It was on 27 March 1995 that Mr Vaughan asked Mr McClelland to put a cheque in.
10 There had been some disputes, the details of which were not explored in evidence, between Mr McClelland and the Club prior to this time. One of those disputes had resulted in the Club passing a resolution, on 18 January 1994, where it was resolved that Mr McClelland's membership be suspended from the date of the meeting until 30 November 1995. Mr McClelland instituted an appeal against that resolution, and the appeal process had not run its course by April 1995.
11 As well, an article had appeared in the Leader newspaper which concerned, in some way, Mr McClelland and the Club. The Club had written a letter, on 27 March 1995 (it is not clear to whom) concerning that article. Both Mr Vaughan, and Mr McClelland, knew about that letter written by the Club. Mr McClelland showed Mr Vaughan a draft of a reply which Mr McClelland proposed to send, concerning the article. Mr Vaughan asked that Mr McClelland do nothing, including sending his reply, until he returned from the Australian Championships in Queensland, around 9 or 10 April 1995.
12 On Monday 3 April Mr McClelland gave to Mr Vaughan copies of some letters which Mr McClelland had written, notwithstanding Mr Vaughan's request to do nothing, concerning the Leader article. Mr Vaughan did not read those letters at the time, but read them when he got home that evening. Mr Vaughan said, in a statutory declaration which he made in May 1995:
"I considered that his actions in not giving me, or anybody else, a chance to put things right concerning the Club's letter negated any agreement we had and I saw no reason for giving him time to make things right with the "Mug" money. I told him on the phone I considered the money due now."
13 The next morning, 4 April 1995, Mr McClelland phoned Mr Jacobs, who was then the Honorary Secretary of the Club. He told Mr Jacobs that he owed the "Mug of the Week" $170, and that Mr Vaughan had demanded that he pay it back before he went to Queensland. Mr McClelland told Mr Jacobs in any event the Club owed him money, for half the value of a surfboat trailer, a gas bottle, and a fire extinguisher. Mr McClelland told Mr Jacobs that he had to go to Queensland, and he needed what money he had for that. He explained that he was able to travel with a friend to get to Queensland, would stay at the Surf Club, but still needed money to be able to eat and drink. He said that the Club could wait until he got back.
14 Mr Jacobs says that he said to Mr McClelland, "Bob you cannot take the raffle money. It's not right. And you know that the Club disputes your position on the other matters." Mr McClelland says he cannot recollect Mr Jacobs saying, "You cannot take the money. It's not right". It seems to me more likely than not that Mr Jacobs did make such a statement. It was Mr Ryan and Mr Vaughan, not Mr Jacobs, who knew about Mr McClelland's previous borrowings from the "Mug of the Week" money. The response which Mr Jacobs attributes to himself in evidence, is just the sort of response one would expect someone, told the story for the first time, to give. Mr Jacobs struck me in the witness box as being a cautious man, and the response he attributes to himself is consistent with that. Further, Mr McClelland does not actually deny that Mr Jacobs said those words.
15 On 11 April 1995, Mr McClelland gave the drink coaster, containing his record of borrowings, to Steve Singleton, the Assistant Treasurer of the Club.
16 On 14 April, Mr Vaughan wrote to the Committee of the Club, setting out his account of the circumstances concerning Mr McClelland's borrowing. That letter raised some concerns besides the borrowing of $170. First, Mr Ryan recollected that he had had a conversation with Mr McClelland, about 10 days before, when Mr McClelland had said something about $200, and Queensland. Mr Vaughan's letter continued:
"… I told him that I could not authorise or condone his use of Club money and that he should talk to Jack Ryan. I did not think about it any more until the matter of the $170 was raised.
The two amounts did not make sense as the second sum was smaller than the first and it seems unlikely that he would need less than he did 10 days before."
17 Second, Mr Vaughan said that he had checked the bankings he had made, and found that up to March 2, the deposits appeared normal, but that the deposits for weeks commencing March 9 to 30 were below the average. Mr Vaughan reported that on 4 April, Steve Singleton,
"did a quick reconciliation and was of the opinion, since mid January, the banking could be in the vicinity of $700-plus short.
He has since done a detailed study and has confirmed that there is a substantial shortfall."
18 Mr Vaughan also said, in this letter:
"I have since recalled two other incidents that Bob mentioned but I have no knowledge of whether these matters were resolved.
· Bob made a loan to a friend who was "a bit short" of $20. He said that he did not have spare cash himself at the time.
· He told me that he had collected $50 one Friday night and had mislaid it over the weekend."
19 Mr Vaughan also said:
"At no time have I given permission for Bob McClelland to use "Mug" money for any purpose."
20 On 18 April there was a committee meeting of the Club. Standing Orders were suspended to discuss the situation concerning the "Mug" money. A motion was passed.
"a.1) That letter be sent to R F McClelland requesting he attend a meeting of the Committee in accordance with Rules No's. 15.1 & 15.3
a.2) That the letter be prepared by the honorary solicitor for the hearing."
21 On 20 April Mr McClelland went to the Mortdale Hotel, and was told by Mr Ryan that he had been relieved of raffle duties. Mr Ryan mentioned something about improper use of Club funds. Mr McClelland said something like, "It's going to look rather funny to the boys if I walk away right now." Mr Ryan agreed, and they ran the raffles as usual.
22 On 29 April 1995 Mr McClelland wrote to Mr Jacobs. His letter contained a little over six pages of typed, single space text. He gave details of what he said were irregularities committed by other people in the Club concerning the handling of money. He referred to what he said were other errors, of Club officials, which had resulted in the Club paying too much for a surfboat, and losing a federal government grant to purchase premises. Concerning the borrowing of Mug money, he made the statement I have set out at paragraph 5 above. He continued:
"Under these circumstances I do not believe any court would find anything wrong with my actions and I challenge anyone who thinks otherwise to do something about it.
More recently, my position has worsened and I have advised those concerned that I would not be able to continue but that I would hold the fort until the Australian Championships after which others would have to take over.
It is a Pyrrhic victory for the committee to relieve me of these duties when I have already quit, and when you will be hard put to find a replacement who will give the service I have given. Nonetheless, I consider this action to be a gross and unwarranted insult and I demand and expect an immediate retraction and apology. It is poor thanks for 35 years and tens of thousands of dollars raised over those years."
23 He went on to threaten defamation actions, accuse the committee of having a "hidden agenda" and give details of the claim which he said he had against the Club, for an amount $849.40, relating to the boat trailer, gas cylinder and fire extinguisher. He also mentioned some other matters of dispute which he had with the Club.
24 On 30 April, Mr McClelland wrote to the Department of Gaming and Racing. That Department administers the Charitable Fundraising Act 1991. The letter was not in evidence, but from the reply I infer that he informed the Department about his suspension from the Club, his borrowings from the raffle monies, and raised questions about the validity of the Rules of the Club.
25 On 1 May 1995, there was a further committee meeting of the Club. The minutes record the following:
"3.6 Assistant Treasurer advised an analysis of the "Tick Sheets" that record patrons payments for the "Mug of The Week" raffle. The shortfall in raffle money that amounted to $170 occurred in the period 24/1/95 to 11/4/95.
3.7 Further discussion was held on the action that may be undertaken and the timing to undertake this action. Secretary pointed out any action should be strictly in accordance with the rules. It is not in the clubs interest to undertake any action on this matter that is not entirely within our rules. The Rules 15 & 16 provide for the dealing with the discipline and for members to appeal, it is important that the timing as required by the rules is followed.
Moved J Vaughan/D McAlpine that any letters or resolution on this matter should be forwarded to Burning Palms legal adviser to ensure action is correct and strictly in accordance with Burning Palms rules ………..carried.
Moved J Vaughan/J Culbert that club members J Vaughan, S Singleton, D Jacobs, J Ryan and B Traynor submit to the club Statutory Declarations before any letters are sent to R F McClelland …………carried.
3.8 It was agreed by all present that this matter should be referred to the clubs honorary solicitor P Terrett and any subsequent correspondence. This will ensure that all correct procedures are strictly adhered to."
26 On 3 May, the Department of Gaming and Racing wrote to Mr McClelland. The thrust of the letter was that the Department could not help him with most of the matters about which he had written on 30 April 1995. The Department did say, however:
"Nevertheless, your 'borrowings' from the raffle 'kitty' may contravene section 20(6) of the Charitable Fundraising Act which states in part that 'any money received in the course of a fundraising appeal, before the deduction of any expenses, is to be paid immediately into an account at a bank or building society …"
27 Also on 3 May 1995, the Department wrote to the Club, enclosing a copy of the letter it had written to Mr McClelland. The covering letter to the Club said:
"I would draw your attention to references to the current reporting requirements on changes to your Club's constitution, and also the need to bank the gross proceeds from a fundraising appeal without deduction into a bank or building society account.
Under the circumstances I would be grateful if you would advise the Department of the circumstances surrounding Mr McClelland's 'borrowings' from the proceeds of fundraising raffles, and the controls and procedures applying to the conduct of such raffles."
28 On 16 May 1995 there was a further committee meeting of the Club. Mr McClelland was given no notification that this meeting would be held, and did not attend it. At that meeting, Mr Jacobs tabled a Supplementary Agenda, and four statutory declarations. The Supplementary Agenda contained the following items:
"1. Consideration of the factual matters set out in the Statutory Declarations referred to in the Schedule to this Agenda, copies of which Statutory Declarations have been circulated with this Agenda, in relation to the involvement of R F McClelland in the "Mug of The Week" fundraising raffle at Mortdale Hotel.
2. Consideration of, and if thought fit, passing as Resolutions, Motions as follows:-
' That the actions of R F McClelland in having:-
(a) collected monies from patrons of Mortdale Hotel ("Raffle Monies") in relation to the "Mug of the Week" fundraising raffle of Mortdale Hotel ("Raffle") on behalf of Burning Palms Surf Life Saving Club; and
(b) failed, without proper reason, to account to the Club for Raffle Monies totalling approximately $170.00 collected by him on or between the following dates:
24 January 1995, 31 January 1995, 7 February 1995, 14 February 1995, 21 February 1995, 28 February 1995, 7 March 1995, 14 March 1995, 21 March 1995, 28 March 1995 and 4 April 1995.
be considered to be persistent and wilful actions prejudicial to the interest of the Club.
2. That R F McClelland be expelled from membership of the Club pursuant to rule 15.1 for having acted persistently and wilfully in a manner prejudicial to the interests of the Club.
3. That R F McClelland be advised of his expulsion of the Club pursuant to rule 15.1 and that he be advised of his right of appeal against the expulsion decision pursuant to rule 16.'
Schedule
Name of Declarant
John Kendall Vaughan
John George Ryan
Donald Charles Jacobs
Stephen David Singleton"
29 The four statutory declarations were from the four people named in the schedule to the agenda. Mr Vaughan's statutory declaration was identical in text (apart from the formal parts appropriate to a statutory declaration) to his letter of 14 April 1995.
30 The statutory declaration of Mr Steve Singleton was in the following form:
"On Monday evening 3 April 1995, Robert McClelland told me something. He had just returned from a telephone conversation with John Vaughan when he stated:
"Rooster has just told me to pay back the money I borrowed from the Mug of the Week before I go to Queensland, …"
Robert also said something like I can't do that now.
This was the first time that I was aware that Robert had "borrowed" money from the Surf Club takings on this occasion.
Robert had previously borrowed up to $50.00 to "see him through a couple of days" until he was paid. Although not strictly correct procedure and never authorised, this has been condoned.
On Tuesday morning 4 April 1995 I received a phone call from John Vaughan, where he told me something.
John said he was concerned about the money collected for the Mug of the Week. John indicated he believed that two amounts had not been offered for banking by Robert McClelland. The first amount of $200.00 which was due for banking about 23 March 1995 and the second amount was $170.00 which was due for banking 30 March 1995 and on 4 April 1995.
On the evening of 4 April 1995, I attended the Mortdale Hotel where I took possession of the records for the Mug of the Week and was given a list of amounts banked from January to April 1995 by John Vaughan.
In the presence of John Vaughan, I performed a preliminary reconciliation of the records to the banking. At this time I informed John that an amount exceeding $400.00 appeared to be unaccounted.
Later that evening I performed a detailed reconciliation and am satisfied that an amount of $739.00 has not been accounted for.
The reconciliation was performed using the following given data.
The records for the mug established a status as at 24 January 1995. From the same sheet it was possible to establish a status as at 4 April 1995, a list of amounts banked was extracted from the bank deposit slips. (see attached)
Given that John Vaughan can account for $370.00 as amounts mentioned by Robert McClelland, there is an unaccounted shortfall of $369.00
In a phone conversation with Donald Jacobs, on Wednesday 5 April 1995, Don indicated he had a conversation with Robert McClelland regarding the "loan of Mug Monies" on the previous day.
On Tuesday 11 April 1995 at approximately 6.00 PM at Mortdale Hotel, I spoke to Robert McClelland and advised him that I had performed a reconciliation of the Mug of the Week and the banking records of the club. I advised Robert McClelland that an amount of $739.00 could not be accounted for.
Robert McClelland admitted he had taken $170.00 over the period of the last several weeks, "to maintain my presence in the pub".
Robert offered that he knew of one instance where $50.00 had been lost by him during a collection week.
Robert handed over cash amounting to $46.00 relating to the week collection up to 4 April 1995.
Robert had no explanation of other monies missing from the Mug of the Week.
I spoke to Don Jacobs on 12 April 1995 where he indicated he did not give permission or approval in any form to Robert McClelland in relation to the $170 "borrowed".
On Thursday 13 April 1994 I spoke to Brad Traynor. He indicated that Mr McClelland had attempted to contact him on Tuesday 4 April 1995 without success. I advised Brad of the unaccounted funds from the Mug of the Week to an extent of approximately $730.
It is my opinion that Mr Robert McClelland did over a period of time take $170.00 without the authorisation of the Management Committee of the Burning Palms Surf Lifesaving Club.
I believe that the following scenarios could account for the remaining $434.00 which remains unaccounted:
1 Person or persons unknown have entered marks on the record without paying the appropriate fee on up to 185 occasions.
2 Monies collected were lost prior to being offered for banking.
3 Clerical Errors were made in recording payments on up to 185 occasions.
4 Monies were offered for banking but were not banked.
5 Monies collected by Robert McClelland are currently in his possession.
6 Monies collected by Robert McClelland were held by him for his use.
7 A combination of more than one of the above.
I brought the matter to the attention of the next available meeting of the Burning Palms Surf Lifesaving Club Management Committee on 18 April 1995."
31 Mr Ryan's statutory declaration said:
"… at no time did I, as Senior Vice President of Burning Palms Surf Life Saving Club and the Officer in charge of fundraising at the Mortdale Hotel give ROBERT McCLELLAND permission to use $170 or any other moneys of the Club's funds which he collected for the "Mug of the Week" for his own use.
On the odd occasion, he may have mentioned that he had borrowed a small sum from these moneys, but I cannot remember any specific details of these instances."
32 Mr Jacobs' statutory declaration stated the following:
"On Tuesday 4 April, 1995 prior to departure to the Australian Titles R F McClelland rang me to ask the telephone number of B Traynor. During the discussion when he also advised there would be further letters sent to Sydney Branch. In addition, advised that he had taken $170 from the raffle money required to help pay expenses to go to the Australian Titles.
Also stated that the Club owed him half the value of a boat trailer, one fire extinguisher and a 20 kg gas bottle."
33 The minutes of the committee meeting of 16 May 1995 record:
"The meeting discussed and considered the factual matters set out in the statutory declarations and the motions set out in the supplementary agenda. Following such consideration and discussions, motions were moved by J Ryan, seconded by D McAlpine and unanimously passed as resolutions by the meeting:
[there followed the text of the three motions contained in the Supplementary Agenda].
34 The minutes also noted, under the heading "General", correspondence received and sent:
"10.11 Letter Dept. of Gaming and Racing dated 3/5/95 requesting the club advise on the borrowing from "the proceeds of fundraising raffles" and our controls and procedures that are in place to monitor conduct of the raffles.
10.12 Copy of letter dated 3/5/95 sent to Mr R F McClelland in answer to a letter that I assume was Mr R F McClelland's letter of 29/4/95.
10.13 Letter dated 4/5/95 from J Vaughan setting out the history on the boat trailer that Mr R F McClelland claims the club owes an amount against.
10.16 Letter dated 19/4/95 J Vaughan's answer to letter received from Mr R F McClelland of the 12/4/95.
10.17 It is noted letters from Mr R F McClelland dated 7/2/95, 2/4/95 and 29/4/95 acknowledged."
35 Thus, Mr McClelland's letter of 29 April 1995 was before that meeting.
36 By a letter dated 25 May, which Mr Jacobs actually signed on 27 May, Mr McClelland was informed as follows:
"On 16 May 1995 the Committee of Burning Palm Surf Lifesaving Club Inc ("Club") passed certain resolutions concerning your membership of the Club.
The exact Resolutions passed by the Committee on that occasion concerning your membership are set out in the Schedule to this letter. In short, it was resolved that you be expelled from membership of the Club pursuant to Rule 15.1 of the Club's Rules for having acted persistently and wilfully in a manner prejudicial to the interest of the Club.
Pursuant to Rule 15.3 we now give you written notice of the Resolutions passed by the Committee and the grounds upon which they are based.
Pursuant to Rule 15.3(b) you are entitled to address the Committee at a meeting to be held not earlier than fourteen (14) days and not later than twenty eight (28) days after service of this letter on you.
Please be advised that the Committee has scheduled a meeting on the date and at the place and time set out below at which you may address the Committee regarding the Resolutions which have been passed:
Date: 13 June 1995
Place: Meeting Room, St George Masonic Club Limited, 86 Roberts Avenue, Mortdale
Time: 8.00pm
In relation to the meeting, particulars of which are set out above we draw your attention to the following matters:-
1. You are not entitled to legal representation at the meeting;
2. You may attend and speak at the meeting; and
3. you may submit to the Committee at or prior to the date of that meeting written representations relating to the Resolutions which have been made.
Your attention is drawn to the provisions of Rules 15 and 16, a copy of which is enclosed with this letter.
37 A schedule to the letter set out the text to the resolutions which had been passed. A copy of Rules 15 and 16 was enclosed.
38 On 26 May 1995 the Club wrote to the Department of Gaming and Racing, replying to the Department's letter of 3 May 1995. It stated the current procedures concerning the handling of money. Under the heading "McClelland 'borrowings'", the letter said:
"The so called "borrowings" by Mr McClelland were clearly unauthorised by the Club. They contravene the Club's money handling procedures and it is the Club's position that the "borrowings" amount to unlawful misappropriate of monies by Mr McClelland.
At a meeting of the Committee of the Club held on 16 May 1995 it was resolved that Mr McClelland be expelled from membership of the Club for having failed, without proper reason, to account to the Club for raffle monies apparently collected by him between 24 January 1995 and 4 April 1995. The Schedule to this letter sets out the Resolutions which were passed by the Committee on 16 May 1995 concerning Mr McClelland and his "borrowings". Please let us know should you require any further information.
We have requested Mr McClelland to forthwith account to the Club for the $170.00 which, we believe, he has collected from the patrons of Mortdale Hotel in relation to the Club's "Mug of the Week" fundraising raffle on behalf of the club but for which he has failed to account."
39 On 4 June 1995 Mr McClelland wrote to Mr Jacobs. The first point he made was that the resolutions of 16 May were invalid because certain provisions of the model rules, under the Associations Incorporation Act 1984, had not been complied with. He reminded Mr Jacobs that for officers or members of an incorporated association to contravene a provision of the Act or regulations was a criminal offence. His letter continued:
"… Notwithstanding the above, I shall address your resolutions:
1. (a) I have indeed collected monies from the Patrons of the Mortdale Hotel; and elsewhere over the years, on behalf of the Club. Many thousands of dollars in fact which is a damn sight more than most of the Committee have done.
(b) To say that I have "failed to account to the Club for Raffle Monies totalling approximately $170" is, quite simply, false. I draw your attention to the Macquarie Dictionary:
"account - A verbal or written recital of particular transactions and events"
It is precisely because I have accounted to the Club for Raffle Monies totalling exactly $170 that you are aware that I have borrowed that amount.
There is nothing underhand or dishonest in my actions and to imply that there is, as the Committee has done in its resolutions, is an act of pure and unmitigated bastardry!
I draw your attention to my letter of 29 April and in particular:
"It is no secret within the Club that my personal financial position has been difficult for some time. There have been a few times over the last couple of years when I did not have the ready cash to go to the Pub. When those occasions have coincided with my fundraising activities for the Club I have borrowed from the kitty.
This has been done with the knowledge and concurrence of the other members involved in these fundraising activities - Jack Ryan, Steve Singleton and, in particular, John Vaughan - monies so borrowed have been small, recorded and repaid, usually fairly promptly. Furthermore, these borrowings have been solely to maintain my presence and fundraising for the Club."
I do not accept that this action was, in any way, "prejudicial to the interests of the Club". In fact the reverse was the case. I have collected substantial sums for the Club, which I would not otherwise have collected. Previous such borrowings have been repaid, as this would have been by now were it not for your actions. Also if you take into consideration the Club's debt to me, the $170 was and is well and truly covered.
However, if you consider my action to be in some way improper, then what of Jack Ryan who is in charge of our activities at Mortdale Hotel and who was aware, although not in detail, of this practice; and what of John Vaughan who is responsible for taking and banking the monies collected and who was aware of both the practice and the details.
Surely, if I am guilty of any impropriety, then they with their greater responsibilities and authority are even more guilty. Is there any suggestion that they should be expelled? Of course not! And neither should there be, for them or me.
Again I refer you to my letter of 29 April:
"Your actions are petty, vindictive and grossly hypocritical . They are not about improper use of funds or a lousy $170. They are about punishing me for my letters of 2 April and yet some of your have the hide to accuse me of having a hidden agenda.
My agenda is not hidden; it is simply to clear my name, totally and absolutely, and you had better believe that it is going to happen, one way or another, preferably within Surf Life Saving but if not, then within the Courts."
Your hypocrisy is compounded by the fact that the Club's debt to me - spelt out in my letter of 29 April - is 5 times greater and substantially older than my debt to the Club.
The Committee should be ashamed and should apologise!"
40 On 7 June 1995, Santow J was the Equity Duty Judge. An Associate's Record of Proceedings, relating to proceedings "R F McClelland v Burning Palms S L S C, Sydney Branch Surf Life Saving" records that Mr McClelland appeared in person that day, and that someone called A David appeared for one or other (or perhaps both) of the intended defendants. The matter occupied his Honour for 15 minutes, and resulted in a direction "I stand the matter down so that it should come before me at 10.00am on 14 June 1995". It seems likely that his Honour was informed about the committee meeting being fixed for 13 June 1995, and took into account that whatever happened at that meeting might well affect what, if any, orders it might be appropriate to make. Mr McClelland says that Santow J directed him to "serve the documents in the meantime".
41 On 13 June 1995 there was a further committee meeting of the Club, which Mr McClelland attended. The Club's honorary solicitor, Mr Terrett, also attended. The minutes of that meeting record the following:
"R F McClelland-Expulsion Decision
The Chairman noted that R F McClelland been invited to attend the meeting in order to make oral representation concerning the decision made by the committee on the 16th May, 1995 that he be expelled from membership of the club. Mr R F McClelland arrived at 7:56pm and:-
a) made various statements concerning matters before Sydney Branch of SLSA; and
b) Read the contents of his letter to the Club dated 4 June, 1995.
The Chairman made a ruling that certain materials set out on pages 1, 2 & the first half of page 3 of R F McClelland's letter of 4th June, 1995 were not relevant to the Committee's present deliberations and would not be considered for the purpose. R F McClelland withdrew from the meeting at the Chairman's request at 8-05pm (for approximately 7 minutes) and also during the meetings recess between 8-20pm and 8-25pm. After advising the Chairman that he had nothing further to add to his submissions R F McClelland withdrew permanently from the meeting at 8-50pm.
The meeting subsequently discussed the matters which had been raised by R F McClelland. Following such discussion it was moved by J Vaughan, seconded by D Jacobs and unanimously carried as Resolutions.
a) "That the Committee hereby confirm its decision passed at the Committee Meeting of 16th May, 1995 that R F McClelland be expelled from membership of the Club pursuant to Rule 15.1 for having acted persistently and wilfully in a manner prejudicial to the interests of the Club"; and
b) "That the Club Secretary be requested and directed to send R F McClelland a letter pursuant to Rule 15.5 advising R F McClelland of the Committee's confirmation of the expulsion decision made on 16th May, 1995 and advising him of his rights of appeal to the members in general meeting pursuant to Rule 16.""
42 The portion of Mr McClelland's letter of 4 June 1995 which the Chairman ruled not relevant, was the portion where Mr McClelland made allegations about failure to comply with provisions of the model rules, and the Associations Incorporations Act.
43 Mr McClelland accepted the proposition, in cross-examination, that when he received the letter from the Department dated 3 May, "it is very difficult to see how your borrowing from the kitty would not be in contravention of the Act". As well, Mr McClelland had had a conversation with someone at the Department, before he received that letter, in which he was told that his borrowing was "maybe in contravention of the Act".
44 At the committee meeting on 13 June, Mr McClelland read to the committee the whole of the portion of his letter of 4 June which I have earlier quoted (see paragraph 39). At that meeting, Mr Phillips, the then President of the Club, asked him whether he was going to repay the $170. Mr McClelland made quite clear that he would not repay it.
45 In cross-examination, Mr McClelland accepted that at the committee meeting held on 13 June he was asked whether he had anything further to say, and said that he had nothing further to say.
46 On 14 June 1995, Mr McClelland appeared, ex parte, before Santow J. He filed that day, a document called a Statement of Claim, which was really more akin to a summons - it stated the orders he sought, without alleging the basis on which those orders were sought. The orders were:
"1 An order that the defendant be restrained from holding its annual general meeting until such time as all the matters disputed between the plaintiff and the defendant are properly resolved.
2 An order that the defendant supply to the plaintiff copies of all and any allegations written or supply me with particulars of allegations verbally made against him and copies of all and any resolutions passed by the defendant pertaining to the plaintiff.
3 Such other orders as the court deems fit."
47 His Honour made an order which, amongst other things, made clear that any appeal which Mr McClelland exercised should be dealt with in accordance with the requirements of natural justice.
48 On 19 June 1995, Mr Jacobs wrote to Mr McClelland, saying:
"This letter is to confirm that:-
1. On 16 May 1995 the Committee of Burning Palms Surf Lifesaving Club Inc (" Club " resolved that you be expelled from membership of the Club pursuant to Rule 15.1 of the Club's Rules.
2. On 13 June 1995 the Committee of the Club heard your oral submissions and considered your written submission concerning its decision made on 16 May 1995.
3. After careful consideration the Committee decided, pursuant to Rule 15.4, to confirm its decision made on 16 May 1995. As a consequence your expulsion from membership of the Club has been confirmed.
You have a right of appeal against the Committee's decision made on 16 May 1995 as confirmed on 13 June 1995. That appeal is to the members of the Club in general meeting and may be exercised pursuant to Rule 16.1.
A copy of Rule 16 of the Club's Rules is attached for your ease of reference."
49 On 25 June 1995, Mr McClelland wrote to Mr Jacobs saying: "I appeal against the committee's decision of 16 May 1995."
50 Mr Jacobs issued a notice calling a general meeting of the Club. The notice was in the following form:
"NOTICE OF GENERAL MEETING
Notice is hereby given of General Meeting of Burning Palms SLSC Inc to be held on Saturday 15 July, 1995 at 2pm at the St George Budapest Soccer Club, Regency Room 84 Victoria Ave, Mortdale.
BUSINESS
The meeting has been called pursuant to Rule 16 of the Club rules so that the members in General meeting can hear an appeal by Robert F McClelland against resolution of the Committee passed on 13 June, 1995 (pursuant to Rule 15.4) ("Expulsion Resolution") confirming an earlier resolution of the Committee passed on 16 May, 1995. Details of the relevant resolutions are set out below for the reference of members.
The members present at the meeting will be asked:-
(a) to vote whether the Expulsion Resolution should be confirmed or revoked; and
(b) to vote for or against a Special Resolution in favour of confirmation of the Expulsion Resolution.
RESOLUTIONS PASSED BY THE COMMITTEE ON 16 MAY 1995
1. That the actions of R F McClelland in having:-
1.a) collected monies from patrons of Mortdale Hotel (RAFFLE MONIES) in the "Mug of The Week" fundraising raffle of Mortdale Hotel (RAFFLE) on behalf of Burning Palms Surf Life Saving Club; and
1.b) failed, without proper reason, to account to the Club for Raffle Monies totalling approximately $170.00 collected by him on or between the following dates:
24 January 1995, 31 January 1995, 7 February 1995, 14 February 1995, 21 February 1995, 28 February 1995, 7 March 1995, 14 March 1995, 21 March 1995, 28 March 1995 and 4 April 1995
be considered to be persistent and wilful actions prejudicial to the interests of the Club.
2. That R F McClelland be expelled from membership of the Club pursuant to Rule 15.1 for having acted persistently and wilfully in a manner prejudicial to the interests of the Club.
3. That R F McClelland be advised of his expulsion from the Club pursuant to Rule 15.1 and that he be advised of his right of appeal against the expulsion decision pursuant to Rule 16.
RESOLUTIONS PASSED BY THE COMMITTEE ON 13 June 1995
4. "That the Committee hereby confirm its decision passed at the Committee Meeting of 16th May, 1995 that R F McClelland be expelled from membership of the Club pursuant to Rule 15.1 for having acted persistently and wilfully in a manner prejudicial to the interests of the Club"; and
5. "That the Club Secretary be requested and directed to send R F McClelland a letter pursuant to Rule 15.5 advising R F McClelland of the Committees confirmation of the expulsion decision made on 16th May, 1995 and advising him of his rights of appeal to the members in general meeting pursuant to Rule 16."
Notes :
1. Pursuant to Rule 16.2:
(a) this general meeting was required to be held within twenty-one (21) days after the Secretary received notice from R F McClelland against the Expulsion Decision. (Notice to this effect was received on 25 June, 1995); and
(b) all members were required to be given at least seven (7) days notice of the matter to be dealt with at the meeting.
2. For a resolution to be passed as a Special Resolution it is necessary, as a minimum, that it be proposed as a Special Resolution and that it be passed by a majority which comprises not less than three-quarters of the members who, being entitled to vote at the meeting, do actually vote at the meeting in favour of the Special Resolution.
3. Copies of Rules 15 and 16 are attached for your reference."
51 Though the notice is undated, I would infer that it was given promptly after Mr McClelland's letter dated 25 June 1995 exercising his right of appeal, was received.
52 On 14 July 1995, Mr McClelland appeared before Brownie J. Though a wider variety of claims were made, his Honour dealt only with those which needed to be resolved that day. These his Honour summarised as being a claim "to restrain the holding of the meeting tomorrow, or perhaps to restrain the passing of a resolution confirming the resolutions of the committee" and "the plaintiff's claim that he be given documents in connection with that meeting tomorrow". His Honour considered, and rejected, a submission that the rules of the Club were inconsistent with those required under the Associations Incorporation Act 1984. This was the only basis upon which the claim to restrain the holding of the meeting was made. His Honour then continued:
"Turning then to the question whether the plaintiff is entitled to be given any document in relation to tomorrow's meeting, the evidence establishes that on 25 May the Club secretary wrote to the plaintiff giving him notice of the meeting of the committee to be held on 13 June, informing him in a schedule to that letter of the precise allegations made against him and setting out a procedure to be followed. Those allegations contained a considerable amount of detail, and there has been no complaint about that detail. He has also been given a letter dated 19 June, advising him of the resolution of the committee of 13 June, advising him of his appeal rights and enclosing copies of the relevant club rules. Presumably in response to that the plaintiff wrote to the Secretary of the Club on 25 June, in effect giving notice of appeal. The notice of the meeting convened for tomorrow repeats the same particulars of the allegations made against the plaintiff.
There is no question but that the plaintiff is entitled to be told of the allegations made against him. As I see it at the moment, the notices and letters to which I have referred do just that. The existing injunction granted by Santow J seems to be sufficient to mean that if there is any deficiency in those particulars, then the defendant should cure that deficiency. I do not know however what the supposed deficiency is. As I understand him, the plaintiff does not know either, but suspects or fears that or wonders whether there might be something he has not seen. If I am asked to rule as to whether any particular document should be made available to the plaintiff before tomorrow's meeting I will deal with that application. For the moment, however, subject to that possibility, I decline to grant any interlocutory relief today.
I will adjourn the case to a date to be fixed.
(His Honour directed the plaintiff to advise the defendant of the precise document which the defendant had not produced yet and if there were any dispute, the matter to be mentioned at 2.30)"
53 At 12.45pm on 14 July Mr Jacobs gave Mr McClelland the Supplementary Agenda for the committee meeting of 16 May 1995. At about 7.30pm on 14 July, Mr Jacobs gave Mr McClelland copies of the four statutory declarations which were referred to in the Supplementary Agenda. Mr McClelland gave the following evidence:
"A. I received the statutory declarations in the pub the night before and I wasn't exactly sober. I did try and read them that night and hence a lot of handwritten comments on one of them that I should not have put there. So I went over them again the next morning and I attended the local police station to seek some advice that might be available to me on a Saturday morning."
54 The General Meeting took place on 15 July 1995. The minutes of the meeting are as follows:
"Minutes of The General Meeting held at St George Budapest Soccer Club, 84 Victoria Ave, Mortdale on Saturday 15 July 1995 at 2pm.
1 Attendance: As per the attendance sheet dated 15/7/95 (copy of which comprises Attachment No.1) with thirty four financial members in attendance.
2 Business of Meeting: As set out in the Notice of General Meeting referred to in Attachment No.2. No other business was discussed or presented to the meeting as required by the Rule 16.3 to hear the members appeal under discipline.
BUSINESS OF THE MEETING AS PER NOTICE
3.1 President opened the meeting and requested all members be seated and advised the nature of the meeting in referring to the Attachment No. 1. the Notice of General Meeting.
3.2 It was moved by G Phillips and seconded by R Daley that the resolutions as stated in the Notice of General Meeting for the 15 July 1995 be put to the meeting in accordance with Rule 16.
3.3 Scrutineers S Singleton and B Gray of Sydney Branch handed out ballot papers. The Chairman requested all financial members eligible to vote to mark papers in either yes or no box on the ballot paper, fold and pass to one of the scrutineers.
3.4 Votes result was: Resolution (a) was passed by the meeting in the affirmative.
Resolution (b) was passed in the affirmative as a Special Resolution by more than 75% of those present and voting.
3.23 J Ryan moved and was seconded by S Strange that a vote of thanks be recorded to the Secretary D Jacobs and our Legal adviser P Terrett …… carried by acclamation.
3.23 It was moved by G Phillips and seconded by C Fogwell that the meeting should now close at 16:18pm …… carried.
55 At the meeting on 15 July Mr McClelland read out portions which he chose from his letters of 29 April 1995 and 4 June 1995. He also read portions which he chose from the statutory declarations. The statutory declarations had not been made available to the members of the Club as a whole, though the committee members who were present on 16 May would, of course, have seen them. Mr McClelland accepts that he spoke for somewhere between 30 and 60 minutes at that meeting, "in bits and pieces".
56 There was a time, in the meeting, when a member, Mr Keith Ebdon, asked Mr McClelland a question concerning repayment of the money. There are differing accounts in the evidence about the precise question which was asked. In his affidavit, Mr McClelland said that the question concerned whether he had repaid the $170. Mr Jacobs' evidence is also that Mr Ebdon's question concerned whether Mr McClelland had repaid the $170. Mr Miller likewise recollects that Mr Ebdon's question was whether Mr McClelland had paid the money back. Mr Phillips' recollection is that Mr Ebdon's question was whether Mr McClelland would pay the money back. Having seen Mr Phillips cross-examined, I do not have a great deal of confidence in his recollection of details of that meeting. However, more importantly, in cross-examination Mr McClelland said that Mr Ebdon had asked "had I and was I going to repay".
57 There is a consensus amongst these witness (apart from Mr McClelland) that the answer which Mr McClelland gave to Mr Ebdon's question was "No". Mr McClelland says that he did not say "No" in response to that question, but in this respect I reject his evidence.
58 I am satisfied that at the meeting, Mr McClelland made the substance of his position concerning the $170 known, namely, that he had borrowed the money, had not repaid it, and was not going to repay it because he had a cross-claim against the Club for more than that amount. Mr Cane, a witness called by Mr McClelland, recollected Mr McClelland saying words to the effect of "No, I have a cross-claim against the Club". As well, that was Mr McClelland's actual position at the time, and there was no reason why he should not explain it to the meeting.
59 The meeting was one where there were some interjections and interruptions. Mr Jacobs described it as, "a lively and rather emotion-packed meeting". There was an occasion when Mr Phillips spoke over Mr McClelland. There were some other topics, besides the $170, which arose during the course of the meeting. At one time Mr Strange (a Club member with whom Mr McClelland had a dispute going back to 1988) complained about Mr McClelland not having apologised to him about those matters. There was an interjection from someone who wondered aloud what sort of an act it was for Mr McClelland to write to the Department asking them to investigate the Club. Mr Ryan at one stage interrupted Mr McClelland by saying, "We are not a bloody bank!" When Mr McClelland was commenting on Mr Vaughan's statutory declaration, Mr Vaughan interrupted asking, "Is Mr McClelland saying that I lied under oath." However, I am not satisfied that there was such disruption at the meeting as to prevent Mr McClelland from communicating effectively the substance of what he wanted to say. Mr Bill Singleton (who was, in mid 1995, the President of the Sydney Branch of the Surf Life Saving Association of Australia, and who was not a member of the Club) attended the meeting to assist with the count of votes. While his recollection of his detail of the meeting had faded in some respects, he gave evidence that, "… he got a very good hearing, I thought."
60 There was one Club member, Alan Nelson, who spoke at the meeting in support of Mr McClelland.
61 At the meeting, Mr McClelland referred to his recording the borrowings on the beer coaster, said that he had never made any secret of having taken the money, and that recording the borrowings on the beer coaster amounted to "accounting for" the money. Mr Terrett stated, while Mr McClelland was making his submission, that the coaster was not, legally, a proper account of the monies, and should not be considered by the members as Mr McClelland having accounted for the $170.
62 I have earlier mentioned that Mr Bill Singleton was present at the meeting, although not a member of the Club. He and Mr Bill Gray, the Deputy President of the Sydney Branch of the Surf Life Saving Association, had been asked to attend the meeting to supervise the conduct of the ballot. They followed a procedure where they distributed a piece of paper to each member present. Members were asked to mark on that ballot a "Yes" or a "No" to indicate how they voted. When the members had finished writing, Mr Singleton and Mr Gray collected the ballot papers, making sure that they received back the same number of pieces of paper as they had given out. They retired to the back of the hall, where they counted the votes. The procedure that they adopted was to work out, in advance, what number of votes was needed to pass the resolution by a three-quarters majority. They kept counting votes until the affirmative votes which they had counted exceeded that number. They did not count the remainder of the votes. All the votes which they counted were ones in favour of Mr McClelland being expelled. Some votes were cast in Mr McClelland's favour, by Mr Nelson, Mr Miller, Mr Cane, and by Mr McClelland himself. Those votes were amongst the ballots which Mr Singleton and Mr Gray did not count, once the three-quarters threshold had been passed.
63 Soon after the 15 July meeting, Mr McClelland repaid the $170. He did this after approaching a chamber magistrate to seek some advice about his cross-claim against the Club, and being advised that it was 'much simpler" if he repaid the money and made a claim of everything that was owed to him.
64 On 20 July 1995 Mr McClelland issued a statement of liquidated claim against the Club, from the Local Court at Sutherland. The claim related to $949.40, made up of the three items he had mentioned in his letter of 29 April 1995, together with an additional $100 being the value of a "Mug of the Week" prize which Mr McClelland said he was entitled to. That claim was settled on 13 September 1995, on the basis that the Club would supply Mr McClelland with two 10 pound gas cylinders, would pay the $46 cost of issuing the statement of liquidated claim, would pay $78 as the "Mug of the Week" prize, and an arrangement was entered into whereby Mr McClelland recognised the trailer as being the property of the Club, but the Club agreed to make it available for Mr McClelland's use on reasonable notice to the boat captain.
65 On 25 July Mr McClelland initiated an appeal to the Sydney Branch of the Surf Life Saving Association, against the Club's resolution of 15 July. It appears that nothing was done about any such appeal until November 1995, when Mr McClelland wrote again to the Branch. The Branch, fairly promptly, replied, contending that Mr McClelland had no right of appeal to the Branch. Sporadic disputation about this topic continued until March 1996.
66 There was then a further gap until August 1996, when Mr McClelland requested the Sydney Branch to forward his appeal to Surf Life Saving New South Wales Inc. That body also took the view it had no jurisdiction to hear the appeal. In March 1997, Mr McClelland endeavoured to appeal to Surf Life Saving Australia Limited. That organisation likewise took the view that it did not have jurisdiction to hear the appeal.
67 On 1 April 1998, Mr McClelland appeared before Santow J on a notice of motion, filed in the proceedings he had begun in June 1995. He sought, amongst other things, declaratory relief that the Club recognise him as a member in good standing, and waive the membership fees for the 1995/6 to 1997/8 seasons. Following discussion before his Honour, a compromise was arrived at whereby Mr McClelland would be permitted to make a fresh application for membership of the Club, without the making of that application prejudicing any other rights he might have, which would then be considered by the Club in good faith. His Honour recognised that the delay which had intervened up to that time, might have some effect on the rights which Mr McClelland then had. His Honour's order was that:
"… by consent I dismiss the notice of motion of 24 March 1998, noting that it is on the basis that the applicant reserves any right he may have to renew his application by a properly pleaded statement of claim with accompanying affidavits."
68 Mr McClelland made an application for membership of the Club on 2 April 1998, but on 1 May 1998 it was rejected. On 29 May 1998 he sought a statement of reasons, and on 4 June 1998, the Secretary of the defendant declined to provide any such reasons.
69 The present proceedings were begun on 22 December 1999, when the plaintiff filed a statement of claim.
The Defendant's Rules
70 The Club had started its life as a voluntary unincorporated association. In 1988 it came to be incorporated under the provisions of the Associations Incorporations Act 1984. On 2 January 1994 it adopted new rules.
71 Though, at one time in 1995, Mr McClelland was contending that the rules adopted in 2 January 1994 were not validly adopted, that contention was not pressed before me.
72 Relevant provisions of the rules of the Club are:
DISCIPLINING OF MEMBERS
"15.1 Where the committee is of the opinion that a member of the Club:-
(a) Has persistently refused or neglected to comply with a provision or provisions of these Rules; or
(b) Has persistently and wilfully acted in a manner prejudicial to the interests of the Club.
the Committee may, by resolution:-
(c) expel the member from the Club; or
(d) suspend the member from membership of the Club for a specified period.
15.2 A resolution of the Committee under clause 15.1 is of no effect unless the Committee, at a meeting held not earlier than fourteen (14) days and not later than twenty-eight (28) days after service on the member of a notice under clause 15.3 confirms the resolution in accordance with this rule.
15.3 Where the Committee passes a resolution under clause 15.1, the Secretary shall, as soon as practicable, cause a notice in writing to be served on the member:-
(a) setting out the resolution of the Committee and the grounds on which it is based;
(b) stating that the member may address the Committee at a meeting to be held not earlier than fourteen (14) days and not later than twenty-eight (28) days after service of the notice;
(c) stating the date, place and time of that meeting and that the member is not entitled to legal representation; and
(d) informing the member that the member may do either or both of the following:
(i) attend and speak at that meeting;
(ii) submit to the Committee at or prior to the date of that meeting written representations relating to the resolution.
15.4 At a meeting of the Committee held as referred to in clause 15.3, the committee shall:-
(a) give to the member an opportunity to make oral representations;
(b) give due consideration to any written representations submitted to the Committee by the member at or prior to the meeting; and
(c) by resolution determine whether to confirm or to revoke the resolution.
15.5 Where the Committee confirms a resolution under clause 15.4, the Secretary shall, within seven (7) days after that confirmation, by notice in writing inform the member of the fact and of the member's right of appeal under Rule 16.
15.6 A resolution confirmed by the Committee under clause 15.4 does not take effect:-
(a) until the expiration of the period within which the member is entitled to appeal against the resolution where the member does not exercise the right of appeal within that period; or
(b) where within that period the member exercises the right of appeal, unless and until the Club confirms their resolution pursuant to Rule 16.4.
16. RIGHT OF APPEAL OF DISCIPLINED MEMBER
16.1 A member may appeal to the Club in general meeting against a resolution of the Committee which is confirmed under Rule 15.4, within seven (7) days after notice of the resolution is served on the member by lodging with the Secretary a notice to that effect.
16.2 Upon receipt of a notice from a member under clause 16.1. the
Secretary shall notify the Committee which shall convene a general meeting of the Club to be held within twenty-one (21) days after the date on which the Secretary received the notice and shall give all members of the club at least seven (7) days notice of the matter to be dealt with at the meeting.
16.3 At a general meeting of the Club convened under clause 16.2:-
(a) no business other than the question of the appeal shall be transacted:
(b) the Committee and the member shall be given the opportunity to state their respective cases orally or in writing, or both; and
(c) the members present shall vote by secret ballot on the question of whether the resolution should be confirmed or revoked.
16.4 If at the general meeting the Club passes a special resolution in favour of the confirmation of the resolution, the resolution is confirmed.
…
33. NOTICE
33.1 Except where the nature of the business proposed to be dealt with at a General Meeting requires a special resolution of the Club, the Secretary shall, at least fourteen (14) days before the date fixed for the holding of the General Meeting, cause to be sent by pre-paid post to each member at the member's address appearing in the register of members, a notice specifying the place, date and time of the meeting and the nature of the business proposed to be transacted at the meeting.
33.2 Where the nature of the business proposed to be dealt with at a General Meeting requires a special resolution of the club, the Secretary shall, at least twenty-one (21) days before the date fixed for the holding of the General Meeting, cause notice to be sent to each member in the manner provided in clause 33.1 specifying in addition to the matter required under clause 33.1, the intention to propose the resolution as a special resolution.
33.3 No business other than that specified in the notice convening a General Meeting shall be transacted at the meeting except, in the case of an Annual General Meeting, business which may be transacted pursuant to Rule 32.3.
…
39. SPECIAL RESOLUTIONS
39.1 A special resolution must be passed by a General Meeting of the club to effect the following changes:
(a) a change of the Club's name;
(b) a change of the Club's Rules
(c) a change of the Club's objects;
(d) an amalgamation with another Incorporated Club
(e) to voluntarily wind up the Club and distribute its property;
(f) to apply for registration as a Company or a Cooperative.
39.2 A resolution of the Club is a special resolution if it is passed by a majority which comprises not less than three-quarters of such members of the Club as, being entitled under these rules so to do, vote in person at a General Meeting of which not less than twenty-one (21) days' written notice specifying the intention to propose the resolution as a special resolution was given in accordance with those rules. …"
Was There Adequate Notice of the Meeting of 15 July 1995?
73 One basis upon which Mr McClelland contends that the expulsion is ineffective is that inadequate notice was given to members of the meeting of 15 July. Mr McClelland puts the argument this way: pursuant to clause 15.6, the resolution of the Committee of 13 June 1995 does not take effect because he has exercised a right of appeal against it within the correct time; the resolution of the General Meeting of 15 July is ineffective because clause 16.4 requires a special resolution to be passed at the meeting if an expulsion is to be confirmed; clause 39.2 requires not less than 21 days written notice for a special resolution; yet in the present case less than 21 days notice was given.
74 A power to expel from an incorporated club is one where the procedures laid down by the Club's constituent documents must be strictly complied with, if the expulsion is to be valid. Hamilton J has collected authorities in support of this proposition in Hornby v Narrandera Ex-Servicemen's Club Ltd [2001] NSWSC 235, at [8]-[10]. Before one can apply that principle in the present case, however, one needs to first construe the rules of the Club, to find what period of notice was required for this particular meeting.
75 The rules of the Club show some signs of being drawn from different sources, not all of which are compatible one with the other. Rule 16 sets out a procedure to follow when a member wishes to appeal against a decision of the committee for his or her expulsion or suspension. Clause 16.1 sets out the first step - that the member who is the subject of the resolution appeal within 7 days after notice of the resolution being served on the member. In the present case, Mr McClelland was notified on 19 June of the Committee's resolution of 13 June, and appealed against that decision on 25 June. Thus, his appeal was within the time laid down by clause 16.1.
76 The next step, once a notice of appeal has been lodged, is that laid down by clause 16.2. That provision, requiring the Committee to convene a General Meeting of the Club to be held within 21 days after the date on which the Secretary received the notice, and to give all members of the Club at least 7 days notice of the matter to be dealt with at the meeting, has also been complied with in the instant case.
77 However, clause 16.4 contemplates that the expulsion or suspension is effective if at the General Meeting "the Club passes a special resolution in favour of the confirmation of the resolution". Clause 33.2 and clause 39.2 each contemplate that a special resolution must be one of which not less than 21 days written notice has been given.
78 If those requirements of clause 33.2 and clause 39.2 were read into clause 16.4, the effect would be that clause 16.4 was in irreconcilable conflict with clause 16.2 - it would be completely impossible for the period of notice required by clause 16.2 to be given, and for the period of notice required by clause 33.2 and clause 39.2 to also be given. That irreconcilable conflict is to be resolved, in my view, by allowing the specific notice provision contained in clause 16.2, and said to be applicable to the exercise of an appeal under clause 16, to prevail over the more general notice provisions contained in clause 33.2 and 39.2. When clause 16 is construed in that way, it has been strictly complied with, so far as the notice to call the meeting of 15 July 1995 is concerned.
79 This approach to the notice provisions is the same as that adopted by Burchett J in Whittle v Australian Miniature Pony Society Inc (1995) 57 FCR 252 at 257, concerning rules not materially different to rules 15 and 16 of the Club, and a general provision defining the notice requirements for a special resolution in a way incompatible with those rules.
The Legal Basis of Mr McClelland's Complaint of Denial of Natural Justice
80 Mr McClelland also contends that he was denied natural justice in connection with the expulsion, and that in consequence the expulsion is invalid.
81 "Natural justice" is a concept familiar in the field of administrative law. There, it is now recognised as deriving from a common law duty concerning the manner in which powers are exercised in public law (Kioa v West (1985) 159 CLR 550 at 584 per Mason J, South Australia v O'Shea (1987) 163 CLR 378 at 386 per Mason CJ). There are two reasons for recognising it as a common law duty. The first is that the common law provided its own set of remedies, in the form of the prerogative writs, to enforce that duty. The second is that it is now established that a duty to accord natural justice can be owed by a decision maker whose authority does not derive from legislation - and hence, the source of the obligation to accord natural justice is, at least in those cases, not to be found by a process of statutory construction which implies into legislation a duty to act in accord with natural justice. Examples of an obligation of natural justice being imposed on public decision makers whose authority does not lie in legislation are Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (exercise of the prerogative by the Prime Minister is subject to natural justice), and Victoria v Master Builders Association of Victoria [1995] 2 VR 121 (non-statutory "task force" compiling list of builders it would advise the government should be black listed is subject to natural justice). Further, various private bodies which exercise powers of public significance have been held to be bodies the courts can supervise by issuing prerogative orders: R v Panel on Takeovers and Mergers; ex parte Datafin Plc [1987] 1 QB 815 at 842; R v Panel on Takeovers and Mergers; ex parte Guinness Plc [1990] 1 QB 146; R v Visitors to the Inns of Court, ex parte Calder [1994] QB 1.
82 Concerning private clubs, it has likewise long been recognised that rules of natural justice apply to the exercise of a power of expulsion: Wood v Woad [1874] LR 9 Ex 190 (expulsion from a ship owner's mutual insurance society); Fisher v Keane [1879] 11 Ch 353 (expulsion from a gentlemen's club). However, the remedies available to correct a wrongful expulsion from a private organisation did not include the issue of a prerogative writ - rather, the appropriate remedy was a declaration that the expulsion was invalid, and an injunction against treating the expulsion as valid: R v Wilson; ex parte Robinson [1982] Qd R 642; R v British Broadcasting Corporation; ex parte Lavelle [1983] 1 WLR 23 at 30-31; Law v National Greyhound Racing Club Ltd [1983] 1 WLR 1302; Dixon v Australian Society of Accountants (1989) 95 FLR 231; R v Disciplinary Committee of the Jockey Club; ex parte Aga Khan [1993] 1 WLR 909.
83 Further, it is not in all cases where someone has been expelled from a club in breach of rules of natural justice that the court will intervene to provide a remedy. One circumstance in which a court would intervene, to provide a remedy by way of injunction if a person was expelled from a voluntary association in breach of rules of natural justice, was if the member would be thereby deprived of property to which membership entitled him or her (Rigby v Connol (1880) 14 Ch D 482 at 487 per Jessel MR. The proportion of members' subscriptions that was unspent at the time the action was brought was regarded as being an insufficient property right to justify the grant of an injunction: Amos v Brunton (1897) 18 NSWR (Eq) 184. However, in the course of the 20th century the courts came to regard what amounted to a sufficient right of property in a more liberal sense, so that the right of being a member of a trade union came to count as being enough of a right of property: Makin v Gallagher [1974] 2 NSWLR 559 at 578-582 per Holland J.
84 There is a long line of judicial statements, explaining that the basis on which a court can prevent excess of power by a domestic tribunal is by enforcing the contract under which the tribunal operates. Thus, in Dickason v Edwards (1910) 10 CLR 243 at 250 Griffith CJ said:
"It is, of course, a general rule of natural fair play that a man cannot be judge in his own cause. In the case of statutory tribunals that rule is absolute unless the statute provides, as it does in some cases, that a person who is only formally a party may nevertheless sit on the tribunal, as, for instance, in England in the case of licensing tribunals and the London County Council when it sits to determine applications for granting licences. The rule prevails except so far as the language of the particular statute is to the contrary. In the case of tribunals created by contract between the parties it is entirely a question of the construction of the contract whether the parties have agreed that an interested person shall or shall not be disqualified. To exclude the general rule of fair play I think it is necessary that it should appear that the parties intend that a person may sit although he is interested, that is to say, he must be able to collect from the contract itself an agreement either expressly or by necessary implication to that effect. The question therefore resolves itself into an examination of this contract."