New South Wales Supreme Court CITATION : Gamilaroi Boomerangs v Members of New England Group 19 [1999] NSWSC 495 revised - 17/09/99 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 1836/99 HEARING DATE(S) : 3, 4, 5 and 12/5/99 JUDGMENT DATE : 4 June 1999 PARTIES : Gamilaroi Boomerangs Sports Aboriginal Corporation v Members of New England Group 19 JUDGMENT OF : Bryson J COUNSEL : J. Sutton, solicitor for the plaintiff. G. Grant for the defendant. SOLICITORS : Stewart Percy & Associates for the plaintiff. Colin N. Love & Co. for the defendant. CATCHWORDS : Clubs and Associations - Voluntary Associations - Procedural fairness - voluntary association for playing Country Rugby League - disqualification of Rugby team - on facts requirements of procedural fairness were met. The University of Ceylon v Fernando [1960] 1 WLR 223. McNab v Auburn Soccer Sports Club Limited [1975] 1 NSWLR 55. Cameron v Hogan (1934) 51 CLR 358 at 378. McKinnon v Grogan [1974] 1 NSWLR 295. CASES CITED : Australia Workers' Union v Bowen (No 2) (1948) 77 CLR 601 at 628 and 630 to 631. Maloney v National Coursing Association [1978] 1 NSWLR 161 at 169 to 172. Dale v New South Wales Trotting Club Limited [1978] 1 NSWLR 551 at 554 and 555. Attorney-General of Hong Kong v Ng Yuen Shui [1983] 2 AC 629. Wu v Minister for Immigration and Ethnic Affairs (No 2) (1994) 51 FCR 232. DECISION : Refer No. 81. 41 - - - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BRYSON J FRIDAY, 4 JUNE, 1999 1836/99 GAMILAROI BOOMERANGS SPORTS ABORIGINAL CORPORATION -v- MEMBERS OF NEW ENGLAND GROUP 19 JUDGMENT 1 HIS HONOUR: The plaintiff is a Country Rugby League football club usually called The Moree Boomerangs. The plaintiff claims declarations and an injunction which would establish that a resolution of the General Committee of the New England Group 19 Rugby League disqualifying the plaintiff has no effect. The resolutions, or purported resolutions (and the plaintiff disputes that they in fact were resolutions of the General Committee) were to the following effect: "Having heard or read all the evidence and submissions the committee finds that the Moree Boomerangs Club is guilty of any misconduct or conduct detrimental to the control, welfare or interest of the group or of Rugby League football." "The following penalty is imposed: disqualification. Period of disqualification: one year." "Having voted in writing to find the Boomerangs Club guilty of misconduct or conduct detrimental to the control, welfare or interest of the group or of Rugby League football and that a period of disqualification of one year be imposed on the Club it is resolved that the inquiry be now closed." 2 In the Amended Summons of 16 April 1999 the plaintiff claims a declaration that the resolutions are void and have no effect, a declaration that in purporting to conduct the inquiry and pass the resolutions the defendants failed to afford procedural fairness and natural justice to the plaintiff, a declaration that the resolution calling the inquiry was null and void and of no effect, and an injunction restraining the defendant from proceeding with or taking any steps to give effect to the resolution. There is also a claim for an order establishing the identity of the members of the General Committee. 3 New England Group 19 is a Constituent Body of Country Rugby League of New South Wales Inc. (CRL). CRL is incorporated and its affairs are conducted in accordance with a written constitution, by-laws and regulations; these are in evidence. CRL controls and regulates the game of Rugby League football throughout New South Wales, but relates to amateur sport and not professional football. Although players receive some payments and small rewards and there are financial arrangements among clubs, Country Rugby League is not played professionally and does not involve the livelihood interests of its participants. The Constitution of CRL is, I would think, a contractually binding document on which members of CRL could base claims for damages or equitable relief for breaches of contract, as between members, and as between each member and CRL. 4 It is well accepted that the constitutions of incorporated clubs, even amateur sporting and social clubs, are contractually binding, and remedies are sometimes claimed and granted on that basis. Equitable remedies for breaches of the constitutions of amateur sporting and social clubs are rare, but from time to time they are granted. Courts do not readily grant remedies against unincorporated voluntary associations carried on for amateur sporting or social purposes, unless the interests of members in property or in gaining their livelihood are affected. This is not such a case. 5 The plaintiff's claim is not based on the constitution of CRL, but on the constitution of New England Group 19 of CRL. The eight defendants named in the Summons are or acted as members of the General Committee of Group 19, and the plaintiff claims orders to identify all members of the General Committee. It is not possible to sue Group 19 because Group 19 is not incorporated; it is possible to sue all the members, or representative defendants appointed to represent all members. The plaintiff's Summons shows that the plaintiff wishes to sue the members of the General Committee. 6 The eight defendants named in the schedule to the Summons are Joe Barbato, Bill Williams, Paul Ehsman, Paul McRae, Carol Khan, Brian Davidson, Jack Alt and Rod Stahlhut. To be effective the orders which the plaintiff seeks would have to be made in terms which bound all members of the General Committee. 7 The plaintiff's solicitor gave me an Outline of Issues and the case was structured by it. Those Issues were:- 1. Whether an inquiry can be properly called under rule 47 if all the matters the subject of the inquiry have been the subject of previous proceedings, charges or disciplinary action. 2. In particular whether the so-called inquiry (the "inquiry") could properly be called having regard to the charges brought against the plaintiff on 21.11.98 and the charge dealt with on 28.8.98. 3. Whether, even if the power under rule 47 could normally be used, in the circumstances of the Court proceedings and the expressed views of the Group and the majority of the clubs to the effect that unless the plaintiff was removed from the Group the Group would not continue, the invoking of r. 47 would be in bad faith or for a collateral purpose, namely to circumvent both judgements and or effectively exclude the plaintiff. 4. Whether the inquiry was properly called pursuant to r.31 or at all. 5. Whether the First Defendant owed the Plaintiff a duty to apply the principles of natural justice and or procedural fairness. 6. Whether the failure to answer properly or in some cases at all the questions or certain of the questions raised in annexures "E" and "F" to the affidavit of John Ridley Sutton dated 26.3.99 constituted a breach of the rules of natural justice and or procedural fairness. 7. Whether the conduct of the inquiry on 29.3.99 breached the rules of natural justice or procedural fairness. 8. In particular, whether: a. the persons sitting on the inquiry tribunal were acting as prosecutors, witnesses and or judges in the same cause; b. there could be said to be apprehended bias; c. there could be said to be actual bias; d. there could be said to be a lack of good faith; e. there could be said to be collateral, ulterior or extraneous motives. 9. Whether the procedures adopted to complete the inquiry after 29.3.99: a. were valid decisions within power of the constitution; or b. constituted in any way a breach of the rules of natural justice and or procedural fairness. 10. Whether the Resolutions said to have been passed 12 April 1999 were valid resolutions under rule 17 or otherwise. 11. Whether the purported disqualification was in substance or effect an expulsion and therefore without power. 12. Whether the penalty was so severe having regard to previous penalties, notably the fine imposed on 28.8.98, and other penalties on other clubs, as to indicate bad faith or improper use of power." 8 The requirements of procedural fairness when applied to this case revolve around two principles. One is " no- one is to be the judge in his own case ". As everyone who could possibly be concerned in Group 19 affairs was involved to some degree, the practical application of this principle requires that those who participated in the decision of the General Committee should not have been biased but should have been prepared to decide the charge on the merits. The second principle is " hear each side" and its practical application is that as well as considering the matters of complaint in Exhibit B the General Committee was required to consider, and truly consider whatever the plaintiff asked them to consider in answer. It has to be added, in view of the facts in this case, that what they had to give the plaintiff was a reasonable opportunity to answer the complaints; apart from cross-examining Mr Higgins for two hours, the plaintiff did not put anything before the General Committee. The hearing has to be a genuine one; the Committee would not hear each side if in fact the decision was predetermined and the hearing was only the appearance of a hearing, so that the information apparently considered could not really have any influence. 9 There is an extensive review of judicial statements about what is required for natural justice in the Opinion of the Privy Council in The University of Ceylon v Fernando [1960] 1 WLR 223. That Opinion shows that there have been many different formulations. Authorities were also collected by Needham J in McNabb v Auburn Soccer Sports Club Limited [1975] 1 NSWLR 55. 10 The general approach of the Court to judicial control of decisions in voluntary associations is expressed in the judgment of Rich, Dixon, Evatt and Mc Tiernan JJ in the High Court of Australia in Cameron v Hogan (1934) 51 CLR 358 at 378 thus: "The policy of the law is against interference in the affairs of voluntary associations which do not confer upon members civil rights susceptible of private enjoyment." In the same case Starke J said at 384: "As a general rule, the Courts do not interfere in the contentions or quarrels of political parties, or, indeed, in the internal affairs of any voluntary association, society or club." 11 The following passage in that judgment at page 370 was central to the disposition of the case: "Judicial statements of authority are to be found to the effect that, except to enforce or establish some right of a proprietary nature, a member who complains that he has been unjustifiably excluded from a voluntary association, or that some breach of its rules has been committed, cannot maintain any action directly founded upon that complaint. For example, in Forbes v Eden (1867) L.R. 1 Sc. & Div. H.L., at p.581 Lord Cranworth said: Save for the due disposal and administration of property, there is no authority in the Courts either of England or Scotland to take cognizance of the rules of a voluntary society entered into merely for the regulation of its own affairs. Compare per Jessel M.R., Rigby v Connol (1880) 14 Ch. D., at p.487 per Barry J., O'Keefe v Cardinal Cullen (1873) I.R. 7 C.L., at p.343 Gavan Duffy J. considered that such statements should be understood as relating only to the jurisdiction of Courts of equity. There are, however, reasons which justify the statement that, at common law as well as in equity, no actionable breach of contract was committed by an unauthorized resolution expelling a member of a voluntary association, or by the failure on the part of its officers to observe the rules regulating its affairs, unless the members enjoyed under them some civil right of a proprietary nature. As a generalization it expressed the result produced by the application of a number of independent legal principles: it is not in itself the enunciation or explanation of a rule or rules of the common law. One reason which must contribute in a great degree to produce the result is the general character of the voluntary associations which are likely to be formed without property and without giving to their members any civil right of a proprietary nature. They are for the most part bodies of persons who have combined to further some common end or interest, which is social, sporting, political, scientific, religious, artistic or humanitarian in character, or otherwise stands apart from private gain and a material advantage. Such associations are established upon a consensual basis, but, unless there were some clear positive indication that the members contemplated the creation of legal relations inter se, the rules adopted for their governance would not be treated as amounting to an enforceable contract. (Compare per Jessel M.R., Rigby v Connol (1880) 14. D., at p. 487, and per Scrutton L.J., Rose and Frank Co. v. J.R. Crompton and Bros. Ltd. (1923) 2 K.B., at p. 288." 12 Their Honours required an approach to the constitution of a voluntary association on the basis that the constitution was unlikely to deal with rights in property, and would not be treated as amounting to an enforceable contract unless there was some clear positive indication of an intention to create legal relations. As I show later, there is such an indication for the Group 19 constitution. 13 Their Honours' view about the general character of voluntary associations and the likely intended effect of their constitutions is, I would think, capable of reconsideration after the passage of almost 65 years, as it is based on the experience of the times of the judges who then spoke. However that reconsideration cannot be given by any Court bound by the law as established in Cameron v Hogan , and by the authoritative statements made in that case that the policy of the law is against interference in the affairs of voluntary associations. 14 Their Honours referred to several considerations of which a different appraisal could now be made. One was the difficulties of enforcement of contractual rights against a voluntary association of which the plaintiff is one member, or against a body the members of which cannot be clearly established, having regard to the procedural law and to practical difficulties which it created for actions against large numbers of co-contractors; procedural reforms have made this less pressing now, and representative proceedings are more readily available. Their Honours also referred to difficulties of enforcing a judgment for damages, and this is less pressing if the judgment is declaratory or an injunction restrains conduct in breach by named officers. Their Honours returned at page 373 to the difficulties of relief where the basis on which it is granted is the enforcement of a contract, and those difficulties were significant for their conclusion. 15 The Courts are now more ready than they were in 1934 to grant equitable remedies for contractual breaches, even in the absence of some proprietary interest, and much more ready to protect opportunities to pursue an occupation (which was the subject of dispute in Cameron v Hogan ) whether or not the impediment is contractually based. The High Court has not had occasion to reconsider Cameron v Hogan, and the law established in 1934 remains binding. 16 Unless litigation relates to protection of the important subjects of the protection of livelihood interests and property rights, the policy against intervention stated in 1934 is just as pressing a consideration now as it was then. If a voluntary association relates only to sporting or social purposes I see nothing of substance to be achieved by the State and its judiciary making themselves responsible for resolution of internal disputes about who shall be members or who shall be officers. It is not practical to hope that persons can be compelled to remain in voluntary association together or that their association will flourish under legal compulsion; if people were compelled to continue in an association on a basis which they no longer wished for, they readily could and readily would desist from associating together. Liberty of association is a deeply held value and includes liberty to chose with whom one will associate, and it cannot effectually be controlled. A policy in which the Courts intervene where economic interests are affected, but do not otherwise involve themselves in sporting or social clubs, appears to me to set the appropriate outer boundary for Law's Empire. Persons who wish to have arrangements which are justiciable can readily do so by incorporating their club, as many have done. (Even for them, the grant of equitable remedies is discretionary). 17 In McKinnon v Grogan [1974] 1 NSWLR 295 Wootton J in this Division concluded that members of the New South Wales District Rugby League Football Club, an unincorporated voluntary association, had standing to seek remedies relating to the proper method of conducting the club's affairs. Wootton J expressed dissatisfaction with the decision in Cameron v Hogan . Wootton J's judgment is based on his conclusion that the rules of the club were intended to be legally binding - at 299: "In my opinion, people who join the League and subscribe to its constitution and by-laws should be taken to intend to be bound by them and should be entitled to envoke the courts in appropriate circumstances to have their dispute settled. What limitations, if any, should be placed on this right is, no doubt, something to be worked out case by case." His Honour based this on a view of the importance of the affairs and regulation of Rugby League as perceived by members of the League, and by him, and did not look for "… some clear positive indication that the members contemplated the creation of legal relations inter se" in any other source. 18 McKinnon v Grogan was not a decision upon the present constitution of CRL. In 1975 the League and its clubs were all voluntary associations. The way in which Rugby League affairs, including the Country Rugby League, are conducted has since been entirely recast, and the choice between incorporating CRL and forming its constituent bodies as voluntary associations must be understood to be significant. 19 The present constitution of CRL shows that its members are, for the most part, individuals. (See Clause 6a). By Clause 4 " The League shall be composed of the following constituent bodies…" and a number of constituent bodies are named. These constituent bodies are represented by delegates at the Annual Conference. It seems that individuals are members but they participate through constituent bodies. By Clause 5 of the Constitution of CRL: " Each constituent Body shall be bound by and operate under this constitution and all by-laws and regulations made thereunder and shall also be bound by and operate under its own constitution and the by-laws and regulations made thereunder except to the extent that such last mentioned constitution is repugnant to this constitution…." Provisos enable a Group to vary its constitution. 20 Group 19 adopted its Group Constitution in a standard form for Group Constitutions, with a few amendments. Clause 2 of the Group Constitution provides: "This constitution shall be deemed to have been adopted by the Group and shall take effect in accordance with Rule 5 of the constitution of the League." In my opinion this shows a clear positive intention that the Group Constitution shall be contractually binding, of the kind contemplated in Cameron v Hogan. 21 The Balance Sheet of Group 19 as of July 31, 1998 is included in Exhibit C. That shows assets valued at $19,510.33 consisting of a current account, accounts receivable, an investment account, petty cash and some plant and equipment. There are liabilities of $872.00. That is, property interests are involved in membership of Group 19. They are not of significant value, in relation to any particular club, and their enjoyment is only indirectly involved in the disqualification. 22 In my opinion there is power to enforce the provisions of the Group 19 constitution by equitable remedies. The power is discretionary. 23 In the Group Constitution references to members appear to refer to individuals who are members of the CRL, but they participate in Group affairs largely through delegates of clubs who attend the Annual Meeting and the General Committee. Group 19 conducts a First Division competition with teams from clubs at Armidale, Guyra, Glen Innes, Inverell, Warialda and Moree, and a Second Division with teams from Armidale known as Armidale YCW and Narwon and teams from Uralla, Walcha and Tingha. The affairs of Group 19 other than at Annual General Meetings are managed by a General Committee and an Executive Committee. The General Committee has wide powers of management and a power of adjudication in Clause 47 and 48 in these terms: "47. The General Committee may call upon any Club or Constituent League within the Group to make proper inquiry or itself may inquire or cause to be inquired into any matter which in its opinion in any manner affects the control, welfare and/or interest of the Group or of any Constituent League or of any club or of Rugby League Football. Failing compliance with any such direction the General Committee may take such disciplinary action as it thinks fit against the Club or Constituent League so failing and/or against any player, coach, employee, official or other like person found upon inquiry by the General Committee to have been guilty of misconduct or conduct detrimental to the welfare, control and/or interest of the Group or of any Constituent League or of any Club or of Rugby League Football." "48. Without prejudice to the generality of the foregoing the General Committee may disqualify, fine or otherwise deal with any Club or Constituent League found guilty of any misconduct or conduct detrimental to the control, welfare or interest of the Group or of any Constituent League or of any Club or of Rugby League Football or of any breach of this constitution or any by-law made thereunder or of any breach of the constitution of the League or any by-law or regulation made thereunder or of non-compliance with any direction issued under the authority of this constitution or any by-law made thereunder." 24 Membership of the General Committee is regulated by Clause 6 and consists of six officers, one representative of the Referees' Association, two delegates from each first grade club and one delegate from other clubs; members may be co-opted. Clubs may appoint delegates and alternates and may appoint others from time to time. The members or purported members of the General Committee at the meeting of 29 March 1999 are set-out in Exhibit 1. 25 The Group also has an Executive or Executive Committee of Group 19 consists of three officers - Clause 31: "The President, Secretary and Treasurer shall constitute and act as the Executive and may, subject to the directions of the General Committee, but otherwise without any exception or qualification whatsoever, exercise all or any of the powers by the constitution and/or any by-law made thereunder conferred upon the General Committee PROVIDED THAT in the case of any contentious question or matter in which any Rugby League Football organisation with which any member of the Executive is directly associated or involved the place of such member upon the Executive shall for all purposes connected with such question or matter be taken by the Senior Vice President or if he is similarly associated with the organisation so involved by a Vice President selected by the other members of the Executive for such purpose." 26 Narration of the controversy which led to the litigation can begin with a First Division game played between the Moree Boomerangs and Glen Innes at Mead Park, Glen Innes on Sunday 23 August 1998. The game ended in the 31st minute when the Moree Boomerang players walked off. There were complaints and protests from various sources. A meeting of the General Committee on Saturday 28 August 1998 passed these resolutions: "Brian Davidson, Greg Jones moved that the Moree Boomerangs be fined $500 for behaviour detrimental to the game of Rugby League and the damage to the Glen Innes dressing rooms be compensated. Carried. Tom French and Doug McGrady wished their vote against the motion be recorded. …….Moved Carol Khan/Bill Williams that the Moree Boomerangs be placed on notice that should any further incidents occur before the end of the season they will be stood down immediately and their affiliation for 1999 could be in jeopardy. Carried. Tom French and Doug McGrady wished their vote against be recorded." 27 At the Annual General Meeting on Sunday 8 November 1998 a resolution was carried to the effect: "That all affiliations for 1999 be accepted with the exception of the Moree Boomerangs Club." At a meeting of the General Committee on 7 December 1998 a decision was made to the effect that the plaintiff was excluded from affiliation within the Group. 28 In proceedings 4666 of 1998 the plaintiff obtained decisions of this Court (Hamilton J) on 15 December 1998 to the effect that the General Committee and the Annual General Meeting did not have power to pass those resolutions. 29 On 23 January 1999 a meeting of the Boundary and Competition Committee of the CRL - not a committee of Group 19 - considered the alteration to the boundaries of Group 19 and which clubs should compete in the competition to be conducted by Group 19 in 1999. 30 On 3 February 1999 the Boundary and Competition Committee decided to alter the boundaries of the Group 19 competitions in a way which excluded the Moree Boomerangs and determined that a number of clubs would participate in the Group 19 competitions for 1999 without including the Moree Boomerangs. On 17 March 1999 this Court (Windeyer J) determined that the Boundary and Competition Committee did not have power to do that. 31 On 18 March 1999 the Executive Committee of Group 19 consisting of the President Bill Williams, the Treasurer Brian Davidson and the Secretary Carol Khan decided to convene a meeting of the General Committee for Monday 29 March 1999 at the Glen Innes Services Club to commence at 7.45 pm. Their resolution referred to Rule 13(a) which empowers the Executive Committee to call a meeting of the General Committee at any time. The Secretary Carol Khan sent Colin Wells, Acting President of the plaintiff, a letter of charge on 19 March 1999 (which was corrected in minor ways by an amended letter of 22 March 1999) which said to the effect that the General Committee would meet: "…to inquire into allegations of misconduct by your club through its players and/or supporters during the season 1998 being matters which effect the control and welfare of the Group and of Rugby League Football and which may be found to be detrimental to the control, welfare or interest of the Group or Club within the Group." 32 The letter went on to give particulars referring to the incidents referred to in the minutes of 28 August 1998 and the conduct of the plaintiff's players at matches on 5 September and 8 September 1998 and also the conduct of the club's officials and supporters on all three occasions. 33 On 22 March 1999 the plaintiff's solicitors wrote to the defendant's solicitors protesting against the letter of charge. It was said that the letter was extraordinary and an attempt to circumvent the effect of both judgments and that it purported to reopen matters all of which have been the subject of previous charges. These observations were not correct as there had not earlier been any charges dealing with the events of 5 and 8 September and the charges had not been previously determined, while the decisions which the judgments of this Court showed to be invalid were not determinations of charges. The plaintiff's solicitors said of the letter of charge: "It is a document with BAD FAITH writ large upon it." and went on to ask for particulars of who had called the meeting and what Rule it was called under. In another letter on the following day they sought particulars of the subject of the Inquiry. 34 The defendant's solicitors gave particulars on 25 March 1999 by reference to a file of about 20 pages of lists of complaints, letters of complaints, reports from referees and other matters. This file is Exhibit B. 35 On 29 March 1999 the plaintiff, represented by Mr John Sutton, solicitor, applied to this Court (Young J) for an interlocutory injunction restraining the holding of the meeting, which was refused. The General Committee meeting was held at the Glen Innes Services Club commencing at 8.00 pm. No representative of the plaintiff was present at that time. Four representatives of the plaintiff arrived at 8.20 pm. The honorary solicitor of the Group, Mr Watt, presented business relating to the Inquiry and read letters of allegations. There was some discussion about whether the plaintiff's representatives wished to hear all the material read out. Mr Sutton, who travelled from Sydney that day after appearing before Young J, arrived at 8.50 pm. 36 Mr Sutton obtained a short adjournment. Then he is recorded in the Minutes as having made some observations about procedure. According to the Minutes he requested that letters of allegation written by two persons who were not present should not be read; he inquired whether two referees were present and was told they were not; he was told that Mr Higgins (the referee at the game on 23 August) was available and said that he wished to ask him questions. He questioned Mr Higgins from 9.24 pm until he finished at 11.20 pm after interjections by various members of the meeting expressing concern at the nature of the questions and the length of the meeting. After questioning Mr Higgins he said that the Moree Boomerangs had a large number of witnesses and as recorded in the Minutes he advised the meeting that he would submit written statements from these witnesses and forward them to Mr Watt. The Minute says " Mr Watt agreed to discuss format with Mr Sutton after the meeting's completion ". 37 Late in the meeting a motion was moved by delegates of Warialda " that every A Grade Club that nominated in Group 19 be allowed to play in 1999". After discussion this motion was defeated. In the course of the discussion a delegate from Guyra said that his club was not prepared to play if the boundary was not changed and a delegate from Inverell made a similar observation. 38 Mr Sutton submitted to me that the debate on this motion and the fact that it was defeated demonstrated that the proceedings were unfair and that the outcome of the charges was pre-determined. There is no substance in this; what is demonstrated by the fact that that motion was not carried was that the meeting was not prepared to decide in accordance with the motion. 39 The meeting concluded when the President of Group 19 said that he regretted that the matter was not decided at that meeting and a further meeting would be called for Tuesday, 6 April 1999 commencing at 7.30 pm at the Glen Innes Services Club. The meeting closed at 11.30 pm. 40 On 5 April 1999 the Group Secretary Carol Khan sent a message to all members of the General Committee which said that in view of the length of the meeting on 29 March the Executive Committee had decided to postpone the resumption of the meeting to 13 April and in the mean time to submit a resolution in writing pursuant to Clause 17. The message said: "Members have already heard the evidence presented to the last meeting and further evidence in writing will be presented to you on behalf of the Moree Boomerangs. You must consider this further evidence along with any written submissions made on behalf of the Moree Boomerangs BEFORE you vote on the resolution." 41 A vote was called for by 3.00 pm on 12 April 1999. The proposed written resolutions were: 1. In view of the length of the meeting of the General Committee on 29 March, 1999 and the distance travelled on that date and to be travelled in future to complete the inquiry it is resolved that the inquiry be completed by resolutions pursuant to Clause 17 of the Group's Rules. YES NO (Please tick or cross) 2. Having heard or read all the evidence and submissions the committee find that the Moree Boomerangs Club is GUILTY NOT GUILTY (Please tick or cross). of misconduct or conduct detrimental to the control, welfare or interest of the Group or of Rugby League Football. 3. In the event that the Moree Boomerangs Club is found guilty in accordance with resolutions above, the following penalty is imposed: FINE (Please tick or cross). AMOUNT OF FINE $ (Please insert amount) DISQUALIFICATION (Please tick or cross). PERIOD OF DISQUALIFICATION 1 YEAR 2 YEARS 3 YEARS (Please tick or cross). OTHER PENALTY (Please insert). 42 On 1 April Mr Watt had sent Mr Sutton a copy of this document with a message which said: "We still do not have your statements and submissions. Please provide same by Tuesday 6th April 1999 so that they can be circulated." Mr Watt sent Mr Sutton a further message on 8 April asking for the statements by the following day. "…..as it is proposed that the rest of the Inquiry will be dealt with by way of your written submissions." Mr Watt also asked for a submission dealing with any matters relating to penalty in the event of the General Committee arriving at a finding of misconduct. On 9 April 1999 Mr Watt sent Mr Sutton's firm a letter by facsimile message further calling for evidence and submissions. 43 On 12 April 1999 Mr Sutton's firm responded by letter sent by facsimile message, the first response since 1 April. The letter protested against the procedure which had been followed. The letter asserted that Mr Sutton had been advised that the plaintiff would have the opportunity to question any witness who had submitted evidence, that Mr Sutton had said that he would be questioning adverse witnesses and would call a number of witnesses, and it was attributed to Mr Watt that he said that he expected that the plaintiff would need to call witnesses to give live evidence. Mr Sutton said: "It now appears that the goal posts are being moved once again confirming the view we expressed to his Honour Mr Justice Young that the result of this Inquiry is already determined and that the whole procedure would be a traversty of the constitution and the rules of fairness. We rely upon the procedure that was set by your own clients and which was made known to us at the inquiry. At this stage we do not wish to submit written statements. We require that we be given the opportunity promised us that we could question all adverse witnesses. We wish to do that before we, in effect, mount our own case. If you do not afford us this opportunity as promised you do so at your own peril." 44 The Executive Committee received responses from club delegates and other General Committee members and concluded from the responses that the General Committee had found the plaintiff guilty. On 13 April 1999 the Executive Committee issued a press release and informed club secretaries that the meeting set down for 13 April had been cancelled. The General Committee members were then asked to vote on a further written resolution which was in these terms: "Having voted in writing to find the Boomerangs Club guilty of misconduct or conduct detrimental to the control, welfare or interest of the Group or of Rugby League football and that a period of disqualification of one year be imposed on the club it is resolved that the inquiry be now closed." The Executive Committee later concluded from the responses that that resolution had been carried. 45 The decision to disqualify the plaintiff is ineffective if it fails on grounds which fall into two different classes. One is non-compliance with steps which are necessary under the Group Constitution for an effective decision to disqualify. The other is non-compliance with the requirement that procedures must be followed in good faith and must be fair: that is, the requirement of natural justice. In my opinion it is a necessary implication in Clauses 47 and 48 that a club will not be disqualified as a disciplinary measure in any other way than in accordance with the procedure in Clauses 47 and 48, and also that any exercise of the power to impose disqualification will be carried out fairly and in good faith. These are conditions of the effectiveness of any disqualification. 46 The principal contention put to me by Mr Sutton was that when the whole course of the events from August 1998 until April 1999 is considered, it should be found that the outcome of the Inquiry was pre-determined, that there was no real possibility of consideration in good faith by the General Committee of the business under Clause 47 and Clause 48 and that the plaintiff was going to be disqualified come what may. In my view the facts should not be found in that way. One basis put forward for that conclusion was that the complaint itself was lacking in substance, and that there was not a reasonable basis for the view that the information put before the General Committee justified the conclusion that there was misconduct, or conduct detrimental as in Clause 47. The facts are to the contrary; it was well within the range of reasonable conclusions on the complaints in Exhibit B that the charge should be upheld. That being so, conduct which continued to further the complaints in the letter of charge through various unsuccessful procedural courses over earlier months does not ground the conclusion argued for. The conclusion which it tends to ground is that there was a genuine belief that there really was something to be considered and decided. Apart from the disciplinary resolution of 28 August 1998 none of the later resolutions had been effectual at all. None of the judicial decisions had established or dealt with whether there was or was not any substance in the matter of the charge. 47 It was contended on behalf of the plaintiff that inclusion in the particulars of events of 23 August 1998 which had been the subject of a disciplinary decision and penalty on 28 August 1998 showed that the proceedings were unfair. The ground referred to in Clause 48 on which disqualification may be imposed is misconduct or conduct detrimental to the control, welfare or interest of the Group or of Rugby League football, and the particulars referred to the cumulative effect of a series of events at three games, the first being that of 23 August 1998. The range of matters which could be found to be misconduct or conduct detrimental to the control, welfare or interest of the Group or of Rugby League football is very wide and is left by the Group constitution to the judgment of the General Committee. If the General Committee acts in good faith and fairly it can come to its own decision about the impact on the whole matter under consideration of the fact that part of the facts under consideration have already been the subject of disciplinary action; and on any other questions involved, including the responsibility to be attributed to the club for the behaviour of players, officers or supporters. The decision of 28 August 1998 included an indication of further action if there were any further incidents that season. Under the general law a previous conviction is excluded for policy reasons, although it is relevant. In my judgment bringing the events of 23 August 1998 under consideration again in the way indicated in the complaint is not an indication of lack of good faith or of unfair procedure. 48 Mr Sutton also contended that procedural unfairness was shown by the fact that earlier decisions of Group 19 bodies and the Boundary and Competition Committee on similar or the same facts had been found to be ineffective by Court decisions. As the Court decided, the earlier decisions based on those facts were ineffective, there is no reason for treating the earlier decisions as conclusive of the matters in the charge. 49 It was contended that by undertaking the inquiry the Group had shown a determination to circumvent the judgments of the Court. It must be said that this contention was entirely groundless, and there is no event which could be thought of as circumventing a Court decision. 50 It was contended that the proceedings were unfair in that the particulars were inadequate as they did not give enough indication of what was being inquired into. I do not accept this complaint; in the name of particulars the plaintiff was furnished with all the information which was proposed to be put before the General Committee, and, so far as the evidence shows, all the information which was put before the General Committee, apart from cross-examination by the defendant's solicitor of the referee Mr Higgins. The plaintiff was given more than particulars: it was given everything that was put before the General Committee. 51 Regard has to be kept steadily on the nature of the General Committee . Group 19 has a huge territory from Glen Innes to Walcha to Moree, and assembling a General Committee from nine different cities and towns involves a large number of people in lengthy journeys. It is difficult for meetings to be extended beyond a few hours. 52 A standard of procedural fairness must be understood to be inapplicable if as a matter of practicality it would prevent a decision from emerging. All parties are committed to be bound by decisions of the General Committee, and procedural short-comings which are inherent in the way the General Committee is constituted cannot be a ground for invalidating its decision. 53 Officers of the Group and delegates of clubs will in the nature of things have some involvement in the affairs on which the General Committee has to reach a conclusion. The General Committee and the officers were not disqualified from considering the charge and from exercising its powers under the Rules, and from conducting Group business by the fact that they had continued participation in and conduct of Group affairs. Unless someone carried them on they could not be carried on, and unless the Executive Committee thought there was something worthy of consideration, business would never receive consideration. There is no equation between a wish to have a disciplinary measure considered on the one hand and bad faith or bias on the other hand. 54 On the need for actual bias see Australian Workers' Union v Bowen (No 2) (1948) 77 CLR 601 per Dixon J at 628 and at 630-631. See too Maloney v NSW National Coursing Association [1978] 1 NSWLR 161 at 169-172 and Dale v New South Wales Trotting Club Limited [1978] 1 NSWLR 551 at 554 and 555. 55 Delegates attend the General Committee as delegates of clubs: they can be expected to express the feelings of their clubs and to act on them. Delegates of football clubs cannot be turned into discreet Elder Statesmen. On the Warialda motion on 29 March the Guyra and the Inverell delegates frankly did express the feelings of their clubs. Stating their clubs' attitudes was what they were there to do, and a standard of behaviour imposed by the Court would be unrealistic if it did not recognise that club delegates will speak openly in that way. What they do is not tested for lack of involvement: it is tested for lack of bias. If the fact that Guyra was not prepared to play unless the boundary was changed was a relevant thing to say in debate on the motion, it would have been wrong to keep quiet about it. It said nothing about the charges against the Moree Boomerangs and in my opinion it shows involvement but does not show bias. 56 The Executive initiated the complaint and the three members of the Executive participated in the deliberations to the General Committee. However they did not in my opinion take the part of the prosecutor, or of a witness; they did not originate any of the information on the nature of the complaint, and in view of the nature of the information furnished to them by complainants they could hardly have done otherwise than to bring the matter before the General Committee for its consideration, if they were functioning as an Executive in a proper way. These are not disqualifying circumstances. 57 A person who took the role of prosecutor, or a person who was shown actually to be biased against the plaintiff could not, consistently with a fair outcome, participate in its decisions; but there is no basis for a finding of actual bias against any of the delegates or officers, and the position of prosecutor was taken by the honorary solicitor Mr Watt. Standards which required that, for example, Executive Committee Members who took part in the decision to call a meeting of the General Committee or to put the charge before it were disqualified from participation, or which disqualified a delegate who had opposed what was in effect a closure motion and expressed the view of the club that he represented that they would not participate unless there was a certain outcome, impose a standard of purity which as a matter of practicality cannot be expected of a body of this kind. 58 For a Court, or a public authority or tribunal with a salaried staff, stricter standards would be expected. A voluntary association, largely composed of representatives of football clubs with a quite direct interest in the quality of participation of other clubs, cannot be required to conform to the standards imposed in public administration. Clubs have no real opportunities for ready substitution for persons who disqualify themselves, having regard for the considerations of time and distance and the voluntary nature of the Group. 59 The cross-examination of Mr Higgins, who was referee on 23 August 1998, demonstrates the limits of practicality. The cross-examination related very largely to the events of the game of 23 August, took almost two hours and terminated at 11.20 pm. That was a lot of attention for a game which lasted 31 minutes. In the world of practicalities the Court cannot expect that a committee of 28 persons from widely separated country districts would continue to reassemble itself from time to time for long enough to enable this kind of examination of each complainant the plaintiff chooses to cross-examine to take place. The events of 29 March demonstrate the impracticability of allowing cross-examination of all persons furnishing information which the General Committee was to consider. 60 As a general proposition, domestic tribunals are not required to allow cross-examination, and I was not referred to any particular circumstances of this case which make that general approach inapplicable; this is not for example a case which could turn on a detailed consideration of the credibility of a small number of participants in an event. After particulars had been given in the full form in Exhibit B, the requirements of fair procedure included giving the plaintiff an opportunity to put before the General Committee any factual information which it wished the Committee to consider; they did not extend to allowing cross-examination or a confrontation with all informants, or indeed with any informants. The conversations between Mr Watt and Mr Sutton after the meeting of 29 March and on 1 April, the exact details of which were disputed, whatever else was said, kept before Mr Sutton and the plaintiff the opportunity to bring forward written statements and submissions for consideration. Indeed, the opportunity to do that should in reality have suggested itself to Mr Sutton and the plaintiff before 29 March, and their preparation would have been a better use of time than pursuing unsuccessfully an interlocutory injunction. The need for written statements was obvious. 61 A change in the procedure which has been earlier indicated has been frowned on when it occurs in the proceedings of a public body; see Attorney-General of Hong Kong v Ng Yuen Shui [1983] 2 AC 629 and Wu v Minister for Immigration and Ethnic Affairs (No. 2) (1994) 51 FCR 232. Those cases relate to public authorities and to decisions of great personal importance. However where a substantial reason exists there is no basis for the Court to forbid a change in procedure. 62 Mr Sutton contended that lack of procedural fairness was shown by the alteration in the procedure which appeared to be adopted on 29 march when he was allowed to cross-examine Mr Higgins. It is plain enough that the Executive Committee decided after 29 March 1999 to put forward a change in the procedure which the General Committee had adopted until then. The change was in my view reasonable to adopt, as the events of 29 March demonstrated the impracticality of continuing to proceed in any other way. The plaintiff and Mr Sutton did not respond in any way to the opportunity offered to submit written statements and submissions, and Mr Sutton's letter of 12 April shows, not that the plaintiff was suffering from any practical difficulty in doing so, but that the plaintiff altogether refused to do so; and it shows that the plaintiff made a requirement for a procedure in which Mr Sutton cross-examined all other persons furnishing information before the plaintiff made any response. This demand was not made until the time by which submissions were called for had passed, it was too late, but if it had been made in due time, there could not have been any reasonable expectation that it would be granted. 63 The procedure to be adopted is within the control of the General Committee, and the plaintiff had no entitlement that any particular procedural course would be adopted. If the plaintiff had been assured that some particular procedural course would be adopted, the plaintiff had no entitlement to be exempt from any further decision modifying the procedure, or adopting a different procedure. I have to consider whether the procedure, including the procedure after the modification and the manner of modification, gave the plaintiff a reasonable opportunity to bring forward for consideration material which it wished to have considered. After the experience of 29 March, a decision to abandon cross-examination was, on the grounds of sheer practicality, well within the range of fair procedural decisions which might be adopted. 64 The change in procedure might be unfair if it deprived the plaintiff in some way of an opportunity of bringing forward what it wished to have considered. However there was no basis for thinking that it did so. The plaintiff's difficulties arise out of not putting the information and submissions in writing in any form, although invited to do so, and notwithstanding the obvious impracticality of a lengthy hearing before the General Committee at which all adverse informants were to be cross-examined that was not in the world of the practical. The General Committee included 28 persons and delegates from 11 clubs in 9 different cities and towns, and there would be no real chance of assembling the same 28 persons at each of a series of meetings. The claim which Mr Sutton eventually brought forward on behalf of the plaintiff that all adverse information should be the subject of cross-examination before the plaintiff made any statement was, it must be said, preposterous. In any event the claim was not advanced until about the time when a decision was reached. 65 Mr Sutton contended that the alteration in the procedure deprived the plaintiff of the opportunity to bring factual matter forward, and had the result that no evidence was led from the plaintiff at all. However in explaining this he adopted the position taken in his letter of 12 April, that there should be cross-examination of all prosecution witnesses before the plaintiff determined what evidence the plaintiff would lead in response. This demonstrates the vacuity of the contention that the change in procedure deprived the plaintiff of the opportunity to produce evidence; the plaintiff's opportunity was defeated by its deliberate decision not to bring material forward at a time when it was appropriate to do so and when it was invited to do so. In effect it was contended that the plaintiff was entitled to test everything before the plaintiff said anything; and a claim like that could not be justified. 66 In its broad outlines the controversy was not a new one and it had been under consideration within the Group for some months before March 1999. In the circumstances adopting a procedure which called for the plaintiff's position to be stated, and moved to consider the outcome in a relatively short time, was not unjust. 67 Mr Sutton contended that practical difficulties relating to assembling a General Committee to consider the charge could and should have been dealt with by appointing some disinterested outsider, and he instanced Sir Laurence Street, to conduct the Inquiry. In the context of a voluntary association conducting amateur sport I think it is enough to state the suggestion to demonstrate that the arrangement would not be suitable. In any event there is no reason why the General Committee should have entirely disqualified itself from consideration of the business. The General Committee is the tribunal which all members agreed would decide charges of misconduct or other charges within Clause 47. 68 Mr Sutton contended to the effect that it was beyond the powers of the Executive Committee to institute an Inquiry, and in support of this he pointed to Clause 31 and contended that its proviso disqualified any member of the Executive from dealing with a contentious question. The short answer to this is that the Executive did not resolve that the General Committee should undertake the Inquiry. There is no Minute and the evidence seems to show that there was no occasion when the General Committee formally resolved, following the terms of Clause 47, to inquire into the matter of the complaint; but the evidence including the Minute clearly shows that the General Committee embarked itself on doing so, and it must be understood that it decided to do so. The General Committee itself inquired into the charge; their decision to do so is not affected by the powers of the Executive Committee. 69 Mr Sutton contended that some persons who participated in the General Committee as delegates were not or may not have been entitled to attend as delegates. There was no evidence that any club delegates were not in fact regularly appointed by their clubs. The plaintiff bore the onus of showing that any of them were not actually delegates. 70 Mr Sutton also contended to the effect that when certain Committee members whom he contended should be disqualified for earlier participation or for the expressed attitude of their clubs were excluded, the two-thirds majority required by Clause 17 for a written resolution had not been reached. In my view however no participant was disqualified in this way. A related contention was to the effect that certain of the persons who voted as delegates on the written resolutions were not identical with the delegates who were present on 29 March and then took part in the Inquiry. For the satisfaction of the requirements of Clause 17 for a two-thirds majority it is in my opinion enough that the persons voting on the written resolution should at the time they voted be delegates of a club, and the plaintiff did not adduce evidence that the persons who voted were not delegates at the time they voted. To test the procedural fairness of the resolution it is not in my opinion required that the two-thirds of the total membership of the committee, that is nineteen persons, both participated in the meeting of 29 March and voted in support of the written resolution. The requirement to comply with Clause 17 and the requirement that there should be procedural fairness are different requirements and should not be confused; there is in my opinion procedural fairness if persons who were in attendance on 29 March formed a simple majority of the persons who actually voted for the written resolution; and it has not been shown that they did not. 71 The effectual decision was made by the first written resolutions. The second written resolution expresses confirmation, but it was not the occasion of disposition of the complaint, and it is not to the point to test it for procedural fairness. No demonstration of lack of procedural fairness of the second written resolution was made, in my opinion. 72 In calculating a two-thirds majority in relation to the first written resolutions it seems clear that a two-thirds majority, or nineteen persons did not vote for a disqualification of one year; the conclusion that there was a two-thirds majority for disqualification of one year is reached by counting all who voted for a longer disqualification, two years or three years, as supporting a disqualification of one year. This was generous to the plaintiff and was not an injustice. The second written resolution had the effect, among other things, of confirming that it was the decision of the General Committee to disqualify for one year. 73 The disqualification imposed is clearly one of the penalties authorised by the terms of Clause 48. It was contended that evidence which shows that in the course of the past ten years no similar disqualification has been imposed is an indication of bias or prejudgment. In my view that evidence has no such implication 74 The context in which a disciplinary complaint is to be decided by a body which is inherently unwieldy and inherently likely to include persons with some degree of knowledge or involvement includes Clause 49, which gives a general right of appeal from a decision of the General Committee to the Appeals Board of CRL. That is to say, there is ready access and a general appeal to an Appeals Board which is not part of the structure of the Group and does not have involvement in Group affairs. 75 The right of appeal to a tribunal which is not local and which would not be affected by practical difficulties arising out of the constitution of the General Committee is the means available under the Group Constitution to remedy grievances arising from the unwieldy practicalities of the General Committee and the closeness of its membership to any controversy which it is likely to decide . On the evidence there is no reason to think that a hearing before the Appeals Board would not be conducted on a satisfactory basis. The existence of that right of appeal, and the plaintiff's apparently deliberate election not to exercise it are significant considerations adverse to intervention by the Court. 76 Mr Sutton contended that it should be concluded that the decision to disqualify was a nullity, and for that reason the plaintiff was not obliged to exercise its right of appeal and its not doing so should not be treated as an adverse discretionary consideration. On my findings the decision was not a nullity. It is not clear that if the plaintiff succeeded it would be established that the disqualification was a nullity; it may be that it was voidable but not void; but this does not need to be further explored. If it were correct that the disqualification were a nullity, the appeal remedy would still be available, and the plaintiffs' not having taken it would still be a significant discretionary consideration. 77 In relation to the right of appeal Mr Sutton said to the effect that the letter of charge of 19 March was drafted, as evidence shows, by Mr Riordan, the honorary solicitor of CRL, and that Mr Riordan has a part in the Appeals Board. The Appeals Board is dealt with by Clause 31 of the Constitution of CRL; the honorary solicitor is not necessarily a member, although it seems quite possible that Mr Riordan might be a member of the Appeals Board. An Appeal Review Board, which considers questions of fresh evidence and includes the honorary solicitor, participates in some appeals. On the evidence before me it is not established that Mr Riordan would necessarily be a member of the Appeals Board, or that if he were he would necessarily be disqualified. If there are grounds on which Mr Riordan should be disqualified, the plaintiff would have been able to put them before the Appeals Board. 78 Mr Sutton contended that there was a more general basis for concern about the suitability of the Appeals Board and the part taken by CRL in earlier litigation and other aspects of the controversy. However he showed no grounds of substance why it would not be reasonable to expect of the plaintiff that it would exercise its right of appeal. 79 Even if the plaintiff had shown that the disciplinary decision was invalid, I would not make any of the declarations or the injunctions sought, because of the weight of the discretionary considerations adverse to intervention by the Court. The property interests which would be protected are of nominal value and very indirectly affected by the disqualification. The strength of the view of some clubs that they do not wish to participate in a competition with the plaintiff is clear. As participation is voluntary, a disqualification has been imposed, a significant number of clubs do not want to play against the plaintiff and the referees have refused to take part, it is very unlikely that any judicial order or injunction will bring about the result that the competition will go on with the plaintiff in it. It is far more likely that the competition will lapse, or will continue in the absence of a significant number of clubs who would otherwise participate. The situation on the facts has reached the limit of what a judicial order can achieve against a voluntary association; it is not possible to compel people to continue to associate in Group 19, and the risk is that the plaintiffs will be left almost on their own, with only one or two other first grade clubs. The facts are an exemplification of the wisdom of the policy to which the High Court referred in Cameron v Hogan of restraint in judicial interventions in the affairs of voluntary associations. The only likely outcome would be to break up Group 19. 80 For these reasons the proceedings will be dismissed with costs. I will make a representative order establishing that the eight persons named as defendants represent all members of the General Committee. 81 Orders: 1. Order that the defendants named in the Schedule to the Amended Summons be appointed with effect from the time of commencement of the proceedings to represent all persons who were members of the General Committee of the New England Group 19 Rugby League from 29 March 1999 until 13 April 1999 inclusive of both dates. 2. The proceedings are dismissed with costs. Last Modified: 09/13/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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