Dillon v Logan City Bowls Club Inc [1992] QCA 246

IN THE COURT OF APPEAL [1992] QCA 246 SUPREME COURT OF QUEENSLAND Appeal No.694 of 1991 BETWEEN CHRISTOPHER DILLON (Plaintiff) Appellant and LOGAN CITY BOWLS CLUB INC. (Defendant) Respondent JUDGMENT OF THE COURT Delivered the 11th day of August, 1992 The appellant, Christopher Dillon, is a former member of the respondent, Logan City Bowls Club Inc., (the Club) which is a body corporate pursuant to the Associations Incorporation Act 1981 as amended. On 22nd April 1991, the appellant commenced proceedings in the Supreme Court seeking a determination that he had not been validly expelled by the respondent Club and an injunction restraining it from preventing his enjoyment of his rights and privileges as a member. A motion for final judgment filed on 1st August 1991 was determined by a judge of the Trial Division on 15th November 1991 on the basis of affidavits and documentary evidence. There was no cross-examination or other oral testimony. The action was dismissed on 5th December 1991, and the appellant has appealed to this court. On 3rd November 1989, the appellant was involved in an altercation with another member of the Club in the car park. By letter dated 7th November, the honorary secretary of the Club wrote to the appellant in the following terms: "Owing to the incident which happened on Friday night 3.11.89 the Council has instructed me to inform you that all your Club privileges as a member have been -- 1 of 12 -- 2 revoked. The Council will convene a special meeting on Monday 20.11.89 to deal with this incident. You are advised that it would be in your best interest to be present at the Club, at 7.00 p.m. on 20.11.89 to answer the charges laid against you. Your confirmation that you will be attending will be appreciated at your earliest convenience." On 17 November 1989, the appellant was charged by a police officer with unlawful assault occasioning bodily harm arising out of the same altercation. A special meeting of the Council of the Club was held on 20 November 1989. The meeting was opened at 7.10 p.m., by which time the appellant had not arrived. In his absence, it was resolved ".. that Chris Dillon be expelled.". It seems that it was also determined that a letter should be written to the appellant in the following terms "I have been instructed by the Committee to notify you that you have been expelled and all privlages have been revoked. This decision was made on the evidence presented. You were requested to attend and did not. We had the right to proceed with these charges, which caused this conclusion. Further, your counter-claim was considered, that no grounds were established to continue with this complaint. 28 days to reply." The minutes of the meeting record that, after another matter had been attended to, the appellant "arrived late requesting that no action be taken after his court case.". It was common ground that the word "until" is missing before the word "after". It was also resolved that "committees previous decision to be suspended apply, but confirmation to Chris be delayed until after court case, in case other evidence arrises, but his privlages be revoked. Owing to this court case, these minutes will not be displayed on notice board." The appellant was subsequently convicted after pleading guilty in the Magistrates Court. On 17 April 1990, a further letter was written by the -- 2 of 12 -- 3 honorary secretary of the Club to the appellant as follows: "You are requested to attend a special Council Meeting to be held on 23.4.90. Re incident on 3.11.89. As previously requested by you to have this matter dealt with after the pending Civil Action was finalised. You are reminded that it is in your best interest to attend, as in your absence the Council has the power to deal with same." The appellant did not attend the meeting of 23rd April, and there is no explanation for his absence in the material before the court. Further, the minutes of that meeting are not available. However, by letter dated 30 April, the honorary secretary of the Club wrote to the appellant in the following terms: "Re incident 3.11.89. I have been instructed by the Council to inform you that at the special Council Meeting held on 23.4.90. In your absence the Council has decided to EXPEL you from Membership of the Club. Under the Constitution Rule 8 Sub(f) Any person so reprimanded, suspended or expelled shall have the right of appeal within 28 days of receipt of written notice of reprimand, suspension or expulsion to a Special General Meeting. Such written notice shall inform such person of hes right of appeal under this rule. Such appeal shall be in writing signed by the appellant. Upon receipt by the Secretary of the appeal, a Special General Meeting shall be called by the Secretary in accordance with rule 11(b), and the appellant shall be entitled to all Club privileges until such appeal is determined. Such appeal shall be deemed lost unless upheld by a two-thirds majority of those members present and entitled to vote at the meeting. The appellant shall not be entitled to be represented by a Solicitor or Barrister or other Agent. Forthwith after the expiration of the said 28 days if the person suspended or expelled has failed to appeal or if his appeal has failed forthwith after the Special General Meeting, the person concerned shall lose all rights and privileges of the Club during the period of hes suspension or expulsion, and the Secretary shall certify in writing to the Club's District Bowls Association and to the Royal Queensland Bowls Association, the name of the members suspended or expelled and the period of suspension." The appellant says that, within twenty-eight days of -- 3 of 12 -- 4 his receipt of that letter, he "... wrote to the Council of the Club seeking to appeal against the said decision. There has been no special meeting convened to consider such appeal as required by By-Law 8(f) of the Constitution and By-Laws of the Club. The only response I have received to my said appeal has been a letter from the Club dated 18th May, 1990." A somewhat different version of the events following the letter of April 30 1990 was given by the Club President, Mr Kenneth James Spires, whose affidavit contains a paragraph in the following terms: "13. Sometime between April 30, 1990 and May 18 1990, a letter from the Plaintiff was received concerning the severity of his sentence. By a letter dated May 18, 1990 the Club replied to the said letter. .." The letter from the honorary secretary of the Club to the Appellant dated 18 May 1990 was in the following terms: "I presented your letter to our last Council Meeting Re severity of the sentence given to you. This was discussed and the Council has decided that this penalty would stand." The solicitors for the appellant wrote to the Club on 28th May 1990 asserting that it had failed to call a special general meeting as required by its rules, that his right of appeal had therefore been frustrated, and that the decision to expel him "... must now be reversed forthwith." The Club's reply dated 7th June 1990 was in the following terms: "Your letter dated 28th May, was put to our last Council Meeting and discussed at great length. May I start by saying that the Council does not consider that Mr Dillon has been wrongly dealt with in reference to his letter dated 10th May which I received on the 14th May. In his letter the only thing Mr Dillon requests is for the Council to reconsider the severity of the sentence, he does not in fact ask for a Special General Meeting to hear his case of appeal, under the relevant clause of the Constitution. If Mr Dillon wants a General Meeting to hear an appeal, theis would be considered by the Council on recit of a request in writing to the Secretary. A decision on this case was delayed previously, at the -- 4 of 12 -- 5 request of Mr Dillon to assist him as action was pending in Beenleigh Court for thes. So as you can see the Council has been quite reasonable, but after two requests for Mr Dillon to put his case to the Council and what relevant evidence or witnesses that may help in his case Mr Dillon has failed in same. It is also noted that Mr Dillon did in fact plead guilty to charges laid, arising out of this incident and was duluy convicted and fined." Shortly after the notice of motion seeking judgment was filed by the appellant on 1st August 1991, the Club again wrote to the appellant's solicitors. The letter, dated 5 August 1991, was in the following terms: "We confirm that on August 2, 1991 a Notice of Motion and Affidavit of Christopher Dillon were served upon our city office. As this matter is not of great moment and creates more burden on the already overburdened Supreme Court, we have been instructed by our client to advise you that the Council of the Club are more than happy to call a special general meeting to have the matter of Mr Dillon's appeal and subsequent matters to be dealt with. ... Our client is adamant that any correspondence received by your client during the period between April 30, 1991 and May 18, 1991 did not constitute an appeal. Our client is further of the opinion that there has never been a denial of justice to your client. In fact, the Council of the Club has acted more than fair in delaying confirmation of its original decision to expel your client on your client's own request. We look forward to your client's reply to this suggested resolution of the matter before the Notice of Motion proceeds in chambers tomorrow, August 6, 1991. We enclose an Affidavit of Kenneth James Spires for your consideration and advise that we shall be filing same by leave in chambers tomorrow." Further, paragraph 18 of Mr Spires' affidavit was as follows: "Should it be a decision of the Court that the Club has failed to convene a special meeting to hear an appeal by the Plaintiff after receiving correspondence from the Plaintiff between April 30, 1990 and May 18, 1990, then the Council of the Club are willing and able to convene a special general meeting so that such an -- 5 of 12 -- 6 appeal can be heard." Rule 8 of the constitution and by-laws of the Club is headed "Suspension and/or Termination of Membership". Sub- rules 8(d)(e) and (f) respectively provide: "(d) The Council shall have the power to reprimand, suspend, or expel any member who, in the Club premises or elsewhere is, in the opinion of the Council, guilty of conduct derogatory to the character of a gentleman or lady or prejudicial to the interests of the Club. A member shall not be suspended from the privileges of membership under this rule for a longer period than six months. (e) A member shall not be dealt with by the Council under this provision, except upon a charge or complaint made in writing to the Secretary. Such charge or complaint shall set out the conduct which is the subject matter of the charge or complaint and bear the signature of the complainant. Any member so charged shall be notified in writing by the Secretary of the nature of the complaint and the member charged shall be given the right of answering the charge by appearing before the Council and of calling evidence and of questioning witnesses but a member shall not be entitled to be represented by Solicitor, Barrister or other Agent. (f) Any person so reprimanded, suspended or expelled shall have the right of appeal within 28 days of receipt of written notice of reprimand, suspension or expulsion to a Special General Meeting. Such written notice shall inform such person of his right of appeal under this rule. Such appeal shall be in writing signed by the appellant. Upon receipt by the Secretary of the appeal, a Special General Meeting shall be called by the Secretary in accordance with Rule 11(b), and the appellant shall be entitled to all Club privileges until such appeal is determined. Such appeal shall be deemed lost unless upheld by a two-thirds majority of those members present and entitled to vote at the meeting. The appellant shall not be entitled to be represented by Solicitor, Barrister or other Agent. Forthwith after the expiration of the said 28 days if the person suspended or expelled has failed to appeal or if his appeal has failed forthwith after the Special General Meeting, the person concerned shall lose all rights and privileges of the Club during the period of his suspension or expulsion, and the Secretary shall certify in writing to the Club's District Bowls Association and to the Royal Queensland Bowls -- 6 of 12 -- 7 Association, the name of the member suspended or expelled and the period of suspension." Further, rule 20, which is headed "Gambling, Disputes etc." provides: "20. No political or religious subjects shall be discussed on the Club's premises, nor shall gambling, betting on games, obscene or abusive language or unseemly conduct be allowed. Any alleged infringement of this rule, on report of any members, shall be investigated by the Council, which shall have power to demand and direct apologies, and if necessary, if the offending party be a member, to deal with him under Rule 8(d), or if he be a member of another Club, to report his conduct to such Club and to the R.Q.B.A.. If he be a visitor, who is not a member of a Bowls Club, the Senior Officer of the Club present at the time shall have authority to have him removed from Club premises." The only other rule referred to in argument was rule 10 "Club Management", and in particular subrule 10(f)19 which provides: "(f) Powers of Council - The Council shall manage the Club and in addition to the powers specially conferred on it by these Rules, shall have the power - ... 19. Otherwise, act in the interest of members." Neither party placed any reliance upon the initial decision of 7 November 1989 revoking the appellant's privileges as a member. It was implicit in the Club's argument that that decision was within the Council's power under rule 10 to manage the Club and otherwise act in the interest of members. While the appellant disputed that, he accepted that he gained no benefit for present purposes from his contention that the decision of 7 November 1989 was invalid because it was not preceded by notification in writing of the nature of the complaint against him as required by subrule 8(e). In substance, the appellant's submission was that the Club's only power to suspend or expel is that contained in paragraph 8(d) and that the power to expel and the power to suspend (or reprimand) are alternative, not cumulative. It -- 7 of 12 -- 8 was argued that, because the Club had suspended Mr Dillon on 20 November 1989, it had no power to expel him on 23 April 1990. The Club made two answers. It is convenient for the moment to pass over the first which was, essentially that, although the power to suspend and the power to expel in subrule 8(d) may be alternatives, the revocation of the appellant's privileges decided upon at the meeting of 20 November 1989 was only imposed until after the final resolution of the complaint against the appellant following the resolution of the court proceeding, and such an interim measure was permissible pursuant to subrule 10(f)19, which materially supplemented subrule 8(d). While there is some attraction in this argument, whether or not it is correct might ultimately depend upon the provision in subrule 8(f) with respect to the exercise of privileges after an appeal has been instituted until the appeal is determined. It is unnecessary to pursue this further, because the Club is entitled to succeed on its other argument which takes issue with the appellant's interpretation of the decisions of 20 November 1989 and 23 April 1990. There are two ways of viewing these decisions, either of which is sufficient for the Club's purposes. It is incorrect to treat the decision of 20 November 1989, as the appellant seeks to do, as a valid decision to suspend the appellant and otherwise as either involving no decision or involving a decision which was invalid. Although the decisions recorded in the minutes of the Special Meeting held that day are not drafted with particular clarity, it seems plain enough that the substance of the decisions made with respect to the appellant were that he be expelled but that the expulsion not take effect or be communicated until after the conclusion of the prosecution against the appellant and that, in the meantime, the appellant be suspended. If such a decision was within the power of the Club, then the subsequent decision on 20 April 1990 provided the "confirmation" after the conclusion -- 8 of 12 -- 9 of the court proceeding and, in accordance with subrule 8(f), it was then that the appellant was given written notice of his expulsion and of his right of appeal. If, on the other hand, composite decisions such as those recorded in the minutes of 20 November 1989 were beyond the power of the Club, it does not follow that the interim suspension and it alone was valid. If the whole decision was invalid, that left the decision of 23 April 1990 to operate as the effective decision to expel the appellant. If, on the other hand, the decision as to 20 November 1989 is invalid to the extent that it involved the purported exercise of a power to expel and a power to suspend in reliance upon subrule 8(d) when only one such power was available, then it was the decision to suspend, which was the second decision, which was beyond power. The only possible response which the appellant could make would be that the power of expulsion in subrule 8(d) is not wide enough to support a decision to expel but to suspend the operation and communication of the decision until a later date. Support for this contention was sought to be found in the provision of subrule 8(f) entitling a person expelled to written notification and providing a right of appeal to be exercised within a period fixed by reference to the date when that notification was received. Reliance was placed by the appellant upon the attitude which has been adopted by the courts that a provision governing the expulsion of a member of a Club must be strictly complied with if the expulsion is to be valid: see, for example, Gates v. Vickery (1971-1973) ACLC 40-069 at p.27,519. Once again, the appellant's submission is based upon a foundation which does not assist it. It is unnecessary to consider what the position might be in circumstances in which composite decisions such as those made on 20 November 1989 were all made as part of a single resolution. That is not what occurred on that occasion. There was a decision to expel the appellant, and it was only later in the meeting -- 9 of 12 -- 10 that the other decisions were made. If the other decisions were beyond power, that leaves a valid decision on that date for the appellant's expulsion. It is correct, as the appellant argued, that the decision to expel him was not communicated in writing to the appellant at that time. However, he was orally notified of the decision, and it was at his request that a written notification was withheld. In any event, there is nothing in the rules which suggests that a delay in notification vitiates a decision to expel a member made under subrule 8(d). Although not raised in his writ or notice of motion (unless encompassed in a general request for further or other orders), the appellant sought, in the alternative, an order requiring the Club to convene a special general meeting to consider an appeal against his expulsion. Attention was drawn to the power of the court pursuant to subsection 42(1)(a) of the Associations Incorporation Act. The primary judge refused such an order on the basis that the appellant had not demonstrated that he had validly availed himself of his right of appeal. That seems correct. In addition, the material shows that he had declined opportunities offered by the Club to have a special general meeting convened for that purpose. Reference to other factors, such as the appellant's delay, are unnecessary in the circumstances, and there is similarly no need to consider whether the appellant is correct in his assertion that an order might be made under section 42, particularly having regard to section 43 of the Associations Incorporation Act. The appellant has failed to establish that he has not been validly expelled or that he has been deprived of the effective exercise of his right of appeal under the Club rules, and his appeal to this Court should be dismissed with costs. -- 10 of 12 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No.694 of 1991 BETWEEN CHRISTOPHER DILLON (Plaintiff) Appellant and LOGAN CITY BOWLS CLUB INC. (Defendant) Respondent JUDGMENT OF THE COURT Delivered the 11th day of August, 1992 MINUTE OF ORDER: Appeal dismissed with costs. CATCHWORDS: Unincorporated and other associations - incorporated associations - rules - Defendant's counsel decided to expel plaintiff following assault by plaintiff but delayed notification until after court case at plaintiff's request - whether effectively a suspension and expulsion for same incident - whether defendant acted within rules - whether time limit for notifying plaintiff of expulsion. Counsel: Mr R.M. Bourke for the Appellant Ms J.A. Ryrie for the Respondent Solicitors: Messrs. Goodfellow and Scott for the Appellant Messrs. Baker Johnson for the Respondent Hearing Date: 05/08/92 IN THE COURT OF APPEAL -- 11 of 12 -- 12 SUPREME COURT OF QUEENSLAND Appeal No.694 of 1991 BETWEEN: CHRISTOPHER DILLON (Plaintiff) Appellant and LOGAN CITY BOWLS CLUB INC. (Defendant) Respondent __________________________________________________ __ The President Davies JA Pincus JA __________________________________________________ __ Reasons of the Court delivered on the 11th day of August, 1992 __________________________________________________ __ APPEAL DISMISSED WITH COSTS. -- 12 of 12 --