Della Bon v Abednego [2000] QSC 275

IN THE SUPREME COURT OF QUEENSLAND CAIRNS No. 70 of 2000 Before the Hon. Justice Jones [Della Bon -v- Abednego] [2000] QSC 275 BETWEEN: RONALD DELLA BON Applicant AND: JOHN ABEDNEGO Respondent JONES J Judgment delivered 1st August 200 1. I declare that the meeting of the TRAWQ Community Council held on 15 April, 2000 was invalid and the resolutions purported to be there made are of no effect. 2. I declare that the election for representatives for the TRAWQ Community Council held on 27 May, 2000 was invalid. 3. I order that the Council representatives elected on 15 March, 1997 continue in office until the following steps have been taken:- (1) The Council must give all residents of the TRAWQ Communities the opportunity to register as members of the association within one month of today’s date. (2) The Council must meet on the 31st August, 2000 to register names of persons applying for membership including all members registered prior to the election of 27th May 2000. (3) On the 31st August, 2000 the Council must give notice to all the registered members that the Annual General Meeting will be held on the 14th September, 2000. (4) At the Annual General Meeting the Council must – (i) present certified financial accounts to the meeting; (ii) set a date for the election of a chairperson and five councillors to be held on Saturday, the 28th October, 2000. (iii) give notice to each member that the election will be held on the 28th October, 2000 and call for nomination of candidates; (iv) appoint an electoral officer to be responsible for the conduct of the election in accordance with the constitution. (5) Any amendments to the constitution of the Council must not be considered until after the election of the new Council. I order that the costs of the parties to these proceedings be paid by the TRAWQ Community Council -- 1 of 15 -- 2 Catchwords: UNINCORPORATED AND OTHER ASSOCIATIONS - INCORPORATED ASSOCIATIONS - RULES - OFFICERS, ETC - DUTIES AND RESPONSIBILITIES - TRAWQ Community Council elections - Validity of General Meetings - Special resolutions passed - Amendments to the Council’s Constitution - Failure to comply with provisions of Act Counsel: Ms. M O’Neill for the Applicant Mr K. T. McCreanor for the Respondent Solicitors: Farrellys for the Applicant R. J. Dunstan Solicitors for the Respondent Hearing date: 2nd June 2000 -- 2 of 15 -- 3 IN THE SUPREME COURT OF QUEENSLAND Registry: Cairns Number: 70 of 2000 Applicant RONALD DELLA BON Respondent: JOHN ABEDNEGO REASONS FOR JUDGMENT BEFORE THE HONOURABLE JUSTICE JONES DELIVERED THE 1st DAY OF AUGUST, 2000 1. At the commencement of these proceedings the applicant and the respondent were office bearers of the “TRAWQ Community Council which is an association, incorporated pursuant to the Associations Incorporation Act (Qld)1981 (“hereinafter the Act”) on 22 September, 1997. 2. The appellant has issued two applications – one to seek a judicial review of certain decisions of the association and the second seeking declaration and other relief pursuant to ss. 72 and 73 of the Act. Background facts 3. The TRAWQ Community Council derives its name from the first letters of the five electoral divisions on Thursday Island (Tamwoy, Rosehill, Aplin, Waiben and Quarantine). I will hereinafter refer to the TRAWQ Community Council as “the association” and to its Management Committee by the term used in the constitution namely, “the Council”. 4. The association is a representative body whose principal objects are:- -- 3 of 15 -- 4 (a) to pursue policies for the economic, spiritual, social, political and cultural benefit of the TRAWQ Community; and (b) to undertake programs for the economic, spiritual, social, political and cultural benefits of the TRAWQ Community. 5 The association functions as a welfare organisation for members of the community as well as providing a wide range of community services, such as providing public transport, bus shelters, parks and gardens etc. To this end the association has relationships with the Island Coordinating Council (“ICC”) and Torres Strait Regional Authority (“TSRA”). The association also receives funding to carry out its works which included $1.3 million for C.D.E.P. programs and $600,000 for administration expenses. 6 Prior to its incorporation there existed an unincorporated association of the same name. 7 Pursuant to s.46 of the Act the incorporated association on 22 September, 1997 adopted its own rules, entitled the “constitution”. The constitution provided for periodic elections to be held on the same date as the triennial election for local governments under the Local Government Act 1993 (Qld) 1 but only registered members of the association were eligible to vote. The purpose of the election is to decide the membership of the Council of the association. The council is to consist of a chairperson and five councillors (one councillor representing each of the five divisions that constitute Thursday Island). 2 8 As the constitution came into effect on 22 September, 1979 the next triennial elections were not due before 25 March, 2000. For the intervening period the constitution provided as follows:- “74(3) If the association is not incorporated on or before 15 March, 1997- 1 Constitution Rule 41(2) 2 Constitution Rule 13(2) -- 4 of 15 -- 5 (a) The chairperson and councillors elected at the election become the first office bearers of the association and continue in office until the next triennial election of the association; (b) Where any such chairperson or councillor is not available or unwilling to take office as a member of the council of the association, a by-election under Rule 63 must be held for the position that person would have occupied.” 9 The “election” referred to in the above Rule refers to the election for the unincorporated association held on 15 March, 1997. The representatives of the respective divisions elected on 15 March, 1997 were as follows:- • Richard Morseu – (Tamwoy) • Cyril Stephens – (Rosehill) • Riley Gibia – (Aplin) • Ronald Bon – (Waiben) • Matilda David – (Quarantine) 10 Taking a position on the Council and acting in the capacity of chairperson was the representative Mr. John Abednego. He was the successful candidate in the March 1997 election for the position of chairperson of the Island Coordinating Council (“ICC”). There appears to have been no separate election then for the position of chairperson of the association. 11 This is explained in the affidavit of Mr. Abednego that “the traditional practice” was for the person elected from a community as representative of ICC to become the chairperson for that community’s council. Whether this “traditional practice” has legal effect is one of the issues raised for determination. Since incorporation, the chairperson must be elected from candidates nominated specifically for the position of chairperson. (Rule 45.) -- 5 of 15 -- 6 12 Following the incorporation, the business of the association was conducted by these council members acting as a committee of management, pursuant to Rule 74(3) of the constitution. 3 13 Upon incorporation there were 12 registered members of the association. Between then and the beginning of March, 2000 no further members were duly admitted to membership by registration. During that time some 65 applications for memberships had been lodged but the council had not, at any of these meetings, formally accepted the applications for registration. 14 Between the date of incorporation and March, 2000 there had been no general meetings called. Consequently, there was no compliance with either sections 55 and 56 of the Act 4. There were also breaches of both Rule 27 and 28 of the constitution. 15 Consequently, at the beginning of March, 2000 there had been no financial report to the 12 members. As well, there were only the 12 members eligible to vote at the forthcoming election which was timed to coincide with the triennial local authority elections on 25 March, 2000. 16 This gave rise to a variety of concerns and led to a flurry of meetings organised by, and on behalf of, the parties to this application. 17 I shall deal with each of them in order. 4 March – four members of the council, Messrs. Dellabon, David, Stephen and Morseu called a public meeting of residents of the TRAWQ divisions. This was not intended as a meeting of members of the association but rather as a general public meeting of residents. During the course of the meeting advice was sought from government agencies. The meeting was attended by some 26 persons who are 3 See para. 8 above -- 6 of 15 -- 7 identified in ex.RDB3. Certain resolutions were passed at this meeting which were then considered by a meeting of council on 7 March, 2000. 18 7 March – This meeting of the council was attended by each of the divisional representatives and the secretary of the association. Not present was Mr. Abednego nor was any apology received from him. It is not clear on the material whether Mr. Abednego was given notice of the meeting and of the business there to be discussed or whether the other council members had taken a view that he was not eligible to sit as a councillor. A letter which he asked to be considered at the meeting was disregarded. The remaining councillors considered the resolutions of the public meeting of 4 March with councillor Gibia abstaining. The resolutions passed at the public meeting were adopted at this council meeting. They dealt with the following topics:- 1. Deferring of elections to 28 October, 2000. 2. Current office bearers continue until Annual General Meeting of 28 October, 2000. 3. A review of the current constitution be undertaken and a report given to the A.G.M. on 28 October, 2000. 4. That a list of nominations for membership to the association be compiled. 5. That discussions be undertaken with the Torres Shire Council. 19 A public notice was issued on 10 March, 2000 advising of the altered election date. On 11 March a public notice was issued by Mr. Abednego advising the community to ignore the notice issued following the council meeting. 20 10 March, 2000 - A meeting of the members of the council was held in the morning of that day when the 68 persons who had previously been nominated for membership were accepted as members of the association. This was the last 4 S.55 – First AGM to be held within 18 months; s.56 – subsequent AGM to be held each year within -- 7 of 15 -- 8 day on which persons could be registered as members and be eligible to vote for council elections if they were to proceed on 25 March, 2000. By the afternoon a further 155 applications for membership had been received. The respondent, as chairperson and supported by Mr. Gibia, attempted to deal with these applications by sending a “flying minute” to the four councillors aligned with the applicant. The four councillors refused to accept the proposal and the 155 persons were not therefore admitted to membership. 21 The constitution provides a heavy bias towards the granting membership by providing that “an application for membership shall be accepted if the applicant is eligible for membership” (Rule 8). Eligibility depended only on the applicant being an 18 year old natural person who has continuously been resident in the TRAWQ area for six months before applying. 22 In the light of subsequent events it is unnecessary to dwell on the reason of the councillors’ actions in refusing to accept these proposals. 23 11 March – A meeting was held by a group of nine of the original 12 members of the associations. The purpose of the meeting was to pass a motion of no confidence in the four councillors aligned with the respondent. This meeting was called without the requisite notice being given as required by Rule 20 of the constitution and there was not a quorum of the total membership which by then had been registered. The resolution purported to be passed at this meeting was therefore invalid. At the same meeting the 155 applicants for membership were purported to be admitted as members of the association. Whilst a properly constituted general meeting has the power to admit persons to membership this meeting was not so constituted. six months of end of financial year. -- 8 of 15 -- 9 24 12 March – A further meeting of the group of nine aligned with the respondent was held wherein it was decided to formally call for a Special General Meeting of the original 12 members. Notice of the Special General Meeting set for 15 March was hand delivered on 14 March. Again the meeting did not comply with the notice provisions of Rule 31 of the constitution nor was notice given to all the members. 25 15 March – Seven of the original 12 members met in response to the 14 March notice. An election of office bearers was undertaken to the effect that Mr. Abednego was appointed President and Mr. Gibia as Treasurer. Insofar as this meeting purported to be a Special General Meeting of members it breached the provisions of the constitution as to notice and as to quorum. Consequently, the resolutions passed were of no effect. 26 In the following two weeks some 181 new members were entered into the register of membership of the association presumably having been accepted by those purporting to act as the council. Notice was then given of a General Meeting to be held on 15 April, 2000. The terms of the notice are not in evidence to allow a determination whether this was an Annual General Meeting or a Special General Meeting and whether due notice was given of the business to be conducted. 27 15 April – A meeting purporting to pass special resolutions was held at which 72 people were present and for which no apologies were received. The four councillors aligned with the applicant did not attend. This meeting purported to pass a number of resolutions – 1. Setting a different date for the council elections, namely 20 May, 2000. 2. Choice of an electoral officer. 3. Making 30 amendments to the constitution. -- 9 of 15 -- 10 There was no presentation of financial accounts which suggests the meeting was not intended as an Annual General Meeting. Some 72 persons are recorded as having attended this meeting out of a total registered membership of approximately 258 members. Although the resolution notes agreed election date of 20 May, 2000 the election was subsequently advertised for 27 May, 2000. I am not advised as to the circumstances in which this change occurred. Nor is there any material before me as to the calling of nominations as candidates for the positions. I assume that the four councillors aligned with the applicant did not nominate given their assertions that the calling of the election was, in any event, invalid. 28 At the election 201 persons of the total membership of 258 voted which resulted in Mr. Abednego being elected as chairperson. Of the previous councillors, Mr. Gibia alone was re-elected. What is not revealed in the material is who were the other candidates for election and what opportunity was available for persons to nominate for election particularly in circumstances where a challenge was made as to the validity of the decision to call the election at that time. Conclusions 29 That recounting of the facts shows a history of conduct of the affairs of the association which is far from satisfactory. The failure to comply with the provisions of the Act as to the holding of meetings denied the members, as well as government agencies, the level of financial accountability they were entitled to expect. The disregard of membership applications may well have thwarted serious intentions to play a role in the association and perhaps to seek representative office. 30 Little is to be gained by a detailed analysis of the rights and wrongs of each event which has given rise to concern. Ultimately, it is my task to decide whether -- 10 of 15 -- 11 the Court should intervene and if so, to make orders which will lead to compliance with the law. 31 I am mindful of the remarks of Thomas J In Re Maggacis 5 where he said:- “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 the 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 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 the due process and private power which does not. The development of civil rights and liberties is evolutionary” (Forbes, at 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.” 32 I am satisfied that there has been such a disregard for the provisions of the Act and the constitution as to warrant the interference of the Court. This is made more compelling by the fact that the council is charged with the responsibility of expending public funds and has yet to produce any financial accounts of its stewardship. 33 I am satisfied that the processes leading to the election held on 27 May, 2000 did not provide a fair election. The conflict and confusion which must inevitably have followed the type of public disputation that characterised the actions of the councillors would be unlikely to give rise to a fair election process. 34 The first matter that arises for consideration is the position of the respondent as chairperson of the association. His assumption to the role of chairperson was based on the claim of a “traditional practice” that the chairperson of a local island -- 11 of 15 -- 12 council becomes a member of the ICC. The respondent was elected directly to the ICC pursuant to s.45(1) of the Community Services (Torres Strait) Act of 1984. By a process of reverse reasoning the respondent argues that by being appointed to the ICC he has the right to be chairperson of the Community Council. 35 This argument, however, is flawed. The association is not an island council incorporated pursuant to the Community Services (Torres Strait) Act and the election of the respondent to the ICC is a response to the vote of a different constituency to that of the association. Section 45(1) of the Community Services (Torres Strait) Act provides:- “45(1) On and from the passing of the Community Services (Torres Strait) Act Amendment Act 1986 the Island Coordinating Council shall be constituted by – (a) the persons who are chairpersons of the Island councils; and (b) 1 person appointed by the members of the TRAWQ communities on Thursday Island whose names are on the electoral roll for the State Electoral District of Cook, as a representative of the community.” The right to vote for the chairperson of the association is a right of membership of the association and not the broad constituency of the voters whose names are on the electoral roll. 36 The respondent’s election to the ICC on 15 March, 1997 has no relationship to any prior connection with the Tamwoy community referred to in subsection (3) of s.45, that being simply a transitional provision giving effect to the 1986 amendment until the next biennial local authority election which would have been held in March, 1988. Consequently it seems to me that, contrary to paragraph 19 of the affidavit of the respondent, his election on 15 March, 1997 to the ICC was, 5 (1994) 1 QdR 59 at p.67 -- 12 of 15 -- 13 on the vote of those members of the TRAWQ community whose names were on the electoral roll. 37 The evidence does not disclose whether at the same elections the five councillors representing the various electoral divisions which makes up the TRAWQ communities were also elected by voters whose names are on the electoral roll. Assuming this to be the correct position, it seems to me that the respondent’s authority to act as chairperson of the association, once it become incorporated, was exactly the same as the authority of the other representatives to act as members of the council of the association. This it seems to follow from Rule 74 (3), the representatives being, “the chairperson and councillors elected at the election (15 March, 1997) to become the first office bearers of the association.” Technically the term of each of the council members expired at the date of the triennial elections on 25 March, 2000. In my view, there has been no valid election since that date. 38 It is acknowledged by both parties that s.73(1) of the Act imbues the Court with very wide powers, its terms are:- “73(1) The Supreme Court, may on an application brought pursuant to s.72, grant such relief as is appropriate in the circumstances.” Neither party has been able to refer to any authority which constrains the discretion implicit in these terms. Ultimately, I must have regard to the fact that the association has responsibility for the expenditure of public funds for the benefit, not only of its members, but also for the residents generally of the five electoral divisions. The adult residents of these divisions have the right to become members and thereafter to appoint the person to represent them on the council. 39 I was referred by counsel also to the provisions of s.133 of the Act which provides that effects, irregularities and deficiencies of notice shall not necessarily -- 13 of 15 -- 14 invalidate past proceedings. Because of the disregard by the councillors of these responsibilities under the Act and the constitution and the conflictual situation that has arisen between them, it is difficult to determine where injustice may or may not have been caused. I see no advantage on ruling on the validity of each of the contested decisions taken at the various meetings. However it is necessary, in order that the Council’s authority be placed on a proper footing, that the purported general meeting held on 15 April 2000 be declared invalid and all the resolutions there passed be of no effect. Consequently the election held on 27 May, 2000 for representatives for the TRAWQ Community Council is also invalid. 40 It seems to me that my orders must now create an environment which allows the objects of the association to be pursued by representatives elected by a process which has the confidence of the community. This can only be achieved by the Council representatives who have held office since incorporation completing their responsibilities and calling a fresh election in an orderly manner in accordance with the constitution. Despite my concerns about their past stewardship I propose to order that the council members duly elected in March, 1997 should continue until this has been achieved. Apart from compliance with these orders, only urgent or essential matters of business should be undertaken by them. Orders 41 1. I declare that the meeting of the TRAWQ Community Council held on 15 April, 2000 was invalid and the resolutions purported to be there made are of no effect. 2. I declare that the election for representatives for the TRAWQ Community Council held on 27 May, 2000 was invalid. -- 14 of 15 -- 15 3. I order that the Council representatives elected on 15 March, 1997 continue in office until the following steps have been taken:- (1) The Council must give all residents of the TRAWQ Communities the opportunity to register as members of the association within one month of today’s date. (2) The Council must meet on the 31st August, 2000 to register names of persons applying for membership including all members registered prior to the election of 27th May 2000. (3) On the 31st August, 2000 the Council must give notice to all the registered members that the Annual General Meeting will be held on the 14th September, 2000. (4) At the Annual General Meeting the Council must – (i) present certified financial accounts to the meeting; (ii) set a date for the election of a chairperson and five councillors to be held on Saturday, the 28th October, 2000. (iii) give notice to each member that the election will be held on the 28th October, 2000 and call for nomination of candidates; (iv) appoint an electoral officer to be responsible for the conduct of the election in accordance with the constitution. (5) Any amendments to the constitution of the Council must not be considered until after the election of the new Council. 42 I order that the costs of the parties to these proceedings be paid by the TRAWQ Community Council -- 15 of 15 --