Supreme Court New South Wales Medium Neutral Citation: Campolongo v Club Marconi of Bossley Park Social Recreation & Sporting Centre Ltd [2012] NSWSC 750 Hearing dates: 21 June 2012 Decision date: 04 July 2012 Jurisdiction: Equity Division Before: Ward J Decision: Proceedings dismissed Catchwords: REMEDIES - declaratory relief - relief sought by plaintiff in relation to whether 2010 suspension from association valid under association's constitution - whether there is a justiciable issue in the absence of a proprietary right or damage to livelihood or reputation - company limited by guarantee - whether the association's constitution is a binding contract or a consensual compact - whether any utility in granting declaratory relief where association concedes that 2010 suspension was invalid - HELD - association's constitution constitutes a binding contract - there is justiciable issue - no utility in relief sought - proceedings dismissed Legislation Cited: Associations Incorporation Act 1984 (NSW) Associations Incorporation Act 2009 (NSW) Civil Procedure Act 2005 (NSW) Companies Act 1936 (NSW) Companies Act 1961 (NSW) Companies Act 1981 (Cth) Companies (Application of Laws) Act 1981 (NSW) Corporations Act 1989 (Cth) Corporations (New South Wales) Act 1990 Corporations Act 2001 (Cth) Corporations (Ancillary Provisions) Act 2001 (NSW) Corporations (Repeals, Consequentials and Transitionals) Act 2001 (Cth) Supreme Court Act 1970 (NSW) Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Cameron v Hogan (1934) 51 CLR 358 Capgemini US v Case [2004] NSWSC 674 Carter v NSW Netball Association [2004] NSWSC 737 Castle v Director General State Emergency Service [2008] NSWCA 231 Coles v Wood [1981] 1 NSWLR 723 Dixon v Australian Society of Accountants (1989) 95 FLR 231; 87 ACTR 1 Fitzpatrick v Lithgow and District Workmens Club Ltd [2012] NSWSC 265 Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 Frackelton's Case (1909) 8 CLR 673 Gates v Vickery (1973) ACLC 27,517 Goodwin v Vietnam Veterans Motor Cycle Club Australia NSW Chapter Inc (2008) 72 NSWLR 224 Hanson v Radcliffe Urban District Council [1922] 2 Ch 490 Henderson v Kane and the Pioneer Club [1924] NZLR 1073 Hornby v Narrandera Ex-Servicemen's Club Ltd [2001] NSWSC 235 Ibeneweka v Egbuna [1964] 1 WLR 219 Lohar Corp Pty Ltd v Dibu Pty Ltd (1976) 1 BPR 9177 Marra Developments Ltd v B W Rofe Pty Ltd [1977] 2 NSWLR 616 McClelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759 McManus v Lithgow and District Workmen's Club Ltd (NSWSC, 25 May 1981, unreported) Neeta (Epping) Pty Ltd v Phillips [1974] HCA 18; (1974) 131 CLR 286; (1974) 3 ALR 151 Orr v Ford (1989) 167 CLR 316 Rana & Ors v Survey & Ors [2012] NSWSC 439 Re Judiciary and Navigation Acts (Advisory Opinions Case) [1921] HCA 20; (1921) 29 CLR 257 Rivers v Bondi Junction-Waverley RSL Sub-Branch Ltd (1986) 5 NSWLR 362 Rose v Boxing NSW Inc [2007] NSWSC 20 Sutherland Shire Council v Leyendekkers [1970] 1 NSWR 356 Trans Realties Pty Limited v Grbac [1975] 1 NSWLR 170 Western Australia in Rush v WA Amateur Football League (Inc) [2007] WASCA 190; (2007) 35 WAR 101 Wilcox v Kogarah Golf Club (1995) 14 ACLC 421 Wise v Perpetual Trustee Co Ltd [1903] AC 139 Zuellig v Pulver [2000] NSWSC 7 Zusman v Royal Western Australian Bowling Association (Inc) [1999] WASC 86 Texts Cited: Halsbury's Laws of Australia (3rd ed) Category: Principal judgment Parties: Antonio Campolongo (Plaintiff/Respondent) Club Marconi of Bossley Park Social Recreation & Sporting Centre Ltd (Defendant/Applicant) Representation: Counsel: M W Sneddon (Plaintiff) M Fisher (Defendant) Solicitors: CMC Lawyers (Plaintiff) Middletons (Defendant) File Number(s): 12/093531 Judgment 1HER HONOUR: Before me for hearing on 21 June 2012 was an application, brought by Summons filed by the plaintiff (Mr Antonio Campolongo) in March this year, seeking final declaratory relief in relation to the validity of his suspension as a member of the defendant (Club Marconi) in late November 2010. 2The principal relief sought is a declaration that the purported suspension of Mr Campolongo on or about 29 November 2012 was "legally ineffectual". Further or in the alternative, a declaration is sought that Mr Campolongo has at all times to date been, and should from 29 November 2010 remain, a member of Club Marconi. 3The Summons also sought interlocutory relief by way of an order that, pending the final determination of these proceedings, Club Marconi be restrained from taking any step in relation to proposed disciplinary proceedings then scheduled for 27 March 2012. A disciplinary hearing had been convened for the purpose of a committee of the Club hearing a charge against Mr Campolongo as to his suitability to remain a member of the Club having regard to various allegations as to his conduct as detailed in a Notice of Charge issued on 29 February 2012. In issuing that Notice of Charge (though not the former notice of suspension in 2010), the Board of Club Marconi expressly invoked the power under Rule 47(h) of the Club's constitution immediately to suspend Mr Campolongo's membership pending determination of the disciplinary proceedings. 4On 26 March 2012, when the matter came before Rein J on the interlocutory application by Mr Campolongo to restrain the disciplinary hearing scheduled for the following night, an undertaking was proffered to the Court by the solicitor appearing for Club Marconi to the effect that, pending the determination of the Court proceedings, Club Marconi would not take any steps in relation to the proposed disciplinary proceedings involving Mr Campolongo. As a result, since March 2012 the proposed disciplinary proceedings have been delayed (now for some 3 months) even though, on the final hearing of his Summons in the present proceedings, Mr Campolongo raises no issue as to the validity of the February 2012 Notice of Charge or as to the entitlement of a committee of the Board to conduct the disciplinary hearing. 5By Notice of Motion filed 10 May 2012 (and also returnable before me on 21 June 2012), Club Marconi sought to be released from the undertaking its solicitor had given to the Court. Counsel for Mr Campolongo (Mr Sneddon) submitted that this application was rendered otiose by the listing of the matter for final determination (but that, in any event, there was no material change that warranted the withdrawal of the undertaking). I agree that there is little utility in the withdrawal of the undertaking at this stage, since the undertaking will be spent once judgment on Mr Campolongo's proceedings is delivered. On the basis that it was accepted that the undertaking would then be discharged, Club Marconi did not press its motion before me. 6However, had the handing down of my judgment not been likely within a relatively short period, I would have considered that there was a sound basis for the withdrawal of the undertaking in circumstances where it would not seem to be warranted where there is now no challenge by Mr Campolongo to the validity of the Board resolution and/or Notice of Charge pursuant to which the disciplinary proceedings had been convened. (I note that at the time the interlocutory relief was sought before Rein J there had been assertions made on behalf of Mr Campolongo that the Board was activated by bias against him. No such allegations were pressed or put in issue in the hearing before me. Hence the very basis on which Mr Campolongo had maintained that interlocutory relief was necessary, and the context in which the undertaking was given, has disappeared. That seems to me to be a material change if such be necessary to permit the withdrawal of the undertaking.) Scope of these proceedings/ambit of declaratory relief sought 7In submissions served in advance of the present hearing, Counsel for Club Marconi (Ms Fisher) contended that the real issues in the present proceedings were not confined to the discrete issue identified by Mr Sneddon (namely, whether the 2010 suspension was legally effectual) but also included matters related to the validity of the later Notice of Charge and suspension in 2012 (and the disciplinary proceedings that had been scheduled in relation thereto). Having regard to matters raised in correspondence by Mr Campolongo's solicitors (and the matters foreshadowed by Mr Sneddon when the matter was before Rein J), it was submitted that the real issues in dispute also included: the validity of the February 2012 Notice of Charge; the validity of the suspension imposed in 2012; whether the disciplinary proceedings are properly constituted; whether the present Board of Club Marconi is operating with bias against Mr Campolongo; and the relevance, if any, of the potential for reputational damage to Mr Campolongo on any proper exercise of the powers conferred pursuant to Rule 47 of Club Marconi's constitution. 8Ms Fisher submitted that those issues should also be dealt with in the current proceedings so that all matters in controversy between the parties could be completely and finally determined (and a multiplicity of legal proceedings concerning any of these matters avoided), referring to the jurisdiction of the Court under s 63 of the Supreme Court Act 1970 (NSW) and the statutory objectives under s 56 of the Civil Procedure Act 2005 (NSW). Ms Fisher further submitted that the later suspension would be relevant in the exercise of the Court's discretion in relation to the relief sought in respect of the earlier suspension). 9Mr Sneddon was adamantly opposed to any expansion of the issues raised on Club Marconi's summons, maintaining that the enquiry before this Court is limited in scope to the legal question as to whether, on a proper construction of clause 47 of Club Marconi's constitution, the suspension of Mr Campolongo on 29 November 2010 was legally ineffectual and invalid. For the reasons I set out later, I am not satisfied that it would be a proper exercise of the Court's jurisdiction to expand the issues in dispute to take into account the validity or otherwise of the 2012 suspension. 10As to the ambit of the declaratory relief sought, it was submitted by Mr Sneddon that if Mr Campolongo's purported suspension by Club Marconi was legally ineffective, then the necessary corollary was that at all material times "including to date" Mr Campolongo remained a member of Club Marconi. That submission, however, directly calls into question the effect of the 2012 Notice of Charge and the suspension it imposed (a matter that, as noted above, Mr Sneddon submits this Court should not consider). In that regard, during the course of oral argument Mr Sneddon appeared to concede that a conclusion that Mr Campolongo remains "to date" a member is a matter that must necessarily take into account the effect of the resolution by the Board in February to impose an immediate suspension (as notified in the February Notice of Charge) since, whatever the position up until February 2012 (or at the latest early March 2012 when Mr Campolongo says he received the Notice of Charge), as at that time there is a fresh basis on which the continued suspension (or any new suspension) is said to be effective. On that basis, I understood Mr Sneddon ultimately only to press for a declaration as to Mr Campolongo's membership status up to February 2012, not to date. 11Further, to the extent that the declaratory relief claimed in prayer 2 of the Summons goes so far as to extend to a declaration that Mr Campolongo "should from 29 November 2010 remain a member", this would seem to contemplate that he has some irrevocable right to membership. At least having regard to the constitution of Club Marconi, that could not possibly be the case and no evidentiary basis for any such contention was adduced. 12The debate thus raised at the outset of the hearing (as to the scope of the issues before the Court for determination and the ambit of any declaratory relief if the 2010 suspension alone is in issue) highlights what in my view is ultimately the determining factor in these proceedings: namely, that there is no utility in the grant of declaratory relief that goes no further than what Club Marconi itself concedes. It was made very clear by Ms Fisher that Club Marconi concedes that the Board did not comply with the disciplinary procedure under the Club's constitution when it resolved in November 2010 to suspend Mr Campolongo as a member of the Club and that Mr Campolongo's suspension only became valid as of 29 February this year when the 2012 Notice of Charge was issued (assuming the validity of that 2012 Notice). 13Even if Club Marconi had not made that concession, there would in my view be little, if any, utility in the relief now sought in circumstances where Club Marconi has, since 2010, invoked the powers under its constitution for an immediate suspension of Mr Campolongo (pending the determination of the disciplinary proceedings). Whatever the position as to the suspension in 2010, by reason of the events in 2012 there will remain in place a suspension of Mr Campolongo's membership until such time as the disciplinary process provided for under the Rules is completed (or there is some other application of the kind presently eschewed in relation to the 2012 Notice of Charge). Summary 14In summary, therefore, I have concluded that there is no utility in the declaratory relief sought in these proceedings in circumstances where Club Marconi concedes that the Board did not correctly follow the procedure set out in Rule 47 of its constitution when issuing the notice of suspension in 2010 and hence does not contend that the suspension in 2010 was validly imposed and where all that is now sought by Mr Campolongo is declaratory relief as to the validity and effect of that 2010 suspension. The import of that concession is not lessened by the fact that Club Marconi maintains, through its Counsel, that there was a basis on which it was at the time entitled unilaterally to suspend Mr Campolongo's membership pending the hearing of disciplinary proceedings under Rule 47(h) of the constitution. What Club Marconi, relevantly, concedes is that it did not validly invoke that procedure. 15Accordingly, I dismiss the plaintiff's claim for declaratory relief. In those circumstances it is unnecessary to consider the application for relief in the Notice of Motion filed by Club Marconi and I dismiss that application with no order as to costs. I will hear the parties on any question as to the costs of the proceedings themselves. 16I set out below the reasons for the above conclusion. Background 17Club Marconi is a company that was incorporated on 18 March 1957 under the provisions of the Companies Act 1936 (NSW) as a company limited by guarantee. Its objects (set out in clause 10 of its constitution) include the provision of facilities for the social intercourse of its members and their families and for their educational, recreational and sporting needs and the promotion in general of the social, intellectual and physical welfare of the company's members and families. 18Rule 47 of the Constitution, under the heading "Disciplinary Proceedings", states as follows: 47. If a member refuses or neglects to comply with any of the provisions of the Constitution of the Club or the By-laws thereof or be in the opinion of the Board, guilty of any conduct prejudicial to the interests of the Club or be in the opinion of the Board, guilty of conduct which is unbecoming of a member or which shall render the member unfit for membership, the Board shall have power to reprimand, suspend from all privileges of membership for such period as it considers fit, expel or accept the resignation of such member and to remove the person's name from the register of members, provided that: (a) Such member shall be notified of any charge against the member pursuant to this Rule by notice in writing to the member at least 14 clear days before meeting of the Board at which such charge is to be heard. The notice shall set out the facts, matters and circumstances giving rise to the charge. Any such notice of charge issued to a member pursuant to (a) of this Rule and sent by post shall be deemed to have been received on the second clear day after posting. (b) The member shall be entitled to attend the hearing for the purpose of answering the charge or may answer the charge in writing, and is entitled to call witnesses in his or her defence. (c) The voting by the members of the Board present at such meeting shall be by secret ballot if requested by any member of the Board, and no resolution by the Board to reprimand, suspend or expel a member shall be deemed to be passed unless at least two-thirds of the members of the Board present vote in favour of such resolution. (d) If the member fails to attend such meeting the charge may be heard and dealt with and the Board may decide on the evidence before it, the member's absence notwithstanding, but having regard to any representations made to it in writing by the member charged. (e) After the Board has considered all the evidence put against the member it must come to a decision as to the member's guilt or innocence in relation to the charge. Once it has decided the issue of guilt or innocence, the Board must inform the member prior to considering any penalty. (f) The member charged must be given a further opportunity at the hearing to address the Board in relation to the penalty appropriate to the charge of which the member has been found guilty. (g) Any decision of the Board at such hearing or any adjournment thereof shall be final and the Board shall not be required to assign any reason for its decision. (h) In the event that a notice of charge is issued to a member pursuant to paragraph (a) of this Rule, the Board shall have power to immediately suspend [sic] that member from all privileges of membership until the charge is heard and determined. Notice of an immediate suspension imposed by the Board on a member shall be notified in writing to that member. 19Rule 48 provides that, subject to paragraph (b) of that Rule, no appeal lies from a decision of the Board pursuant to Rule 47 nor shall any member reprimanded or suspended or upon whom a fine has been imposed have any right of action against the Club or the Board by reason of such reprimand suspension or fine or by anything done consequent upon or incidental thereto or by reason of any statement made at a meeting in which such a reprimand suspension or fine is imposed. Rule 48(b) provides a right of appeal to the members of the Club in general meeting from a resolution of the Board to expel a member. (No expulsion resolution has been proposed or passed in the present case.) 20In 1999, Mr Campolongo was elected to the Board of Club Marconi. The following year he became its President, a position he occupied until 2010. 21In around 2010, an investigation of certain financial matters was undertaken within Club Marconi. This was followed by a police investigation (which I understand may still be ongoing). Those investigations appear to have precipitated the action taken by Club Marconi of which Mr Campolongo now complains. 22Mr Campolongo, through his Counsel, expressly conceded that there were internal investigations within the Club that were handed on to the police and he accepts that the police "would have" carried out their own investigations (though it was emphasised that the principal investigation was into the conduct of someone other than Mr Campolongo and that no charges have yet been laid against Mr Campolongo). (On that basis I rejected evidence sought to be tendered in these proceedings by Club Marconi as to the content of the investigations that have been undertaken in relation to the financial affairs of Club Marconi.) 23On 23 November 2010, there was a meeting of the directors of Club Marconi. In evidence before me is a copy of an extract from the minutes of that directors' meeting, item 22.22 of which recorded the following resolution: "Moved: J Romeo Seconded: S Noiosi that T Campolongo be suspended from Club Marconi pending the outcome of the police investigation". 24It is accepted that Mr Campolongo had no prior notice of the consideration by the Board of his proposed suspension. Ms Fisher submits that this was a mistaken exercise by the Board of the power conferred on it by Rule 47(h) of the Club's constitution (and hence that it cannot be inferred that this conduct amounted to an intentional disregard of the disciplinary procedure under the Rules). While I accept that the Rules provide two ways in which a suspension may be imposed (only one of which requires that the member be given an opportunity to be heard on the charge before the imposition of that penalty), it is difficult simply on the face of the Board minutes to form a view as to the power that the Board considered it was then exercising when unilaterally suspending Mr Campolongo's membership at that time. Nevertheless, I accept that insofar as there was a failure to follow the procedure outlined in the constitution any breach in that regard occurred in circumstances where there would have been an available means of imposing such a suspension without any breach of the procedure outlined in Rule 47.) 25By letter dated 29 November 2010, Mr Campolongo was notified that a resolution had been passed by the Board that he be suspended from the Club "pending the outcome of the police investigation into the alleged inappropriate activities at Club Marconi". The letter concluded that "On finalisation of the investigation and the resulting report your membership status will then be reconsidered" (a statement that Ms Fisher relies upon as consistent with the view that the Board was there imposing a suspension of the kind provided for in Rule 47(h) and not a final penalty as such). 26On 14 December 2011 (just over twelve months after notification of his suspension) Mr Campolongo's solicitors wrote to Club Marconi taking issue with that suspension. In that letter, Mr Campolongo's solicitors referred to the police investigation and asserted that their client had been "singled out for punitive action by the club which is highly prejudicial to our client personally and which resulted in defaming him". It was asserted that the actions were based on spurious grounds (which would suggest that by then, at least, Mr Campolongo had some understanding of the grounds on which the Board had imposed the suspension). It was further alleged that Mr Campolongo had been denied natural justice in that the Board had not followed the procedure prescribed in Rule 47 to be followed in disciplinary proceedings against members of the Club. That letter invited the Board to reconsider its decision and to reinstate Mr Campolongo's full membership rights forthwith. 27An explanation for the delay in Mr Campolongo taking issue with his suspension was given by Mr Campolongo in an affidavit sworn 20 June 2012. (Objection was made to the lateness of service of this affidavit. I read it, subject to weight and relevance. The weight to be accorded to the assertions contained in this affidavit must take into account the fact that there was not a proper opportunity for Club Marconi to test them, and particularly the assertions as to Mr Campolongo's financial position at the time.) In that affidavit, Mr Campolongo deposed that the reason why he initiated proceedings twelve months after the suspension was that "my cash flow was such that I did not have enough money at the time to dedicate to conducting Supreme Court proceedings". There was no information provided as to Mr Campolongo's income at the time nor of his customary expenditure so as to give any indication as to what Mr Campolongo's cash flow was at the relevant time (and no real opportunity for Club Marconi to issue a notice to produce or subpoena to obtain such information) or what money he then thought he would have to "dedicate" to the conduct of Court proceedings if he were to challenge the suspension. 28In cross-examination, Mr Campolongo said (at T 11.37) that he had first sought legal advice about the November 2010 letter "probably within three months or six months" of the letter. He was unable to explain why he seems to have assumed (that being the logical inference from what he says in [2] of that affidavit), prior to consulting lawyers, that to challenge his suspension would involve Supreme Court proceedings (as opposed, for example, to issuing a letter of demand or seeking redress in a way other than through the commencement of proceedings of the present kind). Mr Campolongo nevertheless denied that there was any reason, other than his cash flow, that he did not take any action at the time in relation to the November 2011 letter (T 12.34). 29Given that there was no evidence of Mr Campolongo's financial position at the time and there is no basis on which I can form a view as to the assertion as to his ability to meet legal costs out of his then cash flow, I place little weight on this explanation for the time taken to challenge the suspension. I can do no more than note that, on his own evidence, Mr Campolongo waited some three to six months before seeking advice as to the suspension and that the reason he says proceedings were not commenced for some twelve months or so was due to unspecified financial constraints. Ultimately, however, my decision on the present application does not turn on the delay in commencement of proceedings seeking relief in respect of the 2010 suspension. 30On 18 January 2012, Mr Campolongo's solicitors pressed for a response to their December letter. No such response was received. Instead, by letter dated 29 February 2012 (which Mr Campolongo says he did not receive until early March 2012), Club Marconi issued a formal Notice of Charge under Rule 47(a) of the constitution requiring Mr Campolongo to appear on 27 March 2012 before the Disciplinary Committee of the Board to answer the charges set out in the letter. 31The charges levelled against Mr Campolongo (and the subject of the proposed disciplinary proceedings) were set out in Part 2 of the Notice, namely that Mr Campolongo was guilty of conduct that was: (a) prejudicial to the interests of the Club; (b) unbecoming of a member of the Club and (c) rendered him unfit for membership of the Club in that: 1. You have contravened section 41D(2) of the Registered Clubs Act 1978 (NSW) as you obtained a financial interest in a hotel whilst you were a member of the governing body of the Club and have not declared that interest to the secretary of the Club. 2. During April of 2010 you caused, facilitated, or otherwise permitted, or in the alternative did not prevent $764.60 in expenses to be improperly reimbursed to you by the South West Italian Association. 3. You caused, facilitated or otherwise permitted, or in the alternative did not prevent, the deletion or other alteration of the Finance Committee minutes of the Club by [X] to falsely authorise a bonus payment to be made to herself at the expense of the club. 4. You caused, facilitated or otherwise permitted, or in the alternative did not prevent, the deletion or other alteration of records of the Club, to authorise payments to be made by [X] for your travel and related expenses and those of others at the expense of the club in the company of other persons to a Clubs New South Wales Conference in Surfers Paradise on or around 10 to 14 October 2009. 5. You caused, facilitated or otherwise permitted, or in the alternative did not prevent, payments being facilitated by the Club, or in the alternative resources of the Club being utilised to affect [sic] improvements to or to conduct business on behalf of the proprietors of the Great Western Hotel in Orange. 6. You caused, facilitated or otherwise permitted, or in the alternative did not prevent, the Club paying for, or partly paying for, a trip to South Africa in 2010 in the company of other persons, on the false pretext that trip was facilitated by and paid for by a supplier to the club. 7. In or about February 2010 you caused, facilitated or otherwise permitted, or in the alternative did not prevent, [X] selling to the Club at an inflated valuation namely $5,000 certain projection equipment ... which projection equipment was in your possession and control. 8. On or about dates in March 2010 you attempted to facilitate payments to [X] in consideration for the termination of her contract of employment and of her employment, which payments you knew or ought to have known were in excess of her legal entitlements. 32Particulars were included in the letter of each of the charges but it is not necessary here to reproduce them. (There is no suggestion in the present proceedings that the Notice of Charge did not adequately set out the allegations made against Mr Campolongo.) It is conceded by Mr Campolongo that the Notice of Charge issued in February 2012 raises serious allegations against him. 33Part 4 of the Notice notified Mr Campolongo that, pursuant to clause 47(h) of the constitution, all privileges of membership were by that notice suspended until the charges were heard and determined. Clearly, therefore, the 2012 suspension was imposed in exercise of the interim power of suspension contained under the constitution (and did not purport to impose a final penalty of suspension without affording Mr Campolongo the opportunity both to address the allegations made against him and, if those allegations were found by a disciplinary committee to be made out, to address the Board on any penalty to be imposed). 34As noted earlier, the disciplinary hearing convened by the 2012 notice has not proceeded, pending the hearing and determination of the present Court proceedings. Mr Campolongo confirmed in the witness box (as I understood the thrust of his evidence to be) that he intends to challenge the charges that have been made against him and has instructed his solicitors in that regard. (What was not clear to me was whether he proposed to challenge the validity of the Board's conduct in issuing the 2012 Notice of Charge itself, as opposed to challenging the allegations raised by in the Notice of Charge, or to persist with his earlier allegations of bias on the part of the Board - see from T 16.18.) 35Nevertheless, having regard to the limited scope of the issues that Mr Sneddon insists are all that this Court should now determine, it is difficult to see that there remains any proper basis for the hearing of the disciplinary committee to be deferred (such a hearing being necessary whatever the outcome of the challenge to the 2010 suspension). As submitted by Ms Fisher, the practical effect of the way Mr Campolongo has conducted these proceedings (intentional or otherwise) has been to forestall the conduct of the proposed disciplinary proceedings. Issues 36As I indicated above, it was submitted by Ms Fisher that, in circumstances where Mr Campolongo's solicitors have, in correspondence, challenged the validity of both the Notice of Charge issued in February 2012 and the 2012 suspension and, in the interlocutory proceedings before Rein J, had submitted that the proposed disciplinary proceedings were an "improper disciplinary investigation proceeding" and that Mr Campolongo contended that "the present board is operating with an actual bias against [him]" the real issues in these proceedings are not confined to those relating to the 2010 suspension. 37While I accept the force of the proposition that the statutory objective for the just, quick and cheap resolution of all issues in dispute would support all issues in relation to the validity of the respective suspensions being dealt with at this point, the fact is that the relief sought by Mr Campolongo in his Summons goes only to the 2010 suspension and there is no cross-summons by Club Marconi seeking declaratory relief as to the validity of the February Notice of Charge. 38If it were necessary (in order to determine the question as to whether the claimed declaratory relief should be granted) to determine the validity of the 2012 Notice of Charge (or the constitution of the proposed disciplinary proceedings to deal with that charge), then I would accept Ms Fisher's proposition that those were issues raised for determination in these proceedings. However, I am not satisfied that it is necessary for the purposes of the claims made by Mr Campolongo to do so. 39That is because, for the purpose of considering the discretionary issues raised as to lack of utility and the availability of other more appropriate avenues for relief, I will proceed on the basis that the 2012 Notice of Charge and suspension should be assumed to have been validly issued and imposed. Mr Campolongo cannot, on the one hand, argue that the Court should not consider the validity of those actions by Club Marconi and at the same time suggest that, when it comes to discretion, account should not be taken of the fact that (since the 2010 suspension) there has been a subsequent invocation of the disciplinary procedure under the Rules resulting in a suspension under Rule 47(h) (nor do I understand Mr Sneddon to make any such suggestion). 40In the absence of a claim for relief that raises directly the issue of the validity of the 2012 suspension, there is no issue before me in relation thereto and hence I do not deal with it in these reasons. 41(As to whether any attempt in later proceedings to raise issues as to the validity of the Notice of Charge or the interim suspension (that could have been raised in the present proceedings or of the kind raised when the matter was before Rein J for the interlocutory application) might be met with an argument based on the principles of Anshun estoppel, that is another issue.) 42Accordingly, the issues before me on the present application are as follows: * first, whether the present dispute is justiciable in the absence of evidence of reputational damage suffered by Mr Campolongo as a result of the 2010 suspension (on the basis that Club Marconi is a company limited by guarantee, whose members have no proprietary rights as a result of membership of the Club). It is submitted by Ms Fisher there is no more than a consensual compact between the members of the Club that is not enforceable at law, in the sense considered in various cases such as Wilcox v Kogarah Golf Club (1995) 14 ACLC 421 at p 425). In this regard, Mr Sneddon submits that, by analogy with the incorporated association cases (such as Goodwin v Vietnam Veterans Motor Cycle Club Australia NSW Chapter Inc (2008) 72 NSWLR 224 at 233), a claim for declaratory relief in the present instance is justiciable with or without evidence of reputational damage. * second, if the present dispute is justiciable, whether as a matter of discretion the relief sought should be granted (noting that it is conceded by Club Marconi that the 2010 suspension was not imposed in accordance with the procedure outlined in the Club's constitution). The matters raised by Club Marconi as relevant to the Court's exercise of discretion in this regard are threefold: delay; lack of utility; and the existence of an available and appropriate alternative procedure by which the question in issue (as to whether Mr Campolongo's Club membership should be suspended) should be determined. 43I turn to the issues for determination. Is there a justiciable dispute? 44It is not disputed that Club Marconi was incorporated as a company limited by guarantee. Ms Fisher relies on the line of authority to the effect that the Court will not intervene in the affairs of social clubs (at least those of the kind into which she submits Club Marconi falls, where there is no more than a "consensual compact" between members), unless a proprietary right or some other right or interest (such as livelihood or reputation) is affected by a decision of the club (Wilcox v Kogarah Golf Club at p 425; Carter v NSW Netball Association [2004] NSWSC 737; Fitzpatrick v Lithgow and District Workmens Club Ltd [2012] NSWSC 265). In this regard, Ms Fisher draws a distinction between a club that is incorporated as a company limited by guarantee (such as Club Marconi) and associations to which the provisions of the Associations Incorporation Act 2009 (NSW) apply. 45Ms Fisher refers to Wilcox v Kogarah Golf Club as authority for the proposition that, where a company is limited by guarantee, membership is not transferable and there is no proprietary right in the membership. Hence she submits that no proprietary right of Mr Campolongo is affected by the suspension and the onus is on him to demonstrate that some other right or interest is affected in order for the Court to exercise its discretion to entertain the present claim for relief. (In that regard, Ms Fisher notes that Mr Campolongo has not adduced any evidence that his reputation has suffered as a result of the 2010 suspension and that there is no evidence that the 2010 suspension was published to members of Club Marconi or received any publicity in the local or metropolitan media. Indeed, when the proceedings were before Rein J it was noted for Club Marconi that there was no intention for there to be any publication of the suspension pending determination of the disciplinary proceedings.) 46Mr Campolongo, in his 20 June affidavit has deposed to his perception that the 2010 suspension (which he notes was "without [his] knowledge") has affected his reputation and standing. He deposes that he was awarded an OAM in 2004 for work with charities and has been working with charities for about 30 years. He also deposes to his former position as President of Club Marconi for 10 years and his directorship with the club as well as his position as Mayor of Fairfield Council from 1994 to 1995. Those are matters from which I am asked to infer that a suspension from Club Marconi would cause (or has caused) damage to his reputation. There is, however, no indication in the affidavit as to the basis on which Mr Campolongo feels that his reputation and standing have been affected by a suspension that there is no evidence was made publicly known. 47Mr Sneddon invokes the principles outlined in Rana & Ors v Survey & Ors [2012] NSWSC 439, where Pembroke J (at [9]-[11]) stated: The contractual nature of the rights of members in an unincorporated association is enshrined by s 26(1) of the Associations Incorporation Act 2009: 26 Nature of association (1) Subject to this Act, as association's constitution binds the association and its members to the same extent as if it were a contract between them under which they each agree to observe its provisions. The need for scrupulous adherence to the precise language of the provisions of the constitution of an unincorporated association explains why it is often said that the power to suspend or expel "must be exercised strictly in accordance with the procedures laid down in the club's constituent statute": Samuel v St George Leagues Club Ltd (unreported, NSWSC, 20 October 1992, Powell J). There are many well-known authorities to this effect, all of which I endorse. They include Goodwin v Vietnam Veterans Motor Cycle Club Australia NSW Chapter Inc (2008) 72 NSWLR 224 at 233; Hornby v Narrandera Ex-Servicemen's Club Ltd [2001] NSWSC 235 at [8], [9] and [10]; McClelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759 at [74] and Gates v Vickery (1973) ACLC 27,517 at 27,519 (Street CJ in Eq). 48In Goodwin, White J, rejected a submission that (although s 11(2) of the Associations Incorporation Act 1984, (NSW) deemed there to be mutual covenants between members of an incorporated association for the provisions of the rules to be observed) it should be inferred from the social and recreational nature of the association there before him that such mutual covenants, whilst consensual, were not intended to give rise to legal relations. White J held that if there was a contractual relationship between the association and its members then the dispute before him was justiciable. At [34], his Honour said: ...Section 11(2) not only provides for the rules to be binding, but for them to be binding to the same extent as if all members had given covenants under seal to observe the provisions of the rules. A covenant under seal, that is by deed, is the most solemn act a person can perform with respect to a piece of property or other right: Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361 at 369. 49His Honour referred to the decision of Campbell J (as his Honour then was) in McClelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759 at 788 [109] as to the effect of s 11(2): As well, s 11(2) has an effect which cuts two ways concerning an expulsion from the club. So far as a member is concerned, he or she has the benefit of a deemed covenant with each other member to observe all the provisions of the rules, which has as a consequence a contractual obligation on each member not to expel any other member save in accordance with the rules. As well, though, that covenant has the consequence that someone in the position of Mr McClelland covenants with the other members that, if the procedures of the rules are followed for an expulsion, he will be bound to treat that expulsion as an effective one. These mutual contractual obligations are ones which would be cut down or varied only to the extent to which there was some contrary public policy (meaning thereby a public policy of the type which can override contractual obligations), or if there was some equity which precluded the parties to the contract from relying on their strict contractual rights. As I have earlier held, the rules of natural justice are not, in their application to domestic tribunals, rules which operate as a matter of public policy of a kind incapable of being varied by contract. No equity to prevent the provisions of the deemed contract between the members being relied upon has been asserted in the present proceedings. noting [at 36] that Campbell J had treated s 11(2) as creating contractual obligations on each member and that in Rose v Boxing NSW Inc [2007] NSWSC 20 at [57], Brereton J had similarly referred to there being a deemed contract on the terms of the constitution between an incorporated association and its members. 50White J went on to conclude that because (irrespective of the actual intentions of the members or of the nature of the incorporated association), the relevant section deemed a contract to have come into existence between, inter alia, the members of the association, the dispute was justiciable. It was therefore unnecessary to consider whether in any event the dispute would be justiciable because it would involve some diminution of rights of property, livelihood, trade or reputation ([38]). His Honour also noted at [43] that: ... Strict compliance with such rules [there, the procedures for dismissal of a member] is essential: see Hornby v Narrandera Ex-Servicemen's Club Ltd [2001] NSWSC 235 at [8], [9] and [10] and cases there cited; and McClelland v Burning Palms Surf Life Saving Club (at 799 [74]). 51In Rana & Ors v Survery Pembroke J, in the paragraph preceding the passage extracted earlier, said at [8]: Powers of expulsion prescribed in the constitutions of unincorporated associations should be construed carefully, with circumspection, and certainly no more broadly than the ordinary and natural meaning of the language necessitates. That is because rights of membership of unincorporated associations are often of unique value to the member concerned. Sometimes they are of cultural and social significance. Sometimes their importance to a particular member is intangible but nonetheless of considerable value for that member's identity, wellbeing and social status. For those reasons, when a person joins an unincorporated association, he or she is entitled to expect that the provisions of its constitution, particularly those relating to expulsion, will be faithfully and scrupulously adhered to. And this is more than a legitimate expectation. It is a contractual right which a member is entitled to have specifically performed. 52Strict compliance with a club's constituent statute, when exercising a power to suspend or expel, was earlier emphasised in Hornby v Narrandera Ex-Servicemen's Club Ltd [2001] NSWSC 235 by Hamilton J (at [9], referring to the judgment of Street CJ in Eq in Gates v Vickery (1973) ACLC 27,517 at 27,519). In the passage extracted by Hamilton J, his Honour made reference to the commentary in Halsbury's 3rd ed, Vol 5, p262. Relevantly, Street CJ there observed that, while the general observations as to the need for strict conformity with the rules by which a power of expulsion was given were made in the context of the rules of clubs and the case before him involved a club incorporated as a company, "the principles that have grown up surrounding clubs provide guidance by analogy to the construction and application of articles of association of incorporated companies that are in truth and substance clubs". 53The relevant provisions of the Associations Incorporation Act 1984 (NSW) (which were considered by White J in Goodwin) and its successor legislation (which were considered by Pembroke J in Rana) apply to associations as defined in the said legislation. In the present case, Club Marconi is neither an unincorporated association nor an incorporated association to which those provisions apply. 54In the 1984 Act, an incorporated association is defined in s 3 as meaning an association (that term including a society, club, institution or order body) or other body "incorporated under this Act". In the 2009 Act, s 4, "association" means an association registered under that Act. 55Club Marconi was not incorporated under the 1984 Act nor is there evidence that it was registered under the 2009 Act. 56Under the 1984 Act, there is provision for a company limited by guarantee, within the meaning of the Corporations Act 2001 (Cth), to apply for incorporation under that Act where the company satisfies the criteria specified in s 48 of the Act (one of which is that the company has rules that comply with the Act or, upon incorporation under the Act, that will so comply, whether by reason of the adoption of new rules or the model rules or the alteration of its articles of association or former rules). The effect of incorporation is set out in s 15 of the Act. In the case of a certificate granted under s 48, the persons who, immediately before that date, were the members of the company or society in respect of which the application under that section was made, together with any other persons who from time to time become members of the incorporated association (as from the time they become members), are an incorporated association by the name set out in the certificate (subject to any change of name effected by the issue of a new certificate of incorporation under section 14 (5)). There is no evidence that any application under s 48 of the 1984 Act has ever been made by Club Marconi. 57Under the 2009 Act, there is provision for the registration under that Act of a registrable corporation. The term "registrable corporation" is defined as meaning, inter alia, (b) "a company registered under the Corporations Act 2001 of the Commonwealth", including "any other entity that is constituted as a body corporate pursuant to registration under a corresponding law". Pursuant to s 9, an association that arises from the registration of a registrable corporation "is a continuation of, and the same legal entity as, the registrable corporation". There seems little doubt that Club Marconi is a "registrable corporation" for the purposes of this legislation. However, there is no evidence that it has ever become registered under the 2009 Act. 58Each of s 11 of the 1984 Act and s 26 of the 2009 Act in its terms applies to an "incorporated association" or "association", respectively. Neither applies to a company not incorporated (or registered) under the relevant legislation. (The other difference between the respective provisions is that the earlier legislation refers to "the rules" of the incorporated association binding the association and its members; whereas the later legislation refers to an association's constitution binding the association and its members to the same extent as if it were a contract between them under which they each agree to observe its provisions). 59Close attention must be paid to the constituent documents of the association (or company) before reaching a conclusion as to whether there is no more than a consensual compact in the sense considered in the Wilcox line of cases or a binding contract akin to that considered in the Goodwin line of cases. 60The relevant provisions of the Companies Act 1936 (NSW), pursuant to which Club Marconi was incorporated, are as follows: 22 (1) Subject to the provisions of this Act, the memorandum and articles shall, when registered, bind the company and the members thereof to the same extent as they as if they respectively had been signed and sealed by each member, and contained covenants on the part of each member to observe all the provisions of the memorandum and of the articles. (my emphasis) (2) All money payable by any member to the company under the memorandum or articles shall be a debt due from him to the company, and shall be of the nature of a specialty debt. ... 28 (1) On the registration of the memorandum of a company the Registrar-General shall certify under his hand that the company is incorporated, and in the case of a limited company that the company is limited, and in the case of a proprietary company that the company is a proprietary company. (2) From the date of incorporation mentioned in the certificate of incorporation, the subscribers of the memorandum, together with such other persons as may from time to time become members of the company, shall be a body corporate by the name contained in the memorandum, capable forthwith of exercising all the functions of an incorporated company, and having perpetual succession and a common seal, but with such liability on the part of the members to contribute to the assets of the company in the event of its being wound up as is mentioned in this Act. 61In Wilcox v Kogarah Golf Club the company in question was described by Young J (as his Honour then was) as a company limited by guarantee duly incorporated under the Corporations Law. It was incorporated in 1928. The constitution of that company was the Memorandum and Articles of Association registered with the appropriate Government department, under which power was conferred on a committee of the Club to make Rules and By-Laws. The company's articles contained a provision permitting exclusion from membership of any member who committed a breach of any of the articles or the rules or by-laws and whose conduct was deemed by the committee to render such member unfit to be a member of the Club (and set out the procedure by which a resolution so to exclude a member was to take place). The relevant by-laws then provided for exclusion or suspension for club membership and the conduct required of members. At p 425, his Honour noted: The plaintiff is given rights under s 180 of the Corporations Law with respect to the observance of the constitution of the company as if there were a contract by deed under which the company and each members agreed to observe and perform the provisions of that constitution. "Constitution" in s. 180 would seem only to mean the memorandum and Articles of Association. The plaintiff in the instant case complains that his rights under the By-Laws have been breached. It does not seem to me that s. 180 applies to the By-Laws. 62His Honour there drew a distinction between the constitution of the company and by-laws made under powers conferred by the company's constitution. As to the latter, his Honour considered the position to be that as considered in Frackelton's Case (1909) 8 CLR 673 at 696, namely that a right under a consensual compact that might in some circumstances be able to be enforced but not in the same category as ordinary contractual rights. His Honour observed that ordinarily, "the parties to the consensual compact have agreed to be bound by the guidelines and have agreed that they will behave according to the guidelines but have never agreed that one or other of them can sue each other for damages if there is a breach. His Honour recognised exceptions in the authorities to that principle: the first if there is an expulsion the matter may be of such great moment that the court may intervene; the second if there is prejudice to a person's livelihood or income and the third "where equity has to act in quiet title where there is a disturbance which cannot be solved unless the Court grants its aid". 63In Carter, Palmer J considered whether a complaint of denial of natural justice arising from the exclusion of the plaintiff from membership of a voluntary association was justiciable; the submission there being made (reliant upon Cameron v Hogan (1934) 51 CLR 358) that the complaint was not justiciable because it arose out of the internal affairs of a voluntary association and did not involve property rights. His Honour, noting that the law in this area had "moved on" since Cameron, said at [101] - [103]: It has long been established that the Courts will intervene in the decisions of voluntary or domestic tribunals if the proceeding has not been conducted in good faith and honestly. There are many manifestations of lack of good faith or honesty: they include failure to accord procedural fairness, decisions which are absurd or unreasonable, decisions "contrary to fundamental principles of common justice" and decisions for which there is no evidence: see Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546 at 568-569 per Hayne JA and the cases there cited. For some time the Courts usually declined on discretionary grounds to interfere in the decision of a domestic tribunal, even if the decision was made in bad faith or dishonestly, unless the plaintiff's property rights were affected. It was thought that the Courts should not be concerned with merely social or voluntary arrangements but if property rights were involved then the Court would act: see Cameron v Hogan (above). Later, the law came to recognise that a person's livelihood might depend upon membership of a voluntary association so that if a decision of a domestic tribunal expelling the person from membership was made without good faith or dishonestly, the Court would intervene: see eg Lee v Showmen's Guild of Great Britain [1952] 1 QB 329 at 343; Mitchell v Royal New South Wales Canine Council Ltd (2001) 52 NSWLR 242 at 246; Australian Football League v Carlton Football Club (above). 64His Honour considered that the direct effect on the plaintiff's reputation of the disciplinary committee's decision (and its indirect effect on her livelihood) was sufficient to warrant the exercise the Court's discretion in favour of intervention. (There, the reputational damage was that the decision of the disciplinary committee had led to the entry of the plaintiff's details into a statutory database of those charged with child abuse.) 65More recently, and in a great number of respects on all fours with the present case, are the facts considered by Hallen ASJ in Fitzpatrick. As in the present case, the Club was a company limited by guarantee. There it was formed under the Companies Act 1961. It was a registered club for the purposes of the Registered Clubs Act 1976. 66The rules of the Club were contained in its constitution and the objects of the Club were not dissimilar from those in the present case. The constitution provided for the creation of sections and committees for the conduct management and control of games or sporting activities, one such section being the Bowling Club, which had its own rules and its own committee; and collected annual subscription fees from those members of the Club who joined the Bowling Club. The plaintiff was a life member of the Club and had been, at various times, a member of the Bowling Club. The rules of the Club were contained in its constitution and those included a disciplinary procedure very close to that in the present case. The Bowling Club also had a set of rules. 67Hallen AsJ considered, first, the question whether the plaintiff's removal and suspension from membership of the Club was justiciable. His Honour referred to what was said in Wise v Perpetual Trustee Co Ltd [1903] AC 139 at 149 as to the nature of the association comprised by a club: Clubs are associations of a peculiar nature. They are societies the members of which are perpetually changing. They are not partnerships; they are not associations for gain; and the feature which distinguishes them from other societies is that no member as such becomes liable to pay to the funds of the society or to any one else any money beyond the subscriptions required by the rules of the club to be paid so long as he remains a member. It is upon this fundamental condition, not usually expressed but understood by every one, that clubs are formed ... 68From [89] his Honour considered the question whether the issue before him was justiciable, noting that neither party had pointed to anything in the constitution of the Club that suggested that the constitution is intended to be legally binding; nor to any clear positive indications that the members contemplated the creation of legal relations. The submission that was made by the Club in that case was that the plaintiff's relationship with the Club was consensual, and not contractual, and that, on the basis that his removal and suspension involved no diminution of, or damage to rights of, property, livelihood, or trade, in the events that had occurred his removal and suspension from membership (whether in accordance with the constitution or not) gave rise to no legally enforceable right. As can be seen, the argument of Club Marconi in the present case is not dissimilar. 69At [91], his Honour noted that: Although the term was not used, the effect of the submission was that there was a "consensual compact", which the members of the Club agreed to observe without affording each other contractual rights and remedies. (Palmer J, in Carter v NSW Netball Association [2004] NSWSC 737, at [85]-[86], referred to the phrase "consensual compact" being used by Priestley JA in Scandrett v Dowling (1992) 27 NSWLR 483, at 513, and by Young J (as his Honour then was) in Wilcox v Kogarah Golf Club Ltd (1995) 14 ACLC 421, at 425, "to describe the status of rules or procedures which, construed in their context and with regard to their purpose, can be seen as adopted by the members of a non-profit organisation in order to express their shared ideals, purposes or beliefs rather than in order to create contractually binding rights and duties enforceable in a court of law", and at [92] noted that there was some support for the view that the relationship of the parties was consensual (referring to McManus v Lithgow and District Workmen's Club Ltd (NSWSC, 25 May 1981, unreported) where Helsham CJ in Eq had said, at 3, that the jurisdiction possessed by a domestic tribunal of the kind there involved rested on a consensual basis). Helsham CJ in Eq there noted that the tribunal's powers in that case stemmed from the contract between each member of the club and other members and the club itself constituted by the Memorandum and Articles of Association, and any rules made in pursuance of any power given to make rules. 70Hallen AsJ noted, at [93], the observation by Salmond J in Henderson v Kane and the Pioneer Club [1924] NZLR 1073 at 1075 as to the different kinds of social clubs, one such kind being incorporated clubs about which it was said: ...An incorporated club, in the third place, is intermediate in its nature between a members' club and a proprietary club. The premises and property of the club are not vested either at law or in equity in the individual members. Nor are they vested in a mere stranger who has no other than a contractual relation with the members. They are vested in the body corporate of the members themselves. The precise nature of the legal relationship so constituted between the individual members and the incorporated body, and between one individual member and another, doubtless depends to some extent on the provisions of the particular statute under which the incorporation has taken place. (my emphasis) 71His Honour also referred to Dixon v Australian Society of Accountants (1989) 95 FLR 231; 87 ACTR 1, where it was held that the principles espoused by the High Court in Cameron v Hogan (which involved a dispute between members of an unincorporated association) do not apply to persons who become members of a company limited by guarantee; that a similar view was expressed in Zusman v Royal Western Australian Bowling Association (Inc) [1999] WASC 86 at [7]-[9]; and that in Western Australia in Rush v WA Amateur Football League (Inc) [2007] WASCA 190; (2007) 35 WAR 101, the Court of Appeal in Western Australia held that in the particular circumstances of that case "...in the absence of any property, income or reputational interests, this Court has no jurisdiction to decide issues arising out of the consensual but non-contractual relationship between the parties". (As White J noted, in Rush, the plaintiff was not a member of the association and hence the question as to whether there was a contract that arose on the terms of the Club's constitution did not arise.) 72In Fitzpatrick, his Honour concluded that, (subject to discretionary considerations relevant to the making of such orders and declarations as were there sought), the right that the plaintiff had as a Club life member to use the sporting and other facilities of the Club (whether or not that right included the use of the bowling greens whilst he was disqualified from the Bowling Club) was a right of property, or sufficiently related to his property rights, to justify the court's power to hear and determine the proceedings ([106]) and that, in addition, the issue of the plaintiff's removal and suspension gave rise to his "reputational interests" ([107]). His Honour noted that in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 578, the majority had said: It has long been accepted that reputation is an interest attracting the protection of the rules of natural justice. Thus, over a century ago, Jessel MR said in Fisher v Keane (1879) 11 Ch D 353) "according to the ordinary rules by which justice should be administered by committees of clubs, or by any other body of persons who decide upon the conduct of others, [they ought not] to blast a man's reputation forever - perhaps to ruin his prospects for life, without giving him an opportunity of either defending or palliating his conduct" 73At [108], Hallen AsJ expressed the view that even if the company's Constitution provided consensual rather than contractual rights, the decision to remove and suspend the plaintiff did have, or may have had, an effect on the plaintiff's property rights, or reputation (albeit that the suspension was an interim one, pending the plaintiff being given the opportunity for a full and fair hearing) and that this was sufficient to warrant the Court hearing and determining the matter. His Honour was therefore satisfied that there was a justiciable issue before the Court (his comments as to the consensual compact/contract issue strictly being obiter). 74Here, the status of Club Marconi's constitution derives not from the incorporated associations legislation (which is inapplicable having regard to the manner in which the club was incorporated) but, rather, from the relevant companies legislation. As noted earlier, under the 1936 companies legislation, an incorporated company's memorandum and articles have contractual force. It is apparent from the content of the Constitution of Club Marconi (on the fore page headed Memorandum and Rules) that this is not the original constituent document of the club (since it refers in the definitions section to the 2001 Corporations Act and there are references to that Act in the Rules). The copy of the Constitution in evidence before me also includes reference to it having been approved by special resolution at a general meeting on 20 May 2007. 75Relevantly, the status of the Constitution of Club Marconi (namely whether it constitutes a binding contract between the Club and its members) is to be determined by reference to the operation of successive iterations of company legislation. 76The Companies Act 1961 (NSW) repealed the Companies Act 1936 (NSW). Section 4 of the 1961 Act made provisions for the continuation of companies registered under the 1936 Act (as an Act listed in the First Schedule to the 1961 Act), including (in the absence of contrary intention in the Act) pursuant to s (4(2)(b) that all rules made under the authority of the 1936 Act, and being in force at the commencement of this Act, were deemed to have been made under the authority of the 1961 Act, and references in those rules to the provisions of the 1936 Act were to be construed as references to the corresponding provisions of the 1961 Act. Pursuant to 4(2)(c) any memorandum or article made and every registration duly effected, or deemed to have been duly effected, and any other or thing done under and in accordance with any provision of the 1936 Act, in force and operative at the commencement of the 1961 Act, was deemed to have been duly made or effected under the 1961 Act. Pursuant to s 4(3), the incorporation of Club Marconi under the 1936 Act was not affected by the repeal of that Act. 77In 1981, when the uniform companies legislation scheme was introduced by the enactment of the Companies Act 1981 (Cth), which was to be read in conjunction with the relevant State Companies (Application of Laws) Act 1981, section 6 of the NSW 1981 Act applied the provisions of the 1981 Commonwealth legislation as laws of New South Wales (s 18(2) of the NSW 1981 Act containing relevant transition provisions). 78Section 78 of the 1981 Commonwealth Act concerned the effect of the memorandum and articles of a company and provided, relevantly, that: 78 Effect of memorandum and articles (1) Subject to this Act, the memorandum and articles, when registered, bind the company and the members of the company to the same extent as if they respectively had been signed and sealed by each member and contained covenants on the part of each member to observe all the provisions of the memorandum and of the articles. 79A new uniform scheme was later introduced in 1989 by the Corporations Act 1989 (Cth). The provisions of that Act were applied in New South Wales by the Corporations (New South Wales) Act 1990. 80Under that legislation, constitution was defined as: constitution means (depending on the context): (a) a company's constitution, which (where relevant) includes rules and consequential amendments that are part of the company's constitution because of the Life Insurance Act 1995; or (b) a managed investment scheme's constitution; or (c) in relation to any other kind of body: (i) the body's charter or memorandum; or (ii) any instrument or law (other than this Law) constituting, or defining the constitution of, the body or governing the activities of the body or its members. 81Sections 136 and 140 further provided, in relation to a company's constitution, that: 136 Constitution of a company (1) A company adopts a constitution: (a) on registration-if each person specified in the application for the company's registration as a person who consents to become a member agrees in writing to the terms of a constitution before the application is lodged; or (b) after registration-if the company passes a special resolution adopting a constitution or a court order is made under section 233 that requires the company to adopt the constitution. Note 1: The memorandum and articles of a company immediately before the commencement of this Part are taken together to make up the company's constitution after commencement (see section 1414). 140 Effect of constitution and replaceable rules (1) A company's constitution (if any) and any replaceable rules that apply to the company have effect as a contract: (a) between the company and each member; and (b) between the company and each director and company secretary; and (c) between a member and each other member; under which each person agrees to observe and perform the constitution and rules so far as they apply to that person. ... 82The Cth 1989 Act was repealed by the Corporations (Repeals, Consequentials and Transitionals) Act 2001 (Cth), which commenced at the same time as the Corporations Act 2001 (Cth). Unlike the previous uniform legislative scheme, the 2001 Act applies in New South Wales (among other States) by virtue of power referred by New South Wales to the Commonwealth. The Corporations (Ancillary Provisions) Act 2001 (NSW) gave effect to the 2001 Act by s 6. The effect of that provision was that the previous scheme (the Corporations Law) was preserved with respect to matters arising before the 2001 Act came into effect. 83The relevant provisions of the 2001 Act (those being the definition of constitution in s 9 and the provision as to the effect of the constitution in s 140) are identical to those contained in the Corporations Law. It is under that legislation that the present constitution of Club Marconi was adopted. 84As a result of the legislative regime applicable to Club Marconi as outlined above, I am satisfied that, by parity with the reasoning in the incorporated association cases (where the deeming of the constitution or memorandum and articles as a contract between members provides the basis for the Court's intervention whether or not proprietary rights or reputational interests are affected by the decision in question), there is before me a justiciable issue. The Constitution that was approved by special resolution in 2007 operates so as to have effect, inter alia, as a contract between each of the members and between the company and each member. 85Had that not been the case (say, if the decision was one made under a by-law that did not form part of the statutory contract between members) and thus had it been necessary to identify a proprietary right or interest that was affected (or to show that Mr Campolongo's livelihood or reputation were or might be affected) by the 2010 suspension, I would have concluded that this Court should not intervene in what on that hypothesis would have been no more than a consensual compact between the members of a social club. That is because I am not satisfied that the present is a case where reputational damage should be inferred simply because Mr Campolongo has in the past held public office (or office within the club itself) or has been the recipient of honours conferred on him (at least not in circumstances where there was no evidence of publication of the suspension beyond the membership of the Board itself). Ms Fisher submits (and I accept) that there is no evidence that anyone other than Mr Campolongo (or, I should interpose, the Board itself) ever realised that he had been suspended. Was the disciplinary power properly invoked? 86As to the question whether the 2010 suspension was legally effectual, Mr Sneddon notes that there was no real issue raised as to compliance with the procedure under the constitution of Club Marconi. He submits that, if the constitution is a binding contract, then there was a breach of that contract (whether or not it was intentional and whether or not it was, to use Ms Fisher's words, an heinous breach). 87Mr Sneddon points to Mr Campolongo's evidence that he was not notified by Club Marconi of any charge against him (by notice in writing setting out the facts, matters and circumstances giving rise to the charge) at least 14 days before the meeting of the Board at which such charge was to be heard or at all (as required by Rule 47(a)); was deprived the opportunity to attend the hearing of the charge for the purpose of answering the charge; and was not informed prior to the 29 November 2010 letter of the Board's decision to suspend him and hence was not informed prior to the Board considering imposing a penalty against him (as required by Rule 47(e)); and was not given the opportunity at the hearing to address the Board in relation to the penalty proposed to be imposed on him (as required by Rule 47(f)). He submits that, therefore, the 2010 suspension was clearly invalid. 88Club Marconi concedes that, in resolving to suspend Mr Campolongo's membership at a Board meeting in or about November 2010, it did not comply with its constitution. (It is not, however, conceded that Mr Campolongo was thereby denied procedural fairness. In that regard, Ms Fisher points to the two procedures by which a member may be suspended under Rule 47: first, where that is the outcome of a disciplinary proceeding invoked under the Rule; and the second, where there is an interim suspension under Rule 47(h) pending the hearing of a disciplinary proceeding. It is nevertheless conceded that even in relation to the second of those procedures it is first necessary to have resolved to issue a Notice of Charge and it is this that Club Marconi accepts it failed to do before resolving to suspend Mr Campolongo's membership.) (ii) Discretion 89It is submitted by Ms Fisher that the making of the concession noted above does not of itself entitle Mr Campolongo to the relief now sought, since the grant of such a declaration is a matter in the exercise of the Court's discretion. Ms Fisher submits that the Court should not exercise its discretion to grant the declaratory relief sought for the following reasons: delay on the part of Mr Campolongo in seeking this relief; the lack of utility in any such relief; and the availability of an alternative process to determine Mr Campolongo's claims in relation to the suspension of his membership (relying on Wilcox v Kogarah Golf Club). I consider each in turn, noting at the outset that the power to grant declaratory relief is very broad (it being described in Hanson v Radcliffe Urban District Council [1922] 2 Ch 490 at 507 as almost unlimited). Hallen AsJ in Fitzpatrick noted at [110] that, in Sutherland Shire Council v Leyendekkers [1970] 1 NSWR 356, Street J, as his Honour then was, at 361-362, said: The power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration. (my emphasis) 90In Sutherland, his Honour also noted, at 363, that there was an "almost unlimited variety of disputes" that had been resolved by the grant of declaratory relief "in many of which there was either no occasion to grant, or no jurisdiction to grant, effective consequential or substantive relief". Delay 91As to the question of delay, Ms Fisher notes that Mr Campolongo allowed over 12 months to go by before he challenged the 2010 suspension (and a further 2 months before he commenced these proceedings). He did not take any action to seek legal advice for at least 3-6 months after receipt of the November 2011 letter. (As to the conduct of the proceedings since instituted, there were opposing assertions as to the responsibility for delay and I do not propose to dwell on those.) 92In Kogarah, the plaintiff's application was made after he had fully served the imposed suspension (and some 8 months after he had obtained legal advice). His Honour noted that the plaintiff had also twice had the matter ventilated at general meetings of the members of the Club. Young J said: A person who seeks a declaration needs to show that the declaration is of utility at the time when the Court makes its order. There are some cases where the Court has granted a declaration after a suspension has been served if it can see that a real question is involved and the Court's decision will give some practical guidance. Thus in Merricks v Nott-Bower [1965] 1 QB 57 the police had been transferred in 1957 and in 1963 those police successfully sought declarations that their transfer was contrary to natural justice. That, however, is an exceptional situation and ordinarily the Court will hesitate to find that there is any utility in making a declaration particularly well after a period of suspension has been served. (my emphasis) Again, the Court does not make a declaration where there are other avenues of dealing with the matter nor where a party has let time go by before making his or her application. Again, these are discretionary matters but the Court only makes a declaration where it can see that there is some practical utility at the time when a declaration is made in intervening. (my emphasis) 93Ms Fisher notes that there was in that case no consideration as to whether there had been prejudice as a result of the delay, it was simply stated that in the exercise of discretion in these matters delay on the part of the plaintiff is a relevant matter to take into account. Ms Fisher also refers to what was said by the Court of Appeal in Castle v Director General State Emergency Service [2008] NSWCA 231 at [18]: Two factors militate against a grant of relief. First, the proceedings were neither instituted nor prosecuted expeditiously. The time limit of six months which derived originally from s 5 of Act 13 Geo 2, c 18 of 1740 (UK), and is now found in the High Court Rules, r 25.06.1, no longer applies in this jurisdiction. Nevertheless, delay in seeking relief, will often be relevant as a discretionary basis for declining to grant relief. In the present case the Director-General did not demonstrate prejudice flowing from the delay and it was not relied upon as a sufficient reason in itself for rejecting the application: cf Miah at [107] (Gaudron J), [152]-[153] (McHugh J) and [224] (Kirby J). Rather, delay was treated as a factor to be taken into account with a second reason, namely the inutility of relief were it to be provided so late in the day. (my emphasis) 94Ms Fisher notes that there was no suggestion in that case that prejudice on the part of the defendant was necessary before consideration could be given to delay on the part of the plaintiff (though there was a recognition that prejudice had not been demonstrated). 95Reliance is also placed on Rivers v Bondi Junction-Waverley RSL Sub-Branch Ltd (1986) 5 NSWLR 362, where the Court of Appeal addressed discretionary considerations as follows: This is not, however, an end of the matter. There were a number of discretionary considerations upon the basis of which his Honour would have been entitled to dismiss the appellant's proceedings. They include first, the delay of six months, in an electoral period of twelve months, before the proceedings were instituted. This delay might be explained, in part by the efforts made by the appellant, through his solicitors, to procure an initiative by the board itself. But the refusal of the board to take the step of approaching the Court urged by the appellant was clear in June 1983. Yet proceedings were not commenced for a further three months. As elections were held at annual rests, and as half of the year had already expired when the proceedings were commenced, this delay was significant. Secondly, the judgment of Powell J was delivered in March 1984, ie, at the very end of the year for which the Directors were elected. Accordingly, by the time his Honour's conclusion was announced, a fresh election was presumably being held. The validating provisions of the article of association made the intervention of the Court unnecessary at the time its orders were pronounced. Thirdly, the appellant's counsel properly informed the Court that a still further election had been held in 1985 which the appellant conceded was strictly in accordance with the relevant requirements of the articles and resolutions of the board. Accordingly, it could not be said that the intervention of the court was necessary, at least by the time the matter was before this Court. Indeed, it was conceded that at that stage the issue was purely hypothetical. No relief was necessary or could achieve any practical objective. The intervention of the court in the internal affairs of corporations should normally be confined to cases where a practical result can be achieved. It is undesirable that the beneficial remedy of declaratory relief should be used to justify the court's intervention in the internal affairs of corporations, taking up the public time of the courts and the private time of the corporation and its officers, in the scrutiny of matters of no practical consequence. By the time Powell J delivered his judgment, any value in the intervention of the court in this corporate club's election for 1983 had passed, by the effluxion of time. A new electoral period had commenced. New elections had been held. The scrutiny of a previous election and its outcome was rendered otiose by a combination of the passage of time and the validating provision of the articles. Having regard to the discretionary nature of the relief sought and to the discretion provided in the Companies (New South Wales) Code, s 539(6)(a)(iii), upon which, inter alia, it was proposed that the Court should act, it was open to Powell J to decline relief on the basis that it was unnecessary and would serve no practical purpose. The intervention of a further election, with the added consideration that it was conceded to have had no defects, makes doubly inappropriate the provision of relief at the hands of this Court. (my emphasis) 96As to delay, Mr Sneddon submits that (apart from the fact that Mr Campolongo gave a reason for the delay), no prejudice has been shown to Club Marconi by reference to the delay and he relies on the statement of principle in Orr v Ford (1989) 167 CLR 316 by Deane J as to the defence of laches: The availability of a defence of laches and what will suffice to make it good depends upon the nature of the claim. Laches is an equitable defence and is not available in answer to a legal claim. 97In the context of considering what might amount to "gross laches", as that term had been used in claims involving express trusts, Deane J went on to say: On balance, the preferable approach is to treat the phrase "gross laches" as an intentionally imprecise one which involves not merely considerations of the period of the relevant delay but which invokes the traditional notions of equity and good conscience which are the general determinants of whether a plaintiff should be refused relief by reason of laches in the circumstances of a particular case. On that approach, the phrase refers to circumstances where inaction or standing by (with knowledge) by a plaintiff over a substantial period of time assumes an aggravated character in that it will, if the plaintiff is granted the relief which he seeks, give rise to serious and unfair prejudice to the defendant or a third party. So understood, the use of the phrase "gross laches" does little to aid in the identification of particular circumstances in which a defence of laches will preclude relief being granted to a beneficiary in an action for the enforcement of an express trust. The ultimate test effectively remains that enunciated by Lord Selborne L.C. (not, as is often said, Sir Barnes Peacock (see Errata)), speaking for the Privy Council, in Lindsay Petroleum Co. v. Hurd, namely, whether the plaintiff has, by his inaction and standing by, placed the defendant or a third party in a situation in which it would be inequitable and unreasonable "to place him if the remedy were afterwards to be asserted": see Erlanger v. New Sombrero Phosphate Co., and also, per Rich J., Hourigan. Ordinarily, it is difficult to envisage circumstances, falling short of waiver, release, election or estoppel, in which the laches of a beneficiary would produce a situation in which it was inequitable and unreasonable to grant relief in proceedings for the enforcement of an express trust in relation to trust property which remained in the possession of the trustee (or his personal representative). There are, however, at least two categories of case where that is not so. ... The second category is where prejudice to third parties, such as other beneficiaries, is involved. In the first category of case, unreasonable delay in instituting proceedings to enforce the claim may of itself give rise to the serious and unfair prejudice necessary to constitute "gross laches" in that it may bring about a situation in which the means of resisting the claim, if it be unfounded, have perished: see, e.g., Attorney-General v. Fishmongers' Co.; Brunyate, op. cit., p. 234. In determining what constitutes "unreasonable delay" regard must be had to all the circumstances, including the nature of the claim and the conduct of the parties (cf. Whereat v. Duff). ... In the second category of case, regard is paid to the prejudice which would be caused to third parties in assessing whether the plaintiff's laches has brought about a situation in which it would be inequitable and unreasonable to grant the relief which he seeks: see Bonney v. Ridgard. (footnotes omitted) 98It is submitted by Mr Sneddon that there is no prejudice or change of position of Club Marconi by reason of the 12 months which elapsed between the notification of suspension and the correspondence putting in issue the invalidity of the suspension resolution or the subsequent Court proceedings. 99However, while I accept that Orr v Ford requires regard to be had to the prejudice occasioned by the relevant delay when a question of laches arises, I do not accept that the consideration that may be given, as a discretionary factor, to the question whether a plaintiff has delayed in seeking declaratory relief (to which reference was made in Kogarah) involves an application of the equitable defence of laches and hence the lack of prejudice to the Club from the present delay does not preclude consideration of this as a factor going to whether the discretion should be exercised to grant the declaratory relief now sought. 100Mr Sneddon submits that this is not a case where Mr Campolongo has sat on his hands in relation to the application for relief. While that seems to be precisely what Mr Campolongo did, at least for the 3-6 months it took for him to seek legal advice, this is not a case where the claim for relief occurred after the suspension had been fully served. (Technically, one might argue that the 2010 suspension was fully served when brought to an end by imposition of a further period of suspension by the 2012 Notice of Charge but ultimately nothing turns on this.) 101Had I otherwise been persuaded that there was utility in the grant of the declaratory relief, I would not have found that the delay in commencing these proceedings should disentitle Mr Campolongo to that relief. 102For completeness, I note that there is another sense in which delay in commencing the proceedings for declaratory relief might arguably be relevant (and I adverted to this in the course of argument). In the context of applications for interlocutory relief, the speed with which a plaintiff seeks relief has been recognised as an indicator of the seriousness of the alleged infringement of rights (Capgemini US v Case [2004] NSWSC 674 at [40]). In Capgemini, Campbell J, as his Honour then was, there said: If interlocutory relief is to be sought, it should always be sought promptly: Zuellig v Pulver [2000] NSWSC 7 at [36] - [37]. The court is always entitled to use, as a litmus test of the seriousness of the infringement of a plaintiff's rights which is occurring, how fast the plaintiff reacts to the infringement of its rights. It is not only as an example of the equitable doctrine of laches that delay is relevant on an application for an interlocutory injunction; it is also as an admission by conduct about how serious the infringement of the plaintiff's rights is. Thus, it is a matter which goes to the balance of convenience and not merely to the question of whether there is a serious question to be tried, which might be met by a defence of laches at the trial. (my emphasis) 103In the present case (though I accept that the present hearing is on a final basis and is not, as was the case in Capgemini, for interlocutory relief), I am asked to infer that reputational damage has been suffered or is likely to be suffered by reason of the 2010 suspension (presumably to be considered in isolation from the subsequent suspension). In those circumstances the delay in seeking relief in relation to that suspension might (by parity of reasoning with that which applied in Capgemini) arguably be seen as an admission by conduct as to the strength or genuineness of any concern as to the damage to Mr Campolongo's reputation, if any, arising out of the suspension. That said, it is not necessary for me to make any finding in this regard, since I have concluded that, irrespective of the import of the delay in the present case (and whether or not it signifies the likelihood or otherwise of any real concern as to reputational damage), the application for declaratory relief should be refused on the basis of the lack of utility of any such relief (as explained below). Lack of Utility 104As to the question of utility, Club Marconi's position is that the Notice of Suspension issued on 29 February 2012 is valid and that, therefore, whatever the position in relation to the 2010 notice, Mr Campolongo's membership is currently suspended. Thus it is submitted that a declaration that the 2010 suspension was legally ineffectual is of little or no utility to Mr Campolongo. (In that regard, as noted earlier, I must proceed on the assumption that, on its face, the Notice is valid and the 2012 suspension is effectual in circumstances where Mr Campolongo has opposed any suggestion that the validity of the 2012 Notice of Charge should be determined in these proceedings.) 105Again, reliance is placed on what was said in Wilcox v Kogarah Golf Club as extracted earlier, namely that a person who seeks a declaration needs to show that the declaration is of utility "at the time when the Court makes its order". 106Mr Sneddon submits that there is utility in "regularising" the situation (namely, the situation where there has been a suspension for 12 months that was imposed in breach of the Club's constitution) and "setting the ledger straight". He submits that his client is entitled to "clear his own name" in relation to the "unilateral" suspension in 2010 and that the position in relation to the new charge is another matter. (It seemed to be accepted that the new charge would lead to a disciplinary proceeding and that it would only be if there were complaint about that proceedings that there would be a further issue (T 6), although it is fair to say that there was some doubt as to whether Mr Campolongo was seeking to preserve an argument that the 2012 Notice of Charge itself was invalid.) 107As to the suggestion that the declaratory relief will "clear" Mr Campolongo's name, that seems to me to overstate the effect of the declaratory relief sought (at least in circumstances where I do not see any basis for the Court to make a declaration that Mr Campolongo "should remain" or "should have remained" a member at any particular time). A declaration as to the invalidity of the 2010 suspension, were that to be granted, does nothing to address the question whether there was a proper basis at that time for the suspension. It would simply amount to a finding that the Club did not validly comply with the procedure contained in the Constitution for the imposition of a suspension. That is a matter that has been expressly conceded by Club Marconi. There is, therefore, no dispute between the parties as to the very matter in respect of which declaratory relief is sought. In my view that is an end to the matter. 108As to the suggested utility of a "clean ledger" (against the background of which any subsequent action could be taken) again I can see no utility in the grant of declaratory relief. There is no basis on which to conclude that the fact of an earlier suspension (be that valid or otherwise) is relevant to whether the charges now levelled at Mr Campolongo are established to the satisfaction of the committee hearing the disciplinary proceedings. Whether or not the initial suspension was valid would seem to have nothing to do with whether or not the later interim suspension was properly imposed (unless it were relied upon in some fashion as indicative of bias or pre-judgment, and no such allegation is now made). 109In Noone, Director of Consumer Affairs Victoria v Operation Smile (Australia) Inc & Ors (No 2) [2011] VSC 153, Pagone J said at [63]: Counsel for the Director submitted that the "courts have consistently rejected arguments about the lack of utility of declaratory relief in cases involving the public interest". It may be accepted that the lack of utility may not be a sufficient reason against the making of declaratory orders where the making of the order is otherwise justifiable, but it is another thing to submit that there has been a consistent practice of rejecting the lack of utility as relevant to the granting of declaratory relief. In Australian Competition and Consumer Commission v Singtel Optus Pty Ltd North J refused to make orders in circumstances where his Honour could see little point in granting the injunction sought. His Honour said: The advertising campaigns are long over. There is little point in granting the injunction sought, even though the court has power to grant an injunction in these circumstances: s 80(4)(a) of the Act. The respondent does not intend to use these advertisements again. The only form of injunction which would be appropriate is that formulated by the applicant at the invitation of the court and set out in [41] of these reasons for judgment. It was produced as a fall back position rather than as the applicant's preferred form of relief. The form of the injunction is directed to the circumstances of the present advertisements. As the context of each advertising campaign is important in determining whether an advertisement is misleading it is more appropriate to await concrete circumstances than to grant an injunction unlikely to address the full context of any future advertisements. In each of the cases relied upon by the Director it was possible to find some utility to the court making declarations of the kind sought. The utility may reside in the court's demonstration that certain conduct will not be condoned or to educate the public, but utility of making orders is a relevant matter in deciding whether or not injunctive relief is otherwise appropriate. In this case I can see no utility in making a declaration in respect of the particular complaint. The declaration in the terms sought would be so particular to the context and text of a website as it was found in the past as to have no further application to anyone beyond the one defendant who no longer makes the statement. (my emphasis) 110In the present case, I do not consider that there is an obvious educational function to be served in making the declarations now sought. 111Ms Fisher submits that, if the 2012 suspension is valid, then Mr Campolongo is currently suspended from the Club and thus that there is no practical utility in granting a declaration that he had been invalidly suspended from November 2010 until February 2012. I agree. (Though it was suggested in the course of oral submissions that there might be the paradox that, if there is in due course a finding of guilt and the question of penalty arises and if the suspension since 2010 has been held to be null and void, consideration might not be able to be given by the Board to the period of suspension that has already been served, I cannot accept that this would be a proper exercise of the Board's power. In other words, it could surely not be appropriate for the Board, having invalidly invoked the procedure to suspend Mr Campolongo in 2010 then to refuse to take into account the very period of time in which Mr Campolongo was (invalidly) suspended in the context of determining what penalty (if any) should be imposed if there is an adverse finding at the end of the disciplinary proceedings. Therefore, I do not accept there is a potential for the suggested paradox to arise.) 112Insofar as the earlier invalid suspension might be relevant (if there were to be an adverse finding at the disciplinary hearing convened by the later Notice of Charge) as going (say) to whether any further period of suspension should be imposed, Mr Campolongo will have the benefit of Club Marconi's express acknowledgement in these proceedings (and now recorded in these reasons) that it failed to comply with the procedures set down in the constitution when it first imposed the suspension (and that the suspension was invalid up until the time at which the February Notice of Charge was issued). 113As an alternative basis for the submission as to lack of utility of relief, Ms Fisher submits that even if the Court were to find that the 2010 suspension (or, for that matter, the 2012 suspension) was invalid and granted the declaratory relief sought, there would be nothing prohibiting Club Marconi from exercising its powers under Rule 47 of the constitution and issuing a further Notice of Charge and notice of suspension to Mr Campolongo, thus rendering the declaration of little or no utility to him. 114In relation to the utility argument, Mr Sneddon invited me to infer that a plaintiff would not usually spend money in litigation unless there were "legitimate issues". He submits that I can conclude that it is obviously of utility to Mr Campolongo to have the matter heard in Court since Mr Campolongo has incurred the cost of engaging lawyers and counsel to debate the claim. I am not satisfied that this is the relevant test. If it were, then the mere fact of commencement of litigation (which ordinarily will necessarily involve expenditure of moneys and exposure to costs) would be sufficient. Furthermore, experience would suggest that the motivation of litigants when commencing legal proceedings may not always be a principled one (though I say nothing as to what the motivation of the particular parties in this case might be). Insofar as Mr Sneddon submits that the test of utility must be partly subjective (in that the litigant considers that there is utility in the declaration), in the absence of authority I have difficulty accepting that a litigant's perception of the utility of relief is determinative (and, in any event, that submission again seems to invite consideration as to how serious Mr Campolongo's concerns can have been in circumstances where he delayed in commencing the proceedings for over 12 months.) 115I accept that the Court has a wide discretion to grant declaratory relief (Hanson v Radcliffe UDC at 507; Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421, at 438; Ibeneweka v Egbuna [1964] 1 WLR 219, at 225; Re Judiciary and Navigation Acts (Advisory Opinions Case) [1921] HCA 20; (1921) 29 CLR 257; Ainsworth at 581, per Mason CJ, Dawson, Toohey and Gaudron JJ). 116I note that in Forster v Jododex it was said (at 435 - 436) that: The jurisdiction to make a declaration is a very wide one. Indeed, it has been said that, "under O. XXV, r. 5, the power of the Court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion": Hanson v. Radcliffe Urban District Council; and see Barnard v. National Dock Labour Board; and Ibeneweka v. Egbuna. ... It is neither possible nor desirable to fetter the broad discretion given by s. 10 by laying down rules as to the manner of its exercise. It does, however, seem to me that the Scottish rules summarized by Lord Dunedin in Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd, should in general be satisfied before the discretion is exercised in favour of making a declaration: "The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought." Beyond that, however, little guidance can be given. As Lord Radcliffe said in Ibeneweka v. Egbuna: After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration. 117That said, it is recognised that if substantive remedies can be sought which will be of more utility than a declaration, then the court should not entertain proceedings for declaratory relief alone. In Coles v Wood [1981] 1 NSWLR 723, Hutley JA, with whom Samuels JA agreed, said (with reference to s 63 of the Supreme Court Act 1970; Neeta (Epping) Pty Ltd v Phillips [1974] HCA 18; (1974) 131 CLR 286; (1974) 3 ALR 151; Trans Realties Pty Limited v Grbac [1975] 1 NSWLR 170; Marra Developments Ltd v B W Rofe Pty Ltd [1977] 2 NSWLR 616; and pointing out that in Lohar Corp Pty Ltd v Dibu Pty Ltd (1976) 1 BPR 9177 the majority had not said otherwise) at 728-9: Where substantive remedies can be sought, the Supreme Court should insist on their being sought in addition to declarations. Where money is owing, a mere declaration is of less utility than a judgment. For example, it does not carry interest, as does a judgment, and will have to be followed by further proceedings to enable the remedies available to a judgment [creditor] to be obtained ... The Supreme Court, in my opinion, should refuse to entertain proceedings for declarations in a case of this kind, unless the appropriate substantive remedies are sought in the proceedings. (my emphasis) 118Ultimately, however, my conclusion does not turn on the absence of any substantive relief now claimed by Mr Campolongo. It rests on the lack of any present dispute between the parties as to the subject matter of the declaratory relief claimed. There is simply no dispute between the parties as to the invalidity of the imposition of the 2010 suspension and hence no utility in the grant of a declaration that would go no further than what is expressly acknowledged by Club Marconi. Availability of alternative process 119As to the availability of alternative process, Ms Fisher submits that (as is now conceded) the charges against Mr Campolongo as set out in the Notice of Charge are matters of substance. She contends that the 2012 charge is valid and the proposed disciplinary proceedings properly constituted and that therefore, it would have been open to Mr Campolongo (and this would have been the better course) rather than commencing these proceedings to follow the process set out in the constitution and allow the hearing of the charges to proceed as scheduled on 27 March 2012. It is noted that he would be entitled to be legally represented in relation to the charges and to be heard, call witnesses and present evidence in relation to the charges; and that if a finding of guilt were to be made, he would also have an opportunity to be heard on penalty. 120It is noted that although before Rein J there was an allegation that the present Board was operating with bias against Mr Campolongo, no evidence has been adduced as to bias. (Ms Fisher informed me that it is proposed that the members of the disciplinary committee that will hear the charges against Mr Campolongo will be differently constituted to the Board that resolved to suspend him in 2010. Ms Fisher also made reference to an offer to Mr Campolongo to hold the hearing of the charges in camera (but where he will have an opportunity to be heard pursuant to Rule 47(b)) and that, if there are findings of guilt, those findings will not be published until Mr Campolongo has had an opportunity to make submissions on penalty (pursuant to Rule 47(f)). Ms Fisher submits that (although there may be reputational damage if there are findings of guilt by the disciplinary committee and a penalty imposed once the outcome of the disciplinary proceedings become known) the requirements of procedural fairness under the proposed procedure will have been satisfied. Those are matters that seem to me to go to any subsequent challenge in relation to the disciplinary proceedings themselves and not to the matters in issue before me. 121Ms Fisher relies on Fitzpatrick at [143] for the proposition that Mr Campolongo's deliberate decision not to utilise the procedure set out in the constitution is a significant discretionary consideration in not granting the declaration sought. In Fitzpatrick, Hallen AsJ noted that: ... The right to put his case at the meeting of the Board or Disciplinary Committee was the means available, under the Club's Constitution, to remedy any grievances arising from what had occurred and to determine any controversy that existed as to the interpretation of the Constitution. and (at [141]) that, on the evidence before the Court there was no reason to conclude that a hearing before the Board, or of the Disciplinary Committee, would have been conducted on an unsatisfactory basis. His Honour accepted that at [143] that: The Constitution provides a procedure for the Club and members to follow. ... The existence of the available procedure set out in the Constitution and the Plaintiff's deliberate decision and subsequent election not to utilize that procedure is each a significant discretionary consideration. 122Ms Fisher notes that in Wilcox v Kogarah Golf Club Young J also alluded to the fact that the club member had not exercised an alternative process available to him as a consideration when deciding whether to exercise discretion in favour of the grant of declaratory relief. 123In that regard, Mr Sneddon submits, in effect, that the disciplinary procedure available under the constitution goes only to the hearing of the charges under the 2012 Notice of Charge and provides no mechanism for the declaratory relief here sought. I accept that the Board does not have the power to make a declaration binding on the parties in the sense that there is power in the Court to do so. However, it has not been demonstrated to my satisfaction that there is any utility of such declaratory relief in circumstances where the Board concedes that the 2010 suspension was not validly imposed. In my view, the relevance of the other avenue available for determination of the substantive dispute (namely the disciplinary proceedings that were convened in March this year but have not yet taken place) is that it is in those other proceedings that the Club's constitution contemplates that a member will have the opportunity to respond to charges made against that member (and where Mr Campolongo should look to "clear his own name"). Conclusion 124I am not satisfied that there is any real utility in the relief that has been sought. At the time that the proceedings were commenced, Mr Campolongo was seeking to restrain the disciplinary hearing that had been scheduled in relation to the 2012 Notice of Charge. He sought urgent interlocutory relief (and accepted an undertaking proffered by Club Marconi in lieu of such relief) on the basis that there was a serious question to be tried as to the validity of the disciplinary meeting that had been convened. Allegations of bias on the part of Club Marconi were raised. Mr Campolongo has not pressed any such allegation in the present hearing for final relief. Rather, he has sought relief solely in respect of the 2010 suspension that Club Marconi concedes was an invalid exercise of the Board's powers under the Constitution (by reason of the fact that the power of suspension under Rule 47(h) is predicated on there having been a charge issued in relation to conduct of the kind referred to in Rule 47(a)). 125It is not consistent with the statutory objective of the just, quick and cheap resolution of the real issues in dispute between parties that the time of this Court be taken up in determining matters that are not (at least by the time of hearing) actually in dispute between the parties. The practical consequence, as between the parties, of this course of action has been that the disciplinary hearing convened in March 2012 has unnecessarily been delayed pending the hearing of a matter that has (and could have) no impact on the hearing of the charges made against Mr Campolongo. There is simply no reason that has been shown as to why the March 2012 hearing should not have proceeded in accordance with the Notice of Charge and the constitution of Club Marconi. 126As will be obvious from the above, I do not consider this to be an appropriate case in which to exercise the discretion to grant declaratory relief even in the limited scope of that which would reflect the concession now made by Club Marconi. Orders 1.I dismiss the proceedings. 2.I dismiss the defendant's Notice of Motion with no order as to costs. 3.For the avoidance of doubt, I note that the undertaking given by the defendant's solicitor on 26 March 2012 is now discharged. 127I will hear submissions as necessary in relation to the costs of the proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 July 2012