Background

This is a case about voting procedures at the Brisbane Tattersall’s Club (Club) to allow females to become members. The motion to admit females as members was passed by a slim margin in 2018 after similar resolutions failed in 2003, 2005 and 2006.[1]

It was alleged that the ballot was not conducted in accordance with the Club rules and should be set aside.

The club is an unincorporated association of members.

Courts and unincorporated associations

A High Court decision in the 1930s involving the unincorporated Victorian Labor Party established the principle that a court will not usually intervene in the internal affairs of an unincorporated association.[2] The law regards such organisations as created by the members on a consensual rather than contractual basis, and the court will not enforce such a compact.

There are situations where the courts will be drawn into intervening in an unincorporated association’s internal affairs and some of these grounds are:

  • where the members intended the rules to be a binding contract between them;
  • where the affairs of the association confer individual civil rights on the members (such as a licence required to practice an occupation); and
  • where there is a public interest in the enforcement of the rules.

The Courts will ignore minor breaches of rules or meeting procedures where there is no substantial injustice.

Issues in the Tattersalls Club case

The substantial claim was that the Club’s rules required postal ballot return envelopes to be pre-printed with the member’s unique membership number for ballot integrity. The actual papers required the member to insert their membership number. A number of members did not write their membership number on the returned ballot and they were excluded from the ballot counting.

But before the Court would consider this issue, the Club was required to overcome the principle in Cameron v Hogan that the Courts are reluctant to interfere in the internal activities of unincorporated associations.

The Court was unpersuaded that the rules were intended to be a contract between the members, that the member had a civil or proprietary right affected or that there was sufficient public interest for the court to intervene.

Although the Club was not able to reach the first threshold, for the sake of any further appeal proceedings, the Court examined whether the ballot had been conducted appropriately.

Although the exact letter of the Club’s rules had not been followed, it was deemed to be a minor departure. The practical effect remained the same, being substantially consistent with the ballot process. The court refused to exercise its discretion and declare the ballot invalid.

Conclusion

The reluctance of Courts to review the internal affairs of unincorporated associations can be a double-edged sword. It gives associations some comfort that they will largely be left to their own devices to resolve conflicts between members. Members may be deprived of their enjoyment of membership without the application of natural justice and due process with little hope of external remedies.

Despite the High Court’s decision nearly ninety years ago to restrict the role of the judiciary in the internal affairs of unincorporated clubs and associations, there has been a steady stream of cases that have permitted interference on a growing number of different grounds. It is expected that this trend will continue as our society recognizes the importance of the membership attributes of many associations such as political bodies, sporting, trade, occupational and professional associations which are still unincorporated.

Finally, not every procedural irregularity will have the effect of voiding a decision. The irregularity will have to be significant with some adverse consequence before it will be declared invalid.

[1] Hogan v Fraser & Ors [2019] QSC 27

[2] Cameron v Hogan [1934] HCA 24.

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