‘A Supreme Court judge has described the behaviour of the Wilderness Society’s hierarchy as evasive to the point of dishonesty.‘ (From: ABC News: http://www.abc.net.au/news/stories/2010/04/30/2886988.htm?section=justin )
In a hearing today, Justice Peter Evans awarded full costs against TWS Inc. and criticized the actions of the TWS Inc hierarchy. Below are relevant extracts of his judgment, the full judgment is available at: http://www.austlii.edu.au/au/cases/tas/supreme_ct/2010/21.html
COURT: SUPREME COURT OF TASMANIA
CITATION: Esposito v The Wilderness Society Inc  TASSC 21
PARTIES: ESPOSITO, Anthony
WILDERNESS SOCIETY INC (THE) First Respondent
GOLDSWORTHY, Lyn )
O’LOUGHLIN, Larry )
NORWOOD, Rosemary ) Second Respondents
AAHLBY, Lena )
OLSEN, Christine )
COMMISSIONER FOR CORPORATE AFFAIRS Third respondent
FILE NO/S: 82/2010
DELIVERED ON: 30 April 2010
DELIVERED AT: Hobart
HEARING DATE: 22 April 2010
JUDGMENT OF: Evans J
1 On 22 April 2010, I made orders that included declarations as to the invalidity of:
• a meeting held on 5 November 2009 purporting to be an annual general meeting of the Wilderness Society Inc for 2009;
• a resolution passed at that meeting re-appointing the second respondents to the Management Committee of the Society; and
• a resolution passed at that meeting approving an amendment to cl 9.1(b) of the Society’s constitution.
9 Against the background of the legal principles referred to, I turn to the facts. The Society is run by a Committee of Management that consists of its Convenor, Secretary, Treasurer and five members, all of whom are elected at the Society’s annual general meeting and hold office until the next annual meeting. Clause 9.1(b) of the Society’s constitution provides that a general meeting shall be held “within thirty days of a request (made in writing) made by twenty members”. The Society has about 46,000 members. During 2009 it became apparent that some members of the Society were dissatisfied with the performance of the Committee and some employees of the Society. This dissatisfaction prompted members of the Committee and some employees of the Society to take steps calculated to frustrate any attempt by dissatisfied members to change the membership of the Committee. The culmination of these steps was the holding of a purported annual general meeting of the Society on 5 November 2009, without the knowledge of the dissatisfied members, at which:
• six members of the Committee were re-elected; and
• clause 9.1(b) of the constitution was amended so as to increase the number of members of the Society that could require that a general meeting be held from 20 members to 10 per cent of its membership.
17 Michael Joseph Connors, the Society’s Chief Operating Officer, said in his affidavit sworn on 10 February 2010 that he placed the Notice on the notice board at Level 1, 288 Brunswick Street, Fitzroy on 20 October 2009, and that he was informed by Herbert Moll, the Society’s Public Officer, that on the same date he placed the Notice on the notice board at 57E Brisbane Street, Hobart, and that he was informed by Alec Marr, the Society’s Executive Director, that on the same date he placed the Notice on the notice board at First Floor, Baileys Corner, London Circuit, Canberra.
19 With regard to the notice placed by Mr Moll at 57E Brisbane Street, I find that it was attached to an Annual Review document and was concealed by that document so as not to be visible to anybody looking at the notice board.
20 With regard to Level 1, 288 Brunswick Street, Fitzroy, I reject Mr Connors’ evidence that he placed a copy of the Notice on the notice board at those premises. The evidence establishes that there was no notice board at those premises in October and November 2009, and this evidence is confirmed by an email from Mr Connors dated 15 December 2009 requesting that an administrative officer “organise a notice board for the office”. Whilst there is a notice board in a kitchen area used communally by the various tenants of Level 1, 288 Brunswick Street, the only evidence before me with regard to that area is that it is not part of the Society’s premises, and the unchallenged evidence of three deponents is that the Notice was not displayed on that communal notice board. I find that the Notice was not placed on a notice board in the premises operated by the Society at that address.
22 The subterfuge in relation to the meeting of 5 November 2009 was blatant to the point of dishonesty. This is demonstrated by the letter, set out below, from Alec Marr, the Executive Director of the Society, to Dr Timothy Seelig, the Campaign Manager of the Wilderness Society Queensland Inc:
“To Tim Seelig, QLD Campaign Manager, TWS Queensland
From Alec Marr, Executive Director, TWS Inc
Tuesday 8 December 2009
Assurances regarding the safety of the TWS Inc Management Committee
I refer to your correspondence with members of the TWS Inc National Management Committee.
On 1st October 2009, you wrote to Lena Aalby [sic] and Rosemary Norwood, as follows:
We write to you as members of TWS Inc. We have not seen a notice for TWS Inc’s Annual General Meeting and understand it is usual practice for it to be held in conjunction with TWSA’s annual face-to-face Policy and Planning Meeting.
We would like to know if a date and venue for the 2009 TWS Inc AGM has been proposed, and if not, when we can expect the AGM to be called?
Thanking you for your help,
On the 14 October 2009, Rosemary Norwood answered you thus,
Dear TWS Inc members
At this time the NMC has not determined a time for the TWS Inc AGM. Once a meeting date is set you will be informed.
Lyn Goldsworthy, TWS Inc MC Convenor, has referred this matter to me for further correspondence.
Could you please urgently let me know why you wish to know these details?
We’ve received a number of enquiries recently along similar lines. There have also been a series of very concerning insinuations and views aired during the last few months, which we are taking very seriously, indicating that staff or volunteers from one or more incorporated TWS entities may be seeking to attend a TWS Inc General Meeting with the intention of removing the current Management Committee. This adds to a series of actions over the last few months from other entities to attack TWS Inc’s stability and reputation, including: a motion of no confidence in myself as Executive Director; calling for the removal of senior staff of TWS Inc from their positions; and two highly confrontational Policy and Planning Meetings in two months. This general trend is ringing alarm bells within TWS Inc.
As you’ve sought information on the timing and location of our AGM at a time when a number of others have done the same, and because your request has been made in the midst of an atmosphere of tension and confrontation, and because we have received plausible views that our Management Committee is potentially under threat via an AGM, I would therefore also appreciate an assurance from you that the TWS Inc Management Committee is safe in this regard. Given the volume and increasing tempo of the signs that we are receiving, please consider this as a very serious and urgent request. I would appreciate a response from you within the next 24 hours.
This commitment will help ease our concerns, hopefully provide an entirely reasonable and innocent explanation, and help us all to move towards rebuilding working relationships between entities wherever they have declined.
The specific assurance I am seeking from you is that:
• You have no intention of attending a TWS Inc General Meeting in the near future in order to vote out the current Management Committee;
• You are not engaging in any activity which is encouraging or assisting others to do this;
• You do not know of any serious and plausible move currently being considered or undertaken by anyone else to pursue this path.
Thanks for your help on this matter, I greatly appreciate it.
You’re welcome to phone me to discuss the issue if you’d like to at any time. I would appreciate having a positive and constructive dialogue with all those currently making similar requests, as a way of clearing up this issue.
The Wilderness Society Incorporated.”
23 I make the following observations referable to the above:
• Mr Marr made no reference in his letter to the fact that the purported annual general meeting had already been held on 5 November 2009.
• Ms Norwood’s advice to Dr Seelig on 14 October 2009 that the time for the annual general meeting had not been fixed was in accordance with the response that she was directed to give to him at a meeting of the Committee on 12 October. The minutes of that meeting record “that a response will be sent to the Queensland request saying ‘at this stage we haven’t determined a final time for AGM’.”
• The date for the annual general meeting must have been determined by at least 20 October 2009, the date upon which the Notice was placed on some notice boards. The Notice was published in the Advocate on 21 October 2009. Notwithstanding that Ms Norwood had written to Dr Seelig advising that once a meeting date had been set, he would be informed, this was not done. It was not until 22 December 2009 that Dr Seelig was informed that the annual general meeting had been held on 5 November 2009. That information was provided to him in the following letter from Mr Moll:
“22 December 2009
Via email: [to Tim Seelig]
In answer to your correspondence to the TWS Inc Management Committee, the Management Committee has asked me to reply to you as the Public Officer.
The Wilderness Society Inc 2009 Annual General Meeting
The Wilderness Society Inc held its annual general meeting on the 5th November 2009.
31 On 11 February 2010, I heard the Society’s interlocutory application and granted the restraining order it sought. In doing so, I said that there was a very real issue as to whether cl 9.1(b) of the constitution had been validly amended, but that as a matter of common sense that issue needed to be resolved before a meeting, of the nature of that which was proposed, proceeded. I said that at that stage the appropriate course was to preserve the status quo. The further hearing of the matter was adjourned to 26 February 2010. On that date the parties applied by consent for orders that the Society’s originating application be discontinued and that the Society pay the respondents’ costs fixed at $22,000.
34 Consistent with the declarations that I have made, I find that for all relevant purposes, the meeting of the Society held on 5 November 2009 was invalid. I further find that from a short time after that meeting at the latest, those involved in the meeting must have been aware of its invalidity, but that the Society maintained that the meeting was valid until such time as it had put in place arrangements for a meeting to be held on 2 May 2010. I further find that the invalidity of the 5 November 2009 meeting is a consequence of the efforts of those involved to conceal that which was to occur from members of the Society who were opposed to the reappointment of the Committee and were likely to oppose an amendment to the constitution that would make it harder to remove the Committee.
35 As soon as it was apparent that some of those involved in the Society were maintaining that what had occurred at the meeting on 5 November 2009 was valid, it was incumbent upon the Society to take proceedings of the nature of the proceedings brought by the applicant to put things right. It would be quite wrong if the applicant was left to bear the legal costs of doing that which the Society should have done. I accordingly have no hesitation in ordering that the Society pay the applicant’s solicitor and client costs. I have no knowledge of the costs arrangements, if any, made between the applicant and his solicitors. The applicant resides in Queensland and his solicitors are based in Brisbane. The Society operates throughout Australia. The Society’s solicitors are based in Melbourne, as are the counsel who appeared for the Society. In the circumstances known to me, it was entirely reasonable for the applicant to engage solicitors and counsel based in Brisbane and, subject to the taxing officer being satisfied that such arrangements as the applicant has made with his solicitors are reasonable, I consider that it would be appropriate to tax his costs on a basis that reflects those arrangements.
What Vica Bayley, Geoff Law say:
* * * MEDIA RELEASE * * *
Friday 30 April 2010
“BLATANT TO THE POINT OF DISHONESTY”
TIME FOR TWS INC MANAGEMENT TO GO
The Save TWS Committee and TWS Campaign Centres have called on The Management Committee of TWS Inc and The Executive Director, Alec Marr, to resign immediately following the release of a damning judgment today about their conduct in holding a secretive Annual General Meeting on November 5, 2009. This judgment was delivered in the Tasmanian Supreme Court this morning by Justice Evans.
The Justice made the following comments:
“During 2009 it became apparent that some members of the Society were dissatisfied with the performance of the Committee and some employees of the Society. This dissatisfaction prompted members of the Committee and some employees of the Society to take steps calculated to frustrate any attempt by dissatisfied members to change the membership of the Committee. The culmination of these steps was the holding of a purported annual general meeting of the Society on 5 November 2009, without the knowledge of the dissatisfied members… (p2: cl9)”
“The subterfuge in relation to the meeting of 5 November 2009 was blatant to the point of dishonesty. This is demonstrated by the letter, set out below, from Alec Marr, the Executive Director of the Wilderness Society, to Dr Timothy Seelig, the Campaign Manager of the Wilderness Society Queensland.” (p7: cl22)
A Special General Meeting of The Wilderness Society has been called by members to propose the election of a new and trusted Management Committee for this Sunday, 2nd of May 2010 in Canberra.. The TWS Inc Management Committee is seeking an injunction against this meeting in the Tasmanian Supreme Court this afternoon.
“This judgment vindicates and strengthens the call for the immediate resignation of the senior leadership of the Wilderness Society Inc.”
“The immediate resignation of the senior leadership would be the best way to end the damage being done to the organisation and to restore its integrity and enable it to get on with the important work of campaigning to protect Australia’s natural environment.”
Vica Bayley, on behalf of The Wilderness Society Campaign Centres in Queensland, Newcastle, Sydney, Victoria, Western Australia and Tasmania Geoff Law, Honourary Life Member and Save TWS Committee.