Supreme Court of Queensland|1999-03-24|Before: Chesterman J

The applicant apparently wished to prove that Mr McDonald had said something which might indicate his attitude to be that whenever the opportunity arose the respondent should treat the applicant severely. Some proof of this conversation might appear in an affidavit sworn by Mr Bolonogov but, the applicant did not include it in the material on which he relied and I have not read it. Mr McDonald was cross-examined about the conversation. I accept his evidence that in the course of a broad ranging conversation occupying several hours the applicant was discussed, but Mr McDonald said no more than the respondent had appropriate procedures to deal with complaints and that any complaint would be dealt with in the appropriate way. Mr McDonald expressly asserted that he had an open mind when chairing the committees and bore no animosity towards the applicant.

30 Although the applicant was disposed to argue with much of what Mr McDonald had to say he did not challenge this aspect of his evidence.

32 Mrs Hyne swore an affidavit in the proceedings in which she said that she acted "fairly and appropriately in my capacity as a member of the conduct and ethics committee and I did not, nor have I ever acted with any personal bias towards the applicant". Mrs Hyne was not cross-examined. The third member of the committee was not the subject of any comment.

33 I did not understand the applicant to argue that Mr McDonald (or any other member of the committee) was actually biased against him. The submission was that the earlier decision "then colours everybody for the next decision ... The procedure, in fact, that they found me guilty then influences the next decision ..." which is a description of apprehended bias arising from pre-judgment. This formulation of the applicant's point shows that it is without substance. Although apprehended bias is a ground for disqualifying a judge or a statutorily established tribunal it is not so in the case of private or domestic tribunals such as those established by the constitutions of voluntary associations. Actual bias must be proved in the case of such bodies before the court will set aside a decision. The rule is established by Maloney v. New South Wales National Coursing Association Ltd (1978) 1 NSWLR 161. The reason for it was explained by Glass JA at 170-1:

"... The requirements of natural justice are in some respects different where domestic tribunals are concerned. ... In the administration of justice by courts proper, and those acting in a similar capacity, public policy requires that there should be no doubt about the purity of that administration ... The rules being enforced have no consensual basis. The parties have not chosen the tribunal. The judges and those being judged are drawn from two groups of people so numerous and so placed in relation to each other that it is not only desirable, but also eminently feasible, to insist that the former should be purged of all bias towards the latter, whether real or apprehended. Domestic tribunals are usually established in circumstances which are radically different. The members, generally speaking, have agreed to abide by a set of rules and the authority of a committee to enforce them. ... The committee members cannot, in the nature of things, divest themselves of the manifold predilections and prejudices resulting from past associations with members ..."

34 I respectfully agree with the judgment of Thomas J in Re Maggacis [1994] 1 Qd R 59 that the authority of Maloney has not been diminished by the subsequent decision of the Court of Appeal, Dale v. New South Wales Trotting Club Limited (1978) 1 NSWLR 551. Dale merely affirmed that the decision of a domestic tribunal might be overturned where the decision-maker had been guilty of misconduct or impropriety in the course of the hearing or decision-making. It did not draw a distinction between apprehended bias in the constitution of a tribunal (which would be insufficient to quash its determination) and apprehension of bias in the conduct of the hearing itself (which would be sufficient to quash the result).

35 The applicant did argue that the sanction imposed was so severe that bias, in the sense of ill will, should be inferred in the committee members who imposed it. I discuss this question later.

36 Mrs Ellaway who was responsible for appointing the members of the committee took some trouble to select people who would approach the task impartially and who had no knowledge of, or involvement in, the events which were to be investigated. The number of people willing and eligible to serve was limited. To obtain a committee of three it was necessary to include Mr McDonald.

37 The applicant must be taken to have lost his right to object to the constitution of the committee when he declined to appear before it. He did not care who sat as members of the committee. He had determined to ignore it and challenge its jurisdiction should it take action against him. It is well established that the right to object to a tribunal on the ground of its apprehended bias will be lost if the objection is not taken promptly. It is not permissible to remain silent until the final judgment is known and then object if the judgment is adverse. See Vakauta v. Kelly [1989] HCA 44; (1989) 167 CLR 568 at 572. The principle is not restricted to objection on the ground of apprehended bias. It extends to actual misconduct by the tribunal during the course of the hearing. See Stathooles v. Mount Isa Mines Limited [1997] 2 Qd R 106.

38 The applicant's next point is that the respondent had no power to embark upon a hearing of the complaint or to take action against him arising out of it because of what he called double jeopardy. He submits his disqualification from the congress was punishment for any breach of the rules he may have committed. Having been dealt with once he was not amenable to a further disciplinary sanction from the committee.

39 This submission proceeds from a misunderstanding of the administrative nature of the tournament director's ruling and of the rule against double jeopardy. The applicant was, I think, attempting to argue that the committee was estopped from determining the complaint because the same issue had been effectively adjudicated by Mr Ward when he disqualified the applicant. "The policy of the law is to prevent any issue of fact or law in dispute between the parties from being determined in judicial proceedings more than once". Per McHugh JA in Cachia v. Isaacs (1985) 3 NSWLR 366 at 386. Although the principle is normally expressed with reference to judicial proceedings,

"the doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc"

Administration of Papua New Guinea v. Daera Guba (1973) 130 CLR 353 per Gibbs J at 453 who made it clear that issue estoppel cannot arise from a "mere administrative decision". It is not always clear whether the decision in question is of that character or is sufficiently "judicial" to give rise to the estoppel. See for example the division of opinion in Cachia. There can be no doubt that Mr Ward's action was purely administrative. He was not deciding a question arising between parties. No dispute in the nature of a suit was submitted for his decision. He acted on his own initiative. The essential requirements in Gibbs J's formulation are missing. Mr Ward's disqualification of the applicant was no different to a referee or umpire taking action against a player for misbehaviour. The football codes provide frequent examples of players being sent from the field and later dealt with by a duly convened committee. I am not aware of any case in which the referee's decision was held to estop the committee from proceeding to inquire, and where misconduct was proved, to discipline the player.

40 In any event there is not, in this case, a sufficient identity of subject matter between Mr Ward's decision to disqualify the applicant and the committee's determination to preclude him from participation in future tournaments. Mr Ward took action because the applicant persisted in recording his bids in a manner contrary to the rules. The committee's concern was that the applicant had refused to obey the direction of the director to whom responsibility for the orderly conduct of the tournament was committed.

41 The next point taken was that the committee's decision operates as an unreasonable and therefore unlawful restraint of trade. Although the applicant's material does not address this point he told me that it is possible to earn substantial sums from playing bridge. Wealthy devotees of the game pay very large sums to partner a skilful player and perhaps win a tournament. Mr Bornecrantz has never been the recipient of such an offer nor does he teach bridge which is another source of income. His earnings from prize money have been modest. In the twelve months prior to his suspension he earned only $129.00 nett after deduction of expenses. His particular ambition is to become a tournament director but there is no evidence that the applicant has in the past or is likely in the future to earn an income from that activity. It is to be observed that the committee's decision does not prevent the applicant from teaching or from directing. It precludes him only from participating in events organised by or on behalf of the respondent. The applicant does not show that the decision has any measurable impact on his ability to earn income.

42 The applicant made a number of submissions which can conveniently be dealt with together. In essence, they were that the respondent's rules, breach of which gave rise to the complaint, did not apply at the particular Congress or that, on their proper construction, the rules did not confer jurisdiction on the committee to hear the complaint against him. Part of the submission is that Mr Bornecrantz is not a member of the respondent and is therefore not amenable to the deliberations of the committee.

43 The short answer is that the Moreton-Bribie tournament was convened on the express basis that it was a red master point congress approved by the respondent and to which the respondent's rules applied. This is made clear from the evidence of the convener, Mr Davidson, and the tournament director, Mr Ward. It is confirmed by the entry form which the applicant himself exhibits to his material. The congress might have been organised on the basis that some only of the respondent's rules were to apply. I think the applicant is right that the rules allow that course. Mr Davidson did not do this. Mr Ward announced that the respondent's rules in their entirety would apply to the tournament and the applicant commenced to play on that basis. The applicant cannot now be heard to say that the convener might have arranged his tournament on the basis that some but not all of the respondent's rules should apply.

44 One of those rules was that the committee was empowered to conduct hearings "on reports of improper behaviour by players at ... an event conducted under the aegis of the [respondent]". It was pursuant to this rule that the committee met to consider Mr Ward's complaint.

45 There can be no doubt that the committee acted in accordance with the powers conferred on the respondent by its constitution. I have pointed out the nature of the powers conferred on the respondent to regulate and conduct bridge tournaments and do all things incidental or conducive to the attainment of that object. Enforcing compliance with its tournament rules and acting to sanction those who disregard the rule is within the respondent's power. Clause 13 of the constitution allowed the respondent to delegate the disciplinary function to the committee.

46 There is nothing in the argument that the committee could not determine the complaint because the applicant was not a member of the respondent. What the committee had under consideration was whether the applicant should be excluded from participation in bridge tournaments for which the respondent was responsible. Whether or not the applicant was a member of the respondent, it would, for obvious reasons, have been inappropriate to make a determination adverse to the applicant without affording him the right to argue against the exclusion. Neither the respondent nor the committee have purported to "punish" the applicant by reference to his status as a member. What the respondent did was to exercise his powers with respect to the conduct of bridge tournaments in a way which affected the applicant and which therefore obliged it to afford him procedural fairness. The respondent's capacity to act did not depend upon the applicant being one of its members.

47 The applicant's last point is that the committee's decision is so disproportionate to his transgression that it must indicate bad faith or some other miscarriage of the committee's function. It is no doubt right that where such disproportionality is established that the Court would infer that a tribunal must have misbehaved or misconceived its function and will set aside the determination. See for example Shepherd v. South Australian Amateur Football League Inc [1986] 44 SASR 579 at 585 and the cases there cited. This is merely an adjunct to the "wednesbury principle" by which if a decision is so unreasonable that no reasonable decision-maker could have made it, the decision itself supplies the grounds for impugning it as being unlawfully made. See the discussion in Aaronson & Franklin, op cit at p. 69.

48 The unreasonableness, or disproportionality, must be self-evident. The Court is reluctant to intervene in the affairs of a voluntary association whose members have joined on the basis that some of their number will be entrusted with the task of enforcing the rules which form the basis of their association. Where the object of the association is the furtherance a particular past-time those familiar with the past-time and the spirit in which it should be engaged are much better positioned than the Court to determine what, in a particular case, should be done to enforce compliance with the rules.

49 The sanction is not so extraordinary as to overcome that reluctance. Indeed it does not seem extraordinary at all. The occasion with which the committee was concerned was the second on which the applicant had refused to obey a tournament director and had disrupted a competition. The applicant's conduct was flagrant in the sense that he openly defied the authority of the director and challenged the applicability of the rules under which the director acted. A consequence of the applicant's disqualification was that the applicant's opponents could not be given a score that would be equitable as between them and the other players. The whole tournament was affected. The committee was entitled to view the matter seriously and to take steps which, in its view, would uphold the respondent's authority and preserve the integrity of future tournaments. I can see no valid criticism.

50 There is no substance in any of the points raised by the applicant. The application must be dismissed with the usual consequences.

CATCHWORDS: JUDICIAL REVIEW - application for prerogative order - application pursuant to Part 5 Judicial Review Act 1991 - whether applicant could rely upon insufficiency of notice arising from his "obstructive conduct" - whether the applicant could raise bias - waiver - whether issue estoppel could arise in relation to a decision of a domestic tribunal - whether the committee's decision was an unlawful restraint of trade - whether the committee acted in accordance with the constitution of the QBA - whether the sanction imposed by the committee was disproportionate.

Bornecrantz v Queensland Bridge Association Inc [1999] QSC 58 (24 March 1999)

28 A brief dictum in De Verteuil v. Knaggs [1918] AC 557 at 560-1 lends support to the view that administrative law, too, has a similar concept. The Privy Council suggested that in exceptional cases notice could be dispensed with. One example given was "obstructive conduct on the part of the person affected". In my opinion these considerations lead to the result that the applicant was not denied his right to be heard by a lack of notice of the committee meeting. He may not rely upon an insufficiency of notice because it came from his own "obstructive conduct".

Bornecrantz v Queensland Bridge Association Inc [1999] QSC 58

At a glance

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Judgment (26 paragraphs)

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Cases Cited (9)

Bornecrantz v Queensland Bridge Association Inc [1999] QSC 58 (24 March 1999)