpoena and gave evidence [146] relevantly as follows. On 28 March 2024, he attended a memorial service for the late Colin Burgess (brother of Mr Burgess). Mr Cook approached Mr Montgomery and spoke with him about toxicity on the board and contemplated that he (Mr Cook) would take a sabbatical, seemingly having regard to that toxic environment. Mr Montgomery agreed that it would be a good time for Mr Cook to do that. [147]
146. T 14.1-16.44.
147. T 15.1-.30.
Mr Cook indicated that, at this point, Mr Montgomery said that “things would be cleaned up” when he was to return, specifically that “Rick and Tony had done things that would mean that he would be able to get rid of them”. [148] Mr Cook asked him what he meant by that to which Mr Montgomery indicated that “I didn’t need to know but things would be a lot better once I returned”. There was no further discussion regarding that situation. [149]
148. T 15.32-.50.
149. T 16.1-.10.

Damages inadequate remedy

Mr Docker SC submits that as a result of the Committee proceeding, Mr Wayde has lost his membership of the Club for 8 years, his position as a director together with the income this position entitles him to, and he has been barred from the Club. He contends that “All but the loss of income cannot be compensated by an award of damages because the loss of his membership, directorship and access to the Club cannot be measured in money because it includes the loss of a large part of his life and activities”. [150]
150. POS [70].

Balance of convenience

Mr Docker SC’s submissions as to balance of convenience were as follows.
First, if an injunction is not granted, the election will proceed and someone will be elected to fill Mr Wayde’s position as director, which election will be treated as valid unless the Court determines otherwise in proceedings. [151]
151. POS [71] citing New South Wales Rugby League Limited v Australian Rugby League Commission Limited [2022] NSWSC 570 (NSWRLL v ARLCL) per Ball J at [46].

Secondly, Mr Wayde will have to amend his claim to assert that any such election is invalid or ineffective to fill his position because a decision made in denial of procedural fairness is operative until challenged and upon the challenge being upheld is (retrospectively) void ab initio, although it may have some effect as a practical matter in the meantime. [152] He emphasised that a discretion to decline relief [153] is more likely to be exercised where an election has occurred for Mr Wayde’s successor and the person has filled the position for a period. [154]
152. POS [72] citing Macksville & District Hospital v Mayze (1987) 10 NSWLR 708 at 729-731 per Mahoney JA (Priestley JA agreeing); Anderson v Lismore City Council [2011] NSWSC 1058; (2011) 185 LGERA 239 (Anderson) at [43]-[47] per Brereton J (in turn referencing in particular Calvin v Carr [1979] 1 NSWLR 1 (Calvin) at 8 per Lord Wilberforce, giving the judgment of the Privy Council, and Forbes v New South Wales Trotting Club Limited (1979) 143 CLR 242 at 277 per Aickin J; [1979] HCA 27.
153. See Anderson at [48]-[49].
154. POS [72]; T 38.6-.34.
Thirdly, Mr Wayde will suffer significant prejudice and hardship because he will continue to be deprived of being a member and director and having access to the Club, given his age of 78 years, how involved he has been in the community and the Club and that he was elected for a 3-year term. [155] Mr Docker SC contends that the prejudice to Mr Wayde should be given more weight as he has a strong case. [156]
155. POS [73]; T 38.40-.47.
156. POS [74]; T 38.47.
Fourthly, if an injunction is granted, the functioning of the Board will not be adversely affected. [157] The continuing members of the Board may act notwithstanding any vacancy on the Board unless the number is below the quorum, which is 4. [158] There is no possibility of the number of directors falling below 4 as the Club will have 5 continuing directors (whatever the outcome of the 25-26 March 2025 elections), namely, Ms Romero, Mr Montgomery and Mr Tropiano, as well as Mr Yabsley and Mr Primerano, who appear to have been recently appointed by the Board. [159]
157. POS [75] citing Old Newingtonians’ Union at [41]; T 38.49-.50.
158. Rules 62 read with 59.
159. POS [75], appointed under rule 50(b): ND1 [13] & NAD 94-96.
Fifthly, although the courts have been reticent to become involved in the affairs of organisations where it would have the effect of subverting the will of the members such as in election processes, equally, the Court should [or may] intervene in election processes where what is envisaged is not in keeping with the will of the members. Mr Docker SC contends that is particularly significant having regard to the fact that members have consistently on 5 occasions elected Mr Wayde as a director. [160]
160. POS [76] citing Old Newingtonians’ Union at [43]; T 39.6-.16.
Sixthly, Mr Docker SC submits that the election can be postponed and the AGM adjourned [161] or there are other alternatives. [162]
161. T 11.3-.15.
162. T 11.21-.27.
Seventhly, the cost of wasted elections will not be significant because elections simply require members to come into the Club and vote and for the votes to be counted. [163]
163. POS [77] referencing by-law 17.

Undertaking as to damages

Mr Docker SC expressly addressed what was said to be Mr Wayde’s impoverished or “straitened” position. [164] He noted that Mr Wayde is single, lives in a rented apartment, has limited financial resources being $5,767.58 in his bank account and personal items worth about $5,000, has exhausted his superannuation because he stopped receiving director’s fees from the Club, and receives the aged pension of $1,355.60 per fortnight. [165]
164. POS [78], ND1 at [32]; T 39.38-.43.
165. POS [78] and W2 [7]-[13].
Mr Docker SC emphasised that any damages are unlikely to be significant as the amount wasted on the election if there is an injunction is unlikely to be high. [166] In any event, he referenced authority to the effect that the terms on which an interlocutory injunction is granted is a matter of discretion and relief is not necessarily refused because the applicant is impecunious or has limited means. [167]
166. POS [79].
167. POS [80]-[83] citing principally Varley v Varley [2006] NSWSC 1025 per Campbell J at [45]-[68]; T 40.1-.22.
He noted that damage to a small business may have a greater impact than the same amount of damage to a large enterprise [168] and made reference to the vast wealth of the Club. [169]
168. POS [84] citing Organic Marketing Australia Pty Ltd v Woolworths Ltd [2011] FCA 279 at [69] per Katzmann J.
169. POS [84]; T 40.24.32.
Mr Docker SC, during the hearing, foreshadowed [170] and eventually proffered an undertaking from Mr Wayde (marked as MFI-1) [171] in the following terms:
170. T 11.29-.35, 39.45.49.
171. T 41.9-.26.

1. The plaintiff is to pay into Court the sum of $20,000 on before 11am on 25 March 2025 as security for the undertaking as to damages given by him in support of the interlocutory injunctions in order 2.
2. Upon the undertaking as to damages of the plaintiff the Court orders that:
a. Until the determination of these proceedings, or further order, the defendant be restrained from acting on the basis that, or representing that
i. the membership of the defendant of the plaintiff has been suspended or cancelled; or
iii. the plaintiff is no longer a director of the defendant because his membership has been suspended or cancelled.

b. Until the determination of these proceedings, or further order, the be restrained from holding an election, or appointing a person, to fill the position on the Board of the plaintiff.

3. List the proceedings for directions in the expedition list on 4 April 2025.
4. Costs reserved.

Club’s contentions

Mr Hewitt SC submitted that that the balance of convenience does not favour the grant of an interlocutory mandatory order requiring that Mr Wayde be reappointed as a director. [172] He supported that submission as follows:
172. In particular T 50.16 citing Re Courtesy Real Estate (NSW) Pty Limited [2013] NSWSC 1666; (2013) 96 ACSR 593 (Re Courtesy) per Black J at [19]-[26] and In the matter of JC Jewels Pty Ltd ACN 628 983 773 [2024] NSWSC 532 (Re Jewels) per Pike J at [59] (in which his Honour cited Re Courtesy and Harris v Evans [2018] FCA 1856 at [40] per Collier J).

by operation of the provisions of the Constitution, the suspension of Mr Wayde, consequent upon a notice of charge being issued, [173] had the effect that Mr Wayde’s position as a director was vacated giving rise to a casual vacancy [174] and the Board had the power to appoint any eligible person to fill the casual vacancy (that person so appointed then holding office for the balance of the term of that member until the next succeeding AGM); [175]
173. Rule 46(i).
174. Rules 67(i)&(j).
175. Rule 68.

by reason of the above, Mr Wayde is no longer a director of the club, and steps have been taken to fill that casual vacancy by means of the upcoming election; [176]
176. T 41.41-42.1.

one of the primary purposes of interlocutory injunctions is to preserve the status quo pending the final resolution of the proceedings [177] and the status quo is that Mr Wayde is no longer a director of the Club; [178]
177. T 46.18-1.21.
178. T 41.41-42.1, 42.41-44.21, 45.44-46.7.

the fact that Mr Wayde is no longer a director of the club has been formalised in various documents, [179] including the annual report for the year ended 31 October 2024 [180] and in ASIC records; [181]
179. T 46.37-.48.
180. NAD 56.
181. W1 p 9.

the effect of the interlocutory application is to interfere with and subvert the workings of the Constitution as to how the position of directors will be filled in the proposed election giving members an opportunity to vote on who their representatives on the Board will be going forward while the proceedings are being determined; [182]
182. T 42.1-.5, 47.31-.38, 50.8-.13, 54.5-.9.

the Court should be reluctant to become involved in the affairs of organisations which will have the effect of subverting the will of members in election processes; [183]
183. T 42.7-.13.

the question of whether the process by which Mr Wayde ceased to be a director was allegedly tainted is a matter for the final hearing; [184]
184. T 46.13-.16.

the status quo position is not simply Mr Wayde’s legal status quo but also the position that he has de facto adopted since 6 November 2024; [185]
185. T 46.29-.32.

restoration of Mr Wayde to the position of a director, where he had ceased to be such for a period of time well prior to the commencement of proceedings, cannot be fairly described as restoring the status quo, citing Re Courtesy at [20] and Re Jewels at [58];

Mr Wayde has been involved in campaigning in respect of the election and has sought even as recently as 6 March 2025 [186] to encourage voters to vote in favour of two of the potential candidates (Lucille McKenna OAM and Peter Cheung) rather than asserting that he is presently a director and that the whole process is a violation of his rights; [187]
186. GPP p 39.
187. T 42.21-.28, 46.50-47.22 citing GPP p 39.

the support by Mr Wayde of those candidates confirms his own knowledge of the status quo position that he is not a director of the club; [188]
188. T 47.24-.29.

success on the final hearing of the proceedings will only give rise to a position that the Committee hearing and determination will be set aside, thus allowing a new hearing to be conducted consistently with the requirements of procedural fairness, it will not have the effect of reinstating him as a director of the Board; [189]
189. T 48.1-.28.

that the status quo position is not relevantly altered by the contention that the suspension decision is the subject of relief at a final hearing; [190]
190. T 49.16-22, 50.3-.6.

the laying of the Charges [191] and the decision of the Board by its Committee is (relevantly) effective until such time (if at all) it is declared by a competent body or court, to be otherwise, citing Calvin and Anderson; [192]
191. T 49.47-50.1.
192. T 49.24-.45.

the grant of an interlocutory mandatory order requiring that Mr Wayde be reappointed as a director would be unprecedented, [193] citing Re Courtesy in which Black J declined relief on grounds that proposed restoration of a party to the position of a director would be contrary to the status quo; [194]
193. T 50.15-.36.
194. Re Courtesy at [20]-[22].

restoration of Mr Wayde to the position of a director would be detrimental to other parties, particularly where the circumstances that have given rise to the litigation involved existing differences of opinion between directors, citing Re Courtesy at [21]-[22];

Mr Wayde has delayed in bringing the application, particularly when his solicitors had foreshadowed as early as 31 January 2025 that they had instructions to commence proceedings and approach to the Court, in the absence of non-compliance, with requested relief [195] and that is a powerful discretionary reason why interlocutory relief should be refused; [196]
195. T 53.8-.15.
196. T 46.32-.35, 47.40-.50, 51.37-.41.

having regard to length of the status quo of Mr Wayde not being a director (four months), the incremental prejudice to him of not being reinstated until the final hearing is of little weight; [197]
197. T 53.17-.29.

the prejudice to the club is significant, detailed in the affidavit of Mr Pasas, including interference with and wasted time, effort and cost associated with the conduct of the election [198] (the monetary cost included external costs in the order of at least $100,000 for legal advice, communications, creative and design work, commissioning and appointing the returning officer, catering and bus and shuttle services to the club for the election, and costs of approximately $8,600 for rostering additional staff specifically for the election in the AGM); [199]

there is prejudice to third parties, specifically, members who have incurred expenses in reliance upon the current election dates and particular prejudice to approximately 20 members who live in regional areas or interstate and were travelling to Sydney to vote and staying overnight; [200]

the explanation offered for the delay is not satisfactory [201] and delay in obtaining the file of Mr Wayde’s prior solicitor could easily have been addressed by other means; [202]

the fact that, if injunctive relief is refused, Mr Wayde may have to amend his claim to assert that the election is invalid or ineffective to fill his position is not a significant consideration; [203] and

the form of relief sought by Mr Wayde, to the extent it involves restraining the Club from acting on the basis of or representing that Mr Wayde is no longer a director because his membership has been suspended or cancelled, is problematic in circumstances in which members of the club and ASIC had been informed that he is not a director, and would potentially throw the governance of the company into turmoil. [204]
198. T 53.31-.36 citing GP [21(b)].
199. GP [21(b)(ii),(iii)].
200. T 53.39-.45 citing GP [21(c)].
201. T 51.41-.50, 52.3-.34 citing GP [6]-[7].
202. T 51.50-52.3.
203. T 54.20-55.13.
204. T 55.15-.36.

Mr Hewitt SC also submitted that the proposed undertaking as to damages is inadequate. [205] The Club proffered proposed orders as follows:

1.   The plaintiff is to pay into Court the sum of $20,000 on before 11am on 25 March 2025, and (without admission on either side) the defendant may withhold any amount payable to the plaintiff under Rule 56(o) of the Constitution of the defendant until the determination of these proceedings or further order, [206] as security for the undertaking as to damages given by him in support of the interlocutory injunctions in order 2.
2.   Upon the undertaking as to damages of the plaintiff the Court orders that from now until the determination of these proceedings or further order, the Club be restrained from holding an election, or appointing a person, to ﬁll the position on the Board of the plaintiff.
3.   List the proceedings for directions in the expedition list on 4 April 2025.
4.   Costs reserved.

205. T 54.11-.12.

206. The words “and (without admission on either side) the defendant may withhold any amount payable to the plaintiff under Rule 56(o) of the Constitution of the defendant until the determination of these proceedings or further order” are underlined, which is only viewable on the Caselaw website.

Mr Wayde’s reply

Mr Docker SC sought to distinguish the decision in Calvin, intimating that, in that case, the question was whether the decision had any existence for the purpose of an appeal. He submitted that, in this case, the question is quite different, being whether the suspension decision, if it was found to be void ab initio, had any existence for the purpose of removing him as a director. [207]
207. T 56.33-57.15.
Mr Docker SC submitted that there was no relevant delay as between the notice of suspension on 6 December 2024 and the determination on 31 December 2024 as it was reasonable for Mr Wayde to wait to know the outcome of the final hearing of the charges against him prior to commencing any proceedings. [208]
208. POS [85]-[86]; T 40.34-41.2, 58.22-.26.
In relation to alleged delay from 31 January 2025 (being the timing of Mr Di Girolamo’s letter), Mr Docker SC submitted that the Club had taken until 28 February 2025 to reply. [209] He explained that, since then, Mr Di Girolamo had experienced certain difficulties in obtaining information but nonetheless took certain steps to address Mr Wayde’s position, including briefing counsel. [210]
209. See NAD 113.
210. T 58.28-.41.
Mr Docker SC, anticipating a number of Mr Hewitt SC’s submissions, also submitted that:

Re Courtesy and Re Jewels were oppression cases in relation to private proprietary limited companies, distinguishable from the present facts and thus reliance by the Club upon those cases was misplaced; [211] and

the proper analysis of the status quo is that Mr Wayde is a member and a director of the company. [212]
211. T 39.18-.34.
212. T 39.34-.36.

Mr Docker SC in further reply contended:

Mr Wayde’s apparent support for two other candidates was not an acceptance of the fact that he was not a director or should not be regarded as a director; [213]
213. T 58.9-.13.

the Club’s submission that Mr Wayde would not be able to seek relief in relation to his directorship at a final hearing reinforces the hardship he would suffer if no relief is given; [214]
214. T 58.48-59.1.

the assertion that the incremental prejudice to Mr Wayde is minimal fails to take into account the fact that an election for his position would materially impact him; [215]

impact upon third parties is rarely determinative and ameliorated by a proposal that there be an election for one of the positions but not for the position arising from the vacancy consequent upon Mr Wayde’s suspension and removal; [216]

the relief sought in Order 2(a) is simple, being merely prohibitive, and the represented position regarding the directorship of the Club in the annual report and in ASIC records is not determinative of Mr Wayde’s status but merely evidentiary; [217]

the grant of an injunction will not invalidate the Club’s decisions as the definition of a director in s 9 of the Corporations Act includes a person who is not validly appointed as a director if they act in the position of a director; [218] and

the Constitutional provision allowing Board members to fill casual vacancy by appointing up to 2 additional persons is not part of Mr Wayde’s case. [219]
215. T 59.7-.9.
216. T 59.11-.18.
217. T 59.20-.29.
218. T 59.31-60.40 citing e.g. NSWRLL v ARLCL at [48].
219. T 60.40-.46 citing rule 50(b).

Determination

I gave serious consideration to the submissions of counsel. Without specifically addressing all the relative details of those submissions, the following sets out the main aspects of my determination in granting some limited relief to Mr Wayde.
The prima facie case or serious question to be tried was advanced on three different bases, which at a final hearing may be affected by further evidence to be adduced by each side.
Mr Docker SC indicated there are video recordings of the disciplinary hearings. [220] He intimated that that may be the only additional evidence to be relied upon by Mr Wayde. The Club has yet to put on its evidence.
220. T 11.15-.22.
Having noted the above, it is not clear to me that the essential factual underpinning of the apprehended bias case advanced by Mr Docker SC on behalf of Mr Wayde will radically change. There appears to be no relevant dispute that Mr Burgess was present on all occasions of the Committee proceedings, even if he did not ultimately vote on Decisions 1 and 2. However, it may be that video evidence, or other evidence, gives some further degree of revelation or colour to the level of involvement of Mr Burgess.
The question regarding whether a quorum requirement was satisfied, again, it seems will not be significantly impacted by further factual material. Indeed, to a degree, it also involves a question of construction of the Constitution.
It suffices to say that, at least in relation to the questions of the prima facie case in respect of apprehended bias and the requirement of a quorum, I was (and am) satisfied that those claims are not weak prima facie claims but well arguable.
The position regarding the actual bias case is different because that will significantly depend upon evidence from Mr Montgomery (if he is called in the Club’s case).
Evident from the submissions above, there is dispute regarding what was the relevant “status quo”. Despite the detailed submissions seeking to support the alternative views that the status quo was that Mr Wayde was (as per Mr Docker SC) or was not (as per Mr Hewitt SC) a director, neither counsel referred to particular authority bearing upon the matter. I do not say that critically, as the case was brought on very quickly and counsel, in my estimation, admirably argued the matter having regard to the exigent circumstances.

Precisely what is meant by the “status quo” is a little elusive. The noun (from Latin) as per the Macquarie Dictionary (online ed) ordinarily conveys the meaning “the existing or previously existing state or condition”. [221] Legal Dictionary definitions are to a similar effect, thus the Encyclopaedic Australian Legal Dictionary defines “status quo” as: [222]

Lat – the state in which. The state of affairs existing now or at some given date. Used with reference to a continuation or prolongation of a thing or condition already in existence.
221. Macquarie Dictionary, online ed.
222. Encyclopaedic Australian Legal Dictionary (LexisNexis, online ed).

Further it defines “status quo ante” as:

Lat – the former state of affairs. The state of affairs existing before the present or some given date. Usually used with reference to the restoration of some thing or condition not in existence.

In the context of an interlocutory injunction application, what is meant by status quo may vary in any given case.
In Talacko v Talacko [2009] VSC 349, Kyrou J stated at [39]-[42] (omitting footnotes):

39. It has been said in some cases that the status quo is determined as at the time of the application for interlocutory relief. In other cases, it has instead been said that the status quo is the state of affairs in the period immediately before the issue of the proceeding seeking a permanent injunction but that if there is unreasonable delay between the issue of the originating process and the application for an interlocutory injunction, the time is as at immediately before the application for interlocutory relief. The cases cite statements made by Lord Diplock in Garden Cottage Foods Ltd v Milk Marketing Board in support of those propositions.
40. However, in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia, Gaudron J referred to, among other cases, Garden Cottage and appeared to take a broader view. Her Honour said: “As a general rule, interlocutory orders and injunctions are confined to orders maintaining the status quo at the time of the making of an application for those orders. However, that is not invariably so.” Malcolm CJ in Carr Boyd Minerals Ltd v Ashton Mining Ltd also referred to Garden Cottage before commenting: “The determination of what is, or what is not, the status quo in any given case for the purpose of considering an application for an interlocutory injunction is, in my view, a question of fact”. In Walsh v Police Assn, Gillard J said that “the status quo clearly depends upon the particular circumstances” and that “it would be unjust to the plaintiff if a defendant could by an unlawful act obtain an advantage which could not be reversed because it was the state of the circumstances immediately prior to the institution of the proceeding”.
41. This issue was considered in some detail by Warren J (as her Honour then was) in Liquorland (Aust) Pty Ltd v Anghie in the context of the principles applicable to an ordinary interlocutory injunction. To obtain such an injunction, the plaintiff must establish that there is a serious question to be tried and that the balance of convenience favours the grant of the injunction. Her Honour said:
Ultimately, the plaintiffs’ argument was one that relied upon retention of the status quo in support of the assertion that the balance of convenience weighed in their favour. Preservation of the status quo will depend always upon a variety of considerations in any particular case. Thus, although the most usual basis for the grant of an interlocutory injunction is to preserve the circumstances that exist at the time of the application until trial it is nevertheless a factor to be weighed very carefully. The discretion as to that which constitutes the status quo and its need for protection will often warrant the exercise of a very general discretion …
…In my view the status quo here forms but one part of the multiple factors that may or may not invoke the general discretion. Ultimately a court will consider all factors and pursue an approach that reflects the flexible and discretionary principles that underlie the exercise of the remedy …

42. In my view, the principles discussed above about what constitutes the status quo apply equally to Mareva orders and ordinary interlocutory injunctions. It follows that the status quo is not necessarily constituted by the state of affairs in the period immediately before the filing of the writ or application, and what constitutes the status quo is a matter that must be determined based on the facts of each case and a careful and commonsense exercise of the court’s discretion.

It follows from the above that in some cases, status quo is regarded as being relevantly the state of affairs in the period immediately before the issue or matter which has given rise to the dispute arose, but in other cases, particularly if there is unreasonable delay between the issue of the originating process and the application for an interlocutory injunction, the status quo may be regarded as being relevantly the prevailing position at the time that the Court is approached for relief.
What constitutes the status quo, according to Kyrou J, is a matter that must be determined based on the facts of each case and a careful and commonsense exercise of the Court’s discretion.
It might well be that the nature of disputes involving clubs and associations is such that the operation of the provisions of the governing Constitution have a particular impact upon the assessment of what constitutes the relevant “status quo”. Whilst acknowledging Mr Docker SC’s submission that the status quo is that Mr Wayde is a director, it seems to me that, with the passing of time, there is considerable force in Mr Hewitt’s submissions that the practical status quo is that Mr Wayde is no longer a director of the Club. That is certainly the position when one looks at the ASIC records and the annual report. To some extent it has been reinforced by Mr Wayde’s actions in supporting other candidates for election (though I accept that is not necessarily legally determinative of the issue).
A period of over 3 weeks passed from the timing of announcement of the penalty in Decision 2, to the time when Mr Wayde gave instructions to Mr Di Girolamo to act. Mr Di Girolamo appears to have sought Mr Marsh’s file at that time and to date has not received a complete copy of his file. [223] It took a week for Mr Di Girolamo to write to Ms Romero and Mr Cook. [224] Whilst I have the impression that Mr Wayde’s legal representatives were by no means dawdling and no doubt waiting for a considered response, the fact remains that effectively a period of almost 80 days (some 2.65 months) passed until the Court was approached from the time of the penalty decision and well over 4 months since the Notice of Suspension. Further, a period of 30 days elapsed from the time the election notice was given until the Court was approached, during which time significant arrangements have been made to hold the election. Attempts by Mr Di Girolamo to clarify the position in respect of insurance have been progressed but not completely resolved by the time that the Court was initially approached. [225] I was (and am) of the view that there is reasonable force in Mr Hewitt SC’s submission regarding the delay in bringing the application.
223. ND1 [18]-[19].
224. ND1 [20].
225. ND1 [29].
Mr Hewitt SC confirmed that, whilst not the club’s preferred position, there could be a partial election distinguishing between the positions for the “non-debenture” directors and the “debenture holder positions”. [226]
226. T 61.11-.44.
A significant factor bearing upon just relief between the parties is the ability of the Club to function with a Board continuing to make decisions. My view was (and is) that a limited injunction allows the Board to remain operating effectively. In a practical sense, that has been the status quo since 31 December 2024, without the involvement of Mr Wayde.
In relation to the undertaking as to damages, I accepted Mr Docker SC’s submission that the terms on which an interlocutory injunction is granted is a matter of discretion. Relief is not necessarily refused because the applicant is impecunious or has limited means. [227]
227. POS [80]-[83] citing principally Varley v Varley [2006] NSWSC 1025 per Campbell J at [45]-[68]; T 40.1-.22.
I considered (and hold to the view) that, to the extent that Mr Wayde was able to provide a limited financial undertaking, it was appropriate that the relief granted should be premised upon the provision of that limited undertaking.
Overall, it seemed to me that the course best calculated to achieve justice between the parties in the circumstances of the particular case, pending the final hearing, on the basis of Mr Wayde’s proffered undertaking as to damages, was to grant a limited injunction to restrain the Club from holding an election, or appointing a person, to ﬁll the position on the Board of Mr Wayde but not otherwise to grant more extensive interlocutory relief as sought by him.

Conclusion

The orders of the Court which I made are as follows:

THE COURT:
1. Grants leave to the plaintiff to file in Court the following documents initialled by Meek J, dated and placed with the papers:
a. the affidavit of Frederick Wayde sworn 24 March 2025; and
b. the affidavit of Nicholas Anthony Di Girolamo sworn 25 March 2025.

2. Upon the usual undertaking as to damages (r 25.8 UCPR) of the plaintiff given to the Court by his senior counsel the Court orders that from now until the determination of these proceedings or further order, the Club be restrained from holding an election, or appointing a person, to ﬁll the position on the Board of the plaintiff.
3.   Order as security for the undertaking as to damages in Order 2 above, the plaintiff is to pay into Court the sum of $20,000 on before 11am on 25 March 2025, and (without admission on either side) the defendant may withhold any amount payable to the plaintiff under Rule 56(o) of the Constitution of the defendant until the determination of these proceedings or further order.
4.   Orders that the proceedings be listed for directions in the Expedition List on 4 April 2025.
5.   Orders that costs reserved.

**********

Endnotes

Decision last updated: 23 May 2025

Medium Neutral Citation:	Wayde v Western Suburbs Leagues Club Limited [2025] NSWSC 511
Hearing dates:	24 March 2025
Date of orders:	24 March 2025
Decision date:	23 May 2025
Jurisdiction:	Equity - Duty List
Before:	Meek J
Decision:	Limited injunctive relief granted.
Catchwords:	ASSOCIATIONS AND CLUBS — Sporting Clubs — Dispute regarding affairs of rugby league “leagues club” — Plaintiff in late 2024 was a member and director of defendant club (Club) and was served with Notices of Charge and Suspension by the Disciplinary Committee (Committee) of the defendant —Disciplinary hearing found part of the alleged conduct was established and, pursuant to a penalty decision, the plaintiff’s membership of the Club was suspended for a minimum of 8 years — Urgent though somewhat belated relief sought in context of elections, including relevantly for directorship, due to commence within days of the Court being approached INTERLOCUTORY INJUNCTION — Prima facie case — Plaintiff seeks to enforce his contractual rights against the Club as a member and director of the Club invoking the Court’s equitable jurisdiction for this purpose, and the Court’s jurisdiction with respect to civil matters arising under the Corporations Act conferred by by s 1337B(2) for orders under s 1322(2) — Plaintiff submits the proceedings of the Committee were infected by apprehended bias, alternatively, actual bias and also by a lack of quorum INTERLOCUTORY INJUNCTION — Balance of convenience — Considerations in circumstances in which attenuated notice precluded Club from adducing evidence in respect of prima facie case INTERLOCUTORY INJUNCTION — Undertaking as to Damages — Plaintiff in straitened circumstances — Limited undertaking proffered INTERLOCUTORY INJUNCTION — Effect of Delay
Legislation Cited:	Corporations Act 2001 (Cth) Registered Clubs Act 1976 (NSW) Registered Clubs Regulation 2015 (NSW)
Cases Cited:	Agricultural Societies Council of NSW Ltd v Christie [2016] NSWCA 331; (2016) 340 ALR 560 Anderson v Lismore City Council [2011] NSWSC 1058; (2011) 185 LGERA 239 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1 Calvin v Carr [1979] 1 NSWLR 1 Claremont Petroleum NL v Cummings (1992) 110 ALR 239 Cordiant Communications (Aust) Pty Ltd v The Communications Group Holdings Pty Ltd [2005] NSWSC 1005; (2005) 55 ACSR 185 Cronulla Sutherland Leagues Club Ltd v Commissioner of Taxation (Cth) (1990) 23 FCR 82; (1990) 21 ATR 300 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Forbes v New South Wales Trotting Club Limited (1979) 143 CLR 242; [1979] HCA 27 Harris v Evans [2018] FCA 1856 In the matter of JC Jewels Pty Ltd ACN 628 983 773 [2024] NSWSC 532 In the matter of Old Newingtonians’ Union Incorporated [2024] NSWSC 619 Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440 Khan v Khan; Re Islamic Association Western Suburbs Sydney Inc [2015] NSWSC 638 Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 Macksville & District Hospital v Mayze (1987) 10 NSWLR 708 May v Walker [2023] NSWSC 1628 New South Wales Rugby League Limited v Australian Rugby League Commission Limited [2022] NSWSC 570 Northern Star Agriculture Pty Ltd v Morgan and Banks Developments Pty Ltd [2007] NSWSC 98 Organic Marketing Australia Pty Ltd v Woolworths Ltd [2011] FCA 279 Re Courtesy Real Estate (NSW) Pty Limited [2013] NSWSC 1666; (2013) 96 ACSR 593 Stollery v Greyhound Racing Control Board (1972) 128 CLR 509; [1972] HCA 53 Talacko v Talacko [2009] VSC 349 Varley v Varley [2006] NSWSC 1025
Texts Cited:	Dal Pont, G E, Equity and Trusts in Australia (6th ed, 2015, Lawbook Co, Thomson Reuters) Encyclopaedic Australian Legal Dictionary (LexisNexis, online ed) Gibson, Jack (with Ian Heads), The Last Word (ABC Books, 2003) Heydon, JD, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed, 2014, LexisNexis) Macquarie Dictionary, online ed NRL, “About us: ARL commission” (Webpage) (see endnotes for accessible link) NRL, “About us” (Webpage) (see endnotes for accessible link) Young, Peter, Clyde Croft and Megan Smith, On Equity (2009, Thomson Reuters)
Category:	Procedural rulings
Parties:	Frederick Wayde (Plaintiff) Western Suburbs Leagues Club Limited (Defendant)
Representation:	Counsel: S Docker SC with J Rodgers (Plaintiff) J C Hewitt SC (Defendant) Solicitors: Di Girolamo Lawyers (Plaintiff) Clayton Utz (Defendant)
File Number(s):	2025/108995