Wayde v Western Suburbs Leagues Club Limited

HIS HONOUR: Rugby league in Australia is a community-based sport with a rich history dating back to 1908. [1] Operating from 2012, the controlling body for rugby league in Australia is the Australian Rugby League Commission. It “has responsibilities for fostering, developing and funding the game from the junior to the elite levels” and organises various competitions including relevantly the National Rugby League (NRL) and the Women’s Premiership competitions, the State of Origin and Australian representative matches. [2]

Generally, there is a close connection between "leagues clubs" such as the defendant (Club), which are social recreational bodies for the benefit of members and which derive income in various forms, and "football clubs" devoted to the pursuit of rugby league football, conducting matches under the auspices of the NRL. The precise connection between such clubs has varied both over time and within the NRL and its predecessors. Historically, leagues clubs provided much of the funding for football clubs, together with advertising and other financial sponsorships. [3]

Sadly, the Club has been marked to some degree in recent years by what has been described as a toxic relationship at the Board level. [4]

Within football clubs, each aspect of the organisation impacts others and may well have wider effects. The great rugby league coach Jack Gibson famously said: [5]

Several variations of Gibson’s quote have been coined and attributed to him, including “Winning starts in the front office”. The truism of Gibson’s observation as to parts of a football club affecting other parts is no less true of the operations of leagues clubs such as the Club.

The full ramifications of the present dispute on the Club are presently hard to gauge and will remain to be seen.

On 24 March 2025, I heard an urgent application relating to the affairs of the Club arising out of a dispute between the plaintiff (Mr Wayde) and the Club as to whether Mr Wayde has been validly removed as being a director of the Club.

In circumstances in which an election was due to be held the following day, Mr Wayde sought to restrain the Club from certain action, being relevantly: [6]

On the hearing of the application, Mr S Docker SC appeared with Mr J Rodgers for Mr Wayde and Mr J Hewitt SC appeared for the Club.

I gave a limited form of injunction, though not as extensive as sought by Mr Wayde, to restrain the Club from holding an election to fill the position of what is described below as the General Member Director.

Given the proceedings were urgent and heard in the Duty List, the parties were agreeable to proceed on the basis that I would announce a decision and later give reasons for judgment. [7] These are my reasons for judgment.

On 20 March 2025, Mr Docker SC approached me as Duty Judge seeking urgent leave to file in court and serve a summons seeking final relief against the Club. I made orders which permitted the serving of the summons (and evidentiary material) on solicitors acting for the Club, with the summons to be returnable before myself as Duty Judge on 24 March 2025. Mr Docker SC also sought leave to urgently serve a subpoena addressed to Simon Cook (Mr Cook), CEO and Secretary of the Club, [8] for him to give evidence on the return date. I permitted issue of that subpoena.

The final relief sought in the summons may be summarised as follows: [9]

On 24 March 2025, on the hearing of the matter, Mr Wayde relied upon:

The Club relied upon an affidavit of George Paul Pasas (Mr Pasas) sworn 24 March 2025 (GP) (and exhibit GPP-1 (GPP)).

The affidavit evidence adduced in the case of Mr Wayde was read without objection. [10] Whilst there was objection to part of the affidavit of Mr Pasas, I admitted it for the purposes of the interlocutory hearing. [11]

Mr Wayde’s counsel provided a written outline of submissions (POS) and both Mr Docker SC and Mr Hewitt SC made oral submissions.

I will cite the material in the proceedings, as I already have, by reference to the abbreviations I have given to the affidavits, exhibits, submissions and transcript (T). The Club has a Constitution [12] and unless specified otherwise, my reference to “rules” are the rules of that Constitution.

Having regard to the attenuated notice given to the Club of the application, Mr Hewitt SC indicated that the Club was not in a position where it was able to bring forward evidence to answer substantive issues raised by Mr Wayde. In those circumstances, he accepted, for the purpose of the injunctive relief contest, that there is a serious question to be tried as to the issues of procedural fairness and the declaration sought in prayer one of the summons (that the purported decisions of the Club by its Committee on 20 and 31 December 2024 (respectively Decision 1 and Decision 2) are void and of no effect. [13]

From the Club’s perspective, the first notice it had of the interlocutory application was 20 March 2025. [14] From Mr Wayde’s perspective, some notice of intention to challenge the decision was given in Mr Di Girolamo’s letter dated 31 January 2025 which outlined the basis for his complaint and foreshadowed that, unless there was compliance with requests to quash the decision and reinstate (relevantly) Mr Wayde, Mr Di Girolamo was instructed to commence proceedings to seek appropriate orders. [15]

In those circumstances, counsel were agreed that the decisive battle as to whether interlocutory injunctive relief ought be given related to the question of balance of convenience. [16]

The Club is an unlisted and non-profit public company limited by guarantee registered under the Corporations Act. [17] The Club’s Constitution was last amended on 25 March 2023 and excludes the replaceable rules in the Corporations Act. [18] The Club may make by-laws not inconsistent with the Constitution and by-laws have been made and were last amended on 28 November 2023. [19]

By force of the Corporations Act, the Club’s Constitution has effect as a contract (a) between the Club and each member; (b) between the Club and each director and company secretary; and (c) between a member and each other member, under which each person agrees to observe and perform the Constitution and rules so far as they apply to that person. [20]

The Board cannot exercise its powers to do acts and things required to be done in General Meetings. The Board’s powers are also subject to the Corporations Act, the Registered Clubs Act 1976 (NSW) (Registered Clubs Act) and the Constitution. [21] The Board may delegate its powers to committees, [22] such as the Committee in this case (being the Disciplinary Committee of the Club).

The objects of the Club include: [23]

The objects also reveal purposes associated with the operation of football within the district covering the Western Suburbs of Sydney, including clubs such as the football club: [24]

The Board has 7 directors, [25] and is permitted, in the case of a casual vacancy, to appoint up to 2 additional persons as members of the Board. [26] The 7 directors of the Board are elected by the general body of Full members. [27] Of these 7 directors, 5 must be nominated by the debenture holders and the other 2 cannot be nominated for nor held by debenture holders. [28] Thus there is a distinction between Debenture Holder Directors and General Member Directors. [29] The directors are elected for three years on a rolling basis, so two or three of them come up for election every year. [30]

There are a maximum of 20 debenture holders. [31] No member who is under suspension shall be elected or appointed as a director or a member of any committee of the Club. [32] A person’s office as director will be immediately vacated and a casual vacancy created if the person ceases to be a member entitled to hold office on the Board. [33] The Board has power to appoint an eligible person to the Board to fill a casual vacancy until the next AGM. [34]

By mid-July 2024 and for the period up to 31 October 2024, there were 7 directors of the club, being relevantly: [35]

By that time (mid-July 2024), the Board had split into 2 factions, Ms Romero, Mr Burgess, Mr Montgomery and Mr Tropiano in one faction and Mr Andreacchio, Mr Gilbert and Mr Wayde in the other. [36]

Mr Wayde was a General Member Director, having been elected to that position for a fifth time in March 2024 for a 3-year term, for which he was remunerated. [37] He also, at relevant times, appears to have been a director of the Western Suburbs District Rugby League Football Club Limited (referred to as Magpies). [38]

Publicly, the position regarding directorship of the Club has recently varied.

As at 10 March 2025, an ASIC search [39] revealed 5 directors of the Club, being relevantly Mr Burgess, Ms Romero, Mr Tropiano, Mr Montgomery and Brian Hare (appointment date unknown). [40] Mr Andreacchio, Mr Gilbert and Mr Wayde were all listed as being “previous” directors having ceased on 6 November 2024 (but recorded for ASIC purposes as ceasing on 16 January 2025), [41] consequent upon the lodgement of a Notice to Change to Company Details signed and lodged by Mr Cook on 16 January 2025. [42]

On the other hand, as at 18 March 2025, Mr Rick Yabsley (Mr Yabsley) and Mr Francesco Primerano (Mr Primerano) are shown on the Club’s website as having been recently appointed to the Board. [43]

On 16 July 2024, the Committee passed a resolution for Mr Gilbert not to preside (or relevantly sit) on the Committee dealing with charges (see below) against Mr Wayde (the resolution noting) because he is also the subject of disclosures and complaints and has a clear material personal interest in the charges against Mr Wayde. [44]

Mr Wayde asserts that, immediately prior to 6 November 2024, he had never received a complaint about his conduct as a director of the Club. [45]

As at 6 November 2024, the directors of the Club remained as stated above and the members of the Committee were Ms Romero, Mr Montgomery, Mr Burgess, Mr Gilbert and Mr Cook. [46] Mr Gilbert, as noted, was precluded from dealing with the claims against Mr Wayde. Mr Cook was an ex officio member by reason of his position as CEO. [47] However, Mr Cook was of the view that he was not on the Committee, stating he had a management representative, being Mark Thatcher. [48] Ms Romero was the de facto chair of the Committee. [49]

By arrangement and in circumstances revealed below, Mr Cook had agreed with Mr Montgomery to take some time away from his position (a form of sabbatical). The agreed time was from 1 July 2024 to 31 December 2024. However, it started two weeks earlier and he returned three months earlier than agreed (i.e. returning on the first Monday in October 2024). [50]

Mr Cook became aware of the disciplinary charges against Mr Wayde on 6 November 2024. He did not have any role in the charges being laid nor in the disciplinary process thereafter. [51]

Accordingly, for the purposes of the contested decisions, the members of the Committee comprised Ms Romero, Mr Montgomery and Mr Burgess. [52] Mr Hewitt SC appeared to accept that it was a reasonable inference that, as at 6 November 2024, the Committee is comprised of those persons. [53]

The Constitution provides for certain types of members, including, relevantly, ordinary members (including general members, social members and junior sporting members), life members, honorary members, temporary members and provisional members. [54]

The rights of members are addressed in the Constitution in a number of places but, in particular, in rules 21-23.

The Club appears to have 3 subsidiary companies associated with it, being Western Suburbs District Rugby League Football Club Limited, Wests Magpies Pty Limited, and Wests Tigers Rugby League Football Pty Ltd. [55]

The Club appears to be branded as the Holman Barnes Group [56] (or at least part of that Group), which also encompasses three particular clubs designated as Wests Ashfield, Croydon Sports and Markets Club. [57]

Despite the portrayal of close association of the Club with the subsidiaries and other clubs, including consolidation of financial accounts, [58] the exact interaction of the Club with all these entities is not fully explained in the evidence. However, I do not suggest that for the purposes of the hearing it was necessary for such an explanation to be given.

Various provisions of the Constitution bear upon disciplinary provisions. However, specific provisions regarding discipline referenced during the hearing are set out in rule 46, which is as follows: [59]

The prefacing words and other provisions of rule 46 admit of the possibility that the Board itself as a whole may deal with disciplinary matters as distinct from a disciplinary committee of the Board. However, there is no suggestion that, in relation to the proceedings involving Mr Wayde, the Board acted other than by its Committee. [60]

The charges and decisions the subject of the Court application related only to Mr Wayde. However, by way of background (though not directly relevant to the determination of the application), there were separate charges and hearings in relation to Mr Gilbert and Mr Andreacchio. [61]

On 6 November 2024, Ms Romero, “by order of the Company’s disciplinary committee under Rule 46 of the Constitution” gave Mr Wayde, without prior notice to him:

The Suspension Notice asserted that, as a suspended member, Mr Wayde ceased to be a director, and his office is immediately vacated. [64]

Further, consequent upon the suspension:

The Charge Notice specified 3 charges (Charges) against Mr Wayde, namely, it was alleged that he: [67]

The Charge Notice provided 6 particulars.

The first 3 particulars stated that at all material times Mr Wayde was: (1) a member of the Club; (2) a director of the Club; and (3) a director of the Magpies. [68]

The fourth to sixth particulars were as follows: [69]

The Charge Notice invited Mr Wayde to provide any evidence and/or submissions to the Committee by 5 December 2024 and noted that the Committee would hear the Charges at 6 pm on 12 December 2024 in the “Club’s Board Room”. [70]

Schedule 1 specified “Particulars allege conduct”, stating:

Various particulars were specified over two pages. I will not reproduce all the content. The alleged unreasonable conduct was divided into 11 paragraphs (numbered 1, 2, 2.1, 3, 3.1, 3.2, 3.3, 3.4, 3.5, 3.6 and 4), many of which contained subparagraphs. Further, there were 2 attachments (referenced in paragraphs 3.5. and 4). [71]

Broadly speaking, the alleged conduct consisted of things Mr Wayde was alleged to have said or done in meetings or social settings. [72]

Relevantly, the particulars of the charges expressly assert conduct by Mr Wayde against Mr Burgess (3.1, 3.3, 3.4, 3.5. 4, Attachment 1) and Mr Burgess’ wife (3.4). Particular 3.2(a) also assert conduct against directors generally, one of whom is Mr Burgess.

Nothing in Schedule 1 identified whether any of the alleged conduct supported Charge 1, Charge 2 or Charge 3. [73]

On 11 December 2024, the day before the scheduled hearing, the Club’s solicitors, Clayton Utz, sent an email letter to Mr Marsh (a solicitor representing Mr Wayde) attaching a report by a firm, Workdynamic, [74] that 6 contained factual findings arising from its investigation which were said to be relevant to the upcoming hearing. The letter also stated that the investigation was being treated as a report under the Club’s Whistleblower Policy. [75] The email concluded by indicating that the Committee had elected to withdraw charge “4.1” against Mr Wayde. [76] It is not entirely clear to me what was meant by that. There is no “Charge 4.1”, nor a “Particular 4.1”, nor a “Paragraph 4.1” in Schedule 1. [77]

On 12 December 2024, Mr Wayde attended the hearing with Mr Marsh. Decision 1 records the Committee as consisting of Ms Romero, Mr Montgomery and Mr Burgess, with Mr Montgomery presiding as the “Chair”. [78] Mr Montgomery read out the Charges and Mr Wayde denied each one. [79]

In respect of the hearing, Mr Docker SC, based on Mr Wayde’s evidence, contended the following occurred:

It is clear that the Committee relied upon and took into account a schedule of findings in the report of Workdynamic, [83] and that no witnesses were called by the Club. [84] Mr Docker SC observes that this was the context in which Mr Wayde did not give evidence. [85] Thus, Mr Docker SC contended, and it seems undisputed, that the only “evidence” before the Committee was the Schedule of the investigator’s findings. [86]

On 20 December 2024, the Committee handed down Decision 1. [87] The record reveals, regarding Mr Burgess’ participation, that: [88]

Seemingly, the “Consideration” of the Committee of the allegations were limited to the matters set out in Schedule 1 [89] (which, it will be recalled, expressly related to only Particular 4 of the 6 particulars).

The Committee found allegations 1, 2, 3.3, 3.5 and 4 [of Schedule 1] were substantiated and, as a result, all 3 Charges were found to be proven. [90] No separate findings were made for Charge 1, Charge 2 or Charge 3.

On 27 December 2024, Mr Marsh appeared before the Committee for the penalty hearing and made submissions on behalf of Mr Wayde. [91] Those submissions included submissions that the Committee was not adequately constituted, which were rejected. [92]

On 31 December 2024, the Committee handed down Decision 2 on penalty, [93] suspending Mr Wayde’s membership of the Club for a minimum of 8 years. [94]

On 18 February 2024, an Election Notice was issued for four positions on the Board, being relevantly 2 members nominated by Debenture Holders (to hold office until the conclusion of the 2028 AGM) and two members nominated by non-debenture holders (created by casual vacancies on the Board arising by dint of Mr Wayde and Mr Andreacchio ceasing to hold office, with the successful candidates to hold office until the conclusion of the 2027 AGM). [95]

For the election, Mr Burgess and Michael (Mick) Liubinskas, candidates for the two Debenture Holder positions (held by Mr Burgess and Mr Gilbert), were nominated and accepted to fill those roles by resolutions made before the AGM [96] (due 27 March 2025). [97] There are proposed resolutions before the AGM for the election of Mr Burgess and Mr Liubinskas as Debenture Holder directors to be confirmed. [98]

The ballot for the elections was to be conducted between the hours of 12 noon to 8pm respectively on each of Tuesday, 25 March 2025 and Wednesday, 26 March 2025. [99]

There was no relevant debate regarding the principles applicable to interlocutory injunctive relief. Mr Docker SC cited the exposition principles of McGrath J in May v Walker [2023] NSWSC 1628 at [130]-[142] per McGrath J; see also In the matter of Old Newingtonians’ Union Incorporated [2024] NSWSC 619 (Old Newingtonians’ Union) at [26] per McGrath J. Mr Hewitt SC did not venture debate regarding the applicable principles.

Precisely what is meant by an ‘injunction’ varies according to context. [100] Injunctive relief arises from various sources and takes various forms. Its most frequent use is as a form of a restraining order but it may take the form of a mandatory order directing action to be taken. [101] In a practical sense, its use is often employed in circumstances where other forms of relief, such as compensation by damages are assessed to be inadequate to address the circumstances of the matter. [102]

An injunction is ‘interlocutory’ (from the Latin word interloqui meaning “speaking between” two points) when it operates from the time of the application for provisional relief until the final determination of the proceedings. It is often expressed as being made “pending further order” and is distinguished from interim injunction, which is usually of much shorter duration, expiring at a fixed date and time set out in the order [103] which may in some cases be overnight or days.

Conventionally, an injunctive purpose is said to preserve the status quo until the hearing of the main action. [104] On a broader view of matters, courts, when approached for urgent injunctive relief, have choices amongst remedies which involve a type of case management decision-making. Options [105] include whether (a) it is better for the status quo to be preserved; or (b) the parties will be adequately protected by keeping full and open accounts of the disputed dealings; or (c) to accept undertakings to the Court; or (d) to fix an early hearing and in that way minimise damages that will flow if the plaintiff is correct in its claims.

The requirements for establishing interlocutory relief are variously expressed in caselaw and texts. Broadly speaking, it has been said that such relief involves considering the following matters: [106]

The notion of a “prima facie case” or “serious question to be tried” refers to an assessment of whether the underlying elements of the action or equity or other right contended for will be established on a final hearing. [107] However, the exact nature of what is required has been expressed by courts including the High Court in different ways. [108]

In a passage which has been regularly referred to, Gummow and Hayne JJ in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 (O’Neill) at [65]-[72] in respect of applications for interlocutory injunctions, cited an extract from Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 1 at 622-623 per Kitto, Taylor, Menzies and Owen JJ; [1968] HCA addressing two main inquiries as follows:

Gleeson CJ and Crennan J in O’Neill at [19] described the approach to interlocutory injunctions in terms of “organising principles” and referenced the decision of Doyle CJ in Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440 at 442-443, stating (omitting footnotes):

Each of Mr Docker SC [109] and Mr Hewitt SC [110] used the terminology of “serious question to be tried”. Neither suggested in the circumstances of this case that any material difference depended upon use of that expression rather than a “prima facie case”.

The cogency of the matters bearing upon injunctive relief obviously vary in each case and their relative strength is considered in the overall assessment of whether relief ought to be granted or not: e.g. Northern Star Agriculture Pty Ltd v Morgan and Banks Developments Pty Ltd [2007] NSWSC 98 per Young CJ in Eq at [20]; Government of Russian Federation v Commonwealth of Australia [2023] HCA 20; (2023) 410 ALR 223; (2023) 97 ALJR 545 per Jagot at [28].

That assessment is not a matter of precise calculation but directed to determining what course is best calculated to achieve justice between the parties in the circumstances of the particular case, pending the final hearing. This was expressed by McLelland J in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535C-E as follows:

Mr Docker SC outlined [111] that Mr Wayde seeks to enforce his contractual rights against the Club as a member and director of the Club. To this end, he seeks to invoke the Court’s equitable jurisdiction and the Court’s jurisdiction with respect to civil matters arising under the Corporations Act conferred by s 1337B(2) [112] of the Corporations Act in so far as he seeks orders under s 1322(2). [113] Mr Docker SC submits Mr Wayde has a strongly arguable case, and that it is relevant to the balance of convenience. [114]

In summary, the plaintiff’s submission is that there is a “serious question to be tried” in that the proceedings of the Committee (from the time of the Notice of Charge and Notice of Suspension until the conclusion of Decision 2) were infected by apprehended bias, or alternatively, actual bias and also by a lack of quorum (resulting in a substantive injustice within the meaning of s 1322(2) of the Corporations Act). [115]

Mr Docker SC contends that:

Specifically, he contends that there is a two-step approach to determining the existence of possible bias. [119] The first step is identifying what is said might lead a decision-maker to decide a case other than on its legal and factual merits (including the decision-maker’s interest if that is the basis for the alleged apprehension of bias). The second step is to articulate the logical connection between the interest and the feared deviation from the course of deciding the case on its merits. [120]

The first step, Mr Docker SC submits, is established by reference to Mr Burgess’ interest as an accuser, prosecutor or other moving party, regarding conduct alleged in the Particulars 3.1, 3.2(a), 3.3, 3.4, 3.5 and 4 against Mr Wayde. [121] Further, he submits that Mr Burgess’ personal involvement in the alleged facts as the alleged victim added another dimension to his level of involvement as a prosecutor or accuser. [122]

The second step, Mr Docker SC submits, is established by a conflict-of-interest amounting to “incompatibility” in Mr Burgess’s role as the victim of the alleged conduct and his prosecutorial role such that “disqualification would seem to be the only possible outcome”. [123]

Further, Mr Docker SC submits there was a breach of the apprehended bias rule by the Committee [124] in the following respects: [125]

Mr Docker SC emphasised that Mr Burgess participated fully in the Committee’s processes up to and including the hearing on 12 December 2024, was present during the hearing and when the Committee “met to duly pass a motion to accept and approve this decision,” and was also present for the penalty hearing and the decision on penalty. [126]

Mr Docker SC says the mere presence of an accuser as a member of a tribunal is contrary to the rules of natural justice [127] and thus the presence of Mr Burgess at some stages (even if non-voting) impermissibly impacted the other stages. [128]

A quorum of the Committee is 3 members of the Board. [129] Mr Docker SC contends that:

I pause at this point simply to note that Mr Hewitt SC contended that Mr Burgess was present for the purposes of rule 46(c) and that the two members who did vote (being Ms Romero and Mr Montgomery) were sufficient to satisfy the requirements of rule 46(c). [132]

Mr Docker SC made submissions as to the impact of rules 65(d)-(e) of the Constitution on the resolution of the Committee on 12 December 2024 to allow Mr Burgess to continue to be present at the hearing. [133]

Decision 1 under the heading “The Disciplinary Committee” references rules 65(d) and (e) as follows: [134]

Further, under the heading “Committee resolutions”, Decision 1 cites rule 65(e) as follows: [135]

It appears that in relation to the first hearing Ms Romero was unwilling to act as Chair, as was Mr Burgess, and a motion was proposed to elect Mr Montgomery as Chair which was passed. [136]

Decision 2 under the heading “Submissions as to the Constitution of the Committee” cites rule 65 as follows: [137]

Mr Docker SC submitted in essence:

Mr Docker SC further contended that for the purposes of s 1322(2) of the Corporations Act, the absence of a quorum caused substantial injustice [142] by reason of the fact that a different result may have been produced had the procedural irregularity not occurred [143] and because Club members were deprived of the right to have disciplinary proceedings against its duly elected director determined by a Committee or the Board in accordance with the Constitution. [144]

Mr Hewitt SC did not develop any particular arguments regarding the operation of rule 65 nor the provisions of s 1322 of the Corporations Act.

Mr Docker SC further asserted that there was a prima facie case of prejudgment by the Committee, established by evidence of Mr Cook. [145]

Mr Cook was called pursuant to the subpoena and gave evidence [146] relevantly as follows. On 28 March 2024, he attended a memorial service for the late Colin Burgess (brother of Mr Burgess). Mr Cook approached Mr Montgomery and spoke with him about toxicity on the board and contemplated that he (Mr Cook) would take a sabbatical, seemingly having regard to that toxic environment. Mr Montgomery agreed that it would be a good time for Mr Cook to do that. [147]

Mr Cook indicated that, at this point, Mr Montgomery said that “things would be cleaned up” when he was to return, specifically that “Rick and Tony had done things that would mean that he would be able to get rid of them”. [148] Mr Cook asked him what he meant by that to which Mr Montgomery indicated that “I didn’t need to know but things would be a lot better once I returned”. There was no further discussion regarding that situation. [149]

Mr Docker SC submits that as a result of the Committee proceeding, Mr Wayde has lost his membership of the Club for 8 years, his position as a director together with the income this position entitles him to, and he has been barred from the Club. He contends that “All but the loss of income cannot be compensated by an award of damages because the loss of his membership, directorship and access to the Club cannot be measured in money because it includes the loss of a large part of his life and activities”. [150]

Mr Docker SC’s submissions as to balance of convenience were as follows.

First, if an injunction is not granted, the election will proceed and someone will be elected to fill Mr Wayde’s position as director, which election will be treated as valid unless the Court determines otherwise in proceedings. [151]

Secondly, Mr Wayde will have to amend his claim to assert that any such election is invalid or ineffective to fill his position because a decision made in denial of procedural fairness is operative until challenged and upon the challenge being upheld is (retrospectively) void ab initio, although it may have some effect as a practical matter in the meantime. [152] He emphasised that a discretion to decline relief [153] is more likely to be exercised where an election has occurred for Mr Wayde’s successor and the person has filled the position for a period. [154]

Thirdly, Mr Wayde will suffer significant prejudice and hardship because he will continue to be deprived of being a member and director and having access to the Club, given his age of 78 years, how involved he has been in the community and the Club and that he was elected for a 3-year term. [155] Mr Docker SC contends that the prejudice to Mr Wayde should be given more weight as he has a strong case. [156]

Fourthly, if an injunction is granted, the functioning of the Board will not be adversely affected. [157] The continuing members of the Board may act notwithstanding any vacancy on the Board unless the number is below the quorum, which is 4. [158] There is no possibility of the number of directors falling below 4 as the Club will have 5 continuing directors (whatever the outcome of the 25-26 March 2025 elections), namely, Ms Romero, Mr Montgomery and Mr Tropiano, as well as Mr Yabsley and Mr Primerano, who appear to have been recently appointed by the Board. [159]

Fifthly, although the courts have been reticent to become involved in the affairs of organisations where it would have the effect of subverting the will of the members such as in election processes, equally, the Court should [or may] intervene in election processes where what is envisaged is not in keeping with the will of the members. Mr Docker SC contends that is particularly significant having regard to the fact that members have consistently on 5 occasions elected Mr Wayde as a director. [160]

Sixthly, Mr Docker SC submits that the election can be postponed and the AGM adjourned [161] or there are other alternatives. [162]

Seventhly, the cost of wasted elections will not be significant because elections simply require members to come into the Club and vote and for the votes to be counted. [163]

Mr Docker SC expressly addressed what was said to be Mr Wayde’s impoverished or “straitened” position. [164] He noted that Mr Wayde is single, lives in a rented apartment, has limited financial resources being $5,767.58 in his bank account and personal items worth about $5,000, has exhausted his superannuation because he stopped receiving director’s fees from the Club, and receives the aged pension of $1,355.60 per fortnight. [165]

Mr Docker SC emphasised that any damages are unlikely to be significant as the amount wasted on the election if there is an injunction is unlikely to be high. [166] In any event, he referenced authority to the effect that the terms on which an interlocutory injunction is granted is a matter of discretion and relief is not necessarily refused because the applicant is impecunious or has limited means. [167]

He noted that damage to a small business may have a greater impact than the same amount of damage to a large enterprise [168] and made reference to the vast wealth of the Club. [169]

Mr Docker SC, during the hearing, foreshadowed [170] and eventually proffered an undertaking from Mr Wayde (marked as MFI-1) [171] in the following terms:

Mr Hewitt SC submitted that that the balance of convenience does not favour the grant of an interlocutory mandatory order requiring that Mr Wayde be reappointed as a director. [172] He supported that submission as follows:

Mr Hewitt SC also submitted that the proposed undertaking as to damages is inadequate. [205] The Club proffered proposed orders as follows:

Mr Docker SC sought to distinguish the decision in Calvin, intimating that, in that case, the question was whether the decision had any existence for the purpose of an appeal. He submitted that, in this case, the question is quite different, being whether the suspension decision, if it was found to be void ab initio, had any existence for the purpose of removing him as a director. [207]

Mr Docker SC submitted that there was no relevant delay as between the notice of suspension on 6 December 2024 and the determination on 31 December 2024 as it was reasonable for Mr Wayde to wait to know the outcome of the final hearing of the charges against him prior to commencing any proceedings. [208]

In relation to alleged delay from 31 January 2025 (being the timing of Mr Di Girolamo’s letter), Mr Docker SC submitted that the Club had taken until 28 February 2025 to reply. [209] He explained that, since then, Mr Di Girolamo had experienced certain difficulties in obtaining information but nonetheless took certain steps to address Mr Wayde’s position, including briefing counsel. [210]

Mr Docker SC, anticipating a number of Mr Hewitt SC’s submissions, also submitted that:

Mr Docker SC in further reply contended:

I gave serious consideration to the submissions of counsel. Without specifically addressing all the relative details of those submissions, the following sets out the main aspects of my determination in granting some limited relief to Mr Wayde.

The prima facie case or serious question to be tried was advanced on three different bases, which at a final hearing may be affected by further evidence to be adduced by each side.

Mr Docker SC indicated there are video recordings of the disciplinary hearings. [220] He intimated that that may be the only additional evidence to be relied upon by Mr Wayde. The Club has yet to put on its evidence.

Having noted the above, it is not clear to me that the essential factual underpinning of the apprehended bias case advanced by Mr Docker SC on behalf of Mr Wayde will radically change. There appears to be no relevant dispute that Mr Burgess was present on all occasions of the Committee proceedings, even if he did not ultimately vote on Decisions 1 and 2. However, it may be that video evidence, or other evidence, gives some further degree of revelation or colour to the level of involvement of Mr Burgess.

The question regarding whether a quorum requirement was satisfied, again, it seems will not be significantly impacted by further factual material. Indeed, to a degree, it also involves a question of construction of the Constitution.

It suffices to say that, at least in relation to the questions of the prima facie case in respect of apprehended bias and the requirement of a quorum, I was (and am) satisfied that those claims are not weak prima facie claims but well arguable.

The position regarding the actual bias case is different because that will significantly depend upon evidence from Mr Montgomery (if he is called in the Club’s case).

Evident from the submissions above, there is dispute regarding what was the relevant “status quo”. Despite the detailed submissions seeking to support the alternative views that the status quo was that Mr Wayde was (as per Mr Docker SC) or was not (as per Mr Hewitt SC) a director, neither counsel referred to particular authority bearing upon the matter. I do not say that critically, as the case was brought on very quickly and counsel, in my estimation, admirably argued the matter having regard to the exigent circumstances.

Precisely what is meant by the “status quo” is a little elusive. The noun (from Latin) as per the Macquarie Dictionary (online ed) ordinarily conveys the meaning “the existing or previously existing state or condition”. [221] Legal Dictionary definitions are to a similar effect, thus the Encyclopaedic Australian Legal Dictionary defines “status quo” as: [222]

Further it defines “status quo ante” as:

In the context of an interlocutory injunction application, what is meant by status quo may vary in any given case.

In Talacko v Talacko [2009] VSC 349, Kyrou J stated at [39]-[42] (omitting footnotes):

It follows from the above that in some cases, status quo is regarded as being relevantly the state of affairs in the period immediately before the issue or matter which has given rise to the dispute arose, but in other cases, particularly if there is unreasonable delay between the issue of the originating process and the application for an interlocutory injunction, the status quo may be regarded as being relevantly the prevailing position at the time that the Court is approached for relief.

What constitutes the status quo, according to Kyrou J, is a matter that must be determined based on the facts of each case and a careful and commonsense exercise of the Court’s discretion.

It might well be that the nature of disputes involving clubs and associations is such that the operation of the provisions of the governing Constitution have a particular impact upon the assessment of what constitutes the relevant “status quo”. Whilst acknowledging Mr Docker SC’s submission that the status quo is that Mr Wayde is a director, it seems to me that, with the passing of time, there is considerable force in Mr Hewitt’s submissions that the practical status quo is that Mr Wayde is no longer a director of the Club. That is certainly the position when one looks at the ASIC records and the annual report. To some extent it has been reinforced by Mr Wayde’s actions in supporting other candidates for election (though I accept that is not necessarily legally determinative of the issue).

A period of over 3 weeks passed from the timing of announcement of the penalty in Decision 2, to the time when Mr Wayde gave instructions to Mr Di Girolamo to act. Mr Di Girolamo appears to have sought Mr Marsh’s file at that time and to date has not received a complete copy of his file. [223] It took a week for Mr Di Girolamo to write to Ms Romero and Mr Cook. [224] Whilst I have the impression that Mr Wayde’s legal representatives were by no means dawdling and no doubt waiting for a considered response, the fact remains that effectively a period of almost 80 days (some 2.65 months) passed until the Court was approached from the time of the penalty decision and well over 4 months since the Notice of Suspension. Further, a period of 30 days elapsed from the time the election notice was given until the Court was approached, during which time significant arrangements have been made to hold the election. Attempts by Mr Di Girolamo to clarify the position in respect of insurance have been progressed but not completely resolved by the time that the Court was initially approached. [225] I was (and am) of the view that there is reasonable force in Mr Hewitt SC’s submission regarding the delay in bringing the application.

Mr Hewitt SC confirmed that, whilst not the club’s preferred position, there could be a partial election distinguishing between the positions for the “non-debenture” directors and the “debenture holder positions”. [226]

A significant factor bearing upon just relief between the parties is the ability of the Club to function with a Board continuing to make decisions. My view was (and is) that a limited injunction allows the Board to remain operating effectively. In a practical sense, that has been the status quo since 31 December 2024, without the involvement of Mr Wayde.

In relation to the undertaking as to damages, I accepted Mr Docker SC’s submission that the terms on which an interlocutory injunction is granted is a matter of discretion. Relief is not necessarily refused because the applicant is impecunious or has limited means. [227]

I considered (and hold to the view) that, to the extent that Mr Wayde was able to provide a limited financial undertaking, it was appropriate that the relief granted should be premised upon the provision of that limited undertaking.

Overall, it seemed to me that the course best calculated to achieve justice between the parties in the circumstances of the particular case, pending the final hearing, on the basis of Mr Wayde’s proffered undertaking as to damages, was to grant a limited injunction to restrain the Club from holding an election, or appointing a person, to fill the position on the Board of Mr Wayde but not otherwise to grant more extensive interlocutory relief as sought by him.

The orders of the Court which I made are as follows: