WILSON v HANG GLIDING FEDERATION OF AUSTRALIA INCORPORATED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SHELLER and POWELL JJA, and DUNFORD AJA 21 February 1997, 15 April 1997 [1997] NSWCA 348 Administrative Law — Domestic tribunal — Hang Gliding Federation — Disciplinary tribunal — Appeals tribunal — Purported decision beyond power — Whether Federation liable in damages for actions of tribunals. Administrative Law — Domestic tribunal — Disciplinary tribunal — Appeals tribunal — Purported decision beyond power — Whether members of tribunal liable to, or immune from action for damages Contract — Construction — Implied terms — Incorporated association — Rules — Disciplinary tribunal — Appeals tribunal — Whether there ought to be implied in Rules a term that tribunals would not act beyond power — Whether there ought to be implied in Rules a term that natural justice would be observed in any disciplinary proceeding against a member. Sheller JA INTRODUCTION I have had the benefit of reading the judgment of Powell JA. His Honour has set out the relevant parts of Civil Aviation Order (CAO) 95.32, and of the Rules of the respondent, Hang Gliding Federation of Australia Incorporated. The appellant, Martin Peter Wilson, held a Chief Flying Instructor Certificate which was an "appropriate flight instructor certificate" as defined in CAO 95.32, s2.1. On 29 April 1994 a Disciplinary Tribunal appointed pursuant to Pt5 of the Rules purported to cancel this certificate from the date of the decision. Mr Wilson appealed to the Appeal Tribunal constituted under Pt5 of the Rules, which varied this order by confirming the cancellation, but to take effect on the date when notice of the decision in the ordinary course would have been received by the appellant (r5.10), and imposing a regime for the grant of other instructor certificates after periods of suspension. Mr Wilson began proceedings by summons for a declaration that the decisions of both the Disciplinary Tribunal and the Appeal Tribunal were null and void, and for orders that he be reinstated as Chief Flying Instructor and that the respondent pay damages and interest. By judgment given on 14 July 1995, Windeyer J declared the decisions to be null and void on the ground that neither Tribunal had the power to cancel or suspend certificates under the Rules. In addition, his Honour held that the Appeal Tribunal had departed from the requirements for procedural fairness by taking into account irrelevant considerations when making its decision. On 22 September 1995 Windeyer J dismissed the appellant's claim for damages. This appeal was brought from that decision. According to the judgment, this claim was based in contract, it being claimed that there was an implied term in the Constitution incorporating the Rules of the respondent, that 2 UNREPORTED JUDGMENTS implied term being that the rules of natural justice would be observed in any disciplinary action against the appellant, and that the respondent would not unlawfully interfere with the appellant's enjoyment of his rights as a member of the respondent. There is no challenge by either party to his Honour's conclusion that the Tribunals, in purporting to cancel or suspend the certificate acted beyond power. ENTITLEMENT TO DAMAGES The respondent was incorporated under the Associations incorporation Act 1984, sll (2) of which provides that, subject to the Act, the rules of an incorporated association bind the association and the members of the association to the same extent as if the rules had been signed and sealed by each member and contained covenants on the part of each member to observe all the provisions of the rules. According to its Rules, the purposes and objects of the respondent include: "2.2.6 To impart training, coaching and instruction in hang gliding and allied sports. 2.2.7 To promote, coordinate and regulate safety standards and procedures, engineering standards and procedures, flying and proficiency standards and all other matters relating to the safety and protection of members, participants, spectators and property." To further the purposes and objects, the respondent has power to: "2.3.3 Admit appropriate members. 2.3.6 Initiate and co-ordinate submissions, applications, representations, et cetera on behalf of members and affiliated clubs and associations, to government agencies and other organisations, with the aim of obtaining maximum benefits for members. 2.3.7 Apply for government funding in respect of both sporting and aviation aspects. 2.3.15 Do all such other lawful things as are incidental or conducive to the attainment of the purposes and objects, and the exercise of the powers of the Federation." R3.2 provides: "Members have the right to vote in accordance with these rules and to be eligible for Pilot Flight 'Certificates/endorsements' and appropriate Liability Insurance coverage for a period of 12 months from the time of application or renewal." Pt5 is headed: "Disciplining of members" and provides for the Committee of the respondent to appoint a Disciplinary Tribunal. There is provision for the Operations Manager to prepare complaints setting out the nature of allegations made against a member, to deliver a copy of the complaint to the member, and to forward a copy to the Disciplinary Tribunal. There is no right of appearance, either in person or by legal representative, before the Disciplinary Tribunal, which considers the material placed before it by the member and the Operations Manager. Members of the Tribunal may confer by telephone with each other and make a decision without having to meet in one place. R5.3.1 enables the Tribunal, by resolution, to "Deal with the member in accordance with any authority conferred on the Federation by law, including, but not limited to the cancellation, suspension or variation of certificates, licences and privileges." The Rules provide similar procedural requirements in respect of an appeal to the Appeal Tribunal. The lack of power in the respondent itself under CAO 95.32 to WRUSON v HANG GLIDING FEDERATION OF AUSTRALIA INCORPORATED (Sheller JAB cancel or suspend the certificate led Windeyer J to the conclusion that the Tribunal and the Appeal Tribunal had acted ultra vires. Mr Blackburn, who appeared for the appellant, submitted that, in effect, there was a contract under seal between the parties, in which should be implied a warranty by the respondent that the Tribunals would observe the rules of natural justice in any disciplinary action against the appellant. Such a claim assumes that the respondent accepts a continuing responsibility for the acts of the Tribunal, and retains the power to direct the way in which the Tribunal performs its function. I can see nothing in the Rules or elsewhere to support an implication that the respondent warranted that the Disciplinary Tribunal would act ~n any particular way. The establishment of the Tribunals bespeaks an intention by the parties, that is to say by the respondent and its members, including the appellant, that each Tribunal should act as an independent arbiter of complaints against members brought forward by the respondent's Operations Manager. No doubt the Committee in appointing a Disciplinary Tribunal should exercise due care in making its choice, as should the Executive Director in nominating three members of the Federation to constitute the Appeal Tribunal. The purpose of Pt5 is to dissociate the investigation and determination of complaints from the respondent and its Committee. The respondent and its Committee are obliged to do no more than ensure the Tribunals are properly appointed or constituted. Any attempt to control or intrude upon the way in which the Tribunals act would undermine their independence. Next, the appellant submitted that there was an implied term that the respondent would not unlawfully interfere with the appellant's enjoyment of his rights as a member of the respondent. It is not clear what rights were referred to. The argument proceeded on the assumption that the appellant had a right to have a certificate issued to him, and to continue to hold that certificate. There is nothing in the Rules which expressly supports this suggestion, although CAO 95.32 envisages that the respondent will issue certificates "in accordance with the HGFA Manual", which was not in evidence. The only unlawful interference pointed to was the decision of the Appeal Tribunal. The appellant submitted that that was the act of the respondent, and that the Tribunal, in making its decision, was the agent of the respondent, which quite clearly it was not. Leaving aside altogether the intention, clear from a reading of Pt5, that the Tribunals be independent, there is nothing in the Rules giving to the respondent any power to "discipline members", which it could then be said to appoint the Tribunal to do on its behalf. Any interference with the appellant's rights was not by the respondent but by the members of the Tribunal. For the same reasons the appellant's alternative argument, not based on breach of contract, but upon the proposition, itself based on the qualification stated in the majority judgment of the High Court in Northern Territory of Australia v Mengel (1995) 185 CLR 307 at 342-3 and 345, that the respondent was liable for harm caused by its unlawful acts, also fails. In the course of his interesting submissions, Mr Tapsell, who appeared for the respondent, raised the defence of judicial immunity, and referred us to Sirros v Moore [1974] 3 All ER 776 at 785. However, it is not necessary to express any view about whether this immunity should be treated as one concerned with function, rather than status or rank; see Stininato v Auckland Boxing Association Incorporated [1978] 1 NZLR 1 at 23; Najjar v Haines (1991) 25 NSWLR 224 at 274. 4 UNREPORTED JUDGMENTS ORDERS I agree with the orders that Powell JA has proposed. Powell JA The question which falls for determination in the present appeal from a Judgment delivered by Windeyer J in the Equity Division on 22 September 1995 is whether, in the circumstances which I will later record, the Respondent ("the Federation") is liable to the Appellant for damages alleged by the Appellant to have been suffered by him as the result of a decision taken by the Federation's Disciplinary Tribunal and Appeals Tribunal, which decisions, in a Judgment delivered by him on 14 July 1995, Windeyer J had held to be null and void as they were beyond the power of each Tribunal. The fate of the principal question arising for determination on this appeal in its turn depends upon the answers to be given to one or other of two further questions, they being: 1.whether each of the Disciplinary Tribunal and the Appeals Tribunal was, and is, to be regarded as an agent of the Federation so as to render the Federation vicariously liable for damages alleged to have been sustained by the Appellant in respect of any alleged breach of contract on the part of the Federation; 2.whether there should be implied into the contract between the Appellant and the Federation constituted by the Rules of the Federation, terms: (a) that the rules of procedural fairness would in fact be observed in any disciplinary action taken against a member of the Federation; and (b) that the Federation would not unlawfully interfere with a member's right as a member of the Federation. The first question raises difficult questions, they being: 1. whether domestic disciplinary tribunals - as opposed to the governing body of an organisation exercising disciplinary powers - ought to be regarded as the agents of the organisation; and 2. whether invalid decisions of domestic tribunals give rise to claims for damages against the members of the Tribunal, and/or the organisation which had appointed the domestic tribunal. In the light of the conclusion to which I have come in respect of the second question, which, conclusion renders it strictly unnecessary for me to express a concluded view on these difficult questions, I consider it preferable to refrain from expressing any view on such questions unless and until they fall clearly for determination. The Federation is an association incorporated pursuant to the provisions of the Associations Incorporations Act 1984. The current Rules of the Association, which Rules appear to have been adopted by the members of the Association in December 1993, provide (inter alia) as follows: - "2.2 Statement of Purpose. The purposes and objects of the HGFA are: 2.2.6 To impart training, coaching and instructing in hang gliding and allied sports. 2.2.7 To promote, co-ordinate and regulate safety standards and procedures, engineering standards and procedures, flying and proficiency standards and all other matters relating to the safety and protection of members, participants, spectators and property. 2.3 Powers WRUSON v HANG GLIDING FEDERATION OF AUSTRALIA INCORPORATED (Powell JAB Solely to further the purposes and objects set out above, the Federation shall have power to: 2.3.1 Liaise with the Federal and State Government (sic) and Federal and State Government Departments on matters affecting hand gliding and associated activities both sporting and recreational. 2.3.15 Do all such other lawful things as are incidental or conducive to the attainment of the purposes and objects, and the exercise of the powers of the Federation. 3.2 Members have the right to vote in accordance with these rules and to be eligible for Pilot Flight Certificates/endorsements and appropriate Liability Insurance coverage for a period of 12 months from the time of application or renewal. 5. The committee of the Federation shall appoint a Disciplinary Tribunal consisting of 3 members of the Federation. 5.1.Where the Operations Manager is of the opinion that a member of the federation: 5.1.2 has persistently and wilfully acted in a manner prejudicial to the interests of the federation 5.1.3 has breached any law, regulation, by-law or order relating to the operation of any aircraft over which the Federation has authority under law; the Operations Manager shall 5.1.5 prepare a complaint setting out the nature of the allegations made against the member and any other documentation in support of the allegation and 5.1.6 deliver a copy of the complaint to the member against whom the allegations are made, together with a letter requesting the member to respond to the allegations within 14 days of the date of the letter. 5.1.7 On the expiration of the period of 14 days the Operations Manager shall forward to the Disciplinary Tribunal a copy of the complaint together with copies of the complaint (sic) together with copies of any material received by the Federation from the member in response to the allegations. 5.1.8 There shall be no right of appearance either in person or by legal representative before the Disciplinary Tribunal 5.2 The Disciplinary Tribunal shall consider the material placed before it by the member and the Operations Manager and may confer by telephone with each other and make a decision without having to meet in one place. 5.3 The Tribunal may by resolution 5.3.1 Deal with the member in accordance with any authority conferred on the federation by law, including, but not limited to the cancellation, suspension or variation of certificates, licences and privileges 5.5 A member may appeal to the Appeal Tribunal of the federation against a resolution of the Disciplinary Tribunal within 7 days after notice of the resolution is served on the member, by lodging with the Operations Manager a notice to that effect together with the appeal fee as determined from time to time by the Committee. 6 UNREPORTED JUDGMENTS 5.6 Upon receipt of the Notice of Appeal, the Executive Director shall nominate 3 members of the Federation (not being members of the Disciplinary Tribunal) or 3 persons nominated by the President of the Confederation of Australian Sport, who shall constitute the Appeal Tribunal. 5.7 The member may lodge with the Federation such other written material as the member desires in respect of the appeal within 14 days of the lodging the notice of appeal 5.8 There shall be no right of appearance either in person or by legal representative before the Appeal Tribunal. 5.9 The Appeal Tribunal shall consider the material placed before it by the member and the Operations Manager and may confer by telephone with each member and make a decision without having to meet in one place. 5.10 The decision of the Tribunal shall be forwarded to the member and shall take effect on the day when the notice, in the ordinary course, would have been received by the member. 5.11 Pending any appeal to the Appeal Tribunal the penalty imposed by the Disciplinary Tribunal shall remain in force." S11(2) of the Associations Incorporations Act 1984 provides: (2) Subject to this Act, the rules of an incorporated association bind the association and the members of the association to the same extent as if the rules had been signed and sealed by each member and contained covenants on the part of each member to observe all the provisions of the rules." In broad general terms the regulation of the safe conduct of civil air operations in Australia is vested, pursuant to the Civil Aviation Act 1988 (''the Act') in the Civil Aviation Safety Authority (?>CASA") (which replaced the Civil Aviation Authority of Australia ('?CAA")). For the purposes of the Act, the word "aircraft* means "any machine or craft that can derive support in the atmosphere from the reactions of the air, other than the reactions of the air against the earth's surface", a definition which, as is obvious, is apt to include hang gliders whether powered or unpowered. Prior to the establishment of the CASA, s9(1)(a)(i) and s10(1)(a) of the Act provided that the CAA was to conduct the safety regulation of civil air operations in Australian territory, and was to develop and ensure compliance with standards through certificates, licences, registrations and permits of flight crews (not dissimilar functions are conferred on the CASA by s9 of the Act in its amended form). Prior to the replacement of the CAA by CASA, s98(1)(c) provided that the Governor-General might make regulations requiring persons operating and maintaining aircraft to hold specified licences. At that time, reg5 of the Civil Aviation Regulations ("CAR") provided that where the CAA was empowered or required to issue (inter alia) a permission, approval or authority, it might do this in Civil Aviation Orders (""CAOs"), while Reg308 provided that the CAA might exempt persons or categories of aircraft from compliance with specified regulations. Of the many CAOs made by the Civil Aviation Authority, one, 95.32, dealt with "Weight Shift Controlled Aeroplanes And Powered Parachutes - Exemption From Provisions Of The Civil Aviation Regulations". (A hang glider is a "weight shift controlled aeroplane".) So far as is relevant, CAO 95.32 provided: WRUSON v HANG GLIDING FEDERATION OF AUSTRALIA INCORPORATED (Powell JAY "1.1 This section applies to a single place or 2 place aeroplane in relation to which the following requirements are satisfied: (a) the aeroplane is a weight shift controlled aeroplane... (d) if the aeroplane is a weight shift controlled aeroplane: (i) the aeroplane is registered with... or the HGFA 2.1 In this section 'appropriate night instructor certificate' means (b) in relation to an aeroplane that is registered with the HGFA - a flight instructor's certificate issued by the HGFA in accordance with the HGFA Manual (b) in relation to an aeroplane that his registered with the HGFA - the HGFA Manual 'appropriate pilots certificate' means: (b) in relation to an aeroplane that is registered with the HGFA - a valid pilots certificate issued by the HGFA in accordance with the HGFA Manual. "'HGFA' means the Hang Gliding Federation of Australia. 3.1 If the conditions set out in this section are complied with in relation to an aeroplane to which this section applies, the aeroplane is exempt from compliance with the following provisions of the regulations: (b) Pts 3A.1 For the purposes of para20AB(1)(b) of the Act, a person is authorised to perform a duty essential to the operation of an aircraft to which this section applies without holding a flight crew licence if he or she complies with the conditions set out in subs4. 4.1 The exemption given by subs3 in relation to an aeroplane is subject to the following general conditions: (b) the aeroplane must not be used for any purpose other than: (i) the carriage (free of charge) of persons or goods; (iii) if the aeroplane is a 2 place aeroplane - flying training in order to enable a person to obtain a pilots certificate from... the HGFA; (c) the aeroplane must not be operated by a person as pilot in command unless the person: (i) holds an appropriate pilots certificate; and (ii) subject to the other conditions set out in this section flies the aeroplane in accordance with the privileges and limitations of that certificate; (d) if the aeroplane is being used for flying training, the person conducting the training must hold a valid appropriate flight instructor certificate. It would seem that, as part of the process of deregulation of the aviation industry in Australia, there were imposed on various aviation associations the duty to provide systems of training, and testing the capacity, of pilots within the area of the industry with which the particular association was concerned, the Federation being one of those associations upon which such responsibilities were imposed. In the case of the Federation the imposition of that responsibility 8 UNREPORTED JUDGMENTS appears to have taken place pursuant to agreements entered into on an annual basis between the CAA and the Federation, those agreements providing for financial assistance to the Federation to enable it to carry out some, at least, of the responsibilities which it undertook. The agreement relating to the period 1 July 1993 to 30 June 1994 - the significance of which period will shortly appear - provided (inter alia) that, during that period, the Federation would, in the most efficient manner possible, perform, or complete, the following (inter alia) functions: - "Functions performed to assist the Authority to implement standards for hang gliding. 1. Administer a pilot and a pilot instructor certification system for pilots of hang gliders, paragliders and trikes operated by HGFA members; 2. Maintain a register of powered hang gliders operated by HGFA members in accordance with CAO 95.10 or CAO 9532 and to assign or arrange to have assigned registration markings to be displayed by those powered hang gliders." (A "trike" is a powered hang glider.) In March 1994, the Appellant was, as he had for some years been, a member of the Federation. At that time, the Appellant, who carried on a business called "Air Escape" - in which business the Appellant appears (inter alia) to have instructed students in the art of flying powered hang gliders - held what has been described as "a Chief Flying Instructor Certificate" which had been issued by the Federation on 25 May 1993. In January 1994, the Operations Manager of the Federation wrote to the Appellant drawing his attention to a complaint which had been made concerning his (the Appellant's) activities and seeking the Appellant's answer to that complaint. Thereafter, on 3 March 1994, the Operations Manager of the Federation again wrote to the Appellant referring to the Appellant's failure to reply to the earlier letter, and, also, referring to the Appellant's failure to renew the registration of his powered hang glider used for training purposes, purporting to "suspend" the Appellant's "HGFA Instructing Certificate" pending the decision by the Disciplinary Tribunal of the Federation of the matter of the complaint which had earlier been made. On 15 March 1994, the Operations Manager of the Federation forwarded to each of the members of the Disciplinary Tribunal, and to the Appellant, a form of complaint setting out a number of matters in respect of which it was alleged that the Appellant had acted in contravention of the provisions of CAO 95.32 and of the Federation's Operations Manual. The Appellant's replies, and those of his solicitors, were thereafter forwarded to the members of the Disciplinary Tribunal, at some stage prior to 29 April 1994. On 29 April 1994, the Disciplinary Tribunal issued a formal decision, in which decision it recorded that it was satisfied that the Appellant had acted persistently, and wilfully, in a manner prejudicial to the interests of the Federation in a number of respects, which behaviour on the part of the Appellant, in the view of the members of the Disciplinary Tribunal, warranted the cancellation of the Appellant's Chief Flying Instructor's Certificate as from the date of the decision of the Disciplinary Tribunal. Although it is clear that the decision of the Disciplinary Tribunal was thereafter communicated to the Appellant, there is no evidence that the decision of the Disciplinary Tribunal was ever communicated to the CAA of Australia. WRUSON v HANG GLIDING FEDERATION OF AUSTRALIA INCORPORATED (Powell JAD After the decision of the Disciplinary Tribunal had been communicated to the Appellant, the Appellant's solicitors purported, on his behalf, to appeal from the decision of the Disciplinary Tribunal. Thereafter, and notwithstanding the failure of the Appellant to lodge his Notice of Appeal within time, the Executive Director of the Federation nominated three persons to constitute the Appeals Tribunal for the purposes of the Appellant's appeal. Notwithstanding the further failure of the Appellant, within the time provided for in the rules of the Federation, to lodge materials with the Appeals Tribunal for its consideration for the purposes of the appeal, the members of the Appeals Tribunal, in fact, considered the additional materials which had been lodged on behalf of the Appellant. Thereafter, on 6 July 1994, the Appeals Tribunal issued its decision, in which decision it recorded the following (inter alia) determinations in relation to penalty: "1. That the Chief Flying Instructor Certificate held by the Appellant be cancelled from the date determined in accordance with cl5.10 of the Rules; 2. That the Senior Pilot Instructor's Certificate held by the Appellant be cancelled from the date determined in accordance with cl5.10 of the Rules; 3. That on the date determined in accordance with cl5.10 of the Rules the Appellant be issued with a Pilot Instructor Certificate valid for 2 years from the date of such issue, which Certificate should be suspended from that date for a period of 3 months, 4. That as from the expiration of that period of 3 months, the Appellant should not exercise any privileges of a Pilot Instructor Certificate except whilst in the employ and under the direct supervision of an approved Pilot Examiner; 5. That after the expiration of 6 months from the end of the period of 3 months referred to in 3 the Appellant might exercise all the privileges of a Pilot Instructor Certificate without being subject to the limitations stated in 4." Although it is clear that the decision of the Appeals Tribunal was thereafter conveyed to the Appellant and his solicitors, there is no evidence that the decision of the Appeals Tribunal was conveyed to the CAA, and, still less, that the CAA, either then, or later, took any action against the Appellant by reason of the decisions of either the Disciplinary Tribunal or the Appeals Tribunal to "cancel" any of the various Certificates which had been issued by or on behalf of the Federation to the Appellant. These proceedings were ultimately commenced on 24 January 1995, on which day there was filed on behalf of the Appellant a Summons in which he claimed the following (inter alia) relief: "1. A declaration that the decision of the Disciplinary Tribunal of the Hang Gliding Federation of Australian Incorporated made on 29 April 1994 is null and void; 2. A declaration that the decision of the Appeals Tribunal of the Hang Gliding Federation of Australia made on 6 July 1994 is null and void; 3. An order that the Plaintiff be reinstated as a Chief Flying Instructor of the Hang Gliding Federation of Australia Incorporated; 4. An order that the Defendant pay damages and interest pursuant to s94 of the Supreme Court Act 1970." 10 UNREPORTED JUDGMENTS Although no formal order to that effect appears ever to have been made, it would seem that Windeyer J, at the request of the parties, on 13 June 1995 dealt with the questions raised by Prayers | and 2 in the Summons as preliminary questions. As best as I can judge it, on the hearing before Windeyer J in June 1995, the Appellant sought to challenge the decisions of the Disciplinary Tribunal and the Appeals Tribunal on two grounds, they being: 1. that the decisions of each of the Disciplinary Tribunal and the Appeals Tribunal were ultra vires since: (a) the Federation did not have, and, thus, neither the Disciplinary Tribunal nor the Appeals Tribunal had, power to cancel the Appellant's Chief Flying Instructor's Certificate; (b) even if the Federation and, thus, the Disciplinary Tribunal and the Appeals Tribunal, had a power to cancel such a Certificate, the Disciplinary Tribunal acted ultra vires in that it took into account an irrelevant consideration; 2. that the Appeals Tribunal had failed to comply with the rules of procedural fairness in that, when considering whether or not the Appellant had been guilty of the conduct the subject of the complaint, it took into account an irrelevant matter, which matter had not previously been communicated to the Appellant. In the Judgment which he delivered on 14 July 1995, Windeyer J held that each of the decisions of the Disciplinary Tribunal and the Appeals Tribunal was null and void and of no effect, it following that the Appellant was entitled to declarations in terms of Prayers | and 2 of the Summons which had been filed on his behalf. Put shortly, the grounds upon which Windeyer J based his Judgment were: 1. neither the Disciplinary Tribunal nor the Appeals Tribunal had any greater power to cancel a Certificate such as had been issued to the Appellant than did the Federation; 2. while CAO 95.8 - which dealt with unpowered hang gliders - provided (inter alia): "The Federation may suspend, cancel or otherwise vary a pilot certificate but unless the Federation has exercised such power that certificate shall remain in force for the period specified in the HGFA Operations Manual." CAO 95.32 did not contain any identical or similar provision. 3. accordingly, unless the source of such a power could be found elsewhere - and the Federation was unable to identify any such source - the Federation had no power and, thus, neither the Disciplinary Tribunal or the Appeal Tribunal had any power, to cancel the Appellant's Chief Flying Instructor Certificate. Although he expressed the view that, in the light of the conclusion to which he had come on the first matter argued, it was strictly unnecessary for him to deal with the alleged failure to comply with the rules of procedural fairness, Windeyer J also expressed the view that, in one respect, the Appeals Tribunal took into account a matter which had not been the subject of the original complaint, which action on its part involved a departure from the rules of procedural fairness, which departure would have required that the decision of the Appeals Tribunal be quashed. Following the delivery by Windeyer J of his Judgment in relation to the issues raised by Prayers | and 2 of the Summons, the matter was re-listed before his Honour for the purpose of having him deal with the Appellant's claim for damages. WRUSON v HANG GLIDING FEDERATION OF AUSTRALIA INCORPORATED (Powell JA)I It is to be noted that, on this occasion, the Appellant's claim for damages was founded solely in contract, rather than in both contract and tort, and was based on the alleged breach by the Federation of the two terms which, as I have earlier indicated, the Appellant claims ought to be implied in the contract between himself and the Federation constituted by the Rules of the Federation. As I understand it, the Federation sought to oppose the claim for damages made by the Federation upon the grounds: 1. that the members of the Disciplinary Tribunal were not, nor were the members of the Appeals Tribunal, liable to a claim for damages on the part of a member in the event that they exceeded the powers conferred upon them or that, in purporting to exercise those powers, they failed to comply with the rules of procedural fairness; 2. that, even though the Disciplinary Tribunal and the Appeals Tribunal had been established by the Federation in accordance with its Rules for the purpose of exercising the powers provided for in its Rules, the Federation was not liable to a claim for damages on the part of a member by reason of either Tribunal exceeding the powers conferred on it, or failing to comply with the rules of procedural fairness, since: (a) the members of the Tribunals were not liable to any such claim; and (b) even if they were, the Federation was not vicariously liable for the actions of the members of either Tribunal; 3. in any event, neither of the terms relied upon by the Appellant ought to be implied into the contract between the Appellant and the Federation constituted by the Rules of the Federation. In the event, Windeyer J held that neither of the terms upon which the Appellant sought to rely should be implied in the contract between the Appellant and the Federation, and, for that reason, his Honour dismissed so much of the Appellant's Summons as sought to claim damages and ordered that the Appellant pay the Federation's costs of the issue as to damages. It is from the Orders made by Windeyer J in respect of the Appellant's claim for damages that the Appellant has appealed to this Court. As I have earlier recorded, the grounds of opposition relied upon by the Federation other than that relating to the implication of the terms advanced on behalf of the Appellant raise difficult questions, upon which, in the circumstances, I prefer to offer no opinion. As will be apparent from what I have recorded above, the Federation did not contend either: 1. that it was not open to a member of the Federation to invoke the assistance of the Court to enforce the rules of the Federation in any case in which it was alleged that the Federation had acted in breach of those rules; or 2. that it was not open to a member of the Federation to seek to claim from the Federation damages alleged by that member to have been suffered by him as the result of a breach by the Federation of those rules. The real questions thus are: 1. whether there should be implied into the contract between the Appellant and the Federation the terms advanced on behalf of the Appellant; 2. if so, whether the Appellant has established a breach by the Federation of either of those terms; and 3. if so, whether the Appellant has established that he has suffered any damage by reason of any such breach. 12 UNREPORTED JUDGMENTS In Codelfa Construction Pty Ltd v State Rail Authority of New South Wales!, Mason J (as he then was) said: - "The basis on which the courts act in implying a term was expressed by MacKinnon LJ in Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206 at 227 in terms that have been universally accepted: 'Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying....'. The conditions necessary to ground the implication of a term were summarised by the majority in BP Refinery Pty Ltd v Hastings Shire Council (1977) 52 ALJIR 20 at 26: 1. it must be reasonable and equitable; 2.it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; 3. it must be so obvious that 'it goes without saying'; 4. it must be capable of clear expression; 5. it must not contradict any express term of the contract." It is well enough established that, in the absence of any provision to the contrary in the document constituting, and regulating the exercise by, a body of its powers, where, as in this case, there is conferred upon a body a power, in disciplinary proceedings, to affect the rights of others, that body, when exercising that power, is required to observe the requirements of procedural fairness, in default of which, any decision made, or action taken, by that body, is voidable and liable to be set aside on application to the Court. This being so, it seems to me that, in such cases as the present, there is no need, nor room, for the implication of such a term as the first of those contended for by the Appellant, if only because it cannot be said that it is necessary to imply such a term in order to give business efficacy to the contract between the member and the organisation of which he is a member. Nor, as it seems to me, is there any need, or room, for there being implied in the rules of the Association, a term such as the second of those for which the Appellant has contended. As I have already pointed out, it is well enough established that a member of an association, such as the Federation, has the right to invoke the assistance of the Court to enforce the terms of the contract between himself and the association and, in an appropriate case, to claim from the association damages for breach of the contract between himself and the association constituted by the rules of the association in any case in which he can establish that he has suffered damage by reason of the breach by the association of the terms of that contract (see, for example, Bonsor v Musicians Union2; Edwards v Society of Graphical and Allied Trades3). This being so, it cannot be said that, in order to give business efficacy to the contract between an association, such as the Federation, and a member of that association, it is necessary to imply a term such as the second of those for which the Appellant contends - indeed, there is authority for the view that there is no implied term in a contract between an association and its members that the association will only act intra vires (see, for example, Abbott v Sullivan+) . (1982) 149 CLR 337, 346-347; 41 ALR 367, 371 . [1956] AC 104; . (1970) 1 AER 905 . [1952] 1 AER 226 RwWNS WRUSON v HANG GLIDING FEDERATION OF AUSTRALIA INCORPORATED (Dunfotd AJA) But even if there were to be implied into the contract between the Appellant and the Federation terms such as those contended for by the Appellant, there is no evidence that, by reason of any act on the part of the Federation - as opposed to the Disciplinary Tribunal and the Appeals Tribunal - or of either the Disciplinary Tribunal or the Appeals Tribunal, the Appellant has suffered any damage whatsoever. As I have earlier recorded, there is no evidence that the decisions of either the Disciplinary Tribunal or the Appeals Tribunal were conveyed to the CAA, nor is there any evidence that the CAA of Australia, in reliance upon the decision of the Disciplinary Tribunal or the decision of the Appeals Tribunal, took any action against the Appellant for any alleged breach of the Act or of the CAR or of the CAOs. This being so, it would follow that, even if the Appellant had been able to establish a breach by the Federation of its contract with him, the damages to which he would have been entitled would have been nominal only. For these reasons I would propose the following Orders: 1. ORDER that the Appeal be dismissed. 2.ORDER that the Appellant pay the Respondent's costs of the appeal. Dunford AJA I have had the opportunity of reading in draft form the judgments of Sheller & Powell JJA. I agree with them that the appeal should be dismissed with costs, for the reasons which each of them has given. 1. ORDER that the Appeal be dismissed. 2. ORDER that the Appellant pay the Respondent's costs of the appeal. Counsel for the Appellant: T D Blackburn Solicitors for the Appellant: Gordon & Johnston Counsel for the Respondent: K J Tapsell (Solicitor) Solicitors for the Respondent: Watkins, Tapsell & Nolan (Kirrawee)