The issue of justiciability
75Senior counsel for the defendants submitted that as matters presently stood, the Board had done nothing more than place a motion on the agenda of a special meeting. He pointed out that no decision had yet been made because the motion had not been (and may never be) passed. He submitted that these matters highlighted the absence of any justiciable issue. He further submitted that the power of a Court to intervene in the decision making of voluntary associations is concerned with impeaching decisions of such associations, not making decisions which amount to determining the merits of a dispute, or second guessing what may or may not be decided.
76Senior counsel further submitted that the absence of any justiciable issue was also highlighted by the fact that in the event of a decision being made by the Board which was adverse to him, the plaintiff could appeal to the Senate of the University.
The plaintiff's conduct
77Senior counsel for the defendants submitted that in the event that I concluded that there was a justiciable issue, the question was not whether, on the balance of probabilities, the plaintiff had engaged in misconduct. He submitted that the decision making power of the Board (be it under clause 9.2(f) or Regulation 3.1.4(a)) required that a majority of Directors be of the opinion that the plaintiff had engaged in misconduct. It was submitted that in these circumstances, the Board was entitled to remove the plaintiff on the basis of an opinion it formed to that effect, and that the plaintiff was required to establish that no basis existed by which a Board, acting in good faith and for a proper purpose, could reasonably form that opinion. It was submitted that in order for the court to intervene, it was necessary for the plaintiff to establish that the forming of such opinion on the part of the Board was, on the evidence before the court, one which:
(i)was absurd or unreasonable (Dickeson v Edwards (1910) 10 CLR 243 at 254);
(ii)no reasonable person could come to (Dickeson (supra) at 254;
(iii)was unsupported by the evidence (Lee v Showmen's Guild of Great Britain [1952] QB 329 at 340); or
(iv)was affected by unreasonableness (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223).
78Against this background, and bearing in mind the matters alleged in the motion, senior counsel submitted that on the plaintiff's own evidence:
(i)he was aware that a report had been prepared by Ms Hardy into the incident on Open Day;
(ii)he was provided with a copy of the report for discussion;
(iii)he was informed by Ms Hardy that material contained in her report had been provided to her by staff members in confidence; and
(iv)he had then sent an email to Honi Soit which referred to a confidential report and which set out part of the contents of that report.
79It was submitted that in these circumstances there was sufficient evidence to support an opinion on the part of the Board that the plaintiff had engaged in misconduct. Senior counsel also relied upon the fact that the Constitution imposed a duty upon a Director to (inter alia) promote the interests of the Union. He submitted that deliberately breaching confidence was contrary to that duty.
CONSIDERATION OF THE ISSUES
The power of the Board to dismiss a Director
80Pursuant to the provisions of the Constitution:
(i)membership of the Union is a pre-requisite to holding office as a Director [clause 7.5(a)(i)];
(ii)the Constitution confers, upon the Board, the power to expel a member from membership of the Union if that member is, in the opinion of the Board, guilty of misconduct [clause 9.2(f)(ii)].
81Importantly, clause 9.2(f)(E), by its terms, expressly contemplates that the power in clause 9.2(f)(ii) may be exercised in respect of a Director.
82In my view, in light of these provisions, the Board has an express power to expel a person from membership of the Union on the grounds of misconduct. The effect of such a decision is that a person so expelled cannot, by virtue of clause 7.5(a)(i), hold office as a Director. In these circumstances I do not accept the submission that the Constitution does not contemplate the expulsion of a Director, or that the Board has no power under the Constitution to pass a motion for such expulsion.
83The absence, in clause 7.5 of the Constitution, of any reference to a Director ceasing to hold office as a result of expulsion does not, in my view, assist the plaintiff's position. Clause 7.5 makes express reference to a Director ceasing to hold office upon ceasing membership of the Union. As I have pointed out, clause 9.2(f)(ii) confers an express power on the Board to expel a member from such membership on the grounds of misconduct.
84To accept the submissions advanced on behalf of the plaintiff would be to accept the proposition that the Board has no power whatsoever to expel a Director irrespective of the circumstances, and that primacy should be afforded to factors such as the wishes and intentions of the members who had elected a person to office, and the provisions of the Constitution which set the period of a Director's tenure. The consequence of acceptance of such submissions would be to conclude that once elected, a Director, irrespective of his or her conduct, enjoys complete and unimpeachable security of tenure for the period for which the Constitution provides. That would mean, for example, that even where a Director engaged in a form of misconduct in which he or she had exhibited gross dishonesty, the Board was powerless to proceed to expulsion. In my view, construing the Constitution in that way would lead to an obviously absurd result. Moreover, and as senior counsel for the defendants pointed out, it would also be a construction which was at odds with principles of proper corporate governance.
85On theses bases I am satisfied that the Board has the power to expel a Director.
The validity of Regulation 3.1.4
86Regulation 3.1.4 was enacted in exercise of the power conferred upon the Board by clause 9.2(e) of the Constitution. Pursuant to that clause, the Board is given the power to enact regulations by special resolution "to give effect to the provisions of (the) Constitution" ... "for the proper conduct of the Union's business".
87The principal submission made on behalf of the plaintiff in relation to Regulation 3.1.4 was that it was at odds with the principle that a power to make regulations could only authorise the provision of a subsidiary means of carrying into effect what was in the Constitution, or what was incidental to the execution of its specific provisions.
88The principle relied upon by counsel for the plaintiff was stated by Isaacs J in Carbines v Powell (1925) 36 CLR 88 at 92:
"It is not open to the grantee of the power actually bestowed to add to its efficacy, as it is called, by some further means outside the limits of the power conferred, for the purpose of more effectively coping with the evils intended to be met ... the authority must be taken as it is created, taken to the full, but not exceeded. In other words, in the absence of express statement to the contrary, you may complement, but you may not supplement, a granted power".
89The decision in Carbines was cited by the majority of the High Court (Dixon CJ, Williams, Webb and Fullaghar JJ) in Shanahan v Scott (1956) 96 CLR 245 at 250:
"The result is to show that such a power does not enable the authority by regulations to extend the scope or general operation of the enactment, but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempt to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends".
90There is obviously no doubt about the correctness of the principle upon which counsel for the plaintiff relied. However, I am not satisfied that such a principle is infringed by Regulation 3.1.4.
91In my view, regulation 3.1.4 authorises a subsidiary means of carrying into effect the power to expel a Director. It addresses a specific situation where a censure motion has previously been passed in respect of the Director in question. In my view, the regulation does not add to the power conferred by clause 9.2(f)(ii). Rather, it gives effect to that power by providing a particular means by which it can be exercised in a specific set of circumstances.
92For all of these reasons I am satisfied that the Board has the necessary power to expel a Director.
The issue of justiciability
93It has been observed that the policy of the law tends against interference in the affairs of voluntary associations (see generally Cameron v Hogan (1934) 51 CLR 358 at 378). In Islamic Council of South Australia Inc v Australian Federation of Islamic Councils Inc [2009] NSWSC 211 Brereton J, having cited the decision in Cameron (supra), said (at [31]):
"In order that a court be persuaded to intervene, a plaintiff must establish some interference with its property rights or interests, or some breach of contract, or some threat to its livelihood or reputation: Field v NSW Greyhound, Breeders, Owners and Trainers Association [1972] 2 NSWLR 948; Carter v NSW Netball Association [2004] NSWSC 737; Rose v Boxing NSW Inc. [2007] NSWSC 20; Kovacic v Australian Carting Association Qld Inc. [2008] QSC 344".
94In the present case it was submitted on behalf of the plaintiff that his livelihood was threatened by virtue of the fact that he was effectively engaged in performing his duties as a Director on a full time basis, for which he was paid an honorarium.
95Some of the authorities cited by Brereton J involved instances of the courts intervening in circumstances where livelihood was threatened (see for example Field) whilst others involved more of a threat to reputation (see for example Carter). Although the plaintiff's position is somewhat tenuous in this respect, I am prepared to conclude that the motion sought to be put before the Board gives rise to some threat to his livelihood or reputation. However, that does not of itself lead to the conclusion that the Court should intervene.
96In each of the cases to which Brereton J referred a decision, the effect of which was to ban the involvement of the respective plaintiffs in the affairs of the relevant association, had been made. In the present case, no decision has been made by the Board of the Union at all. As senior counsel for the defendant submitted, all that has occurred in the present case is that notice has been given of a meeting at which it is proposed to put a motion which will be the subject of debate, and in respect of which the respective Board members will subsequently vote. No actual decision has been made, much less one which adversely affects the plaintiff's position. It is possible that no decision adversely affecting the plaintiff will ever be made.
97To grant relief in the terms sought in paragraph (2) of the summons would involve me in making a determination of the merits of the dispute. Moreover, it would involve me doing so in advance of any determination of that dispute being made by the Board, in circumstances where the Board is entrusted with that responsibility by the Constitution. In my view, following that course would be contrary to a long line of authority, to which Tadgell JA made reference in Australian Football League v Carlton Football Club Limited [1988] 2 VR 546 when he said (at 549-550):
"A necessary question underlying the appeal concerns the extent to which the civil courts can and should interfere with the decision of the AFL Tribunal, a domestic tribunal whose decision the parties have agreed to abide. Counsel for the respondents sought to distinguish this case from a long line of decisions in which the courts have declined to interfere, save on a strictly limited basis, at the insistence of the parties affected by the decisions of domestic tribunals to which there has been consensual submission. Examples are legion in which the courts have consistently refused to review on the merits decisions made by private or domestic tribunals that had been established to deal with disputes within organisations to which people had become voluntarily affiliated, by contract or otherwise... The reason for the court's declining to interfere in cases such as these have been various. For one thing, whoever parties have agreed to have their disputes decided by domestic tribunals designated for the purpose, the courts have been in the habit of respecting the agreement or, one might say, not countenancing a breach of it by one party wishing to desert it and to resort to civil courts for resolution of a dispute that the tribunal was designed to decide."
98His Honour proceeded to cite various examples of the limited instances in which a court might be prepared to intervene in a decision made concerning the affairs of a voluntary association. However, I am not being asked by the plaintiff in the present case to interfere with a decision of the Board, because no decision has actually been made. Rather, I am being asked to make the decision, and to determine the merits of the dispute by doing so. For the reasons I have already outlined, the Constitution confers that decision making power on the Board. In those circumstances it is inappropriate for this Court to intervene, particularly in circumstances where no decision adverse to the plaintiff may ever be reached by a majority of the Board.
99Finally, in my view the decision in Mitchell (supra) does not assist the plaintiff. In that case, as with all of the other authorities to which I have referred, the relevant decision had been made. The decision says nothing about the Court's intervention before any decision is made.
100Having reached this conclusion it is not necessary for me to consider the plaintiff's conduct in disclosing part of Ms Hardy's report. That consideration remains a matter for the Board.
ORDERS
101I make the following orders:
(1)The order restraining the defendants from proceeding, in their capacity as members of the Board of the University of Sydney Union, to entertain or determine the motion prepared by the first, second and third defendants that the plaintiff be found guilty of serious misconduct and that he cease to hold office immediately, is vacated.
(2)The summons is dismissed.
(3)The plaintiff is to pay the costs of the first to eighth defendants, and the tenth to thirteenth defendants, as agreed or assessed.