Cassidy v Caloundra Sub-Branch RSL Services Club Inc [2000] QSC 199

0 o'6 Lt=> State Reporting B L\:, 6COo[ 1ciq lll"€3ll TRANSCRIPT OF PROCEEDiNGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAJ.~D CIVIL JURISDICTION BYRNE J No 3110 of 2000 JOHN CASSIDY and CALOUNDRA SUB-BRANCH RSL SERVICES CLUB INC BRISBANE .. DATE 14/04/2000 JUDGMENT REVf.SED COPfES ISSUED Staie Reporting Bure.cu Date 10 I 5 I OD Plaintiff Defendant 1.. ,,,-. Tl1t: l.:1w C1111rts, Ce11q.:i: Stri:<:t, Brisl,:111.:, () . .ti)(}{) Tt:lt:pli1111L·: (1)7) .12-17 .j_l/j() F:,~: (117) .12-17 5;:_12 -- 1 of 5 -- 14042000 T3/BP17 M/T 7405/2000 (Byrne J) HIS HONOUR: By an originating application the plaintiff, a member of the defendant, which is an organisation incorporated under the Associations Incorporations Act 1981, seeks declaratory relief in connection with proceedings taken against him which may involve his suspension or termination from membership of the defendant. The principal relief sought is a declaration concerning the invalidity of amendments to the constitution of the defendant, which have been registered by the Chief Executive pursuant to Division 2 of Part 5 of the Act. The primary contention relied upon in opposition to the application is that although there appears to be a non compliance with requirements of the Constitution concerning amendment, in that the amendment was not endorsed by the State Council of the RSL, nonetheless the effect of Section 49(2) of the Act is to validate the amendment. That subsection provides that: "On registration of the amendment, the incorporated association's rules are its rules as amended." IO 20 30 ,iO Prima facie, the effect of the statute would be to cause the so amendments, once registered in accordance with Division 2 of Part 5, to be treated as valid. However, a contention is advanced, at first in reliance on Section 46(5) and later upon more general contentions, that the effect of Section 49(2) is not to render valid an amendment of the kind with (j() 2 JUDGMENT -- 2 of 5 -- 14042000 T3/BP17 M/T 7405/2000 (Byrne J) which I am presently concerned, that is to say, one purportedly made but one not actually made in compliance with the requirements for amendment of the Constitution prescribed by the Constitution. An adjournment has now been sought by the applicant primarily for the purpose of ascertaining whether extrinsic materials concerning the effect of Section 49(2) may assist the applicant's contention; and so far as the applicant wishes to contend that more general considerations require Section 49(2) to be construed as not validating amendments which are made otherwise than in compliance with the requirements of the Constitution, that decided cases might support that proposition. The defendant accepts that an opportunity may properly be accorded to the plaintiff to examine these issues, but of course on terms: in particular that the applicant pay the costs thrown away by the adjournment. Declaratory relief has also been sought in respect of proceedings that may result in suspension or termination of the applicant's membership which may be expected to proceed tomorrow. As best I understood it, the proposition appeared to be that a contravention of natural justice would be involved in the plaintiff's being required to offer a defence of his position at the time when a police investigation into the circumstances surrounding the events 3 JUDGMENT IO 20 30 ,j() 50 {i() -- 3 of 5 -- 14042000 T3/BP17 M/T 7405/2000 (Byrne J) which are said to have led to the membership suspension or termination proceedings mentioned. He will, it is said, confront this dilemma: either to defend the proceedings against him in respect of his membership and thereby put at risk his prospects of successfully defending any charges that might result from the investigation of the alleged assault of another club member or else, in the interests of preserving himself against prosecution, to remain silent in the membership proceedings, thereby significantly enhancing the prospects that action will be taken against him to suspend or terminate his membership. The existence of the dilemma may be acknowledged. But no authority was cited to support the proposition that in such circumstances, some relief ought to be granted in the nature of a declaration which would protect the applicant. There is therefore no basis shown for relief to intercept the membership proceedings tomorrow. The order will be therefore: Firstly, that the application, insofar as it relates to the challenge to the validity of amendments to the rules of the respondent registered on 29 July 1999 and on 15 March 2000, is adjourned to a date to be fixed; 4 JUDGMENT IO 20 :30 :j() (i() -- 4 of 5 -- 14042000 T3/BP17 M/T 7405/2000 (Byrne J) Secondly, that the application is otherwise dismissed; Thirdly, that the applicant pay the respondent's costs thrown away by the adjournment to be assessed on the indemnity basis. 5 JUDGMENT IO 20 30 .1() :i() f,() -- 5 of 5 --