Hopefully someone with the appropriate training can help sort through this minefield. If the right answers pop out the other end, we may very well have something that could haul the AKA into line and would have the support of every member (the clubs).
The Scenario:
A karter has evidence to prove that the AKA is in breach of their own articles of constitution, as well as the Victorian Associations Incorporation Act 1981. They take the matter to their club, who duly raise the matter with the AKA, either directly, or through the SKC (whichever is appropriate). As is usual, the matter goes nowhere.
Q1: Once a club becomes aware of a breach (by the body that THEY are a member of), can the club then be held legally responsible if they fail to pursue the matter fully under the articles of constitution of both their own club, that of the AKA and also of the Associations Incorporation Act 1981
Q2: If, at a later date, a judgement was made that the AKA had indeed been in breach (as described above) and it was also found that the local club had failed to render all reasonable assistance to THEIR member, is it possible that the club could be found guilty under conspiracy laws?
If the answer to either of these questions turns out to be "yes", it would mean that the clubs themselves could be in the firing line if they continue to allow the AKA to break its' own laws and the laws of the land. I imagine this would change the tune rather dramatically.
Comments8
Steve,
From my experience if you have the evidence or a karter does HE/SHE can approach the dept themselves, if they look at the evidence and decide something needs to be done they will ask for the AKA reason for not following and request action by them to remedy the situation if they FAIL to do that they CAN step in. Thsi basically what happened in NSW a few years ago when a individual took his evidence to the DFT and they forced the change. I know the DFT would rather "work out" the problem before taking anything to the next step, but it would depend on what the breach was. This karter would have to have it all written down and be accurate in the event details etc.
Not sure what other states require but expect they would be something similar.
Not sure if the clubs are guilty or not morally most likely, egally don't know, maybe thats why they don't want to act?
Steve,
Q1: Answer is No.
Q2: Answer is No.
Clubs are members of the state, not the AKA. The states are the members of the AKA. Regardless, there is no corporate requirement for a member to see that an organisation is obeying the law. On the other hand, a management committee has obligations and action could be considered against them but there are an enormous number of obstacles in any path with any organisation that is run under the auspices of the Associations Incorporation Act. And in all states by the way.
A breach can be notified to the Department of Fair Trading and they will likely act on it if it is serious enough. They acted on the AKA using the wrong constitition back in about 2005.
There is also a process for review; I think it is one of the parts of section 31 of the Victorian Act, and it is surprising that the fact that the AKA operates in all states and therefore shouldn't be allowed to continue under the Vic Act hasn't been taken up yet.
Another part of s.31, allows the DFT to refer serious matters to the court and is a basis for winding up of the association.
The 2003 loan of TDF money to pay ordinary creditors was very close to being the basis for one of those applications. The attempted sale to CAMS was another.
I regret not pursuing those because Queensland no longer has the ticker to stand up for what is right.
How deep are your pockets Steve.
Take it to your solicitor. That's the only way to fix what it seems is broke.
Then someone with appropriate training will be able to tell you where you stand or rather your metaphorical karter.
Thanks Graeme,
Several years ago, a Sydney retail store (and their supplier) were taken to court by a customer. The matter involved goods that were inadvertently designed in such a way as to present a very real danger to the safety of the operator. The matter against the supplier was straightforward, but they also included the retailer, as they had proof that the retailer had prior knowledge of the problem, yet continued to sell the product. Furthermore, when the customer complained to the retailer and asked for assistance in resolving the matter with the supplier, the retailer not only refused to help, but also made attempts to discourage or hinder the customer in their pursuit of a solution.
Both matter were found in favour of the plaintiff.
It was found that once the retailer had become aware of the fault and the severity of it (while undertaking their normal business activities), they then had a responsibility to advise any potential buyers of the fault (until such stage as the supplier withdrew the product from sale), or to voluntarily withdraw the product from sale themselves. Furthermore it was found that the retailers attempt to dissuade the customer from seeking a remedy constituted conspiracy to defraud.
Surely this is analagous to a club knowing that the AKA is in breach and then dissuading one of their members from attempting to act on the matter (failure to support a motion).
Graeme Hancock said:
Steve,
Q1: Answer is No.
Q2: Answer is No.
Thanks Allan,
I created a Scenario in order to pose the legal question. My scenario was not an exact representation of a real world issue, so I won't be buying my solicitor a new Porsche (thankfully).
My position is that, as the AKA are hiding behind selected parts of the rules, while totally ignoring other rules, the only way to get any justice will be by forcing the clubs to insist on appropriate behaviour and adherence to the rules by the AKA executive. And the only way I can think of to overcome the apathy is to show that the clubs MIGHT be 'in the frame' themselves, if they fail to take ALL POSSIBLE STEPS to end the fiasco that the AKA executive now seems to be.
Human nature being what it is, self interest will trump altruism any day of the week.
Allan King said:
How deep are your pockets Steve.
Take it to your solicitor. That's the only way to fix what it seems is broke.
Then someone with appropriate training will be able to tell you where you stand or rather your metaphorical karter.
Damn, I could go a new Porsche.
Steve,
It will take me some time to explain why your product example is not analogous with company law, suffice to say for now, products are governed by the Competition and Consumer Law. (formerly the Consumer division of the Trade Practices Act)
Corporate behaviour is governed by company law and organisations incorporated under Associations Incorporation legislation, by a regime that is considerably lacking in teeth and consumer remedies.
A single person can though, use the hierarchy and the A1 process to get a breach of the rules on the national table as I think RV did with the President's bringing the sport into disrepute when he admitted (pleaded guilty) to price fixing in the non AKA track hiring matter in NSW.
And the letter on RV's website to get the approved bmp constitution implemented is the same in terms of process. You, as an individual, send it to your club, the club sends it to the state and the state sends it to national and it appears on the 'correspondence in' section of the national agenda.
But no, clubs are not in the frame for anything that is a national matter because they have no standing at national level. The states are the members. And before you ask why the states aren't liable for allowing the national organisation to breach it's rules and various laws, I need only point you towards the behaviour of national and state politicians: the ballot box is accepted as the principal recourse.
Ok Graeme, I bow to you vastly superior knowledge. But what a shame I am wrong. If it were the other way, and it had been established that the clubs could be 'in the frame' if they did not fully prosecute any breach, just imagine what would have happened.