Supreme Court New South Wales Medium Neutral Citation: Young v New South Wales Radio Yachting Association Inc [2013] NSWSC 383 Hearing dates: 3 and 4 April 2013 Decision date: 19 April 2013 Before: Ball J Decision: Proceedings dismissed with costs. Catchwords: LAW OF ASSOCIATIONS - operation of the Associations Incorporation Act 1984 (NSW) and Associations Incorporation Act 2009 (NSW) - incorporation of model rules and model constitution into an incorporated association's constitution - expulsion of member of association - whether member afforded natural justice Legislation Cited: Associations Incorporation Act 1984 (NSW) Associations Incorporation Act 2009 (NSW) Associations Incorporation Regulation 1999 (NSW) Associations Incorporation Regulation 2010 (NSW) Cases Cited: Australian Workers Union v Bowen (No 2) [1948] HCA 35; (1948) 77 CLR 601 Goodwin v Vietnam Veterans Motor Cycle Club Australia NSW Chapter Inc [2008] NSWSC 154; (2008) 72 NSWLR 224 McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470; (2002) 191 ALR 759 Young v Cotter [1996] NSWCA 573 Category: Principal judgment Parties: Greg Young (Plaintiff) New South Wales Radio Yachting Association Inc 9880206 (Defendant) Representation: RK Newton (Plaintiff) E Petersen (Defendant) Carmody Lawyers (Plaintiff) GMH Lawyers (Defendant) File Number(s): 2012/190744 Publication restriction: No Judgment 1The plaintiff, Mr Young, seeks a declaration that his purported expulsion from the defendant association, the New South Wales Radio Yachting Association Inc (NSWRYA), on 12 April 2012 was invalid and ineffective. Mr Young also seeks a number of ancillary declarations and orders together with damages for the loss he says he has suffered as a consequence of his expulsion. Background 2The NSWRYA was incorporated under the Associations Incorporation Act 1984 (NSW) (the 1984 Act). Its purpose is to promote the sport of radio yachting and to organise and control the sport in New South Wales. It is a member of the Australian Radio Yachting Association (ARYA), which is responsible for regulating the sport throughout Australia. 3A radio yacht club in New South Wales having at least six financial members and which conducts a regular program of racing may become an affiliate member of NSWRYA: NSWRYA Constitution cl 3(b). Members of affiliated clubs are entitled to become members of NSWRYA: cl 3(a). There are approximately 22 clubs that are affiliate members of NSWRYA. NSWRYA has approximately 320 members, although at the time of the events giving rise to this litigation it had approximately 280 members. It is necessary to be a member of NSWRYA to participate in championships and regattas conducted by it or the ARYA. 4Clause 7 of NSWRYA's Constitution deals with expulsion. It provides: (a) If the Committee considers that a member should be expelled from membership of the Association because of his or her conduct being detrimental to the interests of the Association, the Committee shall communicate, either orally or in writing, to the member- i. Notice of the proposed expulsion and of the time, date and place of the Committee meeting at which the question of that expulsion will be decided; and- ii.Particulars of that conduct, not less than 30 days before the date of the Committee meeting referred to in paragraph (i.). (b) At the Committee meeting, the member concerned will be afforded reasonable opportunity to be heard. Following the hearing the Committee shall expel or decline to expel that member from membership of the Association and shall forthwith communicate in writing to the member, the committee's decision. (c) A member who is expelled from membership of the Association shall if he or she wishes to appeal against that expulsion, give notice to the Secretary of his or her intention to do so within the period of 14 days of being notified of that expulsion (sub-rule b). (d) When a member appeals under sub-rule (c) - i. The Association will call a special general meeting for the purpose of either upholding the Committee's decision or to overturn the Committee's decision to expel the member. ii. The member who gave notice of appeal on the decision of the Committee shall maintain membership of the Association pending the decision of the special general meeting called to hear the appeal. The Committee is established by cl 9. It consists of 5 elected officers, who are to hold the positions of president, vice-president, secretary/treasurer, regatta officer and publicity officer: Constitution, cl 8. 5Mr Young commenced racing radio controlled model yachts in 2009 as a member of the Central Coast Radio Yacht Club Inc (CCRYC) and the Sydney Maritime Modellers Club. Both those associations are affiliate members of NSWRYA; and by virtue of that fact Mr Young became a member of NSWRYA. 6Between March 2010 and January 2012 there were a number of incidents, in which Mr Young was involved, which ultimately became relevant to the decision to expel him from NSWRYA. 7The first incident occurred on 27 March 2010. At that time, Mr Young was disqualified from participating in the Soling Interclub Regatta held on that day (soling is a class of radio controlled yacht) on the ground that Mr Young was unable to produce a measurement certificate for his soling as required by the notice of race. Mr Young (together with another participant) nonetheless insisted on sailing. As a result, the race officer lodged a protest which was heard by Mr Allan Bicknell (then regatta officer of NSWRYA and president of CCRYC), Mr Graham Thompson and Mr Mike Harris. The protest was heard and upheld and the two entries were rejected. Despite that decision, Mr Young is alleged to have continued to sail his boat around the course during every race and in doing so is alleged to have impeded competitors and to have been involved in a number of collisions. 8On 28 April 2010, Mr Jarvis, the secretary/treasurer of NSWRYA, wrote to Mr Young concerning the incident on 27 March 2010 and an appeal that Mr Young had lodged with ARYA. The letter indicated that any appeal had to be lodged with the NSWRYA. It set out Mr Jarvis's understanding of what had happened and went on to say: The ROs [race officer's] report also stated following your exclusion from the event you continued to sail and dismissed a ruling of your peers. This is extremely disappointing and a breach of Fundamental Rule 3. As the Secretary of the NSWRYA I would like to put forward a solution to your grievance once and for all. The NSW Soling State Championships are only two weeks away and you may want to enter the regatta, so time is short. I ask you to have your Soling measured by your club measurer. If any modifications are necessary to conform to the class rules you will have to make the modifications before a Measurement Certificate will be issued. I understand you are a competent sailor and could do very well in the State Championships. I wish you good luck. I would not like to see a repeat of the events at Castle Hill. 9The next incident occurred during the NSW 10 Rater State Championships held on 13 and 14 November 2010. During one of the races, Mr Young's boat collided with a boat owned by Mr Philip Page. Following that collision, on 15 November 2010, Mr Page sent an email to Mr Hales, the President of NSWRYA, Mr Bicknell and Mr Jarvis complaining about Mr Young's conduct. A hearing committee was convened consisting of Mr Hales, Mr Court (the then vice president), Mr Jarvis, Mr Bicknell and a Mr Gibson who was described as "arbiter". Both Mr Young and Mr Page made submissions to the committee. On 7 January 2011, the committee wrote to both Mr Young and Mr Page in the following terms: The hearing committee feels there is clear antagonism between the two of you leading to the incident off the water at the 2010 NSW 10R State Titles. The hearing committee believe the actions of both parties have not been in the best interests of the NSW Radio Yachting Association and the sport of radio sailing. As of the 7th January 2011 the hearing committee has decided that both Greg Young and Phil Page are on notice. Any further infractions reported to the committee may result in expulsion from the NSW Radio Yachting Association Inc. Unsportsman like behaviour will not be tolerated and the hearing committee would like you both to consider the affect your actions may have on the sport. Any on water infractions have a correct procedure to deal with the infraction using the RRS and its protest procedure. The above statement is agreed and unanimous by the hearing committee. A copy will be kept on file. 10The next incident or series of incidents occurred in relation to CCRYC. In September 2011 Mr Bicknell was president of that club and Mr Young the secretary/treasurer. It appears that disputes had arisen concerning the management of the club, culminating in notice of a special general meeting to be held on 17 September 2011. The reasons for those disputes are not clear from the evidence and not relevant to the resolution of the current dispute. Mr Young did, however, threaten to commence proceedings against the club if it proceeded with the meeting called for 17 September 2011 and a substantial number of members resigned from the club shortly before the meeting. 11The next incident or series of incidents occurred at the NSW 10 Rater State Championships held on 12 and 13 November 2011. On that occasion, Mr Young got into disputes with Mr Jeff Byerley and Mr Frank Russell. Nothing came of the disputes, but it is noteworthy that on 23 November 2011 Mr Young wrote to Mr Russell in the following terms: I have now been informed from two sources that you have been telling blatant malicious lies that claim you were threatened with physical assault by myself at the NSW State Titles at Mt Penang on 12 / 13 November 2011. Your lies of threatened physical assault are repugnant, fueled [sic] by your well documented hate and revenge. You are a sick attention seeking malicious serial liar and I am no longer prepared to dismiss your defamatory lies. 12The fifth incident or series of incidents occurred at the Australia Day Regatta held on 26 January 2012. One incident involved Mr McAnna who, on 1 February 2012, sent a letter to the executive committee of NSWRYA complaining that on five occasions Mr Young had sailed his yacht contrary to the rules of sailing. Another incident involved a collision between Mr Young's soling yacht and a yacht sailed by Mr Colin Court. Following those incidents, Mr Young says that there was a confrontation between him and Mr Bicknell, who was the race officer, and an argument between him and Mr Jarvis. There is a dispute between Mr Young on the one hand and Mr Bicknell and Mr Jarvis on the other about what happened. However, it is not necessary to resolve that dispute. 13On 29 February 2012, the Committee of NSWRYA met. Present at the meeting were Mr Hales, Mr Bicknell (who by then held the position of vice president), Mr Jarvis and Mr Hayden (who by then held the position of regatta officer). The minutes of that meeting record in part the following: The meeting was convened to discuss the issue of the behaviour of Greg Young and if there is sufficient cause to take action under Clause 7 of the NSWRYA constitution. Greg is currently the Secretary of the CCRYC and holds an additional club membership at SMMC. Owen Jarvis tabled a draft of the letter to be sent to Greg Young and Attachments A to F. Drafts of the letter and attachments had been circulated to the committee members prior to the meeting. Allan Bicknell tabled the CCRYC correspondence that resulted in the majority of the CCRYC members resigning from the club. The minutes go on to record changes that were made to the attachments to the draft letter to Mr Young. 14On or about 6 March 2012, Mr Jarvis sent a letter to Mr Young giving notice of a meeting to be held on 12 April 2012 to consider the question whether Mr Young should be expelled. The letter went on to say the following: As per Clause 7(a)ii of the NSWRYA Constitution the particulars of your detrimental conduct are:- ▪ Your conduct at the Soling Interclub, Norwest Business Park on the 27th March 2010. You were found ineligible to sail by the Race Officer and a subsequent protest committee but continued to sail anyway, breaching RRS Fundamental Rule 3. A letter dated 28th April 2010 from the NSWRYA Secretary was sent to you regarding your conduct and offered a resolution to the situation. See copies of emails and correspondence in Attachment A. ▪ At the NSW 10 Rater State Championships held at Kogarah Bay Sailing Club on the weekend of the 13th and 14th November 2010 an incident occurred that resulted in a written complaint about your conduct being lodged with the Association. An informal meeting was held on the 7th January 2011 to resolve the matter. You refused to shake the hand of the complainant as the meeting closed. You were sent a letter warning that you may be expelled from the Association if any further infractions occurred. The letter was signed by the Committee and Arbiter Brad Gibson. See Attachment B. ▪ The Central Coast Radio Yacht Club (Inc) has suffered a large reduction in membership. The reduction in membership occurred because the club members, either did not rejoin the club for the 2011/12 season, or resigned from the club in September 2011. This reduction in membership may have been as a result of your threats of legal action against the Club Committee and long standing members. It has been detrimental to the Association by reducing membership numbers and revenue, and has caused anxiety and stress to members of the NSWRYA. Copies of emails are in Attachment C. ▪ At the 2011 NSW 10 Rater State Championship held at Mount Penang on the 12th and 13th November 2011, alleged verbal threats were made on two occasions against other sailors after on water incidents. As a result of one of these incidents you have harassed and threated [sic] legal action by email against Frank and Marilyn Russell for alleged defamation. The other incident involved personal abuse of Jeff Byerley after a racing incident. Copies of emails and witness statements are in Attachment D. ▪ During the Australia Day Regatta on the 26th January 2012 at Drummoyne Sailing Club witnesses observed you deliberately collide with boat 64 in the 10R races on more than one occasion, and showed bad sportsmanship and a disregard for the Racing Rules of Sailing. In a Soling race a penalty turn was not completed after a racing incident with Marblehead sail number 80, again showing a disregard for the RRS. See witness statements in Attachment E. As per Clause 7(b) of the NSWRYA Constitution you will be afforded reasonable opportunity to be heard. Please advise us in writing if you intend to attend the meeting. Following the hearing the Committee shall expel or decline to expel you from membership of the Association and shall forthwith communicate in writing to you the Committee's decision. As per Clause 7(c) should the Committee's decision be to expel you from membership of the Association you have the right to appeal the expulsion by giving notice to the Secretary of your intention to do so within a period of 14 days of being notified of that expulsion. If you do appeal under sub rule (c) the association will call a Special General Meeting for the purpose of either upholding the Committee's decision or to overturn the Committee's decision to expel you. You shall maintain membership of the Association pending the decision of the Special General Meeting called to hear the appeal. Mr Young received that letter on or about 8 March 2012. 15As is apparent from the letter, the letter contained a number of attachments, although there is a dispute concerning those attachments. Mr Young says that he did not receive as part of Attachment A a number of emails relating to the incident that occurred on 27 March 2010. He says that he did not receive as part of Attachment B a complaint made by Mr Page together with submissions made by Mr Page and Mr Young to the Committee. He says that he did not receive as part of Attachment C correspondence between Mr Young and Mr Clutterbuck, the acting secretary of the CCRYC, largely concerning the notice of special general meeting of that association to be held of 17 September 2011. According to Mr Young, he also did not receive as part of Attachment D a number of witness statements and emails and did not receive as part of Attachment E a memorandum prepared by Mr McAnna to the Committee and a document referring to that document. 16I accept Mr Jarvis's evidence that the documents he sent Mr Young included the documents that Mr Young says he did not receive. Mr Jarvis struck me as an honest and careful witness. The documents that were missing were documents from each attachment. They could not all have been omitted accidentally. The letter refers to documents that were sent that were not included. For example, in relation to Attachment A, the letter says "see copies of correspondence and emails". However, no emails were included with the letter Mr Young says he received behind Attachment A. The last bullet point says "see witness statements in Attachment E" but there is only one witness statement in the version of the letter Mr Young says he received. Mr Young did not raise these discrepancies with Mr Jarvis, although it is clear from other correspondence that Mr Young read the letter giving notice of the meeting carefully. There was no reason for Mr Jarvis to exclude the documents in question from the letter. On the other hand, Mr Young had an interest in saying he did not receive them. 17On 9 March 2012, Mr Young sent to Mr Jarvis an email setting out what was described as a request for further and better particulars. The request sought copies of various documents including NSWRYA's Constitution, minutes of meeting, the NSWRYA's membership register for the years 2001 to 2012 and its financial records for that period. The request also sought various information including the net revenue reduction as a result of members not renewing their membership, the names of members who did not renew and the names of members who were said to have suffered anxiety and stress and if that anxiety and stress had been medically assessed "all records as evidence in support". The request for particulars also sought details of how the meeting on 12 April 2012 was to be conducted including matters such as whether witnesses would be present. 18On 14 March 2012, Redmond Hale Simpson, NSWRYA's solicitors, wrote to Mr Young in which they said the following: It is our client's position that it is not obliged to furnish particulars as sought by you. Certainly, many of the items which you seek are matters of public record which would be readily obtainable by the appropriate search. Many of the other items cannot be relevant to the matter which is to be considered by the Committee. We note that you do have solicitors acting for you in this matter. If you will kindly arrange for them to contact this firm, we will be happy to discuss with them the provision of such particulars as may be appropriate, having regard to the above matters. 19Mr Young responded to that letter by email dated 26 March 2012. That email stated: As a result of your clients refusal to provide the "Further and Better Particulars" as requested on 9 March 2012 my position on the matter is as follows: 1. Apart from dot point 3 contained in correspondence received from NSWRYA Inc dated 6 March 2012, NSWRYA Inc has done nothing more than particularize passed settled events and / or assist others regurgitate disputes between alleged members, in their capacity as members of the NSWRYA Inc and or disputes between NSWRYA Inc and an alleged member of NSWRYA Inc. 2. Dot point 3 is irrelevant, NSWRYA Inc has never been a member of Central Coast Radio Yacht Club Inc or has any influence over the business affairs of the CCRYC Inc. NSWRYA Inc has no agreement what so ever [sic] with the CCRYC Inc and / or any member of the CCRYC Inc to provide NSWRYA Inc with membership and or revenue. 3. NSWRYA Inc is fully aware that unlawful acts including, misconduct, misrepresentation, misappropriation and disregard for the Model Rules of Association of the CCRYC Inc, caused the timely and necessary restructure at the CCRYC Inc. The NSWRYA Inc [sic] attempt to expel an alleged member suffers a fatal flaw, in that NSWRYA must have regard to all the rules of association, applicable at the time of incorporation for the NSWRYA Inc [sic], regardless of the contents contained in NSWRYA Inc constitution. The NSWRYA urgently needs to make itself aware of the contents regarding several Supreme Court of NSW judgments regarding members and Associations in particular Leyonhjelm v Mateer [2008] NSWSC 1320. Paragraphs 4 to 14 inclusive. NSWRYA Inc is simply cherry picking, disputes between members and the association as raised by NSWRYA Inc must be mediated. I advise that I will not be attending any Notice of Motion hearing as described in the NSWRYA Inc correspondence dated 6 March 2012, such a Notice of Motion is irrelevant. The email goes on to say that if NSWRYA took any action that affected Mr Young's ability to participate in radio controlled sailing events he would, without further notice, commence court proceedings. 20On 30 March 2012, Redmond Hale Simpson sent Mr Young a letter enclosing copies of two additional documents which the letter said would form part of the materials to be considered by the Committee on 12 April 2012. One was an email dated 25 March 2012 from Mr Ferguson, a member of the protest committee who heard a protest involving Mr Young at the State Soling Titles on 17 and 18 March 2012. The other was a report dated 28 March 2012 from Mr Maddison concerning the same event. Both complained about Mr Young's conduct at the event. 21On or about 28 March 2012, Mr Norrie resigned from the Committee of NSWRYA. The Committee appointed Mr Condie to fill the casual vacancy created by Mr Norrie's resignation. 22On 12 April 2012, the Committee met to consider a resolution to expel Mr Young. Present at that meeting were Mr Hales, Mr Bicknell, Mr Jarvis, Mr Hayden and Mr Condie. Mr Dan Simpson, NSWRYA's solicitor, also attended the meeting. The meeting lasted approximately 15 minutes. There was no attendance by Mr Young. At the meeting, Mr Jarvis proposed the following amended motion: That Greg Young be expelled from the NSW Radio Yachting Association (Inc) on the grounds particularized in the letter dated 6th March 2012 to Mr Young, and the email dated 25th March 2012 from Colin Ferguson, and the letter dated 28th March 2012 from Peter Maddison forwarded to Mr Young on the 30th March 2012. The resolution to amend the motion in those terms was seconded by Mr Condie and carried unanimously. The minutes then record the following: The Committee considered the amended motion. All the Committee members had read the information sent to Mr Young in the letter and attachments dated the 6th March 2012 and the additional statements sent to Mr Young on the 30th March 2012. Scott Condie had additional information for Attachment B which he will put into writing. The Chairman asked if there was anyone who wished to speak against the motion. No one did. The Motion was then put to the Committee and carried. 23Following the meeting, Redmond Hale Simpson wrote to Mr Young advising him that the Committee had passed a resolution expelling him from NSWRYA and directing his attention to his right of appeal. 24On 19 April 2012, Mr Young sent an email to Mr Simpson asking a number of questions including the consequences of expulsion and the names of the Committee members. Redmond Hale Simpson replied to that email on 20 April 2012 referring Mr Young to the Constitution and giving the names of the Committee members. 25Mr Young did not appeal and, on 1 May 2012, Redmond Hale Simpson wrote to Mr Young noting that he had not appealed and drawing his attention to the fact that, as a consequence, he was not entitled to enter or to sail in any ARYA or NSWRYA regattas. 26Despite what had happened, Mr Young entered the Mt Penang Regatta to be held on 5 May 2012. He attended the regatta on that day and attempted to launch his yacht in the dam at that venue. He was blocked by a security guard and there was an altercation during which Mr Young says that his yacht was damaged. Mr Young has commenced separate proceedings in the small claims division of the Local Court against the NSWRYA in respect of that damage. Those proceedings have not yet been heard. The issues 27Mr Young challenges the validity of his expulsion on three grounds. First, he submits a number of clauses of the model rules set out in schedule 1 of regulations made under the 1984 Act (the Model Rules) were incorporated into NSWRYA's Constitution and that the Committee failed to comply with those clauses. Alternatively, Mr Young submits that a number of clauses of the model constitution (the Model Constitution) set out in schedule 1 of regulations made under the Associations Incorporation Act 2009 (the 2009 Act) were incorporated into NSWRYA's Constitution and that the Committee failed to comply with those clauses. Second, Mr Young submits that Mr Jarvis's letter dated 6 March 2012 did not contain adequate particulars of the conduct that was said to be detrimental to the interests of NSWRYA. Third, Mr Young submits that the Committee did not afford him natural justice when considering the motion to expel him. The Model Rules and Model Constitution 28Section 11(1) of the 1984 Act relevantly provides: The rules of an incorporated association or proposed incorporated association comply with this section if: (a) they make provision, whether by adoption of the model rules or otherwise, for: (i) the several matters specified in Schedule 1 ... Schedule 1 then sets out various matters to be covered by the rules including the following: 5 Disciplining of members The procedure (if any) for the disciplining of members and the mechanism (if any) for appeals by members in respect of disciplinary action taken against them. 5A Internal disputes The mechanism for the resolution of disputes between members (in their capacity as members) and between members and the incorporated association. 29Section 19(3) of the 1984 Act provides: Where in relation to any matter the model rules make provision but the rules of an incorporated association do not make provision, the provision of the model rules shall, in relation to that matter, be deemed to be included in the rules of the incorporated association. 30"Model rules" is defined in s 3 to mean the rules prescribed under section 73. The Model Rules are set out in schedule 1 of the Associations Incorporation Regulation 1999 (NSW): see reg 9. 31Clause 10 of the Model Rules relevantly provides: (1) Disputes between members (in their capacity as members) of the association, and disputes between members and the association, are to be referred to a community justice centre for mediation ... Clauses 11 and 12 provide: 11 Disciplining of members (1) A complaint may be made to the committee by any person that a member of the association: (a) has persistently refused or neglected to comply with a provision or provisions of these rules, or (b) has persistently and wilfully acted in a manner prejudicial to the interests of the association. (2) On receiving such a complaint, the committee: (a) must cause notice of the complaint to be served on the member concerned, and (b) must give the member at least 14 days from the time the notice is served within which to make submissions to the committee in connection with the complaint, and (c) must take into consideration any submissions made by the member in connection with the complaint. (3) The committee may, by resolution, expel the member from the association or suspend the member from membership of the association if, after considering the complaint and any submissions made in connection with the complaint, it is satisfied that the facts alleged in the complaint have been proved. (4) If the committee expels or suspends a member, the secretary must, within 7 days after the action is taken, cause written notice to be given to the member of the action taken, of the reasons given by the committee for having taken that action and of the member's right of appeal under rule 12. (5) The expulsion or suspension does not take effect: (a) until the expiration of the period within which the member is entitled to appeal against the resolution concerned, or (b) if within that period the member exercises the right of appeal, unless and until the association confirms the resolution under rule 12(5), whichever is the later. 12 Right of appeal of disciplined member (1) A member may appeal to the association in general meeting against a resolution of the committee under rule 11, within 7 days after notice of the resolution is served on the member, by lodging with the secretary a notice to that effect. (2) The notice may, but need not, be accompanied by a statement of the grounds on which the member intends to rely for the purposes of the appeal. (3) On receipt of a notice from a member under clause (1), the secretary must notify the committee which is to convene a general meeting of the association to be held within 28 days after the date on which the secretary received the notice. (4) At a general meeting of the association convened under clause (3): (a) no business other than the question of the appeal is to be transacted, and (b) the committee and the member must be given the opportunity to state their respective cases orally or in writing, or both, and (c) the members present are to vote by secret ballot on the question of whether the resolution should be confirmed or revoked. (5) If at the general meeting the association passes a special resolution in favour of the confirmation of the resolution, the resolution is confirmed. 32The 1984 Act was repealed by the 2009 Act. Schedule 4 of the 2009 Act (which sets out transitional provisions) relevantly provides: 4 Rules of existing associations (1) The rules of a former association are taken to be its constitution under this Act and, until the former association changes them under this Act, are taken to comply with the requirements of this Act. (2) To the extent to which a former association adopted the model rules established under the 1984 Act, and until it changes its rules under this Act, those model rules continue in force in relation to that association. 33Section 6(5) of the 2009 Act provides that an association's constitution must address each of the matters referred to in Schedule 1. Two of those matters are disciplining of members (paragraph 5) and internal disputes (paragraph 6). Paragraphs 5 and 6 of Schedule 1 of the 2009 Act are in similar terms to paragraphs 5 and 5A of Schedule 1 of the 1984 Act. Section 25 of the 2009 Act relevantly provides: (1) If an association's constitution fails to address a matter referred to in Schedule 1, the provisions of the model constitution with respect to the matter are taken to form part of the association's constitution. (2) For avoidance of doubt, an association's constitution may address a matter referred to in Schedule 1: (a) by adopting the provisions of the model constitution with respect to the matter, or (b) by adopting a modified version of the provisions of the model constitution with respect to the matter. "Model constitution" is defined in s 4 to mean the constitution prescribed by the regulations. The Model Constitution is set out in Schedule 1 of the Associations Incorporation Regulation 2010 (NSW): see reg 10. 34Clause 10 of the Model Constitution provides: (1) Disputes between members (in their capacity as members) of the association, and disputes between members and the association, are to be referred to a community justice centre for mediation ... (2) If a dispute is not resolved by mediation within 3 months of the referral to a community justice centre, the dispute is to be referred to arbitration. (3) The Commercial Arbitration Act 1984 applies to any such dispute referred to arbitration. With some minor modifications which are not material to the current dispute, cls 11 and 12 of the Model Constitution are in the same terms as cls 11 and 12 of the Model Rules. Were clauses 10, 11 and 12 of the Model Rules or the Model Constitution incorporated into NSWRYA's Constitution? 35The primary submission of Mr Newton, who appeared on behalf of the plaintiff, was that cls 10, 11 and 12 of the Model Rules were incorporated into the Constitution and those clauses were not displaced at the time the 2009 Act came into force. Alternatively, he submitted that, at the time that Act came into force, cls 10, 11 and 12 of the Model Constitution were incorporated into NSWRYA's Constitution. 36I accept that cl 10 of the Model Rules was incorporated into NSWRYA's Constitution. However, I do not accept that cls 11 and 12 were. 37Schedule 1 of the 1984 Act sets out various topics or "matters" that were to be covered by an association's rules. One matter was the disciplining of members. Another was the resolution of disputes. It is clear from the terms of s 19(3) that it was only if the rules of an association did not make provision for a particular matter that the model rules dealing with that matter applied. NSWRYA's Constitution made no provision for the resolution of disputes. Consequently, cl 10 of the Model Rules was incorporated. However, cl 7 of NSWRYA's Constitution plainly made provision for the disciplining of members. Consequently, the Model Rules concerning that matter were not incorporated. 38Mr Newton submitted that the conclusion of the previous paragraph was incorrect because it was necessary to pay close attention to the precise terms of the Model Rules. Clause 11 of the Model Rules applied in different circumstances to cl 7 of NSWRYA's Constitution. The Model Rules required a complaint that a member had persistently and wilfully acted in a manner prejudicial to the interests of the association. NSWRYA's Constitution requires that the Committee consider that a member should be expelled from membership because his or her conduct is detrimental to the interests of the association. The Model Rules required notice of the complaint to be served and the member concerned to be given at least 14 days in which to make submissions. NSWRYA's Constitution requires the Committee to give particulars of the conduct complained of and 30 days' notice. The Model Rules conferred a power of suspension as well as expulsion. NSWRYA's Constitution does not. As a result, Mr Newton submitted that cl 7 of NSWRYA's Constitution was sufficiently different from cl 11 of the Model Rules so that the Model Rules were incorporated. 39According to Mr Newton, that conclusion was supported by the decision in Young v Cotter [1996] NSWCA 573. In that case, the rules of the association provided for the election of a committee, including a president and secretary. Clause 3(a) of the rules provided that the president was to be responsible for the overall supervision and running of the association. Clause 3(b) provided that, under his direction, the secretary was the chief executive officer who was to carry out all the instructions given to him or her by the committee. Clause 8 provided that the annual general meeting was to be held once a year, preferably as early as convenient in April, at a date to be notified to all members at least 30 days prior to the meeting. The clause also provided that each financial member had one vote and the president or other person presiding had a casting vote. One question in the case was whether the Annual General Meeting could be reconvened by the secretary or whether it could only be reconvened by the committee in accordance with cl 24(1) of the model rules applicable at that time. The answer to that question turned on whether cl 24 was incorporated into the association's rules. At first instance, Santow J held that it was not. He thought that cls 3(b) and 8 taken together "comprehends the power on the secretary's part to determine date, time and place in the absence of countermanding direction or instruction" (quoted at [13]). Consequently, they left no gap for the model rules to fill and covered the field in relation to that matter. Sheller JA (with whom Meagher and Handley JJA agreed) disagreed. Clauses 3(b) and 8 did not deal with procedure to be followed for the calling and holding of meetings. The question was not whether the rules of the association covered the field. The question was whether they dealt with the relevant matter. Schedule 1 to the 1984 Act listed the calling of general meetings, the procedure to be followed at general meetings and the time and manner in which notices of general meetings were to be sent as separate subjects to be covered by the rules. The model rules dealt with those topics. The rules of the club did not. Consequently, the relevant model rules applied. 40I do not accept Mr Newton's submissions. Under the 1984 Act, the incorporation of provisions of the Model Rules did not turn on the precise form of NSWRYA's Constitution. It turned on whether NSWRYA's Constitution covered the matters set out in Schedule 1 of the Act. If it did, the Model Rules concerning that matter were not incorporated. NSWRYA's Constitution made provision in relation to the matter of the procedure for disciplining of members and the mechanism for appeals by members in respect of disciplinary action taken against them. That was sufficient to exclude the operation of the Model Rules. Any other conclusion would be unworkable. It is clear from the terms of s 19(3) of the Act that the Model Rules were not intended to override relevant rules adopted by the association. But how could the two sets of rules fit together? For example, if cls 11 and 12 of the Model Rules were incorporated into NSWRYA's Constitution, was NSWRYA only entitled to take action if a member complained that another member had persistently and wilfully acted in a manner prejudicial to the interests of the association or was it entitled to take action if the Committee considered that a member should be expelled from membership because his or her conduct was detrimental to the interests of the association? Similarly, was a member the subject of disciplinary action to be given 14 days in which to answer the complaint or 30 days notice? It is clear that cls 11 and 12 of the Model Rules and cl 7 of NSWRYA's Constitution cannot sit together. 41The decision in Young v Cotter does not compel a different conclusion. In that case, the Court of Appeal concluded that the rules of the association in issue in that case did not deal with the matter in question. In this case, they clearly do. 42For similar reasons, cls 11 and 12 of the Model Rules do not form part of NSWRYA's Constitution. 43Although cl 10 of the Model Rules was deemed by s 19(3) to be included in NSWRYA's rules, I do not think that that rule continued to form part of NSWRYA's Constitution following the repeal of the 1984 Act. Clause 4(2) of the transitional provisions only applies to the extent that an association adopted the Model Rules. NSWRYA did not adopt cl 10 of the Model Rules. Rather, that rule was deemed to be included in NSWRYA's Constitution. In my opinion, there is a distinction between adopting a rule and a legislative provision which has the effect of deeming a rule to be included. The former involves an active decision by the relevant association. The latter is a consequence of legislation. It is one thing to say that a provision actively adopted by an association should continue. It is another to say that a provision that was deemed to be included should continue when the legislation having that effect is repealed and new legislation expressly provides for the inclusion of a different rule if none has been specifically adopted by the association. 44It follows that cl 10 of the 2010 Model Constitution forms part of the NSWRYA's Constitution. Did the Committee fail to comply with clause 10 of the Model Constitution? 45In my opinion, it did not. There may be a question concerning the precise scope of cl 10 of the Model Constitution. However, whatever its scope, in my opinion, it does not apply to disciplinary proceedings conducted in accordance with cl 7 of NSWRYA's Constitution. Schedule 1 to the 2009 Act draws a distinction between the resolution of disputes and the disciplining of members. It treats them as separate matters. Clause 10 must be construed against that background. The disciplining of a member is concerned with whether the member should remain a member of the association. It is not concerned with a dispute between members or the relevant member and the association, although the existence of disputes of those types may be relevant to whether disciplinary action should be taken. Were it otherwise, provisions in an association's constitution concerning the disciplining of members would be otiose. If the question whether a member should be disciplined were a dispute to which clause 10 applied, then it would be necessary to refer that dispute to mediation. If mediation failed, the dispute would have to be referred to arbitration. It is unclear, however, what issue could be arbitrated since the question whether a member should be disciplined is a question first for the committee and then for a general meeting. It might be said that the question to be arbitrated is the question whether a member has acted in a manner prejudicial to the interests of the association. But once the arbitral tribunal made an award on that question, that award would be binding on the parties. The result would be that the question whether a member should be disciplined could never be determined by the committee or a general meeting. Clause 10 of the Model Constitution could not have been intended to have that effect. Did the letter dated 6 March 2012 contain adequate particulars? 46Mr Newton submitted that the 6 March 2012 letter gave inadequate particulars because it made no reference to prior consideration of the Committee concerning whether Mr Young should be expelled and did not explain how the interests of NSWRYA had been detrimentally affected. He also submitted that the particulars themselves were inadequate and that they did not refer to the events that occurred at the State Soling Titles held on 17 and 18 March 2012, although the motion for expulsion was amended to include those events. 47Clause 7(a) of the Constitution requires the Committee to communicate particulars of the conduct said to be detrimental to the interests of NSWRYA and to do so not less than 30 days before the date of the meeting called to consider the question of expulsion. It does not require the Committee to give particulars of its previous deliberations leading it to consider that the relevant member should be expelled. Nor does it require it to explain why the Committee has concluded that the conduct is detrimental to the interests of NSWRYA. What it requires is that particulars be given of the conduct in question. In my opinion, the letter dated 6 March 2012 did that. I have already found that the letter included a number of documents that Mr Young says he did not receive. In my opinion, the letter itself gave adequate particulars. It set out sufficient details of each matter which the Committee had considered for Mr Young to understand the allegations he had to meet. But even if that is not correct, the documents enclosed with the letter gave additional particulars and included much of the evidence the Committee had considered. Mr Young, having read those documents, could not have been under any misapprehension about the matters that caused the Committee to consider that he should be expelled. 48The only real issue is whether Mr Young was given adequate particulars at least 30 days before the meeting in circumstances where he was not given the additional information on which the Committee intended to rely until 30 March 2012. It is no answer to say that the events that were the subject of the letter dated 30 March 2012 occurred within the 30 day period so that it was not possible to give particulars of those events before the time they were given. Clause 7 of the Constitution is quite clear. It requires at least 30 days notice to be given of the particulars of the conduct that caused the Committee to consider that Mr Young should be expelled. That requirement had to be complied with strictly: Goodwin v Vietnam Veterans Motor Cycle Club Australia NSW Chapter Inc [2008] NSWSC 154; (2008) 72 NSWLR 224 at page 233 paragraph 43 per White J. 49However, in my view, the Committee did comply strictly with cl 7. That clause required the Committee to give particulars of the conduct that had led the Committee to consider that Mr Young should be expelled from membership because his conduct was detrimental to the interests of NSWRYA. That is what the letter dated 6 March 2012 did. The later letter gave particulars of new circumstances that the Committee intended to take into account in deciding whether or not to resolve to expel Mr Young. There may be a question whether Mr Young was given an adequate opportunity to respond to those matters and, if he was not, whether he was afforded natural justice. However, those matters were not matters that had led the Committee to consider that Mr Young had engaged in conduct justifying the calling of the meeting. They could not have been, since they had not occurred at the time the meeting was called. Was Mr Young afforded natural justice? 50Mr Newton submitted that Mr Young was not afforded natural justice for 3 broad reasons. First, he submitted that Mr Young was not given adequate particulars or sufficient notice of the case that he had to meet. Second, he was not given a fair hearing because Mr Bicknell and Mr Jarvis, in particular, participated in the decision of the Committee in circumstances where they harboured a personal animosity towards Mr Young, where they were involved in some of the events in question so that they were effectively witnesses for the prosecution and where they had prejudged the matter. Third, he submitted that Mr Simpson was a stranger to the association but participated in the decision of the Committee. 51I do not accept these submissions. 52I have already concluded that the Committee gave Mr Young the particulars that it was required to give to him under cl 7 of the Constitution. I do not think that the Committee was required to give Mr Young the additional particulars he requested. Indeed, that request appears to me to have been oppressive. It is very difficult to understand how, for example, the Committee's financial records going back to 2001 were relevant to the question whether Mr Young should have been expelled for the reasons raised by the Committee. No submissions were made on how the additional information sought by Mr Young would have assisted him in understanding the issues that he had to address. Nor do I think that it was a breach of the rules of natural justice for the Committee to consider another incident that occurred after it had given notice of the meeting. It gave Mr Young the relevant material on 30 March 2012, 12 days before the meeting on 12 April 2012. Mr Young did not suggest that he needed more time to consider that material. Indeed, by that stage Mr Young had decided not to attend the meeting. 53Mr Newton relies on the fact that the minutes of the meeting held on 12 April 2012 record that Mr Condie had additional information for Attachment B. It is unclear what that information was. However, it can be inferred that it was additional evidence relevant to the incident that occurred at the 10 Rater State Championships held on 13 and 14 November 2011. The Committee was not bound only to consider the evidence it had given to Mr Young in its letter dated 6 March 2013. It was entitled to consider other evidence relevant to the conduct that it had already particularised. 54In my opinion, there is no merit in Mr Newton's third submission. There is no evidence to suggest that Mr Simpson participated in the decision of the Committee. He was present in his capacity as the solicitor for NSWRYA to give the Committee legal advice if it was required. The Committee was entitled to have him there for that purpose. 55There is more substance in Mr Newton's second submission. However, I have concluded the matters Mr Newton points to are not sufficient to vitiate the Committee's decision. In Australian Workers Union v Bowen (No 2) [1948] HCA 35; (1948) 77 CLR 601 at 628 Dixon J (with whom Starke J agreed) said: It is important to keep steadily in mind that we are dealing with a domestic forum acting under rules resting upon a consensual basis. It is a tribunal that has no rules of evidence and can inform itself in any way it chooses. Members may act upon their own knowledge and upon hearsay if they are satisfied of the truth of what they so learn and if they give the member with whom they are dealing a proper opportunity of answering the charge and defending himself. ... But the tribunal is bound to act honestly, that is to say it must have an honest opinion that what the member before it did amounted to misconduct and its decision must be given in the interests, real or supposed, of the body it represents and not for an ulterior or extraneous motive ... And at 630: The last matter relied upon as invalidating the decisions is of a more serious kind. It is that the Executive and Dougherty were both prosecutors and judges and animated by such intensity of feeling that they were disqualified by bias. So far as this contention is based upon the fact that the Executive Council promoted the charges and that they were vitally concerned in the controversy not only as members of the union but as office-bearers whose authority had been resisted, there is in my opinion no substance in it. The reason lies in the constitution of the union. In choosing as a domestic forum a governing body and in authorizing it to make inquiries and investigations of such a kind the rules necessarily bring about, if they do not actually contemplate, such a situation. 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. ... His Honour then considered the position of Dougherty, the General Secretary of the Union, who was a member of the committee that had expelled the respondent. After pointing out that Dougherty was the author of the charges against the respondent and had engaged in bitter public attacks on him and had assumed the function of prosecutor at the committee meeting at which the respondent was expelled, his Honour continued at 361: It is not in accordance with the principles of natural justice to have present as a member of the tribunal a person who has promoted the charge and supports it as the prosecutor or one who is invincibly biassed against the accused as a result of his participation in the controversy, and this was the case with Dougherty. If a person disqualified by such considerations sits with the tribunal and takes part in the decision, that is enough to vitiate it. See also McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470; (2002) 191 ALR 759 at [135]-[137] per Campbell J. 56In determining the content of the obligation to afford natural justice, it is necessary to have regard to the relevant rules. In the present case, cl 7 of NSWRYA's Constitution is oddly worded. It requires that the Committee consider that a member should be expelled. If the Committee considers that to be the case, the Committee is required to give the member particulars of the conduct that the Committee considers justifies the expulsion and to give the member an opportunity to be heard on the question. What cl 7 must be interpreted as requiring, before notice is given to the relevant member, is that the Committee consider there to be sufficient grounds for expulsion absent some adequate explanation from the member for why he or she should not be expelled, not that it has made up its mind on that question. 57In the present case, Mr Jarvis and Mr Bicknell in particular had an intimate knowledge of the matters giving rise to the decision to expel Mr Young. Mr Bicknell was one of the members who heard the protest on 27 March 2010. He sat on the Committee when it dealt with the complaint made about Mr Young's conduct at the Championships held on 13 and 14 November 2010. He was the president of CCRYC when the dispute broke out concerning the management of that club and it was his conduct, at least in part, that was the subject of complaint by Mr Young. Mr Bicknell was also the race officer who dealt with complaints about Mr Young at the regatta held on 26 January 2012. Mr Jarvis dealt with Mr Young's purported appeal to ARYA in relation to the protest on 27 March 2010. He, too, sat on the Committee that dealt with incident at the Championship held on 13 and 14 November 2010. He also witnessed the events leading to Mr McAnna's protest and was involved in a dispute with Mr Young on how that protest should be dealt with. However, I do not think that it could be said that either Mr Jarvis or Mr Bicknell took on the role of prosecutor. 58At the meeting on 29 February 2012 the Committee considered whether Mr Young should be expelled. There is no evidence that Mr Jarvis or Mr Bicknell took on the role of prosecutor at that meeting. Mr Newton submitted that an adverse inference should be drawn on that question from the fact that other committee members were not called. However, in my opinion, the only inference that can be drawn from the fact that they were not called was that they had nothing to add to the evidence given by Mr Jarvis and Mr Bicknell. Mr Jarvis called the meeting. But it was his job as secretary to do so. Mr Jarvis prepared a draft of the letter to be sent to Mr Young before the meeting and circulated that draft. However, it was necessary for someone to prepare information for the Committee to consider and one way to do that was to prepare a draft of a letter to be sent to Mr Young for the Committee to consider. As secretary, Mr Jarvis was the obvious person to do that. 59Nor is there any evidence that Mr Jarvis or Mr Bicknell acted as prosecutor at the meeting held on 12 April 2012. The purpose of the meeting on 12 April 2012 was to give Mr Young an opportunity to be heard on why he should not be expelled. He chose not to take advantage of that opportunity. As a result, there was nothing for the Committee to do other than give effect to the tentative conclusion it had reached at the meeting on 29 February 2012. 60In addition, I do not think that the evidence establishes that Mr Jarvis and Mr Bicknell were "invincibly biased" against Mr Young to use the words of Dixon J. They had formed views about some of Mr Young's behaviour which undoubtedly, at least by the end of the meeting held on 29 February 2012, caused them to consider that he should be expelled absent some explanation from Mr Young. However, there is no evidence that they were motivated by personal antipathy towards Mr Young that was unconnected to what they believed to be his unacceptable behaviour in connection with the sport NSWRYA was established to foster. Both Mr Jarvis and Mr Bicknell gave evidence that they wanted to hear from Mr Young on 12 April 2012. Mr Jarvis gave the following evidence: Q. And at the time you held that meeting, 29 February 2012, you had already formed the view, hadn't you, that Mr Young should be expelled? A. I, I thought that he should answer the, the complaints that were being made to me by others. Q. But quite apart from thinking he should answer complaints, you had formed the view then, hadn't you, that he should be expelled? A. I had formed the view that maybe he should be expelled. And Mr Bicknell gave the following evidence in relation to the meeting on 12 April 2012: Q. The reality is that you were seriously [aggrieved] by Mr Young for a long time? A. I had had issues with Mr Young for a period of time, yes. Q. And you knew that if the paragraph 7 procedure under the constitution was invoked, there were only two outcomes? A. Yes. Q. Expulsion or non-expulsion? A. Correct. Q. And you went into that meeting with a mindset directed at expulsion? A. No, that's not correct. I was hoping Mr Young would be present at that the meeting. I accept the evidence given by both Mr Jarvis and Mr Bicknell. Both frankly conceded that they had issues with Mr Young. But, in my opinion, they were genuine when they said that they wanted to hear from him. 61It follows that the Committee did not breach its obligation to afford Mr Young natural justice. Orders 62The proceedings should be dismissed with costs. ********** 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: 19 April 2013