Wolfe v Sydney Bush Walkers Inc [2018] NSWSC 1032

Supreme Court New South Wales

Medium Neutral Citation: Wolfe v Sydney Bush Walkers Inc [2018] NSWSC 1032 Hearing dates: 27 June 2018 Decision date: 04 July 2018 Jurisdiction: Equity - Commercial Arbitration List Before: Stevenson J Decision: Summons to be dismissed with costs Catchwords: ASSOCIATIONS AND CLUBS - constitution – where constitution provides that disputes are to be referred to arbitration – whether matter raised by member was a dispute within the meaning of the constitution – proper construction of the constitution Legislation Cited: Associations Incorporation Act 2009 (NSW) Commercial Arbitration Act 1984 (NSW) Commercial Arbitration Act 2010 (NSW) Community Justice Centres Act 1983 (NSW) Cases Cited: Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] FCAFC 192; (2006) 157 FCR 45 McDonald v Dennys Lascelles Ltd [1933] HCA 25; (1933) 48 CLR 457 Texts Cited: N C Seddon, R Bigwood and M P Ellinghaus, Cheshire & Fifoot: Law of Contract (10th ed, 2012) Category: Principal judgment Parties: Ian Wolfe (Plaintiff) Sydney Bush Walkers Inc (Defendant) Representation: Counsel: A Byrne (Plaintiff) G Carolan (Defendant)

Solicitors: Somerville Legal (Plaintiff) Gilchrist Connell (Defendant) File Number(s): SC 2017/359666

Judgment 1. This case is an unhappy example of a falling out between members of a recreational club that has led, quite unnecessarily, to legal processes out of all proportion to the issues at hand. 2. The Sydney Bush Walking Club was established in 1927 for the purpose of promoting bush walking, social activity amongst its members and a regard for the preservation of wildlife and "the great outdoors" in Australia. 3. The defendant, Sydney Bush Walkers Inc, is the successor to the Sydney Bush Walking Club. It is an association incorporated pursuant to the Associations Incorporation Act 2009 (NSW). I shall refer to it at as "the Club". 4. The plaintiff, Mr Ian Wolfe, became a member of the Club in 1978. In 2011 and 2012 he was the president of the Club. 5. On 10 January 2018 a meeting of the Club's members purported to expel Mr Wolfe from the Club. There is a dispute as to whether that purported expulsion had legal effect. 6. Mr Wolfe seeks an order pursuant to s 11(3)(b) of the Commercial Arbitration Act 2010 (NSW) that a different dispute be referred to arbitration. 7. That dispute does not relate to any act or omission affecting his rights as a member of the Club. Rather it relates to whether Mr Wolfe's successor as president, Mr Leigh McClintock, was afforded the time specified in the Club's constitution to make submissions in reply to a complaint made by Mr Wolfe. That complaint related to the manner in which Mr McClintock dealt with a complaint made by yet another member of the Club, Mr Kenn Clacher, that his work had been plagiarised by a further member of the Club (not Mr Wolfe) in a book recording the Club's history. As best as I can understand the terms of Mr Wolfe's complaint, it relates to the terms of an apology ("the Apology") that Mr McClintock recommended the Club make to Mr Clacher. The Club made the Apology in its February 2014 newsletter. I set it out below (at [40]). 8. In that regard, Mr Wolfe relies upon cl 10 of the Club's constitution, which provides: "10. Resolution of disputes (1) A dispute between a member and another member (in their capacity as members) of the association, or a dispute between a member or members and the association, are to be referred to a community justice centre for mediation under the Community Justice Centres Act 1983 [(NSW)]. (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 [(NSW)] applies to any such dispute referred to arbitration." 1. In his List Statement, Mr Wolfe alleges: "3. On 30 January 2014, [Mr Wolfe] lodged a formal complaint against another member [i.e. Mr McClintock] of the Club to the Club's Committee pursuant to section 11(1)(b) of the Constitution in relation to the Apology ('the Complaint'). 4. On 5 February 2014, the Club's Committee dealt with the Complaint at a committee meeting and concluded that 'there were no grounds for this complaint under Part 11'. Contrary to section 11(3), the Committee did not conduct the mandatory constitutional step of serving a notice of the complaint on the member concerned [again, Mr McClintock], allowing 14 days for the member concerned to make submissions to the committee ('the Contravention'). 5. On 14 February 2014, [Mr Wolfe] lodged a formal Dispute with the 2013 Committee in relation to the Contravention ('the Dispute')."