There being no further business this meeting closed 1.05 pm."
29 Despite the way the minutes are worded for a three-quarter meeting, Mr Glackin swore that the discussion lasted three hours and Mr Gabriel, that it lasted approximately an hour.
30 After the meeting, it was not Mr Rand, the club secretary/manager, who drew up the charges. The evidence was that there was a meeting attended between Messrs Rand, Menzies and Gabriel. There was some evidence that Gabriel was the man who drew up the initial version of the charges. Whether this be so or not, it is quite clear that all three were involved. The statement of charges was then sent to the plaintiff. It was received a day late, so that the seven days' notice required by the Articles was not given, but the plaintiff deliberately waived this point when the meeting was put back a day.
31 On 5 June, the meeting commenced at 9.10 am.
32 Minutes were produced, but the evidence shows that the minutes were quite inadequate, at least in so far as the recording of the voting on the question of "penalty". The minutes show that Mr Bell was asked to vacate the boardroom so that the issue of his citation could be discussed. He left, there was discussion as to procedure, and then he was asked to re-enter. The plaintiff says that he requested the board to disqualify itself and have an independent arbitrator determine the matter, to make available to him any documentation that it was relying upon, and that two of the directors sitting on the board were involved in the assertion that his conduct was prejudicial to the club. He says all these objections were overruled. Mr Menzies agrees that the first of these objections was made and that he overruled it. Mr Menzies also said: "I did not believe there was any conflict of interest in either I or any of the other directors conducting the citation meeting. As chairman of the board it is my responsibility to ensure that the interests of the club are protected, and it is my responsibility to ensure that the citation meetings are properly conducted. I do not allow my personal feelings to interfere with making a fair, honest and unbiased assessment of the evidence at a citation meeting. In the nine years that I have been on the board I have chaired more than 30 citation meetings, and attended many more as director. I have never had any allegations made against me that I have been biased or unfair when participating in a citation meeting."
33 It would appear that there are a very large number of disciplinary hearings before this board for members who are drunk or who break out into a fight. It would seem that there had not been many, if any, meetings in which the question was conduct of a director which was not appreciated by other members of the board.
34 Mr Gabriel said that "With the letter of 26 May 2003, John Bell was supplied with a copy of the letter written by Greg Rand, a copy of the statement of Harry Lake, a copy of the print-out from the general ledger, and a copy of the club's constitution. John Bell, as a director of the club, would also have a copy of all the minutes of the meetings. … John Bell did not at any time prior to or during the citation meeting ask for any witnesses to be present or to be made available for questioning."
35 There is no actual evidence that Mr Bell did receive a copy of the minutes of 23 May. These minutes were not annexed to the club's letter of charge on page 59 of the bundle. There is no evidence that the "evidence" given to that meeting by Annette and David Falconer was ever put to Mr Bell. It is true that Mr Bell made it quite clear that he considered that the board had already made up its mind on the questions and it was just a waste of time taking their hearing of 5 June seriously. However, he did ask that he be given a fair hearing which was summarily denied by the chairman. Each of the "charges" was discussed for a while. The plaintiff denied most of what was put to him. On one occasion the chairman asked "Did you pass the letter on to Shane Hill?" to which the plaintiff replied "Why don't you ask Shane Hill?" The chairman's riposte was "We will" though as far as can be seen, he never did.
36 At the end of the "hearing", the chairman said "Now John Bell do you have any questions about the proceeding?" The plaintiff said he wanted to know who Walker Herceg is, to which the chairman said that they were solicitors in Sydney and the documents were subject to "legal and professional privilege". In other words, the plaintiff was never shown the documents which his prosecutors had received, doubtless at the cost of the board, which had been considered by the alleged board meeting on 23 May.
37 The minutes then record that Mr Bell was asked to vacate the room which he did; there was then a vote on the seven charges. On the first five the board voted decision was guilty and the last two, not proven. The minutes do not record that the voting was by secret ballot or that there was a two-thirds majority, both of which are required by the Articles. There was some evidence given that a secret ballot was in fact held. The minutes then record that John Menzies asked John Bell what he would consider a fair suspension, to which the plaintiff made no comment.
38 The minutes then say "John Menzies asked for a secret ballot". On the expressio unius rule, this would tend to suggest there was no secret ballot on the question of guilt. The minutes then record:
"Once votes completed these were handed back to Secretary Manager for counting the vote count was (5) five votes. All for a period of suspension of six months."
39 The oral evidence, especially that of Mr Glackin, shows that this was quite wrong. There was more than one ballot taken and the opinions of various members of the board were ranging from expulsion to suspension for 12 months and suspension for six months until on a final ballot the necessary majority for a six month suspension was carried.
40 I should note here that it is not at all clear that the plaintiff was aware of all the material which the board was likely to take into consideration either on the question of whether the charges were made out or "penalty".
41 "Penalty" may well be an inappropriate word to employ as the purpose of the procedure under article 16 is purely protective.
42 As I said, shortly afterwards the present summons was filed.
43 It was agreed between the parties that there would be points of claim and points of defence filed. I personally would not have agreed to such an order because there is little advantage in doing so. A statement of claim and a statement of defence define the issues properly, require the parties to put their oaths to what they are saying, and there can be deemed admissions. With points of claim, one tends to get a series of statements, some of which will be pressed at the trial, and others not.
44 Paragraph 7 of the points of claim says "The suspension was invalid". There are then listed 20 particulars including a suggestion that each of the allegations was ambiguous and meaningless. The important particulars and the ones which occupied time at the hearing were:
"xiii. The defendant breached the rules of natural justice because the directors decided to suspend the plaintiff at the meeting of 23 May 2003.
xiv. The defendant breached the rules of natural justice because the directors failed to consider, evaluate and form an opinion about the suspension in an honest and unbiased way at the suspension hearing.
xv. The defendant breached the rules of natural justice because the directors failed to consider, evaluate and form an opinion about the suspension at the suspension hearing, unaffected by an ulterior, or extraneous motive.
xvi. The defendant breached the rules of natural justice because the directors determined that the plaintiff would be suspended before hearing the evidence.
xvii. The defendant breached the rules of natural justice because a statement of 'evidence' was not provided to the plaintiff before the hearing."
45 The reason why I was relaxed about allowing all the defendant's inadmissible material into evidence was that that material alone made it fairly clear that the plaintiff's case was made out.
46 Ms Pepper for the club said that when considering questions of natural justice in a bowling club, one must not apply the same strict criteria as one might when adjudicating whether there had been natural justice afforded to the propositus on a more serious occasion.
47 Ms Pepper cited to me the decision of Bryson J in Thomson v Earlwood-Bardwell Park RSL [1999] NSWSC 243, where at [17] his Honour said:
"The application of the requirement to observe natural justice in a particular case must be considered in view of the facts of the case, the events and their circumstances, and an appraisal must be made for the particular case of the fairness of the procedure actually followed. There is no established table of rules of fair procedure for this purpose, except for requirements which can be stated in outlines of the broadest kind. It is necessary to keep in view the nature of the tribunal, of the functions which it is exercising and of the interests which are affected by the outcome. Conclusions about what procedural fairness requires expressed in cases relating to decisions by statutory bodies in public administration, affecting entitlement to hold public office or valuable private rights, cannot be applied readily or directly to decisions relating to proceedings of a social or sporting club, which affect interests of a different kind, important in themselves but not of high economic value and not affecting a person's livelihood. Decisions in clubs are made by voluntary officers without a regular or established course of procedure; disciplinary questions do not arise often enough for there to be an established course of procedure or any high degree of expertise in dealing with them, and there is a marked contrast with the situation of decisions by salaried public officers and tribunals which have powers under public law and are regularly resorted to."
48 Bryson J then cited from Calvin v Carr [1979] 1 NSWLR 1, 12, the following extract:
"While flagrant cases of injustice, including corruption or bias, must always be firmly dealt with by the Courts, the tendency, in their Lordships' opinion, in matters of domestic disputes should be to leave these to be settled by the agreed methods without requiring the formalities of judicial processes to be introduced."
49 One would have thought all that was non-controversial but of no assistance in the instant case.
50 Although decisions about expulsion from a bowling club do not have the same consequences as, for instance, suspension of a professional jockey, courts are not to ignore the rights of members of bowling clubs to a fair hearing. As Wootten J said in McKinnon v Grogan [1974] 1 NSWLR 295, 298:
"I consider that citizens are entitled to look to the courts for the same assistance in resolving disputes about the conduct of sporting, political and social organizations as they can expect in relation to commercial institutions. If it is not forthcoming, a vast and growing sector of the lives of people in the affluent society will be legal no man's land, in which disputes are settled not in accordance with justice and the fulfilment of deliberately undertaken obligations, but by deceit, craftiness, arrogant disregard of rights and other means which poison the institutions in which they exist, and destroy trust between members."
51 There are many reasons why the decision of the board on 5 June was so flawed as to be unsustainable. I will put aside matters that might be called technicalities, but in other circumstances would lead to a declaration of invalidity, such as the failure to convene meetings properly, the failure to notify members of the board of special business to be dealt with at regular meetings in due time, the probable invalid election of Mr Glackin to the board and relatively minor matters of this nature.
52 The basal reasons why the decision was invalid was that the leading members of the board, the chairman and the deputy chairman, Messrs Menzies and Gabriel, had clearly made up their minds on the issue of fact many months before and had acted as prosecutors as well as judges.
53 As I have already said, Mr Menzies swore in his affidavit that when he was concerned after the EGM on 13 April 2003 that confidential documents had been leaked, he made enquiries, he was given answers by Mr Bell which he candidly said he did not believe. How is such a person to be able to perform a quasi judicial task in considering whether or not he believes the defendant at the so-called citation hearing of 5 June?
54 However the conceded evidence goes even further than this. Not content merely to bring the matter to the attention of the board on 24 April, Messrs Menzies and Gabriel under the supposed authority of a fairly general board resolution, go to see solicitors to see how to remove Mr Bell from the board, take legal advice, without any prior notice add matters to the end of the ordinary meeting, know three hours before that meeting starts that Mr Bell cannot participate, call evidence from staff of the club, formulate their views as to that evidence, not only as to whether it constituted an answerable case, but whether it was correct and proved the case against Mr Bell, sat down with the manager to formulate the charges and then over opposition presided at the hearing. A clearer case of a prosecutor sitting in judgment could not be imagined.
55 Mr Glackin also participated in some of the prosecution style activities. He, however, does not appear to be as trenchantly opposed to the plaintiff as the others. I have thus merely concentrated on the activities of the ringleaders Messrs Menzies and Gabriel.
56 In Ethell v Whalan [1971] 1 NSWLR 416, Hope J in this Court, made it very clear that the test to be applied to disqualify a person from bias is: "Could that person be reasonably or substantially suspected of bias so that he is in substance and in fact an accuser"; see p 428. As Hope J pointed out, this test has been of long standing, originating from the decision of Leeson v General Council of Medical Education and Registration (1889) 43 Ch D 366.
57 It is not necessary to go into other aspects of the case. However, I will briefly note some of the points in case there is a retrial before the board.
58 I wholeheartedly agree that the question of whether the charges are made out is one for the board and not for the Court. However, because of that it is necessary that the board be unbiased and provide a fair hearing which it has not done.
59 Secondly, there was a goodly amount of material to suggest that the documents which Mr Bell was supposed to have distributed were confidential board documents. The suggestion seemed to be that merely because a document was produced at a board meeting or a director got hold of the document because he was at a board meeting, it was therefore confidential. That is putting the proposition far too highly. It may be that certain boards have policies as to confidentiality. There is no evidence in the instant case that that was so with this board. There are many documents which by their very nature cry out that they are confidential. Prime examples are documents dealing with the value of property which the board is contemplating buying or selling. However, the majority of documents which come before a board are documents which members of the board may need to discuss with other persons in order to be fully informed or to gain members' views or otherwise.
60 There was then a charge of misleading the board. Whilst under the Corporations Act all directors must act honestly, a board is not a Parliament and the convention of the constitution which requires a member of Parliament who has wilfully misled Parliament to resign, does not apply to them. The conduct must be something that impugns on the person's unfitness to be a member. It is hard to see how breach of a duty as a director falls into this category.
61 It is said that it was impossible for Messrs Menzies and Gabriel to recuse, because had they done so, the board would be left without a quorum. This was not the reason given by Mr Menzies when asked to step aside, rather that he could not contemplate his impartiality being questioned. The solution would have been to have appointed a committee to find the facts or, as suggested by the plaintiff, had an independent arbitrator, so that even though the board may have had to make the final decision, there would be an unbiased fact finder.
62 There was some suggestion that the whole manoeuvre was a ploy by the majority to ensure that as a person suspended in the month of September, Mr Bell would not be able to stand again as a director. I am not convinced that this conspiracy theory has been established. However, it was reinforced by the extreme reluctance of the board to put any evidence before the court in a matter in the expedition list and to disobey the orders of the Court requiring its evidence to be filed within the agreed time.
63 I made an order at the end of the hearing that the suspension be declared invalid and the plaintiff should receive indemnity costs. When I said this, Ms Pepper as she was entitled to do, contested the point, but having heard her, I confirmed what I had said. As I have indicated above, on the defendant's own case, the suspension was unsupportable. Despite that, the matter was fought out to the very end. When court time is wasted like this, indemnity costs must follow.