Legal Development

 

 

 

 

 

                                                                                                 Australian Lawyer

 

                                                                                                 Victoria

 

 

                                                                                                  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

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 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.

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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.

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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"

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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]

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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.

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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

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"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.

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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.

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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

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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

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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

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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.

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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,