Trindall v NSW Aboriginal Education Consultative Group Inc [2023] NSWSC 85 | Case summary

Ms Trindall, the AECG, and the Challenged Meeting

Ms Trindall was elected President of the AECG on 20 March 2021. She is a Gomeroi woman, who has been involved in various roles in the field of education, principally the delivery of education services to Australia's First Nations people, for approximately 40 years. Ms Trindall has worked in education at a range of operational levels from the local to the ministerial. Much of her work has involved improving understanding and education of Aboriginal culture and language. She has been involved with the first defendant for over 40 years and is a life member.
The New South Wales Department of Education (the Department) employs Ms Trindall on a permanent basis in the classification of Chief Education Officer Grade 1. Shortly after Ms Trindall's election as president of the first defendant, on 29 March 2021 she commenced a three-year secondment to the New South Wales Education Standards Authority (NESA) from her role in the Department to take up the role of AECG President. Ms Trindall's secondment to NESA was offered after she met the relevant selection criteria. If her position as AECG president ceases, she says her secondment to NESA will end and she will have to reapply for a position at the Department.
The Court appreciates that in this interlocutory hearing it does not have from the second to ninth defendants the same background, personal history, commitment to indigenous education culture and language and an account of their work for the AECG as it has from Ms Trindall. There has not yet been time to present such evidence, as the timing of this hearing has been dictated by the proposal to hold the challenged meeting on Sunday. The second to ninth defendants have not yet been served with process. If required, such evidence can be presented at a final hearing. But this hearing must proceed without that evidence, the Court being mindful that it has not yet seen the full case that might be presented by these defendants at a final hearing. This is a factor that needs often to be weighed in interlocutory hearings such as this one. Although, the correspondence gives a profile of many of the allegations that the defendants would propose to advance against Ms Trindall at the challenged meeting were it to be held.
The parties to these proceedings, and the Court is told some 3000 members of the AECG, give effect to its work at the local, regional and state levels. Much of their work is voluntary and given in commitment to the vision and objectives of the AECG.
The vision statement and objectives of the AECG expressed in its Constitution well define the scope of its work. The Constitution professes the following vision statement of the AECG: "The vision of the NSW Aboriginal Education Consultative Group Inc is to provide advice on all matters relevant to education and training with the mandate that this advice represents the Aboriginal community viewpoint. The NSW Aboriginal Education Consultative Group Inc. promotes respect, empowerment and self-determination and believes the process of collaborative consultation is integral to equal partnerships and is fundamental to the achievement of equality. The NSW Aboriginal Education Consultative Group Inc. advocates cultural affirmation, integrity and the pursuit of equality to ensure that the unique and diverse identity of Aboriginal students is recognised and valued."
The Constitution identifies the following aims of the AECG: "To ensure that the functions and powers of members are facilitated with the premise that the most critically important part of the consultative process is the active involvement of Local Aboriginal Education Consultative Group members and communities. To provide opportunities for Aboriginal people to be actively involved in all decision-making that is relevant to education and training through a collaborative consultative process. To empower members by providing appropriate and effective knowledge and skills to engage in the development of policies and programs that enhance the unique cultural identity of Aboriginal students and promote pride in Aboriginality."
The Constitution also elaborates the objectives of the AECG to give effect to its vision and objectives. These objectives range widely and include coordinating and facilitating the operations of the local and regional AECG, increasing the active involvement of Aboriginal communities in this work, advocating greater understanding and knowledge of issues and events in the history of relations between Aboriginal and non-Aboriginal people from the point of view of Aboriginal people, providing appropriate training to members, enhancing the involvement of members in all decision-making collaboratively, establishing and maintaining partnerships with providers to ensure improved outcomes in education and training of Aboriginal students, collaboratively developing strategies to respond to the needs of Aboriginal students and engaging in innovative research on issues impacting on Aboriginal education and training.
The current Constitution of the AECG became effective on 15 March 2017. The NSW members of the AECG are organised into 139 local areas which are in turn organised into 20 regions. The AECG's Constitution makes detailed provision for democratic representation to bring the opinions of members of the local level up to the regional and state levels.
The Constitution provides for four delegates to be elected for each region to represent that region at the state level. Of the four delegates one is entitled to vote at state level general meetings, AGMs and SGMs. The AECG Secretariat is comprised of five salaried roles, the president, the finance officer, the assistant administration officer, the project officer, and the executive officer.
Under the Constitution, Section 3, Part 2, rule 2.1, the Office Bearers of the AECG at State level and each Regional AECG and Local AECG are (a) President; (b) Vice President; (c) Treasurer; and (d) Secretary. Under the Constitution, Section 3, Part 2, rule 2.2, the Association Management Committee (AMC) consists of nine people, the above four Office Bearers and five ordinary Full Active Financial Members. Ms Trindall and the second to ninth defendants are the present constituent members of the AMC. Under (xviii) of the Definitions clause in the Constitution another similarly named committee, the 'Management Committee' (Management Committee) is defined to mean collectively the Association State Management Committee and each Regional AECG and Local AECG Management Committee, unless otherwise stated.
As the elected President, Ms Trindall's case is that she is a member of the Management Committee, an Office Bearer and a member of the AMC. Her present application for relief relates to actions taken by the second to ninth defendants, being the eight other members of the AMC apart from herself.
The work of the AECG requires access to funding. Ms Trindall foreshadows that at final hearing she will adduce evidence that over the period of her tenure as President she has lobbied for and secured some $20,000,000 in funding. At final hearing she will contend that the AECG may not have received that funding but for the confidence in her leadership by key external stake holders.
It is likely that Trindall's case in this respect will be contested at final hearing. It is not necessary for the Court to decide questions such as Ms Trindall's performance as President in this hearing. All the Court needs to do at this interlocutory is to gain an appreciation of the nature of that final contest.
The chronology of procedural events that give rise to the present application commences in December 2021. After Ms Trindall's election as president she was instrumental in terminating the appointment of Mr Desmond Barton from a salaried position within the AECG. Mr Barton had been a candidate who had unsuccessfully competed against her for election as president in March 2021. Mr Barton was subsequently elected to a position on the Metropolitan East region of the AECG and from there he was nominated as a delegate to the State level of the AMC.
Ms Tindall says that it came to her attention by mid-2022 that Mr Barton was attempting to challenge her leadership of the AECG. Whether Mr Barton was making such attempts is not decided here. But Ms Trindall's case is that her first inkling of trouble came without prior notice at a meeting of the AMC on 8 December 2022, when she was told that motions of no confidence in her and to stand her down as president had been passed in her absence before the formal AMC meeting began.
She says she was startled at the apparent irregularity of the AMC passing such motions without prior notice to her. Following the 11 December 2022 meeting she suffered a temporary loss of access to the AECG's email and other administrative systems and to her entitlements as president although she says that these were restored to her.
The major step relevant to the present contest took place on 11 January this year. On that date the legal representatives of the other members of the AMC sent Ms Tindall's solicitor formal correspondence which made serious allegations against her about her discharge of her role as president and sought her response, stated that any response from her would be disseminated to AECG members on 20 January 2023. The letter also notified her that the previous suspension of her role as president on 8 December was ended and that she could resume her duties in the role.
The form and content of the 11 January 2023 letter is an important consideration in the Court's present deliberations. It recounted incidents that had allegedly occurred between Ms Trindall and other members of the AMC. Then it reported that "on 9 January 2023 and without admissions, the AMC resolved to terminate the standing down of [Ms Trindall] effective immediately" and declared that "accordingly" Ms Trindall "is obliged to resume her duties as President". It then proceeded: "8. Of immediate concern to the AMC is the amount of expenses which your client has paid or reimbursed to herself for meals and accommodation at the AECG's expense. 9. In order that your client may properly understand the AMC's concerns, we enclose a spread sheet which the AMC has prepared which shows credit card charges incurred on an AECG credit card in the period February 2022 to December 2022. We note that the enclosed spread sheet is a working draft only and that our client is still conducting its review of the AECG's expenses. 10. You will note that the spread sheet discloses payment for numerous accommodation and meal charges in Tamworth. We are instructed that your client lives in Tamworth. Accordingly, there appears to be no justification for your client incurring those charges on the AECG credit card. 11. There are also significant accommodation charges for Sydney. As the AECG's offices are located in Sydney, and so far as the AMC is aware, there has been no resolution passed by it agreeing to pay for any accommodation expenses for your client travelling to or staying in Sydney, our client seeks an explanation as to why your client considers these charges to be justified. 12. The spread sheet contains numerous other expense charges. Some of these may be reasonable but the onus is on your client to justify any expenses for which she claims reimbursement. 13. The AMC is also concerned that your client has used her position as President of the AECG to the benefit of her immediate family members. For example, we are instructed that your client: (a) approved payment for her husband's travel expenses to attend the World Indigenous Peoples Conference on Education (WIPCE) in Adelaide 2022; (b) approved and caused to be paid expenses for her daughter-in-law to attend WIPCE; and (c) approved payment for two of her sons for travel expenses to attend WIPCE. 14. Your client should not treat the above matters as exhaustive of the issues about which our client has concerns."
The 11 January letter annexed a one-page document that appears to be a report from the accounting system of the AECG, extracting over 40 expenditure transactions for the months of February 2022 through to December 2022 showing various amounts of motel or hotel type accommodation and meals, mainly in suburban Sydney, and in various other parts of New South Wales, principally in the Tamworth, and the Central Coast regions.
On 17 January 2023 another meeting of the AMC from which Ms Trindall was absent resolved to call a Special General Meeting (SGM) of the Association State Committee to vote on a resolution that Ms Trindall be removed from the position of President. The notice paper identified a "rationale" for the motion as, "the AMC has lost confidence in the president's ability to lead and manage the NSW AECG Inc and perform the duties of the role as per the Constitution." The meeting resolved to forward a notice of SGM to the Association State Committee for Sunday 12 February 2023.
On 20 January 2023, the other ACM Members sent a notice to the 29 State AECG members advising them of the proposed SGM on 12 February, annexing the 11 January letter. At the time this 20 January notice was distributed Ms Trindall had not yet responded to the allegations made in the 11 January letter. She says she had been cautious about doing so before then, because of the nature of the allegations, the timeframe given for response and the communication to her that the 11 January letter and her responses would be distributed to AECG members.
The 20 January notice stated that the purpose of the meeting was for members of a body described as the Association State Committee to consider and if thought fit to pass the following resolution: "That pursuant to rule 6.1 of Section 3,Part 6 of the NSW AECG Inc's constitution, Ms Katherine Trindall be hereby removed as the president of the NSW AECG Inc before the expiry of the term."
The 20 January notice further stated that the AMC had lost confidence in Ms Trindall's ability to lead and manage the first defendant and perform the duties of the role of President and that it cannot continue in a functioning relationship with her. The notice also stated that as at the date of its issue that Ms Trindall had not responded to the matters raised in the letter of 11 January 2023. The notice made clear that only members of the Association State Committee were entitled to vote.
Although her submissions to this interlocutory hearing take issue with the clarity of the allegations made against her, in her affidavit Ms Trindall denies the allegations made in the 11 January letter in the following terms "48 I deny:- a. That I have inappropriately used the AECG credit card for personal gain or at all; b. That I have used the AECG credit card other than to discharge my Presidential duties; c. That my family has received any benefits. Each of the members of my family referred to in the 11 January Letter are members and/or employees of the AECG, namely Robert Waters (current employee and financial member), Brad Flanders (financial members), Kirsten Booker (current employee and financial member), Tom Flanders (life member and local Tamworth ACM President, Regional President North West 2). d. I deny that there have been any improper dealings involving my family. 49 Each of the expenses in the spreadsheet annexed to the 11 January letter are reconcilable against the tax invoices that I provided to the financial officers at or shortly after the time of expenditure. 50 In relation to the allegation that I reside in Tamworth and therefore ought not have charged any expenses for my time working in the Tamworth AECG office, I reside in Attunga and not Tamworth. It is the case that Attunga is only about a 25 minute drive from Tamworth. However, during the periods that I have worked in the Tamworth AECG office, I have worked extremely long hours, often finishing late at night, and was not wishing to drive alone while extremely tired each night. I therefore booked into the local caravan park.
Ms Trindall states that she prepared a more detailed specific responses but had not completed it in part due to an illness that she suffered in early February. She says that she has used her best endeavours to maintain the AECG's reputation and to calm "key stakeholders, including funding providers", in the face of the current turmoil disclosed by this history.
On 6 February 2023, Ms Trindall's solicitors received a letter from Pigott Stinson, who were acting on behalf of some other members of the AMC, containing further allegations against Ms Trindall and declaring that those allegations would also be disseminated to AECG members before the SGM. Agreement was reached by the time of the interlocutory hearing for the 6 February 2023 letter not to be disseminated to members and the first defendant did not seek to rely upon it at the hearing. Given the proximity of the 6 February to the proposed 12 February meeting this was a reasonable approach on the part of the first defendant.
Ms Trindall says that the allegations already disseminated to the AECG membership on 20 January 2023, as well as the stand down at the 8 December Meeting, and the way these allegations have been pursued have significantly damaged her standing professionally and in the Aboriginal community and caused her to suffer significant emotional stress, public embarrassment, and humiliation.
She says that if the 12 February meeting were to go ahead and for her to be voted out of her position as president would leave her with no role within NESA for the duration of her secondment, which is scheduled to conclude on 28 March 2024. She says her secondment would be likely to terminate on the basis that work at NESA is no longer available. She would then return to the Department, although she has taken approved leave without pay until 28 March 2024, she says that unless she can secure another role within the Department during that time, she would suffer economic loss equivalent to her present remuneration of $167,444 per annum plus leave loadings and superannuation until 28 March 2024.
Medical evidence establishes that Ms Trindall was hospitalised on 8 February 2023, with a medical condition which her treating doctor says is unlikely to allow her to be discharged from hospital before 12 February 2023. She is therefore unlikely to be able to attend the challenged meeting to defend herself against the allegations made against her. She says that she is the person with the best knowledge of the underlying facts in relation to the expenditure being questioned and the various other more general allegations made against her in the 11 January letter. As at the time of the hearing Ms Trindall was still in hospital.
When the matter came before the Court on 10 February counsel indicated that the matter was brought so late because negotiations between the parties had broken down and no consensus could be reached not to hold the challenged meeting. Although if the meeting were to go ahead, given the withdrawal of the 6 February letter, it seemed reasonable to infer that the challenged meeting would proceed based on the 11 January letter.

Consideration

The parties put a range of submissions on either side of the contest in relation to interlocutory relief. As this is an interlocutory judgment it is not necessary to set out those submissions in full but rather to refer to them, together with any applicable legal analysis, during the Court's consideration of whether it should grant interlocutory relief.
There is a serious question to be tried and the balance of convenience favours the grant of interlocutory relief.
Serious question to be tried. On both major arguments which Ms Tindall advances there is a serious question to be tried. These reasons will consider the procedural fairness argument first.
There is a sound argument that were this meeting to proceed Ms Trindall will be denied procedural fairness which will in due course lead to the meeting being declared invalid.
An obligation of the first defendant to afford to the plaintiff procedural fairness is to be inferred here from the following legal and factual matters. As an association incorporated under the Associations Incorporation Act the first defendant's Constitution binds the first defendant and its members "to the same extent as if it were a contract between them under which they each agreed to observe its provisions": Associations Incorporation Act s 26(1). Affording procedural fairness in meetings is a term which may readily be implied in such contracts between members. That inference is strengthened for this association with its vision, aims and objects, together with the detailed procedural mechanisms set out in its Constitution, and the lack of any provision which excludes rights of procedural fairness. Courts may intervene in the affairs of incorporated associations to prevent expulsions and other conduct contrary to express or implied rules of procedural fairness or contravening the procedural rules of the Association, see for example: McClelland v Burning Palms Surf Life Savings Club (2002) 191 ALR 759; [2002] NSWSC 470; Jesse White v SA Amateur Football League Incorporated [2022] SASC 85; United Muslims New South Wales Inc v Australian Federation of Islamic Councils Inc (No 2); Islamic Council of Victoria Inc v Australian Federation of Islamic Councils Inc [2022] NSWSC 868.
Moreover, a duty to observe proper standards of procedural fairness in the first defendant's conduct of its committee business may also be inferred from Associations Incorporation Act s 30A, which provides a duty of committee members of incorporated associations to conduct their duties as follows: "It is the duty of each committee member to carry out his or her functions for the benefit, so far as practicable, of the association and with due care and diligence."
It is more than merely arguable that observing procedural fairness by committee members is for the benefit of an incorporated association and that adhering to basic standards of procedural fairness also reflects "due care and diligence" by committee members.
The application of these principles to the facts of this case shows a serious question to be tried. First, Ms Trindall is in hospital and unlikely to be discharged before Sunday. She cannot be at the challenged meeting to defend herself from the allegations being made against her. Her personal knowledge of the facts, the difficulty of instructing others to speak for her, and the discomfort of attempting to overcome her significant medical challenges to give instructions to advocates for her, all point to the fundamental procedural unfairness in holding this meeting on Sunday. No one suggests that her medical condition is not genuine. She suffered a similar condition previously. She is undoubtedly in a state of considerable stress, resulting from allegations which she regards as false, which would itself impede her giving adequate instructions to others. Whatever be the underlying truth or falsity of the allegations against her, it is well arguable that seeking to test Ms Trindall in these circumstances is procedurally unfair.
Second, Ms Trindall is a long way from having adequate particulars of the allegations against her. The 11 January letter fudges potentially serious allegations. The letter merely invites more questions by the reader as to what the real allegations are against Ms Trindall. 1. The letter is uncertain and open-ended referring to matters of "immediate concern". Some charges are made against Ms Trindall "for example", leaving open what else is yet to come. And the letter declares that Ms Trindall "should not read the above matters as exhaustive of the issues about which our client has concerns". Ms Trindall is entitled to know with far greater certainty than this the scope of the charges. 2. No particulars are given of the charges against Ms Trindall for benefiting immediate family members. It is unclear what the precise expenses are that are said to contravene this principle. 3. The transactions that are identified in the spreadsheet are not said to contravene clearly identified expenditure policies that were binding on Ms Trindall, so she can assess whether a contravention has actually occurred, measured against the policy. 4. The letter does not indicate whether the whole or only part of the identified transactions are said to be a contravention of the first defendant's expenditure policies. It could readily be inferred, for example, that Ms Trindall would be entitled at the least to reasonable meal allowances in some of the situations in question.
Third, given that the allegations were not adequately particularised, even if she attempted to respond to them with all reasonable efforts, Ms Trindall has insufficient time to deal with them. Their vagueness will require more reply time. Ms Trindall's orderly dealing with the case against her has been disrupted by the intervention of the 6 February 2023 letter and its later withdrawal. She was in effect given nine days to respond to the allegations, under threat that if she did not respond that the membership would be told on 20 January. Such a period is hardly adequate for allegations as casually framed as these.
Fourth, it is seriously to be doubted that the mechanism contemplated by the calling of the challenged meeting by the notice of 20 January to consider the allegations of the 11 January letter could ever result in a procedurally fair outcome for Ms Trindall. A general meeting is not the place to debate the evidentiary and legal nuances of whether 40 plus items of expenditure by the first defendant's president were properly authorised. Most organisations of the size of the first defendant with some 3000 members call in an independent professional to find the facts and present a report that could be considered by an SGM. The fact that such an independent inquiry is not being suggested here raises procedural fairness questions.
As Ms Trindall has demonstrated a serious question to be tried on her procedural fairness contentions, it is unnecessary to elaborate her other argument based upon the challenged meeting being called contrary to the Constitution of the first defendant. But it may be shortly stated. Notice of the challenged meeting was only given to a group of 29 persons, being nine members of the State Management Committee and 20 other persons who are individual representatives of each of the 20 regions and comprise the "Association Management Committee". The first defendant says this is the extent of the notification of the challenged meeting that upon its proper construction the Constitution requires.
Ms Trindall contends against this that the Constitution of the first defendant requires that the proposed SGM to be called by the "Management Committee" as defined in the Constitution, which comprises a collective body of persons including what is known as the State Management Committee, each regional management committee, known as the "Regional AECG" and each Local Management Committee, a group of far more than 29 persons. If this submission is correct, insufficient notice of the meeting has been given by the first defendant to persons entitled to note at a properly convened SGM. A meeting so convened would be likely to contravene the Associations Incorporation Act, s 38, which requires that a resolution to be passed at a general meeting must be "supported by more than half of the votes cast by members of the association who, under the associate's constitution, are entitled to vote on the proposed resolution. "
The Constitution details a complex structure of state, regional and local representation within the first defendant. Ms Thew elaborated Ms Trindall's construction of the Constitution, which the Court assesses as reasonably arguable and therefore raising a serious question to be tried. Her argument has some prospects of being accepted at final hearing.
The balance of convenience. Considerations of the balance of convenience favour the grant of an injunction restraining the challenged meeting going ahead.
First, if the challenged meeting goes ahead Ms Trindall is at risk of being denied procedural fairness, because she is in hospital and due to illness she is unable to attend the challenged meeting to defend herself with her account of the facts of which she is aware. Against this no weighty consideration is advanced on behalf of the first defendant that an adjournment of the challenged meeting would be prejudicial to the first defendant. No other event is imminent which requires a meeting to take place on this Sunday. The simple expedient of an adjournment of the challenged meeting would allow Ms Trindall time to be discharged from hospital and for her to prepare to defend herself against the allegations at a later meeting.
The other defendants are contending that Ms Trindall's past expenditure is of concern to them. While she denies that there is any impropriety, it is likely that during any adjournment of the challenged meeting arrangements could be made for her expenditure to be incurred on a mutually agreed basis, and possibly under the supervision of an independent third party until the questioned expenditure can be checked. Moreover, there is no suggestion in this case of an intentional misapplication of funds that has no obvious justification, or which has been deliberately obscured, thereby leading to a need for a president temporarily to stand aside. To the the extent they have been identified here, all the questioned transactions relate to the characterisation of readily identifiable expenditure.
Second, should the challenged meeting go ahead both Ms Trindall and the first defendant may suffer significant irretrievable reputational loss but for different reasons. Whereas if the meeting were to be adjourned, little or no reputational loss seems likely to be suffered by either side.
The holding of the challenged meeting leading to Ms Trindall's wrongful removal as president may lead to her suffering reputational loss because she cannot presently challenge allegations about her financial administration as president of the first defendant, when there may be a proper defence available to her. Whilst a later final hearing may declare the challenged meeting invalid and reinstate Ms Tindall as president the stain to her reputation may be more difficult to remove.
The first defendant may also suffer serious adverse consequences from the meeting preceding. The first defendant requires external funding to maintain its financial viability to do its important work. If it removes its president, where her contentions for a denial of procedural fairness are as strong as they are here, then its own reputation as a reliable administrator treating its own people with procedural fairness is at risk of suffering in a manner which may be difficult to retrieve.
Third, if the challenged meeting goes ahead and Ms Trindall is removed from her position as president there is a real risk that she will suffer short-term to medium-term financial loss due to the early termination of her secondment with NESA and the consequent need for her to reapply for a position with the Department. On the other hand, given Ms Trindall's presidential expenditure is plainly being closely scrutinised it is difficult to see much risk of financial loss to the first defendant arising from an adjournment.
The Court will grant the substance of the interlocutory relief sought in the summons.
Before leaving this matter in fulfilment of the Court's obligations to quell this dispute one idea may perhaps be considered by the parties. There is much to be said for an appropriately qualified independent person being engaged to inquire into the allegations against Ms Trindall, so that fair and informed debate occurs at any future meeting of the first defendant.
There are many highly experienced First Nations barristers and solicitors practising in New South Wales, one of whom could be engaged by the first defendant as an independent expert to assess these allegations and to report to the first defendant before it decides whether any further meeting needs to be held about these issues. If there are maintainable allegations against Ms Trindall they can then be efficiently considered in a meeting that is well-equipped to consider the implications of facts found by the independent expert.
And mediation may be possible to settle this dispute. The Court will consider ordering a mediation under Civil Procedure Act 2005, s 26. The matter should be mentioned by arrangement with my associate at a time convenient to the parties on Wednesday 15, Thursday 16, or Friday, 17 February 2023. The Court will make directions for the future conduct of the proceedings at that time including for mediation. To the extent the parties' dispute is about expenditure, then a mediation may for example be able to look at an agreed presidential budget for the plaintiff and the first defendant until March 2024.
Finally, it is desirable in the interests of transparency that within the first defendant that these reasons be circulated at least as widely as the other documents that have been mentioned in the recent history of this dispute.

Trindall v NSW Aboriginal Education Consultative Group Inc

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (7 paragraphs)

Parties

Cases Cited (14)

Cited By (1)