Consistent Inconsistencies

Consistent Inconsistencies

By Bruce Gotterson

March 02, 2018

This article appeared in the December 2017 issue of Club Life.

In the age of Google and Wikipedia there is a growing view that information and answers should be easy and instant and we all should be able to do everything ourselves.

We are all guilty of it, the other day my dishwasher filled with water and, rather than find someone who fixed dishwashers for a living, I Googled to see if I could fix it myself. The short version of the story is: my kitchen flooded.

We all know a club’s constitution is one of the most important documents a club has. It is effectively the contract between a club, its directors and its members. A constitution should be an up-to-date working document and will often be the first port of call in working out how to resolve an issue with members.

However, I have come across a small number of clubs that have tried to cut some costs and had a go at updating their constitution themselves. One problem is that this can lead to inconsistencies within the document and unnecessary disputes with members.

We have reviewed hundreds of constitution and there are numerous solutions that can be incorporated into a constitution to minimize potential issues clubs often face.

It is important that directors and managers regularly review, and have a good think about, their club’s constitution. It can even be beneficial to chat with other clubs to see how their constitution deals with potential issues.  However, at the end of the day, a constitution and a notice of meeting are legal documents and “D.I.Y” errors can lead to problems.

There are real risks for a club simply trying to “cut and paste” a provision from another constitution without first properly reviewing all of its own rules. For example, I have seen a club that introduced detailed provisions on postal voting but failed to amend another rule which still required that members be personally present at the club while voting on the election of the board.

Often a subject may be dealt with in two or three places in a club’s constitution (regarding different aspects of the subject) and amending only one part (without dealing with another) may lead to the document being incoherent. Even if the document can be made sense of, there is the risk that a member may find the inconsistent provision and use it to cause unrest with other members.

I remember seeing one constitution that, at one place, provided that no more than one vice chairman could be a non-bowling member but still provided, at another place, that only bowling members could stand for or be appointed to the board.

Another trap can be issues relating to definitions for classes of membership which may change over time. For example, a club’s constitution may provide that “voting members” comprise of a number of categories. This can lead to an issue if the club later combines those categories to create a new category without updating the definitions. For example, it can be a problem if “Men’s 7 day golfers” and “Ladies 7 days golfers” are combined to a new category of “Full-time golfers” which aren’t included in the definition of “voting member” and therefore may not have any voting rights (much to the surprise of all).

Ultimately, these sorts of inconsistencies can lead to disputes or mistakes that could have easily been avoided by having the Club’s solicitor review the proposed changes. In the same way I am told that I could have avoided the extensive mopping of my kitchen floor if I’d used someone who fixed dishwashers for a living rather than trying to do it myself.

For more information, or simply to have a chat about a new provision for your constitution, call Bruce on 02 8251 7777 or email b.gotterson@pigott.com.au.

This article is intended to provide general information in summary form on a legal topic, current at the time of publication.  The contents do not constitute legal advice and should not be relied on as such. Formal legal advice should be sought in specific circumstances.