Ahmat v Warringu Aboriginal & Torres Strait Islander Corporation [1990] QSC 209

10 20 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION n~v1.:J~::_: \_, .... ·, ii.· ... · .. • .. -··~-~..... I , ,·{· :-).-, .. , . .,.,• --.,·: f:i1 .,.C':" I (,OU,•. I •'.:,":,,.;.~:I ._ .. .J,.,&U. I D2te .2.9 _ ~ {:, ! __ q r:-i --~ Se, o/o No. 111 of 1988 BEFORE THE CHIEF JUSTICE (MR. JUSTICE MACROSSAN) CAIRNS, 19 JUNE 1990 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: NANETTE AHMAT -and- WARRINGU ABORIGINAL AND TORRES STRAIT ISLANDER CORPORATION JUDGMENT HIS HONOUR: The defendant, at mat~rial times, was a !corporation formed under the Commonwealth Aboriginal 30 · I '·· • !Councils and Associations Act 1~76. On 10th August 1984, a I ! \resolution passed at a speci~ally summone_s:J. general meeting of ! . \the Corporation, purported to expel the plaintiff and two 'I !other named persons from membership of the Corporation. The ! !Constitution of the Corporation was, at material times, -+J j :contained in a body of rules described as the Rules of the !Corporation. The relevant rules to which reference was made ;at the hearing were Rule 8.4 and 8.5 and Rule 11.6 and 11.7. ' so 1 A written request, undated and signed by seven persons, I lasked for a i ! meeting to be called under Rule 11.6 for the !purpose, as it was said, of allowing a motion to be moved to I i 1expel the plaintiff and the two others. It was not in issue lthat this request conformed with the requirements of Rule i ______ r,c _J 11. 6 and o~-~~-~-~-1:_he Ch~~-=~an ~ mo:':'~--~.::_~~:?._in~~?{_:_ ____ !_~:: __ G,J•:!. Printer, Qld 1 1'.) 20 -- 1 of 11 -- Chairman was Mrs. B. Morgan. After receiving the written request, Mrs. Morgan sent a letter dated 19 July 1984 to the plaintiff, and no doubt to the two other persons affected, informing that a request had been received for a special ·!general meeting under Rule 11.6 to receive a motion which 10 20 30 ~as proposed to be moved to expel the plaintiff. Reference was made to Rule 8.5 and in the letter, a copy of which was !Exhibit 2, the intended motion was set out as follows: l"to expel you from the Warringu Aboriginal and Torres Strait Islanders Corporation on the grounds that you are a divisive influence on the Committee and you don't have the best interest at heart and if you continue to be a member, or committee member, the Corporation will never be able to provide a proper service to its clients". It continued: "under s.8.5 of the Corporation, you shall be given an ,. .. . opportunity of being hea~B at this meeting which will be held" - and the reference was then made to the place of the ,meeting - "or:i 10th August 1984 starting at 4 p.m." It may! I ibe noticed that the Chairman's letter did not include all of I 10 30 !the allegations which had been included in the requisicion, 40 i 40 \Exhibit 6, which had, after stating the grounds in the terms I . iconveyed in the Chairman's letter, continued: "we believe ! lthe abovementioned women spend far too much time arguing and 'i ;stirring up trouble in the community for example, the unjust l 50 isacking of the social welfare worker and the false allegations against Jocelyn Malley, Aboriginal Womens' Task tForce. We also believe they are more interested in 1 i )obtaining a personal gain as ! !the benefits of the clients". employers rather than advancing -------·-------- ---------------------------·-·------------------------------------ ----- ·-------·-- Govt. Printe. Old. 2 -- 2 of 11 -- 10 20 30 • 50 The plaintiff consulted her then solicitors, MacDonnells, who wrote a letter dated 25th July 1984 on behalf of the plaintiff and the two others affected. A copy lof this letter was Exhibit 3. This letter asked for "full 'particulars" of the allegations that each of the three was "a divisive influence", but it went on to make certain assertions and, in particular, claimed that the meeting was being called without complying with the procedures required by the Constitution of the Corporation in that, as it was claimed, only the Committee was empowered to fix the time and place of general meetings and that this was so because of the terms of Rule 11.7. It was said then that the lchairman had abused her position in calling the meeting and that she should resign and it concluded by saying, "our clients will therefore take such action against you as they . . . ~ay consider necessary to ~ectify the.situation'', a . , I statement whic• would li~ely have been intended to imply that legal ,proceedings ·would be taken. The plaintiff;s solicitor replied by letter of 6th :August. A copy became Exhibit 6. He took issue with the : iinterpretation offered by MacDonnells of the effect of Rule 11.7 upon the Chairman's obligation in respect of the 1 calling of a special meeting in the circumstances. He ! i suggested that when a case arose under Rule 11.6, as here, the Chairman's right or duty was to proceed accordingly and, to that extent, the scope of Rule 11.7 was overridden. On an examination of the rules, this proposition seems :reasonable and it was not controverted at the trial. It was i -------~'~0_ 1 :ac.c:epted by ___ :.?unse~ -~-?-~--~~-~- pl_aintiff that on rece_~.P~-~~ _:t:-_~~------- G,wr. !=>nnte:. C:k: 3 10 20 30 50 -- 3 of 11 -- 10 20 30 request, Exhibit 6, the Chairman was obliged to call a meeting in accordance with Rule 11.6. I The defendant's solicitors' letter, although it dealt I 1 with other matters raised by the solicitors for the plaintiff, did not deal with the request for full llparticulars. Although it did not supply particulars, it did not refuse to do so, but simply did not refer to the request. It concluded by saying, "I am instructed that in compliance with the Association Rules, your clients will be afforded natural justice at the general meeting which has been called". The plaintiff's solicitors made no further reply, whether to repeat their request for particulars or iotherwise. When the meeting was held at the time and place i which had been notified, the plaintiff and the other two jpersons affected did not attend and there was no I \represe~tation on their behalf. This was not a case where i I :the committee of the Corporation, having come to somei :decision on the basis of material on which it had ideliberated, decided to proceed against the plaintiff by ,itself initiating proceedings to expel her. In such a case, :the committee would have been apprised of the case which it wished to make against the plaintiff and it would have been 1 in a position to furnish appropriate particulars of the case i ~hich was to be presented. Here, the Chairman moved in so I !accordance with the obligations flowing from the receipt of i '' !the requisition and it could not be assumed that she would ' !have been aware of the full substance of the case which the ' \requisitioners intended to present. At the trial, when this (,'' ',was pointed out, two answers were made by counsel for the ··--··----1 ---- ------·-~-·------------- II 4 10 20 30 -JO so -- 4 of 11 -- llaintiff. It was-said that the Chairman could have requested, although she could not have compelled, the supply of particulars of the allegations to be brought forward and she could then have passed these on, if indeed they had been ,supplied, so that the plaintiff could have been 10 10 20 30 appropriately forewarned. If this could not have been -arranged, it was said that the defendant could have indicated that as part of the natural justice which would be afforded the plaintiff, she could have been assured in advance that she would be given full opportunity of making , er reply to the motion, even if this meant adjourning the special meeting after the substance of the charge had been 1 elucidated. The making of submission in this form by b1aintiff's counsel illustrates that there were alternative l1 ays of proceeding, but they do not take from the fact that I the plaintiff had been assured that she would be dealt with in accordance with the requirements of natural justice at !the meeting. If the reply of the defendant's solicitor, \ ~xhibit 4, implied that matters would be arranged with the I - I ; 20 30 ,n ~esult that the plaintiff would not receive natural justice, -u ~o br that whatever the reasonable need for opportunity to meet I ithe charges against her when their substance became known, \ i ;she would be denied it, then the plaintiff would go a :substantial distance towards making out her case. However, I ~ do not think Exhibit 4 implies this. It allowed the 50 l! 'opportunity for further argument, it might be thought, and a predominant aspect was its assurance that the plaintiff i ~ould be treated with natural justice. The plaintiff gave evidence at the trial but she did -·--·--.. ·--- .. --- ·---------·--··--------- GcvL Printer, OIG. 5 50 -- 5 of 11 -- not explain why she did not attend the special meeting when she was afforded the opportunity. It is not as though she isaid that she arrived at the conclusion that she would not be granted a fair opportunity to defend herself with whatever might be involved in that proposition, even if she 10 10 20 30 -10 50 had attended. She simply did not attend and left her failure to attend unexplained. Neither was evidence in explanation forthcoming from her then solicitors. The impression was left, and the plaintiff's evidence at the hearing did not dispel the suspicion, that the failure to attend resulted from a conclusion that the meeting was unconstitutional, as one called in breach of the rules. However that may be, that was how the matter was left at the trial. ,. ~~ .. ~ ... -•. :Ga -:,,·· .. .. Govt. Prrnter, O!d. 6 2-J 3G 50 -- 6 of 11 -- - It should now be said that although a number of issues were raised on the pleadings, the only two issues pressed at the trial were: first, that natural justice was denied the I !plaintiff by the failure prior to 10th August 1984 to supply I !particulars of the allegations against the plaintiff, that 10 ! is, of conduct on her part detrimental to the Association; and second, the case against the plaintiff, such as it was, did not receive separate consideration at the general ,meeting but was dealt with in a general debate involving all three persons charged and by a single motion, voted on for 10 20 20 the expulsion of all three. The form of the proceedings at the special meeting held on 10th August appears only from the minutes of that meeting, a copy of which was tendered and became Exhibit 5. There was no other evidence on this aspect. 30 I • Nd evidenc~ at"all was called'for the defendant. On I • !the basis of what was shown by those minutes, counsel for .T · Jthe Plaintiff did not contend that there had not been proved i ., !against the plaintiff to the satisfaction of the Association· iin general meeting~ by the requisite majority, a charge of -lJ ! \ ;conduct detrimental to the Association. Even though the i '' !chairman's notice did not refer to conduct detrimental, and i ;even though the initiating request of the seven members did i bot use that phrase, although it did refer to rule 8.4(c), I I 50 \the only available ground for expulsion under the !Constitution was proof of a charge of conduct detrimental. iIThe plaintiff would have appreciated this fact from receipt I !of the notice of the proposed motion for her expulsion. I ' \Further, when the contents of the minutes were examined, II !counsel for the plaintiff did not feel able to contend that EO I -~.=.-- Turn Co: e,,:k: 7 "! 30 -- 7 of 11 -- this lay body was doing other than considering a c~arge ~f conduct detrimental, and in terms of the substance of the ;matters aired, reaching a conclusion which he did not l \challenge in these proceedings, that is, that a charge of !conduct detrimental had been proved. I In other words, it was 10 I !accepted by him that under the Constitution the matter of proof or otherwise of the relevant charge had been committed to the general meeting for its decision and it had reached a 1 conclusion on relevant material that such a charge had been I 20 !proved. i The matters argued before me came back to the claim of j · 1 f 1 . . h h h .c ·1 !denia o natura Justice t roug t e Lal ure to supply !particulars in advance of the hearing and the procedural I :Objection arising out of the dealing with three cases I I \together. Largely for the reasons already canvassed, I do 30 ; .'\ , ! > inot think that the.first complaint is made out. \ ·, The plaintiff was not denied natural justice but failed !to seek it. Sh~ prought a.b?ut a situation where the charge . . . ~ .,., went unanswered by her own· tailure to attend the meeting. 'she has not shown th.at she was treated unfairly. From her -!O ! 1 own point of view she did not take reasonable steps to :safeguard her interests and to meet what the situation 'I :required. In the nature of things she may not have been ! 'able to be provided with the substance of the case against 10 her in advance and if she had attended on 10th August, 50 i 5,:, i 1 nothing suggests she would have been denied full particulars \then or denied an adjournment had she sought it. She had :been assured of natural justice but she was not relieved of :the obligation to take reasonable steps on her own behalf. ~c II think it likely that she stayed away as a deliberate, .. --~ ···---------··--- -------------· ····--------•----.----·-·-·---·· ···--. --------- " 1 Go·,t. Pr,nter, Cir. !Turn 2 mkg 8 -- 8 of 11 -- 10 although misguided tactic on the false assumption that the !meeting would be unconstitutional and not because she had i feen denied sufficient particulars or an adequate I !opportunity to defend herself. Only subsequently and after I a very long delay did she decide, on advice as it would 1appear, to mount a challenge on this ground as being the I !best weapon to hand, even though, as I would conclude, the !absence of particulars supplied in advance had not been a motivating factor in a decision not to attend the special \ eeting. 20 r 30 I As to the second ground of complaint, the consideration I h h . . [of the three c arges toget er, it is necessary to observe I !that we are dealing with the deliberations of a lay body. I . !There seem to have been reasons why in some respects the j 1 conduct of the three persons could have been considered I • .:_,r, .. ~ogether because·1h~y seem~~ times to have acted in I • lconjunction. The rules which courts of law adopt in the i! ., .• !j,pinder of charges · and the j oinder of parties will not :I :-t • • ., . ·• ,,.1: . . ~ ½ecessarily be reflected in all respects in the proceedings I ' bf l~y tribunals, although b~hind the court's procedural -to ! I lrules there is a concern for justice which may, at times, I . • i !call to be so reflected. All will depend upon the I iiparticular situation and on whether justice is denied. Hadi \the plaintiff attended the special meeting and had she ! konsidered that her case could not be fairly considered 50 ! l1thout a separate hearing of the charge or a separate I ~otion to determine it, she could have asked for separate I i !treatment, just as any other member present could have moved \that separate consideration be given to the three cases, or I I 10 2'J 30 _______ 60 _ to her case_~----~---C?_Il~-~-~~~d- to_ think it necessary , ___<:1:~?.--.~- ~~---------- GovL Pnnter. Gld Turn 2 mkg 9 -- 9 of 11 -- .. • not prepared to find that it involved unfairness or breached ! ! !the requirements of natural justice. No case was cited I I ~hich suggested that a lay tribunal was necessarily I 9rohibited from proceedings in this fashion. It is also necessary to say that the plaintiff has a 10 · \1arge hurdle to overcome in seeking the particular i1 discretionary remedy of a declaration by reason of her very long delay commencing proceedings. Substantial delay .occurred after proceedings were commenced, and although !delays in bringing matters to trial are frequently l CJ I 20 I 2J ~ncountered, in a case like the present it is not asking too I ~uch to expect that applicants for relief will move their i ~roceedings along moie assiduously. However, it is the very I 1 great delay before proceedings were commenced which cause Ii her the greater difficulty. The passage of some time she '""·· I :ivj !endeavoured to explain by saying that she pursued I1 alternative avenues of redress through various politicians ;and the Ombudsman. However, although some reasonable time I ~ight be explained in this fashion and accorded to her, the ~a passage of over tw6 years before she consulted ~er present 50 I 'solicitors in October 1986 is unreasonably long, especially i 1 as she had much earlier received advice from her previous ! 'solicitors, which I am not confident that she followed. She i ~ndicated that she had been told by them that she might I ;appeal against the decision to expel her, and whatever they I meant to convey by that in context I am not sure, since they ~ere not called to explain it. I was not satisfied that she ~as following their advice or exhausting it when she, as a i :non-member, attempted to attend a subsequent meeting of the seeking redress. 10 -- 10 of 11 -- The plaintiff did not indicate that now, almost six years after the event, she wished to be accepted back as a I fember as opposed to making a point against the legality of I !her expulsion. I think that her long delay in commencing I i iher challenge should, in the exercise of my discretion, 10 1 result in the remedy of declaration being refused, even if I had not otherwise judged her to be disentitled to relief. The result then will be that there will be judgment for !the defendant. I ! 20 I· · · HIS HONOUR: The defendant will have an order for its costs of and incidental to the proceedings to be taxed against the plaintiff. 30 "· 50 1 () .. 30 50 -- 11 of 11 --