Supreme Court New South Wales Medium Neutral Citation: Macedonian Orthodox Community of Australia Ltd v Subeski [2013] NSWSC 22 Hearing dates: 7-8 November 2012 Decision date: 30 January 2013 Jurisdiction: Equity Division Before: Gzell J Decision: Declaration of validity of expulsion made and orders made for permanent restraint of defendant from representing that he was a member of the association and of its council. Catchwords: ASSOCIATIONS AND CLUBS - Expulsion, Suspension and Disqualification - council of plaintiff expelled defendant from membership - whether procedure for expulsion from membership of council should have been used Legislation Cited: Corporations Act 2001 (Cth) Cases Cited: Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546 Australian Workers' Union v Bowen (No 2) [1948] HCA 35; (1948) 77 CLR 601 Battle v Bundagen Co-operative (No 2) [2011] NSWCA 38 Browne v Dunn (1893) 6 R 67 Cains v Jenkins (1979) 42 FLR 188 McNab v Auburn Soccer Sports Club Ltd [1975] 1 NSWLR 54 Mitchell v Royal New South Wales Canine Council Ltd [2001] NSWCA 162; (2001) 52 NSWLR 242 Re Compaction Systems Pty Ltd and the Companies Act [1976] 2 NSWLR 477 Whittle v Australian Miniature Pony Society Inc [1995] FCA 1267; (1995) 57 FCR 252 Wilcox v Kogarah Golf Club Ltd (1996) 14 ACLC 421 Winpar Holdings Ltd v Goldfields Kalgoorlie Ltd [2001] NSWCA 427; (2001) 166 FLR 144 Category: Principal judgment Parties: Macedonian Orthodox Community of Australia Ltd (Plaintiff) Alex Subeski (Defendant) Representation: Counsel: M McHugh SC (Plaintiff) M Bennett (Defendant) Solicitors: Henry Davis York (Plaintiff) Astoria Lawyers (Defendant) File Number(s): SC 2011/264876 Judgment 1The Macedonian Orthodox Community of Australia Ltd (MOCA), the plaintiff, is a company limited by guarantee. It was previously called The Macedonian Orthodox Community of Sydney Area Limited (MOCS). 2MOCA's membership is open to Macedonians, persons born of Macedonian parents, persons having a Macedonian mother or father, or descendants of such persons who are adherents to the teachings of the Eastern Orthodox denomination. Its principal objects are to organise ecclesiastical, social and other relevant activities for Macedonian Australians of the Orthodox Christian faith. 3Alex Subeski, the defendant, was a member of MOCA. The general management of its affairs was vested in a Council, sometimes called a Board. Mr Subeski was a member of the Council. It passed a resolution expelling him from membership of MOCA. He persisted in publicly claiming that he was still a member of the Council. MOCA seeks a declaration that Mr Subeski was validly removed from its register of members and thereby ceased to be a member of the Council and an order permanently restraining him from representing that he is a member of the Council. 4By a mirror cross-claim, Mr Subeski seeks a declaration that he was invalidly removed from MOCA's register of members and never ceased to be a member of the Council and an order permitting him to represent that he is a member of the Council. 5The existence of the court's discretionary power at common law to intervene in the affairs of a voluntary tribunal has long been recognised notwithstanding an absence of consensus as to the source of the jurisdiction (Mitchell v Royal New South Wales Canine Council Ltd [2001] NSWCA 162 at [34]-[39]; (2001) 52 NSWLR 242 at 246-247). 6At times the foundation for the court's intervention has been identified as contract. The jurisdiction has equally been characterised by reference to broader notions of justice and the protection of private rights or interests. In Mitchell the following statement of Tadgell JA in Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546 at 550 was cited with approval: "Statutes aside, the courts have been disposed to interfere in a limited way with decisions of private or domestic tribunals in order to protect private rights that have been adjudged to deserve protection including rights in property. The concept of property has been broadly interpreted for this purpose and, in cases within that category, I believe that there is no decision of a private or domestic tribunal with which the courts will refuse to interfere if interference be considered necessary for the attaining of justice." 7Mr Subeski was entitled to natural justice or procedural fairness in respect of the passing of the resolution expelling him from membership of MOCA. 8In McNab v Auburn Soccer Sports Club Ltd [1975] 1 NSWLR 54 at 59 Needham J said: "It is my opinion that where a person, being a member of a social club, whether incorporated or not, is charged with some departure from the rules of that club and is faced with expulsion or other detriment, and where the rules of the club permit him to attend a meeting at which his expulsion is to be considered and to answer the charges against him, the rules of natural justice apply to the proceedings of that meeting. The board or other controlling body, in my opinion, is exercising quasi-judicial functions when it determines a question of misbehaviour or other alleged infringement of the rules of the club. In the present case, art. 41 expressly gives the member whose conduct is attacked the right to receive notice of the meeting and to give oral or written 'explanation of defence'. It would be difficult to find a case in which the quasi-judicial nature of the proceedings was more clearly expressed." (references omitted) 9The background to Mr Subeski's expulsion was that he became aggressive at Council meetings when matters with which he did not agree were discussed. 10At the meeting of 7 September 2009 Igor Aleksandrov was appointed chief executive officer. Mr Subeski opposed the appointment. He stormed out of the meeting before the Council voted on the proposed resolution. It was ultimately passed with only one opponent, Dimce Dzajko. 11In an email to Mr Subeski of 14 September 2009 from Robert Despotoski, the President of MOCA, the following was said: "As far as your complaint about the length of the meeting is concerned, as I recall it, it was you and Dimce Dzajko who were holding everybody up by constantly interjecting and speaking out of turn to delay or prevent a vote on matters that you disagreed with everybody else about. If people expect the Chair to ensure that meetings run smoothly and efficiently, they need to wait for their turn to speak, respect other board members' right to speak and decide by voting, and respect the Chair's authority to run the meeting, including to indicate whose turn it is to speak and how long they can go on about the same thing." 12Mr Subeski was President of the Bankstown City Football Club (Club). MOCA had assisted the Club from time to time. 13MOCA required restoration work to be carried out on St Ciryl Church at Rosebery. To assist the Club an arrangement was entered into whereby the Club contracted with MOCA to carry out the work at a commercial fee but had the work done by specified contractors at cost. Mr Subeski was to supervise these works. 14Stevce Gorgievski painted the Church. In carrying out some touching up of his paintwork he fell from a ladder and was injured. He lodged a worker's injury claim and the question arose as to who employed him, Mr Subeski on behalf of the Club, or MOCA. And MOCA sought detailed invoices and other information from Mr Subeski. 15At a meeting of the Council of 24 February 2010, Mr Aleksandrov informed the Council that a person had been injured while carrying out the works at the Church and the question of liability had to be determined. Mr Aleksandrov said that Mr Subeski was suggesting that MOCA was responsible. At one point, Mr Subeski became very agitated and accused Council members: "You are all a bunch of criminals and belong in prison, not here". He became increasingly threatening and abusive, and the Chairman adjourned the meeting. 16In an unchallenged affidavit, Peter Trpcevski, another member of the Council, gave the following evidence: "23 As Mr Subeski had taken charge of arranging the contractors for the renovation works, Mr Aleksandrov was reporting to the Board with words to the following effect: 'A person has been injured and there is a question of liability that we have to deal with, Alex [Subeski] is suggesting that MOCS is responsible. We have to deal with this.' 24 Mr Subeski, again, became agitated and shouted at Mr Aleksandrov in response: 'What is it that you are suggesting Igor? If there is any illegal behaviour it is on your part not mine.' 25 Mr Subeski continued shouting at Mr Aleksandrov and the Board with words to the effect: '...you are all corrupt and should be locked up - especially that little prick [pointing to Mr Aleksandrov]'. 26 I recall Mr Aleksandrov then said: 'Are you pointing at me?' 27 Mr Subeski then responded with words to the effect of: '...if I have to come over there I'm going to kick the shit out of you'. 28 At its height, Mr Subeski stood to his feet and approached Mr Aleksandrov in a threatening manner. I was certain that there was going to be a fight if the meeting was allowed to continue. 29 Given the hostile scene, the Chairman immediately adjourned the meeting to avoid any physical altercation between Mr Subeski and Mr Aleksandrov, which at that point appeared imminent." 17Mr Subeski admitted that he said to Mr Aleksandrov the words in paragraph 27 above. But he later recanted. He admitted that he was angry and adopted inappropriate conduct at meetings. He had no basis for saying that Mr Aleksandrov had stabbed somebody. He accepted that he had called him a bastard. 18Nearly all those who attended the meeting on 24 February 2010 told Mr Aleksandrov that they would not attend Council meetings if Mr Subeski was to attend. 19From at least this meeting of 24 February 2010, there was rancour between elements of the Council of MOCA. Mr Subeski said that he had made enquiries about the Chairman and this had resulted in retaliatory action with respect to the works by the President and the CEO. Mr Aleksandrov said the opposite, that Mr Subeski retaliated to his enquiries. 20There were other alleged incidents of aggression by Mr Subeski. It is said that at a soccer match Kiro Jovceski, another member of the Council of MOCA, was attacked verbally by Mr Subeski and a couple of other members of the Club for being a traitor because he gave evidence to the Council of MOCA. 21There was also said to be an incident at Rockdale Ilinden soccer grounds when Mr Subeski verbally attacked Mr Despotoski in front of other witnesses. 22Jovance Veljanovski became the President of the Club in September 2011. He said that in 2010 the Club commenced an investigation into Mr Subeski's conduct in relation to the works at the Church in 2008. He instructed the Club to further investigate the allegation when he became President and the view was formed that the allegations made by MOCA were unfounded and had no merit. 23On 17 June 2011 the following email was sent to Mr Subeski and copied to the other members of the Council: "Dear Mr Subeski, Please be advised that on 28 June 2011, the Council of Management of the Macedonian Orthodox Community of Sydney Ltd will consider a proposed resolution to expel you from the Community and to erase your name from the Register of Members, on the basis that you have wilfully and persistently engaged in conduct that is unbecoming of a member and prejudicial to the interest of the Community. The draft-resolution is attached to this email. You are hereby offered an opportunity of giving in writing or orally any explanation or defence you may think fit. The opportunity to attend the Council meeting and make oral representations is conditional on you giving at least 3 days written notice of your intention to attend, so that the Board may arrange appropriate security measures, in light of your extremely aggressive, abusive and at times violent retaliation on the last occasion on which aspects of the relevant matters were raised at a Board meeting. The exact place and time of the meeting will be disclosed to you once you have given written notice of your intention to attend. Any written representation that you may wish to make must be received by 10.00am on Monday 27 June 2011, so that Board members will have some time to read it before the meeting. Other written and oral evidence relating to the matters forming the reasons for the proposed resolution will be presented at the meeting itself. All of the written evidence that will be relied upon is material that you should already be familiar with. Should the proposed resolution pass, you may appeal to be reinstated as a Member at an Extraordinary General Meeting of MOCS, if you provide notice of your intention to appeal within 5 working days of the Council's resolution. DRAFT RESOLUTION: EXPULSION OF ALEX SUBESKI On this 28th day of June 2011, the Council of Management of the Macedonian Orthodox Community of Sydney Ltd resolves to expel Mr Alex Subeski of 14 Holmes Avenue Sefton NSW 2162 from the Community and to erase his name from the Register of Members, on the basis that he has wilfully and persistently engaged in conduct that is unbecoming of a member and prejudicial to the interest of the Community. In reaching this resolution, the Council has considered documentary and oral evidence of the following: 1. Mr Subeski misled the Macedonian Orthodox Community of Sydney Ltd (MOCS) to enter into a contract for building renovations by purporting to be providing a written quotation (hereinafter "the quotation/contract), dated 23 July 2008, and subsequent oral quotations for extensions to the original scope of the work, on behalf of Bankstown City FC ("the Club"), with proper authority from the Club. After forming reasonable suspicions that Mr Subeski was in fact not properly authorised to offer all of the quotations or enter into the contract on behalf of the Club, MOCS made repeated requests to Mr Subeski and to the Club's Board for written clarification or evidence as to any authority that the Club has given Mr Subeski to enter into a contract with MOCS on its behalf and its understanding of the terms of that contract. The Club did not provide such evidence and Mr Subeski used his position as President of the Club to prevent the Club from providing direct answers to MOCS' inquiries. Nonetheless, the Club's Secretary, Mendo Petkovski, did provide a response in which he denied being aware that the Club was contracted by MOCS to perform the works in question. 2. Mr Subeski misled MOCS to enter into the quotation/contract by representing in the quotation/contract that the work would be performed by the following (sub)contractors under his supervision: Alex Electrical (Mr Subeski's own business), Wetherill Park Metal Works, Koleman Constructions, Elite Rendering, Mendo Petkovski B.E. MIEAust, and that the quotation included 'scissor lifts as required, disposal of rubbish, labor as required to carry out works, project management and supervision'. After the purported completion of all the works, Mr Petkovski informed MOCS that he had no involvement in the performance of the works whatsoever. However, in negotiating the contract Mr Subeski and Mr Petkovski together promised that Mr Petkovski would be regularly inspecting the site, as an appropriately qualified engineer, to ensure that the renovations were safe and compliant with industry standards of quality and safety. Mr Petkovski was the person who emailed the quotation to MOCS at Mr Subeski's instruction. Mr Subeski has at no stage notified MOCS that Mr Petkovski did not or would not perform any work as per the Club's quotation/contract. Mr Subeski has at no stage notified MOCS that any other suitably qualified Engineer was subcontracted to replace Mr Petkovski. In failing to honor his direct and implied undertakings in this regard, Mr Subeski unjustifiably jeopardized the structural integrity of the MOCS church in Rosebery, and the safety of persons attending the church premises. In the performance of painting and other works specified and implied in the quotation/contract, and subsequent extensions to the original scope of the works, Mr Subeski employed the services of a layman named Steve Georgievski, who was not one of the (sub)contractors listed in the quotation/contract, or a labourer officially employed by the Club, or a labourer officially employed by one of the (sub)contractors listed in the quotation/contract. Mr Subeski employed Mr Georgievski to perform painting related to the contracted works contrary to an oral representation that the Club would engage a reputable painting trade contractor. He did so without notice to or approval by MOCS or by the Club. Mr Subeski instructed Mr Georgievski to clean excess paint off windows installed under the quotation/contract without the aid of scissor lifts (or other form of scaffolding), even though he charged MOCS for scissor lifts under the quotation/contract. Under Mr Subeski's direction, Mr Georgievski used a ladder that he obtained from the church cellar without proper permission. He has since attempted to make a public liability claim and a workers compensation claim against MOCS, after allegedly falling off the ladder while cleaning the windows. He has confirmed that he was employed by Mr Subeski but Mr Subeski has refused to take responsibility for employing him, either on behalf of the Club or any (sub)contractor of the Club. 3. In an attempt to evade personal liability for Mr Georgievski's alleged incident, Mr Subeski has deliberately misled the Board of MOCS and the Club's Board by falsely claiming that he had nothing to do with employing Mr Georgievski and that Mr Georgevski was employed directly by MOCS. 4. In proposing and entering into the quotation/contract and subsequent oral quotations and agreements for extensions to the original scope of the works, as well as in obtaining payments for the works, Mr Subeski misled MOCS by representing that all payments received by him for the works would be forwarded to the Club or to appropriately qualified trade (sub)contractors or laborers hired by the Club. On or about 29/9/08, Mr Subevski (sic) gave to Mr Stevce Georgievski a MOCS cheque that he had obtained on behalf of Bankstown City FC as a progress payment for Invoice #00000394. He did so without authority from the Club, and without notifying MOCS that he was giving the money to a person who was not an appropriately qualified trade (sub)contractor engaged by the Club, or a labourer employed by the Club or by a (sub)contractor of the Club. Mr Subeski had induced Igor Aleksandrov and Dimitar Todorovski to authorise the cheque as a 'cash' cheque by insisting that he needed it to pay a tradesperson hired by the Club who could not wait for the money to be deposited into the Club's account and to clear before the Club could pay him. On or about 30/10/08, Mr Subeski obtained from Mr Todorovski an incomplete cheque for $1,000 as a further progress payment for Invoice #00000394. The cheque only had one authorised signature on it, being that of Mr Miroslav Milosevski. Mr Subeski asked Mr Todorovski to leave the payee field blank until he could determine the exact account name of the (sub)contractor of the Club that it needed to be made out to. Mr Todorovski gave the cheque to Mr Subeski on the understanding that he would obtain the second signature from Mr Aleksandrov once he was able to specify who it should be made payable to and provide written confirmation from the Club to that effect. Mr Subeski never presented the cheque to Mr Aleksandrov, but instead, without authority, proceeded to fill in the payee field himself, with the name 'Stevce Gorgievski', and gave it to Mr Stevce Georgievski, who then deposited the cheque into his own account. The Club has never properly authorised Mr Subeski to forward to Mr Georgievski money collected from MOCS on behalf of the Club. On or about 30/10/08, Mr Subeski obtained from Mr Todorovski a second incomplete cheque, for $2,500, as payment for Invoice #00000393, which refers to 'Replace Gyprock and fix bin as per quote.' The cheque only had one authorised signature on it, being that of Mr Miroslav Milosevski. Mr Subeski asked Mr Todorovski to leave the payee details blank until he could determine the exact account name of the (sub)contractor of the Club that it needed to be made out to. Mr Todorovski gave the cheque to Mr Subeski on the understanding that he would obtain the second signature from Mr Aleksandrov once he was able to specify who it should be made payable to and provide appropriate written authority from the Club to that effect. Mr Subeski never presented the cheque to Mr Aleksandrov, but instead, without authority, proceeded to fill in the payee field himself, with the name 'Iced Air Intern P/L'. He then proceeded to deposit the cheque into the account of his own air conditioning installation and repairs company, Iced Air International Pty Ltd, which does not trade in gyprock installation or repairs. The Club has never properly authorised Mr Subeski to pay into his own proprietary company's business account money collected from MOCS for gyprock work on behalf of the Club. 5. On or about 30/10/08, Mr Subeski obtained two incomplete cheques from MOCS, one for $1,000 and the other for $2,500, by misleading the Treasurer, Dimitar Todorovski, that he was collecting them on behalf of Bankstown City FC and that he was going to take them to the President, Igor Aleksandrov, to fill in the payee details and authorise them with a second signature. He subsequently filled in the payee details himself, without authority from MOCS or the Club. He gave the cheque for $1,000 to Mr Stevce Georgievski, while knowing that it was not a properly authorised cheque. He deposited the cheque for $2,500 into his own account, while knowing that it was not a properly authorised cheque. 6. Mr Subeski obtained full payment from MOCS for the work specified in the quotation/contract by falsely representing that all of the work was completed as promised and that he would provide written warranties from each of the properly qualified trade contractors who worked on the project. In fact, the item of work identified in the quotation/contract as 'Additional brick cleaning', at a 'cost' price of $1,500, was not performed at all. Other items were not performed by (sub)contractors identified in the quotation/contract or by appropriate substitutes. The promised written warranties from appropriately qualified trade contractors have never been provided by Mr Subeski or the Club, despite numerous written requests. 7. In an effort to evade accountability and frustrate proper inquiries into the above matters by the MOCS Board and its officers, Mr Subeski has abused, threatened, intimidated, harassed and made malicious and defamatory accusations against the MOCS Board, its President, its Vice President, its Treasurer, its CEO, and its accountant, at a Board meeting and at public places. He has maliciously made false statements about the remuneration of MOCS officers. He has maliciously accused MOCS of funding a Bulgarian newspaper. He has also made an unauthorised donation pledge on behalf of MOCS on his radio program, which he subsequently used as a basis to bring MOCS into disrepute by falsely alleging on the same radio program that MOCS has failed to honour a donation pledge for a sick child because it spends too much money on remuneration of its officers. 8. Over a period of one and a half years, Mr Subeski has been given numerous opportunities to provide credible statements or information disputing the above facts, or to take measures to rectify the harm he has brought to the interests and reputation of MOCS. He has failed to realize those opportunities, choosing instead to resort to evasive, untruthful and vindictive replies at the expense of the interest and public standing of MOCS. Prior to the passing of this resolution, Mr Subeski was offered an opportunity of giving in writing or orally any explanation or defence he may think fit. The opportunity to attend the meeting an dmake oral representations was made conditional on him giving at least 3 days notice of his intention to attend the meeting, so that the Board could arrange appropriate security measures, in light of his extremely aggressive, abusive and at times violent retaliation on the last occasion on which aspects of the above matters were raised at a Board meeting, in his presence. Mr Subeski may appeal to be reinstated as a Member at an Extraordinary General Meeting of MOCS, if he gives notice of his appeal within 5 working days of this resolution." 24On 27 June 2011, Mr Subeski emailed the following response to MOCA: "1. Mr Subeski never misled Macedonian Orthodox Community of Sydney in relation to the contract for building renovations dated 23 July 2008. Mr Subeski was always properly authorised by the Board of Directors/Committee, namely members of that Committee, Jonce Veljanovski, Vic Neskovski, Mendo Petkovski, Kire Jofceski and Peter Mileski, for Bankstown City FC to enter into the Contract with MOCS. The untruthful allegation that Mr Petkovski denied being aware that the Club was contracted by MOCS to perform the works is unfounded and Mr Petkovski is willing to attend any meetings to attest to that fact. The allegations are damaging and unwarranted. 2. Mr Subeski never misled MOCS regarding the quotation/contract and that all works outlined in the Contract were performed as expressed. Mr Petkovski drafted all the plans in relation to the works as indicated in the Contract, therefore having direct involvement in the performance of the works. In relation to the alleged promise by the Club that Mr Petkovski would be regularly inspecting the site, as an engineer, to ensure that the renovations were safe and compliant with industry standards of quality and safety, Mr Subeski is unaware. The allegation did not form part of any negotiation with respect to the Contract. The works that were completed were in fact safe and compliant with industry standards in any event. The allegation that Mr Subeski unjustifiably jeopardised the structural integrity of the MOCS church in Rosebery and the safety of persons attending the church premises is unfounded and unwarranted. The allegation causes distress to Mr Subeski and defames his character. MOCS has never provided a building inspection report by a qualified person to correctly make the accusation of the above unsafety of the works. Mr Subeski during negotiations did undertake to provide reputable trade contractors, however, after providing quotes from reputable trades people, Mr Kire Jovcevski of MOCS expressly requested that Mr Steve Georgievski undertake the painting works. Mr Subeski never had direct contact with Mr Georgievski in relation to negotiating and/or obtaining his services. Mr Georgievski has executed a Statutory Declaration to the above effect which can be sited by the Council of Management of the Macedonian Orthodox Community of Sydney if requested. Mr Subeski did obtain scaffolding as per the Contract and invoices were provided to MOCS in relation to same. Mr Subeski maintains Mr Georgievski was never employed by the Club or Mr Subeski directly, therefore he is unable to take responsibility. Mr Georgievski was organised by MOCS. 3. Mr Subeski is not evading personal liability because it is a fact that MOCS employed the services of Mr Georgievski, therefore Mr Subeski does not have any personal liability towards Mr Georgievski of MOCS in relation to any works performed by him. 4. Mr Subeski forwarded all payments from MOCS to the correct trades people for works completed in accordance with the Contract. Mr Stevce Georgievski was paid by a MOCS cheque, authorised by MOCS, never on behalf of the Club. The Club never received a cheque on behalf of Mr Georgievski, however, Mr Dimitar Todorovski did provide a cheque to Mr Subeski to 'pass onto' Mr Georgievski from MOCS. Mr Subeski never induced Igor Aleksandrov and Mr Dimitar Todorovski to authorise any cheques. MOCS has no evidence to allege they were under duress with repsect to any cheques that were made payable to any trades people. Mr Subeski requests verification that a fraudulent activity occurred in relation to any payments made. Mr Subeski, as Director for Iced Air International Pty Ltd, did authorise the Company to pay Grid Up Gyprock the sum of $2,500 from it's own account to 'Replace Gyprock and fix bin as per quote'. The gyprockers were unable to wait for a cheque to be cleared, therefore Mr Subeski reimbursed himself the amount paid. An invoice for the works can be sited upon request. It is a false allegation that Mr Subeski obtained the blank cheque because he could not determine the exact account name of the subcontractor. Mr Subeski at all times had proper authority from the Club and MOCS in relation all payments made regarding the works. 5. All cheques made payable into any accounts were properly authorised by MOCS. Only one signatory was necessary for all cheques and Mr Subeski is unaware that MOCS requested two signatures. No cheque ever bounced and MOCS has never claimed that fraudulent events occurred during the process of the works undertaken by the Club or it's trades people. 6. All works were completed as specified in the contract. MOCS has never made a claim that the works were not finalised in accordance with the agreement. MOCS has never provided a building inspection report to ascertain that the allegations are founded. Mr Subeski has never falsely represented any of the works completed. Mr Subeski has never promised that he would provide written warranties from each of the properly qualified trade contractors. Mr Subeski quoted that 'Additional brick cleaning' would be performed, however MOCS did not agree to the cleaning during the variations, therefore it was never undertaken or paid for by MOCS. 7. Mr Subeski had never evaded accountability or frustrated proper inquiriesw (sic) into the above matters by MOCS Board and its officers. The allegations that Mr Subeski abused, threatened, intimidated, harassed and made malicious and defamatory accusations against any member of MOCS is imaginary and vexatious. A police report has never been filed in relation to the allegations if they did in fact occur. Any claims made by Mr Subeski during any radio program were true and made during free speech. Mr Subeski is entitled to opinions based on witnessing events regarding the operations of employees of MOCS." 25There was some question whether this response was provided to the members of the Council before the meeting on 28 June 2011 because two members of the Council said they had not received it. But that was resolved late in the proceedings when the response was attached to an email from Mr Aleksandrov to Mr Subeski, which was copied to all the members of the Council. The two members who said they did not receive it were mistaken. 26The proposed resolution and notice of meeting were also sent to Mr Subeski by letter signed by Mr Despotoski. 27On 24 June 2011 Mr Despotoski sent an email to all attendees at Council meetings, including members of the clergy, other than Mr Subeski, setting out an agenda for the meeting on 28 June 2011. The proposed resolution to expel Mr Subeski was the first item on that agenda. The email went to Mr Dzajkovski. 28Mr Subeski did not attend the meeting, initially. The meeting considered the material before it somewhat perfunctorily. Mr Aleksandrov said that the Council did not actually go through the evidence page by page. It was well known to them and the response by Mr Subeski did not add much to the material. The resolution was passed unanimously by those present at the meeting. 29When Mr Dzajkovski was informed where the meeting was to take place, he contacted Mr Subeski and they, together with Mendo Petkovski and Jovance Veljanovski, set out for the MOCA boardroom at 18A Dalmeny Avenue, Rosebery. They discovered that the gates were locked. Mr Dzajkovski made a telephone call and a short time later the priest arrived and opened the gate. 30Mr Despotoski and Mr Aleksandrov asked Mr Subeski and his supporters to leave. They refused. The police were called and they ultimately convinced Mr Subeski and his supporters to leave. Details of the incident are set out in the minutes of the meeting signed by all those in attendance. 31Mr Jovceski received an anonymous notice to attend an extraordinary general meeting of MOCA on 23 July 2011. The meeting had not been authorised by the Council. Mr Jovceski attended the meeting. He estimated there were approximately 150 people in attendance. The person acting as chairman opened the meeting making what Mr Jovceski regarded as critical remarks of the present management and Council of MOCA. Mr Subeski then stood up and said: "The MOCS people are saying otherwise, but I am still a director of MOCS." 32Mr Subeski pointed at Mr Jovceski and said: "There are here today two directors, me and this one sitting in the back." Mr Subeski said if those attending were unhappy with MOCS they could ask Mr Jovceski questions and he could explain himself. Mr Jovceski said he was there as an observer and shortly afterwards he left the meeting. 33Mr Jovceski attended a further meeting on 7 August 2011. It, too, had not been authorised by the Council of MOCA. He estimated about 150 people attended. He observed that a number of people had a copy of the draft agenda for an extraordinary general meeting of MOCA to take place on 21 August 2011. It was in draft as it had not been approved by the Council. 34Mr Subeski was seated at a table at the front of the room. He said: "We know that at the meeting, there will be a proposal to amend the constitution which will not benefit you as the community." He rose to his feet and said: "The people from MOCS are telling you people that I am expelled from MOCS but that is not true because they didn't follow their proper procedures to expel me. That night, they had 74% of the Board members but by their law they are required to have 80% to expel me from the Board or 75% of the members." 35Mr Petkovski said: "If they change the constitution, you can kiss goodbye to the money and the properties". When asked what was going to be done about the matter Mr Subeski said: "We are going to stop the meeting and I've organised three buses, one to leave from each of Cabramatta, Rosebery and Rockdale. There is room for a lot of supporters and we are going to go [to the MOCS's AGM] and make a scene to stop the meeting. The least that can happen to us is that they can call the Police and tell us to leave." 36These proceedings were commenced on 17 August 2011 and on 19 August 2011 Mr Subeski gave an undertaking not to gather with his associates in front of the entrance of the place where the extraordinary general meeting was to be held and not to obstruct people's entry by way of harassment, abuse and intimidation and not to threaten or intimidate any member or guest present at the extraordinary general meeting or otherwise disrupt it. 37The resolution to expel Mr Subeski was brought under art 11 of MOCA's Articles of Association which was in the following terms: "If any member shall wilfully refuse or neglect to comply with the provisions of the Memorandum or Articles of Association of the Community or shall be guilty of any conduct which in the opinion of the Council is unbecoming of a member or prejudicial to the interest of the Community the Council shall have power to expel the member from the Community and erase his/her name from the Register of Members provided that at least one week before the meeting of the Council at which a resolution for his expulsion is passed the member shall have had notice of such meeting and that he shall at such meeting and before the passing of such resolution have had an opportunity of giving orally or in writing any explanation or defence he may think fit." 38The effect of expelling a member of MOCA was that he would cease to be a member of Council. Article 44(a) provided that the office of a member of the Council should ipso facto be vacated if he ceased to be a member of MOCA. 39Article 39 provided: "Any member of the Council may be removed prior to the expiration of his/her period of office at an Extraordinary General Meeting of the Community by a simple majority, or by a resolution of the Council supported by at least eighty percent of the total number of members of the Council." 40It was submitted on Mr Subeski's behalf that the more specific provision in art 39 should prevail over the general art 11 when dealing with a member of the Council. It was submitted that there were internal indications that this was so. Article 40 referred to art 39. It did not refer to art 11. It was in the following terms: "Vacancies arising by reason of the death or resignation of any member of the Council or by reason of a resolution pursuant to Clause 39 thereof shall be filled from time to time by the Council. The Council shall have power to appoint any member of the Community who is qualified for nomination to the Council and who consents thereto to fill the vacancy." 41It was submitted that this was a clear indication that it was not intended to remove a member of Council by expelling that person from membership of MOCA under art 11. 42Likewise, art 44(f) specifically mentioned art 39 and while art 44(a) spoke in terms of ceasing to be a member of MOCA, art 11 was not mentioned. It was submitted that art 44(a) was inserted to deal with the situation where a member resigned and art 39 was the appropriate way to remove a member of the Council. 43But the intention of the Council was to expel Mr Subeski from membership and not to remove him from the Council. That was a secondary benefit. Article 39 did not achieve that result. It had nothing to do with an expulsion from membership. That was the work of art 11. 44It was submitted that Mr Subeski was denied natural justice in that he was not given notice of the time and place of the meeting; the notice said "other written and other oral evidence relating to the matters forming the reasons for the proposed resolution would be presented at the meeting itself"; he was not made aware of what this information was; his written response was not provided to at least two of the Council members deciding his fate; when he found out the location of the meeting, he was prohibited entry to allow his defence to be made to the meeting; and the Board did not consider the evidence at the hearing but rather assumed knowledge from previous documents and correspondence. 45Mr Subeski was given the opportunity to respond to the notice in writing. He availed himself of that opportunity. Mr Subeski was also given the opportunity to present his case orally at the meeting provided that he gave three days notice of that intention in order that security arrangements might be put in place. 46In light of his prior conduct, it was not unreasonable to place this condition upon his attendance at the meeting. Had he given notice of his intention to attend he would have been told the time and place of the meeting. It was not a difficult task for Mr Subeski to give such notice. He failed to do so. He was not denied natural justice in the withholding of the time and place of the meeting until he gave the requisite notice. 47What amounts to natural justice must depend upon the particular circumstances. MOCA received legal advice that it should act under art 11. It also received advice from a corporate governance consultant and a solicitor that it was not necessary to attach all the evidence to the notice. It was sufficient if the notice set out the allegations. The notice was not drawn by a practising solicitor and its content was not the subject of legal advice. 48As Dixon J said in Australian Workers' Union v Bowen (No 2) [1948] HCA 35; (1948) 77 CLR 601 at 628: "It is important to keep steadily in mind that we are dealing with a domestic forum acting under rules resting on a consensual basis. It is a tribunal that has no rules of evidence and can inform itself in any way it chooses. Members may act upon their own knowledge and upon hearsay if they are satisfied of the truth of what they so learn and if they give the member with whom they are dealing a proper opportunity of answering the charge and defending himself." 49Mr Subeski was given that opportunity. He chose not to give notice of his intention to attend the meeting. 50The notice of meeting specified in great particularity the matters relied upon to ground the expulsion. The notice did not provide that any additional oral and written evidence would be taken into account at the meeting. It limited such evidence to that relating to the specific incidents specified in the notice. 51The evidence was that this material consisted of conversations with Mr Subeski or in his presence and emails to and from Mr Subeski or to or from others that were copied to Mr Subeski. 52Those limitations on the material in question limited it to that which was within Mr Subeski's knowledge. That evidence would not have taken Mr Subeski by surprise. 53Having particularised the matters of complaint, MOCA was entitled to say it would rely upon evidence of which Mr Subeski was aware that supported the particulars in the notice of meeting. 54I have already dealt with the question whether two members of the Council did not receive Mr Subeski's written response. The emails admitted late in the proceedings established that the two Council members in question did receive Mr Subeski's written response by email. They were mistaken in their belief that they had not received it. 55Mr Subeski was prohibited entry to the meeting. He had not given notice of his intention to attend and by the time he did the resolution for his expulsion had been carried unanimously. 56The Council did consider the evidence at the hearing, albeit in a short space of time. Council members were aided by their knowledge of repeated requests for information from Mr Subeski about the restoration works at St Ciryl Church that was not forthcoming and their knowledge of his intimidatory conduct and malicious accusations about them. The Council did not go through each piece of paper. As Mr Aleksandrov said, Council members were familiar with the facts and Mr Subeski's response did not take the matter much further. 57The submission that Mr Subeski did not have a reasonable opportunity to present his case is rejected as is the submission that the Council did not undertake a proper inquiry. Mr Aleksandrov believed that Mr Subeski was there to disrupt the meeting and judged by his past conduct that was not an unreasonable assumption. 58It was submitted that Mr Aleksandrov and Mr Despotoski had determined before the meeting that they would not give Mr Subeski a chance at it. It was put that they were invincibly biased against Mr Subeski. 59That proposition was not put to the three directors who gave evidence. Browne v Dunn (1893) 6 R 67 is applicable. And it was not a matter of complaint by Mr Subeski. Furthermore, as Dixon J said in Australian Workers' Union at 630: "Domestic tribunals are often constituted of persons who may, or even must, have taken some part in the matters concerning which they are called upon to exercise their quasi-judicial function." (See also Whittle v Australian Miniature Pony Society Inc [1995] FCA 1267; (1995) 57 FCR 252 at 268-269; Cains v Jenkins (1979) 42 FLR 188 at 194.) 60The Council offered Mr Subeski the right to take the matter to a general meeting of the members of MOCA. That was not an opportunity provided by the Articles of Association. That does not suggest that members of the Council were implacably opposed to Mr Subeski. 61In addition to the failure to specify a place and time in the notice of the meeting of 28 June 2011, it was submitted that the notice failed to comply with art 46. 62It provides, amongst other things, that the President may convene a special meeting whenever he should deem it necessary so to do and the Secretary should give to the members, including executive officers, notice of the time and place of such meeting by such means as the Secretary and President deemed fit. 63It was submitted that the meeting of 28 June 2011 was a special meeting for the purpose of considering but one agenda item. 64There was no statement that in the notice that the meeting of 28 June 2011 was a special one. Furthermore, the notice of the meeting sent by email by Mr Despotoski on 24 June 2011 contained 11 agenda items. It was not a special meeting and there was no failure to comply with art 46. 65In my judgment, Mr Subeski was validly expelled from membership of MOCA. 66If I am wrong in determining that art 11 and not art 39 applied, then there was, in my judgment, a failure to satisfy the 80 per cent requirement. 67There was some suggestion that Jon Josevski attended the meeting by telephone but the minutes say otherwise and those minutes were scrutinised and signed by all members of the Council. 68In his oral address in reply, Mr McHugh SC, who appeared for MOCA, sought to reopen his case to give notice under s 1322(2) of the Corporations Act 2001 (Cth). The application was opposed by Mr Michael Bennett who appeared for Mr Subeski. I reserved my decision on it. 69Section 1322(2) of the Corporations Act provides that a proceeding under that Act is not invalidated because of any procedural irregularity unless the court is of the opinion that the irregularity has caused or may cause substantial injustice that cannot be remedied by any order of the court, and by order declares the proceeding to be invalid. 70A procedural irregularity is defined in s 1322(1)(b)(ii) of the Corporations Act to include a defect, irregularity or deficiency of notice or time. 71The effect of that provision has been referred to in authorities such as Winpar Holdings Ltd v Goldfields Kalgoorlie Ltd [2001] NSWCA 427; (2001) 166 FLR 144. At 164 [63], the Court of Appeal said the section was raised as a sub-issue by Santow J at first instance but not dealt with by him, presumably reflecting the practice to which Bowen CJ in Eq referred in Re Compaction Systems Pty Ltd and the Companies Act [1976] 2 NSWLR 477 of applying for an order under s 1322(4) rather than relying on the contingent validation afforded by s 1322(2). 72Reference was made to the provision in Battle v Bundagen Co-operative (No 2) [2011] NSWCA 38 by Hodgson JA at [52] but not decided as the provision had not been argued in the court below or in the Court of Appeal. 73Hodgson JA observed that although s 1322(2) of the Corporations Act operates without the need for a court order, a party wishing to rely on it does need to raise it and then, if it does apply, the other party will have the opportunity to lead evidence concerning the question of substantial injustice. 74The effect of the provision is conditionally to validate the irregularity, leaving it to the other party to seek to establish substantial injustice. 75To allow the plaintiff during final addresses to reopen its case to give notice of intention to rely on s 1322(2) of the Corporations Act is unjustified. Mr Subeski is prejudiced by his not having considered whether he should call evidence to establish substantial injustice. 76The application to reopen and give notice under s 1322(2) of the Corporations Act should be dismissed. 77In my view the conduct of Mr Subeski following the meeting of 28 June 2011 is such as to justify an order for his permanent restraint from representing that he is a member of MOCA and a member of its Council. 78Discretionary issues arise as to whether a declaration of his effective removal from the Register of Members should be made. 79In Wilcox v Kogarah Golf Club Ltd (1996) 14 ACLC 421 Young J discussed the discretion to grant a declaration of validity or invalidity of a resolution of the board of directors of a club. An applicant for declaratory relief must show that it will have some utility. 80In this case it seems to me that such a declaration will have utility in resolving the question of the operation of art 11, art 39 and art 44 of the Articles of Association of MOCA. Court Orders: (1)The plaintiff's application to reopen its case and to give notice under s 1322(2) of the Corporations Act 2001 (Cth) is dismissed. (2) The court declares that the defendant has been effectively removed from the Register of Members of the Macedonian Orthodox Community of Australia Ltd ACN 000 860 837 (MOCA); (3) The court declares that the defendant is not a member of the Council of MOCA. (4) The court orders that the defendant be permanently restrained from representing that he is a member of the Council of MOCA. (5) The court orders that the defendant be permanently restrained from representing that he is a member of MOCA. (6) The court orders that the defendant pay MOCA's costs of the proceedings (7) The court orders that the cross-claim be dismissed with costs. (8) The court orders that the exhibits and subpoenaed material be returned forthwith. ********** 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: 30 January 2013