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 DISCIPLINARY PROCEEDINGS First Charge 1. In so far as this charge claims that on 28 March 2001 I accused Mr Starr of "defrauding the Club by claiming out of pocket expenses reimbursement to which he was not entitled" the charge is contrary to the Club's own records. 2 Attached is a copy of the draft minutes of the AGM of 28 March 2001 as prepared by Mr Mellor. Those minutes record that I "questioned the authenticity of a board member claiming an out of pocket expense". At no time did I accuse anyone of "defrauding the club". I did however raise the question whether the alleged expense was "legitimate" as is recorded in the draft minutes. 3. As I understand the remainder of the allegation it is that I made this "allegation" "falsely" "with reckless indifference to the truth" and "without any evidence to support it". For you to find this charge proven it will therefore be necessary for you to find either that at the time I questioned the legitimacy of this expense I already knew it was legitimate, or at least that I had no reason to suspect otherwise. 4. You cannot find this charge proven against me simply because you are of the view that Mr Starr's expense was, as a matter of fact, legitimately claimed. I am not charged (and could not be charged) with raising a question about an expense that was later found to have bean legitimate. The charge against me is that I "made an accusation" without any basis for doing so. If you find that at the time I raised this matter al the AGM I had any evidence that would reasonably have caused me to question the legitimacy of this claimed expense you must dismiss this change. The evidence I had available to me 5. On 21 February 2001 Bruce Mellor wrote to Joe Kerr, Treasurer of the AIF, requesting that the AIF reimburse the Board for the $100 out of pocket expense claimed by Mr Starr, (see copy attached). 6. It was claimed in this letter that the expense had been incurred by Mr Starr when the taxi driver who transported Mr Starr and the President of the AIF home after the AT function on "Saturday 12 November 2000" had "requested an additional $100 because of the Presidents condition". 7. The only documentation supporting the claim was a voucher dated 12 November 2000 for $35 for a trip from the "City" to "Sans Souci". There was no documentation supporting the alleged payment of $100 (recorded as 2 separate amounts of $53 in the expense sheet). The AIF function was in fact on Saturday 11 November 2000 not on 12 November 2000 as recorded on the attached voucher. Further, the function was at Kingsford and not the "City" as recorded in the voucher. 8. Before the AGM I had also been advised of the following: i) Mr Starr had said at the director's meeting in January 2001 that he had paid this $100 by his American Express card; ii) Mr Starr had advised Mr Kerr that he did not have any further documents supporting this claimed expense (including any American Express records) (this was confirmed by Mr Mellor). iii) That the three other people in the taxi with Mr Starr that night (being Mr Cantrell, Mr Davies and Mr Stevenson) had no recollection of Mr Starr making any payment of this $100 to the taxi driver. iv) That Mr Freudenreich, who had assisted Mr Cantrell into the taxi had not seen Mr Starr be asked for or pay any additional money to the driver. v) That Mr Stevenson had stated that he and Mr Starr had not gone from the Club to Sans Souci but in fact gone on to Kings Cross. 9. By the date of the AGM I had already been given a copy of the statutory declaration from Mr Stevenson and had been advised by Mr Kerr that Mr Freudenreich was also willing to provide a statutory declaration, 10. Whether you believe Mr Starr legitimately incurred this expense or not is not the issue. The issue is whether you can honestly find that: i) given the lack of documentation to support Mr Starr's claim; ii) the fact that the documentation he did provide did not support his version of events; iii) the fact that Mr Stevenson had said that he and Mr Starr had gone to Kings Cross and not home as claimed by Mr Starr; and iv) the fact that all other persons in the taxi that night had had claimed not to have seen Mr Starr make this alleged payment, that I did not have reasonable basis for raising the question I did. 11. It is not to the point that Mr Starr has subsequently produced American Express receipts for this $106. He had not done so by the AGM and he said that there were no such records. As far as I knew as at that date he had no records to support his claim. The Second charge 12. The second charge also relies on the claim made in the first charge that I had no reasonable basis for raising the questions I did at the AGM. For that reason this charge ought to be dismissed for the same reason as the first charge. 13. The second charge also claims that I "incited the members of the AGM to disbelieve the Board on unrelated matters because of the Board's failure to "identify the alleged fraud perpetrated by Mr Starr". The draft minutes produced by Mr Mellor demonstrate that I did no such thing. 14. In conclusion, you must consider the evidence and decide whether I had no reasonable basis for raising the questions I did as is alleged in these charges. If you find that I had evidence available to me that suggested the expense may not have been legitimately claimed (whether you personally agree with that evidence or not) you must dismiss these charges. Gary Cheer 17 September 2001 14 According to the record of those proceedings kept by Mr Cheer, he said in his final statement on liability that the charges claimed that he had accused Starr of fraud, that this was incorrect because what he had done at the meeting was to question the methodology of the process of approving directors' expense claims and he did question whether the Starr claim was legitimate. He then said "the allegations by Mr Starr claim I carried out an allegation falsely with reckless indifference to the truth and without any evidence to support it". I repeat I made no allegation, I had all the evidence with me on the night of the AGM which means I did not make any claim falsely." 15 The tribunal found Mr Cheer guilty of both charges. The chairman said, "It (the tribunal) has concluded that you deliberately carried out all the acts as claimed". There were then some short submissions on penalty and the sentence was then imposed. 16 The Kerr disciplinary hearing took place on 8 October. Like that of Mr Cheer it was lengthy and seems to have taken place over five hours. The same procedure was generally followed in that the procedural outline was handed out, Mr Mellor read the charges, the president explained that the directors had not seen the charges until that evening and there was discussion, as there was with the Cheer proceedings, as to who was bringing the charge. Mr Starr tabled the same documents and then Mr Starr proceeded to examine Kerr. I will not set out the interchange as recorded by Mr Kerr, which I accept as being generally correct and which at the commencement shows that a significant part of the questioning was related to an earlier argument between Kerr and Starr about the 8th hole at the golf club and allegations about it. After these interchanges and some which had more relevance to the charges had been concluded, Mr Kerr presented his statement in written form and he was questioned by the members of the tribunal and by Mr Starr. Mr Kerr tried, without much success, to ask some questions of Mr Donnelly, who was a committee member and was also the treasurer of the Club. Mr Hart then gave some evidence for Mr Kerr, as did Mr Cheer. At the end, according to Mr Kerr, Mr Starr said "in summing up gentlemen, I have presented evidence that I have done nothing wrong in this matter. Mr Kerr fully supported Mr Cheer's allegations of fraud in that he presented a letter at the AGM". Mr Kerr's summary was as follows: "These charges are nonsense. You were all at the AGM and you heard what I said or didn't say. At no time did I mention Mr Starr's name and at no time did I state I had evidence. I merely indicated that I had a letter from the AIF. I wished the letter tabled for the committee to take whatever action it saw fit. I contend the line of questioning by Mr Starr, and this whole affair is not about cab fares. Indeed I think it's all about me believing him to be a liar in the reporting of the 8th hole project. Knowing I believe him to be a sneaky, vindictive person, he has not presented one scrap of evidence to support his charges against me. All I can ask is that you forget that I am against the master plan, that I am outspoken at committee meetings, that I frequently try to look after the interests of the members, and that I am not a yes man. Judge me on the evidence that has been put before you and I am sure you will dismiss these trumped up charges." The written statement which Mr Kerr put before the tribunal was as follows: JOE KERR DISCIPLINARY PROCEEDINGS First Charge 1. In so far as this charge claims that on 28 March 20011 "supported Mr Cheer when he alleged that Mr Starr had perpetrated a fraud on the club" it is entirely baseless. Mr Cheer did not make any such allegation. As the draft minutes of the meeting show Mr Cheer questioned the legitimacy of this claim and I asked to produce the letter which I had, in which the AIF had rejected this expense claim. 2. The letter I wrote (see copy attached) refusing Mr Starr's claim was written after I investigated the matter and was a proper response for the Treasurer of the AIF to make. Even if you do not agree with my decision that cannot possibly amount to conduct for which I could be disciplined. 3. The investigations I made after receiving Mr Starr's claim was to review the documents attached to the claim (which I did not corroborate the claim). I then asked both Mr Starr and Mr Mellor whether they had any further documents to support the claim (they said they did not). I found this very irregular as Mr Starr had previously claimed at a director's meeting in January 2001 that he had paid this expense with his American Express card. 4. I then contacted each person who was involved in the taxi ride in which this payment was supposed to have been made. 5. Mr Stevenson said he had no recollection of any such payment being made and signed a statutory declaration to that effect. Mr Cantrell and Mr Freudenreich said they had no recollection of any such payment being made and that they would sign statutory declarations if necessary. 6. Mr Davies, who was with Mr Starr that eight, said he did not recall Mr Stan paying the taxi driver the $100.00. Mr Davies said that he would not sign a statutory declaration as he did not want to be involved. Mr Davies said this prior to the ADM, whilst vacationing on the Murray River with Mr Kerr in March 2001. 7. I advised Mr Cheer of my investigations into Mr Starr's claim before the AGM. 8. To the extent it is necessary for me to demonstrate that I had legitimate reasons to reject Mr Starr's claim (which I do not accept it is) the above evidence more than demonstrates this. This baseless charge should be dismissed. The Second Charge 9. The second charge also relies on the claims made in the first charge that I had no reasonable basis for dismissing Mr Starr's claim. For that reason this charge ought to be dismissed for the same reason as the first charge. 10. The second charge also claims that I was somehow a part to "Inciting the members of the AGM to disbelieve the Board on unrelated matters because of the Board's failure to "identify the alleged fraud perpetrated by Mr Start". The draft minutes produced by Mr Mellor demonstrates that I did no such thing. 11. As Treasurer of the AIF I had the legitimate task of assessing the legitimacy of Mr Starr's claim. I did exactly that and these charges are nonsense and should be dismissed as such. Even if you do not agree with my treatment of Mr Stair's claims you must dismiss these charges unless you find: I) I was party to the actual allegation of fraud; and II) I had no grounds to suspect that the claim was not legitimate. 12. Given the results of my inquiries I do not believe you could honestly do that. Joe Kerr 17 September 2001 17 The members of the tribunal who were members of the committee all gave evidence and were cross-examined before me. A lot of this cross-examination went to their understanding of the charge. Mr Donnelly understood the charge against Cheer to mean that he had to be satisfied that Cheer had led the annual general meeting to believe that a misrepresentation or false claim had been made by Mr Starr and – later – that he had to be satisfied that the investigator had determined the claim to be legitimate. So far as the Kerr charge was concerned Mr Donnelly thought he had to be satisfied that Kerr had created a document which he had given to Cheer allowing him to support a claim of fraud against Starr and that the matters under "Mr Starr complains" and the charge had to be made out. 18 Mr Bagnall said that his understanding of the charge before the tribunal when it was being considered by the tribunal was that he had to be satisfied that the allegation of a fraudulent claim had been made, that it had a detrimental effect on the membership or comity in the Club, and that the expense claim was found to be valid. It is correct that he did also state that Mr Cheer had continued to tell members that his allegations were correct and it seems that he placed some reliance on this, although it was never part of the complaint. As far as the Kerr complaint was concerned, Mr Bagnall and, I think, others considered that as Mr Kerr was in attendance at a committee meeting in January when the expense claim was approved that this was significant and he had no basis to consider that it was bogus. 19 Mr Fox considered that all he had to do was to find that Mr Cheer had questioned the legitimacy of the expense claim. In relation to the Kerr claim Mr Fox thought it would be necessary to establish that Mr Kerr had written the letter rejecting the claim on behalf of the AIF and that the Starr claims were shown to be correct. 20 Mr Goerl considered that he only had to be satisfied that Mr Cheer had made the allegations to have the charge against him proved and that Mr Kerr had rejected the claim found to be legitimate to find the allegation against him proved. 21 Mr Mackie's evidence showed that he had reversed the onus and required both Cheer and Kerr to give a proper explanation of the allegations which they had made, which really appeared to be that they must prove the claim was not legitimate. General requirements for a hearing 22 Disciplinary proceedings before domestic tribunals should not necessarily be considered with the same strict approach as might apply to proceedings before a statutory administrative tribunal. What is required is that (a) the member of the club or other body against whom the charge is brought is given proper notice of the charge and details of the complaint or conduct complained of; (b) there is a proper opportunity to answer that complaint; (c) in the case of an oral hearing, the member answering the charge sees any written material presented and hears any oral evidence against him and has a opportunity of questioning the witnesses for the complainant and putting his own evidence before the tribunal and calling his own witnesses before the tribunal; (d) that there should be an opportunity to make submissions on the question of penalty after determination on the charges. 23 The arguments put forward by counsel for both the plaintiffs, Mr Cheer and Mr Kerr are (a) that the charges as framed do not comply with the basic requirement; (b) that there was no evidence to support the findings of guilt made; (c) that Mr Mackie was biased; (d) that extraneous material was considered by some of the tribunal first by relying on what took place at the committee meeting on 21 January, when one of the persons relying on it was not even present and secondly relying on subsequent conduct at least by Mr. Cheer. Finally, it is claimed that there was no power under Article 37 to award the penalty awarded as it was something less than total suspension, but something more than reprimand. Decision 24 The decision to which I have come makes it unnecessary to consider all of these matters, although I should say that the argument about non-availability of the penalty imposed, even if correct, would not, in my view, justify a setting aside of the decision of the tribunal, although a clear suspension would have been more desirable to avoid any question as to whether or not the person the subject of the penalty could exercise voting rights at meetings and the like. 25 It seems to me that the forms of charge against Mr Cheer are so ambiguous and uncertain that proceedings on them produce a denial of natural justice. The person responding would really not know whether or not the matters in the three paragraphs under "particulars" prior to the matters under the heading "Mr Starr complains" were the matters of improper conduct or unbecoming conduct which required answer, or whether the Starr complaints were a necessary component of the particulars of the conduct. The members of the tribunal quite clearly had different ideas about this. Quite clearly so far as Mr Cheer is concerned, he considered that if he made out a case that he had proper grounds for questioning the expenses at the time he did so, then the charges could not be made out. None of this goes to the factual question of the precise words which were said at the annual meeting, it being accepted that there was a certain challenge to the legitimacy of expense claims by staff. Whatever the position of the first charge, the second charge makes it clear that the Starr complaints under the first charge were, together with other complaints, the matters relied upon for the second charge of conduct prejudicial to the interests of the Club. There does not seem to be any basis or evidence relating to Particular 13(i), nor Particular 16. 26 To show the difficulties with the Cheer charges it is really only necessary to set out part of the evidence of Mr Bagnall commencing at page 59 of the transcript. I set out this only to show the problems not to the credit of Mr Bagnall or his evidence: Q. Is it fair to say that the only element you thought it was necessary to establish to determine the first charge against Mr Cheer was that he had as a matter of fact made an allegation of impropriety against Mr Starr? A. No. I believe there are other elements that needed to be looked at in determining that and satisfying the charge, but it was a key one, as I've said earlier. Q. What other elements? A. Elements in terms of the conduct in the way it was made, that he held the position of a director in making that allegation. That allegation also by its inference in the way it was done impugned that the directors of the board who approved that payment as an expense were also guilty of misconduct. It also read with the line of the questioning that had taken place at the Annual General Meeting that was raised there and there was an element that those allegations meant that this wasn't the only case and that it was a rampant affair that the directors, including Mr Starr, were ripping the club off for money. So that was the nature of the way the statement was and there were other elements of the conduct following on from that. Q. If you like, it was the fact he made the statement and also, if you like, the effect the statement would have had on people who would have heard it? A. That's correct and if - if you follow that line then you have to look at what evidence there was from that, the manner in which it was raised at that meeting, and following that there was a chance for the parties to see if, in effect, the allegation was true and a chance for people to submit whatever evidence they had. There was also at the tribunal an element for Mr Cheer to submit evidence of what he had submitted and he stated - and he did submit evidence at that tribunal and said what he had. So that was important in the review of whether that evidence, when you took it at that time, substantiated any sort of right of someone to make that sort of allegation and whether it was unfounded. Q. Is it fair to say your understanding of this charge had three elements: (1) is the allegation was made, (2) is the effect it had on the members and (3) is it was subsequently determined by an independent investigator that the charge be dismissed? A. Certainly those three are three that are there. There might have been others. I certainly wouldn't say those three aren't important in part of it. Q. Apart from those three I have just described, the allegation being made and the effect it has on the people hearing it and the fact there was an independent inquiry absolving Mr Starr - are there any other elements you considered in relation to the charge that were necessary to prove? A. I wouldn't characterise them as necessary to be proved, but were part of the elements that go to that sort of charge. Another one that goes to that was in terms of after the independent hearing that the auditor carried out to assess whether the - whether there was a substantiation, when that finding was handed down, there was no conduct or action by Mr Cheer that he would withdraw the allegation that he had made and specifically he wasn't prepared to, nor apologise now - not that they become fundamental in proving it, but they go to elements of how serious that allegation may be and the ability to continue to tell people in the membership that those allegations are true and keep them going within the club scheme. Q. They are matters or elements which you considered went to the guilt or otherwise of Mr Cheer to the first charge? A. Yes. Q. And they include, for instance, what you have said in paragraph 42 of your affidavit? A. It was a small element, yes. Q. Is it fair to say that you understood that element of the charge came from paragraph 11 of page 2 of the charge? A. It's an example or a statement that reflects part of that. It isn't necessarily a direct element of it but, yes, it is consistent with that form. Q. You understood that the charge described, if you like, the particular events that are said to give rise to the claim that Mr Cheer had been engaged in conduct unbecoming a member? A. I would have thought that the charges laid out in the very first sentence - and that's the charge that is: "That on 28 March and thereafter you engaged in conduct unbecoming a member," and that was the charge and the items below were specific, either examples or particulars of specified conduct that would go to prove that. So either one on their own or the whole lot or a series of them would be elements that the person who was laying the charge felt would go to prove that. Q. You considered, did you, that the first item (a) under the heading "Particulars" - you see the item Wednesday 28 March goes through and describes what happened? A. Yes. Q. Would you consider if you were satisfied of that element that would be sufficient to prove the charge, in your view? A. That may be, yes. Q. You did not consider it necessary in your interpretation of this charge for it to be established that each of the matters which appear between the headings "Particulars" and "Mr Starr complains" in fact took place? A. I looked at the particulars not only as those items but also the one numbered 1 through to 11, and I didn't believe you needed to prove all of those items. Certainly I didn't see that necessarily the first three items you have referred to in themselves either focused on the charges, being solely the charge, or the basis of where it goes. They are integral parts of it and they are more or less looking at the points 1 to 11 as the more specific elements within that that are the points. I wouldn't say I just focused on those three items such that's all I had to focus on. Q. My specific question was this: I think you said earlier you considered it was only necessary, as far as you understood the charge, to prove one of those items and it wasn't necessary to prove any more than one of those items, correct? A. It's possible that could have been a way you could have gone about doing it. … Q. Is it fair t o say that your understanding of this document is that it was sufficient for you to be satisfied as to conduct unbecoming a member if at least one of these matters that are referred to in this document has been established to your satisfaction? A. I am not sure if I looked to go through each one of those and say if I could prove one that that was the element. There may be things like, "Yes, it is proved, but it is trivial and therefore I wouldn't say the charge is found." Because some of them, I believe, have more need than others. So they certainly give some specific, you know items and some of them are, I would have said have more weight than others. But I did not go through a process at the time of trying to say, "This has got more weight than others," in the process. I looked at them as a whole and I tried to establish which ones were approved and which ones were not and then tried to make an overall view: Did that conduct as a whole in looking at all those "elements come to a view he was therefore engaged in conduct unbecoming a member? Q. Did the elements under the heading "Mr Starr Complains" have any different status in your mind when reading this document than the elements described above it? A. Yes. Q. Did you consider that it was necessary to establish some or any or none of the elements under the heading "Mr Starr Complains" for you to be able to make a finding of guilt? A. Yes. Q. You did consider it was necessary to determine some of those before you could make a finding of guilt? A. I think it was - my view was you needed to ensure that this sort of statements or elements in effect of the complaint had been satisfied and they were based on the construction of what the particulars are listed above, which tend to be more of a summary of a factual situation. Q. Is this your understanding then: that the first part of the document, if you like, under the heading "Particulars" is a summary form, but the specific acts which are relevant to the determination of the finding of guilt in the charge are those described under the heading "Mr Starr Complains"? A. I agree with your first part. They seem to be more factual in the first part. The second part is the areas of complaint of the complainant and they are how he sees those statements have affected him. Q. Did you consider it necessary before you could make a finding of guilt against Mr Cheer to determine as a matter of fact that some of those items under the heading "Mr Starr Complains" had been made out? OBJECTION. QUESTION ALLOWED. A. Yes. Q. Insofar as the portion above "Mr Starr Complains", that is, between the "Particulars" and "Mr Starr", did you think it was necessary to determine as a matter of fact all of those matters or none of those matters, or something in between? A. I'll take your last option. Q. Did you consider it was sufficient to make a finding of guilt if you found simply one of those matters between those two headings I have directed you to? A. No. Q. Did you think it was necessary to make a finding that more than one of those matters had been determined before you could make a finding of guilt, or don't you know? A. I think, your Honour, the difficulty I have is there are several words in those particulars where if you take the word "defrauding" that the same concept might come if that was expressed a different way, but that word, if you want to take a very strict view, was whether that had to be proved as opposed to did it give a view that in its interpretation and how the members would look at it there had been taking of money without authority. That may be seen as fraud or embezzlement, using the words as they are there, may not be strictly a higher test that you do. But in a sense you are trying to establish those facts in a general sense were there because they are the basis upon which the claim comes. So if they didn't exist at all then I accept your point that it makes them very hard to look at the complaints if you can't find that those things in a general sense were there. 27 I consider that the same result must be reached in respect of the charges against Mr Kerr. The members of the tribunal had no more certainty about the questions which they were required to decide to form an opinion of guilt or innocence than they did in respect of the charge against Mr Cheer. There was no basis on which the members of the tribunal could know what particular matter it was necessary to find proved to make out the charges, unless the only matters requiring proof were those in paragraphs 1, 2 and 3 under Particulars; not only that but if one only were sufficient the tribunal did not vote on separate matters of conduct. 28 Counsel for the Club argued that the matters which were put forward in the written material presented to the Board by Messrs Cheer and Kerr were matters in justification. In other words it was argued that they understood the charges related solely to the challenge to the expenses having been made and requiring the investigation to be held and that accepting that to be the position Messrs Cheer and Kerr had put forward their pleas in justification. I consider there is no force in that argument. It is quite clear that the written statements presented by Mr Cheer and Mr Kerr to the tribunal went to the question of guilt and not to the question of justification as described, or penalty. By including the statement "Mr Starr complains" before setting out allegations of conduct which caused hurt to Mr Starr I am of the view that the charges became so confused as to make it difficult, if not impossible to have a proper hearing or to make a proper answer to them. It is perfectly clear the tribunal members or some of them did not know whether the conduct of making the accusation was sufficient on its own to justify a finding or whether the causing of considerable time and expense and failure to produce corroborative evidence to the investigator was necessary to be found as well or furthermore whether it would have been sufficient on its own to justify a finding of conduct unbecoming a member. It was, I think, a reasonable interpretation on the part of Mr Cheer in respect of his charge, that he had no basis for questioning the legitimacy of the expense claim and that he had no reasonable basis to seek an investigation. It is certainly not clear that the tribunal took his interpretation of the charge into account. One of the things that the president of the tribunal took into account was a decision made at a committee meeting which he himself did not attend. 29 It is not necessary to go into the question of whether or not there was evidence to sustain the charge. To a large extent that argument must depend upon the plaintiffs' interpretation of the charges and their response to them. If that were not the position then it would be this Court going into the merits which is not its task on this matter. 30 I have come to the clear conclusion that the misleading and complicated nature the charges led to the disciplinary proceedings miscarrying. It is not necessary to categorize this as duplicity in the charges. It is more correct I think to categorize this as a denial of natural justice in causing confusion as to the offence charged or the conduct said to give rise to the offence charged. As I stated a number of times during the hearing, this has been a most unfortunate matter which would have been much better determined by mediation from the point of view of all parties, because my decision does not necessarily bring the matter to an end. I think the main difficulties have arisen because it does not seem to have been clear to anybody as to who was bringing the charge and which was necessary to prove to the charge. 31 The appropriate order in each case is that the decision of the tribunal be set aside and that the defendant pay the plaintiff's costs in each case. ********** Last Modified: 01/29/2003 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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