City of Gosnells v. Duncan
[1994] 12 WAR 437BC9402011
(Judgment by: Rowland J) Court:
Judges:
Pidgeon J
Rowland JAnderson J
Judgment date: 3 November 1994
Judgment by:
Rowland J
I have read the reasons to be delivered by both Pidgeon J and Anderson J. For the reasons they give, I agree that the City of Gosnells remains liable for the damage sustained to the first and second respondents.
I also agree generally with their reasons on the other matters in issue. I comment only on the issue of liability of committee members.
All parties recognise and accept that an unincorporated body without a Constitution could not be a party to these proceedings. It simply did not exist as a legal entity. There are, however, authorities to support a claim that those who band together for a common purpose can, through their collectively appointed officers, incur liability. The authorities, of which there are few, are discussed in Fletcher : The Law Relating to Non Profit Associations in Australia and New Zealand, chapter 8. Committee members were found to be liable in Bradley Egg Farm Ltd v Clifford [1943] 2 All ER 378 . The matter was also discussed in Smith v Yarnold and Ors [1969] 2 NSWR 410 . Dicta of Herron CJ, at 415, in the latter case, which made committee members of the association liable, was relied upon by the learned trial Judge. With respect, I agree with both Pidgeon J and Anderson J that the facts in that case can be distinguished.
The Gosnells Polocrosse Club had no written Constitution or any clearly identified rules. Those who had joined together and enjoyed this collegiate relationship had organised their affairs to the extent that, apparently each year, they had a meeting to elect officers with authority to open a bank account and obvious authority to organise the playing of polocrosse on the land which the Shire had permitted them to occupy. It may be that, to the extent that those elected carried out the functions and objects of the collegiate body, they would be indemnified by the members. It is unnecessary to resolve that matter. I also agree that committee members could, in certain circumstances, be primarily responsible in tort in accordance with the policy enunciated by Herron CJ in Smith v Yarnold, at 415. It cannot be said, however, that the agistment of horses on this land was an object of the collegiate group which made up the membership of the club. The resolution pursuant to which it is suggested that some members left their horses on the land during the off season cannot in any way be regarded as one of the objects for which the members had joined together. The resolution which is referred to in the reasons for judgment of Pidgeon J is, at best, an acknowledgment that, during the off season, a member could leave his horse or horses on the ground. The evidence disclosed in fact that at least one or more of the members opposed this resolution; but, in any event, it cannot, in my opinion, be seen to be a collegiate activity or object necessarily part of the activities normally engaged in by the members. It seems to me that the natural implication of that which occurred is that a member could leave his horse or horses on the ground during the off season, provided that he took care of them and responsibility for them. I see nothing in logic, or policy, or law, which would impose any contractual or tortious obligation on the other members, or those whom the members had elected to act on behalf of the members.
It follows that I agree with the orders proposed by Pidgeon J.