Whittle v Australian Miniature Pony Society Inc
[1995] FCA 346
•30 MAY 1995
CATCHWORDS
ASSOCIATIONS AND CLUBS - power of expulsion reposed in committee with appeal to general meeting - construction of rules - effect of decision of general meeting to cure any defect in decision of committee - requirements of natural justice - allegations of bias - whether appearance of bias is sufficient to vitiate decision - whether decision can be set aside for unreasonableness - finality of general meeting's resolution as to both fact and law unless it is not made in good faith - effect of the pleading of a fact as an indication of what is genuinely put forward by the party pleading it.
Australian Workers' Union v. Bowen [No. 2] (1948) 77 CLR 601
Twist v. The Council of the Municipality of Randwick (1976)
136 CLR 106
Colpitts v. Australian Telecommunications Commission (1986) 9
FCR 52
Maloney v. New South Wales National Coursing Association Ltd
(1978) 1 NSWLR 161
Maclean v. The Workers' Union (1929) 1 Ch. 602
Hall v. New South Wales Trotting Club Ltd (1977) 1 NSWLR 378
Cains v. Jenkins (1979) 28 ALR 219
Paton v. Sydney Press Club (1940) 57 WN (NSW) 57
Calvin v. Carr (1979) 22 ALR 417
Dawkins v. Antrobus (1881) 17 Ch.D. 615
Laws v. Australian Broadcasting Tribunal (1990) 170 CLR 70
Spies v. Commonwealth Bank of Australia (1991) 24 NSWLR 691
Gray v. Hedigan, unreported, 7 October 1994, Burchett, Foster
and O'Loughlin JJ.
NORMA WHITTLE & ANOR v. THE AUSTRALIAN MINIATURE PONY SOCIETY INCORPORATED
NG 863 of 1992
Burchett J.
Sydney
30 May 1995
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) NG 863 of 1992
)
GENERAL DIVISION )
BETWEEN: NORMA WHITTLE AND DAVID JOHN WHITTLE
Applicants
AND:THE AUSTRALIAN MINIATURE PONY SOCIETY INCORPORATED
Respondent
CORAM: Burchett J.
PLACE: Sydney
DATE : 30 May 1995
MINUTE OF ORDERS OF THE COURT
THE COURT ORDERS THAT:
Liberty be reserved to the applicants to apply on fourteen days notice in the event that they are refused registration by the respondent of any pony on a basis they contend involves an unreasonable restraint of trade;
The application be otherwise dismissed;
The applicants pay the respondent's costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) NG 863 of 1992
)
GENERAL DIVISION )
BETWEEN: NORMA WHITTLE AND DAVID JOHN WHITTLE
Applicants
AND:THE AUSTRALIAN MINIATURE PONY SOCIETY INCORPORATED
Respondent
CORAM: Burchett J.
PLACE: Sydney
DATE : 30 May 1995
REASONS FOR JUDGMENT
BURCHETT J.:
By an application supported by affidavits, the applicants sought relief against their expulsion from membership of the respondent, an incorporated society, and other relief. Subsequently, an amended statement of claim was filed, in which a number of causes of action were propounded. Not all of these causes of action were maintained at the hearing. On the first day, counsel for the applicants presented a document entitled "APPLICANT'S [sic] POINTS OF CONTENTION". By this document, the primary case put forward for the applicants was that they had been invalidly expelled from the Society. It was alleged that expulsion resolutions of its committee, and of the Society in general meeting, were not passed in good faith; that its president and vice-president were intemperately biased against the applicants and acted both as prosectors and judges; that the venues of the meetings were chosen to ensure their inconvenience; and that the requirements of natural justice were not observed. It was further claimed that the resolutions of the Society failed to comply with various requirements of the rules of the Society applicable to a special resolution; that the chairman of the meeting, the president of the Society, wrongly ruled that any one charge of a number of charges brought against the applicants could justify their expulsion; that the chairman was intemperately biased; and that it was contrary to natural justice for him to have chaired the meetings at which the applicants were expelled. In summarizing the contentions, I have ignored some repetitiveness, and have confined myself to the substance of them. There was one discrete contention - that the provisions of the constitution and rules of the Society provide for a registration and transfer system which requires membership of the Society, thus constituting an unreasonable restraint of trade.
The Society was incorporated on 12 August 1988 under the name "The Australian Miniature Pony Society Incorporated". It has a number of objects associated with the development, improvement and promotion of a breed of pony to be known as the Australian Miniature Pony, including the keeping of permanent records, registration, measurement and certification of ponies, registration of transfers of registered ponies between members, publication of a stud book, and encouragement of co-operation between members and friendly sportsmanship in competitions. Although the Society was established in New South Wales, its objects exhibit a clear intention that its activities should extend throughout Australia, and they have done so. It had its beginnings in a previous unincorporated society established in 1974. That too had been based in New South Wales.
The affairs of the Society are managed by a Committee which, by rule 12 of its constitution, "may exercise all such functions as may be exercised by the Society other than those functions that are required ... to be exercised by a general meeting of members of the Society". It may be noted that rule 12.1(d) expressly provides that "in the event of a technicality causing dispute where the rules of the Society are silent the committee of management's [i.e. the Committee's] resolution will be binding on all members until clarification by special resolution". Furthermore, the Committee is given power to "do all such things as appear to the committee to be necessary or desirable for the proper management of the affairs of the Society" (rule 12.1(c)). Rules 12.1(c) and 12.1(d) were perhaps relevant to one of the disputes that erupted within the Society - a dispute concerning the regulations under which ponies might be presented for competition at shows.
Rule 10, which is headed "Disciplining of Members", is fundamentally important for the present case. It provides:
"10.1Where the committee is of the opinion that a member of the Society -
a)has persistently refused or neglected to comply with a provision or provisions of these rules; or
b)has persistently and wilfully acted in a manner prejudicial to the interests of the Society,
the committee may, by resolution -
c)expel the member from the Society; or
d)suspend the member from membership of the Society for a specified period.
10.2A resolution of the committee under clause (1) is of no effect unless the committee at a meeting held not earlier than fourteen (14) days and not later than twenty eight (28) days after service on the member of a notice under clause (3), confirms the resolution in accordance with this rule.
10.3Where the committee passes a resolution under clause (1) the secretary shall, as soon as practicable cause a notice in writing to be served on the member -
a)setting out the resolution of the committee and the grounds on which it is based;
b)stating that the member may address the committee at a meeting to be held not earlier than fourteen (14) days and not later than twenty eight (28) days after service of the notice;
c)stating the date, place and time of that meeting and;
d)informing the member that the member may do either or both of the following -
i)attend and speak at that meeting;
ii)submit to the committee at or prior to the date of that meeting written representations relating to the resolution.
10.4At a meeting of the committee held as referred to in clause (3) the committee shall -
a)give to the member an opportunity to make oral representations;
b)give due consideration to any written representations submitted to the committee by the member at or prior to the meeting; and
c)by resolution determine whether to confirm or to revoke the resolution.
10.5Where the committee confirms a resolution under clause (4) the secretary shall, within seven (7) days after that confirmation by notice in writing inform the member of the fact and of the member's right of appeal under rule 11.
10.6A resolution confirmed by the committee under clause (4) does not take effect -
a)until the expiration of the period within which the member is entitled to appeal against the resolution where the member does not exercise the right of appeal within that period; or
b)where within that period the member exercises the right of appeal, unless and until the Society confirms the resolution pursuant to rule 11.4."
Of equal importance is rule 11, which is concerned with the right of a member to appeal against an unfavourable resolution of the Committee passed under rule 10.4. Rule 11 is headed "Right of Appeal of Disciplined Member". It is in the following terms:
"11.1A member may appeal to the Society in general meeting against a resolution of the committee which is confirmed under rule 10.4 within seven (7) days after notice of the resolution is served on the member, by lodging with the secretary a notice to that effect.
11.2Upon receipt of a notice from a member under clause (1) the secretary shall notify the committee which shall convene a general meeting of the Society to be held within twenty one (21) days after the date on which the secretary received the notice.
11.3At a general meeting of the Society convened under clause (2) -
a)no business other than the question of the appeal shall be transacted;
b)the committee and the member shall be given the opportunity to state their respective cases orally or in writing or both; and
c)the members present shall vote by secret ballot on the question of whether the resolution should be confirmed or revoked.
11.4If at the general meeting the Society passes a special resolution in favour of the confirmation of the resolution the resolution is confirmed."
There is a number of other rules bearing on general meetings of the Society. For example, rule 15.2 provides for the keeping of minutes, and rule 27 states that the "president, or in the president's absence the vice president [sic], shall preside as chairperson at each general meeting of the Society". In their absence, or if they are "unwilling to act", the members shall elect "one of their number to preside as chairperson at the meeting". By rule 1.1, and "except in so far as the context or subject matter otherwise indicates or requires", "`Special General Meeting' means - a General meeting of the Society other than [an] Annual General Meeting".
It is apparent from the definition just quoted, which however only operates subject to the context, that any resolution passed at a general meeting other than an annual general meeting will be a special resolution in the sense that it will have been passed by a special general meeting. However, the rules also provide for a special resolution in a different sense. This led to some debate at the hearing as to the requirements for the passing of a resolution under rule 11.4, which describes a resolution confirming the resolution of the committee - but not a resolution revoking the resolution of the committee, although the one question posed by cl. 3(c) is which of these resolutions shall be passed - as "a special resolution in favour of the confirmation of the resolution".
Many difficulties confront the applicants' argument that rule 11 contemplates a special resolution within the meaning of the other rules of the constitution relied on. But before indicating those difficulties, it is desirable to outline the provisions in question. Rule 25.2 provides that in a case where a special resolution is to be proposed the secretary shall give 28 days notice and comply with rule 31.5, which requires the sending out to members of postal voting papers. This requirement of notice and the provision for a postal ballot are reflected in rule 30, headed "Special Resolution", cl. 1 of which provides:
"A resolution of the Society is a special resolution if -
a)it is passed by a majority which comprises not less than three quarters of such members of the Society as, being entitled under these rules so to do, vote by postal ballot at a general meeting of which not less than twenty eight (28) days written notice specifying the intention to propose the resolution as a special resolution was given in accordance with these rules."
Clause 2 of rule 31, which is headed "Voting", then provides:
"All votes shall be given personally or by postal ballot. No member shall vote in person when a postal ballot is provided."
Clause 5 of the same rule provides:
"Postal voting papers and pre paid envelopes marked `Ballot Paper Only' shall be sent to all members with the agenda prior to the Annual General Meeting and any special general meeting pursuant to Clause 30(a) and 24.1 and 24.2. Envelopes shall be returned to an independent appointed Returning Officer and carry the name and address of the member on the reverse side. No other material is to be enclosed. Envelopes shall be opened face up and counting of postal votes shall take place at the meeting under the supervision of scrutineers."
By rule 35, it is provided that the objects of the Society "and these rules" may only be altered, rescinded or added to "by a special resolution of the Society". The complexities involved in procuring the passage of such a resolution doubtless explain rule 12.1(d) conferring interim powers on the committee.
The question posed earlier may now be resolved. A special resolution under rule 30 involves a postal ballot after not less than 28 days notice, and the express provision of rule 31.2 debars any person from voting otherwise than by post. The procedure with regard to postal voting, as set out
in rule 31.5, clearly does not contemplate oral debate at the meeting before the putting of the resolution to the vote, nor does the rule mention rule 11 - it is concerned with "any special general meeting pursuant to Clause 30(a) and 24.1 and 24.2". By contrast, rule 11.3(c) requires that "the members present shall vote by secret ballot", and rule 11.3(b) contemplates that "the committee and the member" may have "state[d] their respective cases orally" before the taking of the vote. It is really a supererogation to add that the requirement of rule 11.2 to hold the meeting "within twenty one (21) days after the date on which the secretary received the notice" (i.e. the notice of appeal) is irreconcilably contrary to the requirement of rules 25.2 and 30.1 that there must be "not less than twenty eight (28) days written notice" of a special resolution within the meaning of those rules.
Accordingly, I reject at the outset the applicants' contention that a resolution confirming a resolution of expulsion passed by the committee must comply with the requirements of rule 30.
An understanding of the other points raised at the hearing of this matter requires some recital of the circumstances. The applicants Mr and Mrs Whittle were members of the unincorporated association which became the Society. On 29 June 1991, Mrs Whittle was appointed a committee member and vice-president to fill a casual vacancy. She and her husband had been on friendly terms with the president, Mr Goulding, but she appears to have become dissatisfied quite soon after her elevation to the committee. She was not re-elected at the annual general meeting which took place on 16 November 1991. For barely a month, from 17 September 1991 to 14 October 1991, she was the state delegate for Victoria. Whatever the cause of her falling out with Mr Goulding, Mrs Whittle expressed herself in terms of considerable discontent in a circular letter dated 14 October 1991, addressed to the members of the Society:
"It is with feelings of deep concern and disappointment that I have to inform you that I have been unable to represent you as required by my office as Vice-president because of the recent turn of events. I therefore disassociate myself from decisions which have been made at recent meetings of the Committee - decisions, I might add, which have been notified to me by members themselves, and not official channels. The matters which concern me are as follows:-
Lack of consideration to Committee members in convening, within 14 days, 3 meetings of which only 48 hours notice was given for each, held at the President's residence some 60+ km distance from Sydney, in the prior knowledge that 2 officers and 1 committee member could not attend.
Failure to act with care, diligence and skill as required under the Act, to ensure that all motions, changing the model rules at the proposed A.G.M. were prepared and circulated to members as promised at the Special General Meeting June 15th 1991, thereby increasing unnecessarily the work load of the Secretary.
Failure to notify the Secretary of the proceedings of meetings held at Bringelly Sept. 17th & Sept. 24th to enable her to notify other Committee members.
Failure to present to the full Committee of Management at a meeting on Sept. 14th correspondence dated Aug. 6th 1991, addressed to the President, threatening litigation against the Society, and requiring urgent attention.
Failure to implement the action required by an overwhelming majority of members present at the Special Meeting June 15th re former president and secretary to recover the records of the Society.
Continuance of the totally invalid and iniquitous "handling fee" of $10, despite the Committee being in possession of legal advice that, since 31.8.88, there is no provision in the rules for any fines or such charges, which must be refunded.
Deletion of members' notices of motion from the ballot paper.
Reference to the President's message p.6 32nd Edition "Small Talk" informed members that all the Society had to operate on was the Model Rules. However, unauthorised persons have been contacting Show Societies stating that the old standard for Showing was still in operation. Such attempts to disadvantage competitors and influence judging should be regarded as unacceptable and against the objects of the Society as accepted by the Consumer and Business Affairs as being the expressed aims for the formation of the Society.
I was grateful for the appointment to the casual vacancy as Vice-president, and have approached the responsibility of the position, following as closely as possible the duty imposed on any member of the Committee of Management to act `Subject to the Act, the model rules and to any resolution passed by the Association in general meeting' (Clause 12 Model rules), and leave it to you, my fellow members, to decide if I have been permitted to do so."
A very large number of copies of this document was delivered to the editor of the Society's magazine Small Talk, with the intention that she should distribute them with the magazine. It is hardly surprising the editor sought the committee's views as to whether she should do so, and did not send it out. But the incident became a subject of dispute, the editor
claiming that Mr Whittle had used improper pressure in trying to compel her to do as he and Mrs Whittle wished, including the employment of threatening language and extreme rudeness. She claimed that he said she was "not very well educated and it shows in [her work]".
At the annual general meeting, held shortly afterwards on 16 November 1991, the circular was the subject of some discussion. Mr Goulding was re-elected as president, while Mrs Whittle was not re-elected to the committee.
There was a further general meeting held on 28 March 1992. Immediately before that meeting, on 25 March 1992, Mrs Whittle had her solicitors write letters threatening defamation proceedings against Mr Goulding, the vice-president who had replaced her, Mr Blight, and Mrs Goulding in relation to things they had said when rebutting statements made in her circular. In all the circumstances, which must have been known to many of the members of the Society, these threats may have been seen as wholly inappropriate. After all, the circular alleged, at the least, impropriety, neglect of duty, the making of an illegal and "iniquitous" demand upon members, "deletion of members' notices of motion from the ballot paper", improper "attempts to disadvantage competitors and influence judging", and obstruction of Mrs Whittle herself in the due performance of her duties as vice-president. Members may have thought it a grave matter that when Mrs Goulding defended her husband against one of the charges of neglect by pointing out that he was in hospital at the time seriously ill, her vigorous language should have led to a threat of defamation proceedings, although Mrs Whittle had seen fit to express herself in the language of the circular. At any rate, the meeting of 28 March 1992 resolved that the committee should be asked to take action under rule 10, and did so after a debate during which Mr Goulding twice vacated the chair.
At a committee meeting held on 26 April 1992, after prior notice to Mr and Mrs Whittle that the committee would consider the application of rule 10.1(b) and (c), and an invitation to them to attend, resolutions were passed purporting to expel Mr and Mrs Whittle under rule 10.1(c).
In May 1992, defamation proceedings in the Supreme Court of New South Wales were brought by Mrs Whittle against Mr Goulding, Mr Blight and Mrs Goulding. The proceedings have since been discontinued as against Mrs Goulding, and have been transferred to the District Court as against Mr Goulding and Mr Blight. It would appear that the transfer to the District Court may have been as a result of a contested motion, of which Mrs Whittle was ordered to pay the costs. The statement of claim pleaded that Mr Goulding had said at a meeting of members of the Society held in Melbourne on 16 October 1991, with reference to her circular letter of 14 October 1991, "It's all lies", the letter having been read out by someone (the pleading does not specify) to the persons at the meeting. The pleading goes on to allege that at the annual general meeting on 16 November 1991 Mr Goulding referred to a claim made by Mrs Whittle about the circular, and told the meeting:
"Mrs Whittle is claiming copyright! Isn't that a joke?"
On the same occasion, he is alleged to have commented on her claim to be the "second most senior member of the Society", by virtue of her having then been the vice-president, by saying: "And the oldest!" Mr Goulding is also alleged at the same meeting to have said: "You have been nothing but trouble since you joined the Society". He is alleged to have said too: "It's all the old women causing trouble". A further statement attributed to Mr Goulding at this meeting is: "I feel sympathy for Brian Rowe being harassed by these people" (Mr Rowe was a former president who was himself the subject of threatened expulsion proceedings). The statement of claim goes on to allege that Mrs Goulding made the following statement of the plaintiff at the annual general meeting:
"Do not take this as an apology, because I will not apologise to you, but this is the reason that the letter from Margaret Rowe was not disclosed until 17 September, 1991. It was addressed to my husband, and I do not open my husband's mail. He was in the intensive care in hospital and when he came out of hospital he was involved in the massacre at Strathfield and with all the cards which were received it was never opened and then he was overseas for two weeks, and I gave him the letter on the night of the meeting of 17 September and I faxed it to you at 11.00 that night. You said you would not get the fax until the next day. I know you sent a card and rang up when he was sick, but I will not apologise to you, you are not worth it, so do not misunderstand me; this is not an apology it is the reason why that letter was not given to the committee because I remembered it that night on 17 September."
Finally the statement of claim alleged against Mr Blight that he also used the words: "Its all lies", and that at the same meeting he said:
"Yes, well the events at Blacktown Show are relevant. I have not seen or spoken to the Judge for years and I have not shown a pony of mine for a number of years. You were working under the table and I am taking action against your friend Paul Nott. You will put this man back in hospital."
These allegations, of course, were allegations of slander, not libel, but special damage was alleged, of which the particulars were the following: "The plaintiff's show ponies are worthless." That is quite contrary to the allegation made in the present proceeding. I do not overlook the fact that assertions made in a pleading do not convey a representation of the truth of the facts alleged in an objective sense, but they do contain an indication that what is asserted is genuinely put forward: see Laws v. Australian Broadcasting Tribunal (1990) 170 CLR 70; Spies v. Commonwealth Bank of Australia (1991) 24 NSWLR 691; Gray v. Hedigan (Burchett, Foster and O'Loughlin JJ., 7 October 1994, unreported).
In cross-examination, Mrs Whittle was asked about the defamation action. She conceded that she had been ordered to pay Mrs Goulding's costs. She was then asked: "Is it correct to say that at the present time the statement of claim in those proceedings in relation to both of those gentlemen [i.e. Mr Goulding and Mr Blight] has been struck out by the court?" Her answer was: "I don't know that." After further questions, she said of the defamation proceedings: "As far as I know they are still in progress." I do not believe that these were frank answers. I think Mrs Whittle knew very well whether or not her statement of claim had been struck out and she had been required to re-plead in her defamation action.
On or about 21 May 1992, the applicants brought proceedings in the Equity Division of the Supreme Court in respect of the expulsion resolutions of the general meeting and the committee. It was accepted by the Society that it had not then effectively expelled either of the applicants, and it undertook to rescind the motion of the committee, on the basis that the committee intended to deal with the matter afresh. On 27 May 1992, the proceeding in the Equity Division was dismissed by Windeyer J., but the Society was ordered to pay the costs as it had failed to answer promptly the plaintiffs' solicitors' letter raising their concerns about the legality of the resolutions. However, an attempt by Mr and Mrs Whittle to obtain more substantial relief, in the form of an injunction which would have prevented the Society proceeding by further resolution, was rejected by the judge.
The next significant step in the story is the passing of resolutions under rule 10.1(b) and (c) by the committee on 16 August 1992. These resolutions listed twelve grounds in respect of Mrs Whittle, and seven in respect of Mr Whittle. The relevant motions were moved by members of the committee other than Messrs Goulding and Blight. Following these resolutions, notices were sent to Mr and Mrs Whittle advising each of them of the grounds of the relevant resolution, and of their right to address the next committee meeting to be held on 20 September 1992 at 11.00 am at an address at Bringelly, or to make written representations. Omitting formal parts, the letter to Mrs Whittle read as follows:
"I am writing to inform you that the National Committee passed a Resolution, under Rule 10 (b)-(c), at a Committee meeting held on the 16th of August 1992 concerning you.
The Resolution was, `That Mrs Norma Whittle has persistently and wilfully acted in a manner prejudicial to the interests of the Association and to expel her from the Association'.
The grounds the Committee considered in passing the Resolution are as follows.
Attempting to intimidate members of the Society, by the use of threats both direct and implicit, to prevent those members exercising their rights at meetings and in regard to the conduct of the affairs of the Society.
Making representations to officials of at least one Royal Show Society that this Society's rules or part of them were invalid and that some other rules should be applied without being appropriately authorised to do so.
Making representations to officials of at least one Royal Show Society that this Society's rules or part of them were invalid and that some other rules should be applied to do so in circumstances where it was misleading to these Royal Show Societies so contacted and/or detrimental to the standing of this Society.
Making representations to officials of at least one Royal Show Society that this Society's rules or part of them were invalid and that some other rules should be applied without being appropriately authorised to do so and when such representations were untrue either to your direct knowledge or you would have known they were untrue had you made reasonable inquiry.
Contacting several Show Society's and making comments/representations detrimental to the standing of the Australian Miniature Pony Society.
Publishing or attempting to publish allegations against members of this Society and members of this Society's Committee of Management which are untrue and/or detrimental to the reputation of those members and/or the Society.
On at least two occasions instructing or allowing your Solicitors to threaten legal action against the Society in circumstances where such threats were not warranted or where you had no real intention of proceeding with those threats in fact.
Causing members of the Committee of Management and/or Office holders of this Society to have to expend large amounts of time dealing with complaints, criticisms or allegations emanating from yourself, such complaints, criticisms or allegations being trivial and/or untrue and/or designed to be hurtful to individuals and/or disruptive to the working of this Society.
Taking steps or actions which are likely to and/or which are intended to discourage or frighten members from exercising their rights or to become actively involved in the affairs of the Society.
(10)Taking steps in regard to the holding of meetings of this Society and/or as to the matters placed on the notice paper for discussion at meetings of this Society which wastefully or recklessly put the Society and/or its Office holders to great expense and/or waste of time and effort in regards thereto.
(11)Taking steps in regard to the holding of meetings of this Society and/or as to the matters placed on the notice paper for discussion at meetings of this Society which wastefully or recklessly put the Society and/or its Office holders to great expense and/or waste of time and effort in regard thereto without any or any due regard to the best interests of the Society.
(12)Engaging in conduct which is detrimental to the best interests and/or the good reputation of the Society and/or brings the Society into disrepute.
I inform you that you may address the Committee on this matter at its next Committee meeting to be held at the residence of Mrs P.Walsh, `Kelvin Park Homestead', Kelvin Park Drive, Bringelly, N.S.W. on the 20th of September 1992 at 11.00 am. You may attend and speak at this meeting and/or submit to the Committee at or prior to the meeting, written representations relating to the resolution."
The letter to Mr Whittle, omitting formal parts, read as follows:
"I am writing to inform you that the National Committee passed a Resolution, under rule 10 (b)-(c), at a Committee meeting on the 16th August 1992 concerning you.
The Resolution was, `That Mr David Whittle has persistently and wilfully acted in a manner prejudicial to the interests of the Association and to expel him from the Association'.
The grounds the Committee considered in passing the Resolution are as follows.
Attempting to apply improper pressure on the Editor of the Society's Magazine, so as to induce her to include certain letters/opinions in the Magazine or distribute them with the Magazine.
Attempting to exert influence on the Editor of the Society's Magazine by personal harassment/abuse in order to either try and get her to comply with his requests or to attempt to intimidate her or punish her for not complying with his earlier requests.
Attempting to intimidate members of the Society, by the use of threats both direct and implicit, to prevent those members exercising their rights at meetings and in regard to the conduct of the affairs of the Society.
Causing members of the Committee of Management and/or Office holders of the Society to have to expend large amounts of time and/or cost dealing with complaints, criticisms or allegations emanating from you, such complaints, criticisms or allegations being trivial and/or untrue and/or designed to be hurtful to individuals or disruptive of the working of individuals within the Society or disruptive to the workings of the Society.
Taking steps or actions which are likely to and/or which are intended to discourage or frighten members from exercising their rights or to become actively involved in the affairs of the Society.
Engaging in conduct which is detrimental to the best interests and/or the good reputation of the Society and/or brings the Society into disrepute.
I inform you that you may address the Committee on this matter at its next meeting to be held at the residence of Mrs P.Walsh, `Kelvin Park Homestead', Kelvin Park Drive, Bringelly, N.S.W. on the 20th of September 1992 at 11.00am. You may attend and speak at this meeting and/or submit to the Committee at or prior to the meeting, written representations relating to the Resolution."
These notices provoked extremely lengthy requests for particulars, of the kind sometimes seen in court proceedings. Detailed particulars were sent by the Society's solicitors by letter on 10 September 1992. However, neither Mr Whittle nor Mrs Whittle chose to attend the committee meeting on 20 September 1992 to rebut the charges. At that meeting, the resolutions were confirmed unanimously under rule 10.4. This decision was notified to Mr and Mrs Whittle pursuant to rule 10.5.
Each of Mr and Mrs Whittle, in reliance upon rule 11.1, appealed to the Society in general meeting. Accordingly, general meetings were called for 10.00 am on 18 October 1992, and 11.00 am on the same day, to hear the appeals of Mr and Mrs Whittle respectively. The venue was fixed for the Imperial Building, Blacktown Showground. The meetings were to be followed by the annual general meeting of the Society, which was called for 1.00 pm on that day. Notices were sent out on 2 October 1992.
When the first meeting was about to begin, at 10.00 am on 18 October 1992, Mr Whittle was not in attendance. The Society had arranged for the proceedings to be tape recorded. The recording shows that the president Mr Goulding, as chairman, delayed the commencement of business in case Mr Whittle, who might have been unfamiliar with Blacktown Showground, had encountered some difficulty in finding the meeting place. A member was asked to look for him in the vicinity. I think that both this action and the action of the Society in having the proceedings tape recorded are relevant to the allegation of bias which the applicants make. At 10.17, Mr Goulding called the meeting to order, when it was noted that Mr Whittle had still not appeared. In cross-examination at the hearing of the present matter, Mr Whittle said that he had been "toying with the idea" of attending, but had decided not to as he "considered that any attendance was purely a waste of time, money and effort". He did, however, write a letter in pursuance of his entitlement, by rule 11.3(b), to state his case in writing. It was for the meeting to evaluate that letter, but it seems to me that it might have been seen by the members as a truculent defiance rather than a defence of his actions. The tape recording shows that it was faithfully read to the meeting.
Mr Goulding told the meeting that it was the first time the Society had conducted such a meeting, that those who wished to speak should "stand first to say their name, and then speak as they choose", explaining that this would make transcription from the tape easier. He referred to the terms of the resolution "that Mr David Whittle has persistently and wilfully acted in a manner prejudicial to the interest of the Association and to expel him from the Association". He then read out the six grounds. He told the meeting that the six points raised in the Society's letter were "the only matters that should be discussed at this meeting and no representation on any other matter whatsoever should be discussed or considered by any member in voting on the motion that will be put to you at the end of this meeting". He said "it would be incorrect for any member to speak or consider any matter that does not relate directly to any of the six charges." A number of members spoke about these matters, and then Mr Goulding read out Mr Whittle's written submission to the meeting. There followed general discussion, in which several persons, including Mr Goulding, recounted matters which they related to the allegations founding the committee's resolution. Although Mr Goulding certainly supported the resolution with his own testimony, the recording does not suggest any unfairness at any stage. When Mr Blight began to refer to a matter that might have been outside the grounds, Mr Goulding cut him off, telling the meeting: "Please, you can't count anything about what Mr Blight just referred to then." At a point where Mr
Goulding had asked: "Do you have any questions?" and received no further response, he continued:
"There being no questions, it now comes to the time of voting. What the committee has done, has moved a resolution to take action against the membership of David Whittle with this Society on the grounds you heard read in the original letter, you heard the answers, the answers to the questions that were supplied by Mr David Whittle and given by the Society's solicitor. You heard Mr Whittle's letter to this meeting. It is for you to decide whether you do one of two things - you'll be asked to vote to either confirm or reject the resolution that was passed by your committee affecting the membership of Mr David Whittle. If you vote yes, you will be confirming the resolution and Mr Whittle's membership will be no more, and that will be the end of the matter. If you vote no, you will be rejecting the motion and a successful no vote will mean that Mr Whittle's membership remains unaffected - and that also will be the end of the matter. Members you must consider whether the Society has proved the six allegations or whether Mr Whittle has successfully defended them. It is a matter for you. I ask you to vote with your conscience in all fairness to yourselves as members of this Society and this Society in general. The vote will be a secret ballot."
There was further discussion, at the end of which someone asked the question: "You haven't explained whether everyone has to agree with every charge that has been made against Dave Whittle." Mr Goulding replied:
"The Court Director [sic] will thank you for the point. Members, you don't have to think that the Society has proven every allegation or ground. One ground is sufficient. It is up to you. One is sufficient, more than one is more than sufficient, and six is far too many. But it is up to you. Any one or all is sufficient to vote yes or all of them must be disproved for you to, in good conscience or faith, vote no. Is that quite clear to you all? I ask you to vote secretly and place your vote in this ballot box."
The balloting then took place, and the votes were counted at once, the result being 25 votes in favour of the resolution of expulsion and three votes against.
The second meeting was called to order at twelve minutes past eleven. Again Mr Goulding referred to the committee's motion, and to the Society's letter of 24 August 1992 to Mrs Whittle which followed. He read out the letter, stating the resolution and the grounds. He read out Mrs Whittle's letter requesting details and the reply of the Society's solicitors. He also read out Mrs Whittle's written submission to the meeting which had been received by facsimile on 16 October. The submission is lengthy. Obviously, Mrs Whittle's feelings ran high, and it is perhaps understandable that at times her submission displays a degree of shrillness. Mrs Whittle referred to the committee's grounds as "largely a mish mash of gossip, hearsay, innuendo, suggestion and pure fiction", such as to "do small credit to the people who have either invented and/or repeated them". She was sarcastic about the allegation of intimidation, and about the committee's efforts to comply with the rules. Yet Mr Goulding did not succumb to what must have been the temptation to interrupt his reading of the submission with comments in rebuttal. He read it fairly, and Mrs Whittle in cross-examination acknowledged that her submission had been read to the meeting, as had that of her husband to the earlier meeting. She made this acknowledgment having listened to the tapes. She did not suggest that the
reading had been other than completely fair. Asked "you exercised your opportunity to put forward your case to the Society, and you now know that that case was put?" she answered: "That's correct".
While Mr Whittle explained his non-attendance in the way I have already indicated, Mrs Whittle was less frank. She complained about the location of both the committee meeting and the Society's meeting. She asserted that "(q)uite naturally, of course" she "wanted to go and put [her] case to the committee meeting". As for the general meeting of the Society, she said: "I did intend to attend the meeting if I had transport." But in cross-examination she conceded that the Society had never organized meetings out of the state of New South Wales, and that "the greater number of meetings have been held either in the outer metropolitan area of Sydney or out of Sydney totally". She had attended meetings at Blacktown (more than once), Toongabbie, Menangle and a place near Newcastle. Although she claimed she had wanted to put her case to the committee, she admitted that "two or three days before", she decided not to go. Asked whether she "made a conscious decision not to attend" the general meeting at Blacktown, she said: "Once again it was dependent upon having somebody to go to the meeting with me and I didn't have anybody to attend the meeting with me." She said "there was a reluctance to attend the meeting on my own". But pressed, she acknowledged that there was "a conscious decision on [her] part not to attend the meeting on her own". She had made that decision after consulting a solicitor. And, finally, she admitted: "I thought discretion was the better part of valour in this instance". Having heard Mrs Whittle cross-examined, I have no confidence in the veracity of her claims and explanations. I do not accept that the location of either meeting was a significant factor in her failure to attend, or in that of her husband. Generally, I do not accept Mrs Whittle's evidence unless it is in accordance with my own view of the probabilities in the light of the whole of the evidence. I think Mrs Whittle has become blinded by pettiness, where her relations with the Society are concerned, and that the truth has become unimportant to her.
In weighing the claim now made that the resolutions of the committee and the Society were so unreasonable as to exhibit bad faith, I think I should take into account the failure of both Mr and Mrs Whittle to attend either the committee meeting or the Society's general meeting to state their cases. As regards the general meeting, I think this failure is eloquent of their belief that a clear majority of their fellow members would view their conduct as wilfully and persistently prejudicial to the interests of the Society. They were not prepared to face the meetings to explain their actions. It seems to me that the members at the meetings may well have felt that they could more confidently rely upon the material adduced in support of the committee's resolutions in the absence of defence other than defence of the character of the written submissions. After all, Jones v. Dunkel (1959) 101 CLR 298 (as appears from the judgment of Windeyer J. at 317) was the law's response to a juryman's assertion of a common sense evaluation of just such a situation.
After a lengthy discussion, in which both he and a number of other members contributed, both he and some of them quite forcefully, Mr Goulding put the matter to the vote in similar terms to those he had used in relation to Mr Whittle. Again, he was asked whether one ground would be sufficient, and he replied: "Absolutely. Any one is sufficient. Any two is twice as sufficient and more than necessary." Voting was again by secret ballot. The committee's resolution of expulsion was confirmed by 26 votes to three, one member having arrived for the second meeting who had not been present earlier.
I turn to the claims of denial of natural justice and bias in relation to the conduct of the meetings of the Society. The starting point, for an Australian court, must be the decision of the High Court in Australian Workers' Union v. Bowen [No. 2] (1948) 77 CLR 601. The leading judgment is that of Dixon J., with which Starke J. concurred, while Rich J. expressed his "general agreement". The case involved the dismissal of certain members from a union by its executive council acting under a rule authorizing that body (as Dixon J. indicated at 620) "to dismiss any member who in its opinion is guilty of misconduct". Six members who had been so dismissed appealed to the convention of the union, which affirmed their dismissal. The first point of importance for present purposes is the High Court's ruling that the invalidity of the original decision of the executive council was overcome by the convention's confirmation of the expulsions. Dixon J. said (at 631-632) of the expelled members who had appealed:
"By so appealing they treated the expulsion, not as regular, but as having an operation under the rules and as proceedings to be reviewed, and, if the convention thought fit, corrected by the convention. The convention had complete authority over the whole question of expulsion, and it was for it to decide whether the findings and the dismissals from membership should be set aside, varied or confirmed. The convention confirmed them.
It may be true that the convention gave them less consideration than might be thought proper. It may be true that the convention treated the dismissal of the appeals as almost a foregone conclusion. But it is the supreme authority in the union and if a supreme authority is chosen as a domestic tribunal, particularly when it is a deliberative assembly, it may be expected to act upon views formed by the knowledge the members possess of the affairs of the body.
I think that under the rules the decision of the convention gave a fresh authority to the dismissals and they no longer depended upon the resolutions of the Executive Council."
More recent decisions have applied the same reasoning even where a domestic tribunal is not involved, provided "a full and comprehensive appeal" is available: Twist v. The Council of the Municipality of Randwick (1976) 136 CLR 106 at 113; Colpitts v. Australian Telecommunications Commission (1986) 9 FCR 52 at 65, where additional authority is referred to.
In his judgment in Australian Workers' Union v. Bowen, Dixon J. referred (at 628) to "the principle that prima facie a prosecutor cannot sit as judge". He continued:
"It is important to keep steadily in mind that we are dealing with a domestic forum acting under rules resting upon a consensual basis. It is a tribunal that has no rules of evidence and can inform itself in any way it chooses. Members may act upon their own knowledge and upon hearsay if they are satisfied of the truth of what they so learn and if they give the member with whom they are dealing a proper opportunity of answering the charge and defending himself. The tests applied to juries' verdicts, namely, whether there was evidence enabling a reasonable man to find an affirmative or whether upon the evidence a finding was unreasonable, have no place in the examination of the validity of such a domestic tribunal's decisions. But the tribunal is bound to act honestly, that is to say it must have an honest opinion that what the member before it did amounted to misconduct and its decision must be given in the interests, real or supposed, of the body it represents and not for an ulterior or extraneous motive ... ."
Dixon J. added that counsel had analysed the facts on the basis that "an appreciation of what had occurred showed that it could afford no foundation for a charge of misconduct". However, he held (at 629):
"But I do not think an examination of the facts with the object of supporting such a view of the matter is an admissible mode of attacking the validity of the expulsions. The rules place upon the executive the duty of forming an opinion whether there was misconduct. The question was largely one of motive and purpose and to aid the Executive Council in the interpretation of the respondents' conduct they had, not only their personal experience of the men and their own knowledge of the detailed course of events, but also the polemical publications of Bowen and his executive ... ."
His Honour made it clear (again at 629) that the only grounds available to attack the finding of the executive council were "want of bona fides or misconception of functions". He asserted (at 630) that "we are not entitled to examine the correctness of the Council's view either in fact or law".
The judgment of Dixon J. then turns from questions of bona fides to questions of natural justice. It continues (at 630-631):
"The last matter relied upon as invalidating the decisions is of a more serious kind. It is that the Executive and Dougherty were both prosecutors and judges and animated by such intensity of feeling that they were disqualified by bias. So far as this contention is based upon the fact that the Executive Council promoted the charges and that they were vitally concerned in the controversy not only as members of the union but as office-bearers whose authority had been resisted, there is in my opinion no substance in it. The reason lies in the constitution of the union. In choosing as a domestic forum a governing body and in authorizing it to make inquiries and investigations of such a kind the rules necessarily bring about, if they do not actually contemplate, such a situation. Domestic tribunals are often constituted of persons who may, or even must, have taken some part in the matters concerning which they are called upon to exercise their quasi-judicial function. Nor do I think that it has been shown that any particular member, putting aside the general secretary, was disqualified by any interest or specific ground of bias attaching to him or to them all."
Dixon J. went on (at 631) to hold that the general secretary was in a different position from that of the other members of the council. He "had been engaged in bitter public attacks on the respondents ... and had exhibited the most intense and extreme opinion about the respondents' conduct concerning the
matters in question." He had "assumed the functions of a prosecutor" and been "invincibly biassed against the accused". His participation in the council's decision would have led to its being set aside, but for the appeal to the convention of the union and the confirmation of the decision that resulted.
The question of bias on the part of a member of a domestic tribunal arose again in Maloney v. New South Wales National Coursing Association Ltd (1978) 1 NSWLR 161, a case in the New South Wales Court of Appeal. There it had been held that the plaintiff had failed to establish actual bias on the part of a vice-president who sat on a committee that dealt with the plaintiff. The committee found the plaintiff guilty of "conduct which in the opinion of the Committee is unbecoming a member or prejudicial to the interests of the Company" within the meaning of an article alleged to have been applicable. But the trial judge had reached the conclusion that there had been such hostility between the plaintiff and the vice-president as to lead to a reasonable apprehension which fair minded persons might entertain that he would not act with an unbiased mind. The question was thus squarely raised for the Court of Appeal whether it was necessary for the plaintiff to show actual bias, or whether the lesser finding would suffice. Glass J.A. (with whom Hope and Hutley JJ.A. agreed) cited (at 169) the decision of Maugham J. in Maclean v. The Workers' Union [1929] 1 Ch. 602, where that Judge held (at 628):
"A case may well arise in which the member has definitely quarrelled with every member of the committee. Such bias as may result in the minds of the members of the committee ... cannot in my opinion constitute a disqualification from acting under [the applicable rule]."
After a detailed discussion of the authorities, and particularly of Australian Workers' Union v. Bowen, Glass J.A. came to the conclusion (at 172):
"Where the executive body of a private organisation is also the adjudicating body, the implication is irresistible that facts which might lead to a suspicion of bias against a member of the committee do not disqualify him as an adjudicator. By conferring these two sets of authorities upon the committee, the members of such a body have agreed to accept all the risks involved in drawing its judges from among those likely to have been in the centre of any factional strife. The beliefs and feelings which may be inherited from past conflicts do not prevent the members sitting in judgment upon each other. The only qualification upon that implication is that the members have not agreed to subject themselves to the adjudication of those who have developed an actual bias which no evidence or argument is likely to overcome. It follows that the tribunal was not required on the grounds of natural justice to exclude Mr. Phillips, because of a suspicion of bias on his part against the plaintiff."
In my opinion, this passage applies even more completely where a general meeting of the body itself is the adjudicator. It cannot be thought to be intended that, in a case involving the application of rules designed to exclude from the membership persons whose conduct is inimical to the interests of the organization, the very persons who might be expected to have the interests of the organization most closely at heart, its president and office holders, should be excluded from
performing the normal functions of their offices. They are very likely, by virtue of the duties entrusted to them, and the part they have played in the affairs of the organization, to have had an intimate involvement in the matters to be debated by the meeting. But when the constitution reposes the ultimate decision in its general meeting, the consequences to which Glass J.A. adverted must be taken to have been accepted. The president is intended to perform his task of chairing the meeting, subject only to exclusion in a case where he gives way to actual bias. It is noteworthy that in Australian Workers' Union v. Bowen nothing was said about any part that the general secretary may have played in the decision of the convention; it was his actual bias displayed in the decision of the executive council which vitiated that decision.
The terms of the constitution of the Society illustrate the point. It requires the Committee, having judged the matter, to assume the role of a protagonist at the general meeting, seeking confirmation of its resolution of expulsion. There is no hint that the president should not act in his normal capacity of chairman, nor that the application of rule 27 to this type of general meeting requires modification. In fact, no objection was raised at the time to Mr Goulding chairing the general meetings of the Society.
The judgment of Samuels J.A. (with whom Hutley J.A. agreed) in Hall v. New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 shows (at 387-389) that the multiple roles played by persons involved in domestic tribunals need not stop short of the person fulfilling the role of chairman. In that case Samuels J.A. said (at 389):
"Compton, as chairman, conducted the inquiry, and performed the role of inquisitor. He adopted a consistently hostile attitude towards the appellant, but not, it must be said, until the appellant, Morton, Pascoe and Compton himself had each given his account. Thereafter, his questions indicate to me that he himself had formed a firm view that the appellant had behaved exactly as alleged, and that this conduct was, to use Compton's own words, `over the fence and disgraceful'.
I do not consider that the appellant has any ground for complaint on this score. ... (T)he duality of roles which Compton and Pascoe had perforce to adopt made it highly unlikely that they would, in any real sense, set aside their own convictions formed as a result of what they had themselves seen or heard. But this is a consequence of the procedure which the rules, not only permitted, but required."
In Cains v. Jenkins (1979) 28 ALR 219 at 230, J.B. Sweeney and St John JJ. said (at 230):
"Some of the committee members hearing the charges against the appellant had personal knowledge of the facts supporting the charge. This was utilized to support a further submission of denial of natural justice. Rule 24 of the branch rules provided that the branch secretary was under the supervision of the committee. In the domestic tribunal sphere natural justice is an implied term of the contract of membership. Terms cannot be implied where a contrary intention is expressed in the contract. If the committee is dutiful, in many cases, its members will necessarily become aware of or have personal knowledge of the conduct which forms the subject-matter of the charge. It follows that the implied term of natural justice is modified to the extent that if a quorum of the committee cannot be formed from members with no knowledge the members with knowledge must proceed to deal with the charge. To hold otherwise would, for example, put a defalcating secretary in an impregnable position if he confessed his misappropriation to the whole committee. That could not be the true intention of the parties to the contract of membership."
I have come to the conclusion that the allegations of bias and bad faith are not made out. Undoubtedly, Mr Goulding was personally involved in some of the matters alleged. Numerous authorities, including Australian Workers' Union v. Bowen hold that he was entitled, as were other members, to use his personal knowledge. But he was required not to be guilty of actual bias in acting in the proceedings. In my opinion, the applicants have failed to show actual bias. I have already referred to Mr Goulding's conduct in delaying the start of the general meetings in case the applicants should arrive, and his care with respect to the tape recording of the meetings. Unfortunately, the tapes were not perfect, but they do enable a very fair idea to be gathered of what transpired. I should add that what purported to be a transcription prepared on behalf of the applicants and tendered in evidence was far from accurate, and cannot be relied upon for what was said or for the identification of those who spoke. In summary, on this aspect of the case, I find that the decisions of the committee and of the Society in general meeting were reached in good faith, and were not affected by bias. I have not overlooked evidence that Mr Goulding was involved in some sort of fracas with Mr Whittle a full year before the general meeting, when he pushed Mr Whittle against a door. The evidence did not indicate how that incident arose, and the suggestion of violence was somewhat muted by the disclosure that the door was a glass door, which does not appear to have been broken.
It was argued for the applicants that the decision of the meeting was unreasonable, and in particular that the view put by Mr Goulding from the chair, when he said one ground would suffice to justify confirmation of each expulsion, could not reasonably be supported. On that basis, it was suggested there must be lack of good faith.
The first thing which should be said about this argument is that Mr Goulding made it quite clear that the question was one for the members who were voting at the meeting. He said specifically, and gave the statement emphasis by repeating it, that it was up to them. The authorities justify this approach. The view of the members of a domestic tribunal, against which there is no appeal, is not to be appealed by the back door, as it were, by a contention that it was unreasonable and therefore must have lacked bona fides. Mr Goulding and the other members of the Society were entitled and bound to form their own view on the question. Indeed, the rule was expressed in subjective language: "Where the committee is of the opinion [emphasis added] that a member ... has persistently and wilfully acted in a manner prejudicial to the interests of the Society".
In Dawkins v. Antrobus (1881) 17 Ch.D. 615 at 629 James L.J. said of an appellant in a case involving a very similarly worded rule:
"According to my view he had the most ample opportunity of taking the opinion of the general assembly of the members duly convened, who were the real judges, supposing they did not act corruptly or fraudulently, of whether or not that rule ought to be applied."
The Court of Appeal held that the question was not whether the opinion was correct, but whether it was honestly held by the meeting. Jessel M.R., who had given the decision at first instance, said (at 623-624):
"I say I cannot myself imagine, without direct evidence, that such an act as that standing alone would be sufficient to warrant such an opinion being expressed as that which has been expressed here. But at the same time I must not forget that committees of this kind do not act, and are not expected to act, on strictly legal evidence, nor should I wish them to be confined to anything of the sort. A committee in arriving at a conclusion may be - I will not say `biassed,' because that is a hard term - but may be drawn to a conclusion by one of a great many circumstances which are perfectly notorious and well known in the club, and perfectly true in fact and in every detail, though not at the moment proved before them. They may have considered the immediate conduct a culminating act, although they may not have so expressed it."
This decision was cited by Jordan C.J. (delivering the judgment of the Court) in Paton v. Sydney Press Club (1940) 57 WN (NSW) 57 at 58, where he referred to an argument that the decision of the Board of the Club under an article giving it power to expel a member who, in its opinion, had acted
prejudicially to the interests of the Club was unreasonable, and that this could ground a conclusion "that the Board did not in fact form" that opinion. Jordan C.J. said:
"I entirely disagree with this contention. ... In such a case the question whether the Board's decision is unreasonable becomes relevant only where the reason which it states for its opinion can be regarded as so obviously absurd that it may be inferred that it was not really of the opinion at all."
He proceeded (at 59) to refer to a case of that kind as one where the opinion would have been "preposterous", and he concluded (at 60):
"In such cases, however, the authorities show that there must be some real evidence that the action of the consensual tribunal has been colourable only before it is reviewable in a court of justice."
Even where the rules make no reference to the "opinion" of the committee, a similar conclusion may be reached: Malone v. Marr (1981) 2 NSWLR 894 at 898.
In this case, if it be assumed that, contrary to what Mr Goulding twice told the meeting, his opinion was accepted without examination by the members, it cannot be said it was preposterous to consider any one ground showed the applicant to whom it related had persistently and wilfully acted in a manner prejudicial to the interests of the Society. Even if such an opinion were wrong, it would not follow that it was not actually held. Very much of the applicants' argument
ignored this, and sought to have the Court examine the facts upon which the general meetings adjudicated. I am not entitled to do that. There is, of course, a question of construction of rule 10.1(b) underlying the arguments that were advanced. Members of the Society may have thought that one wilful action could be persisted in by obstinate adherence to it. I cannot say that such a view of the rule would have been preposterous, so as to evidence lack of bona fides.
It is plain on the authorities that the whole question, including the meaning and application of the rule, was before the domestic tribunal. As Dixon J. made clear in Australian Workers' Union v. Bowen (at 630), in a passage I have already cited, I am no more entitled to examine the correctness of the general meeting's view in law than I am the correctness of its view in fact. I should also accept that a bona fide attempt by the chairman to fulfil his function, and I am satisfied this was such an attempt, should not be minutely scrutinized by the court as if it were the direction of a judge to a jury at a criminal trial. In the instructive case Ward v. Bradford Corporation (1972) 70 Knight's LGR 27, where very grave consequences hung upon the decision, Lord Denning M.R. said (at 35):
"The criticisms which have been made do not go to the justice of the case. They go only to points of procedure. They seek to treat the disciplinary body as if it was a court of law. This is a wrong approach altogether. We must not force these disciplinary bodies to become entrammelled in the nets of legal procedure. So long as they act fairly and justly their decisions should be supported."
Phillimore L.J. said (at 37):
"I would emphasize that the rules of natural justice do not require that there should be a right of appeal.
I regard it as wholly undesirable that every educational establishment, or other body which has to perform quasi-judicial duties, should be fettered by the strict rules applicable to a court of law.
Nobody can run a school or college if he has to apply all the orders and rules contained in the Supreme Court Practice. What is important is that the body which tries the case should be fair and unbiased and that the individual who is in trouble should know what the charge is and have a fair chance to put forward his or her defence."
In Calvin v. Carr (1979) 22 ALR 417, Lord Wilberforce, delivering the judgment of the Privy Council, said (at 429):
"(I)t is undesirable in many cases of domestic disputes, particularly in which an inquiry and appeal process has been established, to introduce too great a measure of formal judicialization. While flagrant cases of injustice, including corruption or bias, must always be firmly dealt with by the courts, the tendency in their Lordships' opinion in matters of domestic disputes should be to leave these to be settled by the agreed methods without requiring the formalities of judicial processes to be introduced."
The allegation that the requirements of natural justice were not observed, so far as it depends on matters I have not already considered, is also not made out. Not only has the suggestion that the venues of the meetings of the committee and the Society were chosen to ensure their inconvenience not been established; it has been positively refuted by the evidence, and I do not think it was ever genuinely entertained by the applicants.
It remains to consider the separate matter alleged, that the rules of the Society provide for a registration and transfer system which constitutes an unreasonable restraint of trade because of the requirement of membership. As authority for this proposition, counsel referred to the decision in McCarthy v. Australian Rough Riders Association Incorporated (1988) 10 ATPR 49,017. However, that was an application for an interlocutory injunction, and it goes no further than a finding of a prima facie case. It does so in circumstances clearly distinguishable from the present. I do not think I need pause to discuss the question further, because it was made clear at the hearing that the Society's officers proposed to have its rules altered to permit the registration of ponies by non-members. Having regard to that fact, and to the failure of the applicants to satisfy me that they have suffered or are likely to suffer any loss through inability to register any pony, I would not in any event be prepared to exercise my discretion in favour of a grant of declaratory or injunctive relief. No other relief was sought. In case the Society should fail, upon request, to take the necessary action to permit registration despite the statement made by its counsel, I shall reserve liberty to apply. If that liberty is exercised, the allegation of restraint of trade can be debated, not as an abstract question, but upon some concrete circumstance claimed to raise it. Otherwise the application is dismissed. As the time at the hearing was virtually entirely occupied in dealing with questions on which the applicants have failed, they must pay the costs.
I certify that this and the preceding forty-one (41) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett.
Associate:
Date: 30 May 1995
Counsel for the Applicants: Mr G.G. Masterman Q.C. with Miss Y.F. Holt
Solicitors for the Applicants: L.W. Adams & Associates
Counsel for the Respondent: Mr P.J. Saidi
Solicitors for the Respondent: Coode, Scott & Corry
Dates of hearing: 1, 2, 3, 4 and 5 August 1994
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