Hogan v Fraser & Ors [2019] QSC 27
Supreme Court of Queensland, Martin J, 21 February 2019
This case concerned the affairs of an unincorporated association, the Tattersall’s Club (the Club). The Club was originally formed in Brisbane in 1865 as a settlement club for those involved in the horse-racing industry. It was, and remained, a men’s club until this century. Attempts to change that position were undertaken in 2003, 2005 and 2006. Finally, in 2018, the membership rules were changed in a ballot that succeeded in approving women members by 37 votes. The applicant contended that the ballot was not conducted in accordance with Club Rules and was invalid. The respondents were the Club’s committee members, who are invested with the entire control and management of the affairs and property of the Club.
Three issues were argued:
(a) should the court intervene in the internal affairs of the Club?
(b) was the ballot conducted in accordance with the Club Rules?
(c) were there discretionary reasons for not making the declaration sought?
On issue (a), there is a long line of authority that a court will not intervene in the internal affairs of voluntary associations, with the first and main example being Cameron v Hogan [1934] HCA 24. Therefore, for the applicant to obtain relief he had first to demonstrate that the policy enunciated in Cameron v Hogan did not apply. The applicant advanced three grounds to support the intervention of the court:
(a) that there was a public interest in the enforcement of the Club’s Rules;
(b) that the applicant had a sufficiently important personal interest in play: and
(c) that the Rules of the Club were contractual in nature.
Whilst it was recognised that some voluntary associations, such as political parties, do fulfil public roles by virtue of their size and activities, this was not the situation in this case. The court said that it agreed with previous authority that if the principle enunciated in Cameron v Hogan applied fairly to the circumstances of the case before the court, then it must be applied (at [20]).
On issue (b), there are a number of authorities which support the proposition that where the decision of a domestic tribunal affects a person’s livelihood then a court can intervene if it is alleged that the decision was made without good faith: see e.g. Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546; Mitchell v Royal New South Wales Canine Council Ltd [2001] NSWCA 162; (2001) 52 NSWLR 242. Other authorities differed as to the principles involved. In this case the court held that (at [30]):
…it is unnecessary to attempt to resolve the differences of opinion exhibited in the cases referred to above. The plaintiff has not demonstrated an interest which is similar to or analogous to the reputational rights considered in Carter [Carter v NSW Netball Association [2004] NSWSC 737] and the other cases which followed. The only interests identified are:
(a) the benefit of membership of the Club – but no argument was advanced to demonstrate how that would be adversely affected,
(b) access to the Club’s considerable facilities – again no argument was advanced to demonstrate how that would be adversely affected, and
(c) association with the rest of the members.
Moreover, the objects of the Club do not refer to, and are not directed to, any particular sex. The restriction of membership to men is the subject of a rule only.
As to issue (c), the rules of the Club did not contain any contractual provision. Therefore, a contract would have to be implied. The court held that there was no contractual relationship to be discerned (at [37]). If the Club wished for contractual relations with its members it should have incorporated as an association or as a company limited by guarantee.
Since none of the issues raised pointed to any ground for intervention by the court, then the matter was not justiciable (at [42]).
His Honour then went on to consider the validity of the ballot in the event that the matter had been justiciable. The main issue in this regard related to the fact that voting envelopes did not have the member’s number pre-printed on them. Rather, the member had to write the member number on the envelope himself. The court could not identify a difficulty with this process within the Club Rules (at [63]):
The requirement that a member write his number on the envelope rather than having a numbered envelope provided will still serve the purpose of identifying those members entitled to vote which must be the substantial purpose, under the Rules, for the inclusion of the membership number. This is a minor departure from a part of the procedures set out under Rule 14. The practical effect remains the same. The process adopted was substantially consistent with the process for elections by postal ballot set out in Rules 13 and 14.
Since the court will not, generally, grant relief where all that can be shown is a minor breach of the rules without any apparent consequence for the integrity of the election, there were no grounds for discretionary relief. Therefore, the ballot was valid regardless of the justiciability of the case.
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