Woodward v Mindil Beach Sunset Market Association

Woodward & Anor v Mindil Beach Sunset Market Association [2009] NTSC 18

PARTIES: WOODWARD, LUCINDA
and
BRADDY, VICKI
v
MINDIL BEACH SUNSET MARKET
ASSOCIATION
TITLE OF COURT: SUPREME COURT OF THE NORTHERN
TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN
TERRITORY exercising Territory jurisdiction
FILE NO: LA7 of 2008 (20625162)
DELIVERED: 29 April 2009
HEARING DATE: 2 February 2009
JUDGMENT OF: THOMAS J
CATCHWORDS:
REPRESENTATION:
Counsel:

Appellants: Self Represented
Respondent: D De Silva
Solicitors:

Appellant: Self Represented
Respondent: De Silva Hebron

Judgment category classification: C
Judgment ID Number: tho200902
Number of pages: 43
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Woodward & Anor v Mindil Beach Sunset Market Association [2009]

NTSC 18

No. LA7/2008 (20625162)
BETWEEN:
WOODWARD, Lucinda
and
BRADDY, Vicki
Appellants

AND:
MINDIL BEACH SUNSET MARKET
ASSOCIATION
Respondent

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 29 April 2009)

This is a “Request for Judicial Review” by the appellants from a decision of

a magistrate in the Local Court. I agree with the submission made by Mr De
Silva for the respondent that whilst the appellants have made a request for
“judicial review” it is in fact an appeal under s 19 Local Court Act.
Section 35 of the Local Court Act precludes judicial review - see Woodward
& Anor v Loadman & Anor (No. 2)[1]. It is conceded on behalf of the
respondent that it is open to the appellants to seek other declaratory relief.

The orders appealed from are interlocutory in nature. This involves the
application of s 19(3) of the Local Court Act which provides as follows: “A party to a proceeding may, within 14 days after the day on which the order complained of was made, appeal to the Supreme Court from an order of the Court, (other than a final order) in that proceeding, with the leave of the Supreme Court.”
The appellants require the leave of the Court to appeal. The onus is on the

appellants to establish error on the part of the magistrate vitiating his
decision.

On 11 August 2008, the learned stipendiary magistrate gave a decision on an

application brought by the respondent pursuant to Rule 28.01 of the Local
Court Rules. The respondent is an incorporated association to which the
provision of the Associations Act apply. Mr De Silva, on behalf of the

respondent, sought a stay of proceedings initiated by the appellants on an Originating Motion in the Local Court on the basis that it was an abuse of
the process of the court. Rule 28.01 provides as follows:

“28.01 Stay or judgment in proceeding

(1) Where a proceeding generally or a claim in a
proceeding –
(a) does not disclose a cause of action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the Court,

the Court may stay the proceeding generally or in relation to a claim
or give judgment in the proceeding generally or in relation to a
claim.

(2) Where a defence to a claim in a proceeding –
(a) does not disclose an answer;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the Court,

the Court may give judgment in the proceeding generally or in
relation to the claim.

(3) In this rule –
(a) a claim in a proceeding includes a counterclaim and a claim by third party notice; and
(b) a defence includes a defence to a counterclaim and a defence to a claim by third party notice.”

Based upon certain affidavit evidence and after hearing lengthy submissions
from both parties, the order made by the learned stipendiary magistrate was
to stay the plaintiffs’ application in relation to prayer for relief (1) and (2). He further found there was no cause of action legitimately before the Court

with respect to the plaintiffs’ prayers for relief (3), (4) and (5) and these
were struck out.
History of the proceedings

On 3 October 2006, the appellants issued an originating application pursuant

to Rule 7.08(1) of the Local Court Rules applying to the Court for the
following orders:
“1. That the Mindil Beach Sunset Market Association (MBSMA) forthwith reinstate the applicants as members of the MBSMA.
2. That the MBSMA reinstate the applicants as stallholders at

Mindil Market.
3. The MBSMA pay to the applicants, all lost income (to be

assessed or agreed) for the period of disqualification.
4. That the MBSMA provide all particulars in detail of

allegations made against the applicants.
5. That there be an investigation into the conduct of the MBSMA. The applicants relied on s 39 and s 109 of the Associations Act (NT). The facts, matters and circumstances supporting this application are:
The applicants were members and stallholders of the MBSMA. In June 2006 the MBSMA Public officer forwarded letters name[ed] “Default Notices” to the applicants.
The default notice contained allegations about the applicants. The
applicants requested particulars of the allegations made. Particulars
were provided to applicant Braddy on 26 September 2006. Applicant
Braddy was unable to respond to the allegations and/or particulars as
they were incomprehensible. Because Ms Braddy did not respond to
the liking of the MBSMA, the said association on 26 September
expelled her from the MBSMA. As for applicant Woodward,
particulars were not provided because she did not attend a meeting
scheduled by the MBSMA, and the MBSMA henceforth on
26 September expelled her from the association.
The applicants’ claim they have not been afforded due process and that they have been treated oppressively and unreasonably.”

The appellants were members and stallholders of the MBSMA. On 30 June
2006, the MBSMA public officer forwarded “Default Notices” to the
appellants.
The Default Notices were in exactly the same terms with respect to each
appellant. Omitting formal parts they read as follows:
“Default Notice
Following a unanimous decision by the Management Committee this notice is served without prejudice on the following grounds.
1. Colluding with others with the intent to malign and defame

certain members of MBSMA by making available for broadcasting,
slanderous material per the medium of public radio to covertly incite
division among the general membership of the association and to
bring the MBSMA into disrepute.

2. Colluding with others with the intent to malign and defame

certain members of MBSMA by making available for broadcast,
slanderous material per the medium of an apparent covert website to
incite division among the general membership of the association and
to bring the MBSMA into disrepute.

3. Obstructing the Management and Committee of MBSMA from

attending to the business of the Association by covertly
disseminating masses of deceitful and defamatory email material to
the Management office and certain members of the committee and the
membership at large, with the intent to incite division and dispute
amongst the members and to bring the MBSMA into disrepute.

4. Without the permission of the Association or its members,

illegally using MBSMA membership details, knowing them to have been illicitly downloaded from the Association’s computer by other persons, to defame certain members of MBSMA and the Association itself, by disseminating offensive and incorrect material to the
Department of Justice, the Northern Territory Tourist Commission thereby bringing the Association into disrepute.
At a General Meeting of the Association conducted on Tuesday
23rd May 2006, the Committee received a very strong mandate from
the members to attend without delay to this Default Notice.
You are required to respond to the Management Committee under 4.6.2(e) (within no less than 14 days and no more than one month following the date of the Default notice) attend a Committee meeting
where the member shall be given an opportunity to present his or her
case to the Committee. If the member fails to comply with these
directions the Committee will refer the matter to eligible members to
decide whether to expel the member from the Association.
Section 4.6 of the current Constitution clearly expresses your responsibility regarding this notice.”

Prior to the issue of the Default Notice, the appellants had raised a number

of concerns with the Committee of the Management of the Association
including allegations of mismanagement of the Association funds and
harassment of members at Mindil Beach Market. The appellants state that
when they sought clarification of these and other issues from the
Management Committee, they were either ignored or shouted down by a
small number of members and personally treated in an oppressive manner by
members of the Management Committee of the MBSMA.

A general meeting of the Association was held on 26 September 2006 at

which a decision was made to cancel the membership of each of the
appellants and removal of their name from the register.
[11] The appellants were served with “Notification of Cancelled Membership”,

dated 27 September 2006, which omitting formal parts reads as follows:

“Following the General Meeting held at the Fannie Bay Turf Club, wish to notify you of the decision made by the members present at the meeting.
The Committee presented to the members information it had received
in relation to your involvement in the matters outlined in your
Default Notice (see letter to you, dated 30 th June 2006).
A Motion was put to the meeting to cancel your membership forthwith. A secret ballot was undertaken. The votes were counted and the Chairperson of the meeting declared the Motion Carried.
The Committee therefore is obliged to notify you that your membership has been cancelled and your name removed from the register of members. This will take effect 14 days from the date of this letter.”

On 3 October 2006, the appellants issued an originating application in the
Local Court as detailed in paragraph [6] of these reasons for judgment.

[13] On 12 February 2007, the respondent issued an interlocutory application
pursuant to Local Court Rules 10.04 and 28.02, seeking an order that the
appellants’ claim be struck out for a failure to provide proper particulars.

This application came before Mr Loadman SM who, on 21 February 2007,
made an order that the whole of the Originating Motion be struck out and costs awarded against the appellants at 100 percent of the appendix to the Supreme Court Rules.
The appellants filed a Notice of Appeal dated 21 March 2007 setting out a

number of grounds relating to errors of law the appellants asserted had been
made by the learned stipendiary magistrate.

On 17 May 2007, the respondent’s taxation of costs was adjourned sine die

with liberty to apply. The application for a stay of the costs order was
withdrawn.

The appeal came before Olsson AJ. His Honour delivered reasons for
judgment on 9 November 2007 (Woodward & Anor v Loadman & Anor).[2]
His Honour found that the appeal had not been properly instituted as of right

and was incompetent. He stated at paragraph 63: “… it is not now open to
the appellants to seek an extension of time within which to appeal under
s 19(3) of the Local Court Act (Collins v Deflaw Pty Ltd)”.[3]

His Honour identified a number of errors made by the learned stipendiary

magistrate that had demonstrated serious departures from the rules of natural
justice. He stated he was satisfied the appellants had demonstrated a right
to relief by way of an order in the nature of certiorari. His Honour quashed
the impugned orders and remitted the proceedings back to the Local Court
for rehearing before another magistrate.

On 12 December 2007 the appellants filed a further summons seeking the
following orders:

“1. An order that the(sic) in the making of the order on
21 February 2007 striking out the originating application filed
by the plaintiffs on 3 October 2006, the Learned Magistrate
failed to accord the plaintiffs natural justice and acted with
actual bias.
2. Such further or other orders as the court deems appropriate.”

On 12 February 2008, Olsson AJ delivered further reasons for judgment. He

accepted further argument from the parties as to the effect of s 35 of the
Local Court Act. This section had not previously been averted to by either
party. His Honour found this provision precluded him from making “orders
in the nature of certiorari, mandamus, prohibition or quo warrants against
the Local Court or an officer of the Local Court (Woodward & Anor v
Loadman & Anor).[4] His Honour then made the following orders:

“(1) That the originating motion in matter SC 45 of 2007 be
amended so as to claim, in the alternative, declaratory relief of
the nature specified in the summons filed in those proceedings
on 12 December 2007.
(2) That this Court declares that, having regard to the attendant
circumstances, the making by the first defendant on
21 February 2007 in Matter 20625162 in the Local Court at
Darwin of an order striking out the originating application in
that matter and the associated order for costs did not accord the
plaintiffs in that matter natural justice. Accordingly, it further
declares that the jurisdiction of the learned magistrate has
constructively not been exercised as to that order.”

On 13 February 2008 the Registrar of the Supreme Court authenticated the
following orders made by the Court on 12 February 2008:
“THE COURT ORDERS THAT:
1.         The order of 9 November 2007 in matter No SC 45 of 2007 is recalled and vacated.
2.         The Originating Motion in matter No SC 45 of 2007 be amended so as to claim, in the alternative, declaratory relief of the nature specified in the summons filed in those proceedings on 12 December 2007.
3.         The order of 9 November 2007 in matter No LA 6 of 2007 is not recalled and is to stand.
4.         There is no order as to costs.
AND THE COURT DECLARES THAT

1.
Having regard to the attendant circumstances, the making by in the Local Court at Darwin of an order striking out the originating application in the matter and the associated order for costs did not accord the plaintiffs in that matter natural justice. Accordingly, the jurisdiction of the learned magistrate has constructively not been exercised as to that order.”

The practical effect of these orders was that the appellants’ originating
application was referred back to the Local Court for hearing before another
magistrate.

On 18 March 2008, the respondent filed an application pursuant to Local
Court Rule 28.01 that the proceedings be stayed and for a further order that
the appellants, in the substantive action, pay the respondent costs of this

application. Rule 28.01 has been set out in full at paragraph [4] of these
reasons for judgment.

This application was supported by an affidavit of Damien Joseph Jones
sworn 18 March 2008. Annexed to this affidavit is copy of a letter dated 13 March 2008 from solicitors for the respondent to the appellants. This
letter, omitting formal parts reads as follows:
“Our client has given your application to the Court further
consideration, and our client has also closely considered the best
interests of the Association and its members. Having done so, our
client cannot justify the continuation of the Court proceedings and
has made the decision, on a commercial basis [to] withdraw the
notice cancelling both of your membership[s] dated 27 September
2006.
The effect of our client’s decision is that you remain a member of the Association and the basis for the Court proceedings no longer exists.
Please find enclosed (*)¹ Consent Order which we ask you to sign and return to us, to enable it to be filed on Monday 17 March 2008 when the writer is appearing in the Local Court on another matter at 10.30am.
Should you not return the Consent Order to us, at the above time we shall advise the Court we have no other option but to make the appropriate application to the Court to finalise the proceedings.
We await your reply.
Naturally, should you wish to discuss the matter, please do not hesitate to contact the writer.
¹Consent Order”
The proposed consent order was that the proceedings be dismissed on the
basis the appellants remain members of the respondent Association.
Further, that each party bear their own costs.
The appellants were not prepared to sign such a consent order. Accordingly,
the respondent’s application to stay the proceedings came on for hearing
before his Honour Mr Wallace SM on 10 April 2008.
The hearing of the respondent’s application
For various reasons the matter was adjourned part heard on 10 April and further heard on 26 May 2008, 21 July 2008 and 11 August 2008.
On 11 August 2008, the learned stipendiary magistrate made the orders as

set out in paragraph [5] of these reasons for judgment. I set out hereunder
relevant parts of the learned stipendiary magistrate’s reasons for decision
which was given ex tempore (tp 28-30):
“ What is before me at the moment, what we’ve been talking

by the respondent seeking that the proceedings brought by the
applicants, Ms Woodward and Ms Braddy, be stayed. The
proceedings brought by Ms Woodward and Ms Braddy are brought
pursuant to section 109 of the Associations Act which give the Local

about for the last three, four, five months is an application brought relation to the relief against oppression and unreasonable action on the part of the associations towards their members. Ms Woodward and Ms Braddy were and perhaps are again or perhaps can be again, member of the association which is the respondent.
The originating application brought Ms Woodward and

Ms Braddy sought this relief: first, that the association forthwith reinstate them as members of the association; secondly, that the association reinstate them as stallholders at Mindil Markets. It's quite clear that the first relief is one which the court can give and I refer there to section 109(2)(h) of the Associations Act. Indeed, the relief sought is precisely that which the law allows and that order is one that the Local Court can make pursuant to subsection (5) of that section.
Subsection (2), the order to reinstate them as stallholders, is

not on the face of it the sort of order the court can make, but it seems
to me clear that in order to be fully fledged members of the
association, on the material before me, Ms Woodward and Ms Braddy
would need to be stallholders, and it would therefore seem that that
order would be one consequential on or ancillary to an order for their
reinstatement. It would be a necessary adjunct to that order and it
seems to me therefore, according to the provision of subparagraph (i)
of section 109(2), the court can grant that order as well.

Clause number 4 or head number 4, that the association

applicants is again something that doesn't seem to me – well, it's
quite clearly not provided for in section 109, nor does it seem to me
to be consequential on or ancillary to the relief that can legitimately
be asked for. Ms Woodward and Ms Braddy may well feel, and they
may well be right, that their names and reputations have been
traduced in the proceedings of the association which led to their
suspension, expulsion or whatever it was. If they have been
defamed, libelled, slandered, then there is remedies offered by the
courts in various kinds – well, there aren't various kinds of
defamation actions anymore, there's only one. But that once again is

a separate action; it's not an action that can be squeezed into an
action - on this originating application pursuant to section 109 of the

The applicants, Ms Woodward and Ms Braddy, sought three

association pay the applicants all lost income to be assessed or
agreed for the period of disqualification; fourthly, that the
association provide all particulars in detail of the allegations made
against the applicants; and, fifthly, that there be an investigation into
the conduct of the association. It is clear to me that those three
reliefs are not matters that can be offered by this court pursuant to
section 109 of the Associations Act or any other section of the

further heads of relief: first, and this is number 3, that the prayers for relief are not founded.
I say this: that in respect of any claim for lost income, there is

an action that could be lodged in the Local Court in the form of an
ordinary statement of claim, though it wouldn't be an ordinary one, it
would be an unusual one. It would be some sort of action in
conspiracy or breach of contract or tort or something in relation to
that lost income, but it is not a relief that section 109 offers. There
is no provision for this court to give damages, restitution,
compensation or anything of the sort in these proceedings, and
number 3 is therefore a claim not known to the law, at least in these
proceedings.

provide all particulars in detail of allegations made against the properly before the court and seeks relief not know to the law.
Fifthly, the applicants seek that there be an investigation into the conduct of the Mindil Beach Sunset Markets Association and on every appearance before me, including the affidavits that have been filed this morning, both Ms Woodward and Ms Braddy have made it clear that that's something they want. I have said before and I say
again after again looking through the Act, that there seems to be no
part for the court to play in arranging for, recommending such
investigations.
I suppose it's conceivable that if the court were legitimately

hearing a case of some sort and it came to the court's attention
incidentally during the course of such a case that something was
rotten in the affairs of an incorporated association, then the court
might well bring to the attention of the appropriate authority – in this
case, the Commissioner – that there might be something for the
Commissioner to look at.

And that sort of thing happens and has happened in relation to

actions which are so disturbing to the court that the court feels the
need to do something. More commonly, issues arise concerning
people's taxation, income taxation, payment of taxation, that
sometimes the court feels moved to inform the Commissioner of

a number of actions that turn out to be – well, things turn up in such a case and so on.
So it could happen but it is not, in my view, anything that is

central to the court's function and it's not the Local Court's function under the Associations Act to instigate, recommend or pursue these investigations. If somebody can interest the Commissioner into
doing what is desired, fine; if they can't, they can't. It is clear to me that it is not a legitimate purpose to keep this case going in order to open everything up to the point where it might be that the court
might be moved to send off a letter to the Commissioner suggesting
the Commissioner might like to look at what's going on. It's not
impossible that that would happen but it is not a legitimate purpose
of litigation and the relief sought in clause, that there be an
investigation into the conduct of the association, is relief which is
not within the court's power to order.
So that is the situation. There are two heads of relief which it
is legitimate for the applicants to ask for and three which it is not. says this: that they have, by withdrawing the original notice directed towards the applicants, the association says it has effectively rescinded the applicants' expulsion from the association and that everything that happened between the issue of those notice and the withdrawal of the issue of the notice can be, as it were, wiped out, expunged from the record, forgotten about and we can all pretend it never happened. Therefore, the ladies are free to once again apply, fill in their application forms or pay their dues, or whatever is necessary for ordinary members of the association to do on an annual or monthly or weekly basis, whatever it is, and they'll be treated as they were before those notices were issued.”

His Honour then went on to point out that with respect to paragraphs (1) and
(2) of the plaintiffs’ application they were at liberty to apply for

membership as stallholders which was why he ordered a stay of the
proceedings with respect to paragraphs (1) and (2) of the prayer for relief.
The appeal to the Supreme Court

On 22 August 2008, the appellants filed a “Notice of Appeal for a Request
for Judicial Review” to the Supreme Court as follows:
The proceeding appealed for judicial review was heard in Darwin by the Local Court on 11 August 2008 and decided on 11 August 2008.
The appellant appeals for Judicial Review from the decision of
Mr Wallace SM.
1.         Striking out the Applicant’s Originating Application so far as the relief’s sought Numbered 3, 4 and 5 are concerned (Local Court Rule 28.02(a) – no cause of action;
2.         Staying generally the Applicants Originating Application so far as the relief’s sought Numbered 1 and 2 are concerned (Local Court Rule 28.01(1)(c) – abuse of process;
GROUNDS:
1.         The Magistrate displayed an unseemly and unprofessional bias against us the Appellants.
2.         The Magistrate displayed an unseemly and unprofessional bias for the Respondent.
3.         The Magistrate failed to give due regard to the difficulties that we the Appellants faced as unrepresented litigants.
4.         The Magistrate failed to give we the appellants procedural fairness.
5. The Magistrate refused to recognise the relevant jurisdiction of the Local Court in regard to the Associations Act specifically s109.
6. The Magistrate refused to recognise the relationship between the Mindil Beach Sunset Markets (sic) Associations Act.
7.         The Magistrate failed to determine the legal and legislative rights of the parties before making a judgement.

8.
The Magistrate refused to consider the findings of the Supreme LA 6 of 2007 (20625162).
9.         The Magistrate refused to examine the particulars supplied before exercising his authority.
10. The decisions made by the Magistrate in this matter are not in compliance with the legislative requirements of the Associations Act and the Mindil Beach Sunset Markets (sic) Association Constitution.
11. The decisions made by the Magistrate allows and encourages the Respondent to continue to act in a matter which does not comply with the legislation of the Associations Act and the
Mindil Beach Sunset Markets (sic) Association Constitution.
12. The decisions made by the Magistrate ensures we the Appellants and all other Association members continue to be treated by the Respondent in a manner which does not comply with the requirements of the Associations Act or the Mindil Beach Sunset Markets (sic) Association Constitution.
13.       The Magistrate did not afford we the Applicants with Natural Justice.
14.       The Magistrate failed to finally dispose of the proceeding before the court.

[30] The appellants sought the following orders:

1.         An order that the decisions of the Magistrate be set aside.
2.         An order that the matter be heard in the Supreme Court in accordance with the law.
3. An order that the matter be finally disposed of by the Supreme Court in accordance with the requirements of the Associations Act and the Mindil Beach Sunset Markets (sic) Association
Constitution.
4.         An order that the respondent pay the costs of the appellants in connection with this matter.
5.         Such further or other orders as this Honourable Court considers fit.

The matter came before the Supreme Court on appeal on 2 February 2009.
On the appeal the appellants made it clear that their underlying concern was

with the way the respondent was conducting the affairs of the Association.
What the appellants are seeking to achieve is an order from this Court which
will be a basis for the Commissioner of Consumer Affairs to carry out an
investigation of the respondent Association pursuant to Part 10 of the
Associations Act.

The appellants have made a number of allegations concerning the conduct of

the Association which are extremely serious. However, the appellants
recognise that this Court has no power to initiate an investigation into the
way the respondent has conducted their affairs. That is a matter which is
solely within the authority of the Commissioner of Consumer Affairs
(Part 10 Associations Act). The appellants advised the Court that although
they have previously taken their concerns to the office of Consumer Affairs,
it seems they have not been able, to this date, to satisfy the Commissioner
that it would be appropriate to commence such investigation.

The main thrust of the appellants’ submissions to this Court, is to seek a
finding by the Court, under s 109(1)(d) of the Associations Act, that their

expulsion from membership was oppressive or unreasonable. Based on such
a finding the appellants would then renew their application to the
Commissioner of Consumer Affairs to investigate the affairs of the
respondent association.

[34] Section 109(1)(d) of the Associations Act provides as follows:

“109 Oppressive or unreasonable acts
(1) An application to the Local Court or Supreme Court for a
particular order or orders specified in subsection (2) may be made by
a member of an incorporated association or former member expelled
from the association (provided the application is made within
6 months after the expulsion) who believes that:
……

(d)

the expulsion of the member was oppressive or unreasonable.”

[35] Section 109(2)(h) provides as follows:

“(2) For subsection (1), the orders are as follows:
……

(h) an order that the member expelled be reinstated as a member of the association.”

[36] The appellants maintain that the respondent’s decision to rescind the

original decision to expel them from membership as expressed in the letter
to them dated 13 March 2008, is in breach of the Constitution of the
Association. Accordingly, the position of the appellants is that the
Association is purporting to act unconstitutionally and their actions in

expelling the appellants from membership of the Association were
oppressive or unreasonable or both.

The appellants seek this Court to make such a finding which they assert will

constitute a basis for them to satisfy the Commissioner of Consumer Affairs
that it would be appropriate to investigate the affairs of the Association.

I am not able to accept the argument that the actions of the Association were

unconstitutional. The default notice forwarded to the appellants, details of
which are set out under the heading “History of the Proceedings” in the
course of reasons for judgment, was dated 30 June 2006.

At that time the Association was operating under the 2003 Constitution for
the Association. Paragraph 4.6.2 of the 2003 Constitution provided as
follows:
“Where the Committee has sufficient evidence and the majority of
Office-Bearers form the opinion that a Member;

(a)

has persistently refused or neglected to comply with these rules and the regulations; or

(b)

has persistently and willfully acted in a manner prejudicial to the interests of the Association,
the Committee shall, by resolution, give written notice to the
Member (“the default notice”) to-

(c)

comply with these rules and the regulations as and when directed; and/or,

(d)

immediately cease the actions which are prejudicial to the interests of the Association; and,

(e)

(within no less than fourteen days and no more than one month following the date of the default notice) attend a Committee meeting where the Member shall be given an opportunity to present his or her case to the Committee.”

[40] The default notice requested that the appellants:

“… respond to the Management Committee under 4.6.2(e) (within no whether to expel the member from the Association.
less than 14 days and no more than one month following the date of
the Default notice) attend a Committee meeting where the member
shall be given an opportunity to present his or her case to the
Committee. If the member fails to comply with these directions the
Section 4.6 of the current Constitution clearly expresses your responsibility regarding this notice.”

The Association was at the time going through the process of amending the
Constitution of the Association to bring it in line with the new Associations
Act.
The new Constitution referred to as the “2006 Constitution” came into effect

on 26 September 2006. This was the date of the general meeting of the
Association. On the same date, a motion was put to the meeting to cancel
the appellants membership forthwith. This motion was carried. A letter was
forwarded to the appellants dated 27 September 2006, advising the
appellants of this decision.

The decision to cancel the membership of the appellants was made under the
2006 Constitution.
The appellants argue that as it was “the membership” of the Association who
voted to cancel their membership then only “the membership” could reinstate them. The provisions of the 2006 Constitution differ to the provisions in the earlier 2003 Constitution with respect to suspension or

expulsion of members. Section 21 of the 2006 Constitution dealing with
suspension or expulsion of members, enables the Committee to expel a
member and s 22 gives that member a right to appeal and for that appeal to
be considered at a general meeting of the Association. The member has a
right to be heard at the meeting or to make representations in writing prior
to the meeting for circulation at the meeting. It further provides that the
members must then decide whether to confirm the decision of the Committee
to expel the member or set aside the decision of the Committee.
[45] The notification of cancelled membership dated 27 September does not

appear to comply with the provisions of the 2006 Constitution because of a
failure to follow the procedure set out in sections 21 and 22.

This may have been the reason the Association did not proceed with the
decision to cancel membership. I am not able to make such a finding

because the Association’s reasons for deciding to withdraw the cancellation
of membership was not explained to the Court or to the appellants.
However, the fact the default notice was issued under the 2003 Constitution
and the notice of cessation of membership issued under the 2006
Constitution clearly presented problems.

I do not think the actions of the committee of the Association, in advising
the cancellation of membership was no longer in effect, was

unconstitutional. Rather, it was in all probability, a recognition of a defect
in the process which resulted in the members voting to cancel the
membership of the appellants.

Accordingly, I am in agreement with the learned stipendiary magistrate that
the appellants can apply to continue their membership upon payment of the
requisite fees and compliance with other conditions relating to stallholders of the Association. The appellants have chosen not to do so. That is their right, but they can no longer complain they have been expelled from
membership.
Ms Vicki Braddy and Ms Lucinda Woodward have both detailed how
difficult it is, as a practical matter, to return to the Association which has

acted toward them in a hostile manner. I can understand those difficulties.
However, the Association is now well aware that its conduct has been the
subject of complaint by the appellants. It must be in the interests of the
Association to ensure it behaves properly toward the appellants. Failure by
the Association to accept the appellants back into the membership could
result in the appellants returning to court to continue with their application
for orders (1) and (2) in the originating application of 3 October 2006.
Alternately, this may give grounds for an investigation by the Commissioner
of Consumer Affairs.

I consider the learned stipendiary magistrate was correct in ordering a stay
of the prayer for relief in paragraphs (1) and (2). The appellants are at liberty to apply to the Association for renewal or continuation of their
membership.
In addition to this, the appellants are aware that they still have a right to
make a claim for damages with respect to any losses they may have suffered as a consequence of being unable to trade as stall holders. I understand that such claims have in fact been lodged with the Local Court and will be

resolved in due course in separate proceedings. There is no cause of action
with respect to the request by the appellants that they be provided with
particulars of allegations made against them. The Court has no authority to
investigate the conduct of the respondent under the Associations Act. Such

an investigation is the prerogative of the Commissioner of Consumer
Affairs. I agree with the learned stipendiary magistrate that the appellants
cannot substantiate the prayer for relief in paragraphs (3), (4) and (5) by
reference to s 109 of the Associations Act. There being no legitimate cause
of action, the learned stipendiary magistrate was correct in his decision to
strike out prayer for relief paragraphs (3), (4) and (5).

I now deal with the Grounds of Appeal set out in the formal Notice of
Appeal. There are 14 grounds of appeal. They are all essentially assertions
by the appellants that they were denied procedural fairness and natural
justice. The appellants also assert various failures by the learned

stipendiary magistrate to give a decision in accordance with the
Associations Act and the Constitution of the Mindil Beach Sunset Market
Association.

The appellants have not established that in reaching the conclusion he did,
the magistrate was in error.
I do not accept the assertions made by the appellants that the magistrate
failed to afford them natural justice or that he was biased either for the

respondent or against the appellants or that he failed to take into account
relevant material or that the appellants were denied procedural fairness.

I have read in full the transcript of the proceedings before the learned

stipendiary magistrate. His Honour was robust in his questions to the
appellants and in expressing his thoughts as the matter proceeded. However,
this was no more than was necessary to elicit the real issues with respect to
the applications of both the appellants and the respondent. His Honour did
from time to time explain the law and certain procedural matters to the
appellants but not in a manner that could be described as either insulting or demeaning to them. The appellants may not have liked some of the matters

the learned stipendiary magistrate put to them or the views he expressed but
in doing this he was giving them an opportunity to know and understand
what he was thinking which would guide them in making relevant and
appropriate submissions. This did not amount to any unfairness or
demonstration of bias.

During the course of the protracted hearing of this matter, it is clear the
learned stipendiary magistrate gave the appellants every opportunity to
present their case and to put forward their submissions. He emphasised the
limits to the powers of the Court. His Honour exhorted the appellants to at
least make an attempt to be reinstated as members of the Association and
that if they were refused then they may have a cause of action the Court

could deal with. An example of this is the interchange between
Ms Woodward and the learned stipendiary magistrate as appears on page 19
of the transcript of evidence of the hearing on 26 May 2008:
“MS WOODWARD: No. No. We actually want the court - - - just to decide whether or not in any one instance that we were treated in an unfair or an oppressive manner as an individual or as an
association member and allocate the authority to the Commissioner
of the Associations Act to investigate the matter further.
HIS HONOUR: Well, Mr De Silva is saying that he has and the Market has rendered all of that completely unnecessary. It may not satisfy you. There won’t be any investigations in public or in private or at all, but he’s saying you’re reinstated, the action can be discontinued.
The only legitimate relief that the action offered you which is understand. - - -
reinstatement has been effected and as far as I can see, that seems
likely to be true because Ms Gibson, the only one of who has
bothered to take them up on the offer appears to have been found a
site and admitted back into the Association.
MS WOODWARD: Your Honour, I’d like to seek an adjournment.
HIS HONOUR: Well the one thing I want from you, Ms Woodward, and I don’t blame you for not grasping this in its fullness, is to concentrate on the matter in hand. The matter in hand is not the whole case. The matter in hand is the application to have the case struck out because it no longer serves any useful purpose to keep it going because, according to Mr De Silva, the remedy you wanted has been given to you.
MS WOODWARD: Well that’s actually incorrect because I’m an Association member and I find it offensive that my Association committee has just spent over $50,000 in keeping a matter in the courts that should never have been before the courts to start with. This should never have been before the courts. We haven’t wasted one second of the court’s time in this. We have repeatedly asked to be taken to the Justice Department. We don’t have the money for this. This is what’s been all counted. They have spent over $50,000 on court costs, your Honour. That’s my money as an Association member. That’s every other Association member’s money.
HIS HONOUR: I can’t help being continually astounded by the paradoxes that this matter’s throwing up and among them, hearing someone who’s bought (sic) an application and started the court proceeding saying “We never wanted this matter in court” is first rate. The reason this matter’s in court is because you started it.”

On 21 July 2008, being the third day of the hearing, the learned stipendiary
magistrate said as follows (tp 24):
“… Ms Woodward, this is the last thing I’m going to say today and been excluded from membership of the association or from trading, the originating application in this matter will be dismissed.”
that is this: the matter is adjourned for three weeks to 11 August at 9
o’clock for mention and, in the absence of any evidence from you or
When the matter resumed on 11 August 2008, the Court was advised that

neither of the appellants had attempted to trade, neither had they paid their
membership dues. His Honour noted that (tp 28):
“… So at this stage we just don’t know whether - - - the action to
reinstate you has succeeded.”

reference. A reading of the transcript does not support the appellants’
assertion as to the manner in which the magistrate conducted the hearing.

Ground 1. The magistrate displayed an unseemly and unprofessional

bias against us the appellants. made a biased prejudgment against us. He made numerous personal, judgmental, derogatory references about us and about the matter before his court.

(i) In the magistrate’s opinion, our action before the court was based letting go of an action that no longer has much point in itself for one reason or another”.

His Honour then proceeded to give reasons for his decision which have
already been referred to.
Throughout the whole of the hearing, the learned stipendiary magistrate was

attempting to explain to the appellants that their course of action was to take
up the respondent’s offer to reinstate themselves as members of the
association and that a failure to do so would mean the respondent would
succeed in their application. The appellants did not want to listen to the
advice they were being given. If they had made appropriate attempts to seek
to be reinstated as members and this had been rejected or refused by the
respondent or the respondent had thwarted them in some way, then the result
for the appellants may have been very different.
[61] In their written submissions the appellants support their contentions about
the manner in which the magistrate dealt with this matter by a detailed

reference to transcript pages. In these references it is asserted the
magistrate transgressed or demonstrated bias or unfairness.

Many of the grounds of appeal overlap. I have read every transcript
Transcript 10 April 2008, page 12 – line 22 to 28.

[63] This comment was made by the learned stipendiary magistrate in

conversation with Mr De Silva. It was made in the context of trying to
understand why the appellants would be bringing such application that had
no apparent purpose.

(ii) Magistrate Wallace stated – “You’ve got your relief and everything else is just making a nuisance of yourself”. Transcript – Thursday 10 April 2008, page 34, lines 25-28

These words appear in the context of a much longer statement by the learned

stipendiary magistrate in which he was attempting to explain to the
appellants that if in fact they had been re-admitted to the Association then
they had no cause of action. He also explained that if they had been
effectively kicked out and they had not been effectively readmitted then they
still had a cause of action.

(iii)

In Magistrate Wallace’s opinion our application to the Court was “bizarre”.
Transcript – Monday 26 May 2008, page 20, line 7

This is stated by the learned stipendiary magistrate almost immediately after

the interchange between the magistrate and Ms Woodward as set out in
paragraph [56] of these reasons for judgment. It explains why the learned
stipendiary magistrate considered the action by the appellants was “bizarre”.

(iv) Magistrate Wallace was rude and dismissive towards us.
Transcript 26 May 2008, page 27, lines 17-19

I quote hereunder the full statement made by the learned stipendiary
magistrate from transcript of 26 May 2008, page 27, lines 6-19 inclusive:
“HIS HONOUR: Ms Gibson, parties to actions, settle actions for all sorts of reasons, but mostly they settle them because although they’d like to go on, though they’d like to prove their or vindicate their
case, whatever it is, mostly they settle cases because it’s just not
worth it. It’s not worth the trouble to get 100% of what they want.
So whether the Mindil Beach Market Association has accepted process, or whether they’ve said it’s just costing too much and we want to stop or both of those reasons, they want to stop and they reckon they’ve found a way to stop the process which gives you everything you legitimately asking for and leaves you with a sense of grievance about what’s happened, but that’s history.
Why do you say that they can’t go backwards, say, ‘Okay, we withdraw the notice.’ The expulsion’s a nullity. You’re back as a member. You’re back trading. Carry on. If people hate you that’s bad luck. Off we go.”
This was actually addressed to Ms Gibson who was an applicant before the
learned stipendiary magistrate but is not an appellant in these proceedings.
These words were said in the context of a longer statement by the learned
stipendiary magistrate explaining why the respondent would withdraw their decision to expel the appellants from membership. It does not amount to a
rude or dismissive comment.
(v) Magistrate Wallace considered the matter of the unfair and oppressive treatment of us by the MBSMA to be – “Just one of the every day little notions”.
Transcript – Thursday 10 April 2008, page 25, lines 10-18.
These words were used by his Honour in the context of explaining to the

appellants why he did not consider it appropriate for the Court to refer the
matter to the Commissioner for Consumer Affairs. The comments do not
indicate a biased pre-judgment against the appellants.

(vi)

It appeared to us that Mr Wallace had the opinion that our case before the court was not legitimate in some way.

Transcript – Monday 21 July 2008, page 30, lines 14-18.

The transcript for 21 July 2008 concludes at page 26. Lines 14-18 on page
30 of the transcript of the hearing on 11 August 2008 reads as follows:
“I suppose it’s conceivable that if the court were legitimately hearing to look at.”
a case of some sort and it came to the court’s attention incidentally
during the course of such a case that something was rotten in the
affairs of an incorporated association, then the court might well bring
to the attention of the appropriate authority – in this case, the
These comments were made by the learned stipendiary magistrate during the
course of his reasons for decision which are set out in full at paragraph [27]
of these reasons for judgment. The comments were relevant to his
conclusion that the court does not have the power to investigate these
matters.
(vii) Magistrate Wallace consider this matter to be a burden in the court system.
Transcript – Thursday 10 April 2008, page 20, lines 35 to 37.
This was said in the context of the learned stipendiary magistrate explaining

why he intended to grant Ms Gibson’s application for an adjournment. This
was despite the fact that he recognised the inconvenience this would cause
the respondent. His Honour then said:
“… The trouble is I’m going on holiday on Tuesday, I won’t be back
until the middle of May. So that’s when it will have to come on
again I’m afraid. I’m not going to burden any of my colleagues with
starting this thing from scratch. But I can carry on with the other
two ladies, I believe, they haven’t filed anything new, have they? Or
have they?”

The word “burden” is understandable in view of the amount of time his
Honour had already spent on the matter. He did not wish to abrogate his
responsibility and transfer the matter to be heard by another magistrate.
(viii) Magistrate Wallace appeared to believe that the only reason we are determined to pursue this matter is for the petty reason of taking revenge on our enemies.
Transcript – Thursday 10 April 2008, page 28, lines 23-26.

These words were said in the context of a lengthy statement by the

magistrate explaining why the respondent Association did not have to
provide the appellants’ particulars of the allegations that led to their original
dismissal from the Association.

This did not indicate an unseemly or unprofessional bias against the

appellants. The magistrate was attempting to explain in plain English why
the appellants could not succeed in seeking particulars of the allegations
against them when such allegations were no longer maintained by the
respondent.
Ground 2:

(i) Magistrate Wallace was unconcerned if Mr De Silva had committed perjury in the hearing of this matter.
(ii) Magistrate Wallace was unconcerned if the actions of the respondent was legally sound.

Grounds 2(i) and (ii) are not made out on a reading of the transcript of
proceedings.

(iii)

Magistrate Wallace expressed personal concerns about the inconvenience of this matter on Mr De Silva’s time.
Transcript 10 April 2008, page 22, line 18 to 19.

[73] His Honour said (tp 22):

“… Hang on. Mr De Silva, I suppose any date is as inconvenient to
you and your clients as any other once we get into May.”

This does not demonstrate a bias toward the respondent merely an
acknowledgment that the adjournment application made by Ms Gibson to
enable her to amend her original application would cause inconvenience to
the respondent who wanted to have the whole matter resolved quickly.

Ground 3: The magistrate failed to give due regard to the difficulties
that we the appellants faced as unrepresented litigants.

The matters set out under this heading are statements by the appellants as to

the difficulties they experienced as unrepresented litigants. There is nothing
in these statements to support any finding of error or inappropriate
behaviour by the magistrate. They conclude by stating:
“What we do have is hundreds of documents, dozens of witnesses and
real first hand experience to prove there is corruption within the
MBSMA. All we are seeking is natural justice.”

There is nothing to stop the appellants from presenting this evidence to the
Commissioner of Consumer Affairs who has the power to undertake an
investigation into the running of the Association.

Ground 4: The magistrate failed to give we the appellants procedural
fairness.

A. Two separate actions were filed in the Local Court of Darwin for consideration by a magistrate.

(i) File Number 20625162 between Lucinda Woodward and Date 3 October 2006.
Vicki Braddy (applicants) and Mindil Beach Sunset Market

(ii)
In the course of time both these matters come before Magistrate R.J. Wallace SM for consideration.
File Number 20708853 between Wendy Gibson (applicant) Date __________.

B.
(i) Both applications to the Court are based on the legislative requirements of the Associations Act and the contractual constitutional requirements of the valid 2006 MBSMA Constitution.

(ii) However both applicants are pursuing vastly different lines not consider the merits of each separate case on its individual basis. Preferring to ‘mentally sort of kept the causes separate” in his mind.

Transcript – Thursday 10 April 2008, page 3, lines 6-8.

These words were said in the context of a much longer statement by the
learned stipendiary magistrate on 10 April 2008 commencing on page 2 as
follows:
“Ms Gibson, I don’t think I can, strictly speaking, hear these cases
simultaneously. I think in theory at least they’re being held one after
another, but it does appear from what the little that Mr De Silva has
told me that some of the arguments that he will be directing to the
application brought by Ms Woodward and Ms Braddy may well be
repeated in your case. So I guess it’s going to be worth your while
paying close attention to what he says and with a bit of luck he’ll
indicate what he’s saying only applies to the other two ladies and not
to you, your application. That would help you to understand what it
is that he’s going to be arguing. But it’s, I gather, his client’s
application that I’m needed here today. So I’ll listen to what that
application is about and mentally sort of keep the causes separate in
my mind. Although to some degree they obviously overlap.”
This does not indicate any procedural unfairness. It was a sensible way to
deal with the respondent’s application which at that time affected three
separate appellants.

(iii)

The applicants of the two separate cases were not consulted, informed nor given any prior warning nor offered any options in regard to the magistrate’s intentions to combine both actions into [a] single matter.

(iv)

Magistrate Wallace combined the two separate matters and heard them simultaneously as a single application before his court.
Transcript – Thursday 10 April 2008, page 1.
Transcript – Monday 26 May 2008, page.
(v) The consideration of the two separate matters by the magistrate as a single application placed the fair and equitable resolution of both matters in jeopardy.

His Honour was well aware the case involving Ms Gibson was separate to
the case involving Ms Woodward and Ms Braddy. That is how he dealt with
them. There was no procedural unfairness.
There is no evidence to support the appellants’ assertion that the

consideration of two separate matters together placed the fair and equitable
resolution of both matters in jeopardy. The second action to which the
appellants refer is an application by Wendy Gibson, another member of the
Association. On 26 May 2008, the respondent’s application with respect to
Ms Gibson’s application was adjourned by the learned stipendiary
magistrate to 18 August 2008. The application by the respondent with
respect to the two appellants in this matter was adjourned and continued on
21 July 2008 and finalised on 11 August 2008.

4C(i) We complied with the orders made by the court in regard to the
discovery process in a timely fashion. The respondent ignored the
orders made by the court in regard to the discovery process. The
respondent offered no reason to us, or the court as to why they refused
to comply with the order made by the court.
4C(ii) We applied to Magistrate Wallace to require the respondent to
comply with the orders of the court.
4C(iii): Magistrate Wallace, in rebuttal of our reasonable request for
Discovery process to continue –

a.

Would not allow us the court’s legal process in the matter of Discovery.

b.

Expressed his personal concerns about the costs involved in hearing this matter.

c.

Expressed his personal concerns about wasting the respondent’s time.

d.

Without hearing the matter fully, expressed his opinion this matter would be stayed or not go ahead.

e.

Referred to us in a derogatory manner describing us as “these bloody women”.

f.

Referred to our legitimate request to the court for the Discovery process to proceed as “heckling”.
Transcript 10 April 2008, page 35, line 11 to 22.

4C(iv) In Magistrate Wallace’s opinion it would be stupidly inefficient waste money complying with court orders.
for the court to demand that all parties do everything they should do.
Magistrate Wallace considered Mr De Silva’s refusal to comply with the court order for discovery as a “minor naughtiness among solicitors”.
Transcript – Monday 26 May 2008, page 38, lines 13-41.
Transcript – Monday 26 May 2008, page 34, lines 34 and 35.

At page 35 in the transcript of proceedings on 10 April 2008, there was the
following exchange between the learned stipendiary magistrate and
Ms Woodward:
“MS WOODWARD: One last thing. The court order Da (sic) Silva discovery. And I spoke to Mr Da Silva Hebron (sic) on Monday and he said he had no intention of doing discovery. We have actually fulfilled all our obligations with the documents. We were wondering if we could ask for Mr Da (sic) Silva to perhaps make a bit of an effort to help us along because the matter is still afoot?
HIS HONOUR: As to that, - - - I’ve expressed my opinion several
times. I don’t want to add to the cost of this thing. Discovery is not
a cheap process. It takes hours of lawyers’ time and costs hundreds
of dollars. Courts order discovery without thinking about it. High
courts order massive discovery that ends up costing millions of
dollars for third party discovery. If his argument is right, then
there’s no point because one way or the other this thing will be
stayed or not go ahead. So I’m very reluctant to criticise him at this
juncture for not in effect throwing money away.
If he does throw money away, in the end the cost will be borne by
you because he will come up and say look, I actually tried to save
money by not wasting two days’ work making discovery and these
bloody women came around and just kept heckling me and got a
court order that I make the discovery and I spent another $15,000 and
why shouldn’t they have to carry it.”
This puts into context the magistrate’s comments that were not aimed at
being derogatory toward the appellants but rather explaining why courts
have an obligation in these circumstances to contain unnecessary waste of
time and money in litigation proceedings. The magistrate exercised a
discretion to refuse the appellants’ request for further discovery. This
discretion has not been shown to be wrongly exercised. The magistrate
spent some time explaining why the respondent’s failure to provide further
discovery was inconsequential to the appellants’ claim (26 May 2008 tp 31-
32).
Ground 4D: We the applicants were under the impression that court protocol required that documents supplied by us to the court for its consideration must also be supplied to the respondent, and conversely documents supplied by the respondent to the court would also be supplied to us.
(i)          All documents we supplied for the consideration of the court were also supplied to the respondent by us for their perusal.
(ii)         Mr De Silva did not supply to us documents he supplied to the court in regard to this matter.
(iii)       Magistrate Wallace took it upon himself to justify this lack of curtsey (sic) towards us by Mr De Silva.
(iv)        In Magistrate Wallace’s opinion it was more than likely that there were limits to how much the respondent was prepared to spend on photocopying to supply documents to us.
Transcript – Thursday 10 April 2008, page 10, lines 35 and 36 continued, page 11, lines 1-20.

This ground of appeal has been dealt with under Ground 4C. The ground of
appeal has not been made out.

Ground 5: The magistrate refused to recognise the relevant
jurisdiction of the Local Court in regard to the Associations Act
specifically s 109.
Transcript – Thursday 10 April 2008, page 10, lines 13 and 14.
Transcript – Monday 26 May 2008, page 11, lines 2-6.
Transcript – Monday 26 May 2008, page 27, lines 24 and 25.

Ground 6: The magistrate refused to recognise the relationship
between the Mindil Beach Sunset Market Associations Constitution and
the Associations Act.
Transcript – Thursday 10 April 2008, page 25, lines 25-29. lines 25-27, page 7, lines 34-37 continued, page 8, line 1.

I have already provided reasons why I reject these grounds of appeal. I consider the learned stipendiary magistrate was correct in his application of the Associations Act and the Constitution of the MBSMA.

Ground 7: The magistrate failed to determine the legal and legislative
rights of the parties before making a judgment.

(i) Magistrate Wallace sated that he could not investigate his way Transcript – Thursday 10 April 2008, page 10, lines 12 and 13.
(ii)         Little idea about corporate law. Transcript – Thursday 10 April 2008, page 6, lines 10 and 11.
(iii)        Not widely versed in civil law.
Transcript - Thursday 10 April 2008, page 8, lines 14 and 15.
(iv)        No idea what membership of the MBSMA entailed.
Transcript – Monday 21 July 2008, page 32, lines 1-3.
(v)         No idea what being a stallholder of the MBSMA entailed. Transcript – Thursday 10 April 2008, page 6, lines 39 and 40.
(vi)        Appeared to be unsure of what Act this matter was being heard under.
(vii) Had no idea who had authority under the Associations Act.
Transcript – Thursday 10 April 2008, page 9, lines 27-30.

(viii) Knew that there was some question as to whether that procedure Transcript - Monday 21 July 2008, page 31, lines 4-6.

(ix) Was unconcerned if the actions of the respondent was legally Transcript - Monday 21 July 2008, page 36, lines 4 and 5.
(x) Was unconcerned if Mr De Silva had committed perjury. Transcript – Monday 21 July 2008, page 32, lines 30-34.
(xi) Did not consider that the legislative requirements of the Associations Act or the associations own constitution need to be part of his decision making process.
Transcript – Monday 26 May 2008, page 33, lines 36-41.

I have already given reasons for rejecting these grounds of appeal. The appellants complain that the learned stipendiary magistrate made a number of statements to the effect that he had little experience in this area of the law. Such statements are irrelevant. It is for the parties to make

submissions as to the law and for the magistrate to make a ruling. This is
what the magistrate did after apprising himself as to the law. I have found
that his ruling on the law does not demonstrate any error.

Ground 8: The magistrate refused to consider the findings of the
Supreme Court in regard to the matter. SC 45 of 2007 (20711094,
LA 6 of 2007 (20625162).

1.

Supreme Court Justice Olsson considered the subject matter and nature of the appellant’s claim to relief and the serious nature of the denial of procedural fairness well justified the exercise of
discretion to grant appropriate declaratory relief.
Judgment of Olsson AJ
12 February 2008, page 8, paragraph [21]
2. Paragraph [66] Section 109 of the Associations Act, inter alia, confers certain specific jurisdictions on the Local Court. It provides that a member of an unincorporated association or a former member expelled from the association (provided that the application is made within six months after the expulsion) who holds any one or more listed beliefs, may seek an order or orders from the Local Court (relevantly in this case):

“(b) regulating the future conduct of the association’s affairs;

(c)

restraining a person from engaging in specified conduct or from doing a specific act;
(f) requiring a person to do a specified act; and

(h)

that the member expelled be reinstated as a member of the association.”

orders consequential on or ancillary to any of the foregoing
orders.

Paragraph [67] The Local Court is also empowered to make for present purposes) it is a condition precedent to the making of an application that the applicants hold a belief that:

“(a) the affairs of the association are being conducted in a way
that is oppressive or unfairly prejudicial to, or unfairly
discriminated against, a member (‘the oppressed member’)
or in a way that is contrary to the interests of the members
as a whole.

(b)

an act or omission, or a proposed act or omission, by or on behalf of the association was or would be oppressive or unfairly prejudicial to, or unfairly discriminated against, a member (also ‘the oppressed member’) or was or would be contrary to the interests of the members as a whole.
(c) not relevant.

(d)

the expulsion of the member was oppressive or unreasonable.”

Paragraph [69] It is further provided in subsection (9) of s 109 that a breach of the constitution of an incorporated association by its committee may be regarded as constitution action that is oppressive to members of the association.
Judgment of Olsson AJ
9 November 2007

The decision of Justice Olsson on 9 November 2007 and 12 February 2008,

was based on an entirely different consideration to the matters which
Mr Wallace SM had to decide. Olsson AJ had to decide whether there was
procedural unfairness to the appellants in the original hearing before another

magistrate, Mr Loadman SM, in the Local Court. His Honour Olsson AJ,
held that there had been procedural unfairness and referred the matter back
to the Local Court for rehearing before another magistrate. This is what

occurred. Olsson AJ found the magistrate who initially heard the
appellants’ claim had not given the appellants an opportunity to be heard
and to present their case. Olsson AJ was not asked to make findings as to
the merits of either the appellants’ or the respondent’s substantive
applications. Mr Wallace SM was dealing with the merits of the
respondent’s application which entailed some consideration as to the merits
of the appellants’ claim. Mr Wallace SM then made the interlocutory orders
as previously stated.
Ground 9: The magistrate refused to examine the particulars supplied before exercising his authority.
[84] This ground was fully particularised in the appellant’s written submissions
and a number of transcript references were provided.

I do not consider the learned stipendiary magistrate has been shown to be in

error. He had no powers to investigate the conduct of the respondent under
the Associations Act. If the appellants are in possession of all the
particulars and the documentation as they assert, then they can present these
to the Commissioner of Consumer Affairs who has authority under the Act
to conduct an investigation into the affairs of the respondent association.
Ground 10: The decisions made by the magistrate in this matter are not in compliance with the legislative requirements of the Associations Act and the Mindil Beach Sunset Market Associations Constitution.
Ground 11: The decisions made by Magistrate Wallace allows and encourages the respondent to continue to act in a matter which does not comply with the legislative requirements of the Associations Act and the Mindil Beach Sunset Market Associations Constitution.

Ground 12: The decisions made by the magistrate ensures we the
appellants and all other association members continue to be treated by
the respondent in a manner which does not comply with the
requirements of the Associations Act or the Mindil Beach Sunset Market
Associations Constitution.

Grounds 10, 11 and 12 are dismissed for the reasons already stated in
dealing with the findings made by the learned stipendiary magistrate with

respect to the provisions of the Associations Act and the constitution
relevant to the respondent.
Ground 13: The magistrate did not afford we the appellants with natural justice.
[87] The appellants argue that when their membership was cancelled their

membership fees were in credit for a further eight months and these fees
have never been refunded to them. The respondent has withdrawn the
decision to cancel the appellants membership. This means the appellants are

eligible for membership once they fulfil certain requirements. There is no
evidence the appellants have sought to pay the annual membership fee.
There is no evidence that the appellants have sought to negotiate the amount
of the membership fee with the respondent taking into account the amount
which they say they are in credit. Under the Constitution of the Association
they can only access the grievance procedures if they are members and
resuming membership is a matter for them.

The appellants appear to be saying they do not want to be members of the

association, what they seek is an investigation into the way the respondent
conducts its business. Such an investigation is not within the powers of the
court.

The learned stipendiary magistrate made it clear that unless the appellants
could demonstrate they had again been excluded from the membership then he had no alternative other than to dismiss their application. He adjourned
the proceedings to enable them to take the necessary steps to resume their

membership of the respondent Association. The appellants did not avail
themselves of the opportunity. This ground of appeal cannot succeed.
Ground 14: The magistrate failed to finally dispose of the proceeding before the court.

The magistrate was dealing with the respondent’s application to stay the

appellants proceedings on the grounds they were an abuse of the process of
the court.

The orders made by the learned stipendiary magistrate were with respect to
the respondent’s application. It was an interlocutory order that disposed of
the matters the learned stipendiary magistrate was required to consider on
the respondent’s application but was not an order designed to dispose of the

whole proceedings. The appellants may want to consider their position and
apply to resume their membership of the Association.

The appellants are of course at liberty to take copy of these reasons for
judgment together with other information they have that they consider
founds a basis for investigation into the conduct of the respondent
Association to the Commissioner of Consumer Affairs. Whether or not the
Commissioner decides to undertake such investigation is entirely a matter
for the Commissioner.
The order of the Court is that the application for leave to appeal headed on
the appellants’ documents “Application for Judicial Review by way of
appeal” is dismissed.
I grant liberty to apply on the questions of costs if no agreement is reached
between the parties.

[1] [2008] NTSC 6 delivered 12 February 2008 paragraph 8

[2] [2007] NTSC 60 SC45 of 2007

[3] (2000) 157 FLR 121

[4] [2007] NTSC 60 SC45 of 2007

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Citations

Woodward v Mindil Beach Sunset Market Association [2009] NTSC 18

Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Woodward v Loadman (No 2) [2008] NTSC 6

Woodward v Loadman [2007] NTSC 60

Berowra Holdings Pty Ltd v Gordon [2006] HCA 32

PARTIES:	WOODWARD, LUCINDA
and
BRADDY, VICKI
v
MINDIL BEACH SUNSET MARKET ASSOCIATION
TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:	LA7 of 2008 (20625162)
DELIVERED:	29 April 2009
HEARING DATE:	2 February 2009
JUDGMENT OF:	THOMAS J
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellants:	Self Represented
Respondent:	D De Silva

Appellant:	Self Represented
Respondent:	De Silva Hebron
Judgment category classification:	C
Judgment ID Number:	tho200902
Number of pages:	43
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

(1)	Where a proceeding generally or a claim in a proceeding –
(a)	does not disclose a cause of action;
(b)	is scandalous, frivolous or vexatious; or
(c)	is an abuse of the process of the Court,

(2)	Where a defence to a claim in a proceeding –
(a)	does not disclose an answer;
(b)	is scandalous, frivolous or vexatious; or
(c)	is an abuse of the process of the Court,

(3)	In this rule –
(a)	a claim in a proceeding includes a counterclaim and a claim by third party notice; and
(b)	a defence includes a defence to a counterclaim and a defence to a claim by third party notice.”

“1.	An order that the(sic) in the making of the order on 21 February 2007 striking out the originating application filed by the plaintiffs on 3 October 2006, the Learned Magistrate failed to accord the plaintiffs natural justice and acted with actual bias.
2.	Such further or other orders as the court deems appropriate.”

(a)	has persistently refused or neglected to comply with these rules and the regulations; or
(b)	has persistently and willfully acted in a manner prejudicial to the interests of the Association,

(c)	comply with these rules and the regulations as and when directed; and/or,
(d)	immediately cease the actions which are prejudicial to the interests of the Association; and,
(e)	(within no less than fourteen days and no more than one month following the date of the default notice) attend a Committee meeting where the Member shall be given an opportunity to present his or her case to the Committee.”

[2009] NTSC 18

29/04/2009