The lessee of a hangar at a country airfield has defeated his landlord aero club in its bid to terminate his membership and lease.
The South-East Queensland Sport Aircraft Club Inc leases land at the Kilcoy airfield – on the shores of lake Somerset – from SEQWater.
Erich Shipton sub-leases one of several hangars at the airfield, from the club who also operates the airstrip.
His company, Orthonyx, has a Civil Aviation Safety Authority approval to carry out aircraft maintenance.
The company sought and obtained approval from the head lessor and the Council to maintain “a personal special interest aircraft” at the hangar.
The club suspected he carried on an aircraft maintenance business from the hangar and issued a show cause notice to him – referring to legal advice it had obtained – asking him to state why his membership should not be terminated by reason of his apparent breach of club rules.
Shipton requested a copy of the legal advice but the club refused to provide it. He did not otherwise respond to the show cause notice.
The club purported to terminate his membership on 15 August 2021.
Shipton sought a legal ruling declaring the termination void because he had not been accorded natural justice and requiring the club to produce the advice as “privilege” in same had been waived.
He also contended that the termination letter did not set out the reasons for its decision other than to state the conclusion that his conduct was injurious or prejudicial to the club.
The club alleged the court had no jurisdiction to consider the application because Shipton was no longer a member.
Judge Susan Brown in the Supreme Court in Brisbane ruled however she had jurisdiction to consider a purported membership termination where it is challenged as contrary to the club’s rules or for denial of natural justice.
Although “the mere reference to legal advice would not generally be sufficient to constitute a waiver of privilege,” the judge concluded the committee’s reference to the legal advice as the basis for Mr Shipton being in breach of his sublease was inconsistent with it retaining any confidential character.
“I find privilege in the advice is therefore waived,” she ruled.
The show cause notice itself was also considered to be confusing and disjointed providing all the more reason why the legal advice should have been provided.
In not providing a clear show cause notice that included information in relation to the allegations, together with the legal advice, the club denied natural justice to Mr Shipton.
The court concluded that termination of his membership was therefore void.
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