Associations Incorporation Act 1981 (Qld), s 13(1), s 21(a), s 32(1), s 60(1)

Associations Incorporation Act 1987 (WA)

Associations Incorporation Act 2015 (WA), s 13, s 13(1)(a), s 21(1), s 21(1)(c), s 22, s 22(3)(a), s 22(7), s 26(1), s 28(1)(b), s28(2)(a), s28(2)(b)(i), s35(2), s36(1)(a), s38, s51(1)(b), s51(3), s56(1), s182, s182(1), s182(1)b), s 182(3), s182(3)(b), s182(3)(c), s 185, s 188, s 198, s 201(2)(a), Sch 1, Div 1

Associations Incorporation Bill 2014 (WA)

Associations Incorporation Regulations 2016 (WA), reg 4, Sch 2

Interpretation Act 1984 (WA), s 18, s 19

State Administrative Tribunal Act 2004 (WA), s 60(2)

Preliminary issue regarding jurisdiction unable to be determined at this stage

Matter to be listed for final hearing, which will include proper construction of respondent association's rules

The respondent, Pine Valley Pistol Club Incorporated (Club) is an incorporated association under the Associations Incorporation Act 2015 (WA). The management committee of the Club decided to 'decline to renew' the applicants' memberships of the Club under one of its rules. The applicants disputed that the rule relied on by the management committee allowed it to refuse to renew their memberships and applied to the Tribunal under s 182(1) of the Associations Incorporation Act 2015 (WA) (s 182(1)) for an order that the decision made by the management committee is void and of no effect and that their memberships of the Club be renewed, subject to each of them paying the subscription fee.

Section 182(1) provides that an application may be made to the Tribunal by an incorporated association or a member of an incorporated association to have a dispute determined if the dispute cannot be resolved under the procedure specified in s 182(1).

The rules of the Club contain a dispute resolution procedure which satisfies the requirement in s 182(1), but a preliminary issue was raised by the Tribunal as to whether it has jurisdiction to deal with the application, in particular with regard to firstly, whether the applicants had followed the dispute resolution procedure and secondly, whether the applicants are members of the Club for the purposes of s 182(1). The Tribunal decided to determine the preliminary issue on the documents.

The Tribunal considered the proper construction of s 182(1) in accordance with the principles of statutory construction and formed the following views regarding the legal meaning of the language of s 182(1):

• A dispute for the purposes of s 182(1) must be under or relating to the rules of an incorporated association either between members or between one or more members and the incorporated association.
• If a person (being a member of an incorporated association or an incorporated association) who applies to the Tribunal under s 182(1) has done everything that he or she is required to do under the dispute resolution procedure in the rules of the incorporated association, but another party to the dispute has not done so, then the requirement in s 182(1) that the dispute cannot be resolved under the procedure will be satisfied.
• A management committee and a general meeting of an incorporated association are both 'corporate organs' of the incorporated association and a decision made or action taken by a management committee or a general meeting of an incorporated association can give rise to a dispute between a member and the incorporated association.
• A person must be a current member of an incorporated association to be able to make an application under s 182(1). However, an application can be made under s 182(1) if an incorporated association contends that the membership of a person who has been a member has ceased, but that person disputes that his or her membership has ceased because he or she contends that the incorporated association has not complied with its rules. If the Tribunal determines that the incorporated association did not comply with its rules it can make a declaration that the applicant is still a member of the association and that the person will, in fact, have been a current member when he or she made the application. If the Tribunal determines that the incorporated association did comply with its rules and the membership of the applicant has ceased then it can dismiss the application on the basis that it does not have jurisdiction under s 182(1) to deal with it.

On the facts of this matter the Tribunal decided that:

• The applicants had followed the dispute resolution process under the rules of the Club and the requirement in s 182(1) that the dispute cannot be resolved under the procedure has been satisfied.
• It is not possible to determine, at this stage, whether the applicants are current members of the Club, because that will depend on the proper construction of the rule on which the management committee relied to make its decision and the parties had not made submissions regarding that.

The Tribunal, therefore, decided to program the matter to a final hearing at which the proper construction of the rule in question can be dealt with.

Bhalsod v Perrie [2016] WASC 412

Gould v Isis Club Incorporated [2016] 1 Qd R 363; [2015] QSC 253

Green and Port Hedland Pony Club Inc [2019] WASAT 16

Kelmscott Senior Football Club (Inc) and Western Australian Amateur Football League (Inc) [2018] WASAT 6

McBurney v Variety WA Incorporated [2018] WASC 57

Peskett and Leonora Clay Target Club [2017] WASAT 50

1. Mr Philip Andrew Kavanagh, Mr Colin John Anderson and Mr Paul Hagiantoniou (applicants) have applied to the Tribunal under s 182(1) of the Associations Incorporation Act 2015 (WA) (AI Act) for the following orders against Pine Valley Pistol Club Incorporated (respondent or Club):
   1. That the decision made by the Committee of the [Club] on 19 June 2019 to decline to renew the memberships of the [Club] respectively held by [each of the applicants] is void and of no effect.
   2. That the respective memberships of the [Club] held by the [a]pplicants be renewed subject to each of the [a]pplicants paying the subscription fee.
2. Accompanying the application were copies of the letter sent, in identical terms, to each of the applicants dated 23 June 2019 by Mr L Randall, President of the Club (Club's letter) which states as follows:

At the Committee meeting held on the 19 June 2019, club affiliations were presented for ratification.

At this meeting it was resolved to not accept your re-affiliation for the 2019-2020 membership year in accordance with the Pine Valley Club [sic] Constitution 2018. Rule 5 Section 6.

1. It is not in dispute that:
   • the Club is an incorporated association under the AI Act; and
   • the current rules of the Club are the rules set out in the document titled 'Pine Valley Pistol Club (Inc) Constitution 2018' (Club's Rules), which accompanied the application.
2. Rule 5(6) of the Club's Rules states as follows:

Membership is for 12 months and is renewable annually upon completion of a member's record form and payment of the applicable subscription.

The Management Committee reserves the right to not accept a membership application or renewal. The decision to not accept an application shall be communicated to the applicant within 10 days of the Committee's decision.

1. Rule 22 of the Club's Rules (Rule 22) provides as follows:

(1) The grievance procedure set out in this rule applies to disputes under these rules between -

(c) if the Club provides services to non-members, those non-members who receive services from the Club, and the Club.

(2) The parties to the dispute must meet and discuss the matter in dispute, and, if possible, resolve the dispute within 14 days after the dispute comes to the attention of all of the parties.

(3) If the parties are unable to resolve the dispute at the meeting, or if a party fails to attend that meeting, then the parties must, within 10 days, hold a meeting in the presence of a mediator.

(4) The mediator must be -

(a) a person chosen by agreement between the parties; or

(i) in the case of a dispute between a member and another member, a person appointed by the Committee of the Club;

(ii) in the case of a dispute between a member or relevant non-member (as defined by sub-rule (1) (c)) and the Club, a person who is a mediator appointed to, or employed with, a not for profit organisation.

(5) A member of the Club can be a mediator.

(6) The mediator cannot be a member who is a party to the dispute.

(7) The parties to the dispute must, in good faith, attempt to settle the dispute by mediation.

(8) The mediator, in conducting the mediation, must-

(a) give the parties to the mediation process every opportunity to be heard;

(b) allow due consideration by all parties of any written statement submitted by any party; and

(c) ensure that natural justice is accorded to the parties to the dispute throughout the mediation process.

(9) The mediator must not determine the dispute.

(10) The mediation must be confidential and without prejudice.

(11) If the mediation process does not result in the dispute being resolved, the parties may seek to resolve the dispute in accordance with the Act or otherwise at law.

1. Section 182(1) of the AI Act provides as follows:

If a dispute cannot be resolved under the procedure provided for as required by Schedule 1 Division 1 item 18 -

(a) the incorporated association concerned; or

(b) a member of the association involved in the dispute,

may make an application to the State Administrative Tribunal to have the dispute determined by that Tribunal.

1. Schedule 1, Div 1, item 18 of the AI Act states that one of the matters required to be provided for in the rules of an incorporated association is as follows:

A procedure for dealing with any dispute under or relating to the rules -

(a) between members; or

(b) between members and the incorporated association.

1. In Kelmscott Senior Football Club (Inc) and Western Australian Amateur Football League (Inc) [2018] WASAT 6 (Kelmscott Senior Football Club) at [32], the Tribunal determined that before an application can be made to the Tribunal under s 182(1) of the AI Act the following two requirements must be satisfied:
   • firstly, there must be a dispute resolution procedure in an incorporated association's rules (which satisfies the requirements of item 18 of Sch 1, Div 1 of the AI Act); and
   • secondly, on the facts, there must be a failure to resolve the dispute despite following that dispute resolution procedure.
2. It is not in dispute that Rule 22 provides a procedure for dealing with disputes which satisfies the requirements of item 18 of Sch 1, Div 1 of the AI Act. Therefore, the first requirement referred to above in Kelmscott Senior Football Club is satisfied.
3. However, at a directions hearing which was held shortly after the application was filed, the Tribunal raised with the parties the question of whether the Tribunal has jurisdiction to deal with the application, particularly with regard to:
   • firstly, whether the procedure in Rule 22 has been followed by the parties to try to resolve the dispute; and
   • secondly, whether the applicants are members of the Club for the purposes of s 182(1) of the AI Act.

1. The Tribunal decided to determine the following issue as a preliminary issue:

Does the Tribunal have jurisdiction to determine the dispute which is the subject of this application under s 182(1) of the AI Act?

1. The Tribunal also decided that the questions which must be answered to determine the preliminary issue are:

Question 1: Have the applicants followed the dispute resolution procedure in Rule 22 (Question 1)?

Question 2: Are the applicants members of the Club for the purposes of s 182(1) of the AI Act (Question 2)?

1. Question 1 addresses the second requirement referred to above in Kelmscott Senior Football Club, that is to say, whether there has been a failure to resolve the dispute despite following the dispute resolution procedure in Rule 22.
2. Question 2 addresses an issue which was not raised in Kelmscott Senior Football Club, which concerns the proper construction of the words 'a member of the association involved in the dispute' in s 182(1) of the AI Act.
3. The Tribunal made orders for the parties to file, and give to each other, written submissions in relation to the preliminary issue and, in particular, Question 1 and Question 2 and all documents and decided cases on which they wished to rely in relation to the determination of the preliminary issue.
4. The parties each filed (and gave to each other) written submissions and the applicants also filed (and gave to the Club) documents and decided cases on which they wish to rely.
5. The Tribunal then decided that the preliminary issue is to be determined entirely on the documents, pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
6. The documents on which the Tribunal is determining the preliminary issue are:
   • the Club's letter;
   • the Club's Rules;
   • the submissions (applicants' submissions) and the documents and decided cases (applicants' documents), both of which were filed by the applicants on 25 September 2019; and
   • the submissions which were filed by the Club on 8 October 2019 (Club's submissions).

1. In the applicants' submissions, the applicants state that, for reasons which are not relevant to this application, differences have arisen between them and various persons who are involved with the Club and when they sought to renew their membership for the financial year commencing 1 July 2019 they received the Club's letter which, in effect, informed them that their membership would not be renewed.
2. The applicants state that they engaged a solicitor, Mr David Huggins of Huggins Legal, to liaise on their behalf with the Club with respect to the matter. Mr Huggins corresponded with the Club by way of emails between himself and Ms Danielle Stefani, who is the secretary of the Club (Club Secretary).
3. The emails between Mr Huggins and the Club Secretary are in the applicants' documents, including the following emails:
   • On 13 July 2019 Mr Huggins sent an email to the Club Secretary, marked for the attention of the committee of the Club (Club Committee) which states that rule 5(6) of the Club's Rules does not operate to allow the Club to refuse to renew the applicants' membership and, in substance, the applicants have been expelled as members of the Club. In the email Mr Huggins states that the applicants are anxious to avoid commencing proceedings in the Tribunal with respect to the matter, but they would do so if the decision not to renew their membership is not rescinded immediately. Mr Huggins also states that if the Club Committee wishes to expel the applicants as members of the Club it should follow the procedure set out in rule 9 of the Club's Rules.
   • On 16 July 2019 the Club Secretary sent an email to Mr Huggins, in response to his email of 13 July 2019, which states that his correspondence had not been received in time for it to be included on the agenda for the Club Committee's July meeting and it has been included on the agenda for the Club Committee's meeting due to be held on 14 August 2019. In the email, the Club Secretary states that the Club Committee will consider the opinions stated in Mr Huggins' email and respond to him no later than seven days after that meeting.
   • On 18 July 2019 Mr Huggins sent an email to the Club Secretary, marked for the attention of the Club Committee, which states that it is apparent that a dispute now exists between the Club and the applicants and the applicants wish to invoke the disputes and mediation process provided for by Rule 22. In the email Mr Huggins also states that the applicants request that a meeting be held between them and a representative of the Club Committee within 14 days in accordance with rule 22(2).
   • On 29 July 2019 the Club Secretary sent an email to Mr Huggins, in response to his email of 18 July 2019, which states that, as the Club had previously informed him, the next scheduled Club Committee meeting will be on 14 August 2019. In the email, the Club Secretary also states that the matter has been placed on the agenda for that meeting for consideration and, if required, the nomination of an appropriate representative to respond and/or act on the Club Committee's behalf. The Club Secretary also states that until that occurs she has no authority to organise any meetings or mediations as they need consent of the Club Committee to undertake such actions. The Club Secretary requests the following information from the applicants so that it can be presented to the Club Committee at its August meeting:
     1. What is the full nature of the dispute the applicants wish to raise?;
     2. Who would the applicants like to suggest they meet with to discuss the matter?;
     3. Where would the applicants seek to hold such a meeting - location and time?; and
     4. Who would be in attendance at the meeting, and would this be agreed to prior to such a meeting taking place?
   • On 29 July 2019 Mr Huggins sent an email to the Club Secretary, in response to her email of that date, which states that the effect of Rule 22 is clear - the fact that a dispute exists has been brought to the attention of all parties by, at the latest, 18 July 2019 and a meeting must be held within 14 days thereafter. In the email Mr Huggins also provides the following responses to the information requested in the Club Secretary's email of 29 July 2019:
     1. The nature of the dispute has already been set out in detail;
     2. The applicants wish to meet in accordance with what is set out in the Club's Rules; who the Club wishes to speak on its behalf at the meeting is a matter for it;
     3. The applicants are available to meet at any reasonable time and place; the meeting must be held before 1 August 2019; if the meeting is not held before this time the applicants will proceed on the basis that the Club has failed to comply with the Club Rules; and
     4. Only the applicants will attend on their part; who the Club wants to attend is a matter for it.
4. The applicants' submissions then state that they made this application to the Tribunal on 14 August 2019, on the basis that a dispute exists which cannot be resolved under the procedure provided for in the Club's Rules, as required by item 18 of Sch 1, Div 1 of the AI Act.
5. The applicants state that they have attempted to avail themselves of the dispute resolution procedure in Rule 22, but they have been unable to do so because the Club has failed to participate in this procedure and the dispute cannot be resolved for this reason. Therefore, the applicants are contending that Question 1 must be answered in the affirmative.
6. In response to Question 2, the applicants' submissions state that in accordance with s 18 of the Interpretation Act 1984 (WA) (Interpretation Act), s 182 of the AI Act should be construed in a way that would promote the purpose or object underlying it. In this regard the applicants contend that, s 182 of the AI Act should be interpreted as requiring that the applicants be members of the Club at the time that the dispute arose, not at the time that the application was made to the Tribunal. The applicants state that they were members of the Club at the time that the dispute arose, because they were members and the dispute concerns the failure to renew their membership. The applicants contend that if s 182 of the AI Act is not construed in this manner, it will prevent any person whose membership of an association is improperly terminated from being able to have the decision reviewed by the Tribunal. The applicants contend that such an outcome would frustrate the proper operation of s 182 of the AI Act in circumstances where the termination of membership is likely to be the most significant issue that would cause prejudice to the interests of a member of an incorporated association.
7. The applicants' submissions also state that their interpretation of s 182 of the AI Act is supported by two decisions of the Tribunal: Peskett and Leonora Clay Target Club [2017] WASAT 50 (Peskett) and Green and Port Hedland Pony Club Inc [2019] WASAT 16 (Green). The applicants state that both of those matters concerned persons who had their membership of an association terminated, but no issue arose as to whether the Tribunal had jurisdiction because the applicants in those matters were not members of their respective associations at the time that the applications were made to the Tribunal and the Tribunal proceeded on the basis that no issue arose with respect to this aspect of jurisdiction.

1. The Club's submissions state that:
   • At the Club Committee meeting on 19 June 2019 the Club Committee resolved not to accept the application for renewal of membership of the applicants for the membership year commencing 1 July 2019.
   • At no time were the applicants expelled or suspended from membership of the Club.
   • As per rule 5(6) of the Club's Rules, the applicants were advised of the decision in writing in the Club's letter dated 23 June 2019.
   • The action taken under rule 5(6) of the Club's Rules is lawful and the applicants are no longer members of the Club.
   • It is the understanding of the Club that under s 182(1) of the AI Act an application can only be made to the Tribunal by a person who is a member of an incorporated association.
2. The Club's submissions do not address Question 1. The Club's position is simply that the applicants are not members of the Club for the purpose of s 182(1) of the AI Act and therefore, the Tribunal does not have jurisdiction under s 182 of the AI Act to deal with the application.

1. Before considering the preliminary issue the Tribunal will consider the proper construction of s 182(1) of the AI Act.

1. As was noted by the Tribunal in Kelmscott Senior Football Club at [31], the principles of statutory construction were conveniently summarised in Bhalsod v Perrie [2016] WASC 412 at [18]- [19], as follows:

The High Court has confirmed on many occasions in recent years that questions of construction are determined by reference to the text, context and purpose of the Act. See for example Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 26; (1998) 194 CLR 355; Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27; Australian Education Union v Dept of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1; Certain Lloyd's Underwriters Subscribing to Contract Number IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378.

The applicable principles of statutory construction include the following. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The context and purpose of a provision are important to its proper construction because the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The legal meaning of the relevant provision is to be decided by reference to the language of the instrument viewed as a whole. The purpose of the statute resides in its text and structure. The purpose of legislation must be derived from what the legislation says, and not from some a priori assumption about its purpose or any assumption about the desired or desirable reach or operation of the relevant provisions.

1. Section 182(1) of the AI Act provides as follows:

If a dispute cannot be resolved under the procedure provided for as required by Schedule 1 Division 1 item 18 -

(a) the incorporated association concerned; or

(b) a member of the association involved in the dispute,

may make an application to the State Administrative Tribunal to have the dispute determined by that Tribunal.

1. Schedule 1, Div 1 item 18 of the AI Act states as follows:

A procedure for dealing with any dispute under or relating to the rules -

(a) between members; or

(b) between members and the incorporated association.

1. Section 182(1) of the AI Act provides that an application may be made to the Tribunal by an incorporated association or a member of an incorporated association to have a dispute determined if the dispute cannot be resolved under the procedure provided in the rules of the incorporated association as required by item 18 of Sch 1, Div 1 of the AI Act.

Issues regarding the legal meaning of the language of s 182(1) of the AI Act

1. At first glance it might appear to be straight forward as to who can make an application to the Tribunal under s 182(1) of the AI Act, and the circumstances in which an application may be made.
2. However, on closer examination there are a number of issues which arise regarding the legal meaning of the language in s 182(1) and item 18 of Sch 1, Div 1 of the AI Act, including:
   • what is a 'dispute' for the purposes of s 182(1) of the AI Act?
   • what is the meaning of the words 'cannot be resolved under the procedure provided for as required by Schedule 1 Division 1 item 18' in s 182(1) of the AI Act?
   • how can an incorporated association come to be in a dispute with one or more of its members for the purposes of s 182(1) of the AI Act, considering an incorporated association is not a natural person who can act and communicate in person?
   • what is the meaning of the words 'a member of the association involved in the dispute' for the purposes of s 182(1) of the AI Act?
3. Before considering these issues, to put s 182(1) of the AI Act in context, the Tribunal will examine briefly the relevant provisions of the AI Act which deal with the effect of the incorporation of an association, the rules of an incorporated association and the management of an incorporated association.
4. The AI Act commenced on 1 July 2016.
5. When the AI Act commenced it repealed the Associations Incorporation Act 1987 (WA) (Repealed Act): s 185 of the AI Act.
6. Section 13 of the AI Act provides that upon incorporation of an association under the AI Act the association becomes a body corporate with perpetual succession.
7. An association that was an incorporated association under the Repealed Act is taken to be an association incorporated under the AI Act: s 188 of the AI Act.
8. An association incorporated under the AI Act (incorporated association) is a legal non-natural or artificial person. It is a 'distinct legal entity': McBurney v Variety WA Incorporated [2018] WASC 57 at [2].
9. Section 21(1) of the AI Act provides that the rules of an incorporated association 'bind the association and the members of the association' as if they contained an agreement on the part of each member to be bound by and observe all the provisions of the rules.
10. Section 22 of the AI Act sets out the general requirements for the content of the rules of an incorporated association. Section 22(7) of the AI Act provides that those requirements apply to an association which was already incorporated prior to the commencement of the AI Act, but s 198 of the AI Act allowed a time period of three years after the commencement of the AI Act for those incorporated associations to ensure that their rules comply with the requirements of s 22 of the AI Act.
11. Section 22(3)(a) of the AI Act provides that the rules of an incorporated association must address each of the matters set out in items 1-19 in Sch 1, Div 1 of the AI Act. Those matters include:
    • the name and objects of the incorporated association (items 1 and 2);
    • the qualifications (if any) for membership of the incorporated association, provision for when membership commences and ceases, the register of members and the entrance fees, subscriptions and other amounts (if any) to be paid by members (items 3,4 and 5);
    • the constitution, membership and powers of the management committee or other body having the management of the incorporated association (item 6);
    • the requirements and procedures for convening and holding general meetings of members of the incorporated association (items 7, 8, 9, 10 and 13);
    • the manner in which the funds of the incorporated association are to be controlled (items 11 and 12);
    • the manner of altering, rescinding and adding to the rules (item 14);
    • arrangements regarding the records and documents of the incorporated association (items 15, 16 and 17);
    • a procedure for dealing with any dispute under or relating to the rules between members or between members and the incorporated association (item 18); and
    • the manner in which the surplus property of the incorporated association must be distributed or dealt with if the association is wound up or if its incorporation is cancelled (item 19).
12. It can be seen from the matters set out in Sch 1, Div 1 of the AI Act, that the intention is that, among other things, the rules of an incorporated association must provide for the manner in which a person may become a member of the incorporated association, when his or her membership ceases, the constitution and powers of a management committee and the requirements and procedures for general meetings of the members of the incorporated association.
13. Under s 26(1) of the AI Act and reg 4 of the Associations Incorporation Regulations 2016 (WA) (AI Regulations), the rules set out in Sch 2 of the AI Regulations are prescribed as model rules (Model Rules).
14. The Model Rules apply to an incorporated association in any of the following situations:
    • a proposed incorporated association can approve the Model Rules to be its rules at the time when it applies to be incorporated: s 28(1)(b) of the AI Act;
    • the Model Rules will apply if the association does not have its own rules when it is incorporated: s 28(2)(a) of the AI Act;
    • if an incorporated association has its own rules when it is incorporated, but those rules do not address all of the matters referred to in Sch 1, Div 1 of the AI Act then the Model Rules apply as the rules of the association to the extent necessary to ensure that all of those matters are addressed: s 28(2)(b)(i) of the AI Act; or
    • if an incorporated association, which was already an incorporated association under the Repealed Act when the AI Act commenced on 1 July 2016, had rules which did not address all of the matters referred to in Sch 1, Div 1 of the AI Act and the incorporated association did not alter its rules within the three year transition period provided in s 198 of the AI Act to ensure that it addressed all of those matters, then after 1 July 2019 under s 201(2)(a) of the AI Act the Model Rules are deemed to apply to its rules to the extent that its rules do not address those matters.
15. Section 28(2)(b)(i) and s 201(2)(a) of the AI Act have particular relevance in respect of s 182(1) of the AI Act. As stated above, in Kelmscott Senior Football Club the Tribunal determined that before an application can be made to the Tribunal under s 182(1) of the AI Act there must be a dispute resolution procedure in the rules of an incorporated association which satisfies item 18 of Sch 1, Div 1 of the AI Act.
16. When it is incorporated under the AI Act, if the rules of an incorporated association do not contain a dispute resolution procedure which satisfies the requirements of item 18 of Sch 1, Div 1 of the AI Act, then under s 28(2)(b)(i) of the AI Act the dispute resolution procedure in the Model Rules is deemed to apply to its rules.
17. Under s 198 of the AI Act, an incorporated association which was already an incorporated association under the Repealed Act when the AI Act commenced on 1 July 2016, was given a period of three years before it was required to comply with the requirements of s 22 of the AI Act for the content of its rules. Therefore, up to 1 July 2019 an association which was already an incorporated association before the AI Act commenced was not required to have in its rules a dispute resolution procedure which satisfies the requirements of item 18 of Sch 1, Div 1 of the AI Act. However, after 1 July 2019 that exemption ceased and under s 201(2)(a) of the AI Act if such an incorporated association does not have a dispute resolution procedure in its rules, which satisfies the requirements of item 18 of Sch 1, Div 1 of the AI Act, the dispute resolution procedure in the Model Rules is deemed to apply to its rules. Therefore, since 1 July 2019 all incorporated associations under the AI Act have had a dispute resolution procedure in their rules which satisfies the requirements of item 18 of Sch 1, Div 1 of the AI Act.
18. If an incorporated association either firstly, does not have a dispute resolution procedure in its rules, or secondly, has a dispute resolution procedure in its rules which does not satisfy the requirements of item 18 of Sch 1, Div 1of the AI Act then, under either s 28(2)(b)(i) or s 201(2)(a) of the AI Act, as the case may be, the dispute resolution procedure in the Model Rules is deemed to apply to its rules. In the second case, if an application is made to the Tribunal under s 182(1) of the AI Act it will be necessary for the Tribunal to determine what the applicable dispute resolution procedure is before then determining whether that procedure has been followed to try to resolve the dispute.
19. Section 38 of the AI Act provides that the persons who under the rules of an incorporated association have the power to manage the affairs of the incorporated association constitute the management committee of the incorporated association for the purposes of the AI Act.
20. Within this context the Tribunal will now consider the issues set out in [34] above regarding the legal meaning of the language of s 182(1) of the AI Act.

What is a 'dispute' for the purposes of s 182(1) of the AI Act?

1. The meaning given to the word 'dispute' in the Macquarie Dictionary Online (2020) is 'argumentation; verbal contention; a debate or controversy; a quarrel'.
2. A dispute for the purposes of s 182(1) of the AI Act is a dispute under or relating to the rules of the incorporated association either between members or between one or more members and the incorporated association.
3. The dispute must be under or relating to the rules of the incorporated association concerned because an application can be only be made to the Tribunal under s 182(1) of the AI Act to determine a dispute if the dispute cannot be resolved under the procedure referred to in Sch 1, Div 1 item 18 of the AI Act, which refers to a procedure for dealing with 'any dispute under or relating to the rules'. A dispute which is not under or relating to the rules of an incorporated association cannot be the subject of an application to the Tribunal under s 182(1) of the AI Act.
4. The dispute under or relating to the rules of the incorporated association must be between members of the association or between one or more members and the association.

What is the legal meaning of the words 'cannot be resolved under the procedure provided for as required by Schedule 1 Division 1 item 18' in s 182(1) of the AI Act?

1. As has already been stated above, in Kelmscott Senior Football Club the Tribunal determined that before an application can be made to the Tribunal under s 182(1) of the AI Act, on the facts, there must be a failure to resolve the dispute despite following the dispute resolution procedure in the rules of the incorporated association (which satisfies the requirements of item 18 of Sch 1 Div 1 of the AI Act).
2. A dispute resolution procedure will always, necessarily, involve action to be taken by all parties to a dispute to attempt to resolve their dispute. For example, the dispute resolution procedure in the Model Rules provides that the parties to a dispute must attempt to resolve the dispute between themselves within 14 days after the dispute has come to the attention of each party. If that does not occur, then a formal grievance procedure may be commenced by any party to the dispute giving written notice to the secretary of the incorporated association. A meeting of the management committee must then be convened within 28 days. The parties must be given written notice of that meeting and they are entitled to attend the meeting and make submissions to the committee about the dispute, before the committee determines the dispute. If the dispute is between one or more members and the association, then a party to the dispute can elect that it not be determined by the committee and that a mediator be appointed. Also, in the situation where the committee determines the dispute, a party to the dispute can then request the appointment of a mediator. The parties to the dispute must participate in the mediation and attempt in good faith to settle the matter that is the subject of the dispute.
3. Whilst item 18 of Sch 1 Div 1 of the AI Act only states that there must be a procedure 'dealing with' a dispute of the kind specified, it is hard to imagine a procedure which provides for a dispute to be dealt with in a manner which does not require the involvement of all parties to the dispute.
4. If each party to the dispute does everything that it is required to do under the dispute resolution procedure, but the dispute is not resolved then clearly it is open to each party to apply under s 182(1) of the AI Act to have the dispute determined by the Tribunal, provided the party applying is a member of the incorporated association or the party applying is the incorporated association.
5. However, if a party to a dispute which falls within s 182(1) of the AI Act has done everything that it is required to do under the dispute resolution procedure in the rules of the incorporated association, but another party to the dispute has not done so and therefore it has not been possible for the dispute to be resolved under that procedure, in the Tribunal's view, it can be said that the dispute cannot be resolved under the dispute resolution procedure. Consequently, it will be open to that party to apply under s 182(1) of the AI Act to have the dispute determined by the Tribunal, provided the party is a member of the incorporated association or the party is the incorporated association.

How can an incorporated association come to be in a dispute with one or more of its members for the purposes of s 182(1) of the AI Act, considering an incorporated association is not a natural person who can act and communicate in person?

1. In Green, the applicant in that matter (Mr Green) applied to the Tribunal under s 182(1) of the AI Act to have a dispute between himself and the respondent (the pony club), which is an incorporated association, determined by the Tribunal. The dispute concerned a number of decisions made by the management committee of the pony club, including a decision to terminate Mr Green's membership of the pony club.
2. At [16] in Green the Tribunal (as constituted for dealing with that matter) stated that it was difficult to characterise the dispute regarding the termination of Mr Green's membership of the pony club by the management committee as a dispute between the pony club (as an incorporated association) and a member. Then at [19] in Green the Tribunal stated that the management committee carries out the day­to­day running of the pony club but it is not the incorporated association and there was no dispute between the pony club itself (as the incorporated association) and Mr Green (as the member).
3. With all due respect to the member by whom the Tribunal was constituted in that matter, the Tribunal (as constituted for dealing with this matter) does not agree with those statements in Green for the following reasons.
4. In Gould v Isis Club Incorporated [2016] 1 Qd R 363; [2015] QSC 253 (Gould), the applicant (Ms Gould) was a member of the respondent (Isis Club), which was an incorporated association under the Associations Incorporation Act 1981 (Qld) (Qld Act). Ms Gould's membership of the Isis Club was terminated by a decision of the management committee of the Isis Club and Ms Gould applied to the Supreme Court of Queensland seeking relief in respect of that decision. The Supreme Court treated the decision of the management committee as a decision of the Isis Club and made an order declaring the decision made by the Isis Club terminating Ms Gould's membership to be void.
5. In December 1978 the Queensland Law Reform Commission (Commission) published its Working Paper No 22 in respect of the draft bill, which ultimately became the Qld Act. On page 22 of that paper the Commission stated that the draft legislation provided for legislative recognition of a management committee which is akin to the board of directors of a company.
6. The Qld Act and the AI Act both provide:
   • that an incorporated association is a body corporate with perpetual succession (see s 13(1) of the Qld Act, as passed and s 21(a) of the Qld Act, as amended and s 13(1)(a) of the AI Act); and
   • that a management committee will have the power to control/manage the affairs of the incorporated association (see the Long Title and s 32(1) of the Qld Act, as passed and s 60(1) of the Qld Act, as amended and the Long Title and s 38 of the AI Act).
7. In the view of the Tribunal (as constituted for dealing with this matter), the statement by the Commission which is referred to above is equally applicable to the management committee of an incorporated association under the AI Act and the approach taken by the Supreme Court of Queensland in Gould should be the approach taken by the Tribunal regarding decisions made by the management committee of an incorporated association under the AI Act. Therefore, a decision made by the management committee of an incorporated association under the rules of the incorporated association which affects a member of the incorporated association can give rise to a dispute between the member and the incorporated association.
8. In Ford's Principles of Corporations Law, Fourteenth Edition, Lexis Nexis Butterworths Australia 2010 at 7.070, the following comments are made regarding the manner in which an artificial (or juristic person), such as a corporation, can exercise its powers and take action:

[7.070] Corporate organs - board of directors and general meeting

One of the central questions of company law is this: who is entitled to activate the corporation to perform juristic acts (such as making contracts)? Most corporate acts are performed by an agent, but how does the agent acquire the corporation's authority, given that the corporation itself is inanimate and therefore cannot act except through the intermediation of human beings?

Before companies legislation conferred corporate status on joint stock companies, it could be said that the joint stock company was equivalent to the members of the company acting together, just as a partnership is the partners. The advent of incorporation complicated the analysis ... Modern corporate theory ... has moved well beyond this idea ...

An alternative approach, now widely accepted, treats both the board and the members in general meeting as corporate organs. According to this approach, company law vests in certain groups of people an original authority to commit the company or to delegate to others. For a normal solvent company, this original authority is vested in:

• the members in general meeting, deciding by a majority of votes permitted by law and the company's constitution; and
• the board of directors, deciding in accordance with law and the company's constitution.

The relationship between the board and the general meeting is not hierarchical. According to the organic approach, whatever may have been the case in the past, the power to bind the modern company is divided between the board and the general meeting, and they are sovereign within the areas allocated to them unless the constitution is in an unusual form.

A principal argument for the organic approach is that it is an inevitable consequence of the view that on incorporation, a company is a discrete entity. In John Shaw & Sons (Salford) Ltd v Shaw [1935] 2 KB 113 at 134 Greer LJ said:

A company is an entity distinct alike from its shareholders and its directors. Some of its powers may, according to its articles, be exercised by directors, certain other powers may be reserved for the shareholders in general meeting[.]

1. In the view of the Tribunal (as constituted for dealing with this matter), those comments are also applicable to an incorporated association under the AI Act and the functions of the management committee and a general meetings of the members of an incorporated association, which are both 'corporate organs' of the incorporated association. Accordingly, a decision made or action taken by the management committee or by a general meeting of the members of an incorporated association is a decision or action of the incorporated association.
2. Therefore, in the view of the Tribunal (as constituted for dealing with this matter), if a decision or an action is made or taken by the management committee or a general meeting of members under the rules of an incorporated association, which affects a member of the incorporated association, then it can give rise to a dispute between the member and the incorporated association for the purposes of s 182(1) of the AI Act.
3. The Tribunal notes that s 21(1) of the AI Act states that the rules of an incorporated association bind the incorporated association and the members of the incorporated association, but does not say anything about the management committee of the incorporated association being bound by the rules. In s 38 of the AI Act, the management committee is stated to be the persons who under the rules of an incorporated association have the power to manage the affairs of the incorporated association. It would be an absurd situation if the rules of an incorporated association can stipulate the composition of the management committee and its powers, without the management committee being bound by those rules. On the view taken above, the management committee is bound by the rules of the incorporated association as a 'corporate organ' of the incorporated association.
4. In this matter, it was the management committee (called the Committee in the Club's Rules) which made the decision which the applicants are disputing. The applicants have regarded that as a decision of the Club and proceeded on that basis in both the email communications made by their solicitor, Mr Huggins which are referred to above and in making this application to the Tribunal. The Club has, correctly, not taken issue with that approach and the Tribunal finds that there is a dispute between the applicants and the Club. Whether that is a dispute which falls within s 182(1) of the AI Act and which the Tribunal has jurisdiction to determine will depend on the answers to Question 1 and Question 2 (as stated in [12] above).

What is the legal meaning of the words 'a member of the association involved in the dispute' for the purposes of s 182(1) of the AI Act?

1. As stated in [29] above, in construing the legal meaning of a provision in legislation, the language which has actually been employed in the text of the legislation is the surest guide to legislative intention, with the context and purpose of a provision being important to its proper construction, so that it is construed to be consistent with the language and purpose of all the provisions of the statute. The purpose of legislation must be derived from what the legislation says, and not from some a priori assumption (or, in other words, an assumption that is regarded as being true without the need to prove it) about its purpose or any assumption about the desired or desirable reach or operation of the relevant provisions.
2. Section 182(1) of the AI Act states that a 'member of the association involved in the dispute' may apply to the Tribunal (if a relevant dispute cannot be resolved under a relevant dispute resolution procedure).
3. The words 'member of the association', 'members of the association', 'member of the incorporated association', 'member of an incorporated association' or 'members of the incorporated association' are used in s 21(1), s 22(1)(c), s 35(2), s 36(1)(a), s 51(1)(b), s 51(3) and s 56(1) of the AI Act. In all those instances it is clear that the reference is to a current member of an incorporated association.
4. Section 18 of the Interpretation Act provides that in the interpretation of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object. However, as stated above, the purpose of the written law must be derived from what it says, and not from some a priori assumption about its purpose or any assumption about the desired or desirable reach or operation of the relevant provisions.
5. Section 19 of the Interpretation Act provides that in the interpretation of a provision of a written law, consideration may be given to an explanatory memorandum relating to the Bill containing the provision or the second reading speech made to a House of Parliament regarding the Bill.
6. The Tribunal has considered the second reading speeches for the Associations Incorporation Bill 2014 (WA), which were given by Mr PT Miles (Parliamentary Secretary) in the Assembly (Hansard 11 September 2014, p 6122-6124) and by the Hon Michael Mischin (Minister for Commerce) in the Council (Hansard 26 March 2015, p 2283-2285). There is nothing in either of those speeches which refers to an intent that a former member or a non-member of an incorporated association would be entitled to make an application to the Tribunal under the provision which became s 182(1) of the AI Act. Both of those speeches state that 'association members' would have the ability to apply to the Tribunal if a dispute cannot be resolved.
7. The Tribunal has also considered the debates in both the Assembly and the Council regarding the Associations Incorporation Bill 2014 (WA) and notes that there was one occasion when a concern was raised in the Assembly regarding whether a former member of an incorporated association would be able to apply to the Tribunal for the resolution of a dispute.
8. During the second reading debate in the Assembly on 20 November 2014, Mr P Abetz (Member for Southern River) said (Hansard 20 November 2014, p 8573):

Another issue has emerged from one of the organisations in my electorate about the dispute resolution process. The organisation has a dispute resolution process in its constitution and a person decided to initiate that process, but the committee proceeded to expel him from the association. It therefore said, 'You are no longer a member. You have no right to use the dispute resolution process'. I hope that there will be some provision in this bill to prevent that kind of misuse of the powers of a committee. I hope that a person will still be able to go to SAT and have the dispute resolved there; otherwise, I believe that will be an abuse of process.

1. On 27 November 2014, in the Assembly Mr PT Miles (Parliamentary Secretary) said (Hansard 27 November 2014 p 9022):

The member for Southern River posed some questions. One of his questions was whether a body could expel a member to prevent that member from using its dispute resolution process to try to challenge it. The Associations Incorporation Bill 2014 requires that every incorporated body has to have a dispute resolution process; we are making that very clear. However, it is going to be left up to each individual to decide what process they need to take after that. The draft model rules, which have been out for public consultation, include a suggested process for the expulsion or suspension of a member. The rules provide that a body can expel or suspend a member and is able to use the dispute resolution process in situations in which the membership has ceased, but no more than six months after that dispute has occurred. The model rules also provide for expelled or suspended members to apply to the State Administrative Tribunal to determine the dispute in situations in which the dispute cannot be resolved under the dispute resolution process. There is quite a bit of a process that can be set up there.

1. Rule 17 of the Model Rules provides that a person who has ceased to be a member within six months before a dispute comes to the attention of each party to the dispute can use the grievance procedure set out in division 3 of the Model Rules. However, that provision does not have any bearing on the proper construction of s 182(1) of the AI Act. A dispute resolution procedure in the rules of an incorporated association cannot give a former member a right to apply to the Tribunal under s 182(1) of the AI Act if a dispute is not resolved under that procedure, unless the provisions of s 182(1) of the AI Act allow that. Rule 17 of the Model Rules simply allows a former member the opportunity to use the grievance procedure in the Model Rules within six months of ceasing to be a member.
2. In the Tribunal's view, the proper construction and legal meaning of the words 'a member of the association involved in the dispute' in s 182(1)(b) of the AI Act, by reference to the text and read in context, is that they refer to a person who is a current member of an incorporated association at the time that they make an application to the Tribunal under s 182(1) of the AI Act.
3. Applying the principles of statutory construction referred to in [29] above, the Tribunal cannot find any legislative intention in the AI Act that a former member of an incorporated association should be entitled to any relief under s 182 of the AI Act, if their membership has ceased in accordance with the rules of the incorporated association (as properly interpreted).
4. However, in the Tribunal's view, an application can be made under s 182(1) of the AI Act if an incorporated association contends that the membership of a person who has been a member of the incorporated association has ceased, but that person disputes that their membership has ceased because they contend that the incorporated association has not complied with its rules. In that situation, it will be necessary for the Tribunal to determine the issue of whether the rules (properly construed) have been complied with before the Tribunal can determine whether it has jurisdiction to deal with the dispute under s 182(1) of the AI Act. If the Tribunal determines that the incorporated association did not comply with its rules and that the membership of the person has not ceased then it can make a declaration under s 182(3)(c) of the AI Act declaring that the person is still a member of the incorporated association and that the decision to terminate their membership is void and of no effect. That being the case, the person will, in fact, have been a current member of the incorporated association when they make the application under s 182(1) of the AI Act.
5. That was the situation in Peskett, in which the Tribunal found that the respondent, which was an incorporated association, had not validly terminated the applicant's membership. However, as was stated in Kelmscott Senior Football Club, the Tribunal in Peskett (as constituted for dealing with that matter) fell into error in the proper construction of s 182(1) of the AI Act in concluding that it applied to the dispute in that matter despite the respondent incorporated association not having a dispute resolution procedure in its rules as required by item 18 of Sch 1, Div 1 of the AI Act (for the reason explained in [49] above).
6. In Green the same situation would have applied regarding whether or not the Mr Green's membership had been validly terminated by the pony club. However the Tribunal found that it did not have jurisdiction to determine the dispute under s 182 of the AI Act because the rules of the pony club did not contain a dispute resolution procedure which complied with the requirements of item 18 of Sch 1, Div 1 of the AI Act (for the reason explained in [49] above).
7. On the other hand, in the situation described in [86] above, if the Tribunal determines that an incorporated association did comply with its rules and the membership of the person concerned has ceased then it can dismiss the application on the basis that it does not have jurisdiction under s 182(1) of the AI Act to deal with it.
8. Section 182 of the AI Act does not give the Tribunal jurisdiction to deal with the merits of whether a person's membership of an incorporated association should have been terminated; it only gives the Tribunal jurisdiction to determine whether an incorporated association has complied with its rules in making a decision to terminate the membership.
9. Section 182(3) of the AI Act provides as follows:

In a proceeding under subsection (1), the State Administrative Tribunal may make orders giving such relief as the Tribunal considers appropriate, including one or more of the following orders -

(a) an order giving directions for the observance of the rules of the incorporated association by any person who has an obligation to observe those rules;

(b) an order declaring and enforcing the rights and obligations of members of the incorporated association between themselves;

(c) an order declaring and enforcing the rights and obligations between the incorporated association and any member or members of the association.

1. In the Tribunal's view the reference in s 182(3)(b) of the AI Act to the rights and obligations of members of an incorporated association between themselves and the reference in s 182(3)(c) of the AI Act to the rights and obligations between an incorporated association and any member or members of it are references to the rights and obligations contained in the rules of the incorporated association.

Consideration of Question 1: Have the applicants followed the dispute resolution procedure in Rule 22?

1. There has not been either a meeting or a mediation between the applicants and the Club under Rule 22 to attempt to resolve the dispute which is the subject of this application.
2. However, the Tribunal finds, on the basis of the emails referred to in [21] above, that the applicants did everything possible to endeavour to meet with whomever the Club Committee wished to appoint as the representative/s of the Club in accordance with the procedure set out in Rule 22, but the Club failed to do what it was required to do under Rule 22, by not convening such a meeting.
3. Question 1 is therefore answered in the affirmative. The applicants followed the dispute resolution procedure in Rule 22 and the dispute the subject of this application cannot be resolved under that procedure due to the failure of the Club to participate in it. Accordingly, the requirement in s 182(1) of the AI Act that the dispute cannot be resolved under the dispute resolution procedure has been satisfied.

Consideration of Question 2: Are the applicants members of the Club for the purposes of s 182(1) of the AI Act?

1. The applicants contend that rule 5(6) of the Club's Rules does not operate to allow the Club to refuse to renew their memberships and that, in substance, they have been expelled as members of the Club without the procedure in rule 9 of the Club's Rules being followed.
2. For the reasons stated in [86] above it, it is not possible to answer Question 2 at this stage, because for the Tribunal to determine whether the applicants are still members of the Club it will need to make a finding regarding the proper construction of rule 5(6) of the Club's Rules.
3. The parties have not been given the opportunity to make submissions and file documents and decided cases in respect of that issue and to afford natural justice (procedural fairness) to the parties they must be given that opportunity.
4. In that regard, the Tribunal notes that the second part of rule 5(6) of the Club's Rules purports to 'reserve the right' to the 'Management Committee' (presumably meaning the 'Committee' as defined in rule 2 of the Club's Rules) (Club Committee) to not accept a membership application or renewal (presumably of membership of the Club).
5. Rule 5(6) does not make provision for a person who has applied for membership, or a member who wishes to renew his or her membership for a further 12 months, whose application for membership or renewal is not accepted to appeal against that decision. That is in distinct contrast to the provisions giving a right of appeal contained in:
   • rule 5(4) and (5) of the Club's Rules, in a situation where an application for membership has been made under rule 5(1) of the Club's Rules and the Club Committee has rejected the application under rule 5(2) of the Club's Rules; and
   • rule 9(4) and (5) of the Club's Rules, in a situation where the Club Committee has decided to suspend or expel a member of the Club from membership of the Club under rule 9(2) of the Club's Rules.
6. In both those situations the person who has applied for membership and the member respectively have a right to appeal the decision of the Club Committee which must be considered by the Club in a general meeting.
7. The proper construction of rule 5(6) of the Club's Rules will be an issue which will need to be determined at the final hearing.

1. Question 1 is answered in the affirmative.
2. However, it is not possible to answer Question 2 at this stage.
3. Therefore, it follows that it is not possible to determine, at this stage, whether the Tribunal has jurisdiction to determine the dispute which is the subject of this application under s 182(1) of the AI Act.
4. The Tribunal's view is that the application should now be programmed to a final hearing and the proper construction of rule 5(6) of the Club's Rules will be dealt with as part of the final hearing.

1. The preliminary question: 'Does the Tribunal have jurisdiction to determine the dispute which is the subject of this application under s 182(1) of the Associations Incorporation Act 2015 (WA)?' is answered as follows:

It is not possible to determine, at this stage, whether the Tribunal has jurisdiction to determine the dispute which is the subject of this application under s 182(1) of the Associations Incorporation Act 2015 (WA).

1. The matter is to be listed for a directions hearing to program the application to a final hearing.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.