Cheer v Eastlakes Golf Club Limited/Kerr v Eastlakes Golf Club Limited [2002] NSWSC 1240

New South Wales Supreme Court

CITATION : Cheer v Eastlakes Golf Club Limited/Kerr v Eastlakes Golf Club Limited [2002] NSWSC 1240 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 5202 of 2001; 5649 of 2001 HEARING DATE(S) : 11 and 12 December 2002 JUDGMENT DATE : 20 December 2002

Gary Cheer (Plaintiff in 5202/2001) PARTIES : Joseph Kerr (Plaintiff in 5649/2001) Eastlakes Golf Club Limited (Defendant in both actions) JUDGMENT OF : Windeyer J at 1

COUNSEL : Mr M Ashhurst (Plaintiffs) Mr R J Bromwich (Defendant) SOLICITORS : Jenkins & Associates (Plaintiffs) Acuiti Legal (Defendant) CATCHWORDS : ADMINISTRATIVE LAW - procedural fairness - natural justice - members of club suspended - whether charge clearly set out alleged offences DECISION : See paragraph 31

- 32 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

FRIDAY 20 DECEMBER 2002

5649/01 JOSEPH KERR V EASTLAKES GOLF CLUB 5202/10 GARRY CHEER V EASTLAKES GOLF CLUB JUDGMENT Outline 1 These two matters were heard together, the evidence in one being evidence in the other so far as relevant. The question for decision in each case is whether a decision of the Board of Directors of the defendant golf club, suspending the plaintiff from playing and social privileges of the club for a period of three years, was a valid decision or whether the decision should be set aside upon the basis that the plaintiff was not afforded natural justice, or in more modern terms, that there was a denial of procedural fairness by the decision maker in coming to the decision it did. Facts 2 Mr Cheer and Mr Kerr were members of the Eastlakes Golf Club Limited (the Club). They had apparently been active members of the Club. In 2001 Mr Kerr was a member of the committee and both Mr Cheer and Mr Kerr stood for election to the committee at the annual general meeting held on 28 March 2001 and both of them were elected in an election conducted for the Club by the State Electoral Office. It was the conduct of Messrs Cheer and Kerr said to have taken place at the annual general meeting which gave rise to the disciplinary proceedings which are the subject of these two actions. 3 The relevant provision of the Articles of Association of the Club, so far as is relevant is as follows: DISCIPLINARY PROCEEDINGS 37. If any member shall refuse or neglect to comply with any of the provisions of the Memorandum of Association or of these Articles of the Club or the By-Laws thereof or be in the opinion of the Board, guilty of any conduct prejudicial to the interests of the Club or be guilty of conduct which in the opinion of the Board is unbecoming of a member or which shall render him unfit for membership, the Board shall have power to reprimand, suspend for such period as it considers fit, expel or accept the resignation of such member and to erase his name from the register of members provided that: (a) Such member shall be notified of any charge against him pursuant to this Article by notice in writing by a prepaid letter posted to his last known address at least fourteen clear days before the meeting of the Board at which such charge is to be heard. (b) The member charged shall be entitled to attend the hearing for the purpose of answering the charge or may answer the charge in writing. (c) The voting by the members of the Board present at such meeting shall be by secret ballot and no motion by the Board to reprimand, suspend or expel a member shall be deemed to be passed unless at least two-thirds of the members of the Board present vote in favour of such motion. (d) If the member fails to attend such meeting the charge or complaint may be heard and dealt with and the Board may decide on the evidence before it, the member's absence notwithstanding, having regard to any representations made to it in writing by the member charged. (e) Any decision of the Board of such hearing or any adjournment thereof shall be final and the Board shall not be required to assign any reason for its decision. (f) In the event that a notice of charge is issued to a member pursuant to paragraph (a) of this Article the Board shall have power to suspend that member from all privileges of the Club until the charge is heard and determined. 4 There is what is referred to as an AIF Section or Association within the Club. That section conducts some functions and it held a dinner at the Club on 11 November 2000. Mr Starr was at the time the Club Captain. He attended the AIF Section dinner. Mr Cantrell was the president of the AIF section. After the dinner it seemed that Starr and other members present thought that Cantrell was not in a condition to get himself home. Mr Starr summoned a taxi for that purpose. It seems that he thought that Cantrell was intoxicated but Cantrell may well have been suffering from the effects of some medication he was taking at the time. Whatever the position Cantrell, together with Messrs Starr, Davies and Stephenson got into the taxi which drove first to Mr Cantrell's house in Randwick where he and Davies got out of the cab. The taxi then drove Stephenson and Starr to Kings Cross. 5 At a meeting of the committee of the Club held in January 2001, Mr Starr presented a claim for expenses resulting from this. There is some confusion about the amount of the claim, but the claim related to a claim for $100 said to have been an additional amount paid to the taxi driver to persuade him to take Cantrell home together with a claim for $35.00 to take Mr Starr home to Sans Souci. In fact the claim appeared to be from the Club to Sans Souci, whereas it was accepted that the claim probably should have been made from Kings Cross to Sans Souci, if it was claimable at all. The committee authorized the payment. Mr Starr said that he made two separate payments of $50.00 each although the claim seems to have been for payments of $53.00 each said to have been made on his American Express account together with a claim for $35.00 for his own ordinary fare. That explains the total of $141.00 claimed by Mr Starr and approved by the Board for reimbursement. The Board decided that the claim should be sent on to the AIF section. Quite why that committee should have paid the $35.00 is not explained and is irrelevant. While a claim sheet was sent on by Mr Mellor, the general manager of the Club, to the AIF section, the documentation attached only included a copy of the receipt for $35.00. There was no documentation attached for the other amounts either totalling $100.00 or $106.00. 6 There was a considerable amount of evidence given as to what documentation was produced to the committee meeting which authorized the reimbursement. It is not necessary to decide this for the purpose of these proceedings. On any basis, if the American Express statement of Mr Starr was produced to the Board of Directors it did not include payments showing the correct dates, although it was explained why this may have happened. 7 The claim was presented to a meeting of the AIF section. It seems that Mr Kerr made some inquiries from those persons who accompanied Cantrell and Starr in the taxi, or who were present when Cantrell got into the taxi. Starr had said that he had no other documents. The other people involved said that they did not see any payments being made of the additional amount, neither did they hear any conversation about it. One of these people told the committee or at least told Kerr that Starr had not gone home to Sans Souci but that the taxi had taken him to Kings Cross. As a result of this Kerr said that the committee decided that the claim was not genuine and should not be paid. A letter was written from the AIF section to the Club signed by Kerr which stated that the claim was considered to be "bogus". This letter was shown to Mr Mellor, the general manager, on the night of the general meeting, who said it was not a proper matter to be put forward on that date, but nevertheless Mr Kerr had that letter or a copy of it with him at the meeting. 8 We now come to the annual general meeting. Prior to this meeting, and for some time it is apparent that there had been disputation and arguments about certain expenses of the Club and particularly some expenses relating to the reconstruction in some way of the 8th hole on the golf course. It is not necessary to know more about this. Mr Cheer was obviously taking a keen interest in Club expenditures and was also taking a keen interest in reimbursement of expense claims of directors. There were motions put forward for discussion at the annual general meeting which involved approval of claims for expenses by directors and certain payments on behalf of directors' activities up to a certain level. Mr Cheer and those persons, who supported what he acknowledged to be his ticket for the committee, seem to have been against the passing of these resolutions, which were in fact both passed. In the course of this Mr Cheer queried the method by which expenses were vouched or certified. He addressed this matter on two occasions during the meeting. On the first occasion, according to his evidence he said that he did not believe that the methodology which the treasurer stated was used was in fact carried out. There was some discussion about whether he had any evidence about this and he said that he did, but at that stage gave no details. Later on however he returned to the approval process and whether or not claims were being made which were not legitimate. He gave as an example the happenings at the AIF function the previous November. He said that the receipt supplied did not appear to be genuine and gave details about the visit to Kings Cross rather than Sans Souci. There is no doubt that he was pressed to give names and I consider that he was so pressed by Mr Starr as a result of which he said that it was Starr who had made the claim. According to Mr Starr and other witnesses, particularly committee members, Mr Starr then said "are you calling me a crook", to which Mr Cheer had responded that he was. Whether this happened or not does not really matter. There can be no doubt that Mr Cheer questioned the legitimacy of the Starr reimbursement claim in respect of the AIF dinner in the course of this discussion about the procedure for reimbursement of such claims. There is also I think no doubt that while this was happening Mr Kerr said that he had evidence, waving the letter or copy of the letter which he had shown to Mr Mellor, stating that the claim of Starr was bogus. 9 Later on after the meeting the board decided the complaint should be referred to the Club's new auditor Mr Cameron of Messrs. Court & Co for investigation and report. Mr Cameron eventually reported that the claim which, by that time, was talked about as being a fraudulent claim for reimbursement, had not been made out. He stated that Mr Starr had produced documents which conclusively proved that the payments had been made. Mr Cheer continued to state that Mr Cameron had not investigated the matter properly and had not considered all relevant matters. The board, other than Messrs Kerr and Cheer, who were excluded by the president, met with Mr Cameron and received his report and on 28 August a notice signed by Mr Mackie, the president, was posted on the notice board as follows: Notice to Members At the last Annual General Meeting, Gary Cheer alleged that the Captain, Greg Starr, had defrauded the Club. Joe Kerr made a similar allegation by way of a letter. The President gave the meeting an assurance that this allegation would be thoroughly investigated. Due to the seriousness of the allegation and to ensure it was dealt with impartially, the Board appointed an independent person (non-member) to investigate the claims. Messrs Cheer, Kerr and Starr were invited to provide all their evidence in respect of the allegations to the independent investigator. The Board considered the results of the investigation at its meeting on Monday, 20 August 2001. Based upon the investigator's report the Board unanimously held: Ø The allegations were not sustained. Ø The Board resolved that the report of the independent investigator be accepted and that the Board takes no further action in this matter. Ø The Board and administration will always address complaints from members. Ø In this case the Board demonstrated its willingness to treat the concerns seriously by appointing an independent person (non-member) to conduct an exhaustive investigation. Ø Mr Starr denied the complaint at all times and he produced evidence in support of his case. Ø The complaints and allegations were not sustained. Ø The Club has incurred substantial expenses and has spent considerable administrative time dealing with these complaints. Ø In general more case should be taken to substantiate statements before they are made in public. Ø The Board authorised an extract from the minutes of the Board meeting held Monday, 20 August 2001, advising the members of the Board's methodology of the investigation process and the result of the investigation be published on the noticeboard. This concludes this matter. Yours faithfully signed For and on behalf of the Board of Directors THE EASTLAKES GOLF CLUB LTD CJG Mackie JP BM PRESIDENT Tuesday, 28 august 2001 10 The procedure in the Club as to making of complaints and charges was explained by Mr Mellor, the general manager, in his evidence. He said that as the committee was required to hear any charge the procedure was that complaints and disciplinary matters were dealt with by him and he decided whether or not the matter could be dealt with in some administrative way or a charge be brought. It is clear that Mr Starr had made serious complaints against Messrs Cheer and Kerr about their conduct at the meeting. Mr Mellor decided that these were matters which required a charge under Article 37 to be brought. He accordingly prepared or had the charges prepared and arranged for them to be forwarded to Messrs Cheer and Kerr. He explained that he considered that it was not appropriate for the members of the board of directors to see the charges prior to their being heard, as it was necessary for them to remain independent. While the summons includes some claim for relief on the basis that the charges were not properly brought as they were not authorized by the directors, no argument was addressed to that. In a domestic tribunal such as a golf club that method of handling the matter seem quite appropriate. Mr Kerr would certainly have known and Mr Cheer was probably aware that this was the method of handling complaints and that this was the way that Mr Mellor had handled them since he had been in the position he held with the Club. The charges made were as follows: Cheer Charge NOTICE OF CHARGE Pursuant to Article 37 of the Articles of Association of The Eastlakes Golf Club Limited notice is hereby given of the following charges: FIRST CHARGE That on 28th March 2001 and thereafter you engaged in conduct unbecoming a member Particulars: On Wednesday 28th March 2001 at the Club's Annual General Meeting you accused Mr G Starr, the Club Captain of defrauding the Club by claiming an out of pocket expense reimbursement to which he was not entitled. You caused the Club to expend considerable time and money to conduct an independent investigation. You failed to produce any corroborative evidence to the investigator. Your allegation was not sustained. At the time of the allegation Mr Starr was the Club's Captain and a member of the Board of Directors. Mr Starr complains: 1. That your allegation at the Annual General Meeting caused Mr Starr hurt, humiliation and embarrassment before his peers. 2. That you raised your concerns about Mr Starr's alleged conduct in an inappropriate manner by making the allegations public at the Annual General Meeting before Mr Starr's peers (rather than putting your concerns in writing privately to the Board). 3. That, in so making the allegations at the Annual General Meeting, and having regard to the fact that you failed to produce to the investigator any corroborative evidence, you made the allegations either falsely or with a reckless indifference to the truth. 4. That in making the allegations falsely or with reckless indifference to the truth, you showed a total disregard for the hurt and harm such allegations would cause to another member of the Club. 5. And further that in making the allegations falsely or with a reckless indifference to the truth, you showed a total disregard for the principles of natural justice and proper procedure. 6. That at the Annual General Meeting you asserted to the members present that you had "proof" of the alleged wrongdoing (thereby inciting the members present to believe your allegation and turn the members present against Mr Starr, and implicitly, against the Board – being the Board who would allow such a wrongdoing to remain uncorrected). 7. That you made the assertion to the members at the Annual General Meeting that you had "proof" knowing the assertion to be false; or conversely, not knowing the assertion that you had "proof" to be true. 8. That all the above leads a reasonable person to infer that you used the forum of the Annual General Meeting to cause hurt and harm to Mr Starr by making baseless accusations designed to impugn the character of Mr Starr regardless of the truth. 9. That in light of the fact that you had no evidence to support your allegation it is reasonable to conclude that your attack on Mr Starr at the Annual General Meeting was personally motivated and malicious. 10. That it is conduct unbecoming a member for you to inappropriately use the forum of the Annual General Meeting of the Club to engage in a personal and malicious attach on Mr Starr (being a member that holds a respected position within the Club) in circumstances where you had a reckless indifference to the truth, and in circumstances where you knew (regardless of the outcome of any investigation) that the reputation of Mr Starr will always be tarnished by the accusation. 11. That you had an opportunity to withdraw the allegation at any time after the Annual General Meeting and prior to the investigator concluding the investigation and you did not withdraw the allegation. SECOND CHARGE That on 28th March 2001 and thereafter you engaged in conduct prejudicial to the interests of the Club. Particulars The particulars numbered 1 to 11 inclusive referred to in the FIRST CHARGE are repeated and the following additional particulars are provided: Mr Starr further complains: 13. That the allegation caused unrest at the Annual General Meeting and disrupted the business of the Annual General Meeting in that: (i) following your allegation about Mr Starr, you incited the members at the Annual General Meeting to disbelieve the Board, or mistrust the board, or both (on unrelated matters, eg the development of the 8th hole) and relied upon the Board's alleged failure to identify the alleged fraud perpetrated upon the Club by Mr Starr to support your claim that the prior Board was incompetent, thereby impugning the integrity of both the members of the board and the Club's management: (however, following examination, there was no wrong-doing which the Board failed to discover and to suggest that the Board was, by analogy, incompetent for failing to discover the alleged wrongdoing is both wrong and unfair to the Board and Management). 14. That such imputations were made with a reckless indifference to the truth and without regard for the reputations and characters of the persons that comprised the Board and Management of the Club at the time. 15. That it was prejudicial to the interests of the Club to expend substantial amounts of time (Management and members of the Board) and money (on legal and investigator's fees) investigating a reckless and baseless allegation. 16. That it was prejudicial to the interests of the Club for you to use the Club's resources (its ability to investigate the allegation), its procedures (you knew the club would have no option other to than investigate the allegation) and the members in Annual General Meeting (you knew that if you alleged wrongful conduct the members in general meeting would be inclined to believe you over any denial by Mr Starr), to be used as a weapon by you in a malicious attack against Mr Starr which process brought (unnecessarily) into question the integrity of the Board and Management of the Club. PROCEDURE The Board of Directors (excluding Mr Starr and Mr J Kerr) will hear the above charges on Monday 17 September 2001 commencing at 5:30 p.m. You are entitled to attend the meeting for the purpose of answering the charges or you may answer the charges in writing. If you fail to attend such meeting the charge may be heard and dealt with your absence notwithstanding and the Board may decide on the evidence before it, but having regard to any representation made to the Board by you. If the Board finds you guilty of at least one of the charges the Board has power to reprimand you, suspend your membership of the Club for such period, as it thinks fit, expel you from membership of the Club or accept your resignation. A copy of the Articles of Association is enclosed with this notice. If you wish to call any person to give evidence on your behalf you should arrange for that person to be available at the meeting when called. You will not be entitled to be legally represented at the meeting. (signed) Bruce A Mellor JP Chief Executive Officer Kerr Charge NOTICE OF CHARGES Pursuant to Article 37 of the Articles of Association of The Eastlakes Golf Club Limited notice is hereby given of the following charges: FIRST CHARGE That prior to, on the 28th March 2001 and thereafter you engaged in conduct unbecoming a member. Particulars: On Wednesday 28th March 2001 at the Club's Annual General Meeting Mr G Cheer accused Mr G Starr, the Club Captain of defrauding the Club by claiming an out of pocket expense reimbursement to which he was not entitled. You were the treasurer of the Club's AIF section. When the Secretary Manager requested the AIF section to reimburse the Club for an expense incurred by Mr Starr you, on behalf of the AIF section, rejected the claim, and alleged that Mr Starr's claim for reimbursement was "bogus". The Club spent considerable time and money to conduct an independent investigation. You failed to produce any evidence to corroborate your allegation that Mr Starr's claim was "bogus." Your allegation was not sustained. At the time of the allegation Mr Starr was the Club's Captain and a member of the Board of Directors. Mr Starr complains: 1. That at the Annual General Meeting of the Club you supported Mr Cheer when he alleged that Mr Starr perpetrated a fraud on the Club. 2. That at the AGM you insisted that you had a document, which substantiated Mr Cheer's allegation. 3. That the document was nothing more than your rejection in writing on behalf of the AIF section of a request for a reimbursement by the Club's Secretary Manager. 4. That your rejection of the Secretary Manager's claim for reimbursement in no way substantiated Mr Cheer's allegation that Mr Starr perpetrated a fraud on the Club. Your assertion at the AGM that you had proof of the fraud was untrue. 5. That the allegation of fraud made by Mr Cheer at the AGM caused Mr Starr hurt, humiliation and embarrassment before his peers. 6. That your support of Mr Cheer's allegation also caused Mr Starr hurt, humiliation and embarrassment before his peers. 7. That your support of Mr Cheer's allegation was, in the circumstances, inappropriate. You had no evidence to support your assertion that the Mr Starr's claim was "bogus". 8. That your response to the Secretary Manager in writing on behalf of the AIF that Mr Starr's claim was "bogus" was inappropriate. You did not provide any evidence to the investigator to support your allegation that Mr Starr's claim was "bogus." 9. That, in so expressing your support of the allegations made by Mr Cheer at the Annual General Meeting, and having regard to the fact that you failed to produce to the investigator any corroborative evidence, your allegation of a "bogus claim" showed a reckless indifference to the truth. 10. That in making the allegation with a reckless indifference to the truth, you showed a total disregard for the hurt and harm that such allegations would cause to another member of the Club. 11. And further that in making the allegation with a reckless indifference to the truth you showed a total disregard for the principles of natural justice and proper procedure. 12. That at the Annual General Meeting you asserted to the members present that you had "proof" of the alleged wrongdoing (thereby inciting the members present to believe Mr Cheer's allegation and turn the members present against Mr Starr, and implicitly, against the Board – being the Board who would allow such a wrongdoing to remain uncorrected). 13. That you made the assertion to the members of the Annual General Meeting that you had "proof" knowing the assertion to be false; or conversely, not knowing the assertion that you had "proof" to be true. 14. That all of the above leads a reasonable person to infer that you used the forum of the Annual General Meeting to cause hurt and harm to Mr Starr by supporting Mr Cheer's baseless accusation that Mr Starr committed a fraud on the club, and your own baseless accusation that Mr Starr's claim was bogus, to impugn the character of Mr Starr regardless of the truth. 15. That in light of the fact that you had no evidence to support your allegation it is reasonable to conclude that your attack on Mr Starr at the Annual General Meeting and in the letter from the AIF was personally motivated and malicious. 16. That it is conduct unbecoming a member to inappropriately use the forum of the Annual General Meeting of the Club to engage in a personal and malicious attack on another member (being a member that holds a respected position within the Club) in circumstances where the accuser has a reckless indifference to the truth, and in circumstances where the accuser knows (regardless of the outcome of any investigation) that the reputation of the accused will always be tarnished by the accusation. 17. That you had an opportunity to withdraw the allegation at any time after the Annual General Meeting and prior to the investigator concluding the investigation and you did not withdraw the allegation. SECOND CHARGE Prior to, on 28th March 2001 and thereafter you engaged in conduct prejudicial to the interest of the Club. Particulars The particulars numbered 1 to 17 inclusive referred to in the FIRST CHARGE are repeated, and the following additional particulars are provided: Mr Starr further complains: 18. That Mr Cheer's allegation of fraud, and your support of that allegation, caused unrest at the Annual General Meeting and disrupted the business of the Annual General Meeting in that: (i) following the allegation about Mr Starr, your support assisting in inciting the members at the Annual General Meeting into disbelieving the Board, or mistrusting the Board, or both (on unrelated matters, eg the development of the 8th hole) and you (in concert with Mr Cheer) relied upon the Board's alleged failure to identify the alleged fraud perpetrated upon the Club by Mr Starr to support Mr Cheer's claim that the prior Board was incompetent, thereby impugning the integrity of both the members of the Board and the Club's management; (however, following examination, there was no wrong-doing which the Board failed to discover and to suggest that the Board was, by analogy) incompetent for failing to discover the alleged wrongdoing is both wrong and unfair to the Board and Management). 19. That such imputations were made with a reckless indifference to the truth and without regard for the reputations and characters of the persons that comprised the Board and Management of the Club at the time. 20. That it was prejudicial to the interests of the Club to expend substantial amounts of time (Management and members of the Board) and money (on legal and investigator's fees) investigating a reckless and baseless allegation. 21. That it was prejudicial to the interests of the Club for you to use the Club's resources (its ability to investigate the allegation), its procedures (your knew the Club would have no option other to than investigate the allegation) and the members in Annual General Meeting (you knew that if you alleged wrongful conduct the members in general meeting would be inclined to believe you over any denial by Mr Starr), to be used as a weapon by you in a malicious attack against Mr Starr which also involved the integrity of the Board and Management being unnecessarily brought under attack. PROCEDURE The Board of Directors (excluding Mr Starr) will hear the above charges on Monday 17 September 2001 commencing at 5:30 p.m. You are entitled to attend the meeting for the purpose of answering the charges or you may answer the charges in writing. If you fail to attend such meeting the charge may be heard and dealt with your absence notwithstanding and the Board may decide on the evidence before it, but having regard to any representation made to the Board by you. If the Board finds you guilty of at least one of the charges the Board has power to reprimand you, suspend your membership of the Club for such period, as it thinks fit, expel you from membership of the Club or accept your resignation. A copy of the Articles of Association is enclosed with this notice. If you wish to call any person to give evidence on your behalf you should arrange for that person to be available at the meeting when called. You will not be entitled to be legally represented at the meeting. (signed) Bruce A Mellor JP Chief Executive Officer 11 The complaint against Cheer was heard by the board on 17 September 2001. At the commencement of the hearing the general manager handed out a document which was said to be an outline of procedure for such a hearing. Mr Cheer took some witnesses with him, namely Messrs. Kerr, Hart, Power and Freudenreich. Mr Cheer made some notes of the hearing which I accept as being a reasonable summary of what happened. There was some discussion as to who was the complainant, but as I have said, I do not think that takes the matter much further, although it is apparent that Mr Starr was regarded as such. He tabled some documents going to establish that the payments which he claimed he had made had in fact been made. The report of Mr Cameron was not placed before the tribunal. While those documents tabled by Mr Starr were the only documents which were placed before the tribunal, in a matter such as this where the tribunal in fact consisted of the committee of the Club, all of whom were present at the annual general meeting, it must be accepted that the happenings at the meeting were within the knowledge of the tribunal. Thus it must be accepted that at the very least Mr Cheer had questioned the legitimacy of the Starr claim for reimbursement. The tribunal refused the request of Mr Cheer to be allowed to tape record the proceedings and it seemed that this was one of the reasons why the hearing took too long. It took about five hours. 12 Although the draft procedural document had set out what would have been a reasonable sequence of events, what happened at this hearing was that after Mr Starr had tabled his documents namely a statutory declaration from Mr Davies, his American Express statement, some Cabcharge dockets and a Cabcharge letter, Mr Starr proceeded to question Mr Cheer before Mr Cheer had the opportunity of presenting his own evidence before the tribunal. Some of the questioning was in the nature of relatively hostile cross-examination. When this finished Mr Cheer was asked if he had any submissions to hand out and he handed out a written submission which had certain material attached to it, those attachments, including the material which had been sent to the AIF section with the request for reimbursement and the response sent by Mr Kerr, which described the claim as bogus. There was then some discussion about whether Mr Goerl was entitled to a copy of the submissions at it appears he was going to be a witness, although he was obviously regarded as a member of the tribunal. The ultimate result was that one element of the charge against Cheer was removed and the matter proceeded. Mr Cheer gave his explanation of what he said had happened at the meeting. He denied that he had called Mr Starr a crook. Mr Mackie, who was the Club president and therefore the chairman of the tribunal, said that this was not true and he remembered it distinctly. Starr said the same thing, and Cheer again denied it. Mr Cheer then called his witnesses, the first being Mr Hart. Mr Starr interrupted this and began to ask his own questions. Mr Starr asked Mr Hart if he had seen any documents in relation to Mr Cheer's charge to which Mr Hart answered "No". Mr Mackie then said "Hart you are lying, I did not coerce Cheer into saying what he said. You are a liar". Mr Hart said he took offence at this and Mr Mackie said again "You're a liar Hart and you know it". Mr Power then gave some evidence which seemed to have been largely uninterrupted after which he was examined by Starr. After this Mr Cheer called other witnesses and the hearing proceeded in a generally reasonable way. Mr Kerr gave evidence as to what documents he had seen in support of the Starr claim on the AIF section and of the letter which that committee had instructed him to write to Mr Mellor. 13 The document which Mr Cheer handed out is of some significance and therefore it is necessary to set it out in full: GARY CHEER