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HEA Update: More hearings to come in the HEA Inc. court case
Unhappy with decisions made by the Home Education Association Inc. management committee, a group of members and non-members have taken their grievances all the way to the NSW Supreme Court.
The court case, although begun in late July 2018 when the original summons was served, is still at the directional hearings stage.
Four members of the association were named as defendants, sued by the HEA Inc. and three individuals.
As a result of the proceedings from previous hearings and out of court negotiations, all four defendants have been removed from the case.
Three defendants were discontinued from the case with no case to answer, with the matter of costs settled outside of court. The other defendant has been dismissed with her costs paid by the plaintiffs as she had no case to answer.
The HEA Inc. was switched by the other three plaintiffs from a plaintiff to a defendant. The association is now being sued by the three individuals.
Of the four directions the plaintiffs sought at the most recent hearing on 8 Oct 2018, only one, permission to file their Further Amended Statement of Claim (version 4), was granted.
A request by them that the HEA's webmaster be ordered by the court to send an email to all members failed on technical grounds, as it is not possible to order someone to do anything who is not a party to the proceedings.
The HEA Inc. was represented in court by a legal team under instructions from the association's insurer.
The barrister for the plaintiffs raised concerns about who would be instructing the HEA's solicitor and suggested that it should be one of the plaintiffs, a position which was rejected by the justice as an abuse of process.
The justice informed the plaintiffs that they could spend time and money (adding to the costs on both sides) to get an interlocutory order in a different court to restrain the HEA's solicitor from presenting evidence in the HEA's defense, and that the earliest this could be heard would be in early to mid 2019. The justice said that if this application was successful and he saw the case again next year, he would stay the case (not allow it to proceed) as the HEA needs to be represented if it is being sued.
The judge required the HEA's solicitor to advise the court who would be instructing them and what authority they would be acting under.
A further directions hearing is listed for 22 Oct 2018.
Several HEA members attended the 8 Oct hearing. Anyone can attend as members of the public as the case is heard in an open court. https://onlineregistry.lawlink.nsw.gov.au/content/court-lists#/detail/20180022232418185705DirectionsCorporationList/
The original summons was filed in late July 2018. It is unknown how long the case will take to reach a conclusion and at this stage it is likely to be heard well into 2019.
The cost of this court action continues to climb. The out-of-pocket costs to the home educating mums wrongly named and pursued without just cause in this action is said to be approximately $9000. A group of friends have begun a go-fund-me campaign to help these families off-set this unexpected and unnecessary expense in their lives: https://www.gofundme.com/help-mums-defend-court .
The HEA is listed as 'in dispute' by the NSW Office of Fair Trading. It has failed to meet it's mandatory financial reporting dates with the Australian Charities & Not-for-profit Commission.
In February two HEA members were expelled, the 2017 management committee citing serious breaches of the association's codes of ethics and conduct. The members did not appeal this decision.
Shortly after, the HEA postponed its March AGM. Concern arising from information received about plans to allegedly stack the election of the 2018 committee was later cited in an email to members as the reason.
An open letter by one of the expelled members was widely circulated on Facebook in March 2018.
This resulted in a petition requesting a special general meeting to restore the expelled members' membership, suggesting that the postponed AGM be held at the same time.
In early April the HEA received the first of several threatening letters from a lawyer representing the expelled members.
An offer by the 2017 management committee for mediation through the Community Justice Centre was refused by the expelled members at the beginning of May 2018.
On the morning of the 5 May 2018 AGM, a letter from the lawyer representing one of the expelled members was shared by a third party to the member volunteering to be the independent chair for the AGM, threatening to question the validity of the AGM in the Supreme Court should it proceed without the expelled member chairing the meeting. The AGM was adjourned, the 2017 management committee advising members that it would seek legal advice.
That evening, without notifying all members, a group of members and non-members held a meeting and appointed a committee.
The following Monday the management committee advised the NSW Office of Fair Trading, HEA's Insurer, and the Australian Charities & Not-for-profit Commission that the meeting held on 5 May 2018 was not a valid AGM and that the members appointed at that meeting were not a valid committee of the association and were misrepresenting themselves as such to the membership.
After consulting with the parties involved the Office of Fair Trading listed the HEA as 'in dispute'.
The group purporting to be the committee threatened the HEA's administrative team with legal action should access to the HEA's database and assets continue to be denied to them.
Attempts during May, June and July to resolve the situation by HEA members not directly involved in the dispute failed.
No approach to mediate directly with the two 2017 committee members later named as defendants was made by the group purporting to be a committee.
Insisting that the only way forward is to seek validation of their meeting as an AGM through the Supreme Court, the group engaged the same lawyer used by the expelled members earlier (purportedly on behalf of the association, without authority). In addition they instructed the lawyer to seek an order to declare the expulsions of the two ex-members invalid, and that all costs should be borne by the (now dismissed and discontinued) defendants. The three plaintiffs are now seeking an order that their costs be paid out of the funds of the association.
There is hope: members are doing what they can to keep the HEA afloat until it is possible to hold an annual general meeting and elect a committee free of threat of legal action. Your support as an HEA member matters and is appreciated.
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Together with the support of my family, my aim is to help parents educate their children in stress-free, nurturing environments. In addition to building and maintaing this website, I continue to create and manage local and national home educating networks, help to organise conferences and camps, as well as write for, edit and produce newsletters, resource directories and magazines. I am an active supporter of national, state, regional and local home education groups.
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