Benson v Ortho-Bionomy Australia Limited

Background

1. Ortho-bionomy is an alternative health practice which was described in evidence as involving a non-invasive method of therapeutic bodywork designed to address pain and stress patterns and promote structural balance and ease of movement. It was originally developed by an osteopath, Arthur Lincoln Pauls. It is a technique similar to, but not the same as, osteopathy and remedial massage. In contrast to osteopathy, it is not a health profession regulated by the Australian Health Practitioners Regulation Authority.
2. OBA is a public company limited by guarantee which aims to "promote and establish an Ortho-Bionomy Community and to educate practitioners in the philosophies and principles of Ortho-Bionomy throughout Australia" (OBA's Constitution, cl 3(a)). It requires its members to abide by a Code of Ethics and its instructors to abide by a Code of Conduct. However, it does not have any power to regulate or control who can practice ortho-bionomy in Australia and a person can practice ortho-bionomy in Australia without being a member of OBA. The Board of OBA is made up of voluntary members.
3. Ms Benson had been a member of OBA since its establishment in July 2011. Ms Benson was the inaugural chairperson and served on the OBA Board until October 2012. In 2014, she became a member of the board of the Society of Ortho-Bionomy International (SOBI), which is an organisation based in the United States which acts as the peak international body for ortho-bionomy, and was its president from 2017 to 7 June 2019 when she resigned.
4. Ms Benson has been a practitioner of ortho-bionomy since around 1995. She received training to teach other practitioners, becoming qualified as an advanced instructor through a course run by SOBI. She has derived income from being both a practitioner and teacher of ortho-bionomy.
5. Ms Benson was expelled as a member of OBA by a resolution of the OBA Board passed on 3 September 2019 and confirmed by a resolution passed at a general meeting of members of OBA on 14 June 2020. The events leading up to her expulsion are summarised below, including three matters which led to the OBA Board's dispute with Ms Benson. Those are (a) Ms Benson's conduct in 2015 regarding the method of advertising ortho-bionomy (b) Ms Benson's complaints against two other instructors in 2018 and (c) Ms Benson's complaint against another instructor in 2019.

Issue regarding advertisements

1. In August 2014, Ms Sonter, then a member and director of OBA, facilitated a session at OBA's annual conference which included some discussion on marketing a practitioner's ortho-bionomy practice and whether it could be advertised under the "osteopathy" section in the Yellow Pages. Ms Sonter was advertising her business under "osteopathy" around that time following a discussion with a Yellow Pages representative who had suggested her advertisement could go in that section.
2. On 15 July 2015, Ms Sharron Morgan, a member of OBA, sent an email to the OBA Board raising concerns regarding the appropriateness of advertising under "osteopathy", to which Ms Sonter replied.
3. Ms Benson became aware of Ms Morgan's concern and, on 16 July 2015, had a telephone conversation with Mr Antony Nicholas, the CEO of Osteopathy Australia, regarding advertising under "osteopathy" in the Yellow Pages. The following day, on 17 July 2015, Mr Nicholas sent a letter to Ms Benson informing her that advertising under "osteopathy" in the Yellow Pages could be in breach of relevant codes and guidelines pursuant to s 39 of the Health Practitioner Regulation National Law (NSW) as well as an email to Ms Sonter informing her that her advertisement may be in breach of such laws.
4. On 17 July 2015, Ms Benson forwarded that letter from Osteopathy Australia to Ms Morgan who then forwarded it to Ms Janine McCarthy (the then Chair of the OBA Board) raising her concern that members of OBA should be notified that this advertising practice was inappropriate. Shortly afterwards the OBA Board took steps to correct information on the members' section of the OBA website to make the position of the OBA Board clear.
5. On 5 October 2015, Ms McCarthy sent Ms Benson a letter setting out how the matter had been resolved and then went on to express concern regarding Ms Benson's role in the matter and that the OBA Board (except for Ms Sonter who had not been part of its decision-making on the issue) considered her conduct to be inappropriate. I will set the letter out in full because it is relevant to Ms Benson's challenge to her expulsion: I write in reference to your action in July this year to inform the CEO of Osteopathy of Australia that one of our members was advertising under the category of osteopathy in the Yellow Pages. For your information, due to Karen Sonter's involvement in this matter, she has not been part of our decision-making process to resolve it. The issue you have raised is an important one. It is essential that our members represent themselves and Ortho-Bionomy with professional integrity in all forums and all forms of advertising. We appreciate your awareness of this issue and your stated aim to bring clarity to the question of how and where we advertise our businesses. As you saw in my earlier email to Sharron Morgan on 27th July, the Board of Directors of Ortho-Bionomy Australia acted quickly to remove the information about advertising under other modalities from the member's section of our website, and Karen Sonter (the member in question) has changed her advertising in her local Yellow Pages. However, your own action was also inappropriate in this situation and we are obliged to provide you with written feedback. Regardless of your intentions, you criticised the actions of one of our members to the head of an external organisation without authorisation by your own professional organisation. Although you indicated to me by phone when we spoke on July 23rd that you did not identify our organization, modality or the member in question, Mr Nicholas was nonetheless able to locate and contact Karen on the same day you spoke with him and he threatened to take legal action against her business. Assuming this has also brought Ortho-Bionomy to his attention, it is unfortunate that his first awareness of our modality has been in a negative context. The Board is concerned that this could potentially be harmful for the businesses of all Ortho-Bionomy practitioners. As you are probably aware, your action in this instance was outside our code of conduct, to which we are all obliged to adhere to continue our membership with OBA. All members have a responsibility to contact the OBA Board of Directors when they consider the conduct of one or more of our members to be inappropriate. Any contact with another organisation regarding the conduct of our members must come from the Board of Directors. We ask that you communicate with the board directly if you have concerns about other members in the future. The future of Ortho-Bionomy in Australia depends on the strength of our community as a whole as well as our integrity. We can achieve more positive outcomes when we work together with this in mind.

Complaints

1. OBA had a written grievance policy and procedure (Grievance Policy) whereby a member of OBA could submit a "grievance submission form" to the OBA Board. The Grievance Policy requires that the Board provide a copy of the form to both the person who was the subject of the grievance and the Ethics Committee established by the Board pursuant to cl 11.14 of the Constitution. The role of the Ethics Committee was to determine whether there had been a breach of the Code of Ethics or the Code of Conduct for instructors, and then report back to the OBA Board with any recommendations for action to be taken in relation to the grievance. The OBA Board was then required to decide what if any action should be taken based on the Ethics Committee's recommendation.
2. The Grievance Policy is not part of the Constitution and there is no evidence to suggest that it was brought into existence by a resolution of the OBA Board.
3. On 12 September 2013, Ms Benson submitted a grievance submission against Ms Eileen Jeboult, a member of OBA, which concerned an allegation that Ms Jeboult had conveyed certain information about Ms Benson to third parties in breach of the Code of Ethics. The evidence does not disclose how this grievance was resolved but it appears that no disciplinary action was taken. It is relevant only because it is referred to briefly in the 12 August 2019 email at [30] below.
4. On 6 September 2018, Ms Benson submitted a grievance submission form regarding Ms Donna-Lee Wynen (Wynen Grievance) and another regarding Mr Bruce Stark (Stark Grievance) both of whom were members of OBA and trainee instructors. Those grievances both arose out of an ortho-bionomy training session that Ms Benson did with Ms Wynen on 20 April 2018. Ms Benson raised concerns about that session directly to Ms Wynen as well as with Mr Stark and Mr Andrew Malone. On 28 December 2018, the Ethics Committee produced a report into the Wynen and Stark Grievances recommending that no further action be taken against either Ms Wynen or Mr Stark.
5. On 8 January 2019, Ms Sonter (the Chair of the OBA Board) forwarded a copy of the Ethics Committee's report by email to Ms Benson (8 January email). The 8 January email stated that the OBA Board had accepted the recommendation of the Ethics Committee and contained a detailed discussion of the two complaints and how they had been dealt with. The 8 January email then concluded with a request that Ms Benson exercise caution in regard to discussing information about trainee instructors with others, as follows: Final Suggestions: Finally, the board feels it necessary to say something about the spread of individual or subjective issues even though it may be said in confidence. One might say to half a dozen people "this is confidential" meanwhile it becomes relatively widely spread in a small community such as our own. The board absolutely acknowledges your need for support, as the follow on from this feedback session occurred. But there is a concern with the number of instructors drawn into this support role, in this instance, and the reduced confidentiality and privacy afforded to Donna-Lee in this process. It is important, bearing our Code of Ethics/Conduct in mind, that an instructor communicating subjectively to the wider instructor community regarding a trainee's abilities, may be considered a breach of a member's privacy. Or in fact feel intimidating, hindering a trainer's desire to continue training. Five out of eleven Australian instructors (yourself, Bruce, Eileen, Frank, and Andrew) and another three on the OBA board and Ethics committee, comprises most of the instructor community in Australia. As per our processes, Donna-Lee was forwarded a copy of your grievance submission, in order that she respond. She is aware of the reach of this information, via your comments. To that end we request that you exercise caution in regard to discussing trainee information in the future. Considering that the helpful support of the initial four Instructors still left you feeling there was not a way forward but to submit a grievance, it may be seen by a trainee as "seeking collusion" or "drawing others in" unnecessarily. In the absence of the trainee's adviser, we suggest working a concern like this through with your own adviser. Alternatively, another option may be to speak with one board member, who could mentor you, then recuse themselves from final decision making should you still feel a grievance needs to be submitted. Please contact me, or any members of the board, if you have any further questions on the matter.
6. Ms Sonter received no formal response to the 8 January email.
7. On 29 and 30 April 2019, Ms Benson emailed Ms Sonter raising her concerns regarding the manner in which an ortho-bionomy instructor, Mr Rob Rich had been teaching a "trauma study group" (Rich Complaint). Mr Rich was also a member of the OBA Board. The concern was that he was working outside his area of expertise. On 30 April 2019 Ms Benson also raised those concerns with two other members of OBA, Ms Eileen Jeboult and Mr Bruce Stark.
8. On 21 May 2019, the OBA Board held a meeting considering action to be taken following the Rich Complaint. All members of the OBA Board (being Ms Sonter, Mr Selzer, Mr Rich, Mr Heslin and Ms Munro) were present, except for Mr Rich who recused himself. The minutes of the meeting record the following: 6. General Business 6.1 New SOBI Instructor Policy, May 2019 and repercussions from Debby Benson email. There was some discussion around the ongoing action of Deb Benson (DB) lodging complaints against various members, including the recent complaint referred to the CRC in SOBI about RR, OBA director. RR recused himself from the discussion about appropriate action to be taken. It was resolved that the board will send a letter requiring Debby to comply with OBA Codes of Conduct or OBA membership could be withdrawn.
9. The minutes state that the action for this item was that Ms Sonter would draft a letter to Ms Benson and email it to the OBA Board members for their contribution. Ultimately, the email referred to in the next paragraph was sent to Ms Benson.
10. On 1 June 2019, Ms Sonter sent an email to Ms Benson (1 June email) regarding the Rich Complaint which commenced: Dear Debby I write to you, in your capacity as an Advanced Instructor member of Ortho-Bionomy Australia and SOBI, representing the Board of Directors of Ortho-Bionomy Australia Ltd. We advise that the board perceives in your recent initiation and management of a situation involving Rob Rich's study group, that you handled it in a way that directly acted against the Board's directions in our email to you on 8/1/2019, following your grievance submissions concerning Bruce Stark and Donna-Lee Wynan. In that email the Board requested you exercise caution in communications and advised you against "seeking collusion" or "drawing others in" unnecessarily.
11. The essence of the OBA Board's concern, as stated in the 1 June email, was that Ms Benson had contacted three Ortho-Bionomy instructors (Mr Stark, Ms Jeboult and Ms Sonter) to discuss with them her concerns that Mr Rich was conducting a study group outside his area of expertise rather than raising it directly with Mr Rich. This was seen by the OBA Board as an attempt by Ms Benson to "draw others in" against another instructor, which was seen as both contrary to the 8 January email and in breach of a number of the provisions of the Code of Conduct and Code of Ethics. The 1 June email concluded as follows: Following the Board's requests in the email after your last grievance submission, about maintaining confidentiality, ethical behaviour, and ceasing slanderous talk, our Constitution obliges the Board of directors to advise that any future transgressions of our Codes of Ethics and Instructor Conduct, by you, will require a surrender of your membership. Cessation of membership is solely up to the discretion of the OBA Board, but not something we take lightly. Perhaps we have not been direct enough in our requirements that you comply with OBA's codes. So, please consider this as your final caution, before such action will be taken. The OBA Ltd board requires that you discontinue divisive behaviour of this nature. As an Advanced Instructor it is not the type of model the Board wishes for our student members. In the future we require that you contact colleagues directly, to comply with confidentiality; and respectfully convey all the facts to only those directly involved, without the use of subjective or slanderous allegations. This will give the opportunity for positive response and growth for members of our organisation and community. Please reply indicating your understanding on these matters, or to organise a meeting with the OBA Ltd board to clarify any points for you. The Directors of OBA have a duty of care to all OBA members. In this regard we seek your written assurance that you have understood what we have requested of you and that you will comply. We seek this written assurance within 14 days from this email.
12. On the same day, Ms Benson replied to the 1 June email by an email which addressed a number of the matters raised in Ms Sonter's email but not the undertaking sought in the last paragraph set out above, and concluded: As you have threatened to remove me as a member and this affects my livelihood, it has legal ramifications and I have copied your email and my email to my solicitor.
13. On 25 June 2019, the OBA Board held a meeting at which one of the matters discussed was Ms Benson's email of 1 June 2019. All the members of the OBA Board were present at this meeting, being Ms Sonter, Mr Salzer, Mr Rich, Mr Heslin and Ms Munro. It appears that Ms Benson had not communicated with Ms Sonter or any other member of the OBA Board since 1 June 2019.
14. The minutes of the meeting of 25 June 2019 record the following: 6. General Business 6.1 Follow on from Debby Benson email. Our response? Various possible options were discussed to respond to DB's email in order to protect members from further disruption. It was agreed to use 2 free hours of advice from AON recommended solicitor to clarify the way forward.
15. Following this meeting, Ms Sonter commenced drafting an email to Ms Benson outlining the OBA Board's concerns and that the OBA Board considered that her conduct amounted to an "Expulsion Event" for further discussion at the next OBA Board meeting which took place on 30 July 2019. Ms Sonter circulated a draft of the email to the other members of the OBA Board for their review and comment before the OBA Board meeting held on 30 July 2019, and it was then discussed at that OBA Board meeting. All members of the OBA Board were present at this meeting, being Ms Sonter, Mr Salzer, Mr Rich, Mr Heslin and Ms Munro.
16. The minutes of the meeting of 30 July 2019 record the following: 5.3 Follow on from Debby Benson email. Post solicitor advice. Our response? A letter responding to Deb Benson's previous letter, containing a warning about expulsion as a member has been drafted and approved by the directors and is being checked by the solicitor. There was also concern express about DB and RV marketing a special subject retreat. It was resolved to inquire with the SOBI PRC as to whether this is acceptable as an Ortho-Bionomy retreat for Practitioner Training.
17. The letter which the minutes of the meeting on 30 July 2019 record as having been approved by the directors was ultimately sent to Ms Benson on 12 August 2019, without any further amendment from the draft approved by the directors, by way of an email sent by Ms Sonter, which was copied to all members of the OBA Board (12 August email). The 12 August email commenced as follows: Dear Debby, The OBA Board of Directors responds, following on from past communications regarding our concerns of ethical breaches by you. In your response to the Board, in your email dated 1/6/19, you did not give the Board written assurance that you have understood the position taken by us on this matter. Nor did you give assurance that you will comply with OBA Ltd Codes of Ethics and Conduct. In responding, you made a number of allegations about the actions of (2) other Instructors, and the Board of Directors. Reference will be made to your allegations later in this email. Your recent response has led the Board to review your actions in recent years for the purposes of considering your status as a member of OBA Ltd. In doing so, the Board has reviewed and considered the information provided by you via:

• Grievances you have submitted since 2012, concerning Donna-Lee Wynan, Bruce Stark and Eileen Jeboult.
• Verbal and email communications between you and various board members, in your Instructor capacity.
• Your contact with Osteopathy Australia in 2016 (sic), regarding a member's advertising compliance matter, rather than contacting the board, and the board's responses thereto.
• Recent matters regarding Rob Rich teaching certain study group content, and
• Your most recent response to the Board's concerns of ethical beaches (sic), in emails of 1/6/19. The OBA Board considers your conduct both currently and historically, amounts to a failure to comply with the provisions of OBA Ltd's constitution and/or is unbecoming of a member or is prejudicial to the interests and reputation of OBA Ltd. The Board's reasons for this conclusion are: …

1. The 12 August email then identified in some detail a number of the aspects of her "conduct" which were said to involve breaches of particular articles of the Code of Ethics and the Code of Conduct and then concluded: We consider your actions to undermine, rather than support OBA Ltd in its mission. Creating divisiveness in the Australian Ortho-Bionomy community, rather than supporting the practice of Ortho-Bionomy. From an Advanced Instructor, this is a poor model to students, not in the best interests or reputation of OBA Ltd. As pointed out in both the Code of Ethics and the Code of Conduct for Ortho-Bionomy Australia Instructors, and advised in our email of 1/6/19, transgressions of each of our Codes may result in your membership being revoked. Based on the Board's assessment of your actions, as set out above, the Board considers that your actions qualify as an "Expulsion Event" within the meaning of OBA Ltd's Constitution (see Schedule 1 - Dictionary). To that end, the Board has resolved and gives notice in accordance with clause 7.2(a)(ii) of the Constitution that you are liable to be expelled from the membership of OBA Ltd in (10) business days. The Board further advises that, under rule 7.2(c) you are entitled to give the directors any explanation or defense you may think fit, within that time, for their consideration. Such explanation may be given, to the board of directors, either orally or in writing. Regards, The Board of Directors, Ortho-Bionomy Australia Ltd
2. Ms Benson responded to the 12 August email by six emails, one sent on 12 August 2019, three on 13 August 2019 and two on 21 August 2019.
3. The first of these emails sent on 12 August 2019 was as follows: Dear Board of Directors I take on all that you have said and will follow the Code of Conduct and Code of Ethics for OBA. I have worked tirelessly for OBA and SOBI. I can only ask that you take into account my previous volunteer work for Ortho-Bionomy in Australia and the US.
4. Ms Sonter gave evidence in cross-examination, which I accept, that she was "extremely happy" with this response as she thought it might present an opportunity to have a discussion with Ms Benson as to "how to more productively move forward". However, it is apparent that the position changed following the further emails which Ms Benson sent on 13 and 21 August 2019.
5. The OBA Board dealt with Ms Benson's responses at its next meeting on 23 August 2019. All the members of the OBA Board (being Ms Sonter, Mr Salzer, Mr Rich, Mr Heslin and Ms Munro) were present at the meeting. The minutes of that OBA Board meeting record: 5.3 Follow on with Debby Benson (DB). After solicitor advice, the board sent an email giving (10) days' notice of expulsion to give DB the opportunity to provide assurance in support of continuing as a member. This 10-day period expired today. DB's responses were unapologetic. As membership removal will affect her income, she threatened legal action against the board if it proceeds. The board also received a letter from Madeleine Sheldon, in support of DB, her mentor. The board discussed possible consequences of DB expulsion in causing further conflict between members. The board decided to investigate appointing an independent mediator or arbitrator to help resolve this dispute, to reduce risk of conflict between its members.

OBA's Constitution

1. OBA's Constitution has effect as a contract between OBA and each of its members, and between the members, by operation of s 140(1) of the Corporations Act 2011 (Cth), which states: (1) A company's constitution (if any) and any replaceable rules that apply to the company have effect as a contract: (a) between the company and each member; and (b) between the company and each director and company secretary; and (c) between a member and each other member; under which each person agrees to observe and perform the constitution and rules so far as they apply to that person.
2. Under that contract, the company and its members each agree to observe and perform the constitution. It is not in dispute that as a consequence, the decision of OBA to expel Ms Benson is amenable to judicial review by the court by way of declaration: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5th ed, 2015, LexisNexis Butterworths), [21-305].
3. Clause 5.1 of OBA's Constitution states that unless otherwise resolved by the company in a general meeting, the membership of the company consists of ordinary members. Clause 5.3 provides that a member has the right to receive notices of and attend and be heard at any general meeting of the company, and the right to vote at any general meeting
4. The OBA Constitution provides for the expulsion of members in cl 7.2: 7.2 Expulsion of member (a) Subject to rule 7.2(c) the directors may resolve to expel a member if: (i) an Expulsion Event occurs in respect of the member; and (ii) the company gives that member at least 10 Business Days notice in writing stating the Expulsion Event and that the member is liable to be expelled, and informing the member of its right under rule 7.2(c). (b) The directors may resolve to expel a member if the member does not pay a fee payable by the member pursuant to this constitution within 20 Business Days after the due date for its payment. (c) Before the passing of any resolution under rule 7.2(a), a member is entitled to give the directors, either orally or in writing, any explanation or defence of the Expulsion Event the member may think fit. (d) Where a resolution is passed under 7.2(a) or 7.2(b), the company must give that member notice in writing of the expulsion within 10 Business Days of the resolution. (e) A member may by notice in writing to the company within 10 Business Days of receipt of the notice referred to in rule 7.2(d), request that a resolution under rule 7.2(a) be reviewed by the company at the next general meeting. If such a request is made, the directors must propose at the next general meeting of the company that a resolution be moved to confirm the expulsion of the member concerned. (f) A resolution under rule 7.2(a) takes effect: (i) if the member gives a notice under rule 7.2(e), the date (if any) the resolution is confirmed by a general meeting of the company; or (ii) if the member does not give a notice under rule 7.2(e), the date of the resolution. (g) A resolution under rule 7.2(b) takes effect on the date of the resolution. (h) The directors may reinstate an expelled member on any terms and at any time as the directors resolve, including a requirement that all amounts due but unpaid by the expelled member are paid.
5. The term "Expulsion Event" is defined as follows: Expulsion Event means, in respect of a member: (a) the member has wilfully refused or neglected to comply with the provisions of this constitution; (b) the conduct of the member, in the opinion of the directors, is unbecoming of the member or prejudicial to the interests or reputation of the Company; or (c) the member is, or any step is taken for the member to become, an externally administered body corporate).
6. Meetings of directors are dealt with in cl 11 of the Constitution. Clause 11.6(a) states that the directors may hold meetings for the conduct of business and adjourn and otherwise regulate their meetings as they think fit. Clause 11.9 provides that no business can be transacted at a meeting of directors unless there is a quorum, being three directors. Clause 11.11 provides relevantly: (a) A meeting of directors at which a quorum is present is competent to exercise all or any of the authorities, powers and discretions vested in or exercisable by the directors under this constitution. (b) Questions arising at a meeting of directors are to be decided by a majority of votes cast by the directors present and a decision of that kind is for all purposes a determination of the directors.
7. Clause 11.12 provides for the making of decisions of directors by circular resolution. It provides: (a) An act, matter or thing is taken to have been done or a resolution passed by a meeting of the directors, if a document containing a statement to that effect is assented to by all of the directors other than: (i) a director on leave of absence approve by the directors; (ii) a director who disqualifies himself or herself from considering the act, matter or thing in question on the grounds that he or she is not entitled at law to do so or has a conflict of interest; and (iii) a director who the directors reasonably believe is not entitled to do the act, matter or thing or to vote on the resolution in question, and the directors who assent to the document would have constituted a quorum at a meeting held to consider that act, matter, thing or resolution. (b) The act, matter or thing is taken to have been done or the resolution passed when the document is last assented to by a director. (c) Two or more separate documents in identical terms each of which is assented to by one or more directors are to be taken as constituting one document. (d) A director may signify assent to a document by signing the document or by notifying the company of the director's assent in person or by post, facsimile, electronic, telephone or other method of written, audio or audio visual communication. (e) Where a director signifies assent to a document otherwise than by signing the document, the director must by way of confirmation sign the document at the next meeting of the directors attended by that director, but failure to do so does not invalidate the act, matter, thing or resolution to which the document relates. (f) Where a document is assented to in accordance with this rule 11.12, the document is to be taken as a minute of a meeting of directors.
8. During the period from 21 May 2019 to 3 September 2019 when the OBA Board gave consideration to the issue regarding the expulsion of Ms Benson, OBA had five directors: Ms Sonter, Ms Salzer, Mr Rich, Mr Heslin and Ms Munro. The minutes of the meetings on 21 May, 25 June, 30 July, 23 August and 3 September 2019 referred to earlier were attended by all five directors, except for the last meeting which was attended by all except for Ms Sonter as she had recused herself.

The issues

1. As refined by Counsel for the plaintiff in closing submissions, the plaintiff challenges the validity of her expulsion on four grounds.
2. First, it is said that the required procedure for expulsion of a member under the Constitution was not followed because there was no resolution of the OBA Board in accordance with cl 11.11 of the Constitution by which the required opinion under paragraph (b) of the definition of Expulsion Event was formed.
3. Second, it is said that the requirements of natural justice were not followed because the 12 August email fails to identify with specificity the nature of the Expulsion Event and the reasons why the matters relied on by the OBA Board constitute an Expulsion Event.
4. Third, it is said that the OBA Board's decision was vitiated by apprehended bias due to Ms Sonter's involvement in the OBA Board's decision-making leading up to the meeting of 3 September 2019 (at which she was not present) and her action in reading a statement to the members of OBA at the commencement of the general meeting on 8 November 2019.
5. Fourth, the OBA Board failed to give Ms Benson the benefit of the procedures contained in the Grievance Policy for resolving the grievance against her before making its decision to expel her on 3 September 2019.

Ground 1: No formal OBA Board resolution

1. It is not in dispute that in order for a member of the OBA to be expelled the procedure laid down in the Constitution must be strictly followed: Hornby v Narrandera Ex-Servicemen's Club Ltd [2001] NSWSC 235 at [8]-[10]; McLelland v Burning Palms Life Saving Club [2002] NSWSC 470 at [74].
2. The Constitution requires the following steps to be taken where an Expulsion Event falling within paragraph (b) of the definition of that term in the Constitution is relied on. First, the OBA Board must form the opinion that the conduct of the member is unbecoming of the member or prejudicial to the interests or reputation of OBA. Ms Benson disputes that this occurred.
3. Second, the OBA Board under cl 7.2(a) must give the member at least 10 business days' notice in writing stating the Expulsion Event and that the member is liable to be expelled, and informing the member of his or her right under cl 7.2(c). It is not in dispute that this was done by the 12 August email (if the first step occurred).
4. Third, the member is then entitled under cl 7.2(c) to give the directors either orally or in writing any explanation or defence of the Expulsion Event the member may think fit. It is not in dispute that this was done by Ms Benson's six emails on 12, 13 and 21 August 2019.
5. Fourth, the directors must then pass a resolution to expel the member (cl 7.2(a)). It is not in dispute that this was done by the resolution of the OBA Board on 3 September 2019.
6. Fifth, the Company must then give the member notice in writing of the expulsion within 10 business days of the resolution of the directors referred to in the previous paragraph being passed (cl 7.2(d)). This was done by the email from Mr Salzer to Ms Benson on 8 September 2019.
7. Sixth, the member then has the right by notice sent within 10 business days of receipt of notice of the resolution of the directors to request that the resolution be reviewed by the Company at the next general meeting (cl 7.2(e)). Ms Benson gave this notice by the letter sent by her solicitors on 18 September 2019 to the OBA Board.
8. Finally, a general meeting must be held at which the resolution to confirm the expulsion is put to members (cl 7.2(e)). A general meeting was held on 8 November 2019 to consider Ms Benson's expulsion but was adjourned before a vote. A reconvened meeting on 14 June 2020 was held at which the vote was confirmed by a majority of 87% of the members attending the meeting who voted.
9. In relation to the first step of the required procedure, the contention for Ms Benson is that there was no resolution of the directors prior to the vote to expel her that the directors had formed the requisite opinion required by paragraph (b) of the definition of Expulsion Event. It was submitted that it is a requirement of cl 11.11(b) of the Constitution that in order for the directors to form the requisite opinion, there must be a meeting of directors at which a resolution to the effect that the directors have formed the relevant opinion is passed. It is not in dispute that the minutes of the OBA Board do not record a resolution to this effect.
10. There are a number of problems with this submission. First, the Constitution does not require that the opinion referred to in paragraph (b) of the definition of Expulsion Event be formed at a meeting of the OBA Board and that it be expressed in the form of a resolution. This is clear from contrasting paragraph (b) with the terms of cl 7.2(a) which requires that the decision to expel a member must be by a resolution of the directors.
11. Second, Counsel for OBA submitted that reliance can be placed on cl 11.12(a) of the Constitution which provides that an act is taken to have been done or a resolution passed by a meeting of the directors if a document containing a statement to that effect is assented to by all the directors. It is submitted that the draft letter approved by the OBA Board at its meeting on 30 July 2019 was a document containing a statement to the effect that the directors were of the opinion that an Expulsion Event had occurred in respect of Ms Benson and consequently under cl 11.12(a) it was an opinion of the directors for the purposes of cl 7.2(a)(i). While it is true that the formal requirements for the directors to signify their assent by signing the relevant document at the next meeting of the directors did not occur, it is clear from cl 11.12(e) that the failure to do so does not invalidate the act, matter, thing or resolution to which the document relates.
12. In my opinion, OBA's submission is correct. The minutes of the meeting of the OBA Board on 30 July 2019 at which all the directors were present records that the form of the 12 August email had been "approved by the directors". This constitutes evidence that all the directors had assented to the statement contained in the draft letter that the necessary opinion had been formed as at 30 July 2019. While the formal requirement of cl 11.12(e) was not satisfied, it is clear from that clause that this does not invalidate the act of formation of the relevant opinion.
13. Third, even if cl 11.12(e) is inapplicable, in my view the doctrine of unanimous assent, sometimes referred to as the Duomatic principle (based on Re Duomatic Ltd [1969] 2 Ch 365), applies. Under that principle, anything the directors can do at a formal board meeting they can do informally if they all agree to it. All the directors of OBA had, at or prior to the meeting on 30 July 2019, formed the opinion stated in the draft letter discussed at that meeting and their assent to that statement in the draft letter is as binding as a resolution of the directors would be: J W Broomhead (Vic) Pty Ltd (in Liq) v J W Broomhead Pty Ltd [1985] VR 891 at 915; Runciman v Walter Runciman Pty Ltd [1993] BCC 223 at 230; Franbar Holdings Ltd v Casualty Plus Ltd [2010] EWHC 1164 at [19] (affirmed on appeal [2011] EWCA Civ 60); Mercanti v Mercanti [2015] WASC 297 at [121]-[124] (affirmed on appeal (2016) 50 WAR 494; [2016] WASCA 206 at [205]-[213] and [366]-[369]).
14. Accordingly, this ground is not made out.

Ground 2: Denial of procedural fairness

1. In general terms, the minimum requirements of natural justice are, first, that the person is fairly appraised of the allegations against him/her; second, that the person is afforded a fair opportunity to bring forward material to correct or dispute any allegation made against him/her and third, that the relevant tribunal reaches a decision free from bias and unaffected by any ulterior or extraneous motive: Samuel v St George Leagues Club Ltd (NSWSC, 20 October 1992, Powell J, unreported); Hornby v Narrandera Ex-Serviceman's Club Ltd [2001] NSWSC 235 at [8]; Bundagen Co-operative v Battle [2010] NSWSC 160 at [22].
2. However the application of the principles of natural justice to the expulsion of a member of a private organisation such as the OBA can be excluded by express words or necessary implication and that, even where they do apply to the organisation, their requirements must depend on the circumstances of the case so that they may operate simply by requiring that the rules of the organisation be construed on the basis that fair procedures are intended: McLelland v Burning Palms Life Saving Club [2002] NSWSC 470 at [97]-[100].
3. The Constitution of the OBA does not expressly exclude the application of the principles of natural justice. Indeed, the various steps required to be followed in a case of an expulsion of a member appear to implicitly recognise that the member should be given, in advance of any decision for expulsion, notice of what is alleged against him/her and the right to be heard (either orally or in writing) in answer to those allegations: cl 7.2(a) and (c) of the Constitution.
4. It was not in dispute that it is not the role of the Court to substitute its own view on the question whether paragraph (b) of the definition of Expulsion Event is satisfied for the view of either the OBA Board or the OBA members in general meeting. The only recognised situation where the Court will interfere with the merits of a decision of a domestic tribunal is where it is satisfied that no reasonable person could have come to the conclusion that the tribunal came to: Dickason v Edwards (1910) 10 CLR 243 at 254 and 258; [1910] HCA 7; Paton v Sydney Press Club (1940) 57 WN (NSW) 57 at 58; Christie v Agricultural Societies Council of NSW Ltd [2015] NSWSC 1118 at [38]-[61]; Bromfield v New South Wales Gun Club [2019] NSWSC 430 at [92]-[95].
5. It is also necessary that the decision to expel a member is exercised in good faith. This means that decision of the relevant tribunal "must be given in the interests, real or supposed, of the body it represents and not for an ulterior or extraneous motive": Australian Workers Union v Bowen (No 2) (1948) 77 CLR 60 at 628 per Dixon J; [1948] HCA 35.
6. It is not suggested by Ms Benson that the OBA Board or the OBA members in general meeting had not acted honestly in forming the view that paragraph (b) of the definition of Expulsion Event was satisfied, or that no reasonable person could have formed that view.
7. The complaint made by Ms Benson is twofold. The first is that it is said that none of the matters identified by the OBA Board in the 12 August email as being matters to which they had regard in reaching its decision, either individually or cumulatively, amounted to an Expulsion Event for the purposes of cl 7 of the Constitution.
8. The gravamen of this complaint is that the 12 August email states that the OBA Board considers that Ms Benson's conduct, both currently and historically, amounts to a failure to comply with the provisions of OBA's Constitution, but when regard is had to the nature of the matters dealt with in the email none can properly be regarded as involving a failure to comply with the Constitution. Mr Salzer accepted in cross-examination that this was an error and should not have been included in the email. However, it was not put to Mr Salzer or suggested that the directors did not honestly form the view that the conduct of Ms Benson detailed in the email involved a failure to comply with the Constitution. It is necessary to bear in mind that none of the directors are lawyers and while it appears that they sought legal advice about the email before it was sent, there is no evidence that they were given legal advice on this aspect of the 12 August email.
9. This error in the specification of the Expulsion Event does not mean that the 12 August email has failed to identify an Expulsion Event for two reasons. First, the 12 August email states that Ms Benson's conduct amounts to a failure to comply with the provisions of the Constitution and/or is unbecoming of a member or is prejudicial to the interests and reputation of OBA. Consequently, the error does not detract from the fact that the directors have formed the necessary opinion required by paragraph (b) of the definition of Expulsion Event. Second, the error made by the directors that she had breached the Constitution was capable of correction by Ms Benson in her response.
10. Further, I note that when the matter was put to the general meeting on 8 November 2019 it was clearly explained to members both in the notice of meeting and in Ms Sonter's introductory statement at [44] above that it was paragraph (b) of the definition of Expulsion Event which was relied on by the OBA Board by reason of breaches by Ms Benson of the Code of Ethics and Code of Conduct.
11. The second complaint regarding the 12 August email is that it does not provide reasons as to why the matters referred to in it are said to involve conduct of Ms Benson which is "unbecoming of a member" or is "prejudicial to the interests or reputation of the Company". In my view, the 12 August email contains detailed reasons, including by reference to both the Code of Ethics and the Code of Conduct as to why in the OBA Board's opinion, the conduct of Ms Benson was unbecoming of a member or was prejudicial to the interests and reputation of OBA. The email states the nature of the relevant conduct and the parts of the Code of Ethics and the Code of Conduct which are said to be infringed. It was open to Ms Benson to address why, in her view, the decision of the OBA Board was incorrect. Indeed, she took up that opportunity by sending six emails over the period from 12 to 21 August 2019. Significantly, in none of those emails did she indicate that she did not understand what was being put against her.
12. In my view, Ms Benson was given adequate notice of what was put against her and an adequate opportunity to meet it. Accordingly, this ground is not made out.

Ground 3: Apprehended bias

1. The complaint that the OBA Board's decision making was infected by apprehended bias relates to Ms Sonter's participation in it given that the 21 August email identifies as one aspect of Ms Benson's conduct on which the OBA Board based its decision that paragraph (b) of the definition of Expulsion Event was satisfied was Ms Benson's calling into question in 2015 Ms Sonter's advertising of her practice in the osteopathy section of the Yellow Pages.
2. It is not in dispute that the test to be applied is whether a fair-minded lay observer having knowledge of the circumstances leading to the decision, might reasonably apprehend that the decisionmaker might not bring an impartial mind to the resolution of the question at hand: Ebner v Official Trustee in Bankruptcy (2006) 205 CLR 337; [2006] HCA 63 at [6]; Kirby v Dental Council of NSW [2020] NSWCA 91 at [64].
3. It is recognised that the Ebner test can apply to partiality by reason of either pre-judgment or a conflict of interest, including a personal interest arising from prior involvement in the matter. It was the latter kind of "interest" which it was contended that the apprehended bias in this case arose from, due to Ms Sonter's prior involvement with Ms Benson in connection with the advertising matter in 2015, relying upon the decision Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20.
4. In Isbester the issue was whether the decision of a committee of the respondent council to put down the appellant's dog should be quashed because one member of the committee (Ms Hughes) was a council employee who had previously initiated a prosecution of the dog owner in the Magistrate's Court leading to a conviction. She then organised for the committee of the council to hear the question whether the dog should be destroyed and drafted the letter advising the appellant of it. She supplied the committee with evidence, including further evidence she had obtained as to the future housing of the dog. She was properly described as the moving force of the decision, if not the prosecutor: see [43].
5. The plurality stated at [21] the nature of the enquiry required when applying the Ebner test: The principle governing cases of possible bias was said in Ebner to require two steps to be taken in its application. The first requires the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. Where it is said that a decision-maker has an "interest" in litigation, the nature of that interest must be spelled out. The second requires the articulation of the logical connection between that interest and the feared deviation from the course of deciding the case on its merits. As Hayne J observed in Jia Legeng, essentially the fear that is expressed in an assertion of apprehended bias, whatever its source, is of a deviation from the true course of decision-making.
6. The plurality indicate at [33] the nature of the issue to be addressed in an "interest" case: At issue in McGovern were allegations of prejudgment. The question raised concerning the impartiality of the two councillors was whether they could be expected to give genuine consideration to the application, given the opinions they had expressed. The concern as to the impartiality of Ms Hughes raises a different question. There is no issue before this Court concerning her possible prejudgment of the matter. The question here is whether it might reasonably be apprehended that a person in her position would have an interest in the decision which could affect her proper decision-making.
7. Their Honours then set out how the "interest" arising from Ms Hughes' prior involvement gave rise to apprehended bias in that case in the following passage: [46] A "personal interest" in this context is not the kind of interest by which a person will receive some material or other benefit. In the case of a prosecutor or other moving party it refers to a view which they may have of the matter, and which is in that sense personal to them. The interest of a prosecutor may be in the vindication of their opinion that an offence has occurred or that a particular penalty should be imposed, or in obtaining an outcome consonant with the prosecutor's view of guilt or punishment. It is not necessary to analyse the psychological processes to which a person in such a position is subject. It is well accepted, as the two cases referred to show, that it might reasonably be thought that the person's involvement in the capacity of prosecutor will not enable them to bring the requisite impartiality to decision-making. This is not to equate such a person with a judge. [47] In that part of the joint reasons in Ebner which deals with the incompatibility of the interest of a prosecutor and judge, it is said that cases of incompatibility might have a special significance, and might operate independently of problems relating to apprehension of bias. It may be inferred that their Honours were distinguishing cases of incompatibility from those where pecuniary interests are in question, because in the latter, difficult questions may sometimes arise as to whether the second step of the two-stage test in Ebner is satisfied. In cases of incompatibility, disqualification would seem to be the only possible outcome, because the second step will necessarily be satisfied. [48] The Council submitted that the Court should not apply an automatic disqualification if it found that Ms Hughes' involvement gave her a relevant interest, and that the test in Ebner should be applied. It submitted that the test could not be met because (i) even if Ms Hughes had an interest, the primary judge had found as a fact that she did no more than diligently carry out her responsibility; and (ii) the decision was not made by her, but by her superior, Mr Kourambas. The first of these submissions might be relevant to an allegation of actual bias, but provides no answer to one of apprehended bias based on an interest in the decision. The second is relevant to the proposed notice of contention. For the reasons given in Dickason and Stollery, the participation of others does not overcome the apprehension that Ms Hughes' interest in the outcome might affect not only her decision-making, but that of others. The Court of Appeal was correct to approach the question on the basis that she played a material part in the decision. That is so even if Mr Kourambas was responsible as delegate for the decision. [49] The majority reasons in Ebner should not be understood to exclude cases of the kind here in question from the application of the principle by the test there stated. The test directs attention, as a first step in cases where apprehended bias is alleged, to the critical question of the decision-maker's interest. The difference in the application of the test is that in cases like the present one that concern incompatibility of roles, once the interest is identified as one which points to a conflict of interest, the connection between that interest and the possibility of deviation from proper decision-making is obvious. Conclusion and order [50] A fair-minded observer might reasonably apprehend that Ms Hughes might not have brought an impartial mind to the decision under s 84P(e). This conclusion implies nothing about how Ms Hughes in fact approached the matter. It does not imply that she acted otherwise than diligently, and in accordance with her duties, as the primary judge found, or that she was not in fact impartial. Natural justice required, however, that she not participate in the decision and because that occurred, the decision must be quashed.
8. Counsel for the plaintiff relied on the test stated in Isbester at [46] to contend that Ms Sonter had a "interest" in the matter of Ms Benson's membership akin to that of a prosecutor or other moving party and it might reasonably be thought that her involvement in that capacity would not enable her to bring the requisite impartiality to bear.
9. In Isbester, the interest arising from Ms Hughes' prior involvement was her role as a prosecutor or moving party in the decision, which was such as to lead to the reasonable apprehension that she would not bring the requisite impartiality to the decision-making process. Importantly, it was her role as prosecutor or moving party which lead to the conclusion that the decision of the committee as a whole was vitiated by her "interest": see Isbester at [48].
10. As pointed out in Isbester at [21] and [49], the first step in the application of the Ebner test in an "interest" case is to identify the nature of the decision-maker's "interest" and then to determine if there is a logical connection between that interest and the feared deviation from the course of decision-making on the merits. In circumstances where, as in Isbester, the "interest" is that of a prosecutor or moving party, the logical connection required by the second step would be readily apparent. As Spigelman CJ said in McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 at [40]: In such cases, the independent observer might reasonably believe that the influence on the others of the person(s) who manifested bias of that character could well go beyond the usual process of internal debate. Accordingly, an independent observer could reasonably conclude that the entire collegiate body may not bring an impartial mind to the decision-making process. However, the pre-judgment situation is not necessarily, indeed not usually, of that character.
11. The observation of Spigelman CJ is illustrated in the context of a domestic tribunal by Bowen (No 2) where the question arose as to whether the decision of the appellant, a trade union organisation, was invalidated because the union's executive and one of its members, Mr Dougherty, the General Secretary, were disqualified by bias. It was recognised that domestic tribunals (like the OBA Board) are often constituted of persons who have had prior involvement in the matters which they are called on to decide, and this of itself will not disqualify them from participation in the decision. Dixon J said (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. Nor do I think that it has been shown that any particular member, putting aside the general secretary, was disqualified by any interest or specific ground of bias attaching to him or to them all.
12. Dixon J then went on to deal with the significance of the role of Mr Dougherty as a member of the executive council, given that he had been engaged in bitter public attacks on the respondents and had taken on the role of prosecutor in the meetings of the executive counsel, of which he was a member. He said (at 631): But Dougherty appears to me to have assumed altogether a different position. In the first place, he began the attack, on 21 June, with his report and his proposal to supersede the branch officers on the pretext of the failure of the outgoing branch council to comply with the direction of 1938. From that time onwards he led in the controversy. He was the author of the charges heard on 19 September and of the proposal to supersede the branch executive. He acknowledged in his evidence that he was the originator in actual fact of the charges preferred by his letters of 26 October and heard on 20-23 November. He had been engaged in bitter public attacks on the respondents, particularly on Bowen, and had exhibited the most intense and extreme opinion about the respondents' conduct concerning the matters in question. Then at the hearing of the charges he assumed the functions of a prosecutor and so to speak presented the case in support of the charges to the Council. It is true that the rules make him a member of the Council as general secretary and require the general secretary's attendance. But they do not make his presence indispensable and do not necessitate his participation in the decision of questions in which his interest or concern makes it improper. "In interpreting rules conferring jurisdiction to any tribunal, there is always to be read into them the underlying condition that the proceedings shall be carried on in accordance with the fundamental principles of natural justice. It is upon a party who wishes to shut out the implication of that basic condition to show that the rules expressly or by necessary implication negative the implication of its existence": per O'Connor J in Dickason v Edwards (1910) 10 CLR, at p 255. 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 biased 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: Dickason v Edwards (1910) 10 CLR 243.
13. In my view, there is no evidence that Ms Sonter was the prosecutor or moving party invincibly biased against Ms Benson. Indeed, the 1 June email is to the contrary, as it clearly states that if Ms Benson gave the written assurance of the kind sought, the matter would be taken no further. The 12 August email makes clear in the opening paragraphs that the OBA Board has proceeded as it has because that written assurance has not been given.
14. Applying the first step in Isbester, it is necessary to identify the "interest" which it is said might lead to Ms Sonter not to decide the issue whether paragraph (b) of the definition of Expulsion Event is satisfied on its merits. This is said to be the fact that it was Ms Benson who made the enquiry which lead to Ms Sonter being shown to have incorrectly advertised her practice in the Yellow Pages in 2015. It may be that this caused Ms Sonter embarrassment at the time, but there is no evidence to suggest that she suffered any adverse repercussions or that this made Ms Sonter an adversary of Ms Benson. Ms Sonter's evidence, which I accept, was that the reference to the issue concerning advertising in the 12 August email (set out at [30] above (where it stated erroneously as occurring in 2016 rather than 2015) was included because it was a collaborative email and the other directors were in favour of it being in the email. Further, it is apparent from Ms McCarthy's letter of 5 October 2015 set out at [13] above, that the OBA Board as a whole (and not just Ms Sonter) regarded Ms Benson's approach to the advertising issue as inappropriate, and it is this perceived error on Ms Benson's part which is being referred to in the 12 August email.
15. It is also relevant that Ms Sonter's initial response to Ms Benson's first email on 12 August 2019 indicates that she had an open mind at that time: see [34] above.
16. In these circumstances, there was no impediment to Ms Sonter acting as one of the directors in making the decision which led to the 12 August email being sent to Ms Benson. The decision making of the OBA Board falls within the principle accepted by Dixon J in the passage set out at [106] above: see also Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 at 170-172; Bundagen Co-Operative v Battle at [30]-[52]; Young v New South Wales Radio Yachting Association Inc [2013] NSWSC 383 at [55]-`[61].
17. For the same reason, in my view, there was no reason why Ms Sonter could not make the opening statement she made at the general meeting on 8 November 2019, which was balanced and did no more than explain why the OBA Board had proceeded as it had which was necessary background to the question required by the Constitution to be put to the meeting.
18. For these reasons, in my opinion, the independent observer would not reasonably conclude that either Ms Sonter, or the OBA Board as a whole, might not bring an impartial mind to the decision-making process.

Ground 4: Failure to apply the Grievance Policy

1. It was submitted for Ms Benson that she was denied procedural fairness because the OBA Board did not follow the procedures in the Grievance Policy.
2. In my opinion, there is no substance to this submission. First, the Grievance Policy is not part of the Constitution. The Constitution contains the regime to be followed for the expulsion of a member, and does not require that the Grievance Policy be applied as part of that process. There is nothing in the evidence to indicate that the Grievance Policy in any way qualifies the procedure for expulsion contained in the Constitution.
3. Second, the Grievance Policy sets out a procedure for the making of complaints against a member which could potentially lead to a recommendation by the Ethics Committee to the OBA Board, and ultimately a decision by the OBA Board under paragraph (b) of the definition of Expulsion Event. However, that was not an appropriate procedure to follow in a case such as this where it was the OBA Board, of its own initiative, which formed the opinion without a complaint being made by a member.

Damages

1. Given my conclusion that the plaintiff's expulsion from OBA is not invalid, the question of damages does not arise. However, I make the following brief observations in case my conclusion on validity is incorrect.
2. It is established that damages may be awarded for a breach of natural justice or excess of power by an incorporated club or association, on the basis of damages for breach of the contract between the members and the association founded on its constitution: Rose v Boxing NSW Inc [2007] NSWSC 20 at [106].
3. The plaintiff claims that she suffered loss of income from instructing/teaching as a consequence of no longer being a member of OBA. She seeks damages in the amount of $100,000.00 for the loss that flowed from the defendant's breach of its constitution. The plaintiff submitted that her income fell from $29.590.00 to $1,050.00 between the year ended 30 June 2020 and 30 June 2021.
4. Ms Benson accepted in cross-examination that her expulsion from membership of OBA had not prevented her from referring to herself as an advanced instructor of ortho-bionomy and that she continues to be a member of SOBI, the international peak body of ortho-bionomy. It appears that the only significance of her loss of membership of OBA is that when she teaches classes to trainee instructors in Australia, they will not obtain accreditation for those classes with OBA, with the potential for there to be a decline in her teaching income. However, the evidence does not establish clearly what, if any, decline in her revenue from teaching was attributable to her expulsion from OBA. Ms Benson admitted in cross-examination that even prior to her expulsion from OBA, her business was experiencing a decline in revenue from teaching and that the figures that she had claimed in her second affidavit as the amounts that she had earned from teaching in the 2019 and 2021 financial years were incorrect. She was given the opportunity to lead evidence to correct those amounts, but did not do so. In those circumstances, I accept the submission made by the defendant that Ms Benson has failed to establish the quantum, if any, of her loss arising from her expulsion as a member of OBA.

Conclusion

1. For the above reasons the proceedings should be dismissed with costs.

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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: 22 June 2023