Grass v New South Wales Chinese Tennis Association Inc

Essential issues

1. The essential issues in these proceedings are whether Mr Grass is a member of the Association and whether he is entitled to have a number of disputes between himself and the Association referred to arbitration by the Court.
2. In fact, Mr Grass has made many claims for relief but his claims have evolved and narrowed over the course of the proceedings, including during the hearing. It will be necessary to trace that evolution below in order to explain the nature of the case and the claims that remain for determination by the Court.
3. This explanation will be advanced if given against the background of the relevant rules of the Association and the applicable statutory provisions.

Relevant rules of the Association

1. An undated copy of the Association's rules (the "Rules") is Annexure A to the affidavit of Mr Jeffrey Chin filed on 28 April 2022.
2. Rule (1)(b) defines "Member" as being a "life member or a person irrespective of age who has paid an annual membership fee".
3. Rule 5 governs the membership of the Association in the following terms: (1) The Association shall consist of life members, members and associate members or non-playing members who have paid the prescribed membership fees. (2) The Association reserves the right to refuse membership to any person without assigning any reason therefor.
4. Cessation of membership is governed by Rule 9, which provides: A person ceases to be a member of the Association if the person: - … (d) at the end of a tennis year fails to renew his membership.
5. Under Rule 13, membership fees are payable in the following circumstances: (1) A member of the Association shall, upon admission to membership, pay to the Association a fee of $1 or, where some other fee is determined by the Council of Management, of that other amount. (2) In addition to any amount payable by the member under clause (1), a member of the Association shall pay to the Association an annual membership fee of $2 or, where some other amount is determined by the Council of Management, of that other amount - (a) except as provided by paragraph (b), before 1st December in each calendar year; or (b) where the member becomes a member on or after 1st December in any calendar year - upon becoming a member and before 1st December in each succeeding calendar year. (3) Membership shall continue for a period from the date of payment of the prescribed fee until the end of November. …
6. Rule 15 contains disciplinary provisions in respect of members of the Association. This is material to Mr Grass' claim that the Council of Management failed to respond to his request that it address evidence of irregularities and misconduct by members of the Association. Relevantly, the rule provides: (1) Where the Council of Management is of the opinion 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, the Council of Management may, by resolution - (c) expel the member from the Association; or (d) suspend the member from membership of the Association for a specified period.
7. Subsequent parts of Rule 15 provide for a dispute resolution process to enable members against whom disciplinary resolutions are made to contest the resolutions.
8. As Mr Grass' alleged disputes with the Association involve the conduct of the Association's Council of Management, it is necessary to set out Rule 17, which provides as follows: The committee shall be called the Council of Management of the Association and, subject to the Act, the Regulation and these rules and to any resolution passed by the Association in general meeting - (a) shall control and manage the affairs of the Association; (b) may exercise all such functions as may be exercised by the Association other than those functions that are required by these rules to be exercised by a general meeting of members of the Association; and (c) has power to perform all such acts and do all such things as appear to the Council of Management to be necessary or desirable for the proper management of the affairs of the Association.
9. Pursuant to Rule 24, the Council of Management is required to meet at least eight times in each period of 12 months and: "Additional meetings of the Council of Management may be convened by the President or by any member of the Council."
10. Rule 29(1) authorises the Council of Management to convene a special general meeting of the Association whenever it thinks fit. The following part of Rule 29 governs the requisition of special general meetings by members: (2) The Council of Management shall, on the requisition in writing from not less than six financial members, convene a special general meeting of the Association. (3) A requisition of members for a special general meeting - (a) shall state the purpose or purposes of the meeting - (b) shall be signed by the members making the requisitions; (c) shall be lodged with the Secretary …
11. Although the Rules contain this provision that empowers any six financial members to requisition a special general meeting of members, the Rules do not contain any provision that empowers members, either alone or collectively, to requisition a meeting of the Council of Management, or to require the Council of Management to consider any matter relevant to the affairs of the Association. As noted above, the effect of Rule 17 is that the Council of Management is authorised to control the affairs of the Association, subject to a number of matters including "any resolution passed by the members of the Association in general meeting". That rule has the effect that the members cannot directly require the Council of Management to consider any matter. The only route for members to control the Council of Management in that regard is to join in requisitioning a special general meeting and then persuading the members present at the meeting to make a resolution that requires the Council of Management to proceed in the desired fashion.
12. The right to inspect the Association's books and records is governed by Rule 43, which provides: The records, books and other documents of the Association shall be open to inspection, free of charge, by a member of the Association at any reasonable hour.

Resolution of disputes

1. The Rules do not contain any provision for the resolution of any disputes that arise as between members of the Association or between members and the Association. In these circumstances, the Associations Incorporation Act 2009 (NSW) provides: 25 Provisions of model constitution apply if adopted or if matter not addressed (1) If an association's constitution adopts all the provisions of the model constitution without modification (either by reference or by reproducing the provisions), the provisions are taken to be the association's constitution. (2) 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 be part of the association's constitution. (3) The provisions that are taken to be, or that are taken to be part of, an association's constitution under this section apply as in force for the time being. … (5) To avoid doubt, this section does not limit the way in which an association's constitution may address a matter referred to in Schedule 1. …
2. Model constitution as defined means "the model constitution prescribed by the regulations".
3. Regrettably, while both parties in these proceedings have referred the Court to the Associations Incorporation Regulation 2016 (NSW), the version in force from 1 September 2022 is, in fact, the Associations Incorporation Regulation 2022 (NSW).
4. The schedule formerly referred to in s 25(2) was Schedule 1 to the Associations Incorporation Regulation 2016 (NSW), which is called "Model constitution", and which the Court was provided at the hearing. Rule 10 of Schedule 1 provided: 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 . (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 2010 applies to a dispute referred to arbitration.
5. The current version of the schedule referred to in s 25(2) is Schedule 3 to the Associations Incorporation Regulation 2022 (NSW), also headed "Model constitution" (the "Model Rules"). Rule 9 of the Model Rules provides: 9 Resolution of internal disputes (1) The following disputes must be referred to a Community Justice Centre within the meaning of the Community Justice Centres Act 1983 for mediation - (a) a dispute between 2 or more members of the association, but only if the dispute is between the members in their capacity as members, or (b) a dispute between 1 or more members and the association. (2) If the dispute is not resolved by mediation within 3 months of being referred to the Community Justice Centre, the dispute must be referred to arbitration. (3) The Commercial Arbitration Act 2010 applies to a dispute referred to arbitration.
6. Fortuitously for the parties, the repeal of the earlier version of the regulations will not affect the ability for the Court to give judgment in this matter because, as seen above, the relief provided by rule 9 of the Model Rules is in materially the same terms as rule 10 of the earlier model rules in the 2016 regulations. Accordingly, this judgment refers to the current version of the Model Rules. The Association may be taken to have accepted for the purposes of these proceedings that rule 9 of the Model Rules is taken to be part of the Association's Rules.
7. I respectfully adopt the following explanation given by Barrett J (as his Honour then was) in Leyonhjelm v Mateer [2008] NSWSC 1320, concerning the legal significance of rule 9, when imported into the constitution of an association (his Honour was concerned with earlier but materially equivalent versions of both the Associations Incorporation Act and the regulations): [5] It is common ground that the application for incorporation of the Club was accompanied by a copy of rules so that, by force of s 19(2)(a) of the Associations Incorporation Act, those rules, as duly amended subsequently, are the rules of the Club - together, however, with such, if any, additional provisions as are deemed by s 19(3) to be included in the rules of the Club. Section 19(3) is as follows: "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." [6] The adopted rules do not make any provision concerning resolution of disputes between members or between members and the Club. The provision about that matter made by rule 10 of the model rules is therefore deemed to be included in the club's rules. [7] By s 11(2) of the Act, the rules of an incorporated association bind the association and the members of it to the same extent as if the rules had been signed and sealed by each member and contained covenants on the part of each member to observe all the provisions of the rules. Provisions deemed by s 19(3) to be included in the rules thus have contractual force. [8] The position is therefore one in which the members of this incorporated association are bound together contractually in terms of the rules. With respect to the matter in model rule 10, therefore, the parties should be regarded as in the same position as if they had entered into a agreement to submit any dispute of the kind referred to in model rule 10 to the form of dispute resolution with which that rule is concerned. The general position with respect to such parties is that stated by Dixon J in Huddart Parker Ltd v The Ship "Mill Hill" [1950] HCA 43; (1950) 81 CLR 502 at 508-509: "But the Courts begin with the fact that there is a special contract between the parties to refer, and therefore in the language of Lord Moultonin [in] Bristol Corporation v John Aird & Co. at p 259, consider the circumstances of a case with a strong bias in favour of maintaining the special bargain or as Scrutton LJ said in Metropolitan Tunnel and Public Works Ltd v London Electric Railway Co., at p 389, 'A guiding principle on one side and a very natural and proper one, is that parties who have made a contract should keep it'." [9] In other words, once it is seen that parties have made a contract for the submission of disputes to some form of alternative dispute resolution, the general approach of the court will be that they should be kept to their contract. [10] In Badgin Nominees Pty Ltd v Oneida [1998] VSC 188 Gillard J said at [36]: "The court clearly has jurisdiction to stay a court proceeding on the simple basis that 'a contract is a contract' and the parties should abide by it."
8. The result is that, where the parties to a dispute are contractually bound to submit the dispute to a form of alternative dispute resolution, whether it be by mediation or arbitration or a combination of those procedures, the Court has jurisdiction on the application of a party with that contractual entitlement to order the other party to cooperate in implementing the dispute resolution procedure, by way of enforcement of the contract. Equity maintains a discretion in cases where the relief sought compels performance of a contract, but as Dixon J said in the extract set out by Barrett J, the Court has "a strong bias in favour of maintaining the special bargain".
9. As will be seen, Mr Grass has commenced proceedings in this Court in which he has sought relief to compel the Association to comply with what Mr Grass believes are his rights as a member of the Association. But having brought his claim in this Court, Mr Grass also seeks an order that his dispute with the Association as to whether he has the rights claimed be referred to arbitration. Although the basis of Mr Grass' case is perhaps indistinct, it has caused the Association to understand that Mr Grass has invoked s 8 of the Commercial Arbitration Act 2010 (NSW), and the Association has made submissions concerning the application of that provision. Section 8 provides: 8 Arbitration agreement and substantive claim before court (1) A court before which an action is brought in a matter which is the subject of an arbitration agreement must, if a party so requests not later than when submitting the party's first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed. …
10. This provision is not apt for the present circumstances, as it is directed at the situation where a party who is contractually bound by an agreement to refer disputes to arbitration ignores that obligation and commences proceedings in the Court. Provided the party seeking to enforce the arbitration agreement makes the request required by s 8, the Court must refer the parties to arbitration except in the cases specified in the section. The reference to arbitration will necessarily be accompanied by a stay of the proceedings. The present proceedings have been commenced by the party who wants to enforce the arbitration agreement. As Mr Grass maintains his claim for an order referring his disputes with the Association to arbitration, the real relief that he seeks is an order enforcing the Association's contractual obligation under rule 9 of the Model Rules that have been incorporated into the Rules. Section 8 of the Commercial Arbitration Act is not applicable.
11. As Barrett J observed in Leyonhjelm v Mateer at [13], the now Model Rule 9 specifies that the parties to the dispute engage first in a mediation at a community justice centre in accordance with the Community Justice Centres Act 1983 (NSW). There was a brief reference during the course of the hearing in this matter to a mediation having taken place between Mr Grass and the solicitor for the Association. The mediation was unsuccessful. It seems clear that this was not a mediation that complied with Model Rule 9(1). Consequently, if the Court in these proceedings were to find that Mr Grass had a right to invoke Model Rule 9, there would be a question as to whether any order made to enforce the rule should first provide for mediation at a community justice centre, before the occasion would arise for the Court to consider whether a reference should be made to arbitration.

Relief sought in Mr Grass' summons

1. Mr Grass commenced these proceedings by summons filed on 7 February 2022. He sought the following relief: 1. Order the Defendant in accordance with S 26 Incorporated Associations Act NSW 2009 provide specific performance of the contract between the Plaintiff and the Defendant ensuring Plaintiff has access to all Defendant membership rights and entitlements of the Defendant association. 2. Order Defendant amend its constitution to incorporate a dispute resolution clause within the Defendant Constitution, and dispute between Plaintiff and Defendant association referred to CJC Mediation/Arbitration in accordance with requirements of Defendant constitution and Schedule 1 clause 10 Model Constitution Incorporated Associations Act NSW 2009. 3. Order Defendant amend rule 6 Defendant constitution to ratify the Special Resolution alleged to have been passed by association members to allow non-Chinese members election to the Defendant Committee of Management. 4. Order that Defendant provide Plaintiff access to all registers, records, books and other documents of the association free of charge at any reasonable hour in accordance with rules 12(2), 43 Defendant Constitution, S85 Incorporated Associations Act NSW 2009. 5. Order that Defendant provide Plaintiff confirmation of membership of Defendant association and issue receipt for membership contribution in accordance with Rule 38(3) Defendant Constitution. 6. Compensation $50,000.00. 7. Costs.

Relief sought in Association's cross summons

1. The Association responded to Mr Grass' summons by filing a cross summons on 28 April 2022, in which it sought a declaration that Mr Grass is not a member of the Association, and a declaration that Mr Grass' membership of the Association has lapsed or has otherwise been validly refused by the Association under the terms of the Rules.

Relief sought in Mr Grass' notice of motion

1. Mr Grass filed a notice of motion in these proceedings on 27 August 2022. The Court was told that the Registrar made an order that gave Mr Grass an opportunity to clarify his claim by filing a statement of claim, but that Mr Grass elected to file the notice of motion instead. The notice of motion sought the following relief: 1. The parties note that the Defendant's constitution is inconsistent with the Model Rules for Associations, in that it does not provide for adequate dispute resolution clauses to deal with a controversy of the nature currently before the Court. 2. That the Defendants (NSW Chinese Tennis Association Inc.) engage with the provisions of the Model Rules for all associations in NSW, consistent with Associations Incorporation Act (2009) NSW S25 and Schedule 1 part 6 concerning internal dispute resolutions, and. 3. In lieu of the fact that the Defendants constitution is silent on Dispute Resolution Clauses, the Defendants still must comply with the Associations Incorporations Regulations (2016) NSW Schedule 1 S10, wherein those clauses apply as does subsection (3) The Commercial Arbitration Act 2010 to have a dispute referred to arbitration. 4. Consistent with Item 3 above and the decisions and dictum of this Court (particularly in WCX M4-M5 Link AT Pty Ltd v Acciona Infrastructure Projects Australia Pty Ltd (No 2) [2022] NSWSC 505 (29 April 2022)) that the matter be referred to Arbitration. 5. Any other order the Court sees appropriate in the circumstances.

Mr Grass' 10 September 2021 statement of issues in dispute

1. For the purpose of tracing the evolution of the claims made by Mr Grass, it is necessary to set out the terms of an email that Mr Grass sent to the private email address of Mr Peter Yee, who is the president of the Association, as well as other members of the Council of Management, on 10 September 2021. In circumstances that will be explained below, on 10 September 2021 Mr Grass obtained orders from Judge Street sitting in the Federal Circuit and Family Court of Australia (Division 2). Mr Grass' email attached a copy of the orders made by Judge Street, and added a number of demands made by Mr Grass against the Association. The terms of the email became significant at the hearing, because it became evident that the email recorded Mr Grass' understanding of the nature and effect of his disputes with the Association. The delineation of the disputes that Mr Grass claimed that he had with the Association was necessary both for the purpose of determining whether the disputes sufficiently related to the affairs of the Association under its Rules and, if appropriate, for the formulation of any order referring the disputes to mediation or arbitration. Relevantly, Mr Grass' email provided: NSWCTA committee … The NSWCTA committee has denied me access to all Association membership entitlements since March 2020 including, i) Denied access to all registers, records and documents of the association contrary rules 12(1),43 NSWCTA constitution, section 31 Incorporated associations Act NSW 2009, ii) Failed to convene NSWCTA committee meeting to address evidence of irregularities and misconduct by NSWCTA members. iii) Ignored request to convene SGM of NSWCTA members to address evidence of irregularities and misconduct by association members. iv) Obstructed NSWCTA members attempt to convene SGM of NSWCTA members. v) Failed to refer disputes to mediation/ arbitration contrary Incorporated associations Act NSW 2009. vi) Failed to inform NSWCTA member of NSW CTA activities including family days and NSWCTA tournament. vii) Failed to provide NSWCTA member notice of NSWCTA AGM contrary rule 28 NSWCTA constitution. viii) Evidence of fabricated defamatory allegations publicised to association members and throughout the facility, ostracised NSWCTA member to prevent right of reply. ix) Failed to issue receipt for membership subscription contrary rule 38(3) NSWCTA constitution. To avoid further interest and costs of litigation please ensure payment of court order by 8/10/2021 and provide confirmation by close of business 17/9/2021 that the matters raised at i-ix above will be addressed and rectified immediately or immediately referred to mediation/arbitration in accordance with the model Constitution Incorporated associations Act NSW 2009.

Mr Grass' particulars of disputes

1. Given the obvious differences and inconsistencies between the relief sought in the summons and in the notice of motion and the description of the disputes that Mr Grass asserted in his 10 September 2021 email, I deemed it necessary to explore with Mr Grass during the hearing what relief was actually being sought by him. That was necessary to accord procedural fairness to the Association, because it could not reasonably be expected to defend itself against Mr Grass' claims unless Mr Grass identified in specific terms the relief that he was seeking.
2. In the course of discussion between the Court and Mr Grass, he made it reasonably clear that what he was seeking was orders that had the effect of declaring that he had at all times continued to be a member of the Association after he initially joined it, and that the disputes that he claimed existed between the Association and himself be referred to arbitration for resolution.
3. Mr Grass' application for an order that the disputes be referred to arbitration required the Court to ask Mr Grass to identify and describe the alleged disputes with reasonable precision.
4. For example, as the Court explained to Mr Grass, his claim in par (viii) of the 10 September 2021 email that defamatory allegations had been publicised to members of the Association and that Mr Grass had been ostracised was unlikely to be a matter that arose under the Rules of the Association, or was sufficiently related to its affairs so as to require the Association to deal with the claim under the dispute resolution process.
5. In response to this need, on the second day of the hearing, Mr Grass provided to the Association and the Court a document that identified the matters that he claimed were in dispute with the Association (the "particulars of disputes"). The document was marked as MFI 1. The Court had on the previous day explained to Mr Grass that the document should describe the dispute, should explain why it was a dispute that sufficiently concerned the affairs of the Association to engage the dispute resolution process, and should identify the parts of the evidence that demonstrated the existence of the dispute. Mr Grass made a conscientious effort to comply with these requirements. To the extent that he may, as a layperson, not have fully identified the information required, both the Court and the Association accepted that they should deal with the document as it stood. Some of the matters listed in the particulars of disputes may not strictly have been raised by Mr Grass in his previous documents.
6. The particulars of disputes listed the following matters (omitting the references included by Mr Grass to the Rules and to the evidence upon which he relied, unless those references are necessary to understand the nature of the alleged dispute): 1) Plaintiff denied access to all registers, records, and documents of the NSW Chinese Tennis Association… 2) 12/3/2020: Plaintiff email to NSW Chinese tennis Association (CTA) Secretary Mr Jeff Chin requesting access to the register of CTA members… 3) 13/3/2020: Mr Jeff Chin Secretary CTA email response to Plaintiff's request for access to the register of Association members. Mr Chin advised the Plaintiff "do not be disappointed if your request will be denied". Mr Chin denied the Plaintiff's request on Privacy grounds, there was no suggestion the Plaintiff was not a member of the Defendant association. 4) 9/2/2021 Mr Jeff Chin in CTA written submissions to Fair Work Commission general protections matter 2021/314 confirms at 3.1 paragraphs 4 & 5 the Plaintiff is a member of the CTA since 21/5/2017 and states protection of members privacy as grounds for refusing the Plaintiff's request for access to the CTA register of members then erroneously claims the Plaintiff can only access the register of members at the CTA AGM… 5) 16/3/2020 Plaintiff's email to the Secretary CTA Mr Jeff Chin at [email address] containing second request for the CTA register of members and requesting a copy of the minutes of the last three Annual General meetings. The Plaintiff received no response… 6) 19/3/2020 Plaintiff email to Mr Jeff Chin Secretary CTA [email address) containing third request for access to CTA register of members, a second request for minutes of annual general meetings, a request for the register of committee members and committee members disclosure of interest documents/register. The Plaintiff received no response… 7) Defendant CTA committee expelled Plaintiff from the Association denying the Plaintiff due process, natural justice contrary the disciplinary and ADR clause of the CTA constitution. Defendant CTA committee failed to convene committee meeting to address evidence of irregularities and misconduct by CTA members: [emphasis in original]. 8) 24/4/2020: Plaintiff email to CTA Secretary Mr Jeff Chin [email address]. Plaintiff advised Mr Chin the Plaintiff had not received a response to any of the Plaintiff's previous communications requesting access to association registers and documents. Plaintiff requested Mr Chin to forward the email and its attachments to each committee member. 9) Attachment was an invitation to CTA committee to convene fact-finding meeting to address evidence of irregularities and misconduct by CTA members matters including evidence of breach of the Plaintiff's contract and Fair Work General protections and Discrimination law. Plaintiff received no response from Mr Chin or CTA committee. Plaintiff subsequently commenced General protections application in the Fair Work Commission on 18/11/2020 FWC ref: C2020/8418… 10) 31/7/2020: Plaintiff email to CTA committee members Mr Peter Yee, Mr Roni Trieu, Mr Jeff Chin, Mr Hong Lim, and Mr Andrew Gock informing the Defendant committee he had not received a response to his previous requests for access to CTA documents or request for CTA committee to investigate evidence of irregularities and misconduct. 11) CTA constitution rule 6a,b,c.e has not been amended or ratified with Fair Trading to permit non-Chinese members to be elected to the CTA committee. [Emphasis in original]… 12) No quorum at CTA committee meetings: [Emphasis in original]… 13) 31/7/2020: Defendant committee failed to convene special general meeting of members and obstructed Plaintiff attempt to convene Special General Meeting to resolve matters in dispute. [Emphasis in original]. Clause 29(1) CTA constitution advises the CTA committee may call a Special General Meeting of members though the Defendant CTA committee ignored the Plaintiff's request. Clause 29(2) CTA constitution states association members may requisition the Defendant CTA committee to convene Special general Meeting of members though the Plaintiff was denied access to the register of association members, obstructing the convening of the Special General Meeting… 14) Plaintiff not provided notice of NSW Chinese Tennis Association (CTA) Annual General Meetings for 6/6/2021 and 1/5/2022 contrary the notice requirements of clause 28(3) and 30(2)(3) CTA constitution [Emphasis in original]… 15) Defendant CTA committee failed to refer disputes to arbitration contrary to Schedule 1 section 10 Incorporated Associations Regulations NSW 2016. [Emphasis in original].
7. An analysis of the particulars of disputes yields the following simplified understanding of the issues that require determination in these proceedings: 1. Items 1, 2, 3, 5, 6, 8 and 10 involve claims by Mr Grass that the Association wrongly refused Mr Grass' requests for access to the Association's documents and records. The Association denied these claims concerned valid disputes because Mr Grass was not a member of the Association when he made the requests, and current membership was a condition of the right of inspection. The Association also submitted, as a subsidiary response, that some of Mr Grass' requests were improper because he sought more than a right of free inspection of the documents and records at any reasonable hour. 2. Items 4, 11, 12, 13 and 14, when properly understood, also hinge on whether Mr Grass was a current member of the Association at the relevant time. 1. Although item 4 is framed in terms of the Association denying Mr Grass access to its documents and records for the protection of the privacy of its members, the real reason why the Association sought to protect its members' privacy was that the Rules only required the Association to allow current members to inspect its documents and records, and the Association's position is that Mr Grass was not a current member at the time of his requests. 2. Item 11 is concerned with whether Mr Grass is entitled to require the Association's Rules to be "amended or ratified with Fair Trading" to permit non-Chinese members to be elected to the Council of Management. This is an obscure issue that has not been the subject of sufficient evidence. As I understand the Association's position, it is that this is not the subject matter of a real dispute between Mr Grass and the Association under its Rules, as Mr Grass has not had standing to raise it because he was not at any relevant time a member of the Association. 3. In the same vein as for item 11, the Association has not engaged in any evidentiary dispute in connection with item 12, about the possibility that its Council of Management has made decisions at meetings in the absence of the required quorum, because Mr Grass has not at any relevant time been a member of the Association with standing to complain about meetings of the Council of Management not complying with the procedural requirements of the Rules. 4. On its face, item 13 appears to be a claim that the Council of Management of the Association failed to convene a special general meeting and obstructed Mr Grass in his attempt to cause such a meeting to be convened. During the hearing, Mr Grass accepted that a written requisition by six financial members as required by Rule 29(2) had not been submitted to the Council of Management for the convening of a special general meeting. Rather, Mr Grass claimed that because the Association had not complied with Mr Grass' requests for access to its documents and records, Mr Grass had not been able to identify and contact other members to try to persuade them to join with him in making a requisition under the Rule. Consequently, item 13 is also a complaint about the Association's failure to give Mr Grass access to its documents and records. 1. Item 7 is a complaint that the Council of Management expelled Mr Grass from the Association in a manner that was contrary to the applicable rules. Mr Grass did not refer to any evidence that was capable of supporting this claim. There is no evidence at all that the Council of Management expelled Mr Grass from the Association, whether in accordance with all applicable rules, or at all. The Council of Management only declined to deal with Mr Grass in circumstances where it was not required to do so unless Mr Grass was a current member, and its position is that Mr Grass did not at the time satisfy that condition. Mr Grass has not provided an evidentiary basis for the Association to respond to item 7. Nor is it an issue that is justiciable in these proceedings, given the manner in which they have been conducted by Mr Grass. I will not refer further to the alleged dispute in item 7. 2. Items 8, 9 and 10 involve complaints that the Council of Management failed to address evidence of irregularities and misconduct by members of the Association. The content of these items, as stated in the particulars of disputes, does not include any identification of the members allegedly responsible for the irregularities and misconduct or the nature of the conduct alleged by Mr Grass. I will deal with this issue further below. 3. Item 9 involves a claim that members of the Council of Management caused the Association to breach Mr Grass' contract with the Association, and also additional rights that he had that arose out of his employment. The Association acknowledged that it did enter into an agreement with Mr Grass, but it denied that the agreement was a contract of employment, or that Mr Grass was entitled to receive any remuneration from the Association, or that the Association was in any way contractually responsible for Mr Grass being entitled to earn remuneration from his relationship with the Association. I will defer further consideration of this issue until I have set out the terms of the agreement between Mr Grass and the Association below.
8. As appears from the analysis that is set out above, the primary dispute between the parties is as to whether, at relevant times, Mr Grass was a member of the Association. Mr Grass' position is that the issue of whether or not he was a member at any time is a matter in dispute between him and the Association, and that he has a right under the Rules of the Association to have the issue of the validity of his membership referred to arbitration for determination. The position of the Association is that not only was Mr Grass not in fact a member of the Association at the relevant times, but that his right to require the Association to submit any dispute to arbitration is conditional upon him being a member. Consequently, the Association submits, the issue of Mr Grass' membership is justiciable in this Court, so that it is a requirement that the Court find as a fact that Mr Grass was a member before it is obliged to make an order referring any of the disputes asserted by Mr Grass to arbitration.

Outline of the relevant facts

1. I will outline the facts that I consider have been established by the evidence before I consider the issues that remain for determination by the Court.

Facts relevant to Mr Grass' membership of the Association

1. The parties agree that Mr Grass became a member of the Association on 17 May 2017. Mr Yee's statement that the date was 21 May 2017 is immaterial.
2. The Association's evidence was that in 2017, the Association took steps to establish a program whereby its junior members could be coached by senior members at those members' discretion. Mr Chin, who was the Association's secretary at the time, said that the Association's objective was that volunteer member coaches could instruct students who were members of the Association, and that the Association would subsidise the cost of court hire.
3. The Association entered into the statement of understanding and agreement with Mr Grass and two other potential coaches on 15 January 2018. I will set out the terms of this agreement fully below.
4. Mr Grass paid a membership fee of $10 on 9 December 2018. Mr Chin's evidence was that this was the last membership fee paid by Mr Grass and it covered his membership until 30 June 2019. The Association issued Mr Grass a receipt dated 9 December 2018: Exhibit D2. The receipt recorded that Mr Grass had paid "TEN DOLLARS" and stated: "1/2 YEAR MEMBERSHIP to JULY 2019". Mr Chin annexed to his 27 April 2022 affidavit blank membership renewal forms for the Association which state that the membership fee for adults was $20 (presumably per year).
5. The Association's case is that Mr Grass' membership of the association lapsed on 1 July 2019, because he failed to renew his membership after that date and failed to pay any further membership renewal fees.
6. Mr Grass did not lead evidence to contradict the evidence given by Mr Chin that the activities of the Association were suspended from 20 June 2020 due to the COVID-19 restrictions. This is a significant fact because it means that Mr Grass cannot justify the non-payment of any membership fees before 20 June 2020 on the basis that the Association was not entitled to expect payment of membership fees because it was not able to provide any services to members.
7. On 6 April 2021, Mr Grass attempted to transfer $30 to the Association, apparently for the purpose of paying outstanding membership fees.
8. Again, on 29 November 2021, Mr Grass transferred a further $30 into the Association's bank account.
9. The evidence given by Mr Yee and Mr Chin concerning these payments was that they were made by electronic funds transfer and were unsolicited by the Association. The Association attempted to return the first payment of $30 to Mr Grass by sending him a cheque for that amount by registered mail on 16 June 2021. Mr Grass did not bank the cheque and that money remains in the Association's bank account. The Association did not attempt to repay the second amount of $30 because its attempt to repay the first amount of $30 had not succeeded.
10. The evidence provided by Mr Grass in support of these payments consisted of receipts issued by Mr Grass' own bank to prove payment into the Association's account for purposes described by Mr Grass as "NSWCTA membership fee" in one case and "J GRASS NSW Chinese Tennis Association membership Renewal" in the other case. At the hearing, Mr Grass told the Court that he had attempted to pay the two amounts of membership fees by transferring those amounts electronically to the Association's bank account because the Association was not operating normally because of the COVID-19 shutdown, and because he was being ostracised by the members of the Association, he was unable to pay membership fees in person in the normal way.

Terms of the agreement between Mr Grass and the Association

1. The document relied upon by Mr Grass as his contract is dated 15 January 2018 and is on the letterhead of the Association. It is signed by Mr Grass and by two other persons who entered into the agreement on the same basis as Mr Grass. The document is signed on behalf of the Association by its president, vice-president and the secretary. The document, which contains an attachment, is in the following terms: Establishing a Statement of Understanding and Agreement between NSWCTA and Coaches 1. All coaching Staff and Members disseminating instructions to children must be registered with "Working with Children Check". 2. All coaching staff and participants must be members of NSW Chinese Tennis Association Incorporated (referred to as NSWCTA). NSWCTA to provide relevant membership application/renewal forms. 3. NSWCTA to place booking and hire courts for coaching. 4. Coaches to pay NSWCTA for court bookings in advance and by the term. 5. Coaches to keep record of Coaching and Membership applications/monies, issue receipts and submit completed applications and membership fees to any Executive Committee Member of NSWCTA weekly or periodically. 6. Coaches to supply/provide their own material and equipment for coaching purposes except on special programs sourced by NSWCTA. Only use the Association's (NSWCTA) logo and NSWCTA for promoting facility. 7. Help organise competition for members and family day activities, oversee and select player representation for Competition. 8. Two months' notice to be given on any changes to this arrangement/agreement. 9. At least one week's notice is required for any change to court usage. 10. Commitment to this arrangement/agreement to remain in-place to the end of every Financial Year, and subject to yearly review and recommitment. Note: It is imperative to maintain this commitment to provide a safe environment for all participants under the care of the Association, and Maintain record of participants using the coaching to enable the Association to monitor progress. [Signature block] An Attachment further to: Establishing a Statement of Understanding and Agreement between NSW CTA and Coaches 1. The first review of this program to take place after June 2019. 2. The first 6 month's membership for current participants joining the Association be borne by NSWCTA Inc.
2. At par 10 of his 17 December 2021 affidavit, Mr Grass gave evidence that it was an effect of this agreement that Mr Grass had a right to coach members of the Association at his usual coaching rate of approximately $100 per hour, although he agreed to volunteer some of his time for the purposes of the Association. It is clear from the terms of the agreement that the Association did not bind itself to pay any fee to Mr Grass for his time in coaching members, and it did not promise that Mr Grass would earn $100 per hour, or any other sum, by private arrangement with members of the Association who agreed to be coached by Mr Grass.
3. I accept the evidence given by Mr Yee and Mr Chin that the objective of the Association in entering into the agreement with the three coaches was that they would voluntarily provide their services to younger members of the Association, although both witnesses acknowledged that it was a matter for the coaches whether they could by private agreement agree with members to provide coaching services in return for a fee.

Dispute concerning Mr Grass' Working with Children Check

1. Mr Chin gave evidence that it was necessary, at the beginning of 2018 for all Association members with Working With Children Checks ("WWCC") who were to coach minors to have their WWCC registrations verified and presented to Tennis NSW. On 7 March 2018, Mr Chin sent an email to Mr Grass to request that Mr Grass provide his WWCC registration number for verification. Mr Chin gave evidence that, at the end of the 30 June 2018 financial year, he asked Mr Grass to provide his date of birth to verify his WWCC registration in order that the Association's reaffiliation process could be completed. Mr Grass did not respond.
2. On 22 December 2018, Mr Chin followed up on reaffiliation with Tennis NSW, and found that it was awaiting the verified WWCC list from the Association. The Association tendered a "Verification Results Receipt" from the Office of the Children's Guardian showing that, as at 22 December 2018, there were seven members of the Association who had a WWCC, but that Mr Grass was not one of them. On 22 December 2018, Mr Chin sent a further email to Mr Grass asking again for confirmation of Mr Grass' WWCC registration. The email included: "I would like to know if your ATPC accreditation last valid until 14 July 2018, has been renewed? Can you also confirm your WWCC Registration is WWCC 1587764E? And what DOB did you use on the application because the details you provided could not be verified. TennisNSW requires the Association to verify our WWCC register every year as a requirement for affiliation. They have held up our reaffiliation since July, and the Association is still held in "pending".
3. Mr Chin said in evidence that there was an exchange of emails between him and Mr Grass over the next week or so but Mr Grass did not provide the information required about his WWCC. Mr Chin asked Mr Grass on 3 January 2019 whether he had "difficulties or problems in providing a WWCC registration". Mr Grass' response on the same date was: Hi Jeff Is this brief enough for you. Il talk more slowly you have been provided with the information on numerous occasions, i have the evidence of that, I do not intend to provide it again when you cannot maintain the security of it and make false claims the member has refused to provide it. In the future confirm it through the relevant Government agency or association. If you and the committee do not wish to respond to concerns of members including matters related to the security of their personal information you might be more cooperative responding to Commonwealth Ombudsman, Information Commissioner and Fair Trading enquiries. If members concerns are taken seriously and addressed in the first instance it will save a lot of unnecessary work down the track. Happy New Year to you...
4. Mr Grass' response to this evidence was to assert that Mr Chin's claims had previously been the subject of determination in the Fair Work jurisdiction of the Fair Work Commission and the Federal Circuit Court. He claimed that he provided Mr Chin with his current WWCC authority, and that Mr Chin could have inspected his current WWCC authority at any time that he visited the Meadowbank Park Tennis Centre. Mr Grass annexed to his 24 May 2022 affidavit a copy of his WWCC with an expiry date of 27/02/2023. The copy of the document that is in evidence is not dated but it contains unexplained handwriting that appears to say that registration took place on 31 January 2018. Mr Grass gave evidence (by way of submission) that, as Mr Chin's 22 December 2018 email stated the correct registration number for Mr Grass' WWCC, Mr Chin would not have had the registration number unless it had been provided to him by Mr Grass, and that Mr Grass had provided his date of birth to Mr Chin on several occasions. Mr Grass' evidence was that he had provided his date of birth because that date was required to be stated in the Association's new member application forms. Mr Grass referred to Annexure D to his 17 February 2021 (in fact 17 December 2021) affidavit, but that annexure is a blank new member nomination form. There was no evidence of any such form that may have been submitted by Mr Grass when he became a member of the Association.
5. The significance of this factual dispute to the determination of these proceedings is obscure. I am satisfied that Mr Chin was genuinely pursuing the delay in the affiliation of the Association to Tennis NSW. Mr Chin could not obtain verification that Mr Grass had a current WWCC. The reason is not clear, but it may be that he lacked the information concerning Mr Grass' circumstances that would cause the Office of the Children's Guardian to give Mr Chin the confirmation that he sought. In this context, the terms of Mr Grass' 3 January 2019 reply to Mr Chin were entirely unhelpful. This issue appears to have no significance, other than to demonstrate that Mr Grass' response was not cooperative.

Proceedings by Mr Grass against the Association

1. The Association lead evidence that Mr Grass had instituted a number of proceedings against it arising out of the circumstances of which Mr Grass complains in these proceedings. Mr Yee summarised the proceedings in a table in par 12 of his 27 April 2022 affidavit. Mr Yee referred in his 15 June 2022 affidavit to further proceedings instituted by Mr Grass against the Association in the Federal Circuit Court. These proceedings may be summarised as follows: 1. Australian Human Rights Commission proceedings 2020/04228 and 2020/08194 commenced on 2 April 2020 and 21 July 2020 and determined on 7 January 2021. Proceedings terminated on the basis that continuation of an enquiry into a complaint was not warranted. 2. Australian Human Rights Commission proceedings 2020/07888 commenced on 4 August 2020 and determined on 11 February 2021. Proceedings terminated under ss 46PF(1)(b) and 46PH(1)(c) of the Australian Human Rights Commission Act 1986 (Cth). Enquiry into the complaint not warranted. 3. Fair Work Commission proceedings C2020/8481 commenced on 18 November 2020 and determined on 11 December 2021. The matter was finalised at the conclusion of a telephone conference and the matter was closed. 4. Fair Work Commission proceedings C2021/314 and C2021/2401 commenced on 20 January 2021 and determined on 8 April 2021 and 15 June 2021. Mr Grass was found not to be an employee for the purposes of s 365 of the Fair Work Act 2009 (Cth), and Mr Grass was not dismissed by the Association. Permission for appeal refused. 5. On 10 September 2021 Judge Street in the Federal Circuit and Family Court of Australia (Division 2) in proceedings SYG1172/2021 between Mr Grass and the Association made orders in favour of Mr Grass against the Association on an ex parte application, including default judgment for contravention of s 340 of the Fair Work Act and an order that the Association pay Mr Grass $6,192 under s 545 of the Act within 28 days. On 28 October 2021, Judge Street made a further order confirming the order for payment, and made an order dismissing the proceedings on the basis that each party was to pay their own costs. Mr Yee gave evidence that the Association initially appealed these orders but then decided not to pursue the appeal.

Mr Grass' membership of the Association

1. The Association accepts that Mr Grass was a member of the Association between 17 May 2017 and 30 June 2019. The Association's case is that Mr Grass ceased to be a member on 30 June 2019, because on 9 December 2018 Mr Grass paid, and the Association duly accepted, his membership fee for the period expiring on 30 June 2019. Therefore, Mr Grass' membership lapsed on that date. Mr Grass did not lodge an application to renew his membership after that date, and the Association did not solicit or accept any subsequent payment made by Mr Grass electronically into its accounts as being payments of membership fees. The Association's case is that all of the circumstances that Mr Grass has claimed have caused disputes to arise between him and the Association occurred after 30 June 2019, and all complaints made by Mr Grass that could have constituted notifications of disputes also occurred after that date.
2. It is clear on the evidence that Mr Grass' payments of membership fees that were duly accepted by the Association only related to periods that ceased on 30 June 2019. As noted above, the receipt for the 9 December 2018 payment explicitly stated that it was for a half year membership to 1 July 2019.
3. As also noted above, the definition of "Member" in Rule (1)(b) relevantly limited members to persons who have "paid an annual membership fee". The question is what is meant by the word "annual" in this provision. Rule 5(1) also defines the Association as consisting of members "who have paid the prescribed membership fees". However, Rule 9, which deals specifically with cessation of membership, relevantly provides that a person ceases to be a member of the Association if the person at the end of the tennis year fails to renew his membership. The expression "tennis year" is not specifically defined in the Rules. However, the effect of Rule 13, dealing with payment of membership fees, is that the tennis year ends on 30 November of each year. Rule 13(2) requires that annual membership fees be paid before 1 December in each year, and Rule 13(3) has the effect that, once the prescribed membership fee has been paid, the membership shall continue until the end of November in that year.
4. The evidence does not explain why, on 9 December 2018, Mr Grass only paid a membership fee that would cover the period up to 30 June 2019. In particular, there is no evidence as to whether or not it was the Association's practice to only require payment of membership fees on a financial year basis, notwithstanding the terms of the Rules. While there is some force in the conclusion that Mr Grass ceased to be a member of the Association on 30 June 2019, because he had not paid the annual membership fee for the tennis year to 30 November 2019, it would be unsafe for the Court to act on that conclusion, given the uncertainties in the evidence. However, for reasons that were not explained by Mr Grass, it is clear that he did not offer to pay, and did not pay, any continuing membership fee for the period after 30 November 2019. In particular, he did not pay any membership fee for the period 1 December 2019 to 26 June 2020, while the activities of the Association were being conducted as normal, so far as the evidence discloses. By force of Rule 13(3), it is safe for the Court to conclude that Mr Grass' membership of the Association only continued up to 30 November 2019. Alternatively, but to the same effect, Mr Grass' membership of the association ceased on 30 November 2019, because Mr Grass failed to renew his membership before that date.
5. I am satisfied that the payment by Mr Grass of the two amounts of $30 on 6 April 2021 and 29 November 2021 did not constitute valid payments of membership fees, and in particular they did not relate to the continuing membership of the Association by Mr Grass, or have the effect of renewing his membership after it had lapsed. First, the payments were not solicited by the Association, and nor were they accepted as being valid payments of membership fees. Because of the electronic nature of the transfers, the Association had no advance knowledge of the payments and could not resist their receipt. Secondly, the first payment was made on 6 April 2021, which was well after the end of the tennis year that concluded on 30 November 2020. If Mr Grass' membership of the Association had not lapsed on either 30 June 2019 or 30 November 2019, it would have lapsed on 30 November 2020, without Mr Grass having paid any membership fee for the period after 30 June 2019.
6. On Mr Grass' own evidence, as set out in his 17 December 2021 affidavit, the earliest written demand or complaint that Mr Grass made to the Association was on 12 March 2020 - see par 19 and the list of demands and complaints referred to in pars 19 to 28. Mr Grass specifically said, in par 31, that the Council of Management "ostraci[s]ed me and have denied me access to all association membership entitlements from March 2020…". As I am satisfied that Mr Grass' membership of the Association lapsed no later than 30 November 2019, all of the disputes that Mr Grass claims that he has with the Association have arisen at times when he was not a member of the Association. He is not a member of the Association now.
7. It remains necessary for the Court to consider the possibility that it is not for the Court to decide the issue of whether Mr Grass is a member of the Association because that is, in itself, the subject of a dispute between a person who was a member at one time and the Association that should be dealt with under rule 9 of the Model Rules. For the reasons that I have explained above, this is not a question that involves the application of s 8 of the Commercial Arbitration Act, so it does not depend upon the proper interpretation of that Act. In reality, Mr Grass has asserted that he has an entitlement under the contract between himself and the Association constituted by the Rules, as augmented by Rule 9 of the Model Rules, to have the disputes that he claims have arisen between himself and the Association dealt with in accordance with the dispute resolution provision.
8. I am satisfied that, as the issue is one of contract, and as it is Mr Grass that seeks to enforce the contract in this Court, it is necessary for him to establish that he has been a member of the Association at all relevant times, as his title to orders in accordance with Rule 9 of the Model Rules. Membership is a condition of the right to enforce the rule, so that it is an issue justiciable in this Court before the Court can enforce the contractual right asserted by Mr Grass by an appropriate order for alternative dispute resolution in accordance with the rule.
9. As Rule 43 only gives the right to inspect the records, books and other documents of the Association to members, the effect of the Court's finding that Mr Grass is not and has not been a member of the Association at relevant times is that he is not entitled to an order that he be permitted by the Association to inspect that material.
10. Consequently, it is not necessary for the Court to deal with the subsidiary argument of the Association that some of Mr Grass' requests required more than that he be allowed to inspect the Association's records, books and other documents at any reasonable hour at the place where they are kept, so that Rule 43 does not require the Association to comply with Mr Grass' requests.
11. Mr Grass' claim must fail, because I have found that he is not now a member of the Association and was not a member at the time any of the disputes that he alleges have existed between him and the Association arose. Consequently, the Association is entitled to an order that Mr Grass' proceedings be dismissed.

Mr Grass' allegations of irregularities and members' misconduct

1. Although it is therefore not necessary to deal with the other matters raised by Mr Grass in his particulars of dispute, I will deal with them briefly as follows.
2. I will first return to items 7, 9 and 10 of Mr Grass' particulars of disputes, insofar as they include complaints by Mr Grass that the Council of Management failed to address evidence of irregularities and misconduct by members of the Association.
3. Mr Grass presented his case at the hearing in a way that showed that the substantial complaint that he had with the conduct of the Association, and which indeed was the source of his original dispute, was that when he had attended the Meadowbank Park Tennis Centre on occasions during weekdays, he had noticed that disabled persons who wished to have a game of social tennis had been treated badly and excluded by other persons who were using the facility. Although Mr Grass did not identify any of the persons who he claimed were responsible for excluding the disabled persons, Mr Grass intimated that the persons included members of the Association. Mr Grass clearly stated to the Court that the conduct that he complained of occurred on days other than Sundays, when the Association hired courts for the benefit of its members, but occurred on other days when the courts were not being used by the Association, and when the use of the courts was not in any way under the auspices of the Association. At the heart of Mr Grass' case was that he was entitled, as a member of the Association, to require its Council of Management to investigate the conduct of persons - including apparently unidentified members - that took place at the Meadowbank Park Tennis Centre in circumstances that were entirely unconnected to the affairs of the Association.
4. As the Rules do not vest in members a power to require the Council of Management to consider any matter, no relevant dispute can arise under the Rules as between Mr Grass and the Association by reason of the fact that the Council of Management did not deal with Mr Grass' complaint that disabled persons were being badly treated and excluded on days when the Association had not hired courts at the Meadowbank Park Tennis Centre for the use of its members. That is so even if some of the persons responsible were members of the Association. Had Mr Grass been a member of the Association at the time, the only avenue available to him was to persuade five other members to requisition a special general meeting of the members of the Association, and then to persuade the members present at the meeting to resolve to require the Council of Management to consider the issue, presumably for the purpose of considering whether members of the Association ought to be the subject of discipline under Rule 15.
5. In any event, I am not satisfied that Mr Grass has demonstrated that it could be a failure of the Council of Management to comply with its obligations under the Rules to decline to act upon a complaint about the conduct of persons, even including members, on occasions where the event was not being conducted under the auspices of, and the conduct was not done in the name of, the Association. I do not exclude the possibility that members of the Association could engage in conduct outside the affairs of the Association that was so persistent and wilful and prejudicial to the interests of the Association so as to enliven the power of the Council of Management in Rule 15(1) to discipline a member guilty of that conduct. However, that would be a matter for the Council of Management, and the description of the conduct of members given by Mr Grass in his particulars of disputes could not realistically enliven the power of the Council of Management in Rule 15.
6. Further, I am not satisfied that Mr Grass has established that he is in a dispute with the Association that could attract rule 9 of the Model Rules, because his communications with members of the Council of Management did not provide sufficient specification of the conduct of which Mr Grass had complained to be capable of providing a proper foundation for any disciplinary investigation that might be conducted by the Council of Management. The only communications referred to by Mr Grass in the particulars of disputes relevant to this claim were his email dated 24 April 2020 (particulars to item 9) and his email dated 31 July 2020 (particulars to item 10).
7. The 24 April 2020 email addressed to Mr Jeff Chin provided: Good evening Jeff I have not received a response to any of my previous communications. Please refer attached communication, forward a copy to each committee member and acknowledge receipt of this communication.
8. The document that I understand was the attached communication is part of Court Book p 54, but has been photocopied in a truncated form. At the request of my Associate, Mr Grass provided my Associate with what is apparently a full copy of the communication. The document is in three pages, each of which are marked "F". The following is my best attempt to piece together the two clearest documents to set out the whole of the communication: Invitation to NSWTCA committee members to convene committee meeting: I invite all NSWCTA committee members to convene an urgent fact-finding meeting to investigate the following matters. As a member of the NSWCTA I have become increasingly concerned regarding incidents of unprofessional and unlawful conduct displayed by some NSWCTA members/committee members, including the management of the NSWCTA that has the potential to discredit the Association. This conduct includes breach of contract by NSWCTA and contrary Federal, State laws, including Federal, State Discrimination law and NSW Incorporated Associations legislation. Federal and State regulatory authorities that administer Discrimination and Incorporated Associations legislation have confirmed they will commence an investigation into the management of the association's affairs if the NSWCTA fails to resolve the issues internally prior to the commencement of an external investigation. NSWCTA members/committee members while cognitive they were in breach of NSW Incorporated Associations legislation and NSWCTA constitution engaged in obstructive misconduct to prevent inappropriate and unlawful conduct being brought to the attention of the association/members. NSWCTA members/committee members attempted to coerce other CTA members into abandoning complaints due to an agenda of the individuals concerned taking priority over the rights of the CTA members and the public. NSWCTA members/committee members were involved in discriminatory conduct. In response to a CTA member pursuing an avenue outside the NSWCTA to a to resolve a discrimination complaint, NSWCTA members/committee members commenced a campaign of discrimination, ostracization, victimization and defamation against the CTA member including threatened and actual assault presently the subject of police investigation. I invite the whole of the NSWCTA to a committee to urgently convene a fact-finding meeting to attempt to address and amicably resolve the issues to avoid the necessity for an external investigation and potentially acrimonious dispute. As a consequence of not having received acknowledgement of my previous communications to the NSWCTA and in the event I do not receive immediate confirmation of the receipt of this communication and the NSWCTA committee undertaking to assign a date to hold the meeting within seven days of the date of this communication I will presume the invitation has been rejected and the external investigation process will commence in due course. Please give your urgent consideration to this matter…
9. Mr Grass' 31 July 2020 email stated the following: Peter Yee President NSWCTA Good Morning Peter As a consequence of not having received a response to any of my previous communications to the NSWCTA committee, including, a) Request for access to register of NSWCTA members, b) Access to register of NSWTCA committee members, c) Access to register of NSWTCA committee members disclosure of interests, d) Access to minutes of meetings of the NSWCTA, including the minutes of AGM for 2017, 2018, 2019, 2020 and e) No response to my request for NSWCTA committee to convene a meeting to resolve the issues outlined in the attached communication to the NSWCTA committee, I request the NSWCTA committee to convene a special general meeting of members to include on the agenda and resolve the matters outlined above and contained in the attached communication to the NSWCTA committee.
10. These communications are not in my view sufficiently specific as to the nature of the conduct complained of, or as to the identity of the persons allegedly engaged in that conduct, to be a notification of a dispute that was reasonably capable of being addressed by the Council of Management. It seems to involve claims by Mr Grass that members of the Association, some of whom may also have been members of the Council of Management, had engaged in the conduct that Mr Grass described in the most general terms. The communication left the issue entirely unclear as to whether there was a real dispute between Mr Grass and the Association or any of its members that sufficiently arose under the Rules as to give the Council of Management a right or obligation to intervene to "convene a fact-finding meeting to attempt to address and amicably resolve the issues".

Mr Grass' claim of breach of contract by the Association

1. I will now consider the issue raised by item 9 of Mr Grass' particulars of dispute, which is that one of the matters that the Council of Management failed to address was evidence of breach of Mr Grass' contract and alleged protections to which Mr Grass was entitled that arose out of his contract.
2. Apart from the fact that Mr Grass' various communications to the Council of Management were not sufficiently specific concerning the breaches of the agreement between Mr Grass and the Association that Mr Grass complained of, I am satisfied that the agreement did not oblige the Association to pay any remuneration to Mr Grass for any coaching that he gave to members of the Association. Nor did the agreement require the Association to take any steps to facilitate Mr Grass being able to earn remuneration as a result of entering into private arrangements directly with members of the Association. As a matter of the proper construction of the agreement, Mr Grass' claim that he had any rights in this regard is misconceived.

Orders

1. In these circumstances, the orders of the Court are: 1. Order that the plaintiff's proceedings be dismissed. 2. Order the plaintiff to pay the defendant's costs of the proceedings.

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: 28 April 2023