Liddle v Central Australian Aboriginal Legal Aid Service Inc [1999] NTSC 37; 150 FLR 142

(CAALAS) is a voluntary association incorporated under the provisions

of the Associations Incorporation Act (NT). In broad terms the function

of CAALAS is to provide a legal aid service for Centralian Aborigines.

rd November 1993 the plaintiff Lorraine Liddle was appointed to

the position of Principal Legal Officer of CAALAS, a position she held

until her employment was purportedly terminated on the 7

The plaintiff John Liddle is an elected member of the Council of

CAALAS and the plaintiff Lorraine Liddles brother. The defendants

Edward Taylor and Carmy McLean are respectively the president and vice

president of CAALAS. The defendant Eileen Van Iersel is the public

officer. The defendant Sharon Hayes is an elected counsellor who also

occupies the position of secretary of CAALAS. There is dispute as to the

validity of her appointment as secretary. The other defendants are all

[3] In these proceedings the plaintiffs seek declarations and a mandatory

that the purported meeting of the Executive Committee

of CAALAS on 7 October 1998 was not validly constituted;

that the purported decision of the Executive Committee

of CAALAS made at that meeting on 7 October 1998 to

terminate the employment of the plaintiff Lorraine Liddle as

Principal Legal Officer of CAALAS was void and of no

that the Executive Committee of CAALAS has no power

under the CAALAS constitution to terminate the employment

of the Principal Legal Officer and that the sole body

empowered under the CAALAS constitution to terminate the

employment of the Principal Legal Officer is the Council;

that the purported meeting of the Council of CAALAS on

the purported election of Sharon Hayes as secretary of

that the purported appointment of Eileen Van Iersel to the

Executive Committee of CAALAS by Edward Taylor is void

and of no effect and that Eileen Van Iersel is not a member of

a mandatory injunction requiring the second, third, fourth,

fifth, sixth and seventh defendants to forthwith conv ene an

annual general meeting of CAALAS in accordance with the

constitution for the purpose of conducting elections for

[4] A great deal of evidence was placed before the court in the form of

affidavits and other documentary evidence. It is not necessary to recite

the evidence in detail. None of it was in serious contest although there

were some objections to the admissibility to some of it. I will refer only

to such of the evidence as is necessary to dispose of this matter.

[5] The plaintiffs seek to challenge the purported termination of the

employment of Lorraine Liddle as Principal Legal Officer on a variety of

grounds which include lack of notice of the relevant meetings given to

some of the members entitled to attend and vote; the lack of a quorum at

the relevant meetings; and lack of constitutional power on behalf of the

Executive Committee to dismiss the Principal Legal Officer. The

mandatory injunction is sought on the basis that the constitution requires

that there be an annual general meeting held within four months of the

end of the financial year of each calendar year, there being no annual

general meeting (at which elections for Officers and Council Members are

[6] Mr McDonald QC, who appears for each of the defendants, resisted the

orders sought on a number of grounds which may be summarised as

as CAALAS is a voluntary association established on a

consensual basis, in the absence of a clear positive indication

that the members contemplated the creation of legal relations

inter se, the rules of CAALAS were not to be treated as an

enforceable contract and no action can be maintained

requiring CAALAS to observe its rules regulating its affairs

the plaintiff Lorraine Liddle has remedies under the

Workplace Relations Act (Cth) and also under the provisions

of the constitution of CAALAS and has taken steps to enforce

those remedies. It was submitted that the existence of these

alternative remedies, and the fact that the Industrial Relations

Commission has the power to provide full remedies to the

plaintiff Lorraine Liddle (including remedies which this Court

discretionary reason why discretionary relief should be

refused (the "Slattery and Others v Public Service Board

it was further argued that there are other discretionary reasons

why relief should be refused. Foremost amongst these was a

submission that the relationship of master and servant no

longer existed and that the suit was a subterfuge for an

attempt to obtain specific performance of the contract of

employment (the "Howes v Gosford Shire Council point").

the defendants say that in any event the plaintiff Lorraine

Liddles employment was validly terminated in accordance

finally it was submitted that the remedy of a mandatory

injunction should not be granted to force any of the

defendants to call an annual general meeting of CAALAS on

[7] CAALAS is a non profit making body whose principal objective is to

"provide direct relief to all Aboriginals from poverty, suffering,

destitution, misfortune, distress and helplessness caused directly or

indirectly by their involvement with the laws of the Commonwealth or

States of Australia (sic) and all matters ancillary thereto," and by clause 3

it is provided that "CAALAS shall advance its goals and objectives by the

by assisting Aboriginal people in need of legal advice

representation or other legal services by the provision of a

full legal service for Aboriginal people in Central Australia".

[8] The membership of CAALAS is somewhat unusual. According to clause

every Aboriginal who is at least eighteen years old and

ordinarily a resident in the Central Australian region serviced

by CAALAS shall be a member of CAALAS (and apparently

they are members irrespective of whether they wish to be a

member, have applied to become a member or whether they

Aboriginal community associations which become members

as "member communities" by virtue of clause 6(b) of the

[9] In Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358 Rich Dixon Evatt and

Judicial statements of authority are to be found to the effect that,

except to enforce or establish some right of a proprietary nature, a

member who complains that he has been unjustifiably excluded

from a voluntary association, or that some breach of its rules has

been committed, cannot maintain any action directly founded upon

that complaint. For example, in Forbes v Eden (1867) LR 1 Sc. &

Div. H.L., at 581, Lord Cranworth said: "Save for the due disposal

and administration of property, there is no authority in the Courts

either of England or Scotland to take cognisance of the rules of a

voluntary society entered into merely for the regulation of its own

affairs." (Compare per Jessel MR, Rigby v Connol (1880) 14 Ch.

D., at 487; per Barry J, O'Keefe v Cardinal Cullen (1873) IR 7 CL

at 343). Gavan Duffy J considered that such statements should be

understood as relating only to the jurisdiction of Courts of equity.

There are, however, reasons which justify the statement that, at

common law as well as in equity, no actionable breach of contract

was committed by an unauthorised resolution expelling a member

of a voluntary association, or by the failure on the part of its

officers to observe the rules regulating its affairs, unless the

members enjoyed under them some civil right of a proprietary

nature. As a generalisation it expresses the result produced by the

application of a number of independent legal principles: it is not in

itself the enunciation or explanation of a rule or rules of the

common law. One reason which must contribute in a great degree

to produce the result is the general character of the voluntary

associations which are likely to be formed without property and

without giving to their members any civil right of a proprietary

nature. There are for the most part bodies of persons who have

combined to further some common end or interest, which is social,

sporting, political, scientific, religious, artistic or humanitarian in

character, or otherwise stands apart from private gain and material

advantage. Such associations are established upon a consensual

basis, but, unless there were some clear positive indication that the

members contemplated the creation of leg al rights inter se, the

rules adopted for their governance would not be treated as

[10] Mr McDonald QC submitted that not withstanding the tendency of later

authority to distinguish Cameron v Hogan, the principles which emerge

from this paragraph are binding upon this Court and have never been

overruled. Further, he submitted that CAALAS was a body of a purely

humanitarian character and a purely non profit making organisation.

Indeed, under the provisions of the constitution itself, clause 23(a)

provides that "the income and property of CAALAS shall be applied

solely towards the promotion of the goals and objectives of CAALAS and

no portion thereof shall be paid or transferred directly or indirectly by

dividend bonus or otherwise to any Member of CAALAS." Even on a

winding up, pursuant to clause 40(b), any surplus funds or assets are to be

transferred, after the payment of any debts, to an Aboriginal controlled

fund authority or institution with one or more similar goals t o and

objectives as CAALAS and which satisfy the requirements of s78(1)(a) to

the Income Tax Assessment Act (a provision which at one time provided

for the exemption from income tax on the basis of charity or

benevolence). Mr McDonald QC submitted that there was nothing in the

provisions of the constitution indicating an intention by the members that

they contemplated the creation of legal relations inter se. There is

certainly no such express provision which counsel for the plaintiffs was

able to point to. Further, in the Northern Territory, there is no provision

in the Associations Incorporation Act equivalent to those provisions in

the Acts of other states which provide that the rules of an incorporated

association shall, subject to the Act, operate as a contract between the

association and its members. Mr McDonald QC submitted that the case

affects the plaintiff Lorraine Liddle in her capacity as an employee, but

not in her capacity as a member of CAALAS. So far as the both plaintiffs

are concerned in their capacity as members, it was submitted in effect that

there were no facts upon which the Court could find that they were

entitled to relief. No issue of the disposal or administration of

CAALASs property is involved and the members do not enjoy under the

constitution some civil right of a proprietary nature.

[11] Ms Kelly on behalf of the plaintiffs submitted that this is not the sort of

case where the Court should refuse to intervene in the internal affairs of a

purely private or domestic association, because like the political party in

Baldwin v Everingham (1993) 1 Qd R 10, CAALAS, as an incorporated

association, is recognised by statute and it must register its rules. Further

like the political party there at issue, although it is a voluntary

association, it fulfils a substantial public function in society and also

receives public funding through ATSIC. Ms Kelly also distinguished the

case of Scandrett v Dowling (1992) 27 NSWLR 483 as there were no

public policy reasons why the court in this case should not intervene to

enforce the constitution of the association such as existed in Scandrett's

[12] In Baldwin v Everingham, (supra) Dowsett J said at page 17:

On general principles, when an albeit voluntary association fulfils

a substantial public function in our society, it may appear

indefensible that questions of construction concerning its

constitution should be beyond judicial resolution. It is one thing

to say that a small, voluntary association with limited assets,

existing solely to serve the personal needs of members should be

treated as beyond such supervision: it is another thing to say that a

major national organisation with substantial assets, playing a

critical role in the determination of the affairs of the country

[13] His honour, after referring to what Wootten J had to say in McKinnon v

Whilst I am in general agreement with these observations as a

matter of sentiment, they would not necessarily justify me in

refusing to follow Cameron v Hogan simply because of the

[14] At page 18 his Honour, after considering recent authority in New Zealand

It is not for me sitting at first instance to determine matters of

policy. The difficulties inherent in applying Cameron v Hogan to

very many organisations and domestic tribunals have been

considered on numerous occasions as is revealed by the cases to

which I have been referred. However if Cameron v Hogan applies

fairly to the circumstances of the present case, then I must apply

it, leaving matters of policy for determination by the High Court

itself. The question for my determination is whether or not

Cameron v Hogan does apply to the present circumstances. If it

were not for the statutory recognition of political parties to which

I have referred in some detail, I would be compelled to the

conclusion that the case does so apply. I can see no other basis for

distinction between the Labor Party as it was in the 1930s and the

Queensland Branch of the Liberal Party as it now is.

[15] One difficulty with Baldwin v Everingham and the cases referred to

therein from the point of view of the plaintiffs, is that, to the extent that

there is dicta suggesting that there should be a policy shift, it seems to be

limited to "major national organisations with substantial assets which

play critical roles in the determination of the affairs of the country".

Whatever else may be said about CAALAS, it can hardly fall into that

category. On the other hand neither is it a small voluntary association

with limited assets which exists solely to serve the personal needs of the

members. Rather, it falls somewhere in between. I am not privy to what

precisely CAALASs property amounts to. I am aware that it occupies

office premises in Alice Springs and that it employs a number of lawyers

as well as other staff. Precisely how many people are on the payroll I am

unable to find. Clearly CAALAS performs an important function in

providing legal aid to the very many Aboriginal defendants who are

required to appear in both the Supreme Court and the lower courts

particularly in relation to criminal matters, but also in relation to civil

matters. So far as this Territory is concerned, there is no doubt that it is

an important organisation which fulfils an important public function and

that it is substantially if not exclusively publicly funded.

[16] In Cameron v Hogan, (supra) at page 373 it was said:

If a member of a voluntary association complains, not of an

invalid expulsion, but of some failure to observe the rules on the

part of the committee or other officers, it would be necessary for

the member complaining to show that the rules were intended to

confer upon him a contractual right to the performance of the

particular duty up which he insists. It can seldom be the true

meaning of the rules of any large association of such a kind that

those undertaking office thereby enter into a contract with each

and every member that they will execute the office in strict

conformity with the rules. If, however, it were to determine that

the committee or the officers of a voluntary association in

attempting to exclude the member complaining, or in some other

respect, had committed a breach of contract, the remaining

members of the association would not be responsible. The

committee or officers may be agents for the members of the

association. But if so, they are agents for all the members. If in

the case of a member complaining they have violated the rules,

they have exceeded their authority. Upon no doctrine of agency

can one of the joint principals hold the others responsible.

[17] I should refer also to two other passages which in Cameron v Hogan

which refer to the question of whether the relief of the kind which is

being sought in this case is available. At page 377 Rich, Dixon, Evatt

The question remains whether Gavan Duffy J was right in refusing

relief by way of injunction or declaration of right. The foundation

of the jurisdiction to grant an injunction is t he existence of some

civil right of a proprietary nature proper to be protected.

Further, such a case is not one for a declaration of right. The basis

of ascertainable and unenforceable legal right is lacking. The

policy of the law is against interference in the affairs of voluntary

associations which do not confer upon members civil rights

[18] One point of difference between this case and the situation in Cameron v

Hogan upon which the plaintiffs rely, is the fact that CAALAS is

incorporated under the Associations Incorporation Act. Ms Kelly relied

upon the reasoning of Dowsett J in Baldwin v Everingham who was able

to distinguish Cameron v Hogan upon the basis that the Liberal Party of

the State of Queensland was a registered political party under the

provisions of the Commonwealth Electoral Act (1918) (Cth). In Baldwin

v Everingham, Dowsett J, at page 20, concluded that it was the fact of

statutory recognition which was important, not the quasi-corporate status

conferred, and that statutory recognition of political parties was obviously

a matter of public policy designed to effectuate the conduct of federal

elections and that consequently disputes concerning the rules of political

parties registered under the Act were now justiciable. I am unable to see

any analogy between a voluntary organisation incorporated as a non -

trading association under part II of the Associations Incorporation Act

and the kind of organisation to which Baldwin v Everingham refers. In

other words, I do not consider that mere registration under the

Associations Incorporation Act of the Northern Territory has taken

CAALAS beyond the ambit of being a mere voluntary association.

Despite incorporation, CAALAS remains a voluntary association as being

a body of persons "who have combined to further some common end or

interest which is ... humanitarian in character ... [and] stands apart from

private gain and material advantage". (Cameron v Hogan, supra, at pages

370 � 371.) Not only is CAALAS an association with an amorphous

membership the character of which I have already described, and the

objects and purposes of which are of an eleemosynary nature, but under

the constitution and rules no member has or can have any interest in its

property even on a winding up. It was submitted by Ms Kelly that

Cameron v Hogan is generally distinguished and rarely applied in modern

times, and reference was made by way of example to McKinnon v Grogan

(1974) 1 NSWLR 295 where Wootten J said at page 297:

The decision in Cameron v Hogan, relating as it does to the

relationship of individuals to voluntary associations of which they

are members or they desire to be members, deals with an area of

human affairs which has changed and continues to change greatly

in social significance, and in which there has been a great deal of

judicial development of the law. On one aspect of such problems

Lord Denning MR in Nagal v Feilden [1966] 2 QB 633 at 647

recently discarded some earlier statements of his own in Russell v

Duke of Norfolk [1949] 1 ER 109, at 199 with the crushing

comment: "But that was seventeen years ago". Cameron v Hogan

was forty years ago, and I suspect that in that period it has been

more frequently distinguished or ignored than it has been applied,

simply because its application in full rigour has been increasingly

out of tune with the felt needs of the time. The High Court has not

had an occasion to reconsider it squarely, and I venture to suggest

that when such an occasion does arise there will be at least some

qualification of what was there said. With the greatest respect to

the imminent and forward-looking judges who gave the decision, it

is tended to justify judicial abdication from areas the orderly

regulation of which has become of ever-increasing importance.

The resultant categorisation of legal analysis of a great political

party, or the effective regulatory institution of a major sport in the

community, with a group of friends agreeing to meet for a game of

It seems to me that the real issue raised by Cameron v Hogan is

one of judicial policy � whether or not the courts are to accept or

reject responsibility for performing ordinary judicial functions in

relation to the important voluntary associations of a non-business

character that are so important today. I think this question should

be squarely faced, and not lost sight of in the adoption of a

conceptual approach which gives the misleading impression of a

result inevitable in legal principle. The difficulties raised in

Cameron v Hogan as explaining the policy of judicial non-

intervention are capable of solution if a policy of intervention is

Despite Cameron v Hogan the courts frequently deal with disputes

between individual members and social clubs, such as RSL clubs.

This seems to be both proper and desirable, and the courts should

be willing to assist in resolving disputes in organisations,

whatever their size, in which parties have deliberately adopted

In my opinion, people who join the league and subscribe to its

constitution and by-laws should be taken to intend to be bound by

them and should be entitled to invoke the courts in appropriat e

circumstances to have their disputes settled. What limitations, if

any, shall be placed on this right is, no doubt, something to be

worked out case by case. Suffice it to say that I can see no reason

why the parties should not be able to seek the decla rations they

claim in this case. There are no procedural difficulties. The

issues are of major importance, as they deal with the election of a

general committee of a club, including delegates to the general

committee of the league. They thus go to the h eart of the control

of the affairs of this important institution, and in terms of public

importance, as well as of concern to the individuals, are far more

worthy of judicial time than many issues about "civil rights of a

[21] In Scandrett v Dowling (1992) 27 NSWLR 483 Mahoney JA said, at pages

In considering whether such a breach should be restrained by

injunction or the subject of a declaration, it will ordinarily be of

assistance to consider three matters: whether the rules of the

voluntary association were intended to create legally binding

rights and obligations between the members; (if they were)

whether there has been a breach of rules creating such rights and

obligations; and (if there has) whether the rules or the breach are

such that it was intended that legal consequences should flow from

the breach and (if it was) whether those consequences warrant

Whether, considered as a whole, the rules of a particular voluntary

association were intended to create such rights and obligations

must be determined according to the nature of the association, the

terms of the rules, and the general context. In earlier times, there

was seen by some to be a tendency to infer that in the case of

voluntary associations formed for non-profit purposes, it was not

intended that the rules create such rights and obligations: at least,

this was so where property and similar rights where not involved

or except in so far as they were involved. This tendency was seen

in the judgement of the majority of the High Court (Rich, Dixon,

In more recent times the courts have, I think, tended more often to

see the consensual: Cameron v Hogan (at 371); or the contractual:

John v Reece (1970) Ch 345; in Re Recher's Will Trusts [1972] Ch

526; in Re Grants Will Trusts [1980] 1WLR 360; [1979] 3 All ER

359; nature of such rules as binding the members contractually or

otherwise by legally binding obligations; see, for example,

Buckley v Tutty [1971] HCA 71; (1971) 125 CLR 353; Nagle v Feilden [1966] 2 QB

633 ....In one case in N.S.W., a trial judge saw justification in the

modern changes in society to refuse to follow the decision or at

least the approach adopted by the High Court in Cameron v

Hogan; see McKinnon v Grogan [1974] 1 NSWLR 295.

There are in my opinion, substantial reasons why the Court should

conclude that, in general, legally binding rights and obligations

can arise from the rules of the Anglican Church. The rules of the

Church are concerned with matters of importance to its members.

They are not concerned merely with a ,,common end or a

,,common interest. The doctrines, rituals and practices are matters

by which its members order their lives and to which they, as

required, may dedicate themselves and their property. They are

not the result merely of the members of the church having decided

to combine for the effecting and the observance of them; they

derive from centuries old organisations to which the members have

come by adherence. These are matters which, I think, the

members would see as capable of and, indeed, as warranting

enforcement in formal court procedures in appropriate respects and

[22] It may be said on the one hand that, given that the rules of CAA LAS do

not appear to require any positive step for Aboriginal persons to become

members it is difficult to see how it could be inferred that each of the

members have joined CAALAS with the intention to be bound by its

rules. I think, however, that on the true construction of the rules, a

person is not a member, nor does a community become a member, unless

they apply to become members: see clause 6(c)(ii) and (iii). If this is so,

[23] Further, when one examines the general context, it is not difficult to see

why it was that the drafters of the constitution of CAALAS sought such a

wide and all encompassing form of membership. This is after all an

Aboriginal organisation, and it would seem that the constitution and the

rules of CAALAS were drafted so as to reflect at least in part notions of

consensus decision making, commonality of property and community

membership which are common features of Aboriginal tradition and

culture. Other features of the constitution reflect the importance of the

role which CAALAS has to play as an institution. The positions of

Director and Principal Legal Officer in particular indicate that the day-to-

day management of CAALASs activities is to be their sole province and

that the Principal Legal Officer is to be responsible to the Director for the

administration of the legal staff and the provision of legal services; see

clauses 18(i), 19 and 21. Other provisions of the constitution suggest that

it was the intention of the drafters of the constitution that the rules were

to be legally binding upon the members: see clauses 8(b) and 9 of the

constitution dealing with expulsion and discipline of members; clause 22

relating to the appointment of a returning officer to supervise the

elections at the annual general meeting; and clause 36 which deals with

the disclosure of interests and forbids Officers or members of the Council

to vote in respect in any contract or arrangement in which he or she is

interested. The nature of the undertaking itself is a matter of some

general significance and importance in that it provides a free legal service

to a large number of Aboriginal people in the Centralian district. Further,

there are provisions in the constitution relating to the keeping of bank

accounts and the maintaining of a trust account which shall be kept in

accordance with the provisions of the Legal Practitioners Act: see clause

31. Although not determinative, the fact is that CAALAS is incorporated

under the Associations Incorporation Act pursuant to which it is required

to file a copy of its rules with the registrar as defined under that Act (s15)

and is not permitted to alter its rules unless it complies with the

provisions of s16 of the Act. These considerations all point to the

conclusion that the rules of CAALAS were intended to create legally

binding rights and obligations between the members.

[24] There are further reasons in my opinion as to why Cameron v Hogan

should not apply so as to preclude this Court from intervening in the

internal affairs of CAALAS. First it is to be noted that CAALAS is an

organisation whose main purpose is to provide "legal aid services" as

defined by s6 of the Legal Practioners Act and as such it is entitled

pursuant to s22(5) to recover costs and disbursements in respect of work

of a professional nature done by a legal practitioner who is the holder of a

current unrestricted practicing certificate or a restricted practicing

certificate class one employed by that organisation. Furthermore it may

recover costs not only against a client of the organisation pursuant to Part

X of the Legal Practitioners Act, but also against another party to

litigation: see s22 sub-sections 5 and 6 and s118A of the Legal

Practitioners Act through the medium of the Principal Legal Officer w ho

under the constitution is required to hold an unrestricted practicing

certificate. CAALAS therefore holds a special position with this Court.

If the rules of the constitution of CAALAS, particularly those rules

relating to the employment of the Principal Legal Officer where non-

justiciable, this would threaten that special relationship. In a practical

sense, this Court relies very substantially upon CAALAS for the

provision of legal aid to most of the defendants who appear in this

Courts criminal jurisdiction when the Court is on circuit in Alice

Springs. That is a factor which tends to support the proposition that the

members of CAALAS would expect the rules to be legally binding. The

fact that CAALAS is almost entirely publicly funded through ATSI C adds

further support to that consideration. The importance of legal aid in the

criminal justice system has recently been emphasised by the High Court

in Dietrich v Queen [1992] HCA 57; (1992) 177 CLR 292. In a practical sense, a legal aid

agency such as CAALAS performs functions which are akin to public

functions of great importance without which the work of the judiciary, the

third arm of government, would be severely hampered. Furthermore the

plaintiff Lorraine Liddle claims to be in contractual relations with

CAALAS, albeit in the form of a contract of employment, and further

claims that the procedures in order to remove her validly under the

constitution have not been adopted. The importance of the position of

Principal Legal Officer under the constitution of CAA LAS in relation to

the public functions of CAALAS to which I have referred is a further

reason for thinking that these matters are justiciable.

[25] Finally reference should be made to the procedural difficulties which

faced the plaintiff in Cameron v Hogan and to which the High Court

referred at pages 371 and following. Those difficulties simply do not

apply in this case. The fact that the defendant is incorporated disposes of

one of the objections referred to therein. The fact that this court may

make binding declarations of right whether or not any consequential relief

could be claimed and that these proceedings are not open to objection on

the ground that a declaratory order only is sought (s18 of the Supreme

Court Act) it is yet another ground of distinction. So far as the latter is

concerned, in Plenty v The Seventh Day Adventist Church of Port Pirie

(1986) 43 SASR 121, Olsson J thought that the equivalent provision in

South Australia (s31 of the Supreme Court Act (SA)) was of some

significance: see especially at pages 142 � 143. Finally, I refer to clauses

11(h) and 18(t) of the constitution which provides that in cases of

dismissal or suspension of staff the Executive Committee will operate

within the principles and procedures prescribed in the Northern Territory

Aboriginal Legal Aid Award (1990) clause 28. These provisions also, it

seems to me, lend added support for the conclusion that it was intended

that the rules should confer legally binding rights and obligations upon

the members. Accordingly I reject Mr McDonald QCs argument that the

Should relief be refused for discretionary reasons?

[26] On the assumption that the plaintiffs argument that Lorraine Liddles

employment was not validly terminated by C AALAS is correct, Mr

McDonald QC submitted that relief should nevertheless be refused in the

exercise of the Courts discretion. There is no doubt that the remedy of a

declaration is discretionary. Mr McDonald QC submitted that this

discretion should be exercised against the plaintiffs for a number of

[27] The first of these reasons is what I have described as the Howes v Gosford

Shire Council point. In that case, (reported at (1961) 78 WN (NSW) 981;

(1962) NSWLR 58), the plaintiff, who was the Shire Clerk of the Council,

brought action against the Council claiming a declaration that a resolution

of the Council pursuant to which he was dismissed, was void, on the

ground that there was not a quorum present at the meeting at which the

resolution was passed. At pps 985 � 984, in a passage heavily relied upon

It is also argued that the rights of the plaintiff lie at law by way of

either action for wrongful dismissal or an action at any rate to

recover his salary during the period of suspension, assuming the

suspension to be unlawful. It seems to me that this raises the

question which is really the pivot of the argument whether the suit

is maintainable. If this is a suit arising out of a mere relationship

of master and servant, then this court has no jurisdiction to

interfere. The remedy of the plaintiff, if he has a remedy, lies at

law. It is a question how one characterizes the suit. If it is a suit

between master and servant in which the servant seeks to prevent

the master suspending or dismissing him and goes no further, then

this court will not interfere. If it is a suit for a declaration that the

service continues, again in the case of an ordinary relationship of

master and servant, this court will not interfere. It is hardly

necessary to refer to authority for that proposition. The reason for

the existence of that rule has been variously stated. It has been

placed upon the ground that the Equity Court will not compel

either master or servant to continue a personal relationship which

has become noxious to either one of them. It has also been placed

upon the ground that the Equity Court will not enforce a contract

which requires the constant supervision of the court.

There is of course a third ground for the rule, namely, that in the

ordinary case of master and servant the dismissal of the servant by

the master is never a nullity. The servant cannot refuse to accept

his dismissal and continue to hold himself out as ready and willing

to serve and thereafter claim for his wages during that period. The

reasons for this are explained by Dixon J., as he then was, in

Automatic Fire Sprinklers Pty. Ltd. v Watson: "A contract for the

establishment of the relation of master and servant falls into the

same general category of agreements to pay in respect of the

consideration when and so often as it is executed, and is,

therefore, commonly understood as involving no liability for

wages or salary unless earned by service, even though the failure

to serve is a consequence of the masters wrongful act." ((1946) 72

[28] However, as Jacobs J said, it is a question of how one characterizes the

suit. In fact Jacobs J characterised the suit in that case not as one of

master and servant, but as one of a person having a sufficient interest in

the subject matter for a declaration as to the invalidity of the defendant

corporations acts. His Honour considered a line of English cases

considered by the High Court in McVicar v Commissioner of Railways

(NSW) [1951] HCA 50; (1951) 83 CLR 521 and said, at p 986:

It seems to me the High Court in that case questioned whether the

act of a corporation in dismissing a servant was ever void because

matters were taken into account by the directors which ought not

to have been taken into account. However, as I read the decision

of four of the judges of the court, the English cases are accepted as

establishing that an injunction will lie where the validity of the

course proposed as being within the powers of the corporation and

therefore as its act, is the question under consideration. It was

said in relation to the English authorities: "The validity of the

course proposed as within the powers of the corporation, and

therefore as its act, was the question under consid eration, not the

question whether a de facto dismissal of the plaintiff would be

actionable, although the plaintiff held only at pleasure." (11)

I therefore do not find anything in the discussion of these English

authorities in the High Court which throws any doubt upon the

correctness of the approach adopted in them when the challenge is

to the valid existence of the act upon which the corporation is

purporting to rely. When the principal is applied to the facts of

this case, therefore, if there was no quorum and thereby no

resolution of the council, there is nothing to prevent a proper party

from seeking relief in this court by way of declaration to that

effect and by way of injunction against those who seek to put the

[29] This is precisely the point made by Ms Kelly, counsel for the plaintiffs,

i.e., that the acts of the individual defendants in purporting to dismiss Ms

Liddle were not the acts of CAALAS. Jacobs J went on to hold that the

plaintiff had a special interest because he was the servant of a statutory

corporation whose service was governed by statute, and that he could

therefore sue in his own name. Although Ms Liddles service is not

governed by statute, it is difficult to see on what basis it could be asserted

that she does not have a sufficient interest in bringing this suit given the

importance and special position under the constitution of Principal Legal

Officer and given that she is a member of the Corporation. Mr McDonald

QC did not suggest otherwise. I therefore reject Mr McDonalds

argument based upon the premise that the action is merely one to enforce

[30] In McVicar v Commissioner for Railways (NSW) supra, at 531, Dixon

Now it may at once be said with reference to this passage that it is

of course undeniable that if the act purporting to dismiss the

employee is ultra vires of the corporation, then it is not the act of

the corporation and must be inoperative. Ex hypothesi it could not

in itself be a dismissal, wrongful or otherwise, because it is not the

act of the corporation; but it might be followed by a de facto

exclusion from the duties and emoluments of the office, which

[31] Mr McDonald QC submitted that, on the facts of this case, the

relationship of master and servant had come to an end. The facts, which

are not in dispute, are that on 7 October 1998, Mr Taylor, the President of

CAALAS wrote to Ms Liddle advising her that her employment had been

terminated, and that an amount of $25,897 would be paid into her bank

account for wages, payment in lieu of notice, accrued annual leave and

long-service leave entitlements (see Ext ET30 to the affidavit of Mr

Taylor). The money was paid into Ms Liddles account subsequent ly that

day and has not been returned. Ms Liddles position has not been filled

since then, and Mr David Bamber has been appointed Acting Principal

Legal Officer. Miss Liddle has not returned to her place of employment.

She has lodged an appeal to a grievance committee pursuant to clause 28

of the Northern Territory Aboriginal Legal Aid Salaries Award 1990 (see

Ext ET33 to the affidavit of Mr Taylor) and she has instituted proceedings

in the Australian Industrial Relations Commission pursuant to the

provisions of the Workplace Relations Act 1996 (Cth) seeking, inter alia

reinstatement. In those circumstance, I have no doubt that the

employment relationship has come to an end (see also Byrne v Australian

Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 426 � 429 per Brennan CJ and

Dawson and Toohey JJ) even if the contract of employment is still on foot

until such time as Ms Liddle accepts the repudiation of her contract.

There is no evidence that this is so; but, as was pointed out by their

Honours in Byrne v Austrlian Airlines Ltd, supra, at 428, the possible

continuation of a contract of employment after a wrongful dismissal will

ordinarily be of no real significance, as the contract for all practical

purposes will also be at an end. I consider that these conclusions are of

significance in the exercise of my discretion as to whether or not, on the

assumptions previously identified, the relief sought ought to be given. If

I were to grant the declarations sought, that would not restore Ms Liddle

to her position; and this Court will not order specific performance of a

contract of employment. To what end will the declarations sought be of

use? Ms Kelly suggested that, if the declarations sought were made, they

would assist CAALAS, or its members or Council, to resolve the issue of

Ms Liddles employment. I do not see how they can, as the relationship

[32] A further point relied upon by Mr McDonald QC is what I have described

as the "Slattery and Others v Public Service Board" point. Ms Liddle has

commenced proceedings in the Australian Industrial Relations

Commission, which can order reinstatement, with or without back pay, or

order compensation: see s170 CH Workplace Relations Act (Cth). In

Slattery and Others v Public Service Board (1983) 3 NSWLR 41, Lee J

... the former Industrial Commission should deal with industrial

matters, and that the Supreme Court should refrain from dealing

Similar views have been expressed by other Judges. In Blank v Beroya

Pty. Ltd. (1967) 92 WN (NSW) 24 for example, Street J, as he then was

As a general proposition the jurisdiction of this Court to grant

declaratory relief will not be exercised when another tribunal has

full jurisdiction to investigate and det ermine the matters raised

and where that other tribunal can be seen to be the tribunal either

expressly indicated by Parliament or indicated by considerations

of convenience to be the preferable tribunal to entertain the

[33] The fact that this Court cannot finally resolve all matters in controversy

between the parties, whereas the Commission has the power, if it

determines that the termination was ,,harsh, unjust or unreasonable (see

s170CG and s170CH), to inter alia, order reinstatement is, I conside r a

[34] As to the plaintiffs brother, his interest in obtaining the declarations is

based upon his membership both of CAALAS and as an elected member

of the Council of CAALAS. He is, as I have said, the brother of Ms

Liddle, and as such, interested in Ms Liddles appointment, in the sense

of being partial to her out of presumed brotherly loyalty. Whether that

would preclude him from voting on her appointment or dismissal under

clause 36 (c) of the constitution, I do not find it necessary to decide, but I

do not consider that his presence as a co-plaintiff alters the position.

[35] For the reasons given, I decline to exercise my discretion to grant any of

[36] As to the mandatory injunction sought for the calling of an Annual

General Meeting, I find it difficult to understand why this was not

attended to at the proper times in 1997 and 1998. Clearly the Annual

General Meeting is well overdue, and there is in my opinion, no excuse

for failing to hold one. However, the evide nce before me suggests that

some steps have been put in train recently to call such a meeting; see Ext

D18. An attempt to supplement that information by Mr McDonald QC at

the resumption of the hearing in Darwin was objected to by Ms Kelly. As

a result, no further information was received, and I gathered from Ms

Kelly that the plaintiffs do not trust those responsible to properly and

genuinely attend to this. No under-takings to the Court have been offered

[37] The responsibility for calling the Annual General Meeting appears to rest

with the Council (see clause 20(c)(i)), not all the members of which have

been joined as a party to these proceedings. There are difficulties, it

seems to me, in the granting the relief sought. A mandato ry injunction, if

it is to be granted, must tell the defendants exactly what they must do: see

Redland Bricks, Ltd v Morris (1969) 2 All ER 576 at 580. The form of

order sought is "to convene an Annual General Meeting ... in accordance

with the Constitution ..." The provisions of the constitution do not make

it clear, as a matter of fact, exactly how the defendants (as opposed to the

Council) are to act. This is an organisation which has had a history,

according to the evidence, of failing to obtain quorums at Council

meetings. There may be difficulties in arriving at a conclusion as to

whether the defendants, or some of them, have disobeyed any order made

if the meeting fails to occur because of an inability to form a quorum.

[38] There is also the possibility of another remedy, which may be more

appropriate if CAALAS is unable to function because of its quorum

provisions, viz., an investigation of the association under Part IIIA of the

Act, leading, perhaps, to the appointment of a judicial manager.

[39] In all the circumstances I decline to grant a mandatory injunction at this

time, and I adjourn the further consideration of this issue to a date to be

fixed when I will hear, if necessary, any further evidence and submissions

which the parties wish to put before me on this issue. If an Annual

General Meeting in fact occurs within the next few weeks, no further

relief will be necessary and the declaration sought relating to the validity

of the appointment of Sharon Hayes as Secretary will become otiose in

[40] The question of costs is reserved for further consideration at a date to be