Expulsion from private associations in New Zealand
Degree GrantorUniversity of Canterbury
Degree NameMaster of Laws
The associations examined in this study have two common characteristics: they are formed by a group of private individuals, and they have come together for some primary purpose other than profit-making. The classic form of such an association was the Eighteenth Century Club, and for the purpose of this inquiry the genre of voluntary association may be broadly defined in club terms:- “…a society of persons associated together for social intercourse? for the promotion of politics, sport, art, science or literature, or for any purpose except the acquisition of gain.” Commercial trading companies and business partnerships are clearly excluded. Fraternal orders, political parties, church bodies and golf-clubs equally clearly fall within the definition. The place of the trade union is more difficult to determine, but the resemblance of trade unions to social clubs has been acknowledged by New Zealand courts and it is proposed to pay particular attention to trade unions for they most clearly illustrate the broader context in which expulsion must be studied. Expulsion embraces more than mere catalogue and analysis of case-law and statute relating to voluntary associations for the legal problems involved cannot be divorced from their social, political and economic context. The voluntary association has been described as “an exotic in the field of litigation”, the core problem being that such an aggregate of individuals is not recognised traditionally as having any separate legal existence. From this it follows that the association cannot enter into contracts nor sue nor be sued, and there are difficulties confronting such a group wishing to hold any real property, or, indeed, any form of tangible asset. In short, there exist a number of problems of substance and procedure in actions by and against such a group. Furthermore, voluntary associations have traditionally been accorded autonomy in internal affairs. The courts have long taken the view that the internal dispute of, say, a debating society or card club are not justiciable. While most internal affairs of voluntary bodies can be resolved by the rules governing co-ownership and agency, the traditional judicial approach affords little encouragement to the wrongly expelled member. This is so notwithstanding that expulsion “constitutes perhaps the central legal issue as regards associations of a non-commercial nature.” At the narrowest the question to be pursued in this study is: then a member of a voluntary association is improperly expelled, what is the nature of his remedy and against whom is it available? For the member the resolution of this issue raises problems of substance and procedure. For the courts the issue involves two problems: on what basis will the Court assume jurisdiction and, if jurisdiction is assumed, what remedies are available? At the widest, the theme of this study is a facet of the conflict between group and individual freedoms, which crystallise in the problem of expulsion from private associations, and which involve associated jurisprudential difficulties consequent upon rapid social change in a modern welfare state. Broad consideration of the relation of law to society and of legal theory to social reality will, therefore, intrude throughout.