Fitzpatrick v Lithgow and District Workmens Club Limited [2012] NSWSC 265

Supreme Court New South Wales

Medium Neutral Citation: Fitzpatrick v Lithgow and District Workmens Club Limited [2012] NSWSC 265 Hearing dates: 27 and 28 February 2012 Decision date: 23 March 2012 Jurisdiction: Equity Division Before: Hallen AsJ Decision: (a)Order that the amended Summons be dismissed. (b)Order that the balance of the proceedings stand over for 21 days to enable parties to consider what further directions, if any, should be made and to argue costs, if agreement unable to be reached. Catchwords: ASSOCIATIONS AND CLUBS - Incorporated Club - Removal and suspension of member - Whether actions of the Defendant in suspending the Plaintiff's membership of the Club were ultra vires and void, and whether he was wrongfully suspended from membership - Assertion that the general manager acted on the mistaken belief that suspension from another section of the Club disqualified him from using the facilities of the Club, including bowling greens - Whether the claims of the Plaintiff are justiciable - Whether proceedings commenced prematurely, without compliance with the procedures provided for in the Club's Constitution; and whether the Plaintiff was only temporarily suspended, pending the determination of the Club's Disciplinary Committee, which determination the Plaintiff did not permit because he commenced these proceedings; Whether the Plaintiff suffered any diminution of rights of property, livelihood or trade, which may include reputation; Assertion that the Plaintiff does not come to Court with "clean hands" and that, therefore, the exercise of any discretion in his favour should be refused was withdrawn Legislation Cited: Companies Act 1961 Registered Clubs Act 1976 Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358 Carberry v Drice as Rep of Brisbane Junior Rugby Union (An unincorporated Body) [2011] QSC 016 Carter v NSW Netball Association [2004] NSWSC 737 Dixon v Australian Society of Accountants (1989) 95 FLR 231; 87 ACTR 1 Farrell v Royal King's Park Tennis Club (Inc) [2006] WASC 51 Finlayson v Carr [1978] 1 NSWLR 657 Hanson v Radcliffe Urban District Council [1922] 2 Ch 490 Henderson v Kane and the Pioneer Club [1924] NZLR 1073 McKinnon v Grogan [1974] 1 NSWLR 295 McManus v Lithgow and District Workmen's Club Ltd (NSWSC, 25 May 1981, unreported) Musumeci v Attorney General of NSW [2003] NSWCA 77 Rush v WA Amateur Football League (Inc) [2007] WASCA 190; (2007) 35 WAR 101 Scandrett v Dowling (1992) 27 NSWLR 483 Sutherland Shire Council v Leyendekkers [1970] 1 NSWR 356 Wilcox v Kogarah Golf Club Ltd (NSWSC, 23 November 1995, unreported) Wilcox v Kogarah Golf Club Ltd (1995) 14 ACLC 421 Wise v Perpetual Trustee Co Ltd [1903] AC 139 Zusman v Royal Western Australian Bowling Association (Inc) [1999] WASC 86 Texts Cited: Halsbury's Laws of Australia, vol 28 Oxford Dictionary Category: Principal judgment Parties: Keith James Fitzpatrick (Plaintiff) Lithgow and District Workmens Club Ltd (Defendant) Representation: Counsel: Mr R Weaver (Plaintiff) Mr J Hyde (Defendant) Solicitors: Higgins Lawyers (Plaintiff) Barry F Cosier & Associates (Defendant) File Number(s): 2011/339511