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RIDGWAY v SPORTING SHOOTERS' ASSOCIATION OF AUSTRALIA HUNTING & CONSERVATION BRANCH (SA) INC [2015] SASC 7 (28 January 2015)

Last Updated: 28 January 2015

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)

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RIDGWAY v SPORTING SHOOTERS' ASSOCIATION OF AUSTRALIA HUNTING & CONSERVATION BRANCH (SA) INC

[2015] SASC 7

Reasons for Decision of The Honourable Justice Nicholson

28 January 2015

ASSOCIATIONS AND CLUBS - EXPULSION, SUSPENSION AND DISQUALIFICATION - EXERCISE OF POWERS OF EXPULSION - BIAS

ASSOCIATIONS AND CLUBS - EXPULSION, SUSPENSION AND DISQUALIFICATION - EXERCISE OF POWERS OF EXPULSION - DENIAL OF NATURAL JUSTICE GENERALLY

ASSOCIATIONS AND CLUBS - EXPULSION, SUSPENSION AND DISQUALIFICATION - GROUNDS FOR EXPULSION

ASSOCIATIONS AND CLUBS - EXPULSION, SUSPENSION AND DISQUALIFICATION - REMEDIES FOR WRONGFUL EXERCISE OF POWER

The plaintiff is a former member of the defendant, a South Australian Shooting club operating under the umbrella of a national shooting association. Following a meeting of its Council on 20 March 2013, the defendant purported to expel the plaintiff from its membership. The decision to expel the plaintiff was the culmination of an extended period of disharmony between him and the defendant.

The plaintiff has sought, inter alia, a declaration that his expulsion was null and void and an order that he be reinstated as a member. The plaintiff contended that his expulsion should be overturned on three grounds. First, the defendant failed to afford him natural justice in the expulsion process by not putting him on notice as to certain grounds which informed the decision to expel him. Second, the defendant engaged in oppressive or unreasonable conduct towards him within s61 of the Associations Incorporation Act 1985. Third, the defendant failed to follow due process at the 20 March 2013 meeting at which it was decided that he should be expelled. The plaintiff has also sought an award of damages.

Held:

1. The plaintiff was provided with proper notice of the defendant’s complaints against him together with sufficient time to prepare for and to address them at the 20 March 2013 meeting and to this extent was afforded natural justice.

2. In reaching its decision to expel the plaintiff, the defendant did not act oppressively or unreasonably within s61 of the Associations Incorporation Act 1985.

3. The defendant failed to afford the plaintiff procedural fairness at the 20 March 2013 meeting and, as a consequence, the resolution expelling him from membership for the 2012/2013 year was invalid.

4. In the circumstances, the plaintiff’s membership expired as at 30 October 2013.

5. An order for reinstatement of membership is not appropriate, in all the circumstances.

6. The plaintiff is entitled to an award of damages in the amount of $500.

Associations Incorporation Act 1985 (SA) s40, s51, s61; Firearms Act 1977 (SA) s21I; Supreme Court Act 1935 (SA) s29, s31, referred to.

Plenty & Plenty v Seventh-Day Adventists Church of Port Pirie [2003] SASC 68; Popovic & Ors v Tanasijevic & Ors (No 5) [2000] SASC 87; Millar & Ors v Houghton Table Tennis & Sports Club Inc [2003] SASC 1; Pettit v South Australian Harness Racing Club Inc & Ors [2006] SASC 306; Ethell v Whalan & Ors [1971] 1 NSWLR 416; Hornby v Narrandera Ex-Serviceman’s Club Ltd [2001] NSWSC 235; Mees v Roads Corporation [2003] FCA 410; Australian Competition and Consumer Commission v Chen [2003] FCA 897; Tobacco Institute of Australia Ltd v Australian Federation of Insurance Organisations Inc (No 2) [1993] FCA 83, (1993) 41 FCR 89; Goodwin v VVMC Club Australia (NSW Chapter) [2008] NSWSC 154; Donald Kenneth Paton v Lenah Valley Sub-Branch and Club of the Returned Services League of Australia Inc and Ors [1992] TASSC 9; Rose v Boxing NSW Inc & Anor [2007] NSWSC 20; Molinara v Perre Bros Lock 4 Pty Ltd [2014] SASCFC 115; Jones v Dunkel [1959] HCA 8; [1959] 101 CLR 298, considered.

RIDGWAY v SPORTING SHOOTERS' ASSOCIATION OF AUSTRALIA HUNTING & CONSERVATION BRANCH (SA) INC
[2015] SASC 7

Civil

NICHOLSON J.

Introduction

1. The plaintiff is a former member of the defendant, a South Australian shooting club incorporated under the Associations Incorporation Act 1985 (the Act) and operating under the umbrella of a national shooting association. At a meeting of the defendant’s governing Council, held on 20 March 2013, the defendant purported to expel the plaintiff from membership. The plaintiff’s purported expulsion was the culmination of an extended period of disharmony between him and the defendant, caused by his persistent pursuit of certain complaints relating to the conduct of the defendant or, more precisely, some of its members and office bearers.
2. In these proceedings the plaintiff seeks, inter alia, a declaration that his expulsion was null and void and an order that he be reinstated as a member. The plaintiff alleges that the defendant failed to afford him natural justice in the expulsion process, that it engaged in oppressive or unreasonable conduct within s61 of the Act and that the defendant’s decision to expel him was invalid on formal or technical grounds. The plaintiff also seeks an award of damages.

Background facts

3. The Sporting Shooters’ Association of Australia (SSAA or the National Association) is a national shooting organisation comprised of a number of branches, one in each state and territory of Australia. The South Australian branch of the SSAA is the Sporting Shooters’ Association of Australia (SA) Inc. (SSAA (SA) or the State Association).
4. In addition to its state and territory based branches, the National Association also comprises various affiliated clubs operating throughout Australia. The defendant, recently re-named the Sporting Shooters’ Association of Australia Conservation and Wildlife Management Branch (SA) Inc, is one such club. It is a volunteer-run association incorporated under the Act and provides, amongst other things, feral and pest animal culling services to government departments, private land-managers and non-government organisations throughout rural South Australia.
5. The defendant is autonomously governed and operated. However, membership of the National Association is a prerequisite to becoming a member of the defendant. There is no corresponding requirement to be a member of the State Association; state and territory branches such as the SSAA (SA) are merely extensions of the National Association and are comprised of delegates from the individual clubs within their territory.
6. The plaintiff became a member of the National Association on 8 September 2010 and shortly thereafter a member of the defendant. At the time of joining the defendant, the plaintiff was planning his impending retirement from employment as a critical care nurse. He joined the defendant with a view to rekindling an earlier interest in hunting. He was particularly interested in participating in the defendant’s feral animal culling program.
7. Before taking part in culling activities, new members are required to undertake certain training. The training is divided into a theoretical and a practical component. The practical component of the training comprises a marksmanship test during which the member is required to achieve a certain accuracy in shooting targets from a distance of 100 metres. The plaintiff became diverted from and did not undertake this aspect of the training prior to his expulsion.
8. The plaintiff successfully completed the theoretical training. This comprised a one-day Field Operatives Accreditation Course conducted by the defendant on Saturday 22 January 2011 (the Accreditation Course). The purpose of the Accreditation Course was to provide new members with some general training and theory in the safe use and handling of firearms in the field and other associated skills.
9. The plaintiff contends that he and other club members were subjected to offensive behaviour on two separate occasions by two members of the defendant, each of whom presented a training session during the Accreditation Course. The two incidents triggered a complaint[1] process that persisted for over two years.
10. In addition, the plaintiff pressed complaints in relation to the defendant’s handling of a failed motion put by him at the 2012 Annual General Meeting to amend the defendant’s Constitution.
11. Under the club rules, members apply to renew their membership annually. At a meeting on 13 November 2012, the Council of the defendant resolved to refuse the plaintiff’s membership renewal application for the 2012/2013 period. That decision was appealed by the plaintiff on a number of grounds, including that he had been denied natural justice.
12. The appeal was allowed at a meeting on 19 February 2013, when the Council withdrew its decision to refuse the membership renewal. However, at the same meeting, a resolution was passed that a special meeting be held to which the plaintiff was invited to attend with a view to providing submissions as to why he should not be expelled as a member (the show cause meeting). The show cause meeting was scheduled for and held on 20 March 2013.
13. Acting on advice, the plaintiff did not attend the show cause meeting but was represented by his solicitor. Representations, written and oral, were put on the plaintiff’s behalf. Nevertheless, a decision was made, conveyed to the plaintiff by way of a letter dated 12 April 2013, to terminate the plaintiff’s membership (the 12 April 2013 termination letter).
14. Most, although not quite all, of the interactions between the plaintiff and Council members were in writing. The manner in which the parties dealt with each other throughout and the nature of their “relationship” as it developed is central to important aspects of the plaintiff’s claim. As such, it is necessary to explore in some detail and chronologically, the primary written communications that passed between the two parties.

A chronological account of the parties’ interactions

15. In this section, unless otherwise indicated, the observations I make represent findings, including inferences I am prepared to draw, based on the documentary trail and the oral evidence.
16. There is a dispute on the oral evidence, to which I will return, over whether (as the defendant maintains but the plaintiff denies) the plaintiff first complained about the unsavoury incidents at the Accreditation Course by telephone the very next day, Sunday 23 January 2011.
17. In any event, the plaintiff first complained, in writing, to the defendant’s then President, Mr Chris Green, in an email dated Wednesday, 26 January 2011; some four days after the Accreditation Course. The plaintiff asserted that he and other members had been “subjected to unsolicited remarks and displays of a sexist, sexual and possible racist nature”. Mr Green in a return email, on Thursday, 27 January 2011, advised the plaintiff to outline any concerns he had, in writing, to the defendant’s then Secretary, Mr Grant Lomman, so that the defendant’s “committee” could consider them.
18. The plaintiff thereupon wrote a letter to Mr Lomman, dated 1 February 2011 (but attached to an email of 4 February 2011) describing in some detail his concerns. I will refer to this letter as the 1 February 2011 initial concerns letter. The two incidents were described in the following terms:
    • (a) During the Map Reading/Navigation session by Kym,[2] instruction was given on using compass edge gradations to calculate distances within a 1:50,000 map square, by first measuring across the compass horizontal gradations, then measuring up the compass vertical gradations. Following this I heard Kym say as a memory aid for this ‘It’s like getting a girlfriend, first you have to get across her, before you can get up her’, as he thrust his middle finger upwards.

In the context of Kym’s instruction, I interpreted his gesture as the insertion of the male finger or penis into the female vagina.

(b) During the Bushcraft/Field communication session by Gil,[3] instruction was given on the need for accurate and relevant radio communication between H&C[4] members in the field. This was supported by an Irish joke displayed in writing on the overhead computer screen, and read out by Gil, relating to two Irish friends, one being tricked by the other with ingenious dialogue, into ‘shagging’ his two 19 year old twin daughters.”

19. The plaintiff proceeded to outline, in substantial detail, the 20 or so separate concerns he had as a result of the two incidents. They included, inter alia, the degrading depiction of women in the teaching techniques of the two presenters, the potential legal ramifications flowing from such conduct if an antidiscrimination complaint were to be made, that the conduct may be indicative of a culture of discrimination, sexism and bullying within the defendant club and whether one of the presenters, who was Vice-President, was fit to hold that office. The plaintiff’s final two concerns were:

That in accordance with the H&C Constitution, an opportunity could be created for 3 Council of Management members or 20% of Ordinary/Life members to call a Special Meeting for a vote of no confidence in the Vice President, causing H&C further disruption and waste of human resources.
That in accordance with H&C Constitution there appears a mandatory requirement for the H&C Council of Management to determine if the behaviour in (a) and (b) above is conduct unbecoming and prejudicial to the interests of the H&C, thus creating the potential for expulsion of a member(s). Again this could likely cause the H&C further distress, disruption and waste of human resources.

20. In addition to canvassing his 20 or so concerns, the plaintiff sought a number of outcomes from the defendant, including that:

(a) the conduct complained of cease and that the Irish joke used by the presenter be removed from the defendant’s computer file;

(b) all of the defendant’s members that were present at the course on 22 January 2011 be sent an apology with respect to the conduct;[5]

(c) the defendant initiate anti-discrimination, sexual harassment and bullying awareness programs and develop written policy and conduct guidelines for its members;

(d) in future, members be provided with the opportunity to provide written evaluation of the defendant’s activities that they attend and that any evaluations be monitored by the defendant; and

(e) the plaintiff not be victimised for having brought his concerns and requested outcomes to the attention of the defendant.

21. The plaintiff expressed a view that the two incidents complained of “are a form of bullying”. He proceeded to expatiate on bullying more generally.

Bullying is designed to disempower individuals or groups, or create an unpleasant or hostile environment. Persons bullied can become anxious, angry or have difficulty concentrating on tasks at hand potentially leading to safety risks, for example during H&C activities involving physical activity, navigation or the handling of firearms. In a potential worst case scenario, an H&C member remaining bullied could develop mental instability or loss of self control, and use a loaded firearm as a means of defence or confrontation against a perpetrator.

Much later, as will be seen, this description by the plaintiff of a “worst case scenario” was regarded by some as threatening behaviour by the plaintiff himself. This assumed significance for the decision, ultimately, to expel the plaintiff.

22. The plaintiff was entitled to complain about the alleged behaviour. Many would say he was justified in doing so. However, as the manner and persistence of the plaintiff’s complaints unfolded, it became apparent that this was not going to end well, in a practical sense, for either party.
23. By an email of 20 February 2011, Mr Green advised the plaintiff that his letter of concerns had been passed on to the defendant’s Public Officer, Mr Shane Fantinel. Mr Green also advised that the club had recently adopted a Member Protection Policy (MPP)[6] a copy of which was attached to the correspondence, and that Mr Fantinel had agreed to take up the role of Member Protection Information Officer (MPIO). Mr Fantinel would be making contact with the plaintiff in the near future to discuss his concerns.
24. Mr Fantinel contacted the plaintiff by letter dated 21 February 2011. He said he had been provided with a copy of the 1 February initial concerns letter and he “introduced” himself to the plaintiff by providing some detail about his personal background, his family life, occupation and religious beliefs. Plainly, Mr Fantinel wished to assure the plaintiff that he was an appropriate person to deal with the concerns that had been raised and that he would endeavour to do so in a professional and sensitive manner. Mr Fantinel concluded his letter as follows:

Jon, thank you for your letter. Reading through its contents indicated to me that you were clearly moved by this experience. I hope you will find my work with you rewarding and positive. Please feel assured that H&C (SA) values your membership. As your time with the club spans out over many years, you will meet some wonderful people and capture many fond memories. It would have been better if your first glance was not as it was, but I will work with you and the other members to look into this matter, indeed endeavour to look for ways to improve things for the future.

25. After this initial contact, the plaintiff and Mr Fantinel engaged in a run of correspondence related to the plaintiff’s concerns. I say “related to” because Mr Fantinel was never permitted to deal with their substance. Before he would permit that to occur, the plaintiff insisted that Mr Fantinel should provide further information as to his role as the MPIO (including whether he was trained appropriately to deal with the plaintiff’s concerns regarding the Accreditation Course) and sought assurances that the MPP would be applied throughout the investigation process.
26. It soon became apparent that the plaintiff was a person obsessed with process and one for whom Henry Maine’s famous aphorism (paraphrased) that early English substantive law had the appearance of being secreted in the interstices of procedure,[7] would resonate particularly loudly.
27. From the beginning, the plaintiff was exercised by a belief that his allegations had to be dealt with precisely in accordance with the requirements of the MPP. This lead to an early and diverting difficulty. The plaintiff ascertained that the MPP (in By Law No 5) only refers to “allegations” and “complaints” with no mention of “concerns”. The plaintiff became troubled that what he referred to as “concerns”, in the 1 February 2011 initial concerns letter, might not be able to be dealt with by Mr Fantinel under the MPP and that, as a consequence, he might not be afforded natural justice. He raised this with Mr Fantinel in an email of 27 February 2011. He followed up with an email of 3 March 2011 containing the following discombobulation:

Sorry, but my Question 4 has not been answered for me. I am uneasy about the wording of my letter of concern 21 [sic][8] February 2011 not matching the wording of Procedures Part C and C1, C2, C3 and C4. Particularly the word ‘complaint’, and how this could affect natural justice being applied to either myself, or to Kym and Gil, as I was directed by the H&C to put my concerns in writing, not a complaint in writing, as specified in Procedures Part C. What I thought I did was submit 2 allegations, 4 major concerns and 16 sub concerns.

Let me put Question 4 another way – in my letter of concern 21 [sic] February 2011, page 1, is my term ‘concerns’ regarded the same as the term ‘complaint’ or ‘informal complaint’, as set out in the Member Protection Policy Part A, Clause 8 Complaints Procedures, 8.1 Complaints, and is it now considered that I have submitted 2 allegations, 4 major complaints/informal complaints and 16 sub complaints/informal complaints?

By now, all Mr Fantinel wanted to try to achieve (apart from, I apprehend, just going hunting) was a mutually satisfactory accommodation concerning the two statements made during the Accreditation Course which had offended the plaintiff.[9]

28. Mr Fantinel attempted, unsuccessfully, to contact the plaintiff by telephone on the evening of 3 March 2011 and left a voice message on his answering machine. He followed that voice message with a lengthy email to the plaintiff later that night by which he attempted to address the plaintiff’s procedural queries, including whether he was qualified to be the MPIO. Mr Fantinel was keen to get past any technical issues and to deal with the plaintiff’s concerns.

In conclusion, as Public Officer and MPIO I have been entrusted with the duty of working through the matters raised in your letter to SSAA Hunting and Conservation Branch Inc (SA branch) dated 1st February 2011. I trust that information supplied above has resolved questions you have raised. Jon, in all sincerity and reality, I do need to carry out my duty and move forward with this matter. Reading through, quoting and debating specific points within the Members Protection Policy may be all well and good but the [sic] your letter relates to a specific matter that occurred within an activity held by SSAA Hunting and Conservation Inc (SA branch) on 22nd January 2011. This is where my focus and energies will be directed. Finally, I trust I will no longer be required to espouse at length details of my leadership skills and capability of performing the duty of Public Officer and MPIO.

29. Soon after sending this email, Mr Fantinel left another message on the plaintiff’s answering machine seeking further direction as to how the plaintiff wanted the complaint process to proceed. On 22 March 2011, Mr Fantinel emailed the plaintiff – “I am hoping that our last email exchange cleared the ‘air’ (so to speak) about the MPIO and the Member Protection Policy”. In this email he also advised that he had commenced his investigation process by leaving messages with the two presenters involved.
30. The plaintiff replied by email dated 25 March 2011. The email exchange had not “cleared the air” and the plaintiff remained “confused and uneasy” about the role of the MPIO, the MPP and the process being conducted. The plaintiff restated his position that he “wished to obtain reasonable agreement and response to my 20 or so concerns and 7 outcomes sought”.[10] He also asked to be advised of Mr Fantinel’s findings once he had completed his investigation.
31. There was no further contact between the plaintiff and Mr Fantinel until, by an email dated 11 June 2011, the plaintiff sought a progress report on the investigation, the response given by the two presenters to his various complaints and outcomes sought, and details of when and where discussion of his concerns would occur. On 19 June 2011, Mr Fantinel emailed an ambiguous response saying he had passed the information on to the club president. The plaintiff then pursued Mr Green for a substantive response.
32. In a phone message left with the plaintiff on 22 June 2011, Mr Green informed the plaintiff that Mr Fantinel had given up the position of the MPIO and that the defendant was in the process of trying to find a replacement for the role. Mr Green provided his mobile number and invited the plaintiff to return his call so that a meeting could be set up between the two.
33. The plaintiff elected to respond to Mr Green’s phone message again by written communication; an email dated 23 June 2011. As well as requesting some potential dates and times for a meeting, the plaintiff outlined his concern at the lack of contact by Mr Fantinel since the 22 March 2011 email correspondence.

This 13 week period of silence by [Mr Fantinel] and the H&C toward me over an important role in a discrimination/harassment matter is unacceptable. Including prior difficulties I have experienced with [Mr Fantinel] in his role as MPIO, my overall experience has been negative and caused me some anxiety. I have not received the information, moral support and courtesy I have needed. As a result I have also become concerned about the process that has dealt with my allegations of discrimination and harassment, as I am about repercussions against me for having made such allegations, despite being previously directed to do so by the H&C Committee.

The plaintiff again requested information as to the status and findings of the investigation process, as well as the attitude of the two members involved.

34. I interpolate here some observations concerning the plaintiff’s reference to “despite being previously directed to do so by the H&C Committee”. This notion of “being directed” features in the plaintiff’s evidence as well as in the correspondence. The plaintiff was never “directed” to do anything in the sense of being instructed to do something whether or not he wished to.
35. In his first email to Mr Green of 26 January 2011, the plaintiff identified that he had concerns but gave no detail. He concluded with:

Please advise me of the appropriate way I can have my concerns heard and resolved. Thank you.

Mr Green responded to this request (email, 27 January 2011) with:

In the first instance please put your concerns in writing for consideration by the committee. Correspondence should be directed to...

The plaintiff replied (email, 30 January 2011), saying inter alia:

Dear Chris
Thank you for your reply.
I will put my concerns in writing to the secretary for consideration by the committee as advised (my emphasis).

36. However, thereafter the plaintiff refers to having been “directed” by the defendant committee to pursue his (initial) concerns. The impression I gained throughout the plaintiff’s evidence and upon reading the correspondence is that the plaintiff believed that once he commenced the complaint process, as “directed” so to do, it was inevitable that it would develop as it did. It was unfair of the defendant to form negative attitudes towards the plaintiff for pursuing a legitimate complaint in the way “directed”. It is as if the plaintiff moved to the view that it was the defendant who started this ball rolling and that the plaintiff’s behaviour thereafter was an unavoidable consequence.
37. I return to the plaintiff’s email to Mr Green of 23 June 2011. The defendant’s secretary, Mr Lomman, responded by an email of 21 July 2011. Mr Lomman apologised for the delay and suggested a meeting on 26 July 2011. He reminded the plaintiff that, as the defendant’s committee was comprised of volunteers, its processes often took longer than desirable.
38. By email of 24 July 2011, the plaintiff responded to Mr Lomman’s email in his censorious manner.

Dear Grant
From your email of 21 July 2011, I acknowledge your apology, the volunteer nature of H&C Committee rules, delay due to other commitments, and meeting proposed for Tuesday 26 July 2011.
The message I interpreted from your email was:

• That undesirable outcomes of H&C processes, by volunteer H&C Committee members, is expected or condoned by the H&C.
• That my discrimination and harassment issues are not a priority commitment for the H&C.
• That my suggestion the SSAA (SA) Branch Member Protection Information Officer (MPIO) become involved was discounted.
• That I will not be receiving the information I have repeatedly requested to enable me to adequately prepare for our meeting 26 July 2011.

39. The plaintiff also stated that the delayed response by the defendant and its failure to provide the information he had requested meant that he felt he was being ignored or avoided. This had caused him to review the MPP a further time.

During this review I identified 20 potential breaches of the MPP by Kim [sic] or Gil, [the two Accreditation Course presenters] in relation to (a) and (b) 22 January 2011, [being the two vignettes originally complained about] and 4 potential breaches of the MPP by the H&C, in relation to organisational responsibilities of the H&C, up to 22 January 2011. Your email 21 July 2011 arrived as I was finalising these complaints, in accordance with the MPP complaints procedure. Because I have now become aware of potential MPP non-compliance within the administration of the H&C, which both you and Chris G represent, I am no longer confident our meeting scheduled for 26 July 2011 will be transparent, fair or result in positive outcomes.
I suggest our meeting 26 July 2011, be postponed and restructured because:

• The discussion and resolution of 24 potential breaches of the MPP I recently identified, may be beyond the ability or scope of this meeting, its participants or the H&C.
• I perceive that yours and Chris G’s involvement in this meeting, as structured, may lead to a conflict of interest in relation to potential MPP non-compliance relating to organisational responsibilities of the H&C.
• I will only attend meetings related to MPP matters with you or Chris G if a Member Protection Information Officer (MPIO) is involved, and I am provided necessary information in order to adequately prepare for those meetings.
• I will be unable to attend any meetings in Adelaide 21 – 31 July 2011 as I am holidaying on Kangaroo Island.

Given the above, I believe the proper course of action is for me to proceed with lodging formal complaints in accordance with the MPP complaints procedure, with consideration to using mediation if appropriate. Please email me by Monday 8 August 2011 with any reason(s) why this course of action should not be taken.

40. I am satisfied that the defendant’s representatives, to this point, had demonstrated goodwill and a keenness to meet face to face to discuss and resolve the plaintiff’s primary concerns arising out of the Accreditation Course. Any rational person would have seen this as a good first move. But it was never going to happen. It is true that there had been delays in responding to the plaintiff’s communications – in my view, quite understandably so, given the volunteer nature of the club, the primary interests of the members (hunting and shooting not policy and procedures) the unattractive nature of the role of the MPIO no doubt making it a difficult role to fill and the tone and content of the plaintiff’s communications. In any event, there was nothing to stop the plaintiff lifting up the phone or sending an email in order to arrange a meeting. The plaintiff, in my view, was never interested in a face to face discussion. He needed to maintain total control and, in order to do so, everything had to be meticulously recorded in writing which allowed him time to carefully think through and craft his responses.
41. At this, sliding doors, moment the defendant might not have been criticised had it responded along the lines of “thank you for drawing these matters to our attention, the Council of the club will give consideration to your concerns but no further correspondence will be entered into.” One can only ponder upon how the matter would have thereupon developed. But alas this was not to be.
42. On 9 August 2011, the plaintiff wrote an eight page letter to the defendant’s parent body, the State Association. This letter included a chronology of his complaint process with the defendant, described the two incidents (originally) complained of and outlined 12 formal complaints that the plaintiff alleged constituted breaches of the MPP by the defendant and its two presenter members. The plaintiff again sought the outcomes previously expressed in the 1 February 2011 initial concerns letter.
43. By letter of 6 September 2011, the State Association acknowledged receipt of the plaintiff’s 12 formal complaints and advised that the matter would be taken up with the defendant as a matter of urgency.
44. On 24 October 2011, the plaintiff renewed his annual membership with the defendant by completing the requisite membership renewal form and arranging payment of the $50 annual fee.
45. Between October 2011 and August 2012 there was little, if any, interaction between the parties concerning the plaintiff’s complaints or otherwise. However, in August 2012, a parallel dispute emerged when the plaintiff submitted to the defendant’s Secretary a proposed motion for the upcoming Annual General Meeting. The motion sought to amend the defendant’s constitution such that:

members may inspect the minutes of Branch Council meetings and resolutions, and Branch financial statements, by written request to the Secretary stating the purpose of inspection, and that inspection be provided within 4 weeks.

46. By email dated 27 August 2012, the newly elected President of the defendant, Mr George Sobolewski, asked the plaintiff to provide a rationale for his proposed constitutional amendment. Mr Sobolewski copied the email correspondence to 18 other members of the defendant.
47. The plaintiff replied to Mr Sobolewski with an email, dated 3 September 2012, outlining seven concerns arising out of Mr Sobolewski’s handling of the proposed motion. Of particular concern was the dissemination of the email correspondence to the 18 members. The plaintiff perceived this to be a “marshalling of the troops against the enemy”. This is a surprising conclusion to have jumped to given the terms of Mr Sobolewski’s email (see below), the fact that this was the first time Mr Sobolewski had communicated with the plaintiff and the fact that there would appear to have been no communications of any substance between the plaintiff and the defendant or any of its members for some ten months or so.
48. The plaintiff considered Mr Sobolewski to have breached his rights to privacy and confidentiality. In addition to raising his seven concerns, the plaintiff also made 10 requests for further information. The information sought related to the basis for Mr Sobolewski’s request for a rationale for the proposed motion and the basis for his copying the correspondence to other members.
49. Of significance to this litigation, at least with respect to any remedy that might be ordered, is the attitude ultimately adopted by a number of the defendant’s members towards the plaintiff and the reasons for that attitude. It has been necessary, to this point, to demonstrate the flavour of the correspondence between the parties. I need to do so again. In what follows, I set out the entirety of Mr Sobolewski’s email (formal parts omitted) and just one (by way of example) of the plaintiff’s seven tendentiously expressed concerns and all ten of the plaintiff’s requests for information.
50. Mr Sobolewski wrote:

Hello Jon. I write in regard to your proposed motion for AGM. [The terms of the proposed motion are set out.]
Could you please provide a rationale for proposing such a change to SSAA H&C Branch constitution?

The plaintiff wrote, inter alia:

Dear George
I respond to your email, Monday 27 August 2012, and apologise in advance for the volume of detail, but have little choice:
1. I will forward a rationale for my proposal to change the SSAA H&C SA Branch Constitution, after your consideration of my concerns in 2.(a)-(h) below, and adequate response to my questions in 3.(a)-(j) below. I request that you please respond to my questions by Tuesday 11 September 2012, and provide a copy to the H&C Secretary prior to the 7pm H&C Council meeting that same day.
2. My concerns related to your actions requesting a rationale and sending a copy of my notice of motion to the 18 H&C members/persons, without explanation or my consent, are:
(a). ...
(b). That the requirement for me to provide a rationale related to my notice of motion, without explanation or option, appears to be outside of Constitutional guidelines. My notice of motion to the Secretary, 20 August 2012, was clearly worded and structured, not ambiguous or open to misinterpretation, presented in a valid, relevant and respectful manner, could not in any way be able to be interpreted as offensive, controversial or revolutionary, and was submitted in response to the invitation of the H&C Council. Further, the notice of AGM sent to members by H&C Council in August 2012 did not request members provide any such rationale to accompany their notice or motions, and the Constitution notice of motions section also does not require members to provide any such rationale either. Your email 27 August 2012 did not state if it was compulsory or optional for me to provide a rationale, and should have. In these circumstances, I believe your request of 27 August 2012, may have no Constitutional basis and that you may have no legitimate powers as President to make such a request to a member.
(c). ...
(d). ...
(e). ...
(f). ...
(g). ...
(h). ...
3. Based on my above concerns, related to the integrity of the AGM and my notice of motion potentially being comprised or prejudiced, Monday 27 August 2012 [sic], I request you please forward me a response to the following questions by Tuesday 11 September 2012, and provide a copy to the H&C Secretary prior to the 7pm H&C Council meeting on that same date.
(a). The specific reasons(s) I am required to provide a rationale to my notice of motion, without explanation or option, and what is the intended purpose of use of my rationale once received by the H&C.
(b). The date the H&C Council approved or authorised you to request that I provide a rationale to my notice of motion, and confirmation this Council decision was minuted.
(c). The H&C constitutional and by-law provisions that authorise the H&C President to request a member provide a rationale to a notice of motion for an AGM, when this is not stipulated in the AGM notice to members. If no provisions exist could the relevant extract from N E Renton ‘Guide for Meetings and Organisations’, be provided.
(d). The specific reason(s) you sent copy of my proposed notice of motion only to the 18 persons named and addressed in your email, Monday 27 August 2012, and not to the whole H&C membership.
(e). The date the H&C Council approved or authorised you to send copy of my notice of motion to the 18 persons named and addressed in your email 27 August 2012, and confirmation this Council decision was minuted.
(f). The H&C constitutional and by-law provisions that authorise the H&C President to send copy of members notice of motions for an AGM to the 18 persons named and addressed in your email, before close of submissions 28 August 2012, and before the AGM 19 September 2012. If no provisions exist could the relevant extract from N E Renton ‘Guide for Meetings and Organisations’, be provided.
(g). The specific skill(s), experience or knowledge the H&C Council required [sic] to manage my notice of motion for the H&C AGM, 19 September 2012, that necessitated 8 [sic] or more members/persons becoming additionally involved regarding my motion proposed.
(h). The membership status and position held of all 18 persons named in your 27 August 2012 email address list, and their designated role(s) specific to H&C members notice of motions submitted to the Secretary, closing 28 August 2012, the AGM order of business item ‘Motions on Notice’, 19 September 2012, and the rationale requested in your email 27 August 2012.
(i). The privacy principles or requirements that apply to my personal information held and used by the H&C SA Branch.
(j). The confidentiality principles or requirements that apply to H&C members notice of motions held by the Secretary before close of submissions 28 August 2012, and between this date and date of the AGM, 19 September 2012.
Thank you for your assistance, and I look forward to your response.
Yours sincerely
Jon Ridgway

51. It is to be noted that, between Mr Sobolewski’s short email of request and the plaintiff’s long email in reply, Mr Sobolewski provided the following information to the plaintiff (email dated 30 August 2012).

Hello Jon.
Phil Johns is correct in stating Council minutes are available for perusal by all members. This has always been a given in my experience of the club.
All members are also invited, (see notices in previous newsletters) to attend Council meetings.
These are held in the Country Women’s Association Building Dequetteville Tce Kent Town.
The next meeting will be on Tuesday September 11th at 7 pm.
We do not have a written policy, on website, setting out a process for members to inspect minutes as such a policy has never been required before.

52. On 5 September 2012, Mr Sobolewski responded to the plaintiff’s long email. Mr Sobolewski addressed each of the 17 issues raised seriatim.
53. It would be burdensome to set out in full Mr Sobolewski’s four page (single spaced) typed response. However, in my view, Mr Sobolewski clearly, courteously and in detail answered each of the plaintiff’s concerns. I set out two representative examples.

(a) The “18 selected H&C members” to whom your proposal was forwarded, are elected members of Council of Management (COM) and co-opted members who attend meetings and contribute to the governance of SSAA-H&C.
These co-opted members not only perform various tasks for the benefit of the membership but also provide a pool of informed and committed members from which the membership can choose the following year’s elected COM members. Again, these members’ status would not have been a mystery to you had you availed yourself of the opportunity to attend COM.
Also, I can find no record of your having attended a quarterly meeting, Range Day, or any other activity during your membership.
There is no record of you having passed the Marksmanship part of the Accreditation Course.
Thus, you are not eligible, according to data at hand, to participate in any firearms related activities.
If my records are incomplete could you advise of any omission.
The question arises whether you are a bona fide member who shares the aims and objectives of SSAA-H&C, given the above. (Section 3 H&C Constitution)
(d) Your letter states in (d) (still your numbering) “That my notice of motion submitted to the H&C Secretary has been subjected to a form of preliminary scrutiny and assessment by a select group of 18 H&C members/persons, and the rest of the membership excluded, some 23 days prior to the H&C Annual General Meeting (AGM), 19 September 2012.”
H&C does not have a “select group of 18 H&C members/persons” who somehow exclude the rest of the membership.
Had you submitted your notice of motion before the printer’s deadline your proposal would have been disseminated to all members via the pages of H&C “News”.
However, if you wish to print and fold to business envelope size 380 copies of your motion, and deliver same to my address, the putting the newsletters into envelopes team will send out your motion to all members.
Perhaps you might volunteer to join me and several other co-opted members in my shed and help the newsletter and your motion, go out.

54. I again pause this chronology of the communications, this time to interpolate that to this point (some two years after having joined the club) and apart from the one day Accreditation Course on 22 January 2011, the plaintiff had not engaged in any club activities.[11] The plaintiff provided some reasons for this during his evidence including his own health issues, his father’s illness and demise and other family problems. I do not accept this evidence as providing a complete explanation for his lack of involvement in any club activities, including obtaining the marksmanship accreditation, over that two year period. I am satisfied that the plaintiff had become almost entirely pre-occupied with the complaint process he had entered upon. In any event, the fact is that the defendant’s only experience of this new member to this point was as a querulous email correspondent. The plaintiff’s lack of involvement underscores the despairing tone of Mr Sobolewski’s conclusion to his 5 September 2012 email:

I repeat the invitation for you to attend the September 11 CoM [Council of Management] and meet some of your fellow members.
Sincerely and patiently, George Sobolewski

55. One aspect of Mr Sobolewski’s response, of some direct relevance, was his calling into question the plaintiff’s bona fides as a member of the defendant. In addition, this particular exchange also underscores how unreasonably the plaintiff was behaving. Mr Sobolewski’s careful and, if I may say, persuasive response had no effect on the plaintiff’s dogmatic approach.
56. The plaintiff responded by letter, dated 15 October 2012, to the new secretary of the defendant, Mr Kym McKenney. The opening paragraph is portentous. There was another dispute and one that would have to be resolved according to the plaintiff’s bizarre terms of engagement.

Dear Secretary
I submitted a notice of motion in writing to the H&C Secretary 20 August 2012, and there followed an exchange of emails between myself and the H&C President, particularly the President’s email of 27 August 2012 and email attached letter 5 September 2012, which are now the basis of a dispute. Could Council please consider the following 7 items at its next meeting, and please respond to my requests in each, in order for me to clarify issues relevant to this dispute between myself and the President, and for me to then make adequate and informed reply to the President’s emails.

Again, to demonstrate the flavour of the correspondence, I set out just one of the seven items (demands).

2. My notice of motion, 20 August 2012, was addressed to the H&C Secretary and therefore was inward correspondence of Council. In regard to my notice of motion could Council please advise me:

(a) The date(s) Council met or convened to discuss my letter of 20 August 2012, and approve or authorise the President to co-opt 8 [sic] members, per his email of 27 August 2012.
(b) Of the 8 members co-opted, did Council approve or authorise their co-option as a sub-committee of 8, or as 8 individual members, and if such approval/authorisation was not made by Council, could I please be advised if the 8 members co-opted were as a sub-committee or as individuals.
(c) Did Council approve or authorise the terms of reference, power, duties, deadlines and reporting requirements for the 8 co-opted members, and could I please be advised the detail of the terms of reference, powers, duties, deadlines and reporting requirements for the 8 co-opted members specific to my notice of motion.
(d) Were Council proceedings in (a) – (c) above minuted.
(e) If Council did not approve or authorise the President to co-opt the 8 members, by meeting/convening or vote, what powers did the President have to co-opt the 8 members without Council approval or authorisation.

57. The letter contained numerous other requests for information, so that the plaintiff could “clarify issues relevant to [the] dispute between myself and the President, and for me to then make adequate and informed reply to the President’s emails”.
58. The plaintiff’s membership renewal for the 2012/2013 period fell due on 31 October 2012. As he had done previously, the plaintiff sent a completed membership renewal form and cheque in the amount of $50 to the defendant on 17 October 2012. On 18 October 2012, Mr McKenney responded to the plaintiff’s letter of 15 October regarding the handling of his motion. The response was brief, stating that the plaintiff’s concerns “have been passed on to the relevant members”, and that this “concludes the matter from the Club’s point of view.”
59. On 30 October 2012, the plaintiff wrote to Mr McKenney regarding his membership renewal application. The plaintiff was concerned that his cheque might not have reached the defendant, as it had not yet been presented and met. He advised Mr McKenney that he had made another payment of the $50 by way of electronic bank transfer and that he had sent copies of the signed renewal application and bank receipt to the defendant by overnight mail.
60. Around this time it would seem that the plaintiff took steps to re-agitate his initial complaints regarding the Accreditation Course with the defendant’s parent body, the State Association. The President of SSAA (SA) emailed Mr Sobolewski on 27 November 2012. The email referred to the plaintiff’s letter of complaint to the State Association, dated 9 August 2011, stated that it appeared that nothing had been done regarding the various complaints and requested advice as to the action Mr Sobolewski intended to take.
61. Meanwhile, it would seem that the, to this point, unfailingly courteous and patient Mr Sobolewski had had enough. In a letter, dated 30 November 2012, Mr Sobolewski advised the plaintiff that his membership renewal application had been denied by the defendant’s Council at a meeting on 13 November 2012. The letter which again raised the issue of bona fides was in the following terms:

Mr Ridgway

I am returning all moneys you have submitted in payment of renewal of your membership in SSAA-Hunting & Conservation Branch Inc. as you have provided no evidence of having joined in good faith and in support of the Aims and Objectives of this association as set out in our constitution and as a consequence your renewal application was denied by Council at its meeting of 13/11/12.

Sincerely

George Sobolewski

President SSAA-Hunting & Conservation Branch Inc 2012-13

62. The plaintiff sought to appeal the defendant’s decision to deny his membership renewal application. The plaintiff’s grounds of appeal, as outlined in his letter of 11 January 2013 to Mr McKenney, were extensive and detailed. However, in essence the plaintiff complained that he had not received natural justice and that the decision was excessively punitive and not proportionate to the alleged offence of not providing evidence of having joined the defendant in good faith and in support of the club’s aims and objectives.
63. Additional grounds of appeal were submitted to the defendant by the plaintiff in a letter dated 31 January 2013. Mr McKenney acknowledged receipt of the plaintiff’s further grounds on 13 February 2013 and advised him that the further material would be tabled at the next Council meeting.
64. The defendant’s Council next met on 19 February 2013. By letter dated 21 February 2013, Mr McKenney wrote to the plaintiff advising him that the following motion had been passed by the Council:

That this Council rescinds the decision of 13th November 2012 in relation to the rejection of the application for renewal of membership by Mr. Ridgway.

However, by letter dated 28 February, Mr McKenney advised the plaintiff of a second motion passed by the Council at the 19 February 2013 meeting. That motion was as follows:

That a special meeting of H&C Council be called to allow Mr. Ridgway to explain why he should not be expelled, under sec. 29 of our constitution, as a result of his conduct in relation to this Branch.

The letter went on to advise that the proposed “show cause” meeting was scheduled for 20 March 2013.

65. The plaintiff began communicating with the defendant through his lawyer, Mr Parr. In a letter, dated 4 March 2013, Mr Parr sought from the defendant full particulars of the conduct of the plaintiff that was alleged to constitute valid grounds for his expulsion. Mr Parr requested that this information be provided within no less than 14 days of the 20 March 2013 meeting so as to allow the plaintiff to be informed of the case he had to answer. Mr Parr also sought the defendant’s permission to attend the meeting with the plaintiff.
66. The defendant responded to Mr Parr’s request in a letter jointly authorised by Mr McKenney and Mr Sobolewski, dated 6 March 2013. The letter outlined various complaints, including the following:
    • The manner in which the plaintiff had pursued his initial complaints regarding the incidents at the Accreditation Course on 22 January 2011.
    • The nature of the complaints themselves, and the fact that no one else had made such complaints against the defendant regarding the content of the Accreditation Course.
    • The fact that the plaintiff had persisted with his complaints even after the material complained of had been removed from the Course and the presenters had been cautioned.
    • The fact that the plaintiff had previously rejected the offer made by Mr Fantinel to mediate a solution to his complaints.
    • The fact that the plaintiff had failed to complete the marksmanship component of his accreditation training, thereby raising doubts as to his bona fides as a member.

The letter also advised that Mr Parr was welcome to attend the March meeting.

67. Mr Sobolewski emailed Mr Parr on 14 March 2013 with a request that the plaintiff come to the March meeting prepared to present his firearms licence and current hunting permit for inspection. Mr Sobolewski gave evidence at trial that in the week leading up to the show cause meeting he lodged a report at the Unley police station in relation to the plaintiff.[12] He said he had been advised to make the report by Mr Handyside, President of SSAA SA, who was responding to advice given by a psychologist, Dr Doueal. The report was made on the basis of an implied threat perceived to have been made by the plaintiff in his 1 February 2011 initial concerns letter. As a result of the report made by Mr Sobolewski, two police officers attended at the plaintiff’s premises on 16 March 2013 and seized his firearms and firearms license.
68. In a letter dated 19 March 2013, Mr Parr provided to the defendant written submissions as to why the plaintiff should not be expelled. Those submissions responded directly to the complaints raised by the defendant in its 6 March 2013 letter.
69. The show cause meeting was held on the evening of 20 March 2013. The plaintiff did not attend but Mr Parr attended on his behalf. Also present at the meeting were Mr Sobolewski (Council member and President), Mr Hartwig (Council member and Vice-President), Mr Craigie (Council member and Treasurer), Mr McKenney (Council member and Secretary), Mr Handyside (President of SSAA SA), Mr Fantinel (ordinary member and MPIO),[13] Mr Wadlow (solicitor acting on behalf of the defendant), Mr Jennings (Council member), Mr Rowe (Council member), Mr Judd (Council member), Ms Wilkie (Council member), Mr Ayliffe, (Council member), Mr Henley (Council member), Mr Herbst (Council member) and Mr Drummond (ordinary member).
70. As indicated, four persons who were not members of council attended the show cause meeting: Mr Wadlow, who attended to provide legal advice, Mr Handyside, the president of the State Association, and two club members, Mr Fantinel and Mr Drummond.
71. Mr Parr, after being introduced by Mr Sobolewski, made further, oral, submissions as to why the plaintiff should not be expelled. That part of the meeting lasted for approximately 30 minutes and was audio recorded.[14] Mr Parr then left the meeting. A general discussion as to whether or not the plaintiff should be expelled and which was not recorded followed. One of the disputes between the parties is as to the exact nature of what took place during, and what resulted from, this discussion for which no contemporaneous minutes or recording was made. I will return to this issue.
72. On 12 April 2013, Mr Sobolewski wrote to the plaintiff, informing him of the defendant’s decision to terminate his membership (the 12 April 2013 termination letter). Mr Sobolewski advised that, in addition to reasons previously provided, a further reason for the decision was the (perceived) threat made by the plaintiff in his initial letter of concern. The details of this alleged threat were set out in the 12 April 2013 termination letter, which was in the following terms (emphasis in the original).

To Mr J. Ridgway per Mr Greg Parr of Scales and Partners lawyers

We have considered your appeal against termination of membership of SSAA H&C Branch Inc.

Due consideration has been given to the detailed submissions made by your solicitor.

We have also reviewed the correspondence you have addressed to this organisation.

Safety is the paramount concern of this Club.

In your letter of 1 February 2011, addressed to Grant Lomman, then Secretary, you mention in part 3 of page 2, “That (a) and (b) (allegedly sexist and sexual statements-my insertion: George Sobolewski) above are a form of bullying. Bullying is designed to disempower individuals or groups, or create an unpleasant or hostile environment. Persons bullied can become anxious, angry or have difficulty concentrating on tasks at hand potentially leading to safety risks, for example during H&C activities involving physical safety, navigation or the handling of firearms. In a potential worst-case scenario, an H&C member remaining bullied could develop mental instability or loss of self control, and use a loaded firearm as a means of defence or confrontation against a perpetrator.”

Threats of misusing firearms in order to combat alleged bullying and allegedly sexist comments are totally unacceptable.

Such express and implied threats put the members and guests of this Club at risk.

This Club has taken legal and medical advice and has consulted with our parent body.

This Branch has zero tolerance for any threats, express of implied, that a firearm could be used to resolve a grievance, real or imagined.

Given the above, as well as the additional reasons set out in previous correspondence, which, for the purpose of this letter we do not propose to repeat, we have by unanimous vote, under section 29 of our Constitution, decided to terminate your membership of SSAA H&C Branch Inc. as of 20 March 2013.

73. Mr Parr responded to the defendant’s letter of termination with a request for further information regarding the alleged threat made by the plaintiff. Specifically, Mr Parr sought details of the medical advice relied upon by the defendant in making the decision to expel the plaintiff.
74. The matter was raised at the defendant’s next Council meeting on 16 July 2013 which led to a further letter from Mr Sobolewski, of 17 July 2013, to Mr Parr regarding the reasons behind the membership termination. The letter disclosed that the decision to terminate was, in part, made following advice from the defendant’s parent body, SSAA (SA), and advice from Dr Doueal, who had also recommended that the report be made to SAPOL. The letter also touched on other aspects of the plaintiff’s conduct that had led to the Council’s unanimous decision to terminate his membership, including the “significant administrative burden” he had placed on the volunteer-run club, his failure to complete the requisite safety training and failure to demonstrate that he was a fit and proper person to be a member and hold a firearms licence.

The witnesses – oral evidence

75. The plaintiff gave evidence as did his solicitor, Mr Parr. The witnesses who gave evidence in the defendant’s case were the former President, Mr Chris Green, the person who took over as President and had the main carriage of the dealings with the plaintiff, Mr George Sobolewski, and three members (as at relevant times) of the Council, Mr Scott Jennings, Mr Peter Rowe and Mr Anthony Judd. I have no reason to believe that any of the witnesses were deliberately untruthful; I accept that all were honest in their attempts to recall events as best they could. Nevertheless, there are inconsistencies between some of the accounts with respect to specific issues.
76. By and large there was little interaction between the plaintiff and other members of the defendant other than the written communications. By and large the documentary trail tells the story. However, there are three areas of dispute with respect to which my findings in reliance on the oral evidence may be of significance. The most important of these arises from the fact that there is no documentary record of what occurred during the show cause meeting after Mr Parr left, and during its aftermath – no minutes, no documented resolution and no record of any communications (email or otherwise) between Council members. I will return to these three areas of dispute later in these reasons.
77. I should say something more about the plaintiff. I have only set out, to this point, representative samples from his side of the correspondence. However, when considered in its entirety it paints a picture of the plaintiff’s character and personality which was replicated in many respects by the nature, and manner of giving, of his oral evidence. The plaintiff was an honest witness and without guile. However, he presents as dogmatic and pharisaical. He lacked flexibility and insight with respect to his dealings with the various club members with whom he interacted (through his correspondence).

Mr Parr

78. I accept, without qualification, that Mr Parr gave reliable evidence. Mr Parr was engaged by the plaintiff about a month prior to the show cause meeting. He had the defendant’s letter of 6 March 2013 setting out its complaints about the plaintiff. Mr Parr said that on the day before the show cause meeting he received, from the plaintiff, a copy of his 1 February 2011 initial concerns letter. He also had a telephone conversation with Mr Sobolewski on the afternoon prior to the meeting. In that conversation Mr Sobolewski brought to his attention the issue of the alleged threat contained in the 1 February 2011 initial concerns letter. Mr Parr read the part of that letter said to constitute the “threat” but did not, himself, consider it to be threatening. When giving evidence, Mr Parr conceded that he had received sufficient information regarding the alleged threat and that he was not hindered or hampered in addressing that issue at the meeting.
79. Mr Parr attended the show cause meeting on the plaintiff’s behalf. He and another solicitor had advised the plaintiff not to attend given the fact of the, then ongoing, police investigation. During the meeting it was put to Mr Parr that safety was the most important thing for a gun club with which he agreed. Mr Parr was aware at the meeting that the issue of safety was in part related to the threat alleged to have been made by the plaintiff in his letter. Mr Parr said, in evidence, that he had agreed, at the meeting, that the plaintiff’s letter could be perceived as a threat. However, that was never what the plaintiff intended.
80. Mr Parr agreed that the show cause meeting was convivial, and that he was permitted to freely put the plaintiff’s position. Upon leaving the meeting he felt that his client had had a fair hearing.

The plaintiff

81. I am satisfied that the evidence given by the plaintiff, as summarized below, is essentially reliable. There is one further aspect of the plaintiff’s evidence, discussed later in these reasons, that I do not accept.
82. The plaintiff was 59 years of age at the time of trial. He retired in October 2010, having worked as a registered nurse for approximately 30 years in a number of hospitals, both public and private. He retired when his father contracted lung cancer and he thereafter assumed responsibility for arranging all of his father’s medical treatment and care.
83. He joined the National Association shortly prior to retirement so that he could become a member of the defendant and take part in its feral animal culling program. He saw joining the defendant as an opportunity for him to rekindle a boyhood interest in hunting.
84. Having completed the Accreditation Course day in January 2011, it was the plaintiff’s intention to complete the marksmanship component of the training. However, for various reasons, including the death of his father, his own ill health and other family issues, club activities were not a priority during his time as a member.[15] He still wanted to maintain his membership and was awaiting a medical clearance to allow him to participate in club activities.
85. Before receiving Mr Sobolewski’s letter, dated 30 November 2012, advising that his membership renewal application had been denied, the plaintiff was unaware that a refusal of his membership renewal application had been in contemplation. This was the first time his bona fides as a member had been questioned.
86. On 16 March 2013, two police officers attended at the plaintiff’s property and seized his firearms and licence. He was unsure why this had occurred.
87. The plaintiff said that he did not attend the show cause meeting on 20 March 2013 for two reasons. He was advised not to by the criminal lawyer he had engaged following the seizure of his firearms and one of the police officers had advised him not to contact the defendant.
88. The plaintiff said he did not intend to threaten anyone by the 1 February 2011 initial concerns letter. The plaintiff did not understand how or accept, that the words used in that letter could be construed as a threat by him. He only wished to bring about a change in the manner that the Accreditation Course was run. Prior to receiving the 12 April 2013 termination letter, the plaintiff had not been spoken to by anyone on behalf of the defendant regarding the alleged threat. Nor had he been informed that the defendant had received medical and legal advice or had consulted with its parent body about the plaintiff.
89. During cross-examination the plaintiff said he had not given any thought to the prospect that none of the members might wish to associate with him if he were to be reinstated. The plaintiff was disarmingly frank here. The following passage of cross-examination reveals an important aspect of the plaintiff’s character.[16]
    17. Let’s just deal with what you’ve told us: the club does not pay and has no employment contract with either Mr Hartwig or Mr McKenney at any time, did you know that.
    1. I know that now.
    17. Because I’ve just told you.
    1. Yes.
    17. You were incensed by the way you were treated over time by the club, weren’t you.
    1. No.
    17. Were you upset about the way you were treated by the club over time.
    1. Oh, a little bit, sometimes, yes.
    17. Upset enough to issue proceedings against it.
    1. Well, being expelled is somewhat confronting.
    17. Have you considered that if you did get reappointed to the club that no-one may wish to have any association with you.
    1. I hadn’t really considered that, no.
    17. Are you aware how this club may have raised funds over the time that it’s been in existence.
    1. I can only guess.
    17. Well, what’s your guess.
    1. Well, funds would be raised from subscriptions, there may be fundraising activities, there could be grants from various external organizations or the parent organization, donations.
    17. Well, let’s assume it’s all of those. I don’t want to know the details but this action has cost you legal costs, hasn’t it.
    1. Significant.
    17. And you would contend that it’s also costing the defendant money.
    1. I think it’s costing us both, yes, I’d agree.
    17. Right, so you know that by suing the club that you want to join is costing them legal costs, isn’t it.
    1. Well, that’s consequential, yes.
    17. And if you were successful in getting damages the club is going to have to pay those too, out of those sources that you just identified for his Honour.
    1. Yes.
    17. Right; do you contend that the people that are members of the club would then want to associate with you when they will incur costs and pay damages if you’re successful as a result of this action.
    1. No, I don’t consider that at all. I think if the club could mediate this matter well before this time, as I had requested on a number of occasions, we wouldn’t be here today.
90. The defendant is a relatively small social club albeit with a specific interest. It is run by its members on a volunteer basis. The members number about 350 and each pays an annual membership fee of $50. The plaintiff’s lack of insight into human behaviour, his own and that of the members he would wish to interact with, as demonstrated throughout his evidence, was remarkable.

Mr Chris Green

91. In general, I found Mr Green’s evidence to be reliable. However, as discussed below, there is one aspect of the following summary of Mr Green’s evidence that I have found not to be reliable.
92. Mr Green became President of the defendant in 2010. He was President at the time the plaintiff first complained about the Accreditation Course.
93. Mr Green said that he first became aware of the plaintiff’s concerns during a telephone call from the plaintiff on the Sunday (23 January 2011) after the Accreditation Course. He could not recall the exact words of the conversation. However, he remembered apologising to the plaintiff on behalf of the defendant and telling him that he would deal with the issue by speaking to the two presenters, Mr McKenney and Mr Hartwig. The conversation seemed to be going around in circles, so he advised the plaintiff to put his concerns in writing if he wanted to take the matter further.
94. Mr Green then contacted both Mr McKenney and Mr Hartwig and advised them of the plaintiff’s complaints and suggested that the relevant content be removed from the Accreditation Course. He was, at the time, of the view that this had concluded the matter. He did not consider that any further action was necessary. Mr Green conceded that he did not contact the plaintiff to tell him that he had taken these steps.
95. Mr Green said that the MPP was first adopted sometime in 2011. It had not been adopted by the club at the time of the plaintiff’s initial complaint. The adoption of the policy occurred following a direction from the State Association.

Mr George Sobolewski

96. By and large I accept Mr Sobolewski’s evidence as reliable. His description of how the decision to expel came about differs in part from that given by the other Council members called, Mr Scott Jennings, Mr Peter Rowe and Mr Anthony Judd. However, as discussed later in these reasons, this does not cause me to doubt Mr Sobolewski’s honesty or essential reliability.
97. Mr Sobolewski became President of the defendant in 2011 following the resignation of Mr Green. It would seem that the demands of the office were significant. Mr Sobolewski estimated that he would spend approximately 15 to 20 hours a week on club duties.
98. Mr Sobolewski has never had a verbal conversation one on one with the plaintiff. All of his communications were in writing either directly with the plaintiff or through his lawyer, Mr Parr.
99. He described the plaintiff as most vexatious and implacable. The plaintiff was always tying the defendant up with administrative disputes and paperwork; there were constant ongoing complaints. Nothing the defendant did in response to those complaints would satisfy him. The plaintiff offered no support or assistance to the defendant club which depended for its organization and operation on voluntary assistance from its members. The plaintiff was a burden to the club which was why Mr Sobolewski chose to vote in favour of termination of membership. By the time of the show cause meeting Mr Sobolewski had formed the view that the plaintiff was not a bona fide member of the club.
100. Mr Sobolewski first read the 1 February 2011 initial concerns letter shortly prior to the show cause meeting. When he read the letter he became concerned at what he understood to be an implied threat to use firearms in an unsafe manner. He interpreted the relevant passage in the letter as saying “if my grievances aren’t met, that I could perhaps lose control and do something unfortunate”.
101. Mr Sobolewski sought advice from the President of SSAA (SA), Mr Handyside, as to how he should respond to that concern. Mr Handyside told Mr Sobolewski that he had sought guidance from a clinical psychologist, Dr Doueal, who expressed the view that the issue was something with respect to which the club was statutorily obliged to respond.[17] Mr Sobolewski said that he received similar advice from a club member who was an officer in SAPOL’s[18] firearms unit. This caused Mr Sobolewski to file a police report regarding the perceived threat.
102. Mr Sobolewski said it was likely that he would have shared this concern with other members of Council. He could not recall advising Mr Parr of his concern, but said he must have because Mr Parr was aware of it when he attended at the show cause meeting on 20 March 2013.
103. Mr Sobolewski gave inconsistent evidence about what occurred at the show cause meeting. He first said that a vote was taken orally at the end of the meeting, with all Council members saying “yes” to the question of whether the plaintiff should be expelled from the club. A period of about three weeks elapsed before Mr Sobolewski sent the 12 April 2013 termination letter. This was to provide Council members with the opportunity to reflect on the decision and to contact Mr Sobolewski if they had any second thoughts. No one did.
104. However, during his cross-examination, Mr Sobolewski said that no vote was taken and no resolution passed. Rather, there was a discussion and expression of views regarding the plaintiff’s membership, which he described as a “testing of the mood”. This discussion involved club members who attended the meeting but who were not members of Council. Whilst no vote was taken, the mood of the meeting was unanimous, everyone present was in favour of expelling the plaintiff. No formal decision was made at the meeting; the decision was reached following informal consultation between Council and non-Council members that occurred after the show cause meeting.
105. Mr Sobolewski agreed that he and the other members of the Council acted on, in the sense of being influenced by, the perceived threat posed by the plaintiff without waiting for the outcome of any SAPOL investigation.

Mr Scott Jennings, Mr Peter Rowe and Mr Anthony Judd

106. Mr Jennings, Mr Rowe and Mr Judd were all Council members who attended the show cause meeting on 20 March 2013. Their evidence was primarily directed towards what occurred at the meeting. They were called by the defendant’s counsel largely because of inconsistent evidence given by Mr Sobolewski as to whether a vote was taken and a formal resolution passed which evidence prompted a late decision by the plaintiff to challenge the validity of the decision itself on formal or technical grounds.[19]
107. The evidence of these three witnesses as to what occurred was largely consistent. Following Mr Parr’s departure from the meeting, there was a period of discussion between those present as to what action should be taken. Mr Sobolewski then put forward a motion that the plaintiff be expelled as a member. A vote was taken by way of a combination of oral indication and show of hands. Only Council members voted. They voted unanimously to expel the plaintiff.
108. According to these witnesses and the documentary records tendered, a Council meeting was held on 15 July 2014 for the purpose of ratifying the business of the show cause meeting. No minutes of the closed part of the show cause meeting had been taken. This was contrary to s51 of the Act, hence the (belatedly) perceived need to ratify. Minutes of the ratification meeting were taken. A further meeting was held on 29 July 2014 at which the minutes of the ratification meeting were confirmed.

Factual issues in dispute

109. Most of the interactions between the plaintiff and representatives of the defendant were documented and, as I have said, little of the factual substratum is in contest.[20] By the end of the trial three factual disputes remained to be resolved.

Was there an initial phone call between the plaintiff and Mr Green

110. The plaintiff had no recollection of a telephone conversation with Mr Green on the Sunday following the Accreditation Course. He maintained throughout that, at no stage, did anyone from the defendant respond to him in a substantive way about his initial complaints. For this reason he has always believed that he was justified in pursuing them to the extent he did. Whether or not such a telephone conversation took place may be of some relevance. If the telephone conversation did not occur, this would lend some support to the plaintiff’s submission that his conduct was justified by the fact that he never received a substantive response to his initial complaint. Alternatively, if the telephone conversation did occur and the plaintiff was put on notice from the outset, by Mr Green, that the matter was to be dealt with by his speaking to the presenters, such would bear on the reasonableness of the plaintiff’s behaviour in continuing to engage with the defendant in the way he did over a two year period.
111. I am satisfied, on the balance of probabilities, that no such telephone conversation took place. There may have been a phone call but if there was, Mr Green did not, during it, offer to resolve the matter by speaking to the two presenters. There is no mention of this in the correspondence including, in particular, that between the plaintiff and Mr Green. It is very likely, in my view, that had any such conversation occurred, it would have been referred to by either the plaintiff or Mr Green in their initial email exchange.
112. The plaintiff was nothing if not a very ordered and careful man whose habit was to record, in writing and in great detail, his interactions with other club members. The plaintiff’s first email to Mr Green (26 January 2011) has the hallmarks of being the initiating contact. It commences, “Dear Chris, I am concerned by two incidents I experienced at a recent... (H&C)... event, and seek your advice on what I should do.” This language on its face is not consistent with there having been an earlier conversation of the type suggested by Mr Green. Had there been such a conversation, I am confident the plaintiff would have referred to it and also identified its substantive content. If, as Mr Green said, he told the plaintiff he would contact the two presenters, it is difficult to imagine the plaintiff not following this up. It was plainly important to the plaintiff and an offer with respect to which he would have wanted to hold Mr Green to account.
113. Similarly, if such a conversation did take place I would expect Mr Green, in his responding email on 27 January 2011, to have made mention of it and the suggested means of resolution, particularly given that there is no reference to Mr Green’s putative offer in the plaintiff’s email.
114. I do not doubt that Mr Green gave his evidence that such a conversation took place honestly. However, he must have been mistaken. I am satisfied that early on it was his intention to speak to the two presenters. I am also satisfied that at some stage they were spoken to with a view to their further presentations being modified. Mr Green may well have discussed these matters with other club members. His evidence concerning such a conversation is likely to have been the product of honest reconstruction over time.
115. Furthermore, and whilst it quite likely was Mr Green’s intention to do so, I am not satisfied that the plaintiff was told at any time of Mr Green’s intention to speak to the two presenters or, afterwards, that this had happened. However, as already referred to, he was later told by Mr Fantinel that he had left messages with the two presenters. The parties’ interactions quickly came to be diverted by the plaintiff’s focus on process. Somehow, and apart from the Fantinel communication, the need to advise him that these practical steps were to be or had been undertaken was overlooked.

What took place at the show cause meeting

116. As previously discussed, Mr Sobolewski gave somewhat conflicting evidence as to whether a vote on a formal resolution occurred at the show cause meeting. This ultimately resulted in an application by the plaintiff, late in the trial, to amend his pleadings to allege that there had never been a valid or effective resolution to expel him as a member. The defendant countered with the evidence of the Council members Messrs Jennings, Rowe and Judd.
117. In my view, a practical and not overly prescriptive approach should be taken when arriving at an understanding of what, in fact, took place in terms of the decision to expel. Mr Sobolewski presented as a careful witness anxious not to mislead the Court. If anything, he seemed to me to over analyse what took place at the show cause meeting endeavouring to provide a level of preciseness that may not have been possible. On any analysis of Mr Sobolewski’s evidence, it was the unanimous view of all Council members at the show cause meeting that the plaintiff should be expelled from the membership. Messrs Jennings, Rowe and Judd went further in their evidence. They all recalled that Mr Sobolewski proposed a motion that the plaintiff be expelled and that the Council members present (and only them) voted unanimously in favour of the plaintiff’s expulsion.
118. I am satisfied that all Council members left the meeting having expressed a view in favour of expelling the plaintiff. On the issue of the process adopted, I prefer the evidence of the three Council members to the extent it can be seen as conflicting with that of Mr Sobolewski. It seems to me that we are in the realm of differing definitions concerning, or analyses of how to describe, what went on as far as these protagonists were concerned. I am satisfied that a motion to expel was put, in the sense that the meeting was asked whether or not the plaintiff should have his membership terminated with the question being voted on and agreed to unanimously at the show cause meeting.
119. It may be that Mr Sobolewski thought that there still was scope for reflection or review; hence his delay in writing the 12 April 2013 termination letter. However, nothing took place thereafter to cast any doubt on the position reached at the meeting. When Mr Sobolewski ultimately penned the 12 April 2013 termination letter, he did so in the knowledge that it reflected the unanimous intention of the Council members. I am satisfied that the decision to expel the plaintiff accurately represented the views of the defendant’s Council as a whole. However, whether that decision was invalid on account of any defects in the manner in which the show cause meeting was conducted, including the failure to minute the resolution in writing, is another matter.

Whether the plaintiff would ever have been satisfied with anything less than complete capitulation by the defendant

120. Also in dispute, on the facts, is whether the plaintiff’s evidence should be accepted that, had he been informed by Mr Green (or anyone at any time) that Mr McKenney and Mr Hartwig had been spoken to and advised to remove the offending material, he would not have persisted further with his complaints. The defendant contends that the plaintiff is a querulent who would have continued to complain regardless of any response provided by the defendant. The plaintiff contends that all he ever wanted was a resolution of his original concerns arising from the Accreditation Course day.
121. I reject the plaintiff’s evidence on this issue. From the beginning the plaintiff wanted much more than simply to have the two “teaching aids” removed from the curriculum. His 1 February 2011 initial concerns letter, summarised earlier in these reasons, is proof of that. He was plainly very concerned about club processes, club culture and the wider rights of members as he perceived these issues. These concerns, together with the inadequacies of the defendant’s responses (as he perceived them), quickly became the focus of his attention. I am confident that the plaintiff would not have rested until he received what he would deem to be appropriate responses to his multiplying concerns and until the club made what he would deem to be appropriate consequential changes to club processes. In all likelihood, the defendant, much like Achilles in Zeno’s paradox, was never to catch up. Every response, favourable or otherwise, would likely provoke a further round of complaint.

The three bases on which the plaintiff asserts an entitlement to relief

122. The plaintiff’s claim against the defendant can be distilled to three critical issues: was the plaintiff denied natural justice; did the expulsion amount to oppressive or unreasonable conduct; and was, in any case, the decision to expel invalid because of a failure by the defendant to comply with the requirements of its constitution.
123. In order to properly address the first two issues it is necessary to identify the bases or grounds on which the decision to expel was arrived at.

The defendant’s reasons for the expulsion

124. No minutes of that part of the show cause meeting during which the decision to expel was made were kept. However, and in any event, a voting body such as the Council of the defendant, in such circumstances, does not vote on or decide as a group on, the reasons for a decision to expel. The Council voted on and reached unanimous agreement with respect to the decision to expel, alone. Each Council member may have had different reasons or placed weight on different considerations.
125. In these circumstances, the best evidence of the reasons for the expulsion is to be found in the two letters of explanation sent by Mr Sobolewski to the plaintiff’s solicitors on 12 April 2013 and 17 July 2013. The first letter also incorporated “the additional reasons set out in previous correspondence” which I infer to be a reference to the letter from Mr Sobolewski and Mr McKenney of 6 March 2013 to Mr Parr which purported to put the plaintiff on notice of the complaints against the plaintiff sufficient to enable him to prepare for the show cause meeting. As earlier indicated, I have found Mr Sobolewski to be both honest and essentially reliable in the evidence he gave. I am satisfied that I can rely on the correspondence just referred to as fairly identifying the issues and concerns discussed and relied on for the decision to expel. There is also a measure of consistency between the matters raised in this correspondence and the tenor of the discussion during the open part of the meeting as recorded in exhibit D4.
126. On my analysis of the correspondence, considered in the context of the discussion during the open part of the show cause meeting, the matters relied on as informing or influencing the decision to expel can be distilled as follows.

(i) The plaintiff has shown himself to be illiberal, judgmental and ready to take offence in circumstances where over a 20 year period with more than 1,000 accreditation candidates no one else has done so.

(ii) The plaintiff has involved others in his complaint (including other club members and his family) and taken offence on their behalf with no justification.

(iii) The plaintiff has manifested no desire to support the aims and objectives of the club when he demanded stigmatisation and humiliation of two senior members.

(iv) The plaintiff unreasonably refused to desist from complaining notwithstanding that the offensive material has been removed and the plaintiff advised of this.

(v) The plaintiff has engaged in a campaign of incessant complaining which drains time and energy from volunteer members who promote the aims and objectives of the club.

(vi) The plaintiff unreasonably and vexatiously rejected offers and attempts to mediate.

(vii) The plaintiff pursued his vendetta through the State Association.

(viii) The plaintiff, although a member, has not become qualified to participate in club life because he has chosen not to continue with the necessary training. It can be argued that he has never been accepted as a member in the full sense of active membership, for he has never given evidence of firearms ownership or of safe handling and proficiency. This casts doubt on his bona fides in joining the defendant.

(ix) The plaintiff’s discussion in his 1 February 2011 initial concerns letter of a “worst-case” consequence of bullying [the relevant passage is set out at paragraph [21] of these reasons] was perceived as an express or implied threat by the plaintiff. “This branch has zero tolerance for any threats, expressed or implied, that a firearm could be used to resolve a grievance, real or imagined.”

(x) The defendant had taken legal advice and advice from the State Association and from Dr Zoey Doueal, a clinical psychologist, who expressed (orally) alarm at the threat and recommended referral to SAPOL. Dr Doueal’s advice was only one input into the final unanimous decision of the Committee.

(xi) Having dealt with the plaintiff over a period of time the Committee formed the view that the plaintiff was not fit to hold a firearms licence, was a poor communicator, had failed to establish relationships with other members of the club, had failed to complete the requisite safety training, had failed to join any group within the club (bearing in mind that club activities were undertaken by groups) had failed to appreciate the nature of and constraints on the defendant as a voluntary organisation and had imposed a significant administrative burden on it. Overall the membership did not seek to be “out bush” in a “stressful situation” with the plaintiff under any circumstances.

127. The matters summarised in (i) to (viii) above were contained in the letter of 6 March 2013 designed to put the plaintiff on notice of the defendant’s complaints. The plaintiff’s solicitor, Mr Parr, in his responding letter of 19 March 2013 summarised the complaints to which he was to respond as follows.
     • Issues relating to his complaint about the behaviour of presenters of the accreditation course.
     • Issues relating to [his] complaint to the State Association.
     • An alleged rejection by [the plaintiff] of the Public Officer’s offer to mediate, thereby demonstrating a vexatious pattern of behaviour, which has continued throughout.
     • [The plaintiff’s] actions that indicate that he has no intention of settling any matter with the club unless his own extreme demands are met.
     • [The plaintiff] has not attended the marksmanship test.
     • [The plaintiff] has never given evidence of firearms ownership or desire to provide full evidence of safe handling and proficiency, again casting doubts on his bona fides in joining the Branch.
128. Mr Parr addressed these issues at length in his letter of 6 March 2013 which was tabled at the show cause meeting. He also, in my view, availed himself of the ample opportunity provided at the meeting to orally supplement those written submissions. The open part of the meeting was conducted in a fair and receptive manner. Mr Parr described it as “convivial” and was of the view that his client had been given a fair hearing.
129. Mr Parr was put on notice of the matter referred to in (ix) above (the “threat”) shortly prior to the show cause meeting. He addressed it at length during the open part of the meeting. During his evidence, Mr Parr conceded that he had been given sufficient information regarding the alleged threat and that he was not hindered in addressing the issue at the meeting.
130. Neither Mr Parr nor the plaintiff was on notice of the matters referred to in (x) prior to or at the show cause meeting. As far as (xi) is concerned, these matters represent an amplification of the complaints in (iii), (v) and (viii).

Natural Justice

131. The requirement for natural justice in disputes such as the present one is expressly provided for by s40 of the Act. Relevantly, s40 provides:

Where the committee of an incorporated association exercises any power of adjudication that it may have in relation to a dispute between its members, or a dispute between itself and members of the association, the rules of natural justice must be observed.

132. The role, at common law, of natural justice in the affairs of an incorporated association was considered by Duggan J in Plenty & Plenty v Seventh-Day Adventists Church of Port Pirie.[21] Section 40 was not in force at the time. Nonetheless, Duggan J’s decision provides guidance as to the way in which the requirements of natural justice should operate in the context of small associations and clubs.
133. The Plentys were a married couple who brought proceedings against their former church upon being disfellowshipped. The decision to disfellowship the Plentys was made at a church business meeting at which various allegations against the couple were tabled. The couple claimed that they had been denied natural justice and sought a declaration that the decision was null and void.
134. Duggan J found that in disputes involving domestic tribunals, a more flexible standard of natural justice was to be applied. However, even so, natural justice still required the adoption of certain basic procedures so as to allow parties the opportunity to properly defend themselves.

The requirements of procedural fairness include sufficient notice of the nature of the allegations which the plaintiffs were required to meet. The degree of particularity called for falls to be assessed against what was required in order for the plaintiffs to properly defend themselves. Particulars are also necessary in order for the decision-making body to be aware of the nature of the conduct which is the subject of the enquiry (Robbins v Harness Racing Board [1984] VicRp 55; [1984] VR 641 at 645).
It must be acknowledged that in these respects domestic tribunals are not to be placed upon the same footing as criminal courts. Regard must be had to the fact that charges are laid and issues are decided by persons who are, for the most part, untrained in legal procedures. Nevertheless, natural justice requires the adoption of procedures which meet the basic requirements of proper notice, time to prepare and a fair hearing.[22]

135. His Honour found that the Plentys had been denied natural justice, because the allegations made by the church were too broad and suffered from a lack of particularisation.

The requirement of sufficient particulars is of particular importance in the present case. Many of the authorities on particulars arise from the charging of offences or breaches of discipline with broad descriptions such as "misconduct" (R v Solicitors' Disciplinary Tribunal [1988] VicRp 72; [1988] VR 757 at 768); and "conduct detrimental" (Hughes v Johanson [1977] Qd R 357).
In such cases the person whose conduct is brought into question must be given more precise particulars to meet the requirements of sufficient notice. This is so in the present case. Broad allegations such as "disorderly conduct" and "attitude towards those in authority" which were used in the present case required particularisation which I find was not forthcoming.[23]

136. The plaintiff submitted that to the extent that Plenty might stand for the proposition that natural justice does not apply with its full vigour in the context of small associations and clubs, that has now been overtaken by s40 of the Act. According to the plaintiff, s40 expressly requires all incorporated associations, regardless of nature and size, to observe the rules of natural justice as they apply in administrative law. The plaintiff submitted that this reflects the changing attitude towards associations and clubs which are now acknowledged to be an important facet of community life.
137. The defendant submitted that, notwithstanding the operation of s40, the approach of Duggan J in Plenty remains apposite. As a small volunteer-run club, the defendant should be held to a more flexible standard of natural justice than that demanded of courts and tribunals and other professionally organised associations.
138. I do not need to resolve these competing positions. As Duggan J observed in Plenty, at a minimum, the plaintiff was entitled to proper notice, time to prepare and a fair hearing.
139. The plaintiff submitted that he was denied natural justice because he was not provided with proper notice of a number of the grounds ultimately relied on by the defendant in support of its decision to expel. The plaintiff contends that he was not given proper notice of the complaints that:

(a) the defendant had received advice from the psychologist Dr Doueal that the alleged threat made by the plaintiff was something it needed to act on;

(b) the defendant’s parent branch, SSAA (SA), had recommended the plaintiff’s expulsion on account of his alleged threat;

(c) the plaintiff’s membership was only ever of provisional status following the defendant’s decision to rescind the initial expulsion, by way of its 21 February 2013 letter; and

(d) the plaintiff had not completed his accreditation training; namely, the marksmanship component.

140. The plaintiff maintains that he was deprived of any sufficient opportunity to respond to these particular grounds at the show cause meeting.
141. It is correct, according to the letter of 17 July 2013, that the defendant took advice from its parent branch and that the nature of that advice was reflected in the terms of the expulsion letter (12 April 2013). It is not entirely clear from the terms of the correspondence that the effect of that advice was (as asserted by the plaintiff in (b) above) a recommendation that the plaintiff be expelled. However, I will assume this for the present. It is also correct, according to the letter of 17 July 2013 and as far as (a) is concerned, that the defendant received advice from Dr Doueal that it should act on the apparent “threat” by referring the matter to SAPOL in accordance with the perceived requirements of the Firearms Act. According to Mr Sobolewski, the defendant did act on that advice when it reported the matter to the police. There is no evidence that Dr Doueal recommended expulsion. However, I accept that if a clinical psychologist expressed concern, in the circumstances, that would likely be relevant to the Council’s consideration of the matter.
142. The plaintiff was entitled to “sufficient notice” of the allegation he was required to meet, the required degree of particularity of which is to be assessed against what was necessary for the plaintiff to be able to properly defend himself.[24] In this case, the plaintiff was given precise details of the relevant allegation which, in my view, constituted sufficient notice in the circumstances. His solicitor was on notice of the terms of the plaintiff’s written statement that was in issue and that the defendant perceived it, rightly or wrongly, as an express or implied threat to the effect that, under sufficient pressure or provocation, use of a firearm might be resorted to by the plaintiff.
143. I do not stay to express my own view as to whether or not the words used by the plaintiff supported such a perception. The Court’s view on this topic is not relevant. I am satisfied (insofar as it may be relevant) that Mr Sobolewski and others who arrived at that perception or fear, acted reasonably in so doing. As Mr Sobolewski pointed out in his letter of 12 April 2013, safety for a gun club is of paramount concern and any threat of misusing a firearm must be seen as totally unacceptable. I can understand why an extremely cautious and conservative approach would be called for. Mr Parr, in effect, conceded as much during his oral submissions at the show cause meeting. The fact that the plaintiff was unaware that Mr Handyside (president of the State Association) and Dr Doueal were also concerned and advised accordingly did not mean that he was prevented from being able to answer the allegation. On the contrary, Mr Parr, in his evidence, accepted that he had been sufficiently on notice of the allegation and in a position to meet it. A review of the transcript of the open part of the show cause meeting shows that he provided a spirited defence to the allegation.
144. The plaintiff also complains in terms of (c) above. I do not accept that (c) fairly describes a reason for the expulsion. The defendant in its letters of 21 February 2013 and 28 February 2013, expressly stated that it had rescinded its earlier decision to reject the plaintiff’s application for renewal of membership and that a special meeting was to be called to allow the plaintiff to explain why he should not be expelled “... as a result of his conduct in relation to this Branch.” In later correspondence, the suggestion arose that the plaintiff’s membership could be argued to be provisional because in over two years he had never completed the requisite accreditation to enable him to participate in club activities. However, the status of “provisional” (which, as Mr Sobolewski acknowledged in his evidence, was not a category of membership known to the club’s constitution) was never a ground of expulsion.
145. The burden of the defendant’s complaint here was that, notwithstanding the plaintiff’s formal membership status for more than two years, he had not personally engaged with any member prior to the show cause meeting (apart from on the day of the Accreditation Course and his attendance at a Council meeting and the AGM in 2012) nor involved himself in any club activity. For these reasons, more fully explained in the correspondence, the defendant doubted the plaintiff’s bona fides as a member and his adherence to club practices, aims and culture. The plaintiff was well and truly on notice of this complaint throughout his dealings with Mr Sobolewski.
146. The plaintiff also complained in terms of (d) above. There is no doubt that the plaintiff’s failure to complete the marksmanship component of the necessary accreditation was of concern to the defendant. However, this was part of a much wider complaint concerning the plaintiff’s lack of contribution to the commonweal and lack of any involvement in its activities. To put it shortly, the defendant asked itself the question: why is this person who has never participated in over two years, who has not attempted to satisfy the basic requirement to enable him to participate and who spends his time and wastes our time by writing lengthy and complex emails about club processes and demanding information and changes, a member at all? Is he truly one of us? There is no doubt that the plaintiff was fairly on notice of this wider complaint to which Mr Parr, again, provided a spirited defence at the show cause meeting.
147. In any event, the narrower complaint – the failure to complete the marksmanship component – was adverted to in the defendant’s letter of 6 March 2013 prior to the show cause meeting (item (viii) in paragraph [126] above) and was responded to by Mr Parr at the show cause meeting.
148. I am not satisfied that any of the plaintiff’s allegations of a want of natural justice, by the defendant having failed to give proper notice of its complaints, has been made out. Standing back from the detail, I am satisfied, upon my review of all of the correspondence and the transcript of the open part of the show cause meeting, that the plaintiff was provided with proper notice of the defendant’s complaints together with sufficient time to prepare to meet them. Later in these reasons, I return to the issue of natural justice when I consider the question of whether the conduct of the show cause meeting itself was fair and in accordance with natural justice requirements.

Oppressive or Unreasonable Conduct

149. The plaintiff submitted that the defendant’s decision to expel him was oppressive or unreasonable conduct as proscribed by s61 of the Act which provides (relevantly):

(1) A member or former member of an incorporated association may apply to the Supreme Court or the Magistrates Court for an order under this section on the ground that the association has engaged, or proposes to engage, in conduct that is oppressive or unreasonable.
. . . .
(15) For the purposes of this section—
(a) an association has engaged, or proposes to engage, in conduct that is oppressive or unreasonable if—
(i) it has taken action, or proposes to take action, to expel a member from the association in circumstances in which the action was, or would be, oppressive or unreasonable; or
(ii) it has engaged, or proposes to engage, in conduct that was, or would be, oppressive or unfairly prejudicial to, or unfairly discriminatory against, a member or was, or would be, contrary to the interests of the members as a whole; or
(iii) the rules of the association contain, or are proposed to be altered so that they will contain, provisions that are oppressive or unreasonable;
(b) a reference to engaging in conduct includes a reference to refusing or failing to take action.

The plaintiff has not stipulated which limbs of s61(15)(a) he relies on. However, s61(15)(a)(i) and (ii) have potential application.

150. In Popovic & Ors v Tanasijevic & Ors (No 5)[25] Olsson J made the following general remarks about the meaning of “oppression” as that term was used in an earlier version of s61.

According to its normal meaning the word "oppression" connotes the exercise of authority or power in a burdensome or unjust manner. Section 61 of the Act does not exclusively define its statutory meaning, other than by the inclusive provisions of s 61(7). As appears from authorities such as Re Enterprise Gold Mines NL (1990-1991) 3 ACSR 531 at 538 et seq and John J Starr (Real Estate) Pty Ltd v Robert R Andrew (A'Asia) Pty Ltd & Ors (1991-1992) 6 ACSR 63 ("John Starr") at 65 et seq, the concept is not susceptible of precise, all embracing definition. At best, decided cases are illustrative of conclusions in specific fact situations.
However, it may at least be said that the section focuses on the effect of particular transactions sought to be impugned or management procedures adopted by those who are in de facto or de jure control. What is in contemplation is a notion of unfairness, according to ordinary standards of reasonableness and fair dealing.
Conduct complained of must be unjustly detrimental to either individual members specifically or, alternatively, members as a whole. It is not necessary to prove lack of bona fides, but conduct beyond power or in breach of statutory, legal or financial duty may well amount to oppression...

151. The content and application of s61 in its present form was considered in Millar & Ors v Houghton Table Tennis & Sports Club Inc.[26] In Millar, the committee of the defendant club was found to have breached s61 when it made a single decision to refuse, in bulk, applications for membership by residents of the Houghton area. The residents were opposed to the committee’s decision to sell a hall owned by the club and wished to become members in order to prevent the sale from going ahead. By making a single decision about the applications considered as a bundle, rather than considering each individually and on its merits, the club was found to have acted in a manner contrary to the interests of its members as a whole and therefore in breach of s61. In applying s61, Besanko J adopted the following approach:[27]

In my opinion, it is appropriate to approach the application of s 61 of the Act to the facts of this case with a number of principles in mind. First, it is not necessary in order to bring conduct within the terms of the section to establish any actual irregularity or invasion of legal rights or a lack of probity or want of good faith. Secondly, in relation to the phrase "contrary to the interests of the members as a whole" it is appropriate to apply a similar test to that applied in the case of the common law requirement that a majority of members must act bona fide for the benefit of the company as a whole. Thirdly, while it is appropriate to approach the application of the section with the underlying theme of unfairness in mind, it is still necessary to consider each of the elements referred to in the section (ie., oppressive, unfairly prejudicial, unfairly discriminatory, or contrary to the interests of the members as a whole) in turn. Fourthly, to the extent that the underlying theme is one of the prevention of unfairness, there is an issue as to how the concept of unfairness is applied in the case of a small non-profitmaking sporting organisation.
A member has no commercial interest in the Club, and therefore any test of commercial unfairness is inappropriate. I suppose that in broad terms, a member has, subject to the provisions of the Constitution, an interest in sharing in the facilities and activities of the Club, and in not being unfairly excluded therefrom. Again, subject to the provisions of the Constitution, a member is entitled to participate in the management of the Club and other decision-making bodies, and not to be unfairly excluded therefrom. In addition, a member has an interest in the longer term aspects of the Club's operations, and by this I mean that a member has an interest in ensuring that the Club carries on its operations in accordance with its Constitution, and in particular, the objects and powers stated therein.

152. Underlying the approaches of Olsson J in Popovich and Besanko J in Millar is the notion of unfairness as being a central consideration in determining what conduct will constitute oppressive or unreasonable conduct for the purpose of s61. In the context of an expulsion, the question of whether it is unfair, in the circumstances, to deny a person membership arises. This is to be considered in the context of consideration of the extent to which, if at all, a person can have an entitlement to be a member of such an association in the first place. Where, as in this case, the membership is of a non-profit making club, a person’s interest in being a member will extend to participating in the club’s facilities and activities, including its management, and in ensuring that the club acts in accordance with the terms of its constitution.
153. In Pettit v South Australian Harness Racing Club Inc & Ors,[28] White J listed the following propositions concerning the application of s61 with which, in general, I agree.
     1. The constitution of an association binds the association and all of its members. This means that the Committee was bound to apply the relevant provisions of the Club’s Constitution in its consideration of the membership applications.

. . . .

3. Other than in the limited circumstances of the kind outlined in the majority judgment in Wayde, the courts are not concerned in applications of the present kind with reviewing the underlying merits of the management committee’s decision. The courts do not substitute their discretion for the discretion exercised in good faith by an association’s committee.

There is no appeal on merits from management decisions to courts of law: nor will courts of law assume to act as a kind of supervisory board over decisions within the powers of management honestly arrived at.
. . . .

6. In order to succeed, it is not necessary for an applicant to show that any decision of the association was invalid.

. . . .

8. The power to accept or reject membership applications must be exercised in good faith.
9. The power to accept or reject membership applications must be exercised having regard to the objects of the association.
10. A refusal of applications for membership without regard to the association’s objects may well be a decision which no reasonable committee could reach.

. . . .

12. An association may have many reasons for rejecting membership applications. It may determine that the aims and aspirations of an applicant are not consistent with the objects of the association... .
154. The considerations identified in 3, 8, 9 and 12 are particularly pertinent in this case. Further, as his Honour’s remarks in Pettit indicate, in determining whether the conduct of an incorporated association is oppressive or unreasonable, it is important to reflect on whether the association has acted in accordance with the terms of its constitution. As a statement of the objects and rules by which it is bound, an association’s constitution serves as a guide to any assessment of its conduct. However, the court’s role is not to quarrel with the merits underlying any managerial decisions, provided they have been made in good faith and within constitutional constraints.
155. Clause 29 of the defendant’s constitution deals with the expulsion of members.

29. EXPULSION OF MEMBERS
(a) Every member of this Association undertakes to comply with the rules. By-laws, and resolutions passed by the Council and any refusal or neglect to do so may render such member liable to disciplinary action.
(b) If any member shall refuse or neglect to comply with the provisions of this Constitution the By-Laws or Code of Ethics or if any member shall in the opinion of Council be guilty of any conduct deemed by it to be unbecoming a member or prejudicial to the interest of this Association such member may be expelled by a resolution of Council and such resolution need not state the grounds, facts or opinions upon which it is based PROVIDED HOWEVER and without limiting the generality thereof any member whose firearms licence has been refused revoked or suspended may be refused his membership or have his membership revoked or suspended.
(c) A motion pursuant to Clause 29 may not be proposed unless the member concerned has been notified in writing of the intention to propose such resolution.
(d) Notion of intention to propose such motion must be given to the member concerned at least 14 days prior to the meeting, and that member shall be given reasonable opportunity to present the meeting orally or in writing (or both) any explanation thought fit.
(e) A motion pursuant to Clause 29(b) may not be proposed unless the notice and agenda for the meeting states that the case of the particular member’s membership is to be considered,
(f) In considering a motion pursuant to Clause 29(a) and (b) Council may hear evidence from any person whether or not such a person is a member of this Association.
(g) The decision to terminate membership must be carried by a resolution approved by seventy five (75) per cent of the members of Council present and voting.
(h) Any member expelled in accordance with the Constitution or otherwise ceasing to be a member of this Association shall forfeit all rights to any claim upon this Association.

156. By virtue of Clause 29(b) the counsel of the defendant has the power to expel a member who,

in the opinion of the Council [has been] guilty of any conduct deemed by it to be ... prejudicial to the interest of [the] Association.

In order to more fully understand the meaning or ambit of the expression “the interest of the Association”, as used in clause 29(b), reference should be made to clause 3 which sets out its “Aims and Objects”.

(a) The achievement and maintenance of a favourable environment for target and field shooting in Australia and its territories.
(b) To seek improvements in the laws pertaining to firearms, and to support or oppose proposed amendments to existing legislation.
(c) To seek improvements in the laws pertaining to wildlife (indigenous and introduced) and to support or oppose proposed amendments to existing legislation.
(d) To provide assistance and education for all eligible people in the art of shooting, safe handling of firearms, field etiquette and knowledge of laws relative to shooting.
(e) To raise the sporting shooter in public esteem by promotion of a better understanding between public, land holders and sporting shooters.
(f) To encourage all hunters to abide by a strict code of ethics.
(g) To promulgate, in the interests of safety, knowledge and information of firearms and ammunition.
(h) To establish land(s) / Range(s) for the use by members of this Association.
(i) To represent this Association at all meetings of S.S.A.A. (State).
(j) To do all such other things as are conducive or incidental to the attainment of the above aims and objects or any of them.
(k) To conduct active public relations and other programmes to raise the spoil of field shooting and hunting in public esteem by the creation of better understanding between the public, landowners, government and firearm owners.
(l) To establish and support game conservation projects and to co-operate with relevant government and other bodies in this regard.
(m) Advocate open seasons consistent with principals of conservation.
(n) To cooperate with, and or sponsor projects for the conservation of rare fauna and habitat.
(o) To raise funds to further the aims of the Club.

157. Stripped to its essentials, the defendant’s raison d’être is the provision and facilitation of a safe and favourable environment for target and field shooting. In having a particular focus on feral animal culling, involving coordinated activity and camping excursions, much of the club activities involve group behaviour in a potentially highly dangerous environment with a consequent need to foster within the membership, inter alia, camaraderie, acceptance and tolerance of individual differences and trust.
158. I return to the grounds of or considerations which informed the decision to expel set out in (i) to (xi) in paragraph [126] above. I am satisfied that with respect to all but (iv) it was open to the Council of the defendant, acting reasonably and on the basis of the information before it, to have reached the opinions relied upon.
159. Whether the reasons the defendant relied on for expelling the plaintiff were sufficient to justify his expulsion is not a matter for this Court; it is not this Court’s role to review the merits of an association’s managerial decision.[29] However, I am satisfied that the Council of the defendant honestly and genuinely believed that the plaintiff had acted in ways and had demonstrated a character that was inconsistent with, indeed in many respects inimical to, the aims and objectives of the defendant and thereby prejudicial to its interests and those of the wider membership. I am satisfied that the defendant acted in good faith when reaching its decision to expel the plaintiff.
160. I accept the defendant’s submission that the plaintiff, during the more than two years of his membership, did not show any interest in participating in the defendant’s activities. Nor did he demonstrate a willingness to involve himself in or support the aims and objectives of the club. Although the plaintiff maintains that he still wishes to take part in the club’s culling program, during the approximately two and a half years between joining the club and the show cause meeting, he did not attempt to complete his accreditation training so as to enable him to do so. His only involvement with the club during that period was to engage it in a form of written warfare. In the circumstances, the defendant did not act unfairly towards the plaintiff by expelling him as a member. It has not engaged in conduct oppressive of, unfairly prejudicial to, or unfairly discriminatory against the plaintiff.
161. As far as the matter identified in (iv) above is concerned, I have concluded that I am not satisfied that the plaintiff had been informed, prior to the show cause meeting, that the two presenters the subject of the plaintiff’s original complaint had been spoken to and that the offending material had been deleted from the program. However, as also earlier indicated, I am satisfied that even if he had been told these things, the plaintiff would not have conducted himself any differently. His list of demands in the 1 February 2011 initial concerns letter goes well beyond any such resolution as did his conduct thereafter. Nevertheless, it would appear that the defendant, in reaching its decision, may have relied, in part, on an incorrect and irrelevant consideration; one that was not justified by the facts.
162. Notwithstanding the extensive email traffic between the parties, there was a breakdown in their communications in this respect. However, this was not the fault only of the defendant. As the matter developed, the plaintiff refused or avoided any opportunity of a face to face meeting to discuss his initial complaints. Steps taken by the defendant to ensure no repetition of the presenters’ impugned behaviour would naturally have come up at any such meeting. Furthermore, the email traffic quickly became primarily devoted to the plaintiff’s concerns about process. Somehow the initial substantive complaints became lost in the wash, at least insofar as the defendant was concerned. As indicated, I attribute fault to both sides for this.
163. In any event, on my assessment, the defendant’s (ill-founded) concern that the plaintiff pressed on with his complaint process even after being advised of a “resolution” was a relatively minor contributor to the ultimate decision, if it contributed at all. Ultimately, the fundamental question is whether the defendant has acted oppressively, unjustly or unfairly. Given the facts that there was fault on both sides concerning this communication breakdown, that the plaintiff would not have altered his behaviour in any event and that it most likely was a minor contributor to what was a very strongly and otherwise fairly arrived at position, the fact that the defendant proceeded on this misunderstanding does not cause me to depart from my earlier conclusion to the effect that, in reaching its decision to expel, it did not act oppressively or unreasonably within s61.

No Valid or Effective Resolution

164. The plaintiff’s third complaint is that there was never a valid resolution by the defendant to expel him as a member. The plaintiff’s complaint under this heading also raises natural justice considerations additional to those previously considered.
165. The plaintiff submitted that, as a matter of fact, no resolution was put to the show cause meeting nor was there a vote. In support of this contention the plaintiff points to the evidence of Mr Sobolewski and also to the fact that the defendant is statutorily obliged to keep minutes of Council meetings. Section 51 of the Act provides, in part:

(1) An incorporated association must—
(a) cause minutes of all proceedings of general meetings and of meetings of the committee to be entered in books kept for that purpose; and
(b) cause those minutes to be—
(i) confirmed by the members of the association present at a subsequent meeting; and
(ii) signed by the member who presided at the meeting at which the proceedings took place or by the member presiding at the meeting at which the minutes are confirmed.
(2) ...
(3) A minute that is entered, confirmed and signed in accordance with subsection (1) is, in the absence of proof to the contrary, to be accepted as proof of the proceedings to which the minute relates.
(4) Where minutes have been entered, confirmed and signed in accordance with subsection (1), it is to be taken, in the absence of proof to the contrary, that—
(a) the meeting to which the minutes relate was held; and
(b) the proceedings that are recorded in the minutes as having occurred during the meeting occurred; and
(c) all appointments of officers or auditors that are recorded in the minutes as having been made at the meeting were validly made.
(5) ...
(6) ...
(7) ...

166. The plaintiff submitted that the fact that no minutes were taken and no resolution was documented supports a finding that no resolution was voted on. The plaintiff did not submit that any failure to keep minutes of the closed part of the show cause meeting, of itself, rendered the decision to expel invalid or otherwise liable to challenge.
167. According to the plaintiff, clause 29(b) of the defendant’s Constitution stipulates that any expulsion of a member is to be effected by a resolution of Council. The makeup of the defendant’s Council is provided for by Clause 12.
     12. The Council will comprise not less than five (5) and not more than ten (10) members elected at the Annual General Meeting. PROVIDED HOWEVER that not more than two persons whose normal occupation is in the arms and ammunition trade shall hold office or be entitled to be a Councillor.

(a) The minimum composition of the Council will be:

• President
• Vice-President
• Secretary
• Treasurer
• And five (5) Councillors

Voting is dealt with under Clause 9, which provides as follows:

9. Voting
(a) All voting shall be by show of hands unless a ballot shall be called for by any member.
(b) ...

168. The plaintiff also argued that the defendant breached its Constitution by allowing non-Council members to attend the show cause meeting and take part in the discussions regarding his expulsion such that if there had been a resolution to expel it was thereby invalidated.
169. The plaintiff referred the Court to Ethell v Whalan & Ors.[30] In that case the expulsion of a member of the Teachers’ Federation was found to be invalid due to the improper participation by certain people in the decision to expel.
170. Four of the people who attended the Executive meeting at which the teacher was expelled were not members of the Executive. Whilst there was no evidence that those strangers took part in the decision to expel the plaintiff, in the absence of evidence to the contrary, Hope J drew the inference that they did in fact participate. His Honour also found that the expulsion was invalid on account of the participation of members of the Executive who were to be regarded as accusers of the plaintiff and therefore could be seen as biased.
171. The plaintiff also contended that it was inappropriate for the two Accreditation Course presenters, Mr McKenney and Mr Hartwig, who had been the subject of the plaintiff’s initial complaint, to participate at the show cause meeting. The plaintiff submitted that both men should be seen as inherently biased against the plaintiff and should not have been allowed to have any involvement in the decision to expel him.
172. In a similar vein to its submission with respect to the issues of natural justice earlier considered, the defendant submitted that any technical shortcomings or failings with respect to the running of the show cause meeting should be seen as insignificant. The defendant also submitted that none of the non-Council members who attended the show cause meeting participated in the vote to expel the plaintiff.
173. On my review of the whole of the evidence, I am satisfied of the following matters on the balance of probabilities.

(i) The plaintiff was given at least 14 days written notice of the intention to propose a resolution for expulsion (as required by clause 29 (c) and (d) of the Constitution).

(ii) The written notice to the plaintiff stated that his membership was to be considered at the show cause meeting, although there is no evidence that the agenda (if any) for that meeting stated this.

(iii) A motion for expulsion was put to the meeting and voted on, in the affirmative, by more than 75 per cent of Council members present (in conformity with clause 29 (g)); indeed the motion was passed unanimously.[31]

(iv) No minute of the precise terms of the motion nor of it being put to a vote, nor of the voting outcome was recorded and kept (contrary to s51 of the Act).

(v) The plaintiff’s representative (Mr Parr) was excluded from the closed session of the show cause meeting.

(vi) Four non-members of the Council, including two ordinary club members, were present throughout the show cause meeting and contributed to the debate. However, they did not participate in the vote.

(vii) The two Accreditation Course presenters, Mr Hartwig and Mr Kym McKenney were present, involved themselves in the discussion and voted.

(viii) Both Mr Hartwig and Mr McKenney should be seen as having a particular and personal interest in the proceedings over and above that arising from simply being a member of the club and the Council. As Mr Sobolewski expressed it (consideration (iii) in paragraph [126] above) the plaintiff had “demanded stigmatisation and humiliation of two senior members”. In the circumstances, they participated as judges in their own cause.

174. At the end of the day, the fact that no minute of the resolution was kept does not cause me, as the plaintiff submitted it should, to doubt that a motion was put and voted on. However, the absence of minutes is of concern for another reason. In my view, Mr Parr should not have been excluded from the meeting when the further discussion and voting took place. The fact that the plaintiff was entitled under the Constitution to proper notice and an opportunity to present his case orally at the meeting might be thought to imply that he had a Constitutional entitlement to attend the meeting and the whole of the meeting.[32] However, I do not need to finally decide whether that would always be the case. It is sufficient for the present to conclude, as I do, that it was a failure of the process to be expected in accordance with natural justice principles, for Mr Parr to have been excluded in circumstances where comprehensive minutes of what took place were not contemporaneously recorded and kept. It is a curiosity that once the open part of the meeting concluded the recording device was turned off. This resulted in the plaintiff being deprived of a clear understanding of what took place during the closed part of the meeting. As such, he has been disadvantaged in his capacity to challenge what took place. In addition, if during the closed part of the meeting additional complaints were ventilated, the plaintiff was deprived of the opportunity, through Mr Parr, to answer them.
175. It is true that the Council was entitled to pass a resolution for expulsion without stating the grounds, facts or opinions upon which it was based (clause 29(b) of the Constitution) but, in my view, the plaintiff was entitled to know that this had happened if it was the case. More importantly, the plaintiff was entitled to know and be in a position to respond if, for example, any improper process had been adopted, or irrelevant considerations relied on during the closed part of the meeting.
176. The fact that non-members of Council contributed to the debate ((vi) immediately above) is not ultimately of concern. In an environment such as that here, one would expect Council members to seek, informally and formally, information and advice, including from ordinary club members. After all, the Council is representative of and purports to act on behalf of and for the benefit of the membership as a whole.
177. One should take a practical approach to such matters, particularly where social and sporting clubs are concerned with their natural tendency towards less formal or rigorous processes. It is unrealistic to expect, much less require, all of the Council members to attend the meeting without having discussed the matter with other club members.
178. Furthermore, clause 29(f) provides that the Council may hear “evidence” from any person whether or not a member of the Association. In my view, the term “evidence”, when considered in the overall context, is to be construed liberally for this purpose and not confined to any strict legal definition.
179. However, Mr Hartwig and Mr McKenney should have recused themselves. On natural justice grounds, they should not have involved themselves, as judges in their own cause.
180. The matters identified in my findings in (v), (vii) and (viii) immediately above, constituted, in the circumstances of this case, material failures to comply with natural justice and cause me to find the motion to expel the plaintiff to be invalid.
181. These failures of process are not such as to be amenable to the purported ratification by the Council in the middle of last year about which Messres Jennings, Rowe and Judd gave evidence. They did not constitute, for example, a mere failure to comply with formal processes as required by the defendant’s Constitution. They comprised a failure to accord the plaintiff procedural fairness which was not capable of being rehabilitated by ex post facto “ratification”.

Conclusion as to liability

182. I have found the Council’s decision to expel to be invalid as a consequence of the way in which the show cause meeting was conducted. However, but for this, I am satisfied that the Council did not act unreasonably or oppressively towards the plaintiff. I am also satisfied that the plaintiff was given proper notice and opportunity to present his defence. The question now arises as to what, in these circumstances, is the appropriate remedy.
183. The effect of the Council’s decision was to deprive the plaintiff of membership for the 2012/2013 year to which he otherwise would have been entitled. As a member for that period he would have become entitled, inter alia, to apply for renewal for the 2013-2014 year and thereafter.

Available remedies

184. The plaintiff seeks the following relief:
     1. A declaration that in and about the expulsion the association did not adopt the principles of natural justice.
     2. A declaration that the purported expulsion of the plaintiff as a member of the defendant is null and void and of no effect.
     3. A declaration that in breach of section 61 of the Associations Incorporation Act the defendant has engaged in conduct concerning the plaintiff that is oppressive or unreasonable.
     4. A declaration that the member is still a member of the association.
     5. An injunction restraining the defendant from taking further disciplinary action against the plaintiff in respect of events up to the commencement of these proceedings.
     6. Damages.
     7. Costs.

Declaratory relief

185. This Court has broad powers to order declaratory relief.[33] Sometimes the question can arise whether any such relief, as sought, conflates the distinction between a court’s authority to decide factual and legal questions and its power to make orders and grant remedies in aid of its jurisdiction to determine disputes. Strictly, the jurisdiction conferred by s31 of the Supreme Court Act 1935 is to make binding declarations of right, declarations from which legal rights or liabilities flow. The relief sought by the plaintiff in 1 and 3 above is essentially in the form of findings of fact as to the conduct of the defendant.
186. This issue has been considered extra-curially by French CJ.[34] The Chief Justice expressed the view that in certain circumstances formal declarations as to the conduct of a party may be appropriate:

Is a declaration then juristically indistinguishable from a formally expressed passage in reasons for judgment making findings of fact or law or holding that a right or liability does or does not exist or that particular conduct will or will not be lawful? There is little doubt that a declaration is regarded at law as more than that even though its terms may replicate something stated in the court's reasons for judgment. In Warramunda Village Inc v Pryde [2001] FCA 61; (2001) 105 FCR 437 the Full Federal Court said (at [8]):
The remedy of a declaration of rights is ordinarily granted as final relief in a proceeding. It is intended to state the rights of the parties with respect to a particular matter with precision, and in a binding way. The remedy of a declaration is not an appropriate way of recording in a summary form, conclusions reached by the Court in reasons for judgment. This is even more strongly the case when the conclusion is not one from which any right or liability necessarily flows.[35]
That is not to say that a formal declaration in relation to the conduct of a party in contravention of a law cannot be a means of marking the disapproval by the court of that conduct.[36] So a declaration may be made that there has been misleading or deceptive conduct on the part of a party in contravention of s 52 of the Trade Practices Act or that a party has otherwise engaged in contravening conduct. Such a declaration may be distinct and not required for the purposes of associated injunctive relief and the imposition of pecuniary penalties or an award of damages. That having been said, it is reasonable to conclude that the making of a declaration is properly the exercise of a power and not merely an extract from the process of adjudication. Regardless of any question about the logic that underpins that view, it is firmly entrenched in history.

187. The plaintiff submitted that the making of a declaration regarding the conduct of the defendant would serve to ameliorate the effect of any aspersions cast upon his reputation. People within the community, including members of the defendant, would be alerted to the fact that he was not provided with the opportunity to defend the serious allegations made against him and that his expulsion was therefore unfair. As it happens, any such rationale is not consistent with my overall findings. Furthermore, I doubt that the couching of my findings as to the conduct of the defendant in the form of a declaration would add much, if anything, to those findings as explained in some detail in these reasons. If anything, it would tend to encourage a reading of my ultimate conclusions devoid of their context so as to potentially mislead.
188. As far as the declaration sought in 3. above is concerned there is, in any event, no justification as it would be contrary to my findings. For the reasons just given, a declaration in terms of 1. is unnecessary and would lack utility. The plaintiff will have to be content with my findings. The plaintiff is entitled to a declaration along the lines of that sought in 2. above. Such a ruling would be consistent with other cases in which a member’s expulsion has been tainted by a failure to afford natural justice.[37]

Reinstatement

189. The declaratory relief sought in 4. above raises additional considerations. The plaintiff’s membership renewal fell due on 31 October 2012. On 30 October 2012, the plaintiff sent a copy of his signed renewal application and effected, by electronic transfer, payment of the requisite fee. Whilst the defendant, at first, rejected this application for renewal (Mr Sobolewski’s letter of 30 November 2012) its Council, on 19 February 2013, passed a motion rescinding this decision to reject and, by Mr McKenney’s letter of 28 February 2013, put the plaintiff on notice that he needed to show cause why he should not be expelled under clause 29 of the Constitution. It can be concluded that, by the time of the show cause meeting on 20 March 2013, the plaintiff’s membership had been renewed and was valid for the period 31 October 2012 to 30 October 2013.
190. Given that the plaintiff is entitled to declaratory relief in terms of 2. above – that the purported expulsion of the plaintiff as a member is null and void and of no effect – it follows that the plaintiff remained a member until 30 October 2013, the next renewal date. It also follows that, as a consequence of the defendant’s actions, the plaintiff potentially was deprived of the advantages of membership including the opportunity to apply for further renewals of membership. I say, potentially, because the nature of the parties’ relationship and the history of their interactions, as at immediately prior to the show cause meeting, were such as to cast significant doubt on whether the plaintiff would have availed himself of the advantages of membership in any event.
191. However, reinstatement until 30 October 2013 is of little, if any, utility to the plaintiff. As a consequence, the plaintiff seeks a declaration that he “is still a member of the [defendant]”. The plaintiff further maintains that he should be credited with membership, for a period expiring 30 October 2015; the lost months in the 2013 year should be applied or credited to the current membership year. Only this, asserted the plaintiff, would place him in the position he would have been in if he had not been expelled. Come 30 October 2015, he would thereby be entitled to again apply for renewal of his membership. This submission calls for some analysis of the interrelationship between initial membership and annual renewal of membership of the defendant.
192. Clause 5 of the Constitution deals with membership. Clause 5(a) provides in part:

(a) Full membership of this association shall be available to any person being a member of S.S.A.A. [Sporting Shooters Association of Australia] subscribing to the aims and objects of this Association and this Constitution on a year to year basis and subject to the Constitution conditional upon payment of the prescribed membership fee... .
(1) Ordinary membership will be available to all persons over the age of eighteen (18) years of good standing in the community.

Clause 5(c) and (d) provide:

(c) Application for Ordinary or Junior Membership shall be made on the prescribed form and lodged with the appropriate fee with the Association Secretary. In addition all members of this Association will pay the fee(s) prescribed at any Annual or Special General Meeting of this Association. On being accepted members of this Association successful applicants will assume all the rights and responsibilities of the appropriate class of membership and be supplied with a copy, of this Constitution, the By-Laws and Rules of this Association.
(d) Upon receipt of an application form such new members shall be subject to a mandatory probationary period of six (6) months. Council may terminate the membership without refund of any fees paid by that member. Upon being accepted as members of this Association the successful applicant will assume all the rights and responsibilities of the appropriate class of membership and be supplied with a copy of the Constitution.

According to clause 5(a), membership is available only on a year to year basis. This is consistent with the requirement that a person must subscribe to the aims and objects of the association annually. This is in fact what happens. Tendered in evidence was a copy of the plaintiff’s “new member application” and also a copy of his “membership renewal advice” for the year ending 30 October 2013 and signed on 17 October 2012.

193. A person’s membership will cease at the end of each annual renewal period unless appropriate steps are taken to renew the membership for the succeeding year. Those steps were not taken as at 30 October 2013, indeed they were not open to the plaintiff because of the defendant’s decision to expel made on 20 March 2013. There was, of course, nothing to stop the plaintiff from making a fresh application for membership, as impractical as that would have been in the circumstances.
194. The plaintiff’s claim for an order reinstating him to membership for a period beyond 31 October 2013, being the end point of the membership year that was wrongly cut short, is, in effect, a claim for injunctive relief of a mandatory nature. The plaintiff is seeking, in effect, an order requiring the defendant to accept an application for membership or “renewal” of membership for the period 31 October 2014 to 30 October 2015. This Court has broad powers to order injunctive relief.[38] However, as is the case with other forms of equitable relief, the availability of such final injunctive relief, in the circumstances, necessarily invokes discretionary considerations. Whilst the discretion must be exercised by reference to well established principles a court is able to take account of a wide range of considerations.
195. The defendant has argued that an order for reinstatement would not be appropriate for a number of reasons. The defendant submitted that it has the right to regulate its own membership, and that it exercised that right in good faith by expelling the plaintiff. The plaintiff was expelled on the basis that he did not promote, foster and support the aims and aspirations of the club. Nothing he did during his membership with the defendant made a positive contribution to the activities or objects of the club. To the contrary, the plaintiff’s conduct unfairly burdened the club. The defendant contends that no one at the club would be willing to engage in any activities with the plaintiff in the future. To reinstate him as a member would be to force on a voluntary sporting club a person who is not suitable and not wanted as a member. There are other shooting clubs available, or alternatively the plaintiff can shoot by himself.
196. By and large, I am satisfied that these submissions carry significant weight with respect to the discretion I am to exercise. Further, the transcript of the open part of the show cause meeting discloses an additional concern. The personality of the plaintiff as revealed through his dealings with the defendant, is such that members of culling group expeditions (a primary activity and focus) may not trust the plaintiff to behave appropriately in a crisis or to be sufficiently accepting of members’ various individual differences and the rough and tumble of (predominantly male) camping life, essential to the fostering of necessary camaraderie and trust.
197. The plaintiff contended that clubs like the defendant are obliged to accommodate different personalities. The plaintiff maintained that he now accepted that he would need to approach any dispute he may have with the defendant in a different manner in future. He gave evidence that, if he were reinstated as a member of the defendant, he would actively support the aims and objectives of the club. He still maintains a desire to take part in the defendant’s culling activities, and although he yet doesn’t know anyone at the club, he would welcome the opportunity to get to know other members.
198. The plaintiff challenged the defendant’s submission that no one at the club would want to socialize or engage in club activities with him. The defendant put forward only one person, Mr Sobolewski, to give evidence on this topic. He said that the plaintiff would not be welcomed back to the club. The plaintiff submitted that Mr Sobolewski’s views ought not be seen as reflecting those of the defendant’s members as a whole and that the failure of the defendant to adduce evidence on this topic from other members should lead to an adverse inference being drawn against it on this issue.
199. I accept, on balance, that Mr Sobolewski was speaking, by and large, for the defendant in this last respect. The failure to call a parade of members to give similar evidence does not cause me to doubt this. Assuming for the present that the formal requirements for a Jones v Dunkel[39] type inference have been satisfied, there, nevertheless, is no evidentiary basis to support the contrary inference which the plaintiff would have the Court draw. This is not a matter about which I would be prepared to more readily draw an inference in favour of the plaintiff. To the contrary, the evidence fully supports Mr Sobolewski’s position. The defendant’s membership numbers about 350; it is a relatively small club. It is run on a financial shoe string dependent on volunteers from amongst its membership. It is beyond imagining that the vast bulk of the membership would not, over the last four years or so, have become aware of the festering disputes between the defendant and this new member whom no one had ever met and who had not sought to participate in club activities. It is beyond imagining that the vast bulk of the membership would not, by now, have become aware of this litigation which occupied 9 days of trial hearing time and the likely order of costs which the defendant may have incurred. I am satisfied that, for the reasons proffered by the defendant, it is highly likely that the plaintiff would struggle to be accepted within the club community, should he be reinstated by a court order.
200. There are other related considerations. As I have indicated the club is a small social and sporting organisation. It would be a big step to force upon such a community a person who has demonstrated to the Council’s satisfaction not just that he doesn’t fit in but that he presents a risk to the smooth and safe operation of club activities. This is not a case where the plaintiff enjoyed the benefits of membership for some time before being wrongly deprived of them. This is not a case where an existing relationship has wrongly been terminated. The plaintiff, notwithstanding that he was formally a member for over two years, has had no relationship with any other member and has not participated in any way in club activities. There are other outlets for the plaintiff’s shooting ambitions. There are other clubs. They may not offer all the potential advantages or benefits of the defendant club but it is not as if the plaintiff will be entirely or even substantially prevented from resuming at this relatively late stage in his life the boyhood activity he once enjoyed.
201. This is not a case where the defendant has acted unreasonably or oppressively or where the plaintiff has been prevented from defending the complaints brought against him. If so, different considerations might apply. This is a case where the incipient relationship between the parties, has, in fact, irretrievably broken down. Had the defendant conducted the show cause meeting more scrupulously the plaintiff would have had no cause for complaint.
202. In all the circumstances, I am satisfied that the discretionary considerations identified above weigh heavily against the granting of injunctive relief by way of an order for reinstatement. I am fortified in this view by the fact that the true harm caused to the plaintiff can be reflected in an award of damages.
203. I refuse the plaintiff’s application for an order effecting reinstatement (4. above). It follows that injunctive relief in the nature of 5. above lacks utility and is also refused. In any event, relief in the nature of 5. would be inconsistent with my findings concerning the parties’ conduct.

Damages

204. The plaintiff submitted that he is entitled to an award of damages and, in this respect, relied on Goodwin v VVMC Club Australia (NSW Chapter),[40] and its application of the principles in Rose v Boxing NSW Inc & Anor.[41]
205. In Goodwin a member of a motorcycle club who was found to have been invalidly expelled was awarded $1,000 in damages for his loss of social contact and the attendant depression he suffered upon losing his membership rights. In considering the issue of damages, White J observed:[42]

The next question is that of contractual damages. In Rose v Boxing NSW Inc & Anor, Brereton J held that damages may be awarded for a breach of natural justice or for purported actions in excess of power by an incorporated club or association on the basis of damages for breach of the contract between the members and the club founded on the constitution (at [106]). His Honour also held that where the purpose of such a contract is to provide pleasure, enjoyment, personal protection, relaxation or to avoid vexation, damages are recoverable for inconvenience, vexation and distress. His Honour said (at [112]) that:
“As the purpose of membership of a club is to provide opportunities to participate in social, sporting, cultural, political or other activities, breaches of contracts founded on their rules constituted by improper exclusion from membership will commonly attract such damages, because such a breach defeats the purpose of the contract.”
Those observations apply to the present case. The plaintiff has given evidence that since termination of his membership he has kept in telephone contact with a number of members, but effectively lost a great deal of his social life and ties. He gave evidence that he has missed the comradeship of fellow members and often felt depressed as a result.

206. Rose involved the expulsion of a pre-eminent, amateur boxing referee and judge who had refereed at the Sydney Olympic Games and had been nominated to referee at the Beijing Olympic Games. He had been denied natural justice in the manner in which he was expelled by the defendant boxing association and was awarded $4,000 damages for the vexation and disappointment he experienced in not being able to referee in New South Wales for over two and a half years.
207. The defendant sought to distinguish both Goodwin and Rose as a matter of law. Both decisions were decided under the New South Wales Associations Incorporation Act 1984 then in force. That act did not contain a remedial provision equivalent to s61(4) of the Act. The effect of s61(4) is to allow this Court to make orders of various types in relation to an association that has engaged in oppressive or unreasonable conduct. However an order for damages is not explicitly provided for. The defendant submitted that s61(4) constitutes an express legislative code with respect to available remedies. And, as such, the plaintiff has no entitlement to damages.
208. Section 61(4) applies only where a court is satisfied that an association “has engaged, or proposes to engage, in conduct that is oppressive or unreasonable”. I will assume for the present but without deciding, that such a finding might embrace a finding, such as the one I have made, that there has been a failure to observe natural justice in the decision making process. Even so, s61(4) provides that in such a case and in addition to specific types of orders nominated, the Court may make:

(g) any other order that is, in the opinion of the Court, necessary to remedy any default, or to resolve any dispute.

Paragraph (g) is in very broad terms and there is no reason not to give it a wide and general application so as to include an order for damages. Section 61(4), whether or not a code, is not an impediment to the awarding of damages in the present case.

209. The reasoning in Goodwin and Rose is apposite to this case and I am satisfied that there is power to award damages for the defendant’s breach of contract with the defendant as a result of its wrongful termination of the plaintiff’s membership.
210. The factual bases for the awards of damages in Goodwin and Rose were of a different order of seriousness as compared with this case. In Goodwin damages were awarded on the basis that Mr Goodwin’s social life had been significantly compromised through the loss of comradeship with former co-members. By way of contrast, the plaintiff has no friends who are members of the defendant and has not lost anything of this nature. The plaintiff is yet to develop any relationships and has been deprived only of the expectation that he might make new friends and engage in new activities.
211. The award of damages in Rose was linked to the vexation and disappointment occasioned to Mr Rose through his inability to referee in New South Wales. However, and notwithstanding his expulsion, the plaintiff has remained free to take part in shooting expeditions by himself and to join other shooting clubs. Unlike in Rose, the plaintiff has not been prevented from undertaking the primary activity from which he expected to derive enjoyment, being the use of a firearm in a sporting context including the culling of feral animals (if not through another club, at least on private land).
212. The plaintiff has given evidence that his expulsion has had a strong personal affect on him, in particular the allegations that he posed a threat with firearms and the implication that he was mentally unstable. This is not a matter I can place much weight on, given the quite limited basis on which I have found the defendant’s conduct to have been wanting. However, the plaintiff also gave evidence that he felt some level of distress by not being allowed to take part in the activities of the club he was once a member of. This is a relevant consideration.
213. The defendant submitted that in the event damages were to be awarded, they should be calculated in the context of the activities the plaintiff was, in fact, able to pursue as a member. The plaintiff had not passed his marksmanship accreditation, and, as a result, could not go on any culling trips. His potential involvement with the club was therefore limited to attending meetings or range shooting.
214. Damages awards in this area focus on the purpose of the relationship which has been broken; in this case, the plaintiff’s expectation of enjoying pleasure and a sense of achievement and fulfilment by participating in the activities the defendant has to offer. As Brereton J in Rose observed, damages are recoverable for the inconvenience, vexation and distress caused by the defendant’s wrongful conduct. In this area damages awards of only moderate amounts, typically, are justified as Goodwin and Rose illustrate. This is a fortiori in the present case.
215. The plaintiff has been deprived of participation opportunities foregone during the balance of the 2013 year, including the opportunity to apply for and enjoy renewed membership from 30 October 2013 and thereafter, together with the further participation opportunities that would bring. On the evidence available, the plaintiff’s conduct suggests that he is unlikely to have made full use of his membership for quite some time, if at all. In addition, I must take into account as a future contingency, the very real possibilities that the plaintiff would have continued to fall out with the administration of the defendant, that the plaintiff would have failed to persuade other members to go on culling trips with him and that the plaintiff would, through one means or another, have ceased being a member or to participate to any significant degree. Finally, I must, as best I can in a general sense, take account of the fact that the plaintiff, without significant additional expense, can replicate in other ways some of his expectations arising from defendant membership but not now to be realised through that means.
216. Doing the best I can, I award the plaintiff the sum of $500 by way of damages.

Conclusion

217. I make the following declaration and order:

(i) The purported expulsion of the plaintiff from membership of the defendant for the 2012/2013 year is void and of no effect.

(ii) The defendant is to pay damages to the plaintiff in the amount of $500.

Nothing in these reasons operates to prevent the plaintiff from making a late application for renewal of his membership or, more practically, a fresh application for membership. If such were to occur, it would be a matter for the defendant as to how it might respond, bearing in mind the requirements imposed on it by the Act and its own Constitution.

[1] I use the word “complaint” and variants throughout these reasons in its ordinary generic English meaning – to express dissatisfaction, annoyance, resentment or displeasure with a view to seeking redress. As will be explained later in these reasons, the plaintiff was troubled from time to time about whether he was really expressing “concerns” rather than “complaints” and the ramifications such a distinction might have for any resolution process.

[2] Mr Kym McKenney.

[3] Mr Gil Hartwig.

[4] “Hunting and Conservation” – the defendant club.

[5] The club received no complaint or expression of offence from any other member who had attended.

[6] Exhibit P3.

[7] Maine, Early Law and Custom, p389.

[8] This must be a typographical error and a reference to the 1 February 2011 initial concerns letter. The only communication of 21 February 2011 in evidence is Mr Fantinel’s letter introducing himself (referred to earlier).

[9] I appreciate that the plaintiff was concerned with more than just personal offence. As outlined in the 1 February 2011 initial concerns letter, the plaintiff was fearful of wider ramifications for the club and its members.

[10] A reference back to the 1 February 2011 initial concerns letter.

[11] The plaintiff did attend one Council Management meeting in 2012 and the 2012 AGM at which meeting his motion to amend the Constitution was put and lost.

[12] Purportedly in compliance with the requirements of s21I of the Firearms Act 1977 (SA),

[13] Mr Fantinel had agreed by then to resume this role.

[14] A transcript, agreed to by the parties is exhibit D4. Also tendered was a set of minutes for this part of the meeting but only for the purpose of identifying the persons who attended. As far as the content of this part of the meeting is concerned the best evidence is the agreed transcript of the recording.

[15] I am satisfied that the ongoing disputes between the plaintiff and the defendant became somewhat of a pre-occupation and also played a significant role in distracting the plaintiff from participating further in club activities.

[16] T186.32-188.3.

[17] Section 21I of the Firearms Act 1977 (SA) imposes an obligation on prescribed shooting clubs to make a report to the Registrar of Firearms under certain circumstances, including where it has reasonable cause to suspect that a member of the club is suffering from a physical or mental illness or condition, or where there is a threat to a member’s own safety or the safety of others.

[18] South Australian Police.

[19] After the completion of Mr Sobolewski’s evidence the plaintiff was granted leave to amend his statement of claim in this respect. The trial was adjourned part heard during the defendant’s case to provide it with an opportunity to make arrangements to adduce further evidence on the point.

[20] Of course, the common ground does not necessarily extend to any inferences to be drawn from the conduct and writings of the various protagonists.

[21] [2003] SASC 68.

[22] At [92]-[93].

[23] At [94]-[95].

[24] Plenty v Plenty at [92].

[25] [2000] SASC 87 at [503]- [505].

[26] [2003] SASC 1.

[27] At [135]-[136].

[28] [2006] SASC 306 at [26].

[29] Pettit v South Australian Harness Racing Club Inc & Ors [2006] SASC 306.

[30] [1971] 1 NSWLR 416.

[31] The factual basis for this finding is discussed at some length earlier in these reasons.

[32] Cf; Hornby v Narrandera Ex-Serviceman’s Club Ltd [2001] NSWSC 235.

[33] Supreme Court Act 1935 (SA) s31.

[34] “Declarations – Homer Simpson’s remedy – is there anything they cannot do?” (FCA)  [2007] FedJSchol 24  at  [49] .

[35] See also Mees v Roads Corporation [2003] FCA 410.

[36] Australian Competition and Consumer Commission v Chen [2003] FCA 897; Tobacco Institute of Australia Ltd v Australian Federation of Insurance Organisations Inc (No 2) [1993] FCA 83; (1993) 41 FCR 89.

[37] Goodwin v VVMC Club Australia (NSW Chapter) [2008] NSWSC 154; Plenty & Plenty v Seventh-Day Adventist Church of Port Pirie (2003) SASC 68; Donald Kenneth Paton v Lenah Valley Sub-Branch and Club of the Returned Services League of Australia Inc and Ors [1992] TASSC 9; Rose v Boxing NSW Inc & Anor [2007] NSWSC 20.

[38] Supreme Court Act 1935 s29.

[39] [1959] HCA 8; [1959] 101 CLR 298 and see more generally Molinara v Perre Bros Lock 4 Pty Ltd [2014] SASCFC 115 at [89]- [95] (Nicholson J with whom Parker J agreed).

[40] [2008] NSWSC 154.

[41] [2007] NSWSC 20.

[42] Goodwin v VVMC Club Australia (NSW Chapter) [2008] NSWSC 154 at [46].