Advantage, president: Court rules against tennis club's double fault

The committee made its decision – it doesn’t particularly matter what it was about – and as one might expect a number of people then came out of the woodwork to complain that they hadn’t been consulted. One of them sent me an official complaint. That was some decades ago, but I still remember our conversation.

“I was never notified,” he said.

“Everyone in the department was sent an email.”

”I never got it. Have you checked your Sent mail?”

“I knew you’d be interested, so I shoved a copy of the agenda under your door.”

“I’m not calling you a liar, but…. Anyway, I never got it.”

“You wrote your complaint to me on the back of it,” I said, holding it out.

“Then why did you put it under the door blank side up?”

You can’t win, but O’Connell v. Kawana Tennis Club, a recent case in the Queensland Supreme Court, illustrates just how hard you have to try.

Josie O’Connell had been president of the club, but was replaced, along with the rest of the management committee, at a special general meeting.

The new committee took up complaints that had been made against O’Connell, considered reports of “Multiple instances of inappropriate behaviour during social tennis events… not limited to…disruptive conduct during matches, verbal abuse, and the use of intimidating and offensive language toward other participants and members.” They said they’d sent her a “First And Final Warning” and, getting no reply from that, terminated her membership (and, again, said that they’d given her written notice).

O’Connell turned up at the club some time later and was told she’d been expelled as a member and couldn’t use their courts any more. This was, she said, the first she’d heard of it. The police were called: they didn’t come, but they did ring O’Connell up and say there’d been a complaint.

The club’s constitution said

If a member… iv) Conducts himself in a manner considered to be injurious or prejudicial to the character or interests of the Association…
The Management Committee shall consider whether his membership shall be terminated. The member concerned shall be given a full and fair opportunity of presenting his case and if the Management Committee resolves to terminate his membership it shall instruct the secretary to advise the member in writing accordingly.

The first question, then, was whether O’Connell had actually got any of the mail the committee said she’d been sent. She said she hadn’t, and the judgement of the court makes it clear that anyone wanting to deny this had to jump over a pretty high bar.

In order to reject the applicant’s evidence, that she did not receive these letters, I would need to find that she is a dishonest witness who has lied on oath. Given the serious adverse consequence of such a finding, the Briginshaw principle applies, requiring proof to a high standard.

That high standard meant that the evidence on behalf of the committee that the relevant email may have been sent, and possibly even delivered, didn’t prove it had been received. After all, O’Connell didn’t seem to be the kind of person who’d let such things pass; why wouldn’t she have retaliated furiously?

If she hadn’t got the messages – and it would appear that the committee had the onus of proving that she had – then the rules of natural justice applied (and, failing that, the constitutional Full and Fair provision kicked in). O’Connell hadn’t been given a full and fair opportunity to present her case, and the expulsion was invalid.

Well, the committee said, that might be, but in that case the proper course for the applicant was to use the club’s constitutional appeal procedures and call a special general meeting.

No, said the judge.

Under the constitution, the applicant is entitled to the opportunity to be heard twice – once by the management committee, prior to the decision being made to terminate her membership… and then… at a general meeting of the members of the Club.

It’s really not an easy matter to expel a member. The courts are not minded to make it any easier. You have to dot many i’s and cross a shedload of t’s. You can’t make any assumptions. You have to take extreme pains and go to a lot of trouble – almost enough, in fact, for any committee to have to think very, very hard about whether it’s all worth it. If you’re looking for the easy way out, this is emphatically not it.

This article is based on a legal case note by Myles McGregor-Lowndes, part of the Australian Centre for Philanthropy and Nonprofit Studies (ACPNS) Legal Case Reports Series.