Typically, constitutions of sporting organisations and associations will contain a clause providing that the board or management committee may make by-laws (or regulations) for the proper advancement, management and administration of the organisation and its objects, and that such by-laws must be consistent with the constitution.
Such by-laws are binding on all members of the organisation. The constitution may also provide for the specific manner in which the by-laws are to be approved or adopted (for example by the board, management committee or members).
A recent NSW Supreme Court decision[1] considered whether additional by-laws made by a club were inconsistent with its constitution. The constitution of the Carlingford Bowling, Sports & Recreation Club (Club) provided that:
“The Board has the power to make By-Laws regulating all matters in connection with the election of the Board not otherwise provided for by this Constitution.”
and,
“…the Board shall have power from time to time….to make such By-Laws not inconsistent with the Constitution of the Club….“
The by-laws in question of the Club related to an election for vacant positions on the Club’s Board. In September 2023, at a Club monthly meeting, the Board approved the adoption of three new by-laws, including two that were the subject of dispute in these proceedings. The plaintiffs argued that the additional by-laws purported to limit the rights of Social Members to vote in the upcoming election. This claim was evidenced by the introduction of a two-year membership qualification period as a condition to place a limit on the number of directors from a “Special Interest Group” (such as the Social Members) who may be elected to the Board.
Ultimately the Court decided that the by-laws were in fact inconsistent with and subordinate to the constitution and did not prevail over the members’ rights that were entrenched in the constitution.
The Court declared the by-laws were invalid and of no effect and ordered that the defendant Club pay the plaintiff’s costs of the proceedings.
The decision reinforces the importance for organisations who are drafting and adopting by-laws to revert to the constitution and ensure that the by-law is consistent with the relevant clauses in the constitution.
[1] Carabetta & Anor v Carlingford Bowling, Sports & Recreation Club [2023] NSWSC 1442 (27 November 2023)
