Question 1
The Box Hill Squash Club (BHSC) is an unincorporated association set up for its members to participate and compete in the East Melbourne Squash Club competition. It runs a small squash centre in Box Hill South. The committee of the Club (made up of 5 members) decides to resurface the floors of its squash courts for the benefit of its members (25 members). Debra, the Secretary of the Club, was appointed by the committee to oversee and ensure the quality of the work. BHSC (in its own name) signs a contract with Floors Pty Ltd to resurface the five courts at the squash centre in Box Hill South. On the first night of practice, two weeks before the beginning of the competitive season, John (a member of BHSC) slips onto the court (Court 5) and suffers a severe gash from a protruding nail on the floor surface. Debra was aware that Court 5 had not yet been fully resurfaced but had not been well in the prior week and forgot to inform the committee. John is initially hospitalised and cannot return to work for a fortnight. He wants to sue the Club, its members, and the committee to recover his medical expenses and lost income.
Advise John.
Issue: Whether John can succeed in his suit for recovery of medical expenses and lost income against the Club, its members, and the Committee.
Rule: Unincorporated associations adopt a name and some rules, but such rules are not considered essential, as affirmed in Conservative and Unionist Central Officer v Burrell (1980). Carlton Cricket and Football Social Club v Joseph (1970) held that unincorporated associations are relatively informal and have no legal status.
However, Australian Courts allow unincorporated associations to sue or be sued in their name to serve the ends of justice. The court finds committee members collectively responsible if the contract is final and complete in such suits. In re St. James' Club (1852), it was held that no member of an association is supposed to indemnify the association's committee members for any debts or liabilities incurred on behalf of the association.
If a party has been injured due to tortious acts of an unincorporated association, such party has to establish that the members of the association allowed the tortious act to occur. This principle has been affirmed in Peckham v Moore (1975).
Application: In the instant case, Debra, who was the Club's secretary, was appointed to oversee the resurfacing work of the floors. Debra could have informed other members of the committee about overseeing the resurfacing work for that duration. Debra was aware that Court 5 was not fully resurfaced, but he omitted to inform the committee about the same. Therefore, Debra acted negligent as he did not discharge his professional duties. Moreover, Debra's ill health is not a reason sufficient enough to exempt his liability in its entirety.
Since the tortious act of negligence on Debra caused injury to John, the decision rendered in Peckham v Moore (1975) applies here. John needs to establish the failure on the part of Debra and the causal connection between his injury and Debra's negligence.
Conclusion: Subject to establishing negligence on the part of Debra, John can succeed in his suit for recovery of medical expenses and lost income against the Club, its members, and the committee.
Question 2
Rain Hill Orienteering Club (RHOC), an unincorporated association, is a member of the Regional Victorian Foot Orienteering League (RVFOL), also an unincorporated association. RHOC organises age group orienteering teams to compete against other clubs in the RVFOL. The agreement between the RVFOL and all its member clubs (including RHOC) states the rules of the RVFOL and the provisions of its constitution 'shall operate as an agreement binding every affiliated club'. Jennifer Lu, a member of the RHOC, has been coaching orienteering in Victoria for 20 years and is in charge of the under 14s and 16s at RHOC. Rashid is a member of the Under-14s squad at RHOC but has recently not been selected to compete due to the better performance of the other squad members.
Rashid complains to his parents that Jennifer's coaching techniques are too aggressive and that she is constantly 'yelling' and 'pushing and shoving him and other participants. Rashid's father, Tom, does not think much of Jennifer as a coach and believes she discriminates against his son. Tom decides to write a letter to other parents of members of the RHOC expressing his concern for the welfare of their children at RHOC. Many of the parents sign a petition for child protection, included with the letter from Tom. Tom presents this petition to the Board of the RVFOL, who decide to convene a disciplinary committee by its constitution. The committee found Jennifer Lu guilty of abuse, on the basis of the petition, and ban her from coaching orienteering for three years (Jennifer never saw the petition, nor was she aware that Tom had written to some parents). One of the three disciplinary committee members, Sasha, who was also a coach, was very happy with the outcome, as she would now be able to earn more by taking over the under 14s and 16s. In addition to the ban, the committee informs the Commission for Children and Young People that Jennifer has been the subject of disciplinary proceedings relating to child abuse, sexual misconduct or acts of violence during employment. Upon discovery of the RVFOL disciplinary committee decision, Jennifer's school, where she is employed as a Physical Education teacher, gave Jennifer notice for termination of her contract. Jennifer is distraught and would like to challenge the RVFOL disciplinary committee's decision and the school's termination of her contract.
Issue: Whether Jennifer can challenge the decision of the RVFOL disciplinary committee and the decision of the school to terminate her contract.
Rule: The enforceability of disciplinary actions by sports organisations has been explained in the decision of Cameron v Hogan (1934). In Cameron v Hogan (1934), it was observed that unless there is some clear and positive indication that the members regarded their membership as the creation of legal relations, the rules of governance of such sports organisation will not amount to an enforceable contract.
However, the rule propounded in Cameron v Hogan (1934) is subject to the following exceptions:
When a disciplinary action against an athlete affects their proprietary interests, the matter becomes justiciable. In Australian Football League v Carlton Football Club Ltd (1998), it was held that the courts would not refrain from intervening in a decision rendered by a private or domestic tribunal if it is necessary to attain justice.
If an unincorporated association indicates that its governance rules are contractual terms and legally enforceable, the rule of Cameron v Hogan (1934) will not apply. Rose v Boxing NSW (2007) held that the expression '…shall operate as an agreement binding every affiliated club…to abide by all its provisions' is sufficient to establish a contractual relationship.
However, the court will not consistently enforce the terms of such a contract and will consider the exercise of its equitable discretion as to whether any ultimate benefit is secured by reversing an illegitimate expulsion.
Whenever a disciplinary action of an unincorporated associated causes damage to one's reputation, it also ruins other life prospects. In Annetts v McCann (1990), it was held that a person's reputation should not be damaged due to an official finding unless such a person is given a fair opportunity to show why such a finding should not be made.
Later, in Carter v NSW Netball Association (2004), Palmer J considered the matter justiciable on the grounds of damage to reputation.
The decision of Carter v NSW Netball Association (2004) also provided that if the disciplinary action of an unincorporated association affects an athlete's livelihood, then such matter becomes justiciable and warrants intervention by the court.
An athlete can challenge the decision of an unincorporated association if it affects their capacity to trade, thereby offending public policy, as held in Buckley v Tutty (1971).
Lastly, the decision rendered in Nagle v Fielden (1966) provided the exception of public policy to the rule propounded in Cameron v Hogan (1934), i.e., any disciplinary action of an unincorporated association that runs contrary to the public policy can be overruled by the court.
Application: In the instant case, the agreement between RVFOL and its member clubs contained the expression '…shall operate as an agreement binding every affiliated club'. As held in Rose v Boxing NSW (2007), such expression is sufficient to establish a contractual relationship. The existence of a contractual relationship between RVFOL and its member clubs bars the applicability of the rule propounded in Cameron v Hogan (1934), and therefore, the matter is justiciable.
As the court will examine the matter, it is evident that such a decision has caused damage to its reputation of Jennifer. The school where she was employed also terminated her contract when the conclusion of the RVFOL disciplinary committee came to its notice. Consequently, Jennifer is left with no means to sustain her livelihood.
Moreover, Jennifer was not provided with the opportunity to show why such a decision should not be taken against her. Therefore, the RVFOL disciplinary committee's conclusion disregarded the audi alteram partem, a principle of natural justice.
Therefore, Jennifer is entitled to challenge the decision of the RVFOL disciplinary committee and the decision of the school to terminate her contract.
Conclusion: Jennifer will succeed in her challenge to the decision of the RVFOL disciplinary committee and the decision of the school to terminate her contract. The court will reverse the ban against her for coaching orienteering.