SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: Petersen v Proserpine Golf Club Inc [2018] QSC 71 PARTIES: BERNICE ELAINE PETERSEN (applicant) v PROSERPINE GOLF CLUB INC ACN (respondent) FILE NO/S: SC No 597 of 2017 DIVISION: PROCEEDING: ORIGINATING COURT: Trial Division Application DELIVERED ON: 11 April 2018 DELIVERED AT: Supreme Court at Townsville Townsville HEARING DATE: 29 September 2017 JUDGE: North J ORDERS: 1. Declare that the decision of the respondent made on 19 August 2014 to suspend the applicant from membership for one month and rendering her ineligible for selection to represent the Club in any pennants or fixtures until the year ended 2015 is void. 2. Order that the decision by the respondent made on 19 August 2014 to suspend the applicant from membership be set aside. 3. Declare that the decision of the respondent made on 16 February 2015 to suspend the applicant from membership up to and including 30 September 2015 and to revoke the applicant s life membership as of 30 September 2015 is void. 4. Order that the decision by the respondent made on 16 February 2015 to suspend the applicant s membership and to revoke her life membership be set aside. 5. Declare that the decision of the respondent made on 21 July 2015 to suspend the applicant from membership for a further period of 12 months up to and including 30 September 2016 is void. 6. Order that the decision by the respondent made on 21 July 2015 to suspend the applicant s membership for a period of 12 months up to and including 30 September

2 be set aside. CATCHWORDS: ASSOCIATIONS AND CLUBS EXPULSION, SUSPENSION AND DISQUALIFICATION EXERCISE OF POWER NECESSITY FOR SPECIFIC CHARGE where the applicant s life membership was terminated following an alleged breach of the rules of the association whether there had been a breach of natural justice whether the respondent provided the applicant with appropriate particulars of the alleged misconduct whether the applicant had sufficient time to respond to the allegations ASSOCIATIONS AND CLUBS EXPULSION, SUSPENSION AND DISQUALIFICATION EXERCISE OF POWER BIAS where the applicant requested an adjournment of the disciplinary meeting where the respondent refused to grant the adjournment whether the respondent was acting in a biased manner ASSOCIATIONS AND CLUBS EXPULSION, SUSPENSION AND DISQUALIFICATION POWER TO EXPEL, SUSPEND AND DISQUALIFY where the rules of the association were silent on the issue of suspension - whether the respondent s rules had been complied with whether the appeal meeting was valid LEGISLATION: Associations Incorporation Act 1981, s 71 CASES: COUNSEL: SOLICITORS: Gould v Isis Club Incorporated [2015] QSC 253, considered Twist v Randwick Municipal Council (1976) 136 CLR 106; [1976] HCA 58, considered McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470, considered V Keegan for the applicant S Byrne for the respondent Barbara J Mendelsohn Lawyers for the applicant Airlie Beach Legal for the respondent Introduction [1] NORTH J: The applicant was from 1965 a member of and for many years a life member of the Proserpine Golf Club Inc ( the respondent ). The respondent is an incorporated association pursuant to the Associations Incorporation Act 1981 (Qld) ( the Act ). It is governed by a constitution which provides the terms of contract between the respondent and its members. 1 1 See s 71(1) Associations Incorporations Act 1981 (Qld), and see further exh BEP1 to the Affidavit of BE Petersen filed 12 July 2017.

3 3 [2] The applicant held an active role with the respondent for many years from 1965 until September In 2008 she was honoured with life membership. The applicant s life membership was terminated by the respondent in September The applicant seeks a declaration that three decisions made by the respondent, which ultimately led to the applicant s loss of life membership, be declared void and set aside. [3] The applicant relies on two grounds. Firstly, that the respondent, through its officers, failed to accord the applicant natural justice in the processes that were followed leading to the suspension of her membership and termination of her life membership. Secondly, the applicant alleges that the respondent failed to follow its rules for termination of membership and appeals against the termination of membership. [4] Section 71 of the Act provides that: 71 Rights of members (1) Upon incorporation the rules of the association shall constitute the terms of a contract between the members from time to time and the incorporated association. (2) Where a member of an incorporated association is deprived by a decision of that association of a right conferred on the member by the rules of that association as a member thereof, the Supreme Court shall have jurisdiction to adjudicate upon the validity of that decision under the rules. (3) An incorporated association shall be bound by the rules of natural justice in adjudicating upon the rights of its members conferred by the rules of such association on its members. [Emphasis added] [5] Clause 7 of the respondent s constitution provides that: 2 Termination of Membership 7. (3) If a member a) is convicted of an indictable offence; or b) fails to comply with any of the provisions of these rules; or c) has membership fees in arrears for a period of 2 months; or d) conducts himself or herself in a manner considered to be injurious or prejudicial to the character or interests of the association the Board of Directors shall consider whether the member s membership shall be terminated. (4) The member concerned shall be given a full and fair opportunity of presenting the member s case and if the Board of Directors resolves to terminate the membership it shall instruct the secretary to advise the member in writing accordingly. [Emphasis added] 2 Exh BEP1 to the Affidavit of BE Petersen filed 12 July 2017.

4 4 [6] Clause 8 of the respondent s constitution provides that: 3 The principles Appeal Against Rejection or Termination of Membership 8. (1) A person whose application for membership has been rejected or whose membership has been terminated may within 1 month of receiving written notification thereof, lodge with the secretary written notice of person s intention to appeal against the decision of the Board of Directors. (2) Upon receipt of a notification of intention to appeal against rejection or termination of membership the secretary shall convene within 3 months of the date of receipt by the secretary of such notice, a general meeting to determine the appeal. (3) At any such meeting the applicant shall be given the opportunity to fully present the applicant s case and the Board of Directors or those members thereof who rejected the application for membership or termination the membership subsequently shall likewise have the opportunity of presenting its or their case. [7] The application raises an issue whether the respondent afforded the applicant a full and fair opportunity of presenting the member s case as prescribed in clause 7(4) of the respondent s constitution. This rule reflects one aspect of what is called returned natural justice. 4 Natural justice, or procedural fairness, is commonly described as having two components: the hearing rule and bias rule. 5 It is the former rule, historically termed audi alteram partem, that is raised in the context of this application. [8] Both parties referred to and relied on the judgment of McMeekin J in Gould v Isis Club Incorporated. 6 The facts of Gould are similar. The social club in Gould operated as an incorporated association. The applicant s membership in Gould was terminated by the club who alleged that the applicant had breached the rules of the club by acting in a manner which was injurious or prejudicial to the character and interests of the Club. 7 [9] With respect to the level of natural justice or procedural fairness required to be provided by social clubs, McMeekin J noted in Gould that: 8 It is well established that the requirements of natural justice are not inflexible but depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so forth. 3 Ibid. 4 Recall s 71(3) of the Act quoted above. 5 For an extensive discussion of the former, in the context of administrative decision making see Aronson & Ors, Judicial Review of Administrative Action, 4 th ed, Law Book to 2009 at 409, [7.20]. 6 [2015] QSC 253 ( Gould ). 7 Ibid at [19]. 8 Ibid at [10] [11], [77].

5 5 Where the tribunal is a social club as here the strict rules applicable to judicial tribunals are relaxed. The principle was explained by Dixon J (as he then was) in Australian Workers Union v Bowen (No 2) (1948) 77 CLR 601 at 628: 'It is important to keep steadily in mind that we are dealing with a domestic forum acting under rules resting upon a consensual basis. It is a tribunal that has no rules of evidence and can inform itself in any way it chooses. Members may act upon their own knowledge and upon hearsay if they are satisfied of the truth of what they so learn and if they give the member with whom they are dealing a proper opportunity of answering the charge and defending himself.' I am conscious that it is well accepted that the requirements of natural justice will be satisfied if the decision making process, viewed in its entirety, entails procedural fairness (see South Australia v O Shea (1987) 163 CLR 378 at 389). [Footnotes omitted, emphasis added] [10] Although McMeekin J accepted that a lower threshold can be expected of social clubs, in circumstances of expulsion or suspension, where the effects are more serious reasonably strict adherence to the Club rules are expected: 9 I am very conscious that the committee members cannot be expected to act and write as lawyers do. However I do not think it is overly pedantic to insist on reasonably strict adherence to the rules that the club itself has laid down. As Thomas J observed in Cox v Caloundra Golf Club Inc. [1995] QSC (27 September 1995) at p 6: in the context of disciplinary proceedings involving expulsion or suspension, especially where the determination may be thought to involve some degree of personal disgrace, a Court must be very careful before it disregards a breach of the rules, especially a breach of the rules where the correct procedure could have produced a different result. [11] Justice McMeekin ultimately identified three failures of the respondent club in Gould to provide natural justice to the applicant. The first failure identified by McMeekin J was an apprehension of bias in the language and tone of letters to the applicant, suggesting the committee had pre-judged the matter. 10 The tone of the letter, and in particular its use of the phrases this instance alone is more than sufficient grounds and we are compelled to terminate your membership in the first correspondence indicated that the Club had pre-judged the matter before the applicant had an opportunity to provide a defence Ibid at [64]. 10 Ibid at [60]-[63]. 11 Ibid.

6 6 [12] The second failure identified was a failure to particularise the critical issues to the applicant to allow her to properly respond to the allegations. 12 The applicant in Gould was advised in correspondence that her behaviour was injurious and prejudicial but the actual conduct was not particularised. Further correspondence between the Club and the applicant detailed that their decision was based on the alleged actions of the applicant in terminating the membership of four members of the club, although these were not named. The correspondence also attached additional pages detailing eleven dot points of allegations against the applicant. McMeekin J found that both pieces of correspondence failed to provide appropriate particulars of the conduct she was alleged to have engaged in, and why the conduct was prejudicial, and that the failure to make clear precisely what allegations were to be met is a fundamental problem. 13 [13] The third failure identified was a failure to provide sufficient time to the applicant to adequately prepare her defence. McMeekin J found that the time provided to the applicant to meet the allegations in the letter and its attachment was six days, and this was far too short to raise any meaningful defence. 14 Review of the evidence and rival contentions [14] Conflicting evidence was provided by both parties via affidavit. The applicant s evidence was limited to her own affidavit and exhibits. The respondent relied on affidavits sworn by six members, and exhibited to the affidavits were letters of complaint from members of the respondent about the applicant s conduct on different occasions. 15 [15] The evidence of each party differs significantly in relation to the alleged conduct of the applicant which lead to the suspension and termination of her membership. The applicant concedes to acting emotionally on occasions, and this is evidenced by the letters of apology she wrote on two separate occasions. 16 The contention of the respondent, supported by correspondence from some players, is that the applicant on occasions was rude and unpleasant. [16] The applicant did not produce evidence in the form of affidavits from other witnesses to these alleged incidents. Rather she relied upon her own affidavit, exhibited to that affidavit and support in her claims was some correspondence from persons supporting her stance, that on some of the occasions in dispute she did not act in a manner that might be considered inappropriate. 17 [17] It was common ground at the hearing that this was not a merits review. No one was cross examined so I am not required to make a finding on contentious evidence. [18] The issue remains as to whether the respondent provided the applicant a full and fair opportunity (adopting the terms of clause 7(4) of the constitution) to present her case in their decisions to suspend the applicant s membership on the three 12 Ibid at [35]. 13 Ibid at [46]-[48]. 14 Ibid at [54]. 15 Exh RTM1 at pages 4, 5, 8-9, 18-23, to the Affidavit of RT Meade filed 28 September See, for eg, exh BEP13 to the Affidavit of BE Petersen filed 12 July See, for eg, exh BEP20 to the Affidavit of BE Petersen filed 12 July 2017.

7 7 occasions and the decision to revoke life membership (in other words whether natural justice was accorded to the applicant, see s 71(1) of the Act). The decision of 6 August 2014 [19] The purpose of the meeting of 19 August 2014 was to allow the applicant the right to appeal the committee s decision of on or around 6 August 2014, when the board determined to suspend the applicant s membership for a period of one month. [20] The applicant did not seek in her application for the decision of 6 August 2014 to be declared void and set aside. However, the circumstances of the meeting and decision of 6 August was the subject of comment and submissions before me and the lawfulness of the proceeding on 19 August and the decision of 19 August 2014 is linked to the prior conduct of the board surrounding the meeting of 6 August Because of this and particularly because the impugned appeal of 19 August concerned the decision made at the meeting of 6 August it is relevant to consider the latter. [21] In certain situations the right to appeal can cure the defect of an original decision. It is therefore necessary to determine whether the applicant was afforded natural justice at the meeting of 6 August 2014, and in circumstances of a finding that the applicant was not afforded same, whether the appeal meeting of 19 August 2014 remedied this defect. [22] The applicant s contention is that she was not informed of the allegation against her that was the subject of the committee meeting of 6 August [23] The respondent club wrote a letter to the applicant dated 30 July 2014: 18 The Club has received complaints in regards to your conduct during a recent Pennants event held at the Proserpine Golf Club Inc. In order to address the complaints, it is requested that you attend a committee meeting of the Proserpine Golf Club Inc. to be held at the Club on Wednesday the 6 th of August 2014 at 5.30pm. [24] The meeting was attended by four board members and the applicant. The applicant s evidence is that just prior to commencing the meeting on 6 August 2014 she was provided with a letter written by Ms Jan Beetham to the respondent making complaint about the applicant s conduct on an event held on 26 and 27 July The applicant states in her affidavit that the letter was then taken from her and that she was not provided with a copy, despite her request. 19 [25] In his affidavit, on behalf of the respondent, Mr Meade states that immediately prior to the meeting the applicant was provided the opportunity to read the letter of complaint from Jan Beetham, an incident report of Robyn Arthur and an from Mary Taylor Exh RTM1 at page 7 to the Affidavit of RT Meade filed 28 September Affidavit of BE Petersen filed 12 July 2017 at [22]. 20 Affidavit of RT Meade filed 28 September 2017 at [19].

8 8 [26] The applicant says that she thought the meeting was of an informal nature, that there was a brief discussion about the letter of complaint from Jan Beetham, but that she was not informed of any particular allegations against her or that the respondent was considering disciplinary action. [27] In his affidavit, Mr Ross Meade, the president of the Club and chair of the meeting, says that at the outset of the meeting it was explained to the applicant that the meeting was of a disciplinary nature and related to her conduct at the recent pennants competition. Mr Meade states that they discussed the events of the pennants competition and the applicant s behaviour towards another player, and that the applicant denied any wrongdoing. Mr Meade s evidence is that they did not discuss the of Mary Taylor. Mr Meade further states that the applicant acted in a rude and disrespectful manner at the meeting. 21 [28] Ms Trish McNeill, who was also present at the meeting, says in her affidavit that the applicant was provided, prior to the meeting, with the three documents mentioned by Mr Meade. 22 Ms McNeill s evidence, and in further corroboration with Mr Meade s evidence, is that the applicant was informed at the outset of the meeting that it was of a disciplinary nature, and was regarding allegations that she acted aggressively and swore at other players at the Pennants competition. Ms McNeill also states that the applicant denied any wrongdoing, and acted in a disrespectful manner at the meeting. [29] The minutes of the meeting are not particularly helpful in providing any insight to this matter. The minutes indicate that the applicant was invited to present her account of events in regards to her conduct at the Pennants competition in light of the three complaints received by the respondent, and that she denied any wrongdoing. [30] The respondent wrote a further letter to the applicant on 7 August 2014 notifying her of her suspension for a period of one month: 23 This is to advise that your conduct at the pennants held at our Club on the weekend of the 26-27th of July 2014 has been deemed unbecoming of a member and not in accordance with the values and standards of the Club. This together with previous correspondence dated 18 th of July 2011 you received has resulted in the Club taking the following action. On receipt of this correspondence: 1. You are suspended from the Proserpine Golf Club Inc. for a period of 1 month. 2. You are not eligible for selection to represent the Club in any pennants or fixtures until year ended [31] The applicant states that she had no prior notice that the respondent was relying on conduct referred to in the letter of 18 July Neither the minutes of the 21 See Affidavit of RT Meade filed 28 September 2017 at [34]-[35]. 22 Affidavit of T McNeill filed 28 September 2017 at [16]. 23 Exh BEP4 to the Affidavit of BE Petersen filed 12 July 2017.

9 9 meeting which are exhibited to the affidavit of Mr Meade, nor the evidence of Mr Meade or Ms McNeill make any reference to the events referred to in the letter of 18 July 2011 being considered at the meeting of 6 August [32] Regardless of which account is to be preferred, it seems clear that the applicant was provided little or no time to respond to the allegations at the meeting of 6 August [33] In considering what was sufficient time to adequately prepare a defence, McMeekin J in Gould found that the six days provided to the applicant after she was provided with eleven particulars of the critical issues of the allegations was far too short. 24 Whilst the concept of sufficient time is variable depending on the circumstances including the complexity of the matters to be considered at a given meeting, it is clear in this situation that the applicant was not afforded time to respond to the allegations. She was not notified in advance of the particulars of the complaint nor given time to gather any evidence. There was therefore a clear failure by the respondent to provide a full and fair opportunity to the applicant to present her case. [34] The decision of the board on 6 August 2014 to suspend the applicant s membership for one month was made in breach of natural justice and in breach of clause 7(4) of the constitution. Did the right to appeal cure the defect? The meeting of 19 August [35] The right to appeal in some circumstances can cure the defect of an original decision. Justice Mason in Twist v Randwick Municipal Council summarised the position as follows: 25 if there was a failure to accord natural justice in the first instance, the authority might cure the defect by according a full and fair hearing subsequently. Further, the earlier cases should not be regarded as deciding that the presence of an appeal to another administrative body is an absolute answer to a departure from natural justice or the standard of fairness. The existence of such an appeal does not demonstrate in itself that the inferior tribunal is at liberty to deny a hearing. But if the right of appeal is exercised and the appellate authority acts fairly and does not depart from natural justice the appeal may then be said to have "cured" a defect in natural justice or fairness which occurred at first instance. [36] Justice Campbell in McClelland v Burning Palms Surf Life Saving Club stated that: 26 It has been held that, to be able to effect a cure of any earlier defect in procedure, the appeal procedure must be a full re-hearing, at which the person charged has the opportunity to address all matters relevant to both guilt and penalty, and where the appeal body has full power to substitute its own view for that the decision maker appealed against. 24 Gould [2015] QSC 253 at [52]. 25 (1976) 136 CLR 106 at [2002] NSWSC 470 at [154].

10 10 [37] Clause 8 of the respondent s constitution allows for a member to appeal a decision of termination within one month of receiving written notification of the decision. Upon receipt of the notice of appeal the respondent must convene a general meeting, and give the applicant a full and fair opportunity to present their case. [38] The applicant notified the respondent by on 10 August 2014 that she wished to appeal the decision using her rights under clause 8 of the respondent s constitution. 27 A purported appeal meeting was held on 19 August The issue therefore becomes whether the appeal meeting on 19 August 2014 cured the defect of the first meeting. [39] correspondence between the parties shows that the applicant requested access to her file after receipt of the letter of suspension. 28 The correspondence indicates that the applicant was allowed to attend at the clubhouse on 9 August 2014 for the purpose of reading the material, but was not allowed to remove or take copies of the material. The applicant does not specify what particular material she was allowed to view on this occasion. In his affidavit Mr Meade deposes that the applicant was allowed to view the three documents relied on at the first meeting. 29 [40] Whether the applicant was provided the opportunity to review the material relating to the events of 18 July 2011 (referred to in the letter of 7 August ) does not appear from the affidavits. This in itself is not necessarily decisive. The applicant was privy to the correspondence relating to this issue when it occurred in 2011, and herself wrote a letter addressing the incident and apologising for it. The applicant was therefore aware of the circumstances of this event. [41] On 13 August 2014 the respondent notified the applicant that the appeal meeting would be held on 19 August correspondence between the parties indicates that the meeting was brought forward at the request of the applicant, who requested of the respondent that: 31 According to Section 8 of the Constitution, I have one month to appeal the Committee s decision. In light of this I have until 8 th Sept to lodge my appeal. As I totally disagree with the Committee s decision I intend to appeal. These reports have been blown out of all proportion and are based on personal opinions, bordering on gossip and not facts. To delay this will have an unsettling effect on the lady members of our club and is the last thing I would want. Hence, I propose we meet as soon as is convenient for all parties, to resolve this amicably. 27 Exh BEP5 to the Affidavit of BE Petersen filed 12 July Ibid. 29 Affidavit of RT Meade filed 28 September 2017 at [42]. 30 See [30] above. 31 Exh BEP5 to the Affidavit of BE Petersen filed 12 July 2017.

11 11 [42] The purported appeal meeting was held on 19 August 2014 before six board members of the respondent. It was not a general meeting of club members. The applicant s evidence is that the respondent did not particularise to her what the alleged misconduct was, and that the applicant s understanding was that the allegation was that she had been rude. 32 [43] In his affidavit, Mr Meade states that at the meeting of 19 August 2014 the applicant was allowed the opportunity to dispute the decision, that the applicant acted aggressively and categorically denied any wrongdoing on her behalf. 33 [44] The applicant s argument that she had insufficient time to prepare for the meeting when it was brought forward to 19 August 2014 at her request is unattractive. So is her argument that she was not provided with the particulars of the alleged conduct. The applicant was able to view the material that the respondent relied upon on 9 August 2014 so had the opportunity to prepare a defence to the claims of alleged conduct. For example, the applicant had time to obtain witness statements from those whose evidence might have supported her defence. There is no evidence to suggest that the applicant made any attempt to provide any further evidence apart from her own version of events to refute the claim, or was frustrated in this because of lack of time or notice of the basis of the complaints against her. Was the appeal conducted unlawfully? [45] In written submissions counsel for the applicant submitted that the constitution was silent as to the appeal rights of a member in circumstances where a membership was suspended and not terminated. Both parties accepted that the power to suspend was, by implication, included within the right to terminate in clause 7. [46] An issue therefore arises about the process of appeal contained in clause 8, and specifically whether by conducting the appeal meeting before members of the board of directors, and not as a general meeting, the appeal meeting was invalid. [47] Counsel for the applicant submitted that any such appeal should have been heard by a general meeting and not the board members, consistent with clause 8 of the constitution. [48] In written submissions the respondent accepted that clause 8 of the constitution provides that an appeal against rejection or termination of membership be held before a general meeting. Thus the respondent s submission agrees with submissions made by the applicant as far as that goes. [49] However, the respondent relies on clause 13 of the constitution, as authorising the board to suspend membership. Clause 13 invests the board of directors with the power to have general control and management, and the authority to interpret the meaning on which these rules are silent: Functions of the Board of Directors 32 Affidavit of BE Petersen filed 12 July 2017 at [27]. 33 Affidavit of RT Meade filed 28 September 2017 at [44], [48].

12 (1) except as otherwise provided by these rules and subject to resolutions of the members of the association carried at any general meeting the Board (a) shall have the general control and management of the administration of the affairs, property and funds of the association; and (b) shall have the authority to interpret the meaning of these rules and any matter relating to the association on which these rules are silent. [50] Clause 13 places the management of and administration of the affairs, property and funds of the association in the hands of the board of directions from time to time. Read as a whole, its purpose is to confirm the authority of the board in the operation of and management of the respondent. However the rights of members and members entitlements to appeal decisions affecting membership, falls into a different category from the operational. [51] While the board is given specific power by clause 7 to terminate memberships (and consistently with the conclusion, to suspend ), the constitution expressly provides that appeals from decisions of the board to terminate (and by implication suspend) must be heard and determined by general meeting of the members. [52] In the circumstances of both parties agreeing that the power to suspend the membership is contained within the power to terminate in clause 7, it follows as a matter of construction that clause 8 must also apply, and the appeal meeting should have been held before a general meeting. As I have already noted the evidence shows that the meeting was held before six members of the board, four of which were present at the original meeting and not a general meeting of members. [53] There is another consideration that supports my construction of the constitution. An appeal from the board to the board concerning membership and whether to terminate or to suspend is unattractive in prospect. This is particularly so if issues arise concerning the process and whether it was in breach of the hearing rule or (perhaps more significantly) perceptions of bias. The preferable operation of the constitution in the circumstances is one where, in the context of a decision concerning termination or suspension of membership, an appeal lies to a different organ of the club being the members in general meeting. [54] The decision at the purported appeal hearing of 19 August 2014 should therefore be declared invalid. It was not held in accordance with clause 8 of the constitution before a general meeting and was not a lawfully constituted appeal. [55] In her application the applicant did not expressly seek orders concerning the meeting and decision of 6 August I have found that the applicant was denied natural justice in the proceeding leading to the decision made on 6 August. I have found that the appeal hearing in 19 August that confirmed the suspension decision made on 6 August 2014 was in breach of the constitution and unlawful. To set aside only the decision of 19 August in a sense leaves the decision of 6 August standing notwithstanding that both decisions are intertwined. That may appear unsatisfactory in light of my conclusions. The integrity of the proceeding

13 13 on 6 August leading to the decision was challenged at the hearing as part of the applicant s challenge to the subsequent appeal hearing on 19 August. It is well established that superior courts have inherent powers to grant declaratory relief which is a discretionary power that is neither possible nor desirable to fetter. 34 But it is a power that is confined [by] the boundaries of judicial power. 35 So that declaratory relief must be directed to the determination of legal controversies and not answering abstract or hypothetical questions, the person who might seek relief must have a real interest and if a declaration might not produce any foreseeable consequence for the parties for discretionary reasons relief might be declined. 36 The applicant will have the benefit of the finding that the decision of 6 August 2014 was made in breach of natural justice. It is not clear to me that any declaratory and consequential relief or order (or the failure to make same) will have any consequence in the future for the applicant. For this reason and because the applicant did not seek any relief in relation to the decision of 6 August 2014 I have decided to leave matters where they are concerning that decision of the board. The decision of 16 February 2015 [56] On 16 February 2015 the applicant received a letter dated 16 February 2015 requesting that she attend at the Club that evening to address complaints relating to her conduct at the Club on 11 February 2015: 37 The Club has received complaints in regards to your conduct at the Proserpine Golf Club Inc. on Wednesday, 11 th February 2015 In order to address the complaints, it is requested that you attend a committee meeting of the Proserpine Golf Club Inc. to be held at the Clubhouse on Monday the 16 th February, 2015 at 5.30pm. [57] In her affidavit 38 the applicant says that six members of the board were present at the meeting. Just prior to the meeting she was given four letters to read, she was not allowed to keep them and only given a few minutes to read them. Her recollection is that one letter included references to events on one occasion different from 11 February Her evidence is that after the commencement of the meeting one member of the board stood up and shouted at her, following which, having formed the opinion she would not be listened to she left the meeting. [58] Mr Meade, in his affidavit on behalf of the respondent, says that six letters of complaint were received concerning the applicant s behaviour on 11 February and that as a result the letter of 16 February was sent. In his affidavit Mr Meade says that the meeting commenced only after the applicant was given the six letters of complaint to read and she had completed reading them. Mr Meade says that because of the effluxion of time since February 2015 his memory of events is no longer as clear as it might have been shortly after the meeting. Nevertheless in his affidavit he sets out an account of the events of the meeting that suggest a lot more passed between the applicant and the members of the 34 Ainsworth & Anor v Criminal Justice Commission (1992) 175 CLR 564 at Ibid at Ibid. 37 Exh BEP14 to Affidavit of BE Petersen filed 12 July Affidavit of BE Petersen filed 12 July 2017 at [41] [43].

14 14 board at the meeting in terms of conversation than suggested by the applicant s affidavit. Once again it is not necessary for me to resolve these issues, this is neither a merits review and, no deponent was relevantly challenged by cross examination. Mr Meade says that after the applicant left the meeting the board discussed the matter and after consideration decided to suspend the applicant from the club until 30 September 2015 and to revoke her life membership as at 30 September [59] The following day on 17 February 2015 the applicant received a letter from the respondent dated 17 February notifying her that her membership was suspended until and including 30 September 2015, and revoking her life membership as at 30 September The letter further stated that the respondent s decision was final: 40 This is to advise that your conduct at the Club on Wednesday the 11 th of February, 2015 has been deemed unbecoming of a member and not in accordance with the values and standards of the Club. This together with previous correspondence you have received from the Club dated 7 th August, 2014 and the 18 th July, 2011 has resulted in the Club taking the following action The decision of the Committee of the Proserpine Golf Club Inc is final. [60] The applicant did not appeal the decision of the respondent. Rather she joined the Bowen Golf Club, situated approximately 70 kilometres from the applicant s residence. [61] It is unnecessary for me to make any findings with respect to any issues of contention concerning the events at the meeting on 16 February. It is common ground that the applicant received the letter dated 16 February notifying her of a meeting to be held at the clubhouse at 5.30pm that day. It is not suggested that the applicant was provided with any agenda, copies of the letters of complaint or particulars of any motion or sanction that might be imposed. It is common ground that she was only given an opportunity to read the letters immediately prior to the commencement of the meeting. [62] Consistent with my conclusion with respect to the earlier meeting 42 on 6 August 2014 there is a clear failure on behalf of the respondent to provide the applicant with a full and fair opportunity to be heard on 16 February and both in relation to the complaints and the sanction that might be imposed. Plainly the applicant was denied natural justice (see s 71(3) of the Act and clause 7(4) of the constitution). [63] I therefore find that the decision of the respondent at the meeting on 16 February 2015 to suspend the applicant s membership and to revoke her life membership as advised in the letter of 17 February 2015 is void. 39 See further the minutes of the board meeting of 16 February 2015 at exh RTM1 at page 24 to the Affidavit of RT Meade filed 28 September Exh BEP15 to the Affidavit of BE Petersen filed 12 July Exh BEP14 to the Affidavit of BE Petersen filed 12 July See paras [23] to [34] above.

15 15 [64] I do not consider that the applicant s failure to appeal the decision of the board made at the meeting on 16 February 2015 should preclude her from entitlement to relief. It should be recalled that an earlier appeal had miscarried, the respondent having convened a meeting of the board of directors rather than a meeting of the members to consider an appeal. In light of the previous appeal it might well have appeared to the applicant that any appeal from Caesar to Caesar, complaining of the decisions of Caesar was futile. The applicant was denied natural justice at the hearing on 16 February. To the extent to which her failure to challenge the decision by an appeal might affect or bear upon discretionary considerations whether to grant relief, in the circumstances of the history of the earlier hearing and appeal, I consider my discretion should be exercised in favour of the applicant in this instance. In reaching this conclusion I have also taken into account that the revocation of life membership will have, if not set aside, permanent consequences for the applicant. The committee decision of 21 July 2015 [65] On 14 July 2015 the applicant received a letter from the respondent requesting her attendance at a club meeting on 21 July 2015, thus providing the applicant with one weeks notice of the hearing. The letter stated that the respondent had received several complaints about her conduct at an event held on 11 July The letter did not particularise what the complaints were: 43 The Club has received several complaints in regards to your conduct at the Collinsville Ladies Open on Saturday, 11 July, In order to address the complaints, it is requested that you attend a committee meeting of the Proserpine Golf Club Inc. to be held at the Clubhouse on Tuesday, 21 st July, 2015 at 5.30pm. [66] The applicant wrote to the respondent on the morning of 21 July 2015 requesting that the meeting be adjourned as she was out of town. 44 [67] The evidence of Mr Meade is that on 21 July the board considered the request of the applicant to adjourn the meeting. Mr Meade s evidence is that the board members did not really believe the applicant was going to be away from Proserpine that day, and that based upon the applicant s past behaviour, the need to be decisive, and the evidence it had before it, the board could make a decision in her absence. 45 The Club did not provide the applicant with notice that they were going to proceed with the meeting in her absence. [68] On 29 July 2015 the applicant received a letter dated 29 July 2015 from the respondent advising that she was further suspended up to and including 30 September 2016 and that the decision was final: 46 This is to advise that your conduct at the Collinsville Ladies Open on Saturday the 11 th of July, 2015 has been deemed unbecoming of a member and not in accordance with the values and standards of the Club. 43 Exh BEP18 to the Affidavit of BE Petersen filed 12 July See exh RTM1 at page 29 to the Affidavit of RT Meade filed 28 September See further Affidavit of RT Meade filed 28 September 2017 at [2]. 46 Exh BEP19 to the Affidavit of BE Petersen filed 12 July 2017.

16 16 This together with previous unacceptable conduct at the Proserpine Golf Club dated 11 th February, 2015, 7 th August 2014 and the 18 th July, 2011 has resulted in the Club taking the following action The decision of the Committee of the Proserpine Golf Club Inc is final. [69] Two issues arise from the conduct of the board in its decision making process. The first is that the board again failed to particularise the alleged conduct of the applicant, and the reason why it was unacceptable to the Club. The second issue is that the board decided to proceed with the meeting in the absence of the applicant because, amongst other things, members of the board did not believe the grounds for her request for adjournment was true. No evidence was forthcoming from any of the persons at the meeting that supported any ground for suspecting the applicant s request for an adjournment was made untruthfully. In her affidavit the applicant swore that she was in Bundaberg. The question therefore might be asked whether the members of the committee when they considered the applicant s request for an adjournment approached matters with an open mind or whether they had pre-judged the matter. Ultimately it is not necessary for me to determine this because I have reached the firm view that the respondent s failure to provide the applicant with full particulars of the complaint against her and to have an opportunity to meet any evidence that might be relied upon against her in the context of her request for an adjournment failed to give her adequate notice of the complaint and thus failed to provide her with a full and fair opportunity to present her case. There was a breach of natural justice. [70] Had the board provided to the applicant particulars of the complaint or complaints together with copies of any letters or statements of complaint in advance of the meeting so that the applicant had reasonable time to consider the material and marshal any evidence in her support then the board would have complied with its express obligations under the constitution of giving the applicant a full and fair opportunity for presenting her case. But this was not done. In the same way as it did in the case of the decisions made on 6 August 2014 and in February 2015 the applicant was denied an opportunity to consider the substance of the complaint and the basis for it. Further without telling the applicant that it did not accept she could not attend the meeting and without giving the applicant an opportunity to demonstrate that she could not attend the meeting at the appointed time the board disbelieved her. No evidence was tendered justifying that belief. No evidence was tendered justifying why it was necessary in the circumstances to proceed that day in the absence of the applicant. Further it is apparent from the letter of 29 July 2015 that the board had in mind the conduct the subject of the decisions of 6 August 2014 and February 2015 when it decided to make findings against the applicant and imposed the sanctions it did. But those decisions, as I have held, are tainted by reason of failure to accord procedural fairness. [71] The decision of the board on or about 21 July 2015 must therefore be declared void and set aside on the basis that the applicant was not afforded a full and fair opportunity to present her case. Conclusion and Orders

17 17 [72] For the reasons I have given the application should be allowed. The orders or declarations should be: 1. Declare that the decision of the respondent made on 19 August 2014 to suspend the applicant from membership for one month and rendering her ineligible for selection to represent the Club in any pennants or fixtures until the year ended 2015 is void. 2. Order that the decision by the respondent made on 19 August 2014 to suspend the applicant from membership be set aside. 3. Declare that the decision of the respondent made on 16 February 2015 to suspend the applicant from membership up to and including 30 September 2015 and to revoke the applicant s life membership as of 30 September 2015 is void. 4. Order that the decision by the respondent made on 16 February 2015 to suspend the applicant s membership and to revoke her life membership be set aside. 5. Declare that the decision of the respondent made on 21 July 2015 to suspend the applicant from membership for a further period of 12 months up to and including 30 September 2016 is void. 6. Order that the decision by the respondent made on 21 July 2015 to suspend the applicant s membership for a period of 12 months up to and including 30 September 2016 be set aside. [73] I shall hear the parties about costs.