Australian Lawyer
18 April 2013
Without
Prejudice except as to Costs
To The Secretary,
Australian Scrabble
Players Association (Vic) Inc.
Dear Secretary,
Purpose
I act for Mohammed Hegazi, a member of Australian
Scrabble Players Association (Vic) Inc since 2004.
This letter is directed to the incorporated Association
and is accordingly directed to you as the proper office to receive
communications on its behalf. I intend to write separately to you and to
certain other officers of the association concerning your and their actions and
involvement in matters referred to 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 the Association 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 hisreputation. 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
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 member and another member; or
• 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, the committee 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 …
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.
3
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
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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.
5
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.
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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"
7
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]
8
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.
9
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 Carole
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
10
"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 the Trevor Halsall, 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.
11
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.
12
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 –
• setting out the resolution of the
committee and grounds on which it is based; and
•
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
• 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
13
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, and
contrary 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
14
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.
It is Mr. Hegazi's intention to pay over damages he
receives to Peter MacCallum Cancer Foundation.
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
• To handle the correspondence and records
of the Association.
•
To
have custody of books and documents.
•
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
15
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 -
•
To
collect membership fees from new and existing members, and issue written
receipts for same.
•
To
keep and maintain a Register of Members.
•
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.
16
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 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.
In the event that the Association does not make immediate
transparent arrangements to remedy this situation by providing complete access
to the books, Mr. Hegazi reserves the right to take legal action to enforce his
rights without further notice.
Yours faithfully,
