Dealing with Dissidents

Most community organisations experience times when members disagree, and that can be healthy and productive, but it is commonly unpleasant and destructive.  It follows that disagreements should, as far as possible, be either avoided or managed as otherwise the organisation will suffer.  I’m no behavioural scientist or psychologist, but my observation is that good communication (empathetic listening, creative thinking, and clear speaking or writing) can minimise the risks associated with disagreements.

However, we do not live in a perfect world, so disagreements will on occasions boil over in community organisations.  Not all society rules contain provisions to deal with disagreements, and even a member is guilty of the most appalling behaviour a society has no power to discipline or expel the member unless there is express power in the rules to do so (Dawkins vAntrobus (1881) 17 Ch D 615 at 620 (CA); Hunt v Border Fancy Canary Club of NZ (Inc) (2000) 8 NZCLC 262,140, para [20]).  Therefore, well-drafted rules should set out complaints processes and disciplinary procedures and consequences.

Natural justice

Generally, complaints should be dealt with in a procedurally fair way (unless the rules expressly provide otherwise), observing the principles of natural justice.  As the Court of Appeal has stated, the obligations of natural justice “need not be met in any particular formal way. This is an area of broad principle, not precise rules, turning on the nature of the power being exercised and all the circumstances” (Royal Australasian College of Surgeons v Phipps [1999] 3 NZLR 1 (CA) at 16, the Court of Appeal’s order being varied by the Privy Council: [2000] 2 NZLR 513).

Natural justice obligations vary according to particular circumstances and issues, but case law suggests some broad principles:

  • The respondent member must be given reasonable, full, clear, and definite notice of complaints made against him or her, and advance warning if ongoing membership may be at risk,
  • If several members face common complaints they may be entitled to appear and be dealt with together,
  • The respondent is entitled to a reasonable time to prepare to respond to the complaint,
  • The respondent must be given a fair opportunity to put the case in response to the complaint (but the respondent is not entitled to insist on hearing and cross-examining witnesses unless the rules permit this),
  • If a respondent given notice of the complaint and the opportunity to respond does not do so, he or she cannot later complain if a valid adverse inference is drawn from unexplained, proved facts,
  • If the rules provide for a hearing of the complaint, the respondent is entitled to hear all that is said in support of the complaint, to respond, and to a fair, unbiased hearing,
  • The respondent is entitled to make submissions as to penalty if the complaint is upheld, and
  • If the respondent is disciplined, any rights of appeal must be notified.

Complaints against those in governance

The focus when drafting rules to deal with complaints is usually on how complaints against individual members should be handled.  It is not so common to consider what should be done when a complaint is made against those who govern the organisation.  Such complaints can be against individuals or part of or the entire governing group.  Complying with the requirements of natural justice in such cases is inherently difficult:

  • If a complaint against one or a few of that governing body, the complainant may well suspect that the investigation and decision will be skewed against the complainant (which opens up judicial review possibilities).
  • If the complaint is made against the governing group as a whole, they simply cannot investigate and sit in judgment on their own behaviour. In such circumstances, in the absence of rules covering how the complaint should be handled it might be best to call a Special General Meeting to resolve the issues.

Those drafting rules for societies should consider the advisability of having a rule which requires the governing executive, immediately after every Annual General Meeting, to appoint an independent panel (perhaps of senior members) to investigate and make decisions on complaints against members of the executive.

Concluding comment

No matter how well-drafted a constitution may be it is almost inevitable that all possible eventualities will not be foreseen. Advising where there is dissent within an organisation often requires the wisdom of Solomon, and the law is often a blunt (and very expensive) instrument.

This is one of a series of articles on societies and charitable trusts (originally published in the NZ Lawyer magazine) by Mark von Dadelszen, a Hastings lawyer and author of Law of Societies, 3rd Edition, 2013. If any reader has examples of issues that have arisen or questions about societies or charitable trusts that might be a suitable subject for one of these articles please contact Mark at mark.vondadelszen@bvond.co.nz.