Whether the presence of strangers, or the absence of members during part of the meetings, or the inadequacy of the venue, or the non-member status of a co-facilitator vitiated the resolutions.
64 The minutes of the meetings do not distinguish between members and non members of the plaintiff, although the defendant maintains that there were 7 visitors at the July meeting, three of whom made contributions to the discussion. That is not challenged by the plaintiff. The defendant submits that a line of authority, including Ethell v Whalan [1971] 1 NSWLR 416, Gleeson v NSW Harness Racing Authority (1990) 21 ALD 515, Steuart v Oliver (No. 1) (1971) 17 FLR 99, and Shamballa Co-operative Ltd v Rufus McCrachett (2001) NSWSC 1 November 2001, renders the decisions of the meetings invalid on that basis.
65 All of these decisions depend upon the presence, either in the rules of the relevant association or because of the essentially investigatory and/or accusatory nature of the proceedings, of a requirement that the proceedings be conducted by a defined committee or tribunal. In Ethell v Whalan, only the Executive could deal with a charge against a member and other persons were expressly excluded. Similarly, in Steuart v Oliver, the constitution of a tribunal determining charges of misconduct was confined to four councillors from one State, whereas five had participated.
66 Gleeson concerned a tribunal, charged with the statutory duty of regulating and controlling the racing industry, some of whose members were not present on various days when important evidence was heard. I do not read the comments of Young J as suggesting that temporary or momentary absence from a meeting of a voluntary association invalidates any decision reached by the majority. The remainder of the authorities to which the defendant referred in support of the submission that the absence, from time to time, of members of the plaintiff during the meetings invalidated the resolutions, are of no relevance. They all relate to the power of a court or tribunal to re-constitute itself where a member ceases to sit on the hearing of a matter : see Cotogno v Lamb (1985) 3 NSWLR 221.
67 In Shamballa, there was no issue taken with the presence of a stranger who spoke at a meeting to expel the defendant. The stranger spoke with the consent of the meeting.
68 The rules of the plaintiff allow for the attendance and participation of non members with the permission of a two-thirds majority of the members : rule 59(f)(xiv). The minutes of both meetings do not disclose whether permission in accordance with the rule was given. The defendant asserts that it was not. It would appear as though at least two of the visitors spoke during the "open circle" part of the July meeting, of whom one commented upon the fairness of the procedure compared with other communities she had known. There is no evidence of what was said by the other visitor at the July meeting who spoke as part of the "circle". It is no part of the defendant's case that any visitor spoke for or against the motion to expel him or that any visitor exercised a vote.
69 In those circumstances, I reject the proposition that the presence of these visitors, or the limited participation of any of them in the course of the meetings, could invalidate the resolutions to expel the defendant in July 2007 or November 2008. To the extent that the failure to approve the attendance of the visitors represents a procedural defect, it has not been demonstrated that it affected the outcome of the meetings. The decision making process at the meetings was not confined by the rules of the plaintiff to a select number, or particular class, of its members. All of the members were entitled to participate and vote.
70 One of the people chosen to facilitate the July 2007 meeting was not a member, although the other was a member. Rule 58(b) requires the members to choose someone from their number to facilitate a general meeting. However, rule 58(d) provides that "the meeting may also appoint other persons to assist the facilitator." Thus, there is no restriction on choosing someone other than a member to assist the facilitator. There was no breach of the rules that is capable of invalidating the decision taken at the meeting on this ground.
71 Lastly, the overcrowding of the venue for the meetings may have been unfortunate, but the defendant has not demonstrated that it prevented any member who wished to participate in the discussion and/or to vote on the resolutions from doing so. It may be the case that members found the conditions uncomfortable, and that some of them chose to leave, either temporarily or finally, but such choices are not fatal to the outcome of the meetings.
Whether members delegated their decision-making powers.
72 This ground of the defence also depends upon the false characterisation of the plaintiff's responsibilities pursuant to rule 47 as judicial in nature. In any event, it proceeds upon a basic misunderstanding of what constitutes a delegation of decision-making functions.
73 The defendant points to the statements made by some members at the July 2007 meeting that they would support the Outback Village members, or abstain from voting, as in some way demonstrating that those members had delegated their decision-making powers to other members. I disagree. To my mind, it demonstrates that these members agreed with the proposal, because they accepted the allegations made by the Outback Village members, or they were not persuaded either way.
Wednesbury unreasonableness.
74 The defendant submits that the plaintiff took into account irrelevant matters, and failed to have regard to relevant matters, in the course of both meetings, thereby producing a decision that no reasonable decision-maker could make.
75 In Hewett & Ors v Royal Volunteer Coastal Patrol [2001] NSWSC 1140, Davies AJ said :-
However, on the issue of reasonableness, the authorities are clear that, if a council or a committee has power to act in certain circumstances, it is not for the court to substitute its own view as to what the council or committee ought to have done. In Dawkins v Antrobus (1881) 17 ChD 615, Jessel M R declined to intervene in an expulsion case although, in the course of his reasons, his Lordship said, at p 624, "… I cannot, as far as I am concerned, imagine how this single act could be injurious to the character and interests of the club" . His Lordship concluded that he could not impute legal malice to the committee and went on to say:-