Dillon v Logan City Bowls Club Inc [1991] QSC 348

rfIZANSCRIPT OF PROC~l:MGS State Reporting Bureau, 4th Floor, Tne Law Courts , George Street, BRJSBANE. 0. 4000 'fel. (07) 227.4360 (Copyright in this transcript is vesced . in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MOYNIHAN J No 694 of 193_ 1 CHRISTOPHER DILLON and LOGAN CITY BOWLS CLUB INC BRISBANE .. DATE 5/12/91 JUDGMENT 1 I ~ . -~'"-••--- Rt:\J!'.3ED ('(;P1;::s 1.;::-c-.u-n ' ...., ., . ··-- '-,:,._; ::1_, Cot:rt Repcrtino Bureau 1 f Date, ~ / / / 9 --<_ i --.........,___ ______ •l.i"V , - J Plaintiff Defendant -- 1 of 13 -- 10 20 30 40 50 60 051291 JUDGMENT HIS HONOUR: In this case, for the reasons which I now publish, I dismiss the notice of motion and the action. I order the plaintiff to pay the defendant's costs, including reserved costs, to be taxed. Govt P~i.-•-.r Old. 2 10 20 30 40 50 60 -- 2 of 13 -- IN THE SUPREME COURT OF QUEENSLAND Before the Hon. Mr. Just'ice Moynihan BETWEEN: AND: CHRISTOPHER DILLON (Plaintiff) LOGAN CITY BOWLS CLUB INC. (Defendant) JUDGMENT - MOYNIHAN J. No. 694 of 1991 Delivered this 5th day of December 1991 Counsel Solicitors Hearing date: Mr. Burke for the Applicant Mr. Ryrie for the Defendant Goodfellow & Scott Baker, Johnson & Partners 15 November 1991 -- 3 of 13 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: CHRISTOPHER DILLON (Plaintiff) LOGAN CITY BOWLS CLUB INC. (Defendant) JUDGMENT - MOYNIHAN J. No. 694 of 1991 Delivered this 5th day of December 1991 The plaintiff seeks declarations that his purported expulsion as a member of the Logan City Bowls Club Inc. (the defendant) on 23 April 1990 was contrary to natural justice and beyond the power of the defendant under its constitution and by-laws. The plaintiff also seeks a consequential injunction restraining the defendant from preventing him from enjoying the rights and privileges of membership. The defendant is a body corporate pursuant to the Associations Incorporations Act 1981 (the Act) and the plaintiff was a member of the defendant since the opening of the Bowls Club which it controlled in or about 1987. Bys. 41 of the Act upon incorporation the defendant's rules constitute the terms of a contract between the members and it. Where a member is deprived by a decision of the defendant of a right conferred on him by its -- 4 of 13 -- 2 rules this court has jurisdiction to adjudicate on the validity of the decision. Moreover s. 41(3) provides that the defendant is bound by the rules of natural justice in adjudicating upon the rights conferred on a member by its rules. On 3 November 1989 the plaintiff was involved in an altercation with another member of the defendant in the car park associated with the Bowls Club's premises. This litigation arises out of the defendant's dealing with the plaintiff consequent upon that incident. The defendant's constitution and by-laws (I shall refer to the various relevant provisions as rules) provides that it consists of various classes of members including "ordinary members", as presumably the plaintiff was, who are bound by the constitution and by-laws. By r. 6 "ordinary members" are such members as "are entitled to all Club privileges" and there is cognate provision with respect to other classes of membership. Suspension and/or termination of membership is specifically dealt with by r. 8. Sub-rules (a), (b) and (c) appear to be of not present relevance. Rules (d) to (h) are relevant and they 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 the gentleman or lady or prejudicial to the interest 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 -- 5 of 13 -- 3 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 a 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 (sic) 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 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 his 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 member suspended or expelled and the period of suspension. (g) Any person who is, or is not a member of this Club, but who is a member of another Bowls Club, and who for the first time being is deprived of any of the privileges of membership of that other Club, shall not, while such deprivation continues, be permitted to enter the premises of this Club. (h) An expelled member shall not be eligible to apply for re-admission to the Club for a period of at least three (3) years thereafter." Rule 10(c) provides for the business and affairs of the defendant to be under the management of a Council, the composition of which is specified by the rules and which is to -- 6 of 13 -- 4 be elected. By r. 11(£) the Council, after the enumeration of other specific powers, is given power to "otherwise act in the interests of members". Following the incident in the carpark, by a letter mistakenly dated 7 October 1989 but in fact of 7 November of that year, the defendant's Honorary Secretary wrote to the plaintiff 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 revoked. The council will convene a special meeting on Monday 20.11.1989 to deal with this incident. You are advised that it would be in your best interests to be present at the Club at 7 p.m. on 20.11.89 to answer the charges against you. Your confirmation that you will be attending would be appreciated at your earliest convenience." The minutes of the meeting record that the plaintiff arrived late. Before he arrived the meeting had considered letters of complaint concerning the incident in the carpark and apparently heard from people present at the meeting in respect of it. It was moved, seconded, and carried that the plaintiff be expelled. The minutes contain what is presumably the draft of a letter of notification to be sent to the plaintiff which it may be noted concludes - "Further, your counter-claim was considered but no grounds are established to continue with this complaint. 28 days to reply." The minutes go on to record that the plaintiff arrived late and requested "that no action be taken (sic) until after his court case". It was then moved and seconded - -- 7 of 13 -- 5 "That the Committee's previous decision to be suspended apply but confirmation to Chris be delayed until after the court case, in case other evidence arises, but his privileges be revoked." It is not recorded that this motion was carried but it seems to have been acted on. Although hardly a model of clarity, the resolution seems to have been treated as postponing the Council's (Committee's) dealing with the plaintiff until after the court case but as maintaining the suspension consequent on the letter of 7 November. I should say that little or nothing appears as to the circumstances of the incident or as to what the Council acted on at the meeting of 7 or 20 November. In fact no issue was raised as to the original revocation. There followed communication and correspondence dealing with the plaintiff's acceptability to other bowls clubs once he was dealt with at the meeting of 20 November. Thus by letter of 13 February 1990, the defendant's Honorary Secretary wrote to the Ridgewood Heights Bowling Club stating that the plaintiff was "at present under suspension" and that at his request a final decision was not to be made "until after a court case". The evidence is not particularly satisfactory in many respects but it seems that the plaintiff was proceeded against in the Magistrates Court for offences arising out of the incident in the carpark and that he was convicted, apparently having pleaded guilty. On 17 April 1990 the defendant's Honorary Secretary wrote to the plaintiff requesting that he attend a special council meeting in respect of the incident in the carpark. This was apparently after the Magistrates Court proceedings. The letter re.corded that, at the plaintiff's request, the matter had been postponed until the court case was -- 8 of 13 -- 6 finalised. The letter reminded the plaintiff that it was in his best interests to attend. The plaintiff did not attend the meeting of 23 April and no explanation for this is offered by the material. I mention this not for the purpose of drawing any inference adverse to the plaintiff on that account but for the purpose of pointing out that, so far as the material reveals, he has no occasion for complaint by reason of the committee dealing with the matter in his absence. Moreover, in the context of the course of events, the material is not persuasive of a conclusion that the plaintiff was other than aware of the nature of the complaint made against him. By letter of 30 April 1990 the defendant's Honorary Secretary advised the plaintiff that in his absence it had been decided to expel him from membership of the Club. He was then also informed of his right of appeal under r. 8(f). The letter went on to state that - " the appellant shall be entitled to all club privileges until such appeal is determined." The letter went on to deal of the consequences of an unsuccessful appeal. By a letter of 18 May 1990 the plaintiff was advised by the defendant's Honorary Secretary that - " ... your letter about the severity of the sentence given you had been discussed at the last council meeting and it had been decided that the penalty should stand." The plaintiff's letter is not in evidence although he deposes that he wrote "seeking to appeal against the decision". I should have thought that complaint about penalty rather than the -- 9 of 13 -- 7 substantive issues having been concluded adversely to the plaintiff was nevertheless capable of sustaining an appeal in terms of r . 8 ( f) • See however the later reference to the defendant's letters of 7 June and 5 August 1991 which indicate the defendant's view of the contents of the plaintiff's request. The issue, if there is an issue, seems to me impossible of resolution as things stand. By letter of 28 May 1990 the plaintiff's then solicitor wrote to the defendant referring to the letter of 15 May and pointing out that the provisions of rr. 8 and 10 had not been complied with. The letter went on to state that the plaintiff's right of appeal had been "frustrated" by failure to call the Special General Meeting contemplated by the rules within the specified time and called for the decision to be reversed. This was replied to by letter of 7 June. This letter stated that the solicitor's letter of 28 May had been "discussed at great length" at a Council Meeting. The letter among other things said - "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 this would be considered by the Council on receipt of a request in writing to the Secretary." The letter goes on - "A decision on this case was delayed previously at the request of Mr. Dillon to assist him as action was pending in Beenleigh Court .... So 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 it may help in his case Mr. Dillon has failed in same." The rules require that an appeal be dealt with by a Special General Meeting called in accordance with the rules and at which -- 10 of 13 -- 8 the plaintiff had the opportunity to attend to put his position. I think it is to be taken that is what is offered by the defendant's letter of 7 June and the offer was subsequently repeated after proceedings were instituted. On 27 April 1991 the plaintiff issued his writ and the notice of motion leading to the current hearing was issued on 1 August. The parties have been in negotiation but, being unable to resolve the matter by means, it came on before me on 15 November. On 5 August 1991 the defendant's solicitors wrote offering to call a Special General Meeting to deal with the plaintiff's appeal. It also maintains the position that - "any correspondence received betwe~n April 30, 1991 and May C~,,§ti tute an appeal." during the period 18, 1991 did not The letter also contained an offer as to the disposition of the action and costs which presumably is not acceptable. I was told by counsel for the defendant at the hearing and in the context of the proceedings that the defendant was prepared to convene a Special General Meeting. It was submitted for the plaintiff to the effect that the defendant had exhausted its powers to deal with the plaintiff when it suspended him at the meeting of 20 November 1989 with the consequence that it could not expel him at the meeting of 23 April 1990. I do not think this is so. Although, as I have said more than once, the material is not in a particularly satisfactory state as I understand the outcome of the meeting of 20 November 1989 the Council was prepared to postpone dealing with the plaintiff in respect of the incident of 3 November until after his court case but that his privileges -- 11 of 13 -- 9 remained "revoked" in the meantime. It seems right to regard this•revocation as equivalent to suspension. The outcome of it has not it seems to me to constitute a dealing with the plaintiff in the disciplinary sense contemplated by r. 8. Indeed the meeting was persuaded by the plaintiff himself to withhold dealing with the matter on that basis until the court case was over. The material contains no basis for concluding that the plaintiff was deprived of the opportunity to be heard on this occasion or indeed that he lacked an understanding of what the proceedings were about. The way in which the plaintiff was dealt with at the meeting of 20 November 1989 seems to be in the nature of "a suspension pending an enquiry imposed as a matter of good administration"; see Lewis v. Heffer & Ors (1978) 1 W.L.R. (Court of Appeal) 1061 per Lord Denning M.R. at 1073, Ormond L.J. at 1076 and Geoffrey Lane L.J. at 1078. I think that the suggestion made in Lewis that such a suspension is not an occasion for compliance with the rules of nature justice probably takes the matter too far if it is to be treated as a general rule. In R. v. Cole & Ors ex parte Dixon (1980) 42 F.L.R. 151 Lockhart J. seemed inclined to accept Lewis on its facts but thought that in the case before him the loss of salary during the period of suspension made a difference to the question of the application of the rules of natural justice. That a commensurate consideration arises in the present case is not sustained by the material. Questions of whether it was open or appropriate for the Council, on the material before it, to suspend the plaintiff pending dealing with the matter pursuant tor. 8, were neither canvassed by the material nor the -- 12 of 13 -- 10 argument before me. These questions are in any event academic since, as I have indicated, the plaintiff was ~eard at the meeting of 20 November 1989 and his complaint is rather with respect of the meeting of 23 April, acted in circumstances in which its powers were exhausted. For the reasons which I have indicated the effect of suspension of the plaintiff by the meeting of 20 November did not exhaust the Committee's powers under r. 8 - indeed it was designed to have the contrary effect. The plaintiff was given the opportunity to attend the Special Council Meeting of 23 April 1990 but failed to do so in circumstances which give no occasion for inferring that he was deprived of his right to be heard at the meeting. The material reveals no basis for impeaching that decision. There is no doubt that r. 8(f) provided a right of appeal from the decision of 23 April. Whether the plaintiff validly availed himself of that right, and I should have thought the onus of establishing that rested on him, is not capable of resolution on the material before me. This is perhaps not surprising insofar as it is not the subject of a claim for relief by the writ or notice of motion. In the circumstances the appropriate course seems to me to dismiss the notice of motion and the action, and to order the plaintiff to pay the defendant's costs, including any reserved costs, to be taxed. -- 13 of 13 --