Insights / September 19th, 2022

Removing the ‘Ass’ in an ‘Ass’ociation

So being an ‘ass’ might not always be a reason for removing someone from an association but a failure to play by the rules might be. This can sometimes result in disputes or issues that require the expulsion of a member.

The South Australian statutory framework, being the Associations Incorporations Act 1985 (SA) (“Act”), does not impose mandatory dispute resolution processes or mediations. Instead, procedures are often dictated by the Association’s constitution, rules or policies.  These are often vague as to the steps that must be followed when expelling a member or resolving a dispute.

Consumer and Business Services South Australia provide example Rules that represent a reasonable starting block for associations drafting their own constitutions. However, as with most guides, they are general and not aimed at the specific nature or member base of the Association.  Consideration should be given to more detailed clauses that tailor dispute resolution steps to the operation of each Association.

Commonly constitutions provide an overarching discretionary power for the committee or general meeting to suspend or expel members on the basis that their conduct was detrimental to the association. However, these constitutions often fail to provide a definition or clarification as to what this conduct might be. 

This unsurprisingly leads to members making complaints about whether the expulsion was fair or ‘oppressive and unreasonable’.

What is conduct that is detrimental to the Association?

The short answer – it depends!

What is detrimental is determined in light of the aims, objects or purposes of the association,[1] as contained within its constitution or rules.

South Australian courts have considered at least the following to be detrimental behaviour:

1.             Abusing the complaints system and making continued allegations against the association, causing disharmony.[2]

2.             Behaviour that makes other members of the Association feel uncomfortable.[3]

3.             Members bringing proceedings against the Association with no legal basis, therefore costing the Association time and resources.[4]

4.             Sending letters to third parties regarding a claim without supporting evidence which can damage an Association’s reputation.[5]

Courts have expressed that they are generally reluctant to become involved in the day to day conduct of an Association, meaning the scope for what may be considered detrimental may still be up for debate.

How to resolve a complaint against a member?

Should a complaint be made, an Association must follow the procedures set out in their constitution or rules and afford the member natural justice in considering the merits of the complaint.

What is natural justice?

Natural justice, commonly referred to as procedural fairness, is not defined in the Act.

The role of natural justice at common law in respect of small associations and clubs has been considered, and generally requires a member to be given:

1.     Notice and details of the charge made against them, not just broad allegations of ‘misconduct’.

2.     Notice of the hearing and the fact that they must be present.

3.     An opportunity to be heard on their defence of the charge or complaint.

4.     The right to be present during the whole of the proceedings and to be given a fair and unbiased hearing.

5.     The opportunity to respond in respect of any penalty imposed.

However, unless an obligation is imposed on it under their constitution or rules, an Association or decision maker is not generally required to give reasons for a decision. 

What can a member do if they are expelled?

A member who is expelled may be able to make an application to the Supreme Court or Magistrates Court within six months of their expulsion. The Act provides a broad protection in circumstances where the conduct of the association is ‘oppressive or unreasonable’ or where the rules of natural justice have not been applied.  

The Act does not define oppressive or unreasonable. However, generally speaking, the conduct must be unfair, according to ordinary standards of reasonableness and fair dealing, and it must be detrimental to either specific members or, alternatively, to the members as a whole.[6] The decisions and procedures of the Association will be considered in light of its aims, purposes and constitution.[7]

The courts do not ordinarily substitute their own assessment of the merits for a decision in good faith by an association’s committee.[8]

What to do if you’re faced with a complaint?

If, as a member, a complaint is made against you, ensure that the necessary processes under the Rules or Constitution are complied with.  If you feel they have not been, seek legal advice as to next steps.

If, as an Association, you face dealing with a complaint that has the potential to result in expulsion, consider the processes, and if necessary seek legal advice before any decisions are made.  If a decision has been made and a member makes an application to the Court it will need to be defended.

Should you or your association require assistance in relation to an association dispute please feel free to contact Amanda Brady or our Dispute Resolution team.

This publication has been prepared for general guidance on matters of interest only and does not constitute professional legal advice.  You should not act upon the information contained in this publication without obtaining specific professional legal advice.  No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication and to the extent permitted by law, Cowell Clarke does not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting or refraining to act in relation on the information contained in this publication or for any decision based on it.

[1] Ridgway v Sporting Shooters Association of Australian Hunting and Conservation Brand SA (Inc) [2015] SASC 7.

[2] Ibid.

[3] Atkins v Port Broughton RSL [2018] SADC 139.

[4] Becker v Sturt Pistol & Shooting Club [2014] SADC 210.

[5] Kenny v Sturt Pistol & Shooting Club [2017] SADC 67.

[6] Popovic v Tanasijevic (No 5) [2000] SASC 87.

[7] Millar v Houghton Table Tennis & Sports Club Inc [2003] SASC 1.

[8] Popovic v Tanasijevic (No 5) [2000] SASC 87.

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