Feyen v Charlton & Ors [2016] QSC 122

SUPREME COURT OF QUEENSLAND CITATION: Feyen v Charlton & Ors [2016] QSC 122 PARTIES: ROBERT FEYEN (Applicant) v GREG CHARLTON MEGAN HARWOOD TREVOR HARWOOD GREG GRAHAM CAROL GRAHAM JOHN HARTLEY STEVE URCH QUEENSLAND SAPPHIRE MINING ASSOCIATION (Respondents) FILE NO/S: S25/2016 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court Rockhampton DELIVERED ON: 7 June 2016 DELIVERED AT: Mackay HEARING DATE: 23 May 2016 JUDGE: McMeekin J ORDERS: 1. Parties to make such further written submissions as they may be advised as to the orders that ought to be made in light of these reasons on or before 4pm on 14 June 2016 CATCHWORDS: ASSOCIATIONS AND CLUBS – RIGHTS, LIABILITIES AND DUTIES OF MEMBERS – RIGHTS AND DUTIES – RIGHTS OF MEMBERS – where applicant alleges he was deprived of his right to be considered for election to the management committee – where applicant alleges he tendered a valid nomination form – where respondents allege the nomination form was invalid – whether applicant tendered valid nomination form – whether applicant deprived of a right under the rules – whether applicant deprived of natural justice – whether orders sought inappropriate due to delay or acquiescence -- 1 of 19 -- 2 Associations Incorporation Act 1981 (Qld) s 61A, s 62, s 71, s 72, s 73 Group Four Industries Pty Ltd v Brosnan (1992) 8 ACSR 463, followed Jones v Invion Ltd [2015] QCA 100, cited Re Maggacis [1994] 1 Qd R 59, considered Re Howlett [1949] Ch 767, cited Savage v Lunn (No 2) [1998] NSWSC 529, cited COUNSEL: A Barlow for the respondents SOLICITORS: Grant & Simpson for the applicant [1] MCMEEKIN J: This application concerns complaints made by the applicant, Robert Feyen, about the conduct of the affairs of the Queensland Sapphire Miners Association Inc (QSMA),1 an association incorporated under the Associations Incorporation Act 1981 (Qld) (the Act), of which he is a member. [2] The respondents are seven of QSMA’s management committee members and the Association itself. [3] There are difficulties with Mr Feyen’s material. Mr Feyen was unrepresented until the most recent and final hearing. His lack of knowledge of the limited nature of the jurisdiction and the oversight that the Court exercises meant that most of his complaints were not justiciable. He initially alleged 13 breaches of the Act by the respondent committee members. He sought a variety of orders including the imposition of penalty units against the committee members, for the committee members to be stood down, and for them to fulfil their obligations under the Act. By the time of the final hearing Mr Feyen complained of two matters: (a) That he had been deprived of a right to be elected to the management committee; (b) That he had been deprived of “a right not to answer a Show Cause why his membership should end.”2 [4] In the course of submissions at the final hearing QSMA through its counsel gave an undertaking that it would not proceed with the show cause notice. Hence it is not necessary to consider the second of the two complaints. [5] As to the first matter, Mr Grant, who appeared for Mr Feyen, accepted in the course of his submissions that the claimed right to be elected to the management committee was infelicitously expressed. Rather the right alleged was that Mr Feyen had the right, upon tendering to the secretary his nomination form properly completed in 1 I note that there has been a change of name – the rules provided by the secretary refer to the “Queensland Sapphire Producers Association Inc”. Exhibit “C” to Mr Feyen’s affidavit shows a name change occurring on 21 February 2014. -- 2 of 19 -- 3 accordance with the rules of the Association, to be considered by the members at the 2015 annual general meeting for election to the management committee. So much was always evident given the complaint that Mr Feyen made in his initial application under the heading “How this Act was breached”: “The Act was not adhered to when the committee did not accept my nomination. Did not put my nomination to the members to be voted on.” [6] Section 71(3) of the Act obliges an incorporated association to follow the rules of natural justice in adjudicating upon the rights of its members as conferred by its rules. [7] The rules of the Association constitute the terms of the contract between the members and the Association: s 71(1) of the Act. Section 71(2) gives this Court jurisdiction to adjudicate upon the validity of a decision of the association where a member is deprived by that decision of a right conferred by the rules. Mr Feyen invokes that jurisdiction in this application. Factual Background [8] At some time prior to the 2015 annual general meeting (the AGM) the management committee of the QSMA circulated a flyer advising members, inter alia, of the date of the meeting and: “If you wish to submit a postal nomination please use the form below and send to PO Box 364, Ruby Vale, Qld 4702 made to the attention of the secretary before the AGM, forms will also be available on the day.” [9] Mr Feyen wished to nominate for election to the management committee of QSMA at the AGM. To that end he arranged for the completion of a nomination form. It is not in contest that he used the appropriate nomination form and completed it appropriately. Nor is it in contest that the nomination form was collected from the QSMA’s post office box by Mr Harwood, a member of the committee. What happened then is not clear. The secretary swore an affidavit in which she deposes: “I am unable to recall with accuracy when I first saw Robert Feyen’s nomination form to become a member of the QSMA’s committee, but I do recall that it was sometime after the AGM was held on 27 August 2015”. Despite that, it is apparent that the nomination form was discussed at a special management committee meeting on the day before the AGM, a meeting the secretary attended. What occurred at that meeting is in contest. I will return to that issue. [10] What is not in contest is that Mr Feyen’s nomination was not placed before the members the next day at the AGM. The existing committee members were elected unopposed and in block, the members attending the AGM not being advised that there were any other nominations received. 2 I am not sure of the intended meaning. I suspect an inadvertent negative has crept in. -- 3 of 19 -- 4 [11] The respondents contend that whatever the merits of Mr Feyen’s complaint I should exercise my discretion to refuse any remedy for two reasons – his acquiescence in what occurred and because of his delay in seeking relief. [12] As to the acquiescence point - Mr Feyen was present but did not speak up to enquire about his nomination form until after the vote. [13] As to the delay - the meeting was on 27 August 2015. Mr Feyen filed his application on 12 January 2016. It came on for hearing on 1 February but was adjourned because of his inadequate material. There were further adjournments. The matter was finally heard on 23 May 2016. [14] As to the merits - the respondents contend that Mr Feyen’s nomination was properly rejected by the management committee as invalid because the nomination form was delivered in an envelope that was not addressed to the secretary and did not bear the complete address of the QSMA but rather the following: “QSMA PO Box 364”. [15] There are two factual issues. The first concerns the addressing of the envelope. Mr Feyen contends that he posted the nomination form addressed to the secretary and using the address set out in the circular. The second issue is whether the alleged deficiencies in the addressing of the envelope had anything to do with the committee’s rejection of the nomination. That depends on what happened at the special meeting the day before the AGM. While I will make findings on these issues I do not think they are necessary to resolve the dispute. Is there a relevant right? [16] Before turning to those issues I need to dispose of a preliminary point taken by Mr Barlow on behalf of the respondents. He submitted that the Court’s jurisdiction was limited to adjudicating on “a right conferred on the member by the rules” as s 71(2) provides and no such right was involved here. Section 71(2) is as follows: Where a member of an incorporated association is deprived by a decision of that association of a right conferred on the member by the rules of that association as a member thereof, the Supreme Court shall have jurisdiction to adjudicate upon the validity of that decision under the rules. [17] The submission in short was that no provision in the Act or rules gave to Mr Feyen any relevant right that was justiciable. [18] There are two answers to that submission. The first is this. While it is true that there is no section of the Act or clause in the rules that expressly states that each member has the right to have his or her nomination for membership of the management committee go before the members for consideration it is implicit in the Act and rules that each member has just such a right or, conversely, that the Association and members of the committee have the obligation to ensure that the nomination does go forward, provided the nomination itself is in accord with the rules. -- 4 of 19 -- 5 [19] The Act deals with the question of eligibility for election to the management committee in Part 7 of the Act at s 61A. The section provides in terms of those excluded, the only possible inference being that all those not mentioned are eligible. Section 61A is as follows: 61A Eligibility for election to a management committee (1) A person is not eligible to be elected as a member of an incorporated association’s management committee if— (a) the person has been convicted— (i) on indictment; or (ii) summarily and sentenced to imprisonment, other than in default of payment of a fine; and (b) the rehabilitation period in relation to the conviction has not expired. (1A) Also, a person is not eligible to be elected as a member of an incorporated association’s management committee if— (a) under the Bankruptcy Act 1966 (Cwlth) or the law of an external territory or another country, the person is an undischarged bankrupt; or (b) the person has executed a deed of arrangement under the Bankruptcy Act 1966 (Cwlth), part X or a corresponding law of an external territory or another country and the terms of the deed have not been fully complied with; or (c) the person’s creditors have accepted a composition under the Bankruptcy Act 1966 (Cwlth), part X or a corresponding law of an external territory or another country and a final payment has not been made under the composition. (2) In this section— rehabilitation period has the meaning given in the Criminal Law (Rehabilitation of Offenders) Act 1986. [20] Section 62(1) of the Act then provides for election to the management committee: 62 Election of management committee (1) The members of the management committee shall be elected at the annual general meeting or any general meeting of the incorporated association in accordance with its rules. [21] Clause 14 of QSMA’s rules provides for the procedures for election to the management committee. Relevantly the clause provides: “A member of the management committee may only be elected as follows: (a) any one member of the association may nominate, verbally at the annual general meeting or in writing tendered to the secretary before the annual general meeting, another member (the “candidate”) to serve as a member of the management committee. (b) for a nomination to be valid, it must be accepted by the candidate, verbally at the annual general meeting or in writing tendered to the secretary at or before the annual general meeting.” 3 3 My emphasis -- 5 of 19 -- 6 [22] In my view the only meaning open from these provisions is that every member not excluded by s 61A of the Act has the right to have their name placed before the members at the annual general meeting to go onto the management committee provided that the member has complied with the relevant rules of the Association regarding nomination. If it were otherwise the management committee would have an unfettered power to determine for itself who is and who is not to get onto the committee. That is untenable. [23] The second possible answer to the submission is that the reference to “a right conferred on the member by the rules” in s 71(2) is not quite so restricted as the submission seems to assume. Thomas J (as his Honour then was) made the point over 20 years ago that there had been a “widening of protection in the species of right protected” in his judgment in Re Maggacis4: “It is not appropriate that the courts intrude unduly into the management of private associations. There is now no difficulty, at least in Queensland, intervening when the breach of the rule infringes the right of a member (ss.41 and 42 of the Associations Incorporation Act) and in any event the common law trend is to intervene when someone is unfairly penalised particularly when destruction of an existing right is involved. There has also been a widening of protection in the species of right protected, to the extent that legitimate expectations are often protected, but this is very much a development in the field of public law. As Murphy J. observed "the question is where the line is to be drawn between public power which requires observance of due process and private power which does not. The development of civil rights and liberties is evolutionary.." (Forbes, above, p.276). In guiding this evolution the idealism of Judges should be tempered with the knowledge that intrusion of lawyers into every aspect of human life and the cultivation of a litigious society may not be in the public interest.” [24] In my view the ability to put oneself forward for election to the management committee of an association such as this is at least a “legitimate expectation”, and more likely a right, that the courts should be very jealous to protect. The concern that Thomas J spoke of – not to “intrude unduly into the management of private associations” – is not a factor here. Election to the Management Committee [25] The contest between the parties is whether Mr Feyen complied with the nomination procedures set out in clause 14.1 of QSMA’s rules. The rule is set out above. [26] Accepting for the moment the respondents’ version of the facts as to the addressing of the envelope, the issue is whether a nomination form received by the secretary through the post but not addressed to “the secretary” and with an incomplete address of the QSMA, which nonetheless came into the secretary’s hands (which I am confident it did, despite the secretary’s evidence) before the annual general -- 6 of 19 -- 7 meeting, satisfies the requirement, that the candidate be nominated “in writing tendered to the secretary before the annual general meeting.” [27] The respondents argue that the word “tendered” carries with it a connotation of attendance to formalities. Those formalities included the necessity that the envelope be addressed to “the secretary” and bear the complete address of QSMA. The respondents argue those aspects were lacking here. Hence there was a failure to comply with the pre-conditions laid down by the rules and the nomination was invalid. [28] In my opinion the respondents’ argument is wrong. The word “tendered” is merely facultative. It connotes no particular formalities at all. Indeed the rules are silent on the procedures that are to be followed. [29] It is not submitted that the flyer that was circulated to the members laid down conditions essential to a successful nomination. In my view that concession is correct. No source of power was identified by which the management committee could modify the rules in this way. Rather it is submitted that the flyer gave an indication as to what would be sufficient. While that is so, the flyer did not by its terms, and in my view could not, lay down essential pre-conditions for nomination not required by the rules of QSMA. [30] Some reference was made in argument to dictionary definitions. The word “tender” is defined in the Shorter Oxford English Dictionary (in the appropriate sense) as “an act of tendering”. In its general sense the definition offered is “an offer of anything for acceptance”. There is no reference to formalities at all. In a legal context the word may have connotations of formality. But the context here is quite different. The word appears in a set of rules that were intended to govern the rights inter se of those interested in mining on the gem fields of Central Queensland. Generally speaking, one would expect the membership to consist of persons of varied backgrounds, learning and understanding. The rules themselves suggest a degree of informality. A nomination to the committee can be received from the floor of the annual general meeting when in progress – that strongly reinforces the view that no particular formalities are intended. Such an approach can be contrasted with the suggested model rules – with nominations required 14 days before the AGM and a list of nominees posted seven days before the meeting. [31] The important point, it seems to me, is that the secretary, upon receipt of the form, appreciates that the form is proffered and being received for the purpose of the nomination process. To take an example to illustrate the point, say the secretary found a crumpled nomination form in the street. If the facts be that that is where the person proffering the form had left it, it could not be seriously contended that the form had been “tendered” within the meaning of the rules. It would be by mere chance that the secretary came upon it. But it would be an appropriate “tender” to 4 [1994] 1 Qd R 59 – my emphasis -- 7 of 19 -- 8 hand a nomination form to the secretary before the annual general meeting. It would be irrelevant whether the envelope in which the form is contained, if there be an envelope, was addressed to “the secretary” or not at all. A “tender” would have occurred. It would be an appropriate “tender” for a candidate to ask a third party to hand the completed form to the secretary, whether the third party knew of the nature of the form or not and whether contained in an envelope or not. There is no rule that the only agent who can assist with the tender is the post office. [32] Here Mr Feyen says that he posted the nomination form. He was not challenged on the point. The postal authorities presumably placed it in the QSMA post office box. That is where QSMA says the form was located. There is no suggestion that Mr Feyen had access to the post office box. The box was cleared by a committee member other than the secretary. That appears to be the QSMA practice. That committee member asserts that because the envelope was not addressed to “the secretary” that committee member opened the envelope. He saw that it contained a nomination form. At some point the envelope and its contents were handed to the secretary, as one might expect. The Act imposes on the secretary the obligation of “keeping copies of all correspondence and other documents relating to the association”: s 69A(1)(c). As a result an obligation is imposed on committee members given the task of clearing the post office box to hand correspondence received on behalf of the QSMA to the secretary. Anyone posting a document to the address of the QSMA can expect the secretary to receive it. That in fact occurred here. [33] Both the secretary and the member who collected the envelope do not identify when the secretary received it. Each claim it was not until after the AGM, a claim I reject. I will deal with the point more completely below but I am quite satisfied that the nomination form was before the special committee meeting held the day before the AGM, a meeting the secretary attended. [34] In my view, at the latest, by the point in time when the form was either handed to the secretary or tabled at the special committee meeting, whichever first occurred, it was “tendered” for the purposes of the rule. [35] The odd aspect of the respondents’ arguments is that the procedure that QSMA advocated for postal nominations was designed to bring to the notice of the secretary the fact of the nomination, and that did in fact occur here. The complaint about the inadequacies of the form of address used do not seem to me to be relevant or indeed sensible. [36] I say not relevant because whatever the inadequacies of the address it achieved its intended purpose. [37] I say not sensible because for a letter posted at Rubyvale, bearing the address the respondent contends for, it was inevitable that it would be delivered to QSMA. The post office box identified matched that of the association. And “QSMA” is, I infer -- 8 of 19 -- 9 from the evidence, notoriously well known in the area – certainly inevitably known to the post master at Rubyvale. Rubyvale is a small town. According to the census of 2011 it has a population of 557. The association has around 500 members. While membership is not restricted to Rubyvale it is a reasonable inference that there would be few people in Rubyvale not familiar with the acronym “QSMA”. The principal commercial activity of the entire area is gem mining. The acronym “QSMA” that appeared on the envelope was not some idiosyncratic shortening dreamt up by Mr Feyen. “QSMA” is the acronym adopted by the management committee in identifying the association. It appears on the nomination form attached to the flyer I have mentioned as “QSMA Inc’. It is used as a logo at the head of letters from the association. It is used by the management committee in referring to the association in the body of their correspondence, at least with Mr Feyen. It would be surprising if a letter addressed as is contended by the respondents did not reach the secretary of QSMA. [38] The secretary of QSMA swore an affidavit, gave evidence and was cross examined. In her oral evidence she swore that she did not open the envelope which was plainly tabled at the special committee meeting. I do not see that it matters. A secretary does not avoid a “tender” occurring by such stratagems. However, as will be seen, I cannot accept that evidence as accurate. [39] Finally it was submitted that the management committee had the power to determine when a tender had occurred. Reliance was placed on cl 17.1(b). Clause 17 provides: Functions of Management Committee 17.1 subject to these rules or a resolution of the association members carried at a general meeting, the management committee: (a) has the general control and management of the administration of the affairs, property and funds of the Association; and (b) has authority to interpret the meaning of these rules and any matter relating to the association on which the rules are silent.” [40] Clause 17.1(b) is not well expressed. But what I think is clear is that the management committee cannot by exercising a power of interpretation alter the plain meaning of the rules. I think that if the management committee did intend to exercise such a power of interpretation the rules of natural justice by which the committee are bound require that they publish to the members the fact of that ruling. That has certainly not occurred here. [41] That is sufficient to resolve the legal dispute. Even on the respondents’ version of the facts Mr Feyen’s nomination form was “tendered” in accordance with the rules of the Association and he had a right to have that nomination considered by the -- 9 of 19 -- 10 members at the 2015 annual general meeting for election to the management committee. [42] However in case I am wrong in my views I will determine the factual contests. The addressing of the envelope [43] As mentioned, Mr Feyen claims that the envelope was not addressed as alleged by the respondents but rather was addressed in accordance with the flyer that he had received. If he is accepted in that contention then there was no basis at all for the rejection of his nomination. [44] There are six reasons to accept his contention. The first is that he was patently honest. Mr Barlow did not contend otherwise. The submission was that he was mistaken in his recollections and that is certainly possible. He was dogmatic about some things yet clearly wrong. An example is his claim that he “always” addressed envelopes to the QSMA in a certain way. QSMA exhibited several envelopes received from Mr Feyen addressed in a variety of ways. So the mere fact Mr Feyen claims something does not conclude the matter, but he is supported in various ways and I turn to those matters. [45] The second reason to accept his contentions is that the envelope that QSMA contends for is not post marked. Thus, on its face, the envelope did not go through the postal system. Yet it was common ground – in the sense that Mr Feyen said he posted it and QSMA said they received it in their post box - that it did. No explanation was proffered as to how that lack of a post mark can be explained consistent with that common ground. [46] The third and most cogent reason to accept Mr Feyen is that the claimed discussion at the special meeting about the inadequacies of the envelope is not supported by Mr Ashworth, the witness called by Mr Feyen. Mr Ashworth was a very impressive witness. He appeared to have no particular reason to wish to support Mr Feyen. As at the time of the special meeting (which he attended) he claimed, and it was not challenged, that he barely knew Mr Feyen. He was formerly the vice-president of the QSMA. He was familiar with the processes of the committee. It was not suggested to him that he had any personal animosity towards, or reason to denigrate, the committee members. [47] Mr Ashworth’s recollections were that the nomination was discussed, Mr Feyen’s personality and character discussed, and a decision taken to pretend that the nomination was never received, not that it was not properly addressed and so invalid. He is supported by the minutes which record the committee members’ views of Mr Feyen’s likely contribution: “Mr Feyen’s nomination was put to all the attending committee and it was a unanimous decision not to forward this person’s name for nomination as a committee person for the QSMA. Due to all issues arising at this meeting -- 10 of 19 -- 11 and it was felt that the progress we the QSMA have made in the last seven months with the various Departments and our Members that we as an organisation could not afford a person with this type of conduct on board. Moved By: J. Hartley seconded: G. Graham All in favour – Yes. The matter was then closed.” [48] Mr Barlow pointed out at an earlier hearing (as mentioned the matter has been before me several times through the year) that Mr Ashworth had admitted in his affidavit to lying about the matter previously. That is so but hardly detracts from his testimony. Mr Ashworth had the character to admit that he had misled others about the matter. He said he did so at the request of the committee members. [49] The fourth reason to doubt the respondents’ version of events is that their own subsequent correspondence does not support the version. In their letter to Mr Feyen of 6 October 2015 explaining their decision the committee said: “Your only nomination has been presented to the whole of the committee on two occasions and has been rejected unanimously by the whole committee on both occasions, which you have already been made aware of. For your convenience paragraph 8.2 the QSMA Constitution states: “the management committee must decide at the meeting whether to accept or reject the application.” Also: paragraph 17.1 b “Has the authority to interpret the meaning of these rules any matter relating to the association on which the rules are silent.” [50] Clause 8.2 of the rules has nothing to do with the election of members to the management committee. Clause 8 is headed “Admission and Rejection of Members”. It concerns the applications for membership of the association. [51] The puzzle is why, if the management committee had considered the rules and determined that the nomination was invalid by reason of non-compliance with clause 14.1 (b), as they now claim, the president and secretary, who were the signatories to the letter, did not appreciate what rule the committee had acted under, they both having been present at the special committee meeting where the nomination was considered. It is a further puzzle as to why, if the problem with the nomination was that it was addressed inappropriately, Mr Feyen was not so advised. It is a very simple point. [52] In my view the strong inference from the letter is that the committee members had given no regard to clause 14.1 (b) in determining the validity of the nomination. The first time that the respondents advanced rule 14 and the failure to lodge the nomination form in accordance with that rule was much later, in a letter of 5 January 2016. That the committee members thought that they had the power to reject the nomination because of the perceived inadequacies of the candidate is apparent from the section of the minutes quoted above at [47]. The respondents -- 11 of 19 -- 12 claim that their discussion of Mr Feyen’s character was an afterthought is rejected, as I explain below. [53] The fifth matter that goes in support of Mr Feyen is the coincidence between Mr Feyen’s early assertions and the evidence of Mr Ashworth as to the agreement at the special committee meeting to pretend the nomination form had not been received. I refer to the contents of Mr Feyen’s letter of 30 September 2015 (see exhibit CJG1(B)). He there asserted: “when the meeting concluded I went to the Treasurer and asked if she has received my postal nomination. I was told by her that she didn’t receive it because she had no time to check the mail.” [54] Mr Feyen further asserted in that letter that on the day after the AGM he met with his nominator, Mr Danny McLaughlin at Mr McLaughlin’s home. Mr Ashworth happened to be present. They decided to contact the President, Mr Charlton, and ask him to attend which he did. Mr Feyen then says that in the course of that conversation Mr Charlton agreed that what had occurred “was wrong” and “he also said that the reason my nomination was not put forward at election was because some committee members formed an opinion the (sic) I was an “in your face” very angry type of individual.” Again there is a coincidence between Mr Feyen’s assertions and Mr Ashworth’s evidence. [55] Mr Charlton has not sworn an affidavit denying that this occurred. It was not put to Mr Ashworth that these events did not occur. [56] Finally, it is common ground that the committee did not advise Mr Feyen of their decision before the vote was taken at the AGM. Courtesy and fairness at least would dictate that he be told and in a timely way. That again provides some further reason to believe that the arrangement at that time was to pretend that the nomination form had never been received. [57] I am conscious that the respondent contends that there are considerations going the other way. Mr Harwood, for example, claimed that he had torn the envelope when opening it and the envelope the respondents contend contained the nomination form (which was tendered) had such a tear. However Mr Harwood also seemed to indicate that this was not an uncommon practice that he had when opening envelopes and nor is he the only person capable of tearing an envelope when opening it. The tear hardly served to identify this particular envelope. [58] The respondents contended, through their secretary, that every envelope containing correspondence from Mr Feyen had been kept and was before the Court. Hence the inference was that the envelope contended for by the respondents was the only one which could have contained the nomination form, all others being accounted for. The difficulty with that contention is the last point. Not all envelopes were necessarily accounted for, as not all correspondence had a corresponding envelope. The respondents claimed that one item of correspondence was hand-delivered. If that claim is right, and despite Mr Feyen’s denial the probabilities seem to favour -- 12 of 19 -- 13 that there was such a hand delivery, that raises the possibility of that letter being delivered in an envelope which of course would not be post marked. It will be recalled that the envelope alleged to have been sent with Mr Feyen’s nomination form does not carry such a mark. The matters that suggest to me that the letter in question (Exhibit CJG1(b) - a letter of four pages in length dated 30 September) was probably hand delivered are the endorsement on it to that effect by the secretary, and that I cannot see that there is any advantage or disadvantage to either side in whether the letter was hand-delivered or posted. It is not possible to be certain. I observe that a letter four pages in length in which serious allegations were made would in the ordinary course of human affairs be placed in an envelope whether it was to be hand delivered or posted. No evidence was led from the alleged recipient of the letter as to whether it was contained in an envelope or not. But an envelope not bearing a postmark would be consistent with such a hand delivery. I can only observe that I am not persuaded that all envelopes are accounted for. [59] I am not persuaded that the envelope was addressed as the respondents contend. What occurred at the special committee meeting? [60] I am reinforced in that view by my conclusion as to the probabilities of what occurred at the special committee meeting because that involves a rejection of some at least of the respondents’ evidence. [61] The minutes of the special committee meeting are silent as to the rule under which the management committee proceeded in determining that the nomination was invalid. The minutes, so far as they are relevant, record that the secretary had received nominations from various members (each of them committee members) and then: “A Further one nomination was received nominated by D. McLaughlin member number 1029 of a Robert Feyen member number 1279 as a Committee member this nomination was not addressed in the correct manner and it is sheer luck it is on the table now. Addressed as Q.S.M.A P.O. Box 364. The committee agreed this was not served correctly and to be marked as a void nomination.” [62] I mentioned earlier that I was not prepared to accept the secretary’s evidence that the envelope containing the nomination form was at the committee meeting, because Mr Harwood brought it there, but not opened. I cannot reconcile that testimony with the passage in the minutes that I have quoted. The detail of the nominating member, that member’s number, the candidate’s name and his number, each could only have come from the nomination form. There was no suggestion that the detail did come, or could have come, from any other source. [63] The secretary is in the impossible situation of pretending that the detail of the nomination form was not available at the meeting because the envelope was not -- 13 of 19 -- 14 opened but the detail from the form is there in the minutes, minutes that she recorded. [64] That the nomination form was tabled at the meeting accords with Mr Ashworth’s testimony and with the minutes. [65] When the minutes in their present form were prepared is unknown. The secretary asserts that the minutes were prepared from notes taken at the meeting (I observe that the contemporaneous notes are not produced) and the typed minutes probably prepared on the morning following the meeting and before the AGM. If this claim is true then the nomination form was plainly tabled (indeed the minutes record “on the table now”), and in the custody of the secretary before the AGM. If the claim is untrue that creates even more problems for the respondents. I have reached the view that the claim is untrue at least in the sense that minutes in their present form were not prepared the next morning and are not accurate. There are two principal reasons for my reaching that view. The first is the impression made on me by Mr Ashworth. The second is the internal inconsistencies and improbabilities in the minutes. [66] The secretary detailed in her affidavit that the minutes accurately recorded the order in which events occurred. The point of that was to assert that the views of the committee members as to Mr Feyen’s character did not influence their decision to hold the nomination void. The discussion about character, it was said, occurred after the decision was made that the nomination form was incorrectly addressed. This is contrary to Mr Ashworth’s testimony. I accept Mr Ashworth’s testimony. [67] I note also that the minutes of the special committee meeting record that the committee unanimously agreed that Mr Feyen’s nomination was void, then went on to other business, and then returned to the question of the nomination of Mr Feyen. The minutes there attribute to Mr Ashworth the statement that “he knew of the man” and then the minutes attribute to Mr Ashworth this statement: “… he will (Quote) “Get in your face and anyone’s face and abuse anyone so to speak including any Department, especially if he has forgotten his medication as he tends to do quite regularly as he suffers from Depression.” [68] Mr Ashworth denied making that statement. Mr Ashworth said that the only statement he did make was that Mr Feyen was a “get in your face kind of guy.” He asserted that he had met Mr Feyen on only a few occasions prior to the date of that meeting and barely knew him. Mr Ashworth said that he knew nothing of Mr Feyen suffering from depression or taking medication. That he would make up such things is highly improbable. His evidence was that statements to that effect were made by the President, Mr Charlton. In this he was supported by Mr Trevor Harwood who was called by the respondents to give evidence. [69] The coincidence of views expressed by Mr Ashworth and Mr Harwood as to the source of the statements and the impression that Mr Ashworth made on me as a -- 14 of 19 -- 15 witness of credit leads me to the view that the minutes, at least in this regard, are not reliable. There are other problems with the respondents’ case. [70] Mr Harwood gave evidence that the nomination form was not considered at the meeting but rather informally before the meeting commenced. Again I cannot reconcile that evidence with the contents of the minutes. Further that evidence can hardly stand with the statement set out in the letter of 6 October 2015 that I referred to earlier that the committee sent to Mr Feyen in which the committee asserted that his nomination form had been before the whole of the committee on two occasions. [71] Another difficulty that I have with the minutes is that there is an air of reconstruction to parts of it. One example is the alleged order in which events occurred. It is at least odd that the committee would reject the nomination as void, and hence irrelevant to their further consideration, yet come back at length ( I have quoted only a small part of the minutes) to discuss the subject of the nomination. [72] Another example is the point made earlier that the minutes record – after the supposed ruling that the envelope was inadequately addressed and so no valid nomination had been made – a decision in these terms: “…it was a unanimous decision not to forward this person’s name for nomination as a committee person for the QSMA” because “we felt the progress we the QSMA have made…could not afford a person with this type of conduct on the board.” As the minutes presently read this makes no sense. A determination of invalidity had supposedly already been made. However if the passage I have quoted at [61] above – to the effect that the addressing of the envelope was the problem - was a creation thought up at some later time and inserted at an early place in the minutes in a clumsy attempt to justify a decision actually based on character, and inserted at a time when the committee realised they were to be called to task for a wrongful assumption of power, then the existence in the minutes of a “decision” in these terms makes some sense. It reflects what really happened. [73] A third example is the comment relating to the receipt of the envelope that appears in the minutes: “It is sheer luck it is on the table now”. The comment is not attributed to any committee member and strikes me as very unlikely to have been said. I have explained my reasons above5 as to why an envelope addressed as the respondents assert was very likely to come to the notice of the secretary of QSMA. That residents of Rubyvale and Sapphire, as it appears the committee members were,6 would find that remarkable is simply astonishing. [74] It is difficult to avoid the conclusion that the minutes in their present form were prepared at a time when the committee, or at least the secretary, was preparing a defence to the claims made by Mr Feyen. 5 At [37] 6 See the affidavits filed and Exhibit “C” to Mr Feyen’s affidavit -- 15 of 19 -- 16 [75] I am conscious of course that the committee members are volunteers and that they no doubt have the best interests of QSMA at heart. However it appears to me that they permitted their antipathy towards Mr Feyen to influence their judgement and have sought to subsequently justify their actions by recourse to a deceptive stratagem and to rules that were of no concern to them at the time. Natural Justice [76] I raised with Mr Grant, who appeared for Mr Feyen, in the course of his submissions, whether he complained that Mr Feyen had not been afforded natural justice in that the committee failed to advise him of their decision that his nomination was void (assuming for the moment that was the true situation) in a timely way such that he could correct the matter at the AGM. It is quite evident from Mr Feyen’s evidence, and indeed from the minutes of the AGM, that Mr Feyen was given no opportunity at all to advance his nomination before the members. Mr Grant seized on the point. [77] In my view Mr Feyen had a legitimate expectation that if there was a problem with his nomination he would have been advised of that prior to the taking of the vote at the AGM. Given my earlier conclusions it is not necessary to decide the matter but it seems to me that he was denied natural justice in that he was unaware of the true situation when it mattered. The remedy [78] There remains the issue of what, if any, remedy can or should be given. There are discretionary considerations. [79] Mr Feyen seeks, amongst other relief, that the election results of 2015 be declared void, and the election be re-held with his name going forward to the members. [80] Mr Barlow submitted that s 73 of the Act was relevant. Section 73(1) empowers the Supreme Court on an application under s 72 to grant relief considered to be appropriate. Section 73(2) provides: “(2) The Supreme Court may refuse to entertain such an application, or to make an order on such application, or may refuse an order for costs, or may make an order for costs against a party, whether successful or not, if it is of the opinion that— (a) the issue raised in the application is trivial; or (b) having regard to the importance of the issue, the nature of the incorporated association, any other available method of resolving the issue, the costs involved, lapse of time, acquiescence or any other relevant circumstance, it was unreasonable to make the application; or -- 16 of 19 -- 17 (c) the unreasonable or improper conduct of a party has been responsible for the making of an application, or has added to the cost of the proceedings.” [81] Mr Barlow relied on s 73(2)(b). Before turning to that I observe against the respondents that I am quite satisfied that s 73(2)(c) is engaged – the respondents have engaged in “unreasonable or improper conduct” by engaging in deceptive conduct and failing to make appropriate admissions which has had the result that they have “been responsible for the making of an application, or [have] added to the cost of the proceedings.” [82] As mentioned earlier Mr Barlow submitted that given the lapse of time and Mr Feyen’s acquiescence in what had taken place at the annual general meeting I should not make any order even if satisfied that some right of Mr Feyen’s had been interfered with. Given the importance of the right in issue I am not persuaded that it was unreasonable to make the application. [83] In any event I cannot accept that Mr Feyen acquiesced in having his rights violated. He lacked the necessary knowledge. In Group Four Industries Pty Ltd v Brosnan Debelle J succinctly summarized the relevant principles which I take to represent the law: “Both consent and acquiescence require knowledge. ‘You cannot consent to a thing unless you have knowledge of it’ per Jessel MR in Ex parte Ford; Re Caughey (1876) 1 Ch D 521 at 528. In Life Association of Scotland v Siddal (1861) 3 DeG F & J 72 at 74; 45 ER 800 at 806, in a passage which is often cited, Turner LJ emphasised the requirement of knowledge when considering what in law constitutes acquiescence: ‘Acquiescence, as I conceive, imports knowledge, for I do not see how a man can be said to have acquiesced in what he did not know.’”7 [84] To similar effect is the definition in the Encyclopaedic Australian Legal Dictionary: “1. Abstaining from interference once it is known that one’s rights are being violated: Ramsden v Dyson (1866) LR 1 HL 129.” [85] Halsbury Laws of Australia is also to the like effect at [185-1845] on the defence in equity of laches and acquiescence: “All forms of acquiescence depend on the plaintiff having knowledge of his or her rights and of the facts upon which his or her rights depend” citing RP Meagher, JD Heydon and MJ Leeming, Equity: Doctrines and Remedies, 4th ed, Butterworths, Sydney, 2002, [36-085]. See Re Howlett [1949] Ch 767; Savage v Lunn (No 2) [1998] NSWSC 529. For another example: see Jones v Invion Ltd8 per Philippides JA at [74] for the submission and [78] for its acceptance (McMurdo P and Peter Lyons J agreeing). 7 (1992) 8 ACSR 463 at 506. 8 [2015] QCA 100 -- 17 of 19 -- 18 [86] The context in which a word appears can obviously effect its meaning but I see nothing in the context here to alter the usual meaning to be given to the word “acquiescence” – it must involve full knowledge of the fact said to be accepted. [87] At the crucial time Mr Feyen had no knowledge of why his nomination form had not been advanced to the members. The committee members were deliberately keeping him in the dark at that time. The way in which the vote was taken – the chair advancing the existing committee members en bloc - had the effect, perhaps deliberate, of ensuring that Mr Feyen had no chance to act, given that he had to arrange a nominator once he understood that his nomination was not being put before the meeting. The minutes of the AGM record, after noting that all existing committee members had nominated: “…as there were no other vacant positions on the Executive or Committee to be filled no further nominations were required.” Thus no nominations were even called for. Mr Grant argued that this approach was itself a breach of the rules quite apart from the failure to put Mr Feyen’s nomination forward. Where the rules provide for nominations from the floor of the meeting I am inclined to think it is, but I do not decide the point. [88] The submission about delay has more substance. There has been a very long delay – not so much in seeking redress, although there was delay there, but in finally getting to a hearing. The respondents point to Mr Feyen’s inability to come to grips with the legal points involved but it ill behoves those who actively endeavour to mislead and deceive to blame the injured party for having trouble unravelling the tangled web they have put in place. [89] Another point is that on 21 October 2015 QSMA sent Mr Feyen a letter asking him to show cause why his membership should not be terminated – the point now not being pursued in this application. The present relevance is that Mr Feyen was then forced to defend himself on another front, and a front that I suspect should never have been opened. [90] However, whatever the cause, the fact is that the next annual general meeting is only two and a half months away, again in mid to late August. It seems quite impractical to inflict on the members two elections for committee members in so short a period, particularly bearing in mind the need to give notice and so shortening the time available even further. Nor do I think it appropriate to bring on the 2016 election at an earlier time than is usual for the Association. That would constitute unwarranted interference in the internal management of QSMA. [91] Had the matter been heard last September I would have entertained making the orders that Mr Feyen sought. At this late juncture I decline to do so. However it is appropriate that there be a declaration to vindicate Mr Feyen’s rights. [92] I propose to hear the parties further on the appropriate orders in light of these reasons. I have already indicated that I will hear the parties on the appropriate costs orders. I indicate that I presently have in mind declarations and an order as follows: -- 18 of 19 -- 19 Declare that the decision of the management committee that the nomination of Mr Robert Feyen for election to the management committee at the 2015 annual general meeting was void was in breach of the rules of the Queensland Sapphire Miners Association Inc. Declare that the failure of the management committee to inform the members of the Queensland Sapphire Miners Association Inc at the 2015 annual general meeting that Robert Feyen had been duly nominated for election to the committee was in breach of the rules of the Queensland Sapphire Miners Association Inc. Order that at the 2016 annual general meeting and prior to any vote for election of the management committee being taken the President of the QSMA, or that person for the time being acting in his place, or the chair of the meeting if the President has vacated the office, read to the members attending each of the aforesaid declarations. [93] I direct that each party make such further written submission as they may be advised as to the orders that ought to be made in light of these reasons on or before 4pm on 14 June 2016. -- 19 of 19 --