DECISIONS OF THE SUPREME EUCHRE COURT OF EARLWOOD

SECE JUDGMENT NO.1864

Citation:  Keith the Neck v ESG&EC

Question:  Was an expulsion notice pursuant to s 57 (2) (b) ever served upon the plaintiff in the manner authorised by s 170 of the Earlwood Euchre Associates Act?

Hearing date/s:  3-4 July 2003

Judgment date:  7 August 2003

Jurisdiction:  Professional Standards

Judgment of:  Hannah, P.

Decision:  Question answered, "Yes."

Catchwords:  associates membership – leading partners double back to him - club's remedies - notice before exercising power of expulsion Earlwood Euchre Associates Act 1989 s.57 (2)(b) - finding of fact that notice delivered - consideration of requirements of Earlwood Euchre Associates Act 1989 s.170 - question answered "yes", notice given.

Legislation cited:  Earlwood Euchre Associates Act

Case/s Cited:  Connor v Earlwood District Hospital (1971) 1 NSWLR 713

Parties:  Keith the Neck - Plaintiff, ESG&EC - Defendant

File number(s):  SECE 35/2003

Counsel:  Tackhead & Associates - Plaintiff, Hughes & Java - Defendant

Judgment:

1.  In the statement of claim the plaintiff asserts that no notice pursuant to s 57 (2) (b) by the defendant, in relation to his expulsion from the Euchre branch of the ESG&EC, was ever served in the manner authorised by s 170 of the Act.  In law, the plaintiff bears the burden of proof of the negative that no notices were given.  However, the defendant, in the nature of the issue, comes under a considerable forensic burden because the defendant is in a far better position to establish facts relating to compliance with s 57 and s 170 than the plaintiff.

2.  The plaintiff's evidence-in-chief in his affidavit of 5 May 2003, para 11, said to the effect that the only notices (which he uses to refer to a s 57 (2) (b) notice) received were breach notices, delivered the previous year, pertaing to relatively minor slip-ups of euchre standards – leading his partners double back to him and failing to lead a bower on his partners make.  He said he had no recollection of ever receiving a show cause notice, and all documents received in connection with his associate membership are regularly filed and a thorough search revealed no show cause notice.

3.  This evidence was supplemented by oral evidence and was challenged in cross-examination.  The plaintiff produced a bundle of envelopes, exhibit 4, which he said are examples of envelopes which he had received from the ESG&EC at his at Richmond Avenue address.  The plaintiff's evidence further states while the above address is his home; he lives in a small dungeon under the house, with his daughter renting the main house.  His routine for receiving mail was that when he eventually came home, generally quite inebriated from long sessions at the Earlwood Hotel and/or Earlwood Ex-Servicemen's club, he would find his mail, collected by his daughter from the mailbox, pushed under his dungeon door.

4.  In my view, the proofs offered by the plaintiff to the effect that the show cause notice was not received through the post at Richmond Avenue are not altogether convincing.  It would have been desirable that his daughter give evidence of her practices and also of anything she might know about the receipt of any such letter in the mail.  It seems to me that he has not offered full and clear proof of the negative proposition of which the burden of proof rests upon him.

5.  The defendant put in evidence the affidavit and oral evidence of Fatcatsson who, at the time of alleged dispatch of the show cause notice, was employed by the ESG&EC and working in the Euchre Notice Unit of the Club's associate members division.  His duties included the issuing of breach and show cause notices where the associate members standard of euchre play had reportedly fallen short of established guidelines.  He produced in evidence exhibit 3, a document internal to the club called Issuance of Notice.  This document specifies in fairly close detail a procedure to be followed for preparing, addressing and posting notices and for keeping records of so doing.  Fatcatsson's evidence, since he has no actual recollection of this breach notice, nor of his handling of said notice, is based upon his knowledge of the practice at that time, of his own pursuit of that practice and conformity with it, and of what he is told by some written material he has produced.

6.  He tendered a copy of the show cause notice retained by the club bearing an endorsement made by him on the relevant day saying:  "The document on which this stamp is placed is an exact copy of the show cause notice posted to the addressee of the notice in a prepaid envelope on today's date to the address appearing on the notice".  This note, signed and dated by him, equipped him rather well to speak of the events of that day on the basis of recollection refreshed by a contemporaneous note.  His evidence then avers that he did sign the notice and write the date in and he went on to say that he obtained a photocopy of it to make the note on the duplicate, signed his signature, printed his name and dated the stamp and, in accordance with standard practice, he obtained a plain white unmarked envelope and hand wrote Keith the Neck's name and address on the envelope, attached a postage stamp of the right value and put the envelope (with, his oral evidence shows, the notice itself) in a special tray in the Notice Unit.

7.  There are some small infelicitous aspects of Mr. Fatcatsson's evidence.  When describing his practice he gave the wrong street number but at other places in his affidavit, and in the records he produces with it, the correct street number uniformly appears.  I have no doubt overall that his evidence supports my finding that he put the correct street number on the envelope.  He was also challenged in cross-examination with a suggestion that the postcode, as he wrote it in the postal service register, is difficult to read and may refer to some initial number other than 2 for the postcode 2206.  I am unable to believe that this can have been a practical difficulty as all post code numbers for New South Wales begin with the number 2 (with minor exceptions for articles directed to post boxes).

8.  Overall Fatcatsson's evidence paints a picture of a carefully constructed routine supported by contemporaneous records, and gives proof of acts which, after a lapse of several years, depend far more on the records than on the evidence of recollections of persons who took part in the events.  Clearly enough, practices can be proved and relied on in proof of the probability that events actually happened in accordance with the practice.  The principal authority known to me is the decision of the Court of Appeal in Connor v Earlwood District Hospital (1971) 1 NSWLR 713.  Where routines and practices have been carefully constructed and are well recorded, they can in fact be quite convincing, even more convincing than claims of recollection based on a witness casting his mind back some years to a relatively minor event.

9.  On these considerations I find that the default notice, a copy of which is annexure A to Mr. Fatcatsson's affidavit, was posted in an envelope addressed to the plaintiff in the manner and circumstances which Mr. Fatcatsson's evidence suggests that it was posted.

10.  Overall I am not impressed by the proofs offered in support of the proposition that it should be found, on the balance of probabilities, that the documents were not received at Keith the Neck's Richmond Avenue residence.  It may well be that they were not - but as a matter of probabilities I am not satisfied that it has been shown that they were not.

11.  For these reasons I answer the question: Yes, the defendant had given notice under, and in accordance with, s 57 (2) (b) of the Earlwood Euchre Associates Act 1989.