My
lawyer’s 16 page letter of 18 April 2013 to the secretary of ASPA (Vic)
received no response, other than an acknowledgement of receipt. In
layman’s terms, this would be the equivalent of a shrug. In legal terms,
it meant that the letter was not specific as to what was exactly
required.
So,
a similar 17 page letter had to be sent after a reasonable time of more
than 3 months. Specific demands were spelt out, together with a time
for compliance.
Below
is the second letter. If you are keen you can read it all. If you are
in a hurry, you can only read page 17, which is the most significant
addition to the earlier letter.
Australian Lawyer
Victoria
7 August 2013
To The Secretary,
Australian Scrabble Players Association (Vic) Inc.
AND To specified past and present members of the Committee or office bearers of
Australian Scrabble Players Association (Vic) Inc. namely -
• Carol Johnsen
• Norma Fisher
• Marjorie Miller
• Trevor Halsall
• Gwen Lampre
• Cheryle Jerram
Dear Secretary,
Dear Committee Member [as addressed]
Purpose
I act for Mohammed Hegazi, a member of Australian Scrabble Players Association
(Vic) Inc since 2004.
This is an open letter. It is directed -
• to the incorporated Association [and accordingly to the Secretary as the proper
office to receive communications on behalf of the incorporated association];
• to certain present and former members of the Committee and office bearers of the
incorporated Association, as they are addressed. These members of the
Committee and office bearers were and are involved in the respective matters
referred to below, as specified below.
"Disciplinary" proceedings in 2008
I am instructed by Mr. Hegazi that in 2008 Australian Scrabble Players Association
(Vic) Inc. together with some of the office bearers of Australian Scrabble Players
Association (Vic) Inc. purported to proceed against him for a breach of the rules of the Association.
Mr. Hegazi has provided me with detailed instructions concerning the things which
occurred in 2008, including the purported decisions of the Association that -
• he was guilty of acts unbecoming a member, and
• would be subject to a ban for twelve months from participating in tournaments as a
member of the association.
He is aggrieved at these decisions of the Association, and considers that what the
Association did was totally unjustified and improper.
I
am informed that during 2012 there was a mediation process put in place
between theAssociation and Mr. Hegazi concerning the 2008 decision, but
that no resolution was achieved.
Mr. Hegazi has suffered and continues to suffer injury, loss, and damage to his
reputation. The Association stands by as he remains subject to a totally arbitrary "life"
ban from playing Scrabble in Western Australia.
2008 Suspension was unconstitutional and contrary to law
On examination of the facts surrounding what the Association and various office
bearers then did to Mr. Hegazi, it appears that the procedures adopted were illegal, not
in
accordance with the Constitution [and Articles], and that certain
office bearers acted in a highhanded fashion which was unfair, unjust,
and illegal.
Rights of a member
Mr.
Hegazi's rights as a member of the Association arise from the contract
which exists between him and the Association, and from the Articles of
Association. Article 11 provides, in part -
11.1
The grievance procedure set out in this rule applies to disputes under these Rules
between:-
(a) a member and another member; or
(b) a member and the Association.
11.2
The parties to the dispute must meet and discuss the matter in dispute, and, if
possible, resolve the dispute within 14 days after the dispute comes to the
attention of all the parties.
All members of the Association are entitled, by contract, to have the co-operation of
other members and the Association itself.
What the Articles provide with respect to misconduct
The relevant part of the Articles of Association provides -
DISCIPLINE, SUSPENSION AND EXPULSION OF MEMBERS
10.1 Subject to these Rules, if the committee is of the opinion that a member has refused or neglected to comply with these Rules, or has been guilty of conduct unbecoming a member or prejudicial to the interests of the Association, thecommittee may by resolution
ban that member from participating in tournaments run by ASPA(Vic) for a specified period: or suspend that member from membership of the Association for a specified period; or …
expel that member from the Association.
It is clear that if there is a dispute about the circumstances which may lead to a ban,
[which was the case in 2008] Clause 11 requires that there be mediation, and that the
mediation involve a bona fide attempt to discuss and resolve the dispute[s].
Such mediation is a condition precedent to action being taken under Clause 10. These
requirements of the Articles were, plainly, ignored in 2008.
This clause mandates [requires] proper attention to procedural fairness generally: it
requires in particular that proper attention be given to the procedure by which a
"charge" is framed, and to the manner in which the document which notifies the
member charged is expressed and provided to the member. Of itself, the fact that the
condition precedent referred to above was ignored, renders the disciplinary action void.
It
should be noted that when dealing with these matters the courts apply
the established techniques of legal interpretation, even where the rules
may be drawn up by laymen for application by non lawyers.
It is not at all clear that within the Articles of Association the wide and vague
expressions "unbecoming" and "prejudicial" can have any operation whatsoever: these
words - both of themselves, and in context - fail to define or list any objective
circumstances which might be utilized so as to invest them with sufficient certainty as
to
be usable or enforceable. The use of such catchall expressions do not
make it legally permissible for the Association [or its office holders]
to do as they like when
purportedly disciplining a member.
Fundamental defects in procedure
It is clear that the president of the association has - as President - no power validly to
commence a proceeding under these Articles. An act which is not valid within the
framework of the Articles, has, of course, no legal force and effect whatsoever. As a
purported
but void exercise of power it can provide a basis of an action for
damages in tort, both against the person who immediately carried it out,
and against those who may have been joint tortfeasors. The Association
should not be tempted to imagine that the principles which might be
invoked if a decision of a superior court of record is called into
question, will apply to "save" the decision to ban Mr. Hegazi in this
case.
The committee of the Association [which in this case constituted a "tribunal"] is
improperly
constituted if it allows any person other than those authorised by the
articles to participate formally or de facto in its processes.
Interpretation of the expression "unbecoming a member" is
not a simple or easy matter: in some cases where the expression is used
in legislation or rules, the recognized connotations of membership may
assist the interpretation. Membership of a legal professional
association would provide one such case, whereas there are no
connotations of membership of a scrabble association which might permit an extended meaning of "unbecoming".
The
Association failed to provide Mr. Hegazi with any statement or
exposition of what the Association was postulating constituted conduct
which could be characterized as "unbecoming", notwithstanding the
critical and central importance of such a statement.
The "charge"
A
judge of a Supreme Court of an Australian jurisdiction said, in the
course of ruling, in a dispute between a member of an incorporated club,
and the corporation, that the
disciplinary decision must be set aside, said -
I have come to the clear conclusion that the misleading and complicated nature [[of]] the charges led to the disciplinary proceedings miscarrying. It is not necessary to categorize this as duplicity in the charges. It is more correct I think to categorize this as a denial of natural justice in causing confusion as to the offence charged or the conduct said to give rise to the offence charged. ....... I think the main difficulties have arisen because it does not seem to have been clear to anybody as to who was bringing the charge and which was necessary to prove the charge.
These words are entirely appropriate to repeat, and to emphasise, with respect to this
case.
Letter dated 1 September 2008
A letter dated 1 September 2008 was provided to Mr. Hegazi.
That letter was written and signed by the President.
In that letter, it is said, amongst other things that -
written complaints have been received from fellow competitors and Tournament Directors in relation to your conduct at tournaments organised by ASPA (Vic) and by Scrabble Clubs under the umbrella of ASPA (Vic).
First complaint by Marjorie Miller [the President]
This
was to the effect that she had been told by Mr. Hegazi, responding to
her request to do so, that she had been cheating. The President - in an
abuse of her position –
maintained in the complaint that she had not. It was an abuse of her position, because
she intended to [and ultimately did] sit in judgment on the very question which was
raised.
The
actions of Marjorie Miller in being at once judge, witness, prosecutor
and jury were totally and unambiguously unfair. Some might regard it as
extra-ordinarily curious that other Committee members - who must have
seen the inherent contradictions and conflicts in her position - did not
point them out, and take immediate steps to ensure that they were dealt
with.
It is always open to a member to raise an allegation of cheating with the appropriate
people or office bearers: it was Mr. Hegazi's absolute legal privilege to raise frankly
with
the President what he had observed. It is totally contrary to the
Constitution of the Association, and it is contrary to law, that he
might be punished for doing so. It is
preposterous that the President, in those circumstances, would purport to sit as a
"judge".
Further, the President was obliged to proceed by way of mediation under clause 11 of
the Articles of Association [which provide for mediation of disputes between one
member and another].
Second complaint - from Dorothy Barraclough
This
dealt with an incident which had already been resolved by a Tournament
director, who asked for a demonstration of what had occurred. He then
made a ruling that the actions demonstrated to him would not be
cheating.
That ruling brought the matter to an end. However if this view is incorrect, and it did
not
do so, it would follow that a dispute remained, the consequence was
that mediation was required under clause 11 of the Articles of
Association.
Third complaint - from Katie Rowe
This was addressed to "Marj" [the President]. The President was clearly seeking and
collecting
"evidence" from others to support her position as protagonist
concerning Mr. Hegazi, whom she was in effect "prosecuting". This clear
conflict of interest on the part of the President taints everything the
President did, and affects the cogency of the "evidence" or complaints
created as a result of her intervention.
The complaint concerned something which Katie Rowe was obliged to deal with by
reporting it to a Tournament director if it was genuine. However she did not do so.
Further,
the incident occurred in the presence of and under the watch of the
Tournament Director, who would have stepped in had there been any
reason.
Fourth complaint, by Barry Harridge
This is addressed "Dear Marj". It is apparent that it was a response. It is clear that the
President was clearly seeking and mustering or collecting "evidence" from others to
support her own position as a protagonist concerning Mr. Hegazi.
Mr.
Harridge related that Mr. Hegazi, early in a game, said that he
intended to concede the game, but that he did not explain why. Mr.
Harridge insisted [which he had no apparent right to do] that he should
be told why Mr. Hegazi was conceding the game, and was informed by Mr.
Hegazi [as was the fact] that his opponent had selected too many tiles,
returning some further tiles from her rack.
Mr.
Harridge said, as was plainly the case, that he could see nothing to
suggest that Mr. Hegazi's opponent had done such a thing. However Mr.
Harridge ignored evidence from Mr. Hegazi, which was about an incident
Mr. Harridge did not witness, and which the opponent did not contradict.
Mr. Hegazi's opponent claimed not to understand what was being said.
But
in any event, Mr. Harridge decided that the game would cease, and that
it would be treated as an unrated game with a forfeit and an imputed win
to his opponent. He also - contrary to proper administration and
natural justice - purported to give a "warning" to Mr. Hegazi that "any
further incident would result in disciplinary action".
The ruling by Mr. Harridge brought the matter to an end: but if it did not do so and a
dispute remained, mediation under clause 11 of the Articles of Association was required.
The threat made by Mr. Harridge was made without any proper basis, and was totally
inappropriate. It was not the business of Mr. Harridge or anyone else to make it. The
threat was made without explaining or specifying what - in Mr. Harridge's opinion -
must not occur again.
Future disciplinary action can occur ONLY on the basis of an actual judgment
concerning facts which, ex hypothesi, cannot yet be ascertained.
Fifth "complaint" re 8 June 2008 - anonymous
This complaint was again addressed to "Dear Marj" [see above] and was signed
"anonymous".
Such a complaint did not purport to be a complaint by a member, and is not permissible
within the Constitution.
According to its tenor this complaint was written by an associate of the then president.
The expression "KJ" in the complaint was meaningless or uncertain, and the
unsupported claims made about Mr. Hegazi were irrelevant. The things said about "KJ"
were irrelevant. The complaint displayed a preposterous generalized bias against Mr.
Hegazi ["the man is a menace"], but did not set out any facts or basis for the bias or the
biassed opinion.
It does not explain how it might be said that Mr. Hegazi was a menace, or to whom or
what he was a menace, and in what respects. It disclosed no basis for the anonymous
views, and did not address any relevant factual circumstances. Whilst it discloses no
basis for doing so, it creates a speculative nexus between things mentioned in a few
conversations between the complainant and the president [of which there are provided
neither details nor substance]. The entire document appears to be a plea, in the absence
of any or any proper basis, to "do something" about Mohammed.
Sixth complaint by Ruth Fewings, re August 17 2008
This was again addressed to the president, apparently because she was known as the
person marshalling or collecting information or as "prosecutor". The complaint claims
that Ruth Fewings was "so upset by the rude and unsportsmanlike behaviour of
Mohammed Hegazi at the Gwen Chadwick Memorial Tournament last Sunday" that she
had decided not to attend any more tournaments in Melbourne [except one].
This addressing by Ruth Fewings of the degree of her "upset" in terms that are not
capable of rational assessment or consideration is prejudicial and irrelevant. Of itself,
any upset on the part of Ruth Fewings was irrelevant, but that fact - by itself - was
plainly designed and intended to be an operative fact and to prejudice Mr. Hegazi
accordingly. There is a complete absence of any statement of what Mr. Hegazi had
done.
There is a total failure to state or specify precisely what behaviour
of Mr. Hegazi was being complained of. Nothing is said as to how, or on
what basis, the [unspecified] behaviour might be characterized as either
rude, or unsportsmanlike, or in breach of any rule, or unbecoming. No
match is nominated: the occasion of such unsportsmanlike behaviour is
not identified.
There
is nothing provided which would permit the Committee to characterize
anything which occurred as misconduct, or as unbecoming, or as
unsportsmanlike. Perhaps more significantly, there is simply no rational
substance to the complaint.
Seventh complaint, by Dorothy Barraclough - August 17 2008
The complaint says, in part -
"I wish to complain about the bad behavior of Mohammed Hegazi at yesterdays Gwen Chadwick Tournament"
What may constitute "bad behaviour" in a scrabble situation is inchoate. Different
people may come to different opinions on what it is. To offer an opinion, in the
absence of a statement of the behaviour itself alleged to be "bad", conveys no basis to
anyone else to make any judgment about the behaviour. The complaint needs to, but
does not, identify that behaviour, nor does it otherwise raise particular behaviour as the basis of a disciplinary charge.
The complaint continues that Dorothy Barraclough -
"witnessed yet another of our members (a most senior one at that) Ruth Fewings be subjected to his awful behavior".
The seniority of members is a complete distraction: save that it may bring forth the
implication that the person complaining recognises [believes in] some idiosyncratic
hierarchy or class system other than equality between members, or that to be derived
from the Articles or constitution, it raises totally inappropriate considerations.
The use by the complainant of the passive voice, coupled with a complete absence of
any specification or description of what Mr. Hegazi was said to have done, is
completely
inappropriate for a disciplinary complaint. Nothing in what is related
in the complaint supplies the relevant content or context of anything
done by Mr. Hegazi. Whilst the complainant resorts to rhetorical and
dramatic "devices", she articulates nothing of Mr. Hegazi's supposed
disciplinary offence.
She then claims that she personally has –
"been in this position with Mohammed (At the Nationals) and it is very unpleasant to say the least"
but she again avoids saying anything which could explain what she means, or which
might convey to Mr. Hegazi in what way this rhetoric might be related to a disciplinary proceeding.
She omits to deal with –
• what "this" position means, or
• what she means by "it" is very unpleasant
• what she intends by employing the expression "to say the least"
None of this is assisted by the florid rhetorical prose [misdescribed as "observations"]
which follows. The topics to be discerned in this self-indulgent prose include the
complainant's own emotions [and those she imputes to others, as if, perhaps, in some
folie a deux]. They include references to –
• distress
• more distress
• "upset", and "so upset"
• unpleasantness
• "still" giving Ruth "a hard time"
• Ruth being "consoled" by Barry [Harridge]
The repeated employment of the passive voice creates obscurity. There is a complete
failure to provide notice of anything Mr. Hegazi is said to have done. The exercise of
doing so is not even attempted. It is impossible for a reader to know whether Mr.
Hegazi actually did anything to cause the several things ["distress, more distress,
"upset", "so upset", unpleasantness, "still" giving Ruth "a hard time", Ruth being
"consoled"
by Barry [Harridge] mentioned. If Mr. Hegazi is said to have done any
such things, he should have been told, in clear and unambiguous
language, what the relevant actions were.
If there are unaddressed undercurrents [such as the heavily gendered dynamics
apparently applied by the named female members towards Mr. Hegazi] they should
have been set out with clarity.
The opinionated and self indulgent language employed in the complaint is totally
inappropriate for a charge. No basis is displayed for the opinions.
Eighth complaint, by Bridget Halge - August 17 2008
This complaint was again addressed "Dear Marj". It expressed -
"frustration at the joy having been taken out yet again, of my enjoyment of a
scrabble tournament when I witnessed Ruth Fewings’ distress while she was
playing a game against Mohammed Hegazi".
The sharing - with "Dear Marj" - of this expression of frustration does not fulfill the
function of telling Mr. Hegazi [or anyone else] whether any action of Mr. Hegazi
constituted the basis for a disciplinary offence. Unabashedly self-indulgent, this
appraisal [opinion] discloses neither a disciplinary offence, nor - indeed - anything at
all done by Mr. Hegazi. Not only is the expression of frustration totally self-indulgent:
it is irrelevant to any disciplinary offence or enquiry.
The complaint - without specificity, detail, rationale, or explanation - continues –
" my experiences of playing against Mohammed have been nerve racking and filled with anxiety. I experience his behaviour as hostile and intimidating which results in my inability to play my best. Each time I see his name listed as a participant in a tournament, my heart sinks because I dread the prospect of having to play against him."
And with confessed idiosyncrasy, and burgeoning self-indulgence, the complainant
deals not with Mr. Hegazi, but with herself, Bridget Halge.
"I ask that the committee seeks to redress this situation through whatever means that are open to you".
This "situation" is not defined. The complaint is concerned to deal with the
complainant's
experiences. No objective facts are set forth. The process of notifying
Mr. Hegazi - pursuant to the Constitution, or at all - of a
disciplinary offence, is eschewed. This "complaint" is incapable of
being dealt with.
The "plea" to "redress" "through whatever means" is totally inconsistent with the
Committee maintaining its independence in deciding a disciplinary matter.
This complaint is entirely beyond the limits of anything it could possibly be legitimate
for the Committee to consider.
Ninth complaint - August 10 2008
This
was again addressed to the president, and resulted from an earlier
communication with the complainant and the president. It is essential
that the content of the earlier communication be provided, but it has
not been.
The complaint implicitly provides the opinion of the complainant concerning Mr.
Hegazi's actions on a prior occasion, but it does not set out the facts on which that
opinion was based. It says –
"What it was was that his time was running out - he was playing for time or some such".
This opinion - unsupported by facts - is sheer speculation. If it is accepted, it is still
merely speculation.
Tenth complaint - [ August 10 & 17th 2008] by Carol Johnsen
This complaint was that the complainant had the opinions –
Mr. Hegazi had facetiously declared a score of 200 for a play which clearly did not total that amount
Mr. Hegazi's declaration was a ploy, and was deceptive and time-wasting
Mr. Hegazi's ploy was insolent and ill-mannered manner and intended to upset the opponent
These three statements have in common that they are all speculation by the
complainant. They are inconsistent.
The complaint continues –
.... also, at the Gwen Chadwick Memorial tournament last Sunday, you managed to upset one of our longest-playing and highly-respected players; which not only distressed her but those who witnessed it happening.
This is no way to frame a complaint. The facts are not set out. The reference to the
supposed social status is irrelevant. Whether the complainant is or is not part of a
mutual
respect clique in which the player mentioned participates, is not a
matter proper for consideration by a disciplinary committee.
The complaint goes on –
I will be moving a motion that the committee take out disciplinary action against you for what
appears to be your continuing unacceptable behaviour.
The facts which constitute the claim of continuing unacceptable behaviour are not set
out. Whilst there seems to be a claim - somewhat retiringly made - that there is
"continuing" unacceptable behaviour, the complainant patently cannot and does not set it out.
The complaint continues –
… you have general concerns with the rules of the game, which you can address in writing to Trevor Halsall, the Victorian representative on the CASPA Rules Committee
This is an acknowledgement - correct, but incomplete - that as a member of the
Association, Mr. Hegazi has a right to raise concerns about compliance with the rules.
However it is quite inappropriate to suggest that Mr. Hegazi's right to raise such
concerns is limited to raising them with Trevor Halsall. Compliance with the rules is
something
which it is appropriate to discuss generally, in particular contexts
which may arise from time to time. This complaint is premised on two
notions which are equally preposterous –
• that the rules, and the possibility they may have been infringed, cannot be raised on
the spot by Mr. Hegazi, or indeed by anyone else, and
• that if a member is "upset" or "distressed" about a question being raised about her
compliance with the rules, the members emotional state converts the raising of the
compliance question into misbehaviour or misconduct.
Raising
a rational question whether there has been compliance with the rules,
with any of an opposing player, a tournament director, or other members,
must surely be the subject of absolute privilege. It cannot be
converted into a disciplinary offence.
The complaint goes on -
you appear to constantly upset innocent opponents at tournaments with
unacceptable comments and, as in the case at the Mornington Tournament,
ill-mannered tactics.
No detail is provided. There is a total failure to set out the particular acts or
circumstances which could conceivably render Mr. Hegazi's conduct "unacceptable", or ill-mannered.
Eleventh complaint - by John Minas
This
complaint was not provided to Mr. Hegazi until 18 September 2008 at the
enquiry. It was received by the President on 7 September 2008. No prior
notice of it was given to Mr. Hegazi. No explanation was forthcoming.
The
complaint was addressed to the President, "Marj"- quite obviously
because she was "leading the charge" as prosecutor or evidence collector
- concerning Xiao Ting Box Tournament on 12 May 2008.
It is apparent that the complaint was concealed from Mr. Hegazi, either with intent to
disadvantage Mr. Hegazi, or not caring that it did.
The complaint was irregular, and there was no proper notice of it.
The complaint concerned the correct assessment of the appropriate deduction from a
score. The matter was settled by agreement, on the day. After discussion, as the
complaint says –
5) Mohammed conceded that there would be only 10 points deducted.
That was the end of the matter. However Mr. Minas continues –
My observation was that Mohammed deliberately attempted to change the scores of the game to gain an unfair advantage. This is consistent with his actions in resetting the clock before the scores were announced and agreed on.
There is no basis set out for this opinion. Nothing is offered to support it. The best that
the complainant can do is to refer to the hypothesis of consistency with his chosen
assumption. What the complainant fails to notice, and does not deal with, is that there
are two equally open hypotheses. That being the case, it is not open to him to adopt
either.
The rest of the "complaint" consists of hoisting himself on the same hypothesized state
of affairs.
Had
I not been watching the game, Mohammed would have been able to deduct
an extra 10 points from Margaret’s score. Attempting to falsely
manipulate the scores of a game is clearly against the rules and the
spirit of the game and should not be tolerated under any circumstance.
The foundational premise of this argumentative reasoning is absent.
Twelfth Complaint - Katie Rowe
Complaint
12 was by Katie Rowe. Despite it being received by the President "Marj"
on 5 September 2008, no notice of it was given and it was not provided
to Mr. Hegazi until 18 September 2008 at the enquiry.
The president deliberately [plainly with intent to disadvantage Mr. Hegazi] withheld
the complaint from him until the day of a purported hearing.
The complaint demonstrated the existence of a dispute, to which Article 11 of the
Constitution applied.
No proper notice was given, and it was not open to deal with the complaint.
Summary
The foregoing consideration of the procedure adopted, is not to be regarded as
exhaustive
or complete. However there is no room to doubt that the proceeding
against Mr. Hegazi was fatally flawed. It has caused great injustice.
What is required in dealing with a charge?
In
dealing with charges or claims against a member, Committee members are
obliged to behave fairly, and to observe [and ensure that all other
committee members, and the
association itself observes] the rules and constitution of the association.
Part of the contract of membership requires that the committee members would
individually
and as a group co-operate with Mr. Hegazi as a member of the
association to ensure that his rights pursuant to the constitution were
fully accorded to him and observed. Central to this is the necessity for
observance of minimum standards of legality, rationality, and fairness.
Where a person is facing a charge of misconduct that can have the consequence of serious
damage to reputation, it is well settled that natural justice requires
certain basic minimum standards to be observed: implicit in this scheme
of natural justice is that before the person accused is condemned,
proper notice must be given of the facts necessary to establish the charge. The evidence, which can only address those facts which the notice actually given legitimately raise, must prove or establish the allegations to the satisfaction of the Tribunal. The Committee of the Association constitutes the "Tribunal".
If
the facts are established, then the Tribunal may move to whatever form
of censure or penalties, as are prescribed. If the facts are not proved,
then the matter is at an end and the person charged is entitled to
exoneration.
It is incompatible for the same person to be at once judge and occupy some other
position such as witness or prosecutor: prima facie such a person must not act as a
judge
at all, and is obliged to stand aside. That is a fundamental and
essential principle of justice. The actions and conduct of Marjorie
Miller - without more - render the decision nugatory and void.
The Constitution
The relevant part of Clause10.4 of the Constitution provides –
10.4 - For the purposes of giving notice in accordance with sub-rule (3), the
Secretary must, as soon as practicable, cause to be given to the member a written notice –
(a) setting out the resolution of the committee and grounds on which it is based; and
(b) stating that the member, or his or her representative, may address the committee at a meeting to be held not earlier than 14 days and not later than 28 days after the notice has been given to that member; and
(c) stating the date, place and time of that meeting; and informing the member that he or she may do one or both the following –
attend that meeting;
give to the committee before the date of that meeting a written statement
seeking the revocation of the resolution;
(e) informing the member that, if at that meeting, the committee confirms
the resolution, he or she may not later than 48 hours after that meeting,
give the Secretary a notice to the effect that he or she wishes to appeal to
the Association in general meeting against the resolution.
A letter dated 8 September 2008 [purporting to be a charge letter and containing 13
pages] was provided to Mr. Hegazi in September 2008.
That letter did not at all comply with the Rules of the Association, and was not capable
of providing a proper - or any - foundation for action purportedly taken by the
Committee against Mr. Hegazi. The reasons why that is so include, but are not limited
to, the following –
• the letter was not in form or substance a letter contemplated by the Constitution but
was wholly outside and unauthorised by the Constitution
• the letter was not sent, written, or signed by the secretary in the course of the
secretary's role under the Constitution, or at all
• the letter was written, and signed by Marjorie Miller qua president, without
Constitutional warrant
• the writer of the letter [Marjorie Miller] was an accuser/prosecutor/complainant whose
presence at and participation in any meeting of the Committee which led to the writing
of the letter was unlawful and/or unconstitutional
• the letter failed to set out in any appropriate manner or at all any resolution of the
committee [the recording of which was required to be carried out by the secretary]
• there was no valid or material resolution of the Committee which preceded the letter
• if there was a valid or material resolution of the Committee, such resolution was not
one recorded by the Secretary in accordance with the Constitution
• the letter failed to set out in any appropriate manner or at all the grounds on which it
was based.
On about 18 September 2008 the Committee had a meeting at which it purported to
proceed to deal with Mr. Hegazi. The meeting followed a process which was clearly
not authorised or permitted by the Constitution, and which was contrary to the contract
between the association and Mr. Hegazi as a member. No legal foundation for the
meeting existed.
• there was not any constitutionally permissible charge or notice before the
Committee
• the meeting itself was not constitutionally permissible or valid
• the President Marjorie Miller - an accuser/prosecutor/complainant - remained in the
meeting as president, chaired the meeting, and her presence and her actions in taking
part in the meeting was an egregious breach of the rules of natural justice.
The Committee purported to find or decide that Mr. Hegazi was guilty of conduct
unbecoming a member, and in consequence determined to suspend him.
It
is quite clear that the entire procedure of the Committee was
fundamentally flawed: it was neither permissible nor constitutional. The
consequence is that the ban imposed
was - and remains - completely invalid.
Lest
it be thought that Mr. Hegazi is bound by [has to put up with] this
unconstitutional procedure [to which he did not consent] it should be
stated clearly that as a lay person he had not - until recently - come
to understand the overwhelming significance of the omissions and errors
made by the Association. The entire procedure [including the decisions
to find him guilty of unbecoming conduct, and to ban him for twelve
months] was grossly unfair, contrary to natural justice and minimum
standards of fairness, andcontrary to the Constitutional requirements of
the Association. It was also invalid, and contrary to his rights as a
member.
This is an extremely serious matter, and Mr. Hegazi is entitled to a formal
acknowledgement that what Australian Scrabble Players Association (Vic) Inc. did to
him by purporting to ban him from playing, and by giving effect to the purported ban,
constituted egregious error.
I am instructed to demand such a formal acknowledgement, an apology, and damages.
There has been substantial damage to his reputation, self-esteem, and quality of life,
which continues.
Damages:
The injury and damage to Mr. Hegazi and his reputation have been substantial. The
matter has been compounded by the continued unwelcoming attitudes shown to Mr.
Hegazi. He has been forced to go interstate to play matches, but there is a continuing
life ban on his playing games in WA.
The hostility of members has arisen partly because the committee prevented them from knowing all the facts.
Costs
It
has become unavoidable that Mr. Hegazi has engaged a lawyer. Had the
matter been treated seriously by the Association, and been successfully
mediated last year, legal costs would not have to have been incurred.
Substantial time has been spent in having briefings with Mr. Hegazi, and
with Mr. Malcolm.
Details of the costs will be supplied from time to time: Mr. Hegazi expects those costs to be paid for by the Association.
Further matter re inspection of books and records
I have been informed by Mr. Hegazi and Mr. Harry Malcolm that during 2012 both of
them, as members of the Association, gave notice to the secretary of Australian
Scrabble
Players Association (Vic) Inc. that they would exercise their
respective rights to inspect the books and documents of the association
pursuant to the Constitution.
The Constitution provided –
7.3 SECRETARY
(a) To handle the correspondence and records of the Association.
(b) To have custody of books and documents.
(c) To keep minutes of all meetings and to notify committee members of coming
committee meetings.
Clause 9. INSPECTION OF RECORDS The books and documents of the
Association may be inspected by any member after giving fourteen days notice in writing to the Secretary.
Mr. Hegazi's and Mr. Malcolm's respective rights to inspect the corporation's books and
documents were enlivened by the notices, and arrangements were made for them to do
so accordingly. Mr. Hegazi and Mr. Malcolm attended as arranged. However neither
Mr. Hegazi nor Mr. Malcolm was provided proper access to the books and documents
of the association: rather, whilst not being given access to all the Association
documents, access was provided to some documents which the President of the
Association and or the Secretary chose to make available.
During the time set aside for the arranged inspection, Mr. Hegazi and Mr. Malcolm
were explicitly refused any access to all the books and documents of the association,
and in particular they were refused access to records [such as minutes] of the meetings,
proceedings, and things related to the purported disciplining of Mr. Hegazi.
The president and secretary - apparently by some arrangement between themselves, and
contrary to both the constitution and the constitutional rights of members to inspect -
conspired and agreed that they would by their own choice [or purported discretion]
restrict what books and documents of the Association members Hegazi or Malcolm
would be permitted to see. This was arbitrary and illegal.
Further [as emerged before and during the day on which Mr. Hegazi and Mr. Malcolm
attended to look at the books and documents] the President and secretary of the
Association maintained a course by which the books and documents of the Association
were not held and maintained by the secretary [and in the custody of the secretary] as
required by the Constitution, or at all. Mr. Hegazi and Mr. Malcolm were given false
and unacceptable explanations as to why documents were not made available for their
inspection.
The entire state of affairs disclosed by all of these circumstances is totally
unsatisfactory, and must be remedied forthwith.
Further matter re membership records
The Constitution provides that there be a Membership Officer who is required –
(a) To collect membership fees from new and existing members, and issue written
receipts for same.
(b) To keep and maintain a Register of Members.
(c) To advise the President, Secretary and Treasurer of changes to the Register of
Members.
All
the documents mentioned [copy receipts, the Register of Members, and
each revised or changed Register] are documents of the Association: it
is beyond question that these documents, in their entirety, are
therefore open to inspection by a member.
Mr. Hegazi - as a member of the Association - gave notice that he required to see the
Register which it is the duty of the Membership Officer to keep and maintain, and
which is required to contain details of each member. The President - upon learning of
Mr. Hegazi's request, falsified the Register by creating a copy in which her own name
and address was shown as the postal address of a large number of members.
This action by the President - and her enrolling other committee members in her plan
not to provide anything but a false register of members to Mr. Hegazi, was a gross
abuse of her position. If the President, with authority, or in the absence of authority,
creates a second or third set of books, each set of books is and remains a document of
the Association.
Consequence
It is apparent that the President has over a period of years knowingly dishonoured the
Constitution of the Association, both by not observing it, and by not observing the
procedures and entitlements which the Constitution provides for. The President has –
• treated the Association as “her private fiefdom”, running it for her own benefit and
that of other Committee members and office bearers who are her friends. There
appears to have been misfeasance and breach of fiduciary duty on her part.
• paid scant attention to the independent existence of a corporate entity
• paid scant attention to the requirements of the Constitution of the Association
• ensured that the rights of Members are not observed by the Association and its office
holders, but are routinely dishonoured and abused
• connived to prevent Mr. Hegazi having legitimate communication with other
members of the Association.
It is plain that the ordinary and proper purposes of the inspection regulated by Clause 9 of the Constitution include
• allowing a member to investigate prima facie irregularities in the Association's
transactions
• allowing a member to investigate the conduct of the office bearers and/or the
Committee members in connection with the 2008 matters referred to above, and
generally
• allowing a member to investigate other reasonably suspected breaches of duty.
Further, the president and secretary intended by their arrangement - apparently by
some arrangement between themselves, and contrary to both the constitution and the
constitutional rights of members to inspect - conspired not to permit either Mr. Hegazi
or Mr. Malcolm to see the books and documents of the association.
Mr. Hegazi and Mr. Malcom were merely given access to a small number of
documents which the President, secretary, and other office bearers of the Association
determined they should be permitted to see.
These matters are extremely serious, and on their face demonstrate entrenched and
aberrant mismanagement of the Association, and a clear plan to cover the
mismanagement up.
Mr. Hegazi requires –
* That the Association and the Committee members and office bearers admit
and declare that the purported disciplinary action and the entire proceeding
taken against Mr. Hegazi in 2008 was unconstitutional, null, and void, and illegal.
* That the Association and the Committee members and office bearers admit and
declare that the continuing actions taken in 2012 by the Association and various
Committee members and office bearers in failing and/or refusing to provide
access to the books of the Association, is and was unconstitutional, null, and
void, and illegal.
* That the Association and each of its Committee members and office bearers
named above forthwith make a list to be verified by affidavit of all documents of
the Association which are or have previously been in the power custody or control
of the Association or its Committee members and office bearers, such list to
include [without prejudice to the generality of this requirement] all lists of
members.
* That the Association and each of the Committee members and office bearers
named above make compensation for loss injury and damages including legal
costs.
If within 14 days these matters are not resolved as set out above, Mr. Hegazi will
commence proceedings as he may be advised. If necessary he will seek an order that
the Association be wound up.
Yours faithfully,
David Perkins
