Pritchard v Evans

[2013] NZHC 3150

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003014 [2014] NZHC 3150

IN THE MATTER             of an application for review under the Judicature Amendment Act 1972 and an application for declaration under the Declaratory Judgments Act 1908

BETWEEN  SAMUEL HAROLD PRITCHARD Plaintiff

ANDROSS EVANS and MARGARET LEWIS as trustees of the ONEHUNGA WORKINGMEN'S CLUB

Defendants

Hearing:                   24 October 2013

Counsel:                  S Perese for Plaintiff

RO Parmenter for Defendants

Judgment:                28 November 2013

JUDGMENT OF ASHER J

This judgment was delivered by me on Thursday, 28 November 2013 at 3.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Keil & Associates, Auckland. S Perese, Auckland.

Daniel Overton & Goulding, Auckland. RO Parmenter, Auckland.

PRITCHARD v EVANS [2013] NZHC 3150 [28 November 2013]

Table of Contents

Para No

Introduction  [1] Suspension    [4] Removal as a trustee  [13] The relevant legislation and rules  [21] Removal as trustee – failure to act fairly  [27] Approach     [31] The lead-up to the meeting  [36] The meeting      [42] Removal of trustee – the timing of the special general meeting  [47] Claim that Mr Pritchard not unfit to be removed – resolution invalid  [53] Conclusion    [59] Result              [63] Costs  [65]

Introduction

[1]      The Onehunga Workingmen’s Club was formed in 1947 under the Friendly Societies Act 1909.   The Club has a declining membership but still provides an important avenue for social interaction of people living in the Onehunga community, both men and women.  It has both a constitution and rules.  It is a registered society under s 11(1) of the Friendly Societies and Credit Unions Act 1982 (the Act).

[2]      The  plaintiff  Samuel  Pritchard  has  been  a  member  since  2006  and  was elected a trustee in 2011.  His triennial term as trustee would have ended at the 2014 annual general meeting, but for his removal as trustee in 2013.

[3]      On 15 November 2012, there was an incident at the Club.  Mr Pritchard had ordered a takeaway meal which, when he opened it back at his home, proved to be lacking two eggs.  He telephoned to complain, and there was then a verbal exchange between him and the person in charge of the bistro restaurant.   Following that, Mr Pritchard returned to the Club where he spoke face to face with the restaurant manager about the deficient meal.   There is a factual dispute concerning what happened in this exchange.  The restaurant manager asserts that Mr Pritchard was very threatening and abusive towards her and swore at her.  Mr Pritchard denies this. This set in train a sequence of events which has led to Mr Pritchard’s suspension as a

member and removal as a trustee of the Club.   Mr Pritchard seeks to quash the decisions in this judicial review application.

Suspension

[4]      After the incident on 15 November 2012 a report was prepared by the secretary/manager of the Club.   On 16 November 2012, a letter was sent advising Mr Pritchard that he had been suspended until the next ordinary meeting of the committee where the incident would be discussed.

[5]      Incident   reports   were   then   prepared   by   three   other   staff   members. Mr Pritchard  wrote  to  the  secretary  setting  out  his  explanation  of  events  on

16 November 2012.  He denied abusive or threatening behaviour and swearing.

[6]      On 28 November 2012, a letter was sent to Mr Pritchard requiring him to attend an enquiry committee hearing.  There were then various exchanges.  There was an enquiry committee meeting on 5 December 2012.   Mr Pritchard did not attend that meeting although he had been invited to do so.  He emailed the Club to notify the enquiry meeting that he would not be attending the meeting.  Mr Pritchard claimed to have not been sufficiently informed of the details of the allegations against him.  He was concerned that he was not allowed to bring a lawyer.

[7]      A letter was sent to Mr Pritchard on 7 December 2012 advising him that his email had not been received by the time of the meeting.  He would remain suspended until  a  further  enquiry  meeting  which  would  be  held  at  a  date  to  be  set.    On

14 December 2012, Mr Pritchard wrote to the Club’s secretary and raised, amongst other things, the principles of fairness and natural justice in relation to the way in which he was being treated.

[8]      On 20 December 2012, the Club sent a letter to Mr Pritchard advising him of an enquiry meeting on Wednesday, 16 January 2013 at 7.30 pm.  Mr Pritchard wrote saying he would be unable to attend, but would accept the committee’s decision.  He apologised  if  he  had  offended  any  staff  members  and  stated  that  nothing  was personal to anyone, and that he was frustrated at the system and the way in which the incident was handled.

[9]      The  enquiry committee  met  on  16  January  2013  and  recommended  that Mr Pritchard be suspended for three to six months, backdated to 15 November 2012, and following this he was to be under a six month good behaviour bond.   The Executive Committee met on 26 January 2013 and made the suspension and good behaviour bond directions as recommended.

[10]     The first of the two extant causes of action brought by Mr Pritchard relate to the suspension.  In the course of submissions the focus fell on the allegation that the Club had failed to provide sufficient details of the allegations faced by Mr Pritchard. It became clear that the incident reports that were before the committee, which included allegations of a considerable number of previous alleged occasions when Mr Pritchard had been abusive to staff, were not disclosed to him.

[11]     When this became clear Mr Parmenter, correctly in my view, accepted that the cause of action relating to the suspension had been made out.  For reasons that I will traverse shortly, I accept that the Club committee was obliged to abide by the rules of natural justice as they applied in context to a club such as this. The failure to provide the particulars and inform Mr Pritchard of the serious allegations he faced, which were considerably more serious than he had interpreted them to be in his letter of 29 November 2012,  was a breach of the rules of natural justice.  Mr Pritchard had not been informed of the case against him.

[12]     I will therefore grant the relief sought by Mr Pritchard in relation to this cause of action without opposition on the part of the Club.  I propose declaring the suspension of Mr Pritchard to be unlawful and quash that decision.

Removal as a trustee

[13]     To  continue  with  the  outline  of  the  narrative,  Mr  Pritchard’s  period  of suspension ended on 22 July 2013.   In the meantime Mr Pritchard had filed these proceedings dated 31 May 2013, which focused on the suspension and events that followed, including the issuing of a trespass notice.  He was still a trustee.

[14]     On 28 August 2013, Mr Pritchard became aware of the various incident reports that had been prepared on or about 16 November 2012, but not disclosed to

him prior to his suspension.  On or about 1 or 2 September 2013, the secretary of the Club, on behalf of the executive committee, called a special general meeting of the Club to take place on 22 September 2013 at 11.00 am.  There was a remit attached which was a motion signed by two members to remove Mr Pritchard as a trustee and suspend him as a member. There were also various motions to amend the rules.

[15]     The meeting took place on 22 September 2013 but was not able to carry out any business as there was not a quorum.  It was rescheduled for 6 October 2013.  At that next meeting there was a quorum.  Mr Pritchard did not attend.

[16]     At that special  general  meeting of 6  October 2013 the Club passed two resolutions:

Mr Pritchard would be dismissed as a trustee under rule 22 of the

Club’s rules; and

Mr Pritchard’s membership would be suspended until the High Court

proceedings had been completed.

[17]     The Club accepts that the suspension resolution was invalid and that there was no power to suspend at the meeting.  The issue in this proceeding is whether Mr Pritchard’s removal as a trustee under rule 22 was lawful.

[18]     This pleaded  cause of action was  the result of a late amendment  to  the statement of claim following the events of October 2013.  Only parts of that fourth cause of action were ultimately relied on.   In the course of hearing, the issues in relation  to  the  removal  as  a  trustee  cause  of  action  were  discussed  under  the

following three headings:

Did  the  committee  fail  to  act  fairly  in  the  procedures  it  adopted

leading up to the special general meeting?

Was  the  special  general  meeting  unlawful  and  of  no  legal  effect because it was not held within the requisite time limit?

Was the basis of the plaintiff’s removal, namely that he had a conflict of interest, a valid ground for removal under rule 22?

[19]     These are the issues that must be determined in this judgment.

[20]     In order to properly consider the issues relating to Mr Pritchard’s removal as a trustee it is necessary to set out the relevant legislation and rules.

The relevant legislation and rules

[21]     A registered society and branches are required under s 28(1) of the Act to have one or more trustees appointed by a resolution of the majority of the members entitled to vote who are present personally or by proxy at a meeting of the society or branch.  Under s 28(3), a registered society or branch may, at any time by resolution passed in the same manner, remove any trustee and appoint a new trustee in the former trustee’s place.   Under s 28(4), no act done by any person appointed as a trustee shall be invalidated by any irregularity or defect in the mode of that person’s appointment.  Section 78 deals with the settlement of disputes between members but does not refer to the settlement of disputes concerning trustees.

[22]     There is nothing in the Act that goes to the creation of rules.  It seems that when a Friendly Society is registered under s 17, the pre-existing and privately created rules of the society are formally registered with the Registrar.1   The society can then agree on its own rule amendments, but must also register any amendments with the Registrar for them to be valid.2

[23]     There are limits in the statute as to what rules can contain.  These are set out in sch 2 of the Act. The matters to be provided for by the rules include the manner of holdings meetings, of giving notice of meetings and the right of voting,3  and the

appointment and removal of trustees.4

1      Friendly Societies and Credit Unions Act 1982, s 22.

2      Section 23.

3      Rule 4, Schedule 2.

4      Rule 5, Schedule 2.

[24]     Under rule 26(1) of the Onehunga Workingmen’s Club rules (the rules) there are three trustees who shall be elected triennially.  At least two of the trustees shall sign all cheques on the trust account,5 and every document and instrument other than cheques to be signed by the Club shall be signed by all three trustees for the time being.6    Under rule 26(3) all property and funds of the Club shall be vested in the trustees.   The trustees have wide powers in relation to the property of the Club. There are particular rules relating to a special general meeting,7  and the conduct of general meetings.

[25]     The removal of trustees is referred to in rule 22 of the rules under the heading

“Extraordinary Vacancies”.  It provides:

If a trustee refuses to act, or becomes unfit to act or incapable of acting, the committee may convene a special general meeting and such a meeting may, by resolution, remove him.

[26]     This is not a case under s 78(1)(a) of the Act, which relates to disputes between members and requires “every dispute” between members and the Club to be decided in the manner directed by the rules.8     The detailed provisions set out in ss 78–81 do not apply.

Removal as trustee – failure to act fairly

[27]     The  statement  of claim  asserts  that  the committee failed  to  act  fairly in removing Mr Pritchard as a trustee in the following respects:

a.     The Committee did not give to the plaintiff the grounds and proper particulars of how the remit satisfied the requirements of Rule 22;

b.    Did not give the plaintiff an opportunity to be heard by the Committee before the SGM;

c.    Did not give the plaintiff a specific opportunity to be heard at the SGM;

d.    Did not adjourn the meeting to enable the plaintiff to be heard on the remit;

5      Rule 26(2)(a).

6      Rule 26(2)(b).

7      Rules 28 and 30.

8      Friendly Societies and Credit Unions Act 1982, s 78(2).

e.     Allowed a vote to be taken despite the incidents of ultra vires referred to hereunder.

[28]     The  facts  must  be  assessed  against  these  allegations.    Mr  Pritchard  had received  both  the  notice  of  the  original  special  general  meeting  to  be  held  on

27 September 2013, and notice of the rescheduled special general meeting to be held on 6 October 2013.  The specific notice of the proposal in relation to his role as a trustee was called “the remit”, worded in the form of a motion, and signed by two members as follows:

I wish to move that in accordance with Rule 22 that Sam Pritchard be removed as a trustee and suspended as a member due to a conflict of interest and until such time as the legal issues have been resolved.

[29]     Another purpose of the special general meeting was to elect a trustee to replace a retiring trustee, Mr Preston.

[30]     Mr Pritchard attended the 22 September 2013 special general meeting, but was unable to attend the 6 October 2013 meeting.  He asserts that this was because of illness.   He deposed in relation to the notice of meeting that “there was no question put to him to answer” and that he was not advised as to what the conflict of interest was, or what made it impossible for him to carry out his role as a trustee.

Approach

[31]     Under s 4 of the Judicature Amendment Act 1972, the High Court may grant, in relation to the exercise or purported exercise of a statutory power, any relief that the  applicant  would  be  entitled  to  under  the  prerogative  writs,  and  where  the applicant is entitled to an order that a decision made in the exercise of a statutory power or decision is unauthorised or otherwise invalid, the Court may set aside the decision.  It is not a bar to a grant of relief that the person exercising the statutory power is not under a duty to act judicially.  The Court is given wide powers as to the orders that can be made.

[32]     A statutory power of decision under s 3 of the interpretation section of the Judicature Amendment Act  1972  includes  a  power or right  to  make  a  decision prescribing or effecting the rights, powers, privileges, immunities, duties or liabilities

of any person.9   While the internal workings of incorporated societies are reviewable under the law of contract,10 New Zealand courts have been prepared to intervene in the internal affairs of an incorporated society or club.  It was decided by the Court of Appeal in Stratford Racing Club Inc v Adlam11 that, following Hopper v North Shore Aero Club,12  a committee’s membership decision could be a prime candidate for review.  While the parties have their contract rights, members can be in a position

where they are unable to bring a claim in contract because the club has refused to make a contract of membership with them.13  The only course is judicial review.

[33]     There would have been difficulties in bringing this fourth cause of action in contract as it does not relate to Mr Pritchard’s position as a member, but rather to his appointed position as a trustee.  While courts are reluctant to interfere in the internal affairs  of  societies,  particularly  where  there  are  contractual  remedies,  there  is potential for review where there has been a serious error of procedure making an action in relation to a trustee ultra vires.   Here it is alleged that the  resolution removing Mr Pritchard as a trustee at the special general meeting was invalid and of no effect because of such errors.

[34]     I have no doubt that an error in the application of the rules of a society that has a public or quasi-public function can be an error of law, and that in certain circumstances an action covered by the rules which misapplies them can be ultra vires.14

[35]     The  concept  of  natural  justice  is  essentially  contextual,  and  has  been described as a “flexible concept which aims to achieve across an infinite spectrum of situations both the actuality and the perception that things have been done justly and fairly”.15    When it comes to the assessment of whether the requirements of natural

justice have been met in a judicial review context, there are no thresholds that must

9      Judicature Amendment Act 1972, s 3.

10     Peters v Collinge [1993] 2 NZLR 554 (HC) at 556.

11     Stratford Racing Club Inc v Adlam [2008] NZCA 92, [2008] NZAR 329 at [53]–[55].

12     Hopper v North Shore Aero Club [2007] NZAR 354 (CA).

13 At [54].

14     See for example Morgan v Martin HC Hamilton CIV-2011-419-1305, 23 September 2011;

Sanders v Hepatitis C Support Group (NZ) Inc HC Auckland CIV-2010-404-003560, 15 October

2010.

15     Director of Civil Aviation v Paterson (No 3) HC Wellington CIV-2005-485-606, 23 June 2005.

be crossed or rules that must be complied with.  What is required turns on the role and functions of the body in question, the nature of the decision and the statutory, regulatory  or  constitutional  framework  that  applies.     In  the  context  of   an incorporated society such as this, where the function is primarily social and the Club’s affairs are conducted by non-professional volunteers, the requirements are less strict than other contexts.  Any assessment of error must recognise that this is a society established for purposes of “… social intercourse, mutual helpfulness and

recreation”.16     The expectation of procedural regularity will be coloured  by the

essentially amateur nature of the organisation and its recreational purpose, as will any decision on intervention. This is particularly so where what is at issue is a notice of motion going to a meeting of members on which there is to be an open and unrestricted vote.

The lead-up to the meeting

[36]     I am satisfied that the action of the Club in removing Mr Pritchard as a trustee was the exercise of a power that is in those circumstances subject to judicial review.  I need say no more on this topic, as Mr Parmenter has conceded that judicial review is available on the causes of action.  I will, however, approach the question of breach of the rules bearing in mind the factors I have mentioned, and approach any issue of intervention with restraint.

[37]     The notice was sent to Mr Pritchard well before the meeting and set out in intelligible terms the basis for the motion, namely that Mr Pritchard was in a conflict of interest situation.  Mr Pritchard complains that the type of conflict of interest was not specified.

[38]     The reference to the suspension due to conflict of interest being “until such time as the legal issues have been resolved” unmistakeably linked the basis for the conflict of interest to his involvement in the Court proceedings.  It did not require a great jump in logic to see that the basis of the motion was a perception that his

conduct of High Court proceedings against the Club, which were being defended by

16     Friendly Societies and Credit Unions Act 1982, s 11(1)(b).

the Club at considerable cost, placed him in a difficult position when it came to

protecting the Club’s interests.

[39]     While these implications were not spelled out in the remit, I do not consider that natural justice required this in the context of a meeting of the Club.   It was always open to Mr Pritchard to seek further particulars and he did not do so.  The basis for the motion was clear.

[40]     In any event, I am not satisfied that it was necessary to specify the reason for the motion at all.  There was no evidence that it was usual practice for Club motions to have the reasons for the motion set out.   The time for learning more about the position of the proposers of the motion would be at the meeting  where all the members would be present and there would be an opportunity for full debate before the motion was put to the vote.  Mr Pritchard, or other members that supported him, could go along and speak.  If in the course of the debate matters were traversed of which they were unaware, he or his supporters could have sought to persuade the meeting that the vote be put off to another date.  This is the rough and tumble of meetings  of  this  type.     The  law  is  not  too  precious  when  considering  the requirements for a pre-meeting notice for a Club meeting.

[41]     Thus, I do not accept that in the lead-up to the special general meeting there was any basis for a complaint that there was a failure to meet the rules of natural justice sufficient to warrant the intervention of the Court.

The meeting

[42]     I do not understand how it can be said that Mr Pritchard should have been heard “by the committee before the SGM”.   The special general meeting was the time for him to set out his opposition to the motion.

[43]     Mr Pritchard did not attend the special general meeting on 6 October 2013 and states that he was sick.  Since the High Court hearing, he has filed an additional affidavit attaching a medical certificate showing that he was being treated by his doctor for sickness at the time of the meeting.  This was not raised as a specific point

by Mr Perese in his submissions.  It was open to Mr Pritchard to send someone along to the meeting with a medical certificate if he was in fact so sick that he could not attend, and either present his case or ask for the meeting to be put off.  He chose not to do so.

[44]     Mr Pritchard was fairly informed of the meeting, the proposed resolution, and the reason for it.   I do not consider there was any breach of the rules of natural justice in the lead up to the special general meeting and the putting of the motion.

[45]     The discussion at the meeting undoubtedly went further than the ground of conflict of interest.   Although issues as to Mr Pritchard’s position in signing the cheques  and  acting  as  a  trustee  while  being  the  party  who  had  brought  the proceedings were raised, there was also a lot of discussion about the 15 November

2012 incident and other related matters of conduct.  I do not consider that this makes the procedure adopted in any way unfair.   It could be anticipated that debate on a motion could go far beyond the boundaries of any stated ground put forward in a motion.  If Mr Pritchard had chosen to attend, or arranged for persons to attend on his behalf, he would have had an opportunity to respond.  Amongst the matters he could have raised was the lack of notice to him of the incidents at the time.

[46]     The vote was unanimous that Mr Pritchard be removed.  Under s 28(3) there is an unlimited ability of a registered society or branch to at any time by resolution remove any trustee.  Mr Pritchard has no basis for complaint under this head.

Removal of trustee – the timing of the special general meeting

[47]     Mr Perese argued that the meeting was out of time under the rules.  Rule 28 of the rules stated that the president would call a special general meeting of members “... at any time within 14 days to be held within 30 days, upon the request by resolution of the committee.”  The original special general meeting was to be held within 30 days, on 22 September 2013.  However, because of a lack of a quorum of

100 it had to be put off and was held on 6 October 2013, undoubtedly more than 30 days after the calling of the meeting.

[48]     However, rule 28 relating to the calling of a special general meeting does not exist in a vacuum.  It is one of three parts of the rules dealing with meetings.  Under rule  27  annual  general  meetings  can  be  called.    Under  rule  28  special  general meetings can be called, and at those meetings no other business other than that for which the meeting is called can be dealt with.17     Under this heading of special general meeting it is provided that in the case of any date of any “... general meeting of members falling upon a public holiday, such meetings shall be held on a date fixed by the committee. A notice shall thereof be given accordingly.”

[49]     There is then a section headed “Conduct of general meeting” setting out the

rules of debate.  It is provided at rule 32 under this heading:

Any General Meeting may be adjourned to any time not exceeding fourteen (14) days thereafter.  In the event of there being no quorum within half an hour after the time fixed for a General Meeting, the meeting shall stand adjourned for not more than fourteen (14) days, the new date to be fixed by the Committee, who shall give at least three (3) days’ notice of the meeting by advertisement and notice on the Notice Board.  In the event of there being again no quorum, the meeting shall lapse.

[50]     The meeting on 6 October 2013 occurred within this further 14 day period. The issue is therefore whether a special general meeting is a general meeting to which rule 32 applies.

[51]     I have no doubt that it is a general meeting.  There are two types of general meetings, annual general meetings and special general meetings.  It is clear from rule

30, which under the heading of “special general meeting” refers to general meetings, that a special general meeting is indeed a general meeting.  That indeed can be the only sensible interpretation of the rules.  The rules of conduct do not apply either to an annual general meeting or to a special general meeting; they are worded to apply to the conduct of a “general meeting”.  Just as those rules of conduct apply to both annual and special general meetings, so also does rule 32 provide the power to adjourn both annual and special general meetings.

[52]     I am satisfied therefore that the special general meeting occurred within time according to the rules.

17     Rule 29.

Claim that Mr Pritchard not unfit to be removed – resolution invalid

[53]     Mr Perese relied on the first paragraph of rule 22:

If a Trustee refuses to act, or becomes unfit to act or incapable of acting, the Committee may convene a Special General Meeting and such meeting may, by resolution, remove him.

He argued that Mr Pritchard was not in a conflict of interest position, and that in any event this did not make him unfit to act or incapable of acting, and that therefore the motion was invalid and a nullity.

[54]     Under schedule 2, paragraph 5, the removal of trustees is a matter to be provided for in the rules.  The general power to remove a trustee under s 28(3) of the Act must be read with this rule.  I am prepared to assume that only trustees who act or fail to act in terms of rule 22 can be removed.   Mr Parmenter did not argue otherwise.

[55]     The first question is whether a trustee can become unfit if that trustee is in a conflict of interest situation.  I consider that Mr Pritchard was in a conflict of interest situation in dealing with Trust assets and his claim.  Trustees have all the property of the Club vested in them, and under s 157(1) of the Act the institution and defence of court proceedings on any matter touching or concerning any property right or claim of the society, is in the hands of the trustees or any other authorised officer.  Property Mr Pritchard held on trust was needed to finance the defence of the proceedings he had brought.  In particular, the property of the Club, ownership of which was reposed in part in Mr Pritchard as a trustee, was at risk in the proceedings he was bringing, with significant costs being incurred.  His familiarity with the financial position of the Club could give him advantages as a plaintiff suing the Club.

[56]     As the record of the 6 October 2013 meeting shows, there were concerns that Mr Pritchard was not acting properly in his role as a trustee when it came to the signing of cheques and other matters relating to the litigation.   I am satisfied that there was a basis for a  concern that Mr Pritchard was in a  conflict  of interest situation.

[57]     Does  this  make  him  “unfit”  to  be  a  trustee  until  the  proceedings  are determined?  In my view it was entirely open to the members to reach the view that Mr Pritchard was unfit to be a trustee.  The word “unfit”, while it may often have a pejorative connotation,  means “not physically fit”, or “not fit or suitable”.18     A person who holds an office who is suffering from a conflict of interest in the conduct of that office may well not be fit to hold the office.

[58]     No  more  is  required.    A Court  in  a  judicial  review  application  will  be reluctant  to  intervene  when  there  has  been  a  vote  of  members  at  a  properly constituted meeting of a society.   If there was clearly no basis for the removal of Mr Pritchard as a trustee under rule 22 the removal would be ultra vires.  But there was  a  basis  in  this  case.     I  would  not  intervene  unless  the  resolution  had demonstrably failed to comply with the criteria in rule 22.  This resolution fell far short of that.  Indeed, in my view it did comply.

Conclusion

[59]     There is jurisdiction to consider an application for review of the activities of

decision makers of the Onehunga Workingmen’s Club.

[60]     The first part of the claim relates to the Club’s initial decision to suspend Mr Pritchard.   This was procedurally unfair and in breach of the rules of natural justice.  He was not given proper notice of the details of the incident of 15 November

2012 and the various reports on that incident and the serious allegations that were made.  His letter immediately after the incident where he set out his own version of events which, if accepted, would have shown them in a perfectly reasonable light, was left unanswered  and he had  no idea of the far more serious nature of the complaint.   Moreover, he was not notified of the numerous other complaints that were also referred to in material before the disciplinary committee.

[61]     As noted above, in the course of the hearing when these factors became clear

Mr Parmenter withdrew his opposition to this part of the claim.  This was a serious breach of the right to natural justice, and the suspension will be quashed.

18     Lesley Brown (ed) The New Shorter Oxford Dictionary (4th ed, Oxford University Press, New

York, 1993) at 3483.

[62]     The second part of the claim relates to the removal of Mr Pritchard as a trustee and it is claimed that this was invalid and a nullity, and procedurally unfair. Mr Pritchard fails in that claim.  The notification to him of the motion was within the necessary time limits.   While it did not need to set out the grounds relied on in support of the motion, it in fact did so.  There was a proper basis under rule 22 to remove Mr Pritchard because of the conflict of interest that had arisen in his position as trustee, given his filing of these proceedings and the threat that they constituted to the property of the Club of which he was a trustee.  This could be properly viewed as making him unfit to hold office while the dispute continued.

Result

[63]     The decision of the Club of 23 January 2013 banning Mr Pritchard for six months beginning 23 January 2013 and placing him on a six month good behaviour bond was invalid and is quashed.

[64]     The claims relating to Mr Pritchard’s removal as a trustee are not made out. They are dismissed and no relief is granted.

Costs

[65]     It may well be the case that the parties conclude that given the outcome costs should lie where they fall.  However, if costs cannot be agreed submissions for the plaintiff should be filed within 14 days, and submissions for the defendants within a further 14 days.

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Asher J