Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Young v New South Wales Radio Yachting Association Inc [2013] NSWCA 430 Hearing dates: On the papers Decision date: 13 December 2013 Before: Basten JA; Meagher JA Decision: (1) Refuse leave to appeal. (2) Dismiss the appeal. (3) Order the applicant to pay the respondent's costs of the proceedings in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ADMINISTRATIVE LAW - natural justice -bias - membership of committee - whether knowledge of complaints a basis for disqualification - complainant declined to answer charge ASSOCIATIONS AND CLUBS - discipline - rules of association - whether model rules incorporated into constitution containing express rules on discipline - inconsistency with statute Legislation Cited: Associations Incorporation Act 1984 (NSW), ss 9, 11, 19; Sch 1, cll 5, 5A Associations Incorporation Act 2009 (NSW), Sch 4, cl 4 Supreme Court Act 1970 (NSW), s 101 Category: Principal judgment Parties: Greg Young (Applicant) New South Wales Radio Yachting Association Inc (Respondent) Representation: Counsel: Mr R K Newton (Applicant) Mr E Petersen (Respondent) Solicitors: Carmody Lawyers (Applicant) GMH Legal (Respondent) File Number(s): CA 2013/301814 Decision under appeal Jurisdiction: 9111 Citation: Young v New South Wales Radio Yachting Association Inc [2013] NSWSC 383 Date of Decision: 2013-04-19 00:00:00 Before: Ball J File Number(s): SC 2012/190744 Judgment 1THE COURT: On 12 April 2012 the Committee of the respondent Association resolved to expel the applicant from his membership of the Association. The applicant challenged that decision in proceedings brought in the Equity Division. On 19 April 2013 Ball J dismissed the proceedings and ordered the applicant to pay the respondent's costs: Young v New South Wales Radio Yachting Association Inc [2013] NSWSC 383. 2On 17 July 2013 the applicant filed a notice of appeal. On 8 October 2013, after a directions hearing on 11 September 2013 relating to the notice of appeal, the applicant filed a summons seeking leave to appeal. The judgment of Ball J was a final order dismissing the proceedings, being proceedings which required leave: Supreme Court Act 1970 (NSW), s 101(2)(r). In the event that leave is refused, the respondent seeks an order dismissing the notice of appeal with costs. The parties have consented to the application being dealt with on the papers. 3It may be assumed for present purposes that the grounds of appeal proposed to be relied on in the event that leave is granted, are those set out in the notice of appeal, wrongly filed without leave. Although there were eight grounds, they were accurately summarised by the applicant in his summary of argument on the leave application in the following terms: "1. Whether clauses 10, 11 and 12 of the 1984 Model Rules continued to have effect, and remained part of the constitution of the prospective respondent, notwithstanding the repeal of the 1984 Act. 2. Whether the committee of the prospective respondent was bound to apply clauses 10, 11 and 12 in and about the complaints and disciplinary action concerning the applicant as a member of the prospective respondent. 3. Whether the applicant was denied natural justice by reason of his purported expulsion having followed a committee meeting at which his principal accusers acted as witness, prosecutor and tribunal." 4The reference to "the 1984 Act" was a reference to the Associations Incorporation Act 1984 (NSW). (The Act has since been repealed and replaced by the Associations Incorporation Act 2009 (NSW).) 5So far as cll 11 and 12 of the 1984 Model Rules were concerned, cl 11 dealt with the disciplining of members and cl 12 with the right of appeal of a disciplined member. The primary judge held that cll 11 and 12 did not form part of the Association's constitution, although nothing can have turned on the terms of cl 12, the applicant not having sought to avail himself of the right to appeal from the decision of the Committee to a special general meeting. (Whether his failure to take that step might have provided a sound discretionary basis for refusing relief in any event need not be considered.) 6An application for incorporation under the 1984 Act was required to be accompanied by a copy of rules of the proposed association which complied with s 11: s 9(c). Section 11 required that the proposed rules could either adopt the "model rules" or otherwise provide for "the several matters specified in Sch 1": s 11(1)(a). Schedule 1 had two relevant provisions: 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. 7Clause 7 of the respondent's constitution dealt with expulsion and rights of appeal. There was no other provision for "discipline", but the primary judge accepted that cl 7 satisfied the requirement of Sch 1, cl 5. Schedule 1 did not require rules dealing with discipline of members, nor, if there were rules, were they required to take any particular form or have any particular content. 8Section 19 of the 1984 Act envisaged that the rules of an incorporated association might be rules complying with s 11 which accompanied the application or might be the model rules as in force from time to time. Section 19 continued: 19 Objects and rules ... (3) 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. (4) An object or a rule of an incorporated association is of no effect if it is inconsistent with this Act or contrary to law. 9To the extent that some parts of Sch 1 were optional and not addressed in rules which were accepted as complying with s 11, it is not entirely clear whether s 19(3) would have any operation. It is sufficient for present purposes to note that the primary judge considered that cl 7 complied with s 11 in respect of the matter identified in Sch 1, cl 5. There is no reason to doubt that conclusion. 10The applicant's summary of argument referred to an intention of the 1984 Act "to provide for minimum standards to automatically apply to constitutions of associations". That proposition was only partly true: s 19(4) prohibited an object or rule inconsistent with the Act or contrary to law, but did not suggest that the model rules were to form a minimum standard with which rules which otherwise complied with s 11 must be consistent. 11There remained a question as to the operation of cl 10. The primary judge held that cl 10 under the 1984 model rules did not survive the repeal of the statute: at [43]. That conclusion is challenged, on the basis that, having been incorporated into the rules of the respondent, it continued to have operation by virtue of cl 4 of the transitional provisions in Sch 4(1) of the 2009 Act. While that proposition was at least arguable, it would not affect the outcome of the proceedings, even if established to be correct. Clause 10 dealt with disputes between members and between members and the Association (being in satisfaction of cl 5A of Sch 1, as a matter dealing with "internal disputes") and therefore did not affect disciplinary proceedings. The conclusion of the primary judge in this regard (at [45]) was undoubtedly correct. 12These conclusions dispose of the first two matters identified in the summary of argument. The third matter concerned a denial of natural justice by reason of either actual or apprehended bias on the part of the committee (the ground did not seek to distinguish between these categories of natural justice). The primary judge identified the relevant principles, referred to the evidence and the principles and applied them, at [50]-[61]. There is no reason to doubt the correctness of the analysis and the conclusion that the Association did not breach its obligation to afford the applicant natural justice. 13Because the applicant has failed to establish an arguable case challenging the correctness of the primary judge, leave to appeal should be refused. 14It follows that, leave being required, the appeal should also be dismissed. The applicant must pay the respondent's costs of the proceedings in this Court. ********** 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: 13 December 2013