Carmody v Roseville Golf Club Ltd

Texts Cited: D Lusty, Anonymous Accusers: An Historical & Comparative Analysis of Secret Witnesses in Criminal Trials (2002) 24 Syd Law Rev 361

Category: Principal judgment

Parties: Patrick Carmody (Plaintiff)
Roseville Golf Club Limited (Defendant)

Representation: Counsel: A E Hopkins (Plaintiff)
C O’Neill and J Charlton (Defendant)
Solicitors: Brander Smith McKnight (Plaintiff)
Wotton + Kearney (Defendant)

File Number(s): 2024/159462

Publication restriction: Nil

JUDGMENT

Summary

1. The plaintiff Mr Patrick Carmody joined the defendant, Roseville Golf Club Limited, in 2008. On 8 March 2024, an Appeals Committee constituted by three directors of the Club determined after a hearing that Mr Carmody was guilty of the charge of having engaged in conduct which was unbecoming of a member and expelled him from the Club.

2. By an amended summons filed on 18 October 2024, Mr Carmody challenges his expulsion, essentially on grounds alleging denial of natural justice, with the consequence that his expulsion should be declared void and of no effect. He also claims damages.

3. For the reasons which follow, the Court has determined that Mr Carmody was not denied natural justice and that the proceedings should be dismissed with costs.

4. Mr A E Hopkins of Counsel appeared for Mr Carmody. Mr C O’Neill of Counsel appeared with Mr J Charlton of Counsel for the Club.

Some introductory matters

5. There are several matters which can be dealt with by way of introduction.

6. First, two hearings were held. The first was a hearing of a disciplinary committee of the Club on 30 January 2024 in which Mr Carmody chose not to participate. He was found guilty of the charge and expelled. The second is the hearing which is the subject of these reasons, being a hearing of the Appeals Committee. As he originally framed his case, Mr Carmody challenged both hearings. However, the parties sensibly agreed that the Court need only consider the hearing before the Appeals Committee on the basis that if the Court upheld Mr Carmody’s challenge to that hearing, the Club would consent to orders declaring the first (disciplinary committee) hearing void. For this reason, only grounds 17 to 31 of the Amended Summons were pressed.

7. Second, the Appeals Committee was constituted differently to the disciplinary committee. Although called an Appeals Committee in the Club’s C****onstitution, the reference to an “appeal” is apt to mislead. This is considered further in [15] to [33] below in relation to the proper construction of the Constitution. In these reasons, I shall refer to what took place before the Appeals Committee as the hearing.

8. Third, each of the following gave evidence and was cross-examined: Mr Carmody; his support person at the hearing, Mr Noel Robertson; the Club’s General Manager, Mr Oliver Raggett; and directors of the Club Mr Paul Carey, Ms Nerida Campbell, Mr Brett Collins and Mr Nicholas Hartry (the last three of whom constituted the Appeals Committee). The evidence of the members of the Appeals Committee included explanations of how they had approached their task and the reasoning each had applied in coming to his or her decision. While there were differences in recollection, with one exception (see [42] below) nothing turns on them having regard to the grounds relied upon by Mr Carmody. I have formed the clear impression that each witness was doing his or her best to assist the Court and to recall events as best they could, irrespective of the effect of that evidence on the case of the party which had called them.

9. Fourth, it is important for any reader of this judgment to appreciate that the Court's task is not to conduct what lawyers call a "merits review". That means that this Court does not express any opinion about whether or not the hearing resulted in the "correct" decision. It is completely irrelevant to the Court’s present task whether or not I agree with the outcome of the hearing (as to the finding of guilt or the penalty) or would have reached the same conclusions as the Appeals Committee if I had been involved in the hearing.

10. The only issue with which this Court is concerned is to determine if Mr Carmody received a hearing that complied with the terms of the Constitution, including and insofar he was entitled to be afforded natural justice under the Constitution. This is because the Constitution (and By-Laws) evidence the terms of a contract between the Club and Mr Carmody. His cause of action is contractual and invites two questions: to what was Mr Carmody entitled on the proper construction of the Constitution in relation to the hearing and, as a matter of fact, was that entitlement fulfilled?

11. Fifth, and again without any reference to the merits of the allegations against Mr Carmody, my impression of each person who gave evidence before me and who played a role in the events which have given rise to these reasons (including Mr Carmody and his support person Mr Robertson) is that they acted appropriately in relation to the hearing. In particular, I have no doubt that the members of the Appeals Committee approached their task seriously, responsibly and with open minds, assisted by the preparatory work undertaken by Mr Carey and Mr Raggett. As is further developed in [123] to [134] below, the Court rejects any suggestion of any bias (apprehended or actual) on the part of the members of the Appeals Committee against Mr Carmody.

The Constitution and By-Laws

12. Among the general objects of the Club set out in the Constitution is Clause 4.1(e) “To establish and carry on a club for the use and benefit of its members and to afford to its members the usual privileges, advantages, conveniences and accommodation of a club”.

13. Clauses 11.1 and 11.2 of the Constitution of Club provide:

“11. Disciplinary Proceedings

11.1 Disciplinary decisions

If a member refuses or fails to comply with this constitution or the by-laws or is, in the opinion of the Board, guilty of any conduct prejudicial to the interests of the Club, conduct which is unbecoming of a member or which shall render the member unfit for membership then the Board may (subject to the natural justice procedure set out in rule 11.2):

(a) reprimand the member;

(b) suspend the member from all or any privileges of membership for such period as it considers fit;

(c) expel the member; or

(d) accept the resignation of the member.

11.2 Procedure

(a) The Club must give the member written notice of any charge against them under this rule 11 at least 14 days before the meeting at which the charge is to be heard. The notice must set out the facts, matters and circumstances giving rise to the charge.

(b) The member is entitled to attend the meeting to answer the charge or may answer the charge in writing and is entitled to call witnesses in their defence.

(c) If the member attends the meeting:

(i) After the Board has considered the evidence, it must come to a decision as to the member's guilt or innocence in relation to the charge.

(ii) If found guilty, member must be given an opportunity to address the Board in relation to the penalty appropriate to a charge, before the Board determines the penalty to be imposed.

(d) If the member fails to attend the meeting, the charge may be heard and dealt with and the Board may decide on the evidence before it, and determine any penalty, in the member's absence.

(e) Any decision of the Board at the meeting or any adjournment of it, is final and the Board is not required to give any reason.

(f) The Secretary or Senior Employee may assist the Board but must not vote.

(g) If a notice of charge is issued to a member under rule 11.2(a), the Board, the Secretary, or the Senior Employee, may immediately suspend that member from all or any privileges of the Club by giving written notice to the member, which may be included in the notice of charge. Any such suspension may be until the charge is determined or until the finalisation of any appeal as the case may require.

(h) The powers of the Board under this rule 11 may be exercised by a disciplinary committee of at least 3 Directors. A quorum of the disciplinary committee is 3 Directors.

(i) A member has the right to appeal any penalty, suspension or expulsion imposed for disciplinary matters by requesting such to the Secretary within 14 days of receiving notification of a disciplinary hearing.

(j) Appeals for such will be reviewed by an Appeals Committee whose composition will be determined by the Board. The Appeals Committee must not include any members of the Board associated with the disciplinary procedure for which the appeal relates.

(k) The Appeals Committee must convene a meeting and determine an appeal outcome within 30 days of receiving the request for an appeal.

(I) The Appeals Committee must notify the member with the outcome of the appeal meeting within 7 days of the determination of the appeal.

(m) A member appealing penalty, suspension or expulsion will be entitled to attend the Appeals Committee meeting in the same capacity as outlined in rule 11.2 (b).

(n) The Appeals Committee may determine an appeal in accordance with rule 11.2 (d), if the member fails to appear at the Appeals Committee meeting…”

14. The By-Laws of the Club include:

“9. COMPLAINTS BY MEMBERS

9.1 Any complaints by a member on any matters connected with the management or service of the Club, of the conduct of any employee of the Club, or the conduct of any other member or player, must be made to the General Manager.

9.2 No member shall complain to, or reprimand, any employee of the Club.”

The nature of the hearing and whether reasons were required

15. Because it involves considering the nature of the hearing, it is convenient to deal with an argument as to the construction of the Constitution before setting out the facts.

16. Ground 22 in the amended summons is that both as a matter of natural justice and on its proper construction, the Constitution required the Appeals Committee to give reasons. Mr Hopkins accepted that to succeed on this ground, the Court needed to be satisfied that cl 11.2(e) applied to the disciplinary committee hearing alone. He contended that it cannot be assumed the exemption from reasons applies equally to the hearing. Instead, the fact that the disciplinary committee hearing is specifically exempted from giving reasons while the Constitution is silent regarding the Appeals Committee was submitted to indicate the drafter turned their mind to the issue and chose not to excuse the Appeals Committee from an obligation to give reasons.

17. Such a reading was submitted to be consistent with the Appeals Committee providing a “review” in accordance with cl 11.2(j). Mr Hopkins accepted that by reason of cl 11.2(m), the procedure at the hearing was to be the same as at the disciplinary committee hearing. Even if it were characterised as a de novo hearing, Mr Hopkins submitted that the word “review” suggests there is to be some review of the original decision, while accepting that a “review” of the underlying decision is made difficult by there being no requirement for the disciplinary committee to give reasons.

18. Mr Hopkins further submitted that cl 11.2(l) should be read as requiring the reasons to form part of the “outcome” to be notified and that the task of the Appeals Committee was submitted to be a more fulsome one than that of the disciplinary committee. It was submitted that meaningful submissions as to penalty could not be made to the Appeals Committee as the final arbiter without understanding the reasons for a finding of guilt.

19. If it were found that the Constitution is silent on the question, it was submitted in the alternative that the authorities otherwise require a domestic tribunal to give reasons. Mr Hopkins further accepted there is no authority stating an incorporated association or sporting club is required to give reasons at common law. However, he submitted that just as the decision in Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 is authority for the proposition that a duty to give reasons could be implied from a statutory context, so could it be implied from the Constitution.

20. Mr O’Neill submitted that, as a matter of construction, the meeting referred to in cl 11.2(e) included a meeting of the Appeals Committee. In the alternative, Mr O’Neill submitted that if the Court was of the view that the Constitution is silent on the issue, then the Court should apply the decision of the High Court in Public Service Board of NSW v Osmond (1986) 159 CLR 656; [1986] HCA 7 that there is no general principle of natural justice or common law that requires reasons to be given.

21. For the reasons which follow, the Court has concluded that there was no obligation on the Appeals Committee to give reasons, whether expressly, by implication or as matter of the general law.

22. While the words of the Constitution are paramount, in my respectful view where there is room for doubt the rules of a private body such as a club should be interpreted with an eye to simplicity and practicality and against the background that courts in this country do not in engage in merits review of the decisions of domestic tribunals. This latter consideration points against the implication of an obligation to give reasons, because it is where the merits are in issue that there is an obvious case for reasons.

23. With the greatest of respect to the drafter, Clause 11.2 is not an example of clinical precision. Three examples will suffice. First, cl 11.2(e) says that the decision of the board at the disciplinary meeting is “final” without qualification. However, the existence of an express appeal right gainsays that reading. Second, cl 11.2(i) refers to the request for an appeal being made “within 14 days of receiving notification of a disciplinary hearing”. Read literally the provision makes no sense. It must be read as referring to being notified of the outcome of a disciplinary hearing. Third, the introductory words of cl 11.2(j) – “appeals for such will be reviewed” – require some explication.

24. Nevertheless, infelicitous drafting does not excuse the Court from construing the words of the clause.

25. From that starting point, it is clear that there is no express obligation on the Appeals Committee to give reasons, that is to say an obligation in terms. The next step is one of construction.

26. It is because of the plain words that the Court does not accept Mr O’Neill’s primary submission that the meeting referred to in cl 11.2(e) includes, as a matter of construction, a meeting of the Appeals Committee. Unsurprisingly, the overall structure of cl 11.2 is to proceed chronologically, beginning with notification to the member of the charge. Clause 11.2(e) comes at the point of the Board (itself or through a disciplinary committee) making its decision. In its terms, it is that “decision” which is referred to in the clause.

27. The other decisive matter against Mr O’Neill’s submission is that while that initial decision is expressly one of the “Board” (whether as such or by its powers being exercised by a disciplinary committee which must be constituted by at least three directors), the decision of the Appeals Committee is not one of the Board. The only express requirements for determining the membership of the Appeals Committee are that it be determined by the Board and that it must not include any members “associated with” the hearing the subject of the appeal. In other words, the Appeals Committee does not need to be constituted by directors of the Club (or perhaps even members) and could not be constituted by directors if all of them had been “associated with” the appealed decision.

28. Can an obligation to give reasons be implied? That inquiry must begin with the terms of cl 11.2 which deal with the Appeals Committee. The right of appeal is conferred by cl 11.2(i) and the task (“reviewed”) and composition of the Appeals Committee appears in cl 11.2(j). The next two sub-clauses deal with the convening, determination and notification of the outcome of the appeal meeting. The member’s rights at the appeal meeting are specified by reference to cl 11.2(b) and the Appeal Committee’s entitlement to proceed in the absence of the member are conferred by incorporating cl 11.2(b). None of these provisions bespeak by implication an obligation to give reasons.

29. More importantly, in my respectful opinion there are express indications to the contrary. The Appeals Committee has an obligation under cl 11.2(k) to “determine an appeal outcome” and then, under cl 11.2(l), to “notify the member with the outcome of the appeal within 7 days of the determination of the appeal”. The natural and ordinary meaning of “outcome” is “result”. That is the extent of what the Appeals Committee must do and it will be taken to have fulfilled its express duties by doing those things. These express provisions leave no room for the implication of an obligation to give reasons when all that is required is to determine and notify an “outcome”. The specification of 7 days is also inconsistent with an obligation to give reasons, being a relatively short period in which to produce reasons, but being sufficient to allow for deliberation after a hearing and to notify the member (including if the hearing was conducted in the member’s absence). Insofar as the Constitution may be characterised as a contract to which the principles of contractual implication apply, nor can it be said that the implication of an obligation to give reasons is necessary to give business efficacy or that it is so obvious that it goes without saying.

30. Nor do I accept the argument that the deliberate exclusion of the obligation to give reasons at the stage of the initial disciplinary hearing provides a logical basis to imply that the Appeals Committee had to give reasons. That conclusion is neither logical nor necessary. If an explanation is required for the express exclusion, it may be found in the fact that the appeal is a “review”, the natural and ordinary meaning of which is “to look at something again”. There was no real dispute that “review” meant the hearing was, in the language of lawyers, de novo. The exclusion of reasons is an obvious and sensible means of facilitating that by avoiding the potential distraction of reasons. Putting it another way, the Board’s reasons would be unnecessary for the matter to be looked at again.

31. There are four general considerations which I have also taken into account in finding against an implied obligation to give reasons by the Appeals Committee:

32. They are unnecessary where, as here, there can be no merits review;

33. A policy-based preference for practicality and simplicity in the administration of a club;

34. The absence of a requirement that any member of the Appeals Committee be legally qualified. Putting this more generally, the Club is a golf club. While many – but by no means all – lawyers play golf, there could be no certainty that any member of an Appeals Committee would be legally qualified. The preparation of reasons could be an onerous and time-consuming task that should not be lightly imposed on volunteers for whom the formulation of reasons may well be a very unfamiliar task;

35. The assurance for the member concerned is not that they receive reasons from the Appeals Committee, but that three people different to those who made the original decision have looked at the matter afresh.

36. Finally, turning to the general law, Campbelltown does not assist Mr Carmody. That case concerned a statutory regime where implication of an obligation on an Appeal Panel to give reasons were based upon this conclusion (at [117] per Basten JA; Handley and McColl JJA agreeing) about its functions: “Those functions might not constitute an exercise of judicial power for the purposes of the federal Constitution, but they are functions properly characterised as judicial in nature, for the purposes of determining their incidents.” On no view can the functions of the Appeals Committee be characterised as “judicial in nature”.

37. As to the general law, the applicable principle is set out in Osmond. Applying that principle, the Court concludes that as a matter of general law, including the principles of natural justice, there was no obligation under the Constitution for the Appeals Committee to give reasons.

The charge, particulars and evidence

34. The terms of the charge and particulars originally provided to Mr Carmody on 4 January 2024 were:

“Dear Pat

A written complaint from a member dated 30 December 2023 was received by the Club on the 2 January 2024. The complaint was about your behaviour in the Proshop on Thursday the 28 December 2023.

An investigation was commenced and some statements obtained, with investigations continuing. The allegations against you are serious and detailed below.

The original complaint and statements were presented to a scheduled Board meeting held on the 3 January 2024, for information and attention.

The Board determined the investigation should continue and that the matter proceed to a Disciplinary Hearing. The Board further determined you should be provided with the information at hand, the alleged circumstances and offered the opportunity to respond in accordance with the Constitution Disciplinary Process.

The Board further determined that given the serious nature of the allegations involving staff that there was an obligation to provide for a ‘safe working environment’ for those staff.

Given these serious allegations the Board determined that you should be suspended immediately until the investigation is concluded and a Disciplinary Committee hearing date set. Your attention is drawn the Disciplinary Process within the Club’s Constitution, a tentative date for the Disciplinary Hearing is the 19 January 2024 at 12:30pm.

The allegations against you are captured by;

Breaches of the Code of Conduct;

- conduct that may be prejudicial to the interests of the Club, unbecoming of a member, or which may render the member unfit for membership;

All players are expected to conduct themselves in a manner that:

- creates an environment and culture within the Club that is consistent with the Rules of Golf – 1.2 Standards of Player Conduct – by: acting with integrity, showing consideration to others, and taking good care of the course;

- does not misrepresent or denigrate the Club either in person or through the media, including social media;

- is free of discrimination or any form of harassing behaviour, including sexual harassment;

- promotes the Club as a family friendly environment by refraining from the use of profane or abusive language and unacceptable standards of behaviour;

-observes proper etiquette on and off the course and in the Clubhouse; and

- does not denigrate, talk down to, or abuse other members, guests, visitors, or employees…

An investigation is continuing and if any other relevant information comes to hand about these matters that will be provided to you.

Please provide a statement of facts and nominate any witnesses who may be able to assist with the investigation.

The Board determined that you should be suspended in accordance with the Disciplinary process until this matter is finalised/heard at the Disciplinary Committee hearing.”

35. In response to an inquiry from Mr Carmody as to the definition of “unbecoming”, a letter was sent by email to Mr Carmody on 22 January 2024 which stated, “The term “unbecoming conduct” means inappropriate, unseemly or unsatisfactory conduct as a member.”

36. The disciplinary committee ultimately met on 30 January 2024. Mr Carmody elected not to attend. He was informed of the adverse outcome and, through his solicitors, indicated that he intended to appeal.

37. Mr Carmody was provided with a “Notice of Disciplinary Charge and Hearing for Appeal Hearing” on 20 February 2024 which included the charge and particulars:

“Notice is hereby given pursuant to Rule 11 of the Constitution of Roseville Golf Club Limited (the Club) of the following charge against you:

CHARGE

That you engaged in conduct which is unbecoming of a member of the Club

PARTICULARS

On Thursday 28 December 2023, you spoke to an employee of the Club in a rude, offensive, intimidating and disrespectful manner whilst in the Pro Shop and this conduct was witnessed with disapproval by another member and employees of the Club.”

38. Attached to the Notice was an appendix containing what was described as “the complaint against you and witness statements”:

“Details of the Complaint – Written Member Complaint

Hi Oliver,

When I arrived into the Pro Shop on Thursday there was a disturbing scene whereby a member was loudly berating one of the staff regarding “the allowing of visitors before a certain time”.

The tirade continued for quite a long time and was both embarrassing and degrading.

I think this matter should be investigated as I have never seen or heard the like in my long golfing career.

Statements from Pro Shop Staff working Thursday the 28.1.24

Staff 1

Pat Carmody walks in and speaks very loudly in regard to having visitors play in an earlier time on Boxing Day.

Referring to “James Rayner’s group and also Board Member Pat McVean”

● He stated that some people have special privileges as he has been knocked back on occasions bringing visitors outside of restricted time. I Later(sic) showed him the current visitor booking rules on specific days and special days e.g. public holidays.

● The way he spoke to the staff in the shop while other members were in the shop was not acceptable, in a way we were bullied, intimidated and we were not respected, and we shouldn’t be spoken like that from any type of member.

● Knowing Pat for several years, I know his personality and the way he speaks. I took the situation professionally and calmly.

Staff 2

I was working alongside (Staff 3) when Mr Carmody came through the door in an agitated manner. Without acknowledging anyone in the Proshop nor saying hello, he approached (Staff 1) who I believe was talking to a member at the time and exclaimed “so guests can just book whenever they want now” he then continued to explain that there had been guests booked in an earlier timeslot where they were not allowed to book. He then urged Staff to talk to Oliver about the dilemma stating that it was ‘ridiculous’.

Staff 3

On Thursday 28/12/23, there was an incident involving one of our members Patrick Carmody.

During the busy period of registering players for the Thursday Comp approximately between 11.30am-12.00pm, Mr Carmody entered the Proshop and as I was serving fellow members at the Proshop counter, I immediately heard inappropriate language and behaviour specifically towards Staff 1 whilst he was with another member at the back of the Proshop. Instantly I could hear what was being yelled by Mr Carmody and it was in regard to member guest bookings.

The manner of Mr Carmody’s behaviour was quite intimidating and extremely unnecessary, there were roughly 8 people in the Proshop including Staff and Members and as a staff member I found this to be extremely inappropriate due to his use of swearing, yelling and the way he spoke about other members/board members of the club.”

39. I will refer to complaint and the witness statements together as the Club’s e****vidence.

40. In various documents, Mr Carmody provided his account of what occurred (Mr Carmody’s evidence). This is how it appeared in his submissions dated 8 March 2024 that Mr Carmody handed up at the hearing:

“…7. On 28 December 2023, the Appellant attended the Club’s Pro Shop. At this time, the Appellant had a conversation with Mr Min Cheng (Mr Cheng) in words to the effect of:

Patrick Carmody: Why were visitors allowed to play early in the morning on 26 December?

Min Cheng: I’m not sure but I can find out for you.

8. Approximately 5 minutes following the conversation between Mr Cheng and the Appellant, Mr Cheng proactively made further enquiries and informed the Appellant of the times in which visitors were permitted to play golf.

9. At no point during the above conversation did the Appellant engage in any rude, offensive, intimidating and/or disrespectful behaviour. During this time, there were approximately 2 to 3 other members in the Pro Shop. …”

The hearing

41. With one exception (which is resolved in the next paragraph), there is no real dispute about the overall conduct of the hearing, the material facts being:

42. The hearing occurred in the Committee Meeting Room at the Club;

43. It began at 4.10 pm on 8 March 2024 and finished at 5.05 pm;

44. Mr Carmody was present with his support person, Mr Robertson. The other participants in the hearing were the three members of the Appeals Committee: Ms Campbell, Mr Hartry and Mr Collins;

45. During the meeting Mr Robertson made handwritten notes, which he expanded within two days into typed notes;

46. The hearing was chaired by Ms Campbell, who followed a “run sheet”. She had prepared the run sheet based on a guide she had been given entitled “Guide to conducting an appeals hearing” and which specifically noted that Mr Carmody should be invited to address on penalty if he were found guilty of the charge. Ms Campbell included that step in her run sheet and the Court accepts that she followed that run sheet;

47. After being asked if he wished to call any witnesses, Mr Carmody said he would not;

48. The charge and particulars were read out in this form by Ms Campbell:

“Charge: That you engaged in conduct which is unbecoming of a member.

Particulars: On Thursday 28 December 2023, you spoke to an employee of the Club in a rude, offensive, intimidating, and disrespectful manner whilst in the Pro Shop and this conduct was witnessed with disapproval by other members and employees of the Club.”

8. Mr Carmody was then asked if he wished to plead guilty or not guilty to the charge. Mr Carmody pleaded not guilty;

9. Written representations sent to the Club by Mr Carmody’s solicitor dated 20 February 2024 were tabled and read, after which the members of the Appeals Committee resolved to proceed with the hearing;

10. The Club’s evidence was read out verbatim by Mr Collins;

11. Mr Carmody was asked to respond. He provided his submissions and made some brief verbal submissions by way of further refutation of the Club’s allegations of what had occurred. Mr Carmody was then asked to address on whether the charge had been made out, and he declined to do so;

12. Mr Carmody and Mr Robertson were then asked to leave the room so the Appeals Committee could deliberate;

13. Following their discussions, the Appeals Committee invited Mr Carmody and Mr Robertson back into the room and informed him he had been found guilty of the charge;

14. Mr Carmody was then invited to address on the disciplinary action that should follow and Mr Carmody declined to do so (as to this finding, see [42] below);

15. Mr Carmody and Mr Robertson were asked again to leave so the Appeals Committee could consider what disciplinary action should be taken; and

16. Following their discussions, the Appeals Committee invited Mr Carmody and Mr Robertson back into the room, where they informed Mr Carmody that the penalty to be imposed was expulsion.

17. There was only one factual matter relevantly in dispute as to what occurred at the hearing. That was whether, after the Appeals Committee informed Mr Carmody that he had been found guilty of the charge, he was given a further express opportunity to address on the question of penalty. The Court finds that he was, for these reasons:

18. Most importantly the Court accepts Ms Campbell’s evidence that she proceeded in accordance with the run sheet, into which Ms Campbell later interpolated what occurred in brackets to become the final transcript. That last mentioned document included:

“{Nick Hartry escorted Mr Carmody and Mr Robertson from the Club’s reception area to the meeting room*}.*

Mr Carmody, the Appeals Committee has determined that you are guilty of the Charge.

I will now invite you to address the Appeals Committee in respect to the disciplinary act, if any, that the Appeals Committee may take. The disciplinary actions available to the Appeals Committee are detailed in Clause 11.1 of the Club’s Constitution.

{Mr Carmody declined to make further comment***}***

Thank you, Mr Carmody. The Appeals Committee will now consider and make it(sic) decision in relation to the disciplinary action, if any, to be take. I will ask Mr Carmody and your support person to please leave the meeting room.” (Emphasis in original).

2. The evidence of the other members of the Appeals Committee was that Mr Carmody was given that separate opportunity;
3. The oral evidence of Mr Carmody’s support person, Mr Robertson, was that there was a two-stage process and they were asked to leave the room a second time so that the panel could consider the issue of penalty. However, Mr Robertson denied that Mr Carmody was expressly asked to address the Appeals Committee as to penalty (Tcpt, 4 August 2025, p 48(35)). I have taken into account that neither his handwritten notes nor his more fulsome typed notes refer to Mr Carmody being given a separate opportunity to address on penalty. However, the handwritten notes are, understandably, cryptic and fragmented, and do not even refer to the two-stage process. The typed notes, albeit produced within two days of the hearing, are nevertheless the product of memory based on the handwritten notes. I prefer as likely to be more reliable the guide, run sheet and final transcript (all of which refer to Mr Carmody being given the separate chance to address on penalty if found guilty of the charge) and Ms Campbell’s evidence that she followed the run sheet.
4. Insofar as Mr Carmody contended he had not been given a separate opportunity to address on penalty, the Court does not accept his evidence. That is not to say that the Court considers his evidence dishonest. It is unsurprising that his recollection may be faulty, given the undoubtedly stressful situation in which he found himself.

Legal principles

43. The legal principles were not in issue. I reproduce with gratitude Mr Hopkins’ helpful summary of those principles:

“9. It is trite that expulsion from an organisation such as the Defendant gives rise to a justiciable issue. To be valid, expulsion must be exercised in "strict compliance" with the rules of the Constitution: see Goodwin v Vietnam Veterans Motor Cycle Club Australia NSW Chapter Inc (2008) 72 NSWLR 224 per White J at [43] and Lowe v Australian Chinese Community Association of NSW (No 2) [2010] NSWSC 1375 per Slattery J at [36].

10. In Samuel v St George Leagues Club Ltd (NSWSC, 20 October 1992, Powell J, unreported), Powell J (as His Honour then was) set out the principles of law applicable to clubs, a passage cited in full and followed in Hornby v Narrandera Ex-Servicemen 's Club Ltd [2001] NSWSC 235 per Hamilton J at [8]:

I proceed upon the basis that the principles of law which are relevant to a case such as the present are as follows:

1. A club, such as the Defendant, may not suspend, or expel, a member unless a power to do so is contained in what might be called its 'constituent statute'.

2. Unless a deviation therefrom is sought, or assented to, by the member to be affected, the power to suspend, or expel, if it is to be validly exercised, must be exercised strictly in accordance with the procedures laid down in the club's 'constituent statute'.

3. Since the rights of a member of a club such as the Defendant are proprietary in nature, then, unless the 'constituent statute' expressly, or by necessary implication, provides to the contrary, the power to suspend, or expel, must be exercised in accordance with 'the rules of natural justice'.

4. Although the 'rules of natural justice' to be applied in any particular case depend upon the circumstances (see for example Russell v Duke of Norfolk [1949] 1 AER 109 at 118) what is required for the valid exercise of a quasi-judicial function, such as the exercise of a power to suspend, or expel, is judicial fairness (see Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 504).

4.[sic] In my view, the minimum requirements of judicial fairness are that:

(a) the accused person be fairly apprised of what is alleged against him (see Hall v NSW Trotting Club (1971) NSWLR 378; Calvin v Carr (1977) 2 NSWLR 308;

(b) the accused person must have a/air opportunity to bring forward material to correct or to controvert any allegation made against him;

(c) the accused person is entitled to have the tribunal before which he appears consider, evaluate and form an opinion on, what is put on each side in an honest and unbiased way and unaffected by any ulterior, or extraneous motive (see for example Barnes v Oliver (1970) 16 FLR 366; Stollery v The Greyhound Racing Control Board (1972) 128 CLR 509; Dale v New South Wales Trotting Club (1978) 1 NSWLR 551).

6. Depending upon the nature of the charge, and the potential consequences to the accused of an adverse finding, the accused may also be entitled:

(a) to be given detailed particulars of matter with which he has been charged;

(b) to be given, in advance of any hearing of the charge, a statement of 'evidence ' to be tendered to support the charge;

(c) to have the assistance of competent legal representation (see Petty Greyhound Race Association (1969) 1 QB 125; (1970) 1 QB 46; Enderby Town Football Club Ltd v Football Association (1971) Ch 591; McNab v Auburn Soccer Sports Club Ltd (1975) 1 NSWLR 547.

7. An accused person's right to an unbiased tribunal entitles him:

(a) except in cases of necessity', to have those who act as prosecutors not take part in the deliberations of the Tribunal (see Dickason v Edwards (1910) JO CLR 243; Australian Workers Union v Bowen (No 2) (supra)); and

(b) to have strangers excluded from taking part in the tribunal deliberations (see Macsween v Fraser (1956) 1 FLR 10; Steuart v Oliver (No 1) (1971) 19 FLR 99; Ethell v Whalan (1971) 1 NSWLR 416).

11. To similar effect, Campbell J (as His Honour then was) in McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470 at [74] and [82] said:

A power to expel from an incorporated club is one where the procedures laid down by the Club's constituent documents must be strictly complied with, if the expulsion is to be valid. Hamilton J has collected authorities in support of this proposition in Hornby v Narrandera Ex-Servicemen's Club Ltd [2001] NSWSC 235, at [8]-[10]. Before one can apply that principle in the present case, however, one needs to first construe the rules of the Club, to find what period of notice was required for this particular meeting.

Concerning private clubs, it has likewise long been recognised that rules of natural justice apply to the exercise of a power of expulsion: Wood v Woad [1874] LR 9 Ex 190 (expulsion/ram a ship owner's mutual insurance society); Fisher v Keane [1879] 11 Ch 353 (expulsion/ram a gentlemen's club).

12. In Kovacic v Australian Karting Association (Qld) Inc [2008] QSC 344 (Wilson J) at [19]:

Had the resolution been to impose a life ban in a disciplinary proceeding, then, subject to any express or implied exclusion of the rules of natural justice in the respondent's Constitution or the AKA Rules, the applicant would have been entitled to notice and to be heard before an unbiased tribunal. He would have had a good argument that the decision was affected by actual bias because of the participation of Mr Lane, the prosecutor, in the deliberations.

13. While it is not in dispute that it is not the role of the Court to conduct a merits review of such decisions, nor to substitute its own view, in addition to procedural fairness grounds it is open to the Court to set aside such decisions where the Court is satisfied that no reasonable person could have come to the conclusion that the tribunal came to: Dickason v Edwards (1910) 10 CLR 243 at 254 and 258; Paton v Sydney Press Club (1940) 57 WN (NSW) 57 at 58 ; Christie v Agricultural Societies Council of NSW Ltd [2015] NSWSC 1118 at [38] -[61]; Bromfield v New South Wales Gun Club [2019] NSWSC 430 at [92] -[95].

14. The application of the Wednesbury principle to decisions of domestic tribunals was confirmed by Kunc J in Christie v Agricultural Societies Council of NSW Ltd [2015] NSWSC 1118 at [38]. His Honour there concluded that the principle that a court will interfere in the decision of a domestic tribunal where no reasonable person could have reached the relevant decision, or no reasonable person could have honestly reached the relevant decision, was long ago enunciated by the High Court in Dickason v Edwards (1910) 10 CLR 243.

15. Similarly, the bias rule applies to such domestic tribunals. That is, where a fair-minded lay observer having knowledge of the circumstances leading to the decision, might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question at hand the rules of natural justice will have been breached: Ebner v Official Trustee in Bankruptcy (2006) 205 CLR 337; [2006] HCA 63 at [6]; Kirby v Dental Council of NSW [2020] NSWCA 91 at [64]

16.Specifically in the context of influence exerted over decision makers, Spigelman CJ said in McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 at [40]:

In such cases, the independent observer might reasonably believe that the influence on the others of the person(s) who manifested bias of that character could well go beyond the usual process of internal debate. Accordingly, an independent observer could reasonably conclude that the entire collegiate body may not bring an impartial mind to the decision-making process. However, the pre-judgment situation is not necessarily, indeed not usually, of that character.” (Emphasis added).

Grounds

Ground 17

44. Ground 17 was:

“The Plaintiff was denied natural justice because the “Notice of Disciplinary Charge and Hearing for Appeal hearing” of 20 February 2024 did not contain sufficient particulars of what the alleged “conduct which is unbecoming of a member of the Club” consisted of, with the result that the Plaintiff was denied the opportunity of understanding the case which he was required to meet.”

45. It was submitted by Mr Hopkins that cl 11.2(a) of the Constitution required the Notice to set out “the facts, matters and circumstances” from which the charge arises, which accords with the general principle that an accused person has to be fairly apprised of what is being alleged against them. It was submitted the Notice failed to comply with the standard set out in Samuel:

“[6] Depending upon the nature of the charge, and the potential consequences to the accused of an adverse finding, the accused may also be entitled:

(a) to be given detailed particulars of matter with which he has been charged.”

46. In support of the case at bar requiring detailed particulars, Mr Hopkins pointed to the Board members referring to the conduct as “serious”, that there was a suggestion of a potential referral to the police and the concerns regarding Mr Carmody’s actions being a breach of work, health and safety laws.

47. At a minimum, Mr Hopkins submitted Mr Carmody was entitled to particularisation of the actual conduct of which he was accused in order to mount a defence. Instead, the charge was simply a characterisation. It was submitted the entire process miscarried because the central focus of the hearing was not on identifying the actual conduct. The Appeals Committee failed to undertake any inquiry or make any factual findings.

48. Mr O’Neill submitted the particulars as provided informed Mr Carmody that he was alleged to have spoken in a rude, offensive, intimidating and disrespectful way to staff, which constituted conduct unbecoming. Conduct unbecoming was a broad and general term, and is not a high hurdle. The context specific nature of such a charge was highlighted and is the reason the Board is constituted by members. Private member clubs are entitled to set their own standards and enforce them. Any conduct the members deem to be unbecoming is sufficient, making the actual words spoken by Mr Carmody irrelevant to making out the charge in circumstances where the manner in which he conducted himself is sufficient. The particulars were adequate and when read with the Club’s evidence could not have left Mr Carmody in any doubt as to the case he had to meet.

Disposition

49. The Constitution speaks of disciplinary action being enlivened if “in the opinion of the Board” a member is guilty of “conduct which is unbecoming of a member” (my emphasis). Mr Carmody was informed that he had been charged with “conduct which is unbecoming of a member of the Club” by speaking to “an employee of the Club in a rude, offensive, intimidating and disrespectful manner”.

50. The particulars of the charge as provided to Mr Carmody clearly indicate the primary issue – the relevant conduct - was the manner in which Mr Carmody spoke, not what he said. In Mr Carmody’s evidence he gave an account of the “conversation” and said that “at no point during the above conversation did the Appellant engage in any rude, offensive, intimidating and/or disrespectful behaviour”. It is clear that Mr Carmody understood that how he spoke rather than what he actually said was the issue. Even words that in terms are benign can be spoken in a way that is rude, offensive or intimidating.

51. The Court finds that the particulars were adequate and further particulars were not required. This ground fails.

Ground 18

52. Ground 18 was:

“That the Plaintiff was denied natural justice with respect to the hearing of 8 March 2024, in that the “Notice of Disciplinary Charge and Hearing for Appeal hearing” of 20 February 2024 did not contain the identities of the alleged complainant or persons who had purportedly made statements, such that the Plaintiff was denied the opportunity to:

a. test that evidence

b. make appropriate submissions as to the credibility of such persons;

c. identify potential witnesses from whom the Plaintiff could obtain statements.”

53. There was some factual dispute about whether there were three or five staff members in the Pro Shop on the day in question. However, Mr Carmody’s oral evidence was that there were possibly five staff members in the Pro Shop at the time (Tcpt, 4 August 2025, p 17(18)). Mr Carmody’s affidavit dated 30 April 2024 stated:

“I observed approximately three (3) staff members present at the Pro Shop on the day of the conversation with Mr Cheng. I do not recall any other members being present at the Pro Shop.”

54. Mr Carmody was asked about the divergence in his evidence in cross- examination:

“Q. Yes, so is his Honour to understand now, having just heard that evidence that there could be five staff members?

A. There could have been five staff members, yes.

Q. So that paragraph there at paragraph 9 is not quite accurate. Is that fair?

A. Yeah, could be fair. Yeah. “Three staff members approached on the day.” Yeah that could be correct.”” (Tcpt, 4 August 2025, p 17(38))

55. Mr Raggett’s affidavit stated that there were three staff members in the Pro Shop at the time of the incident.

56. It was submitted for Mr Carmody that as only one of the statements was from the person who had the actual conversation with Mr Carmody, it would have been impossible for Mr Carmody to call witnesses who may have been there but did not provide statements without knowing the identity of the witnesses. Mr Hopkins submitted that even if Mr Carmody had called the staff, they could have denied providing a statement as only three of the alleged five staff members provided statements.

57. It was also submitted that the Appeals Committee appeared to be aware of the identities of the witnesses and complainant, and conclusions were drawn on the basis of those identities of which Mr Carmody was not appraised or able to test.

58. Mr Hopkins submitted it was irrelevant whether Mr Carmody could have worked out who the complainant and witnesses were, based on the charge, it should not have been a situation where Mr Carmody had to divine that for himself. The identity of the complainant was submitted to be particularly important. This person may have been known to Mr Carmody and it is possible there may have been answers Mr Carmody could have given as to why they had made the complaint.

59. The Club submitted that while Mr Carmody did not have the Club’s list of who had been contacted in the course of the Club’s investigation of the incident, Mr Carmody did have the Pro Shop tee off timesheet and could have obtained contact details through the member’s directory. It was further submitted that there were only three staff members in the Pro Shop and that Mr Carmody knew who each of them were. It was submitted regardless of their identities, all of the statements were consistent in that they were adverse to Mr Carmody and stated, at the least, that he had been rude to the staff. No other witnesses were present, which is evidenced by the extensive canvassing which failed to produce any further witnesses. This was known to Mr Carmody, who in a statement that he had provided included that a Mr Olivier was the only one who could remember anything from that day and also sent an email to Mr Raggett on 29 January 2024 which included:

“To my knowledge of the many phone calls made, the secretary manager and male club captain, the only member who could remember anything of me in the pro shop that day was Robert Olivier… all he could recall was a conversation about the golf carts.”

60. As such, it was submitted that short of cross-examining the witnesses and complainant, which he was not allowed to do under the Constitution, there was nothing Mr Carmody could have done further to ‘test their evidence’ or ‘identify potential witnesses’ for statements. It was submitted that there was no evidence testing to be done with respect to the witnesses because Mr Carmody never attacked their credibility or suggested they were lying. Mr Carmody did in fact telephone one of the witness staff members and spoke to them, so he could have called the other staff members too. No prejudice resulted from the information being withheld or from Mr Carmody failing to lead any evidence. He chose not to call Mr Olivier and did not proffer any explanation for not doing so.

61. Mr O’Neill submitted that the protection of the witnesses and complainant’s identities was a legitimate way for the investigation to have taken place. The judgment of Sackar J in Oei v The Australian Golf Club [2016] NSWSC 846 was relied upon for the proposition that without something more, protecting identities would not prevent a plaintiff such as Mr Carmody from presenting their position. Whether the plaintiff makes any attempt to ascertain them is also relevant. Furthermore, some negative impact upon a party’s ability to present their case must result.

62. Not being advised of the complainant and witnesses’ names did not adversely impact Mr Carmody’s ability to answer the charge. He failed to demonstrate what he could have done otherwise or how knowing the identities would have made a difference.

63. In response to being questioned about the impact of the witnesses being asked to provide statements as opposed to voluntarily providing them, Mr O’Neill submitted the content of the statements speak for themselves. If the true position had been they did not think the incident was a problem, that would have been reflected in the statements. However, all three statements indicated the conduct was rude and disrespectful.

64. It was also pointed out that Mr Carmody had called the Pro Shop to speak to a staff member about the incident prior to receiving the actual complaint, while he was on provisional suspension. This was submitted to refute any argument that Mr Carmody felt he could not call the staff or did not know who any of the witnesses were.

65. Mr Hopkins submitted in reply that it was not put to Mr Carmody that he could have used the information on the timesheet to contact those members by using the Club’s online interface and therefore could not be relied on. Mr Hopkins’ evidence from the bar table was his instructions were Mr Carmody’s rights and access were terminated upon his suspension. Mr Carmody did not have the handwritten list of members’ calls, he had requested it and was rebuffed. The fact that Mr Carmody did not call witnesses was then held by the Appeals Committee to be a factor weighing against him. Mr Hopkins submitted the test was that the Court would set aside the decision unless the Court was satisfied – which it could not be - that if Mr Carmody had the information, no different outcome could have eventuated and it was not material in any way, relying on Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54.

Disposition

66. To say that a person should always know the identity of their accuser may be rhetorically powerful but does not necessarily represent the law. This right of confrontation is undoubtedly an important principle of the criminal law: see D Lusty, Anonymous Accusers: An Historical & Comparative Analysis of Secret Witnesses in Criminal Trials (2002) 24 Syd Law Rev 361. However, in the case of a domestic tribunal, the question is whether that information is necessary to ensure someone in Mr Carmody’s position is afforded the natural justice to which they are contractually entitled.

67. Oei was also a case involving a member expelled from a golf club, where one of the witness statements was redacted. Sackar J said:

“[57] The Plaintiff complains in his submissions that the document was unsigned, undated, redacted and the person remained anonymous during the hearing. However, no particular disadvantage or indeed any was pointed to by the Plaintiff by reason of the form in which the evidence was provided to him. There is no suggestion that the particular identity of the person was of any moment and the Plaintiff on his own evidence does not appear to have made any attempt to identify precisely who the person was...

[88](h) It is then submitted that the redaction of material from the evidence from which the Club relied deprived the Plaintiff of an opportunity to know the case against him. I have already indicated above at [57], that seems to me to be a complaint without any substance. As noted by the Defendant in its submissions, there is no evidence that he or anyone on his behalf asked for access to any material that had been redacted. The redactions were on any view hardly material. These were after all eyewitness accounts. He accepted that he was at both competitions and he also accepted at the hearing that he had done what it was alleged he had done in July 2015, but was executing a drop. He asserted on 11 November 2015 he also in fact executed a drop. He had the materials for some weeks prior to 28 January (sent to him on 12 January 2016). He was specifically told in the notice of charge that at the hearing he would be given the opportunity to make any verbal or written submissions as appropriate and that he could call witnesses that he wished to call. At the hearing itself one of the witnesses Mr Cox did attend and the Plaintiff asked some questions of him. There is simply no credible suggestion in my view that the redactions could or indeed did lead to any unfairness at all. No prejudice was suggested as a result of the redactions. Again in my view there is no substance in this complaint.”

68. There is, with respect, an air of unreality about Mr Carmody’s complaint in this ground. I do not accept that Mr Carmody has demonstrated that he was put at any, or any relevant, disadvantage in being able fairly to meet the charge by not being informed of the identity of the complainant or the witnesses in the Notice or otherwise. For this reason, it is not necessary for the Court to make findings dealing with the various factual assertions made by the parties that I have set out relating to this ground. I emphasise that this conclusion does not mean that there cannot be cases where, for example, the nature of the allegation would mean that natural justice required the identity of the complainant or witnesses to be given to the accused person. This is not such a case.

69. These observations may be made:

70. Given that he had been provided with the three eyewitness accounts of staff, the identity of the complainant was irrelevant. The fact that some kind of an exchange had occurred between Mr Carmody and a staff member in the Pro Shop was not in dispute. Mr Carmody had been provided with the witness statements of the staff members.

71. It is clear from Mr Carmody’s evidence that he knew the identity of the staff member with whom he spoke (Mr Cheng) and that he (Mr Carmody) was able to give his version of what was said and how it was said in his submissions.

72. Being told the identity of the complainant and witnesses would not have assisted Mr Carmody to “test the evidence”. He did know the identity of Mr Cheng, who was the most important witness for the Club. More importantly, it was not suggested on his behalf that he had a right to cross-examine the witnesses (and he never applied to the Appeals Committee to do so).

73. Insofar as making “appropriate submissions as to the credibility of such persons” is concerned, Mr Carmody knew Mr Cheng’s identity. Mr Carmody’s submissions made no submission about Mr Cheng’s credibility beyond asserting the statements were false (for example, his submissions did not suggest some reason for animus against him (Mr Carmody) on the part of Mr Cheng). Furthermore, it is unrealistic to suggest that Mr Carmody did not know who the other staff members might be. Mr Carmody gave no evidence as to what credibility submissions he could have made against any staff member in the Pro Shop (irrespective of their identity).

74. Mr Robertson’s typed notes record that in response to the Club’s evidence Mr Carmody “politely told the panel that the statements were false and that the facts/information were incorrect. For example, there was no swearing, Pat McVeigh [sic] was not mentioned to Staff Member 1, there was no abuse of staff”. The final transcript of the hearing records that after Mr Carmody handed up his submissions, he made a “verbal statement refuting aspects of the witness statements including that: “he does not swear”, he did not use Pat McVean’s [sic] name, and that the Pro did not know and should have known the rules relating to visitors”.

75. No explanation was given as to how knowing the identity of the complainant and witnesses would have enabled Mr Carmody “to identify potential witnesses from whom [he] could obtain statements” (assuming those potential witnesses to be other than the complainant and the three staff witnesses whose statements were adverse to his interests). There was no dispute that Mr Carmody had been able to identify Mr Olivier as a potential witness, who had no recollection of any untoward incident. However, Mr Carmody did not provide a statement from Mr Olivier at the hearing and no explanation was offered to the Court as to why Mr Carmody had not done so.

76. This ground is not made out.

Ground 19

71. Ground 19 was:

“That the Plaintiff was denied natural justice with respect to the hearing of 8 March 2024 in that the Board who heard the charge failed to identify the evidence upon which they relied to find the Plaintiff guilty, therefore depriving the Plaintiff of being able to understand the findings against him.”

72. The parties did not really join issue on this ground. To my observation, this was because it was ambiguous.

73. Mr O’Neill’s submissions focussed on the outcome of the process. He submitted that there is no general principle of natural justice requiring reasons to be given and there was no specific requirement for the Appeals Committee to provide reasons. Because no reasons were required, there can be no requirement for the Appeals Committee to identify the evidence upon which they relied to find Mr Carmody guilty. As such, this ground was submitted to fail.

74. Mr Hopkins’ submissions for Mr Carmody focussed on the process itself, in particular on the extent to which the members of the Appeals Committee had in their possession, and relied upon, the contents of what was referred to as an information pack. The Court concludes from the evidence that Ms Collins and Mr Campbell had been given the information pack, but Mr Hartry had not.

75. Failing to advise Mr Carmody of exactly what was in the information pack and what was being considered was submitted to be a denial of procedural fairness. This was particularly so where the correspondence was in the information pack and was the basis of Mr Hartry concluding Mr Carmody displayed “aggressive conduct” and was considered in the deliberations of the Appeals Committee.

76. It was submitted a complete and accurate copy of the information pack could not be found in the evidence. Mr Hartry said he was not given an information pack and Mr Collins had put together what he thought was in the information pack, but had clearly included some documents that could not have been in it. It is unclear how it was said the version of the information pack provided by Ms Campbell was incomplete.

77. While it was accepted that Mr Carmody was the creator and recipient of the correspondence in the information pack, it was submitted that he was unaware that the Appeals Committee had the information and was considering it. As such, he could not address it.

Disposition

78. If the ground is to be read as a complaint about the end of the process, the Court accepts Mr O’Neill’s submissions because the Appeals Committee was not required to give reasons (see [21] above).

79. Turning to Mr Hopkins’ submissions, the dispute about the exact contents of the information pack does not need to be resolved because there was no real dispute about what might be described as its essential contents. The information pack was a chronology of events in relation to the complaint. Where correspondence was referred to, it attached the correspondence. That correspondence was between the Club (or its solicitors) and Mr Carmody (or his solicitors). I accept the Club’s analysis which suggests that the only things in the information pack which would have been unknown to Mr Carmody (unknown items) were a note of names of members contacted by the Club as part of its inquiry based on the tee off timesheet on the day in question, and an email from Mr Raggett to the Club’s board members reporting on the outcome of the disciplinary hearing.

80. Against that background, the Court rejects Mr Hopkins’ submissions for these reasons:

81. Mr Carmody must have known about the contents of the information pack except for the unknown items. Critically, none of the contents (including the unknown items) is relevant to the disposition of the complaint save to the extent they include the complaint and the witness statements (because the information pack includes the Notice);

82. Mr Carmody has not demonstrated any actual disadvantage by pointing to anything that he could or would have done differently had he also been given the information pack as such and been specifically aware that its contents were among the material being considered by the Appeals Committee;

83. The Court accepts the evidence of the members of the Appeals Committee that their decision was based on the Club’s evidence, the submissions (including Mr Carmody’s evidence) and whatever Mr Carmody said (or declined to say) in the hearing; and

84. Insofar as the reliance on Mr Hartry’s evidence is concerned, that evidence was not about anything in the information pack. It was Mr Hartry’s response to the submissions. Furthermore, the Court accepts Mr Hartry’s evidence that the threat of legal action in the submissions was not relevant to his decision to find the complaint against Mr Carmody proven:

HOPKINS

Q. Just picking up on that, if you go over the page to 79, you'll see there at 37 you say, "The appeal submissions also finished with the plaintiff indicating that he may commence legal action against the club. I remember feeling uneasy about this reference, but not intimidated".

A. Yep.

Q. So that, again, was something that in your view reflected negatively on Mr Carmody, correct?

A. Correct.

Q. That was something that you took into account when coming to a decision, correct?

A. No. The decision was really around the evidence as provided by the witnesses. You know, it did make me feel uneasy, but I think in reaching my decision I was focused on the evidence as provided through the witness statements.

HIS HONOUR: Mr Hopkins, you might need to be a bit clearer as to what decision you are referring to, because there were two.

HOPKINS: Yes, I apologise, your Honour.

HIS HONOUR: Or three, I suppose, if you take it step by step.

HOPKINS

Q. In coming to a decision about whether Mr Carmody was guilty of the alleged conduct or not, the fact that the appeal submissions contained what you saw as a threat to commence legal actions was something that you thought reflected negatively for the purposes of coming to that decision, didn't you?

A. No, I'd say no.

Q. Then the next line is, "The appeal submissions also did not appear remorseful"; do you see that?

A. Yes.

Q. I think I've asked you this before, but what I'm asking you about now is in coming to a decision about whether Mr Carmody was guilty or not, the fact that the appeal submissions had what you've termed an aggressive tone and did not appear to offer an apology was something that you thought reflected negatively on Mr Carmody, correct?

A. Yes. (Tcpt, 4 August 2025, p 62(44))

81. This ground fails irrespective of however it is understood.

Ground 20

82. Ground 20 was:

“That the decision of the Defendant of 8 March 2024, as communicated to the Plaintiff on 14 March 2024, and entitled “Outcome of Appeals Hearing” is infected by error in that the decision fails to make any relevant factual findings upon which the ultimate conclusion of guilt was based.”

83. It was accepted that Grounds 20 and 22 rose and fell together upon the Court’s interpretation of cl 11.2 of the Constitution (Tcpt, 5 August 2025, p 124(50)). The Court has concluded (see [21] above) that no reasons were required to be given. As such, this ground is not made out.

Ground 21

84. Ground 21 was:

“That the decision of the Defendant of 8 March 2024, as communicated to the Plaintiff on 14 March 2024, and entitled “Outcome of Appeals Hearing” is infected by error in that the outcome is legally unreasonable, both with respect to the finding of guilt and in the alternative the appropriate penalty.”

85. This ground was based on the Wednesbury unreasonableness test: Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223. It was submitted that on the evidence, there was no reasonable basis for the Appeals Committee to find Mr Carmody had done anything other than make enquiries about a topic which could not have constituted unbecoming conduct. The lack of particularisation and failure to indicate specifically what action was engaged in or words were said by Mr Carmody that constituted conduct unbecoming meant that no Appeals Committee properly instructed on the charge and evidence could have found Mr Carmody guilty. Further, the penalty was the most extreme one available and could not be justified, particularly on the evidence presented.

86. The Club submitted this ground should fail on the basis that the Court should not covertly conduct a merits review. The Appeals Committee’s reasoning was set out in their affidavits and their evidence given under cross-examination. The Appeals Committee carefully considered all the statements they had been provided. The conclusion to be drawn, it was submitted, was the Appeals Committee all agreed Mr Carmody had conducted himself in a manner that caused offence to staff members of the Club. It was submitted this was not indicative of the Appeals Committee acting unreasonably, particularly where they were required to form an opinion as to whether the conduct of Mr Carmody was unbecoming of a member of a private club. There was submitted to be sufficient evidence to make out the charge of conduct unbecoming, and a finding of guilt could not be unreasonable.

87. As to penalty, it was submitted that for this ground to be established, the Court would have to conclude that once Mr Carmody had been found guilty of conduct unbecoming, it was so unreasonable that no reasonable decision maker could have arrived at the decision to expel the member from the Club. With one exception, none of the Appeals Committee were asked in cross-examination about their process and reasoning regarding penalty. As such, no submissions can be made about their decision being unreasonable. The exception to this was Ms Campbell, who was asked whether the specific words used could have been relevant to the penalty. She accepted it could to a degree, however she stated:

“I took to heart very strongly the comments that were made about – from the employees, about how they were feeling, and it was more the delivery of Mr Carmody’s words to them that had caused them distress.” (Tcpt, 4 August 2025, p 107(26))

88. It was submitted she was entitled to consider the evidence in this way. That this hearing was not a merits review was again highlighted in relation to the penalty imposed by the Appeals Committee. Mr O’Neill submitted it was sufficient for the Appeals Committee to have turned their minds to the range of sanctions available to them.

Disposition

89. There was no dispute that the Wednesbury unreasonableness principle applies to domestic tribunals, as I set out in Christie v Agricultural Societies Council of NSW Ltd [2015] NSWSC 1118 at [38]:

“(1) The law in Australia is to be found in the decision of the High Court in Dickason v Edwards (1910) 10 CLR 243 (“Dickason”). It is that a court will interfere in the decision of a domestic tribunal where no reasonable person could have reached the relevant decision or no reasonable person could have honestly reached the relevant decision. If there is any difference in practice or principle between those two expressions of the test (which I doubt) it is not necessary to resolve that question in this case because the application of either in their terms gives the same result.

(2) The Wednesbury unreasonableness test is either identical to or completely consistent with the law as expounded in Dickason. It therefore may be applied to the decisions of domestic tribunals in Australia…

[46] It follows from this analysis of Dickason that the case stands for the proposition that the Court will not embark on a merits review but will interfere with a decision of a domestic tribunal if the Court is satisfied that no reasonable person could have come to the conclusion which the tribunal did.”

90. As to the adequacy of the particulars, this was considered at [44] to [51] above.

91. The complaint was directed to the manner in which Mr Carmody spoke to a staff member in the Pro Shop and how that made the staff member and other staff feel. The precise words he used were not part of the complaint and not necessary to be determined. The Appeals Committee had to decide whether it accepted Mr Carmody’s version of events or that of the complainant and, more pertinently, the three staff witnesses. On no view could it be said the Appeals Committee’s acceptance of the evidence in the witness statements in preference to Mr Carmody’s evidence was unreasonable.

92. Similarly, as to penalty, the Court finds that having regard to the witness statements and Mr Carmody’s denial of what occurred, and his apparent lack of remorse or apology, the penalty of expulsion is not Wednesbury unreasonable. Noting that one of the objects of the Club is “to afford to its members the usual privileges, advantages, conveniences and accommodation of a club”, the members of a private club such as the Club are entitled to determine what conduct is and is not acceptable on the part of their fellow members. Mr Carmody’s expulsion is not so unreasonable that no reasonable Appeals Committee could not have imposed that penalty.

93. This ground fails.

Ground 22

94. Ground 22 was:

“That the decision of the Defendant of 8 March 2024, as communicated to the Plaintiff on 14 March 2024, and entitled “Outcome of Appeals Hearing” is infected by error in that it provides inadequate reasons for the decision, and the requirements of natural justice, and cl 11.2 of the Defendant’s Constitution required reasons for the decision to be given.”

95. This ground has been addressed above at [15] to [33] and is not made out.

Ground 23

96. Ground 23 was:

“That the Plaintiff at the Appeal hearing of 8 March 2024 was denied procedural fairness in that contrary to cl 11.2 of the Defendant’s Constitution the Appeals Committee did not make a finding as to guilt before inviting the Plaintiff to make submissions as to appropriate penalty. As such the Plaintiff was denied the opportunity to make any submissions as to appropriate penalty, and the outcome was arrived at in breach of the rules of natural justice.”

97. This ground was said to have two bases: that Mr Carmody was denied the opportunity to make submissions as to penalty to the Appeals Committee, based upon his evidence of what occurred, and, even if his account is not believed, Mr Carmody was not able to make any meaningful submissions as to penalty due to the panel failing to provide an indication as to what was the conduct that they had found to establish his guilt. This latter failing was said to occur either by the drafting of the charge, or due to the absence of reasons.

Disposition

98. This ground fails for three reasons:

99. As a matter of fact, the Court has found Mr Carmody was told he had been found guilty before he was given a separate opportunity to address on penalty and that he had declined to take advantage of that opportunity (see [42] above);

100. Mr Carmody had been given adequate particulars of the alleged conduct which was the basis of the charge (see [44] to [51] above); and

101. The Appeals Committee was not required to give reasons before inviting Mr Carmody to address on penalty, or at all (see [15] to [33] above).

Ground 24

99. Ground 24 was:

“That the Plaintiff at the Appeal hearing of 8 March 2024 was denied procedural fairness in that he had a reasonable expectation that he would be entitled to be heard on the issue of any appropriate penalty following the establishment of guilt. This being a representation that, in addition to cl 11.2 of the Defendant’s Constitution, was conveyed to him by the “Notice of Disciplinary Chary and Hearing for Appeal hearing” of 20 February 2024. Contrary to that reasonable expectation the Appeals Committee did not make a finding as to guilt before inviting the Plaintiff to make submissions as to appropriate penalty. As such the Plaintiff was denied the opportunity to make any submissions as to appropriate penalty, thereby denying the Plaintiff procedural fairness.”

100. In his closing written submissions, it was accepted by Mr Carmody that Ground 24 was a slightly different reformulation of Ground 23 and would rise and fall with Ground 23. For the same reasons that Ground 23 has failed, Ground 24 is also not made out.

Ground 25

101. Ground 25 was:

“That the Plaintiff at the Appeal hearing of 8 March 2024 was denied procedural fairness in that the Appeals Committee considered statements that were different to those that had been served on the Plaintiff with the “Notice of Disciplinary Charge and Hearing for Appeal hearing” of 20 February 2024, and copies of those statements were never provided to the Plaintiff contrary to the requirements of natural justice.”

102. The primary submission on this ground was that the information pack was never given to Mr Carmody and the documents given to him were different to what was before the Appeals Committee. This denial of procedural fairness was said to be made more acute if the Court accepted the evidence of Mr Robertson based on his contemporaneous notes, that the wording of the charge and statements relied upon by the panel were different to that provided to Mr Carmody. It was submitted there was no reason not to accept the evidence of Mr Robertson, who was an honest and forthright witness.

103. The Club argued that both Mr Collins and Mr Hartry gave evidence that the statements read out in the hearing were the same as the ones they had received previously, and that Mr Carmody did not raise any complaint about inconsistencies at the hearing. Further, all of the statements were read out in the hearing, meaning Mr Carmody had adequate opportunity to comprehend the material and raise a complaint if desired. As such, it was submitted this ground should fail.

Disposition

104. The Court rejects Mr Carmody’s complaint in this ground for the following reasons.

105. The Court has already determined that failure to provide Mr Carmody with the information pack was not a breach of the requirements of natural justice (see [71] to [81] above).

106. The particulars provided to Mr Carmody in the Notice were:

“On Thursday 28 December 2023, you spoke to an employee of the Club in a rude, offensive, intimidating and disrespectful manner whilst in the Pro Shop and this conduct was witnessed with disapproval by another member and employees of the Club”. (Emphasis added)

107. What is recorded in the final transcript as having been said was:

“Particulars: On Thursday 28 December 2023, you spoke to an employee of the Club in a rude, offensive, intimidating, and disrespectful manner whilst in the Pro Shop and this conduct was witnessed with disapproval by other members and employees of the Club.” (Emphasis added).

108. This is not, in the Court’s opinion, a material difference given that the only evidence at the hearing of a member’s reaction was in the complainant’s complaint.

109. In relation to the witness statements, the Court accepts the evidence of Mr Collins and Mr Hartry that what was read out was not different to what they had been provided (which was the Notice). The information packs in evidence that were in the possession of Ms Campbell and Mr Collins each include the Notice which contained the complaint and witness statements. No other forms or versions of the statements were included.

110. The Court has also found (see [42(1) above) that the hearing was conducted in accordance with the run sheet, which includes:

“I will now ask Appeals Committee member Brett Collins to read the witness statements to Mr Carmody, which are attached to the Notice of Disciplinary Charge sent to Mr Carmody dated 20 February 2024 included as Annexure 1.

{Brett Collins (Appeals Committee member) read all four witness statements aloud – Member 1 and Staff 1, 2 and 3} (Italics in original)

111. This fortifies the Court in its conclusion that the witness statements read out were those annexed to the Notice.

112. Mr Robertson’s typed notes record:

“7. BC read the witness statements. These statements appeared to have been altered as they appeared to have some slightly different comments/statements than the earlier versions provided to PC when advised of the charge. No further copies of these statements or the complaint were offered to PC for his review.

8. Member complaint appeared to be more expansive referencing embarrassing, degrading and belligerent interchange that lasted quite a long time.

9. BC read the witness statements from staff, referring to them as staff 1, staff 2, and staff 3. The statements appeared to be different, with a little more detail than copies previously provided to PC.” (Emphasis added)

113. Mr Robertson’s evidence did not explain on what he basis he formed the impression (given his repeated use of “appear”) of the differences to which his note refers. That decisively reduces the weight which the Court can give his evidence. It is outweighed by the evidence of the Appeals Committee members, the guide, the run sheet and the final transcript, all of which the Court prefers.

114. Finally, the Court has taken into account that there is no suggestion that Mr Carmody drew to attention or made any complaint about any alleged differences between what he had been provided and what was read out. He is recorded by Mr Robertson as having “politely told the panel that the statements were false and the facts/information were incorrect”.

115. This ground fails.

Ground 26

116. Ground 26 was:

“That the conduct alleged by the “Notice of Disciplinary Charge and Hearing for Appeal hearing” of 20 February 2024 is incapable of satisfying the meaning of conduct unbecoming for the purposes of the Defendant’s Constitution.”

Disposition

117. The basis for this ground was again the alleged lack of adequate particulars of the charge. The Club submitted this complaint was one which went to the merits and therefore outside the scope of these proceedings.

118. This ground fails because:

119. The Court has found the charge was adequately particularised (see [44] to [51] above);

120. The Appeal Panel’s decision as to Mr Carmody’s guilt was not Wednesbury unreasonable (see especially [84] to [93] above); and

121. The Court accepts the Club’s submission that this ground invites an impermissible review of the merits.

Ground 27

119. Ground 27 was ultimately not pressed.

Ground 28

120. Ground 28 was:

“That the decision of the Defendant of 8 March 2024 was arrived at, contrary to the laws of natural justice and procedural fairness, by taking into account an “Investigation Report” and/or “Brief of Evidence” that was provided to the Appeals Committee members but never disclosed to the Plaintiff such that the Plaintiff was denied the opportunity to:

a. know and understand the findings of the said investigation;

b. test those findings; and

c. make appropriate submissions as to the investigation report”

Disposition

121. The following exchange occurred in relation to the investigation report:

“HIS HONOUR: What’s the evidence of something called an investigation report or something called a brief of evidence was in the pack?

HOPKINS: I think those references have been picked up from the disciplinary hearing. The short answer is nobody has put on evidence of how exactly the pack was given to them.

HIS HONOUR: I understand that, but is there, in what anyone asserts was the information pack, something called an investigation report or a brief of evidence?

HOPKINS: No, I think that’s what the first--

HIS HONOUR: That was the first time around.” (Tcpt, 5 August 2025, p 130(39)).

122. Where it was conceded there is no evidence that either document was in the information pack, this ground cannot succeed. Nor was there anything like such a document in the information pack. Such documents were apparently provided to the disciplinary committee. Insofar as this ground was, as Mr Hopkins described it, “really a different version of the complaint about the information pack” (Tcpt, 5 August 2025, p 130(10)), it fails for the reasons set out in [79] and [80] above. The Court also accepts the Club’s submissions that nothing turns on the title of the covering chronology and index being “Information Management”.

Ground 29

123. Ground 29 was:

“That the Plaintiff was denied procedural fairness by the Appeals Committee due to the fact that the Appeals Committee in determining whether the charge had been made out was biased in that the Appeals Committee took into account a consideration that “the Plaintiff did not acknowledge that there had been any inappropriate behaviour and did not appear to regret his conduct” and that “the Plaintiff [did not] feel any remorse for his actions” at a time where their task was to determine whether or not the charge was made out. In drawing adverse inferences against the Plaintiff as a result of his apparent lack of remorse or acknowledgement of guilt the Appeals Committee could not have brought a fair and unbiased mind to the hearing.”

124. It was submitted for Mr Carmody that actual bias can be demonstrated by the Appeals Committee in that before making a finding of Mr Carmody’s guilt, a view had been formed that he had something for which he should have been remorseful. This was said to be evidenced by the Appeals Committee’s affidavit and oral evidence. Mr Hopkins argued that because the Appeals Committee considered Mr Carmody should have been remorseful demonstrated that they were biased decision-makers. If the Court was not satisfied this was a case of actual bias, then in the alternative the Court should find it was a case of apprehended bias, referring to Ebner and Kirby.

125. The Club submitted actual bias is required to be found on the Briginshaw standard for Mr Carmody to succeed: Hall v New South Wales Trotting Club [1977] NSWLR 378 at 396 (per Mahoney JA). Australian Workers Union v Bowen (No 2) (1948) 77 CLR 601 at 630 and Gleeson v New South Wales Harness Racing Authority (1990) 21 ALD 515 at 521 were submitted to be authority for the proposition that apprehended bias is not sufficient to invalidate a decision unless in the limited circumstance where the decision maker may be characterised as the prosecutor. As none of the members of the Appeals Committee could be characterised as prosecutors, actual bias is necessary to be shown. The authorities also demonstrate that harsh words or comments made to or about an accused during the hearing are not, as a matter of course, indicative of bias (Hall at 396).

126. Mr O’Neill also contended that Mr Carmody’s apparent lack of regret and remorse was relevant to both the charge and the penalty and, as such, could not be an indicator of bias.

Disposition

127. This ground fails for three reasons.

128. The Court accepts Mr O’Neill’s submission set out [126] above. The Appeals Committee was confronted with diametrically opposed accounts of what had happened. It was part and parcel of Mr Carmody’s defence that he had not engaged in the conduct alleged and that therefore nothing occurred for which he should apologise or for which he should display remorse. It was therefore relevant to both stages of the Appeal Committee’s task and any acknowledgement of that contention by members of the Appeal Committee could not (without more) be evidence of bias, whether actual or apprehended. That is sufficient to dispose of this ground.

129. Furthermore, while I accept its tenor, I would not frame the proposition advanced in [125] without the qualification that generally apprehended bias is not sufficient to vitiate the decision of a domestic tribunal. The dispositive exposition of the principle is to be found in Maloney v National Coursing Association Ltd (1978) 1 NSWLR 161 at 170-171 where Glass JA (Hope and Hutley JJA agreeing) considered the authorities and concluded:

“The passages I have quoted from these various decisions furnish, in my view, adequate support for the proposition that the requirements of natural justice are in some respects different where domestic tribunals are concerned… 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, if necessary by expulsion. The committee members cannot, in the nature of things, divest themselves of the manifold predilections and prejudices resulting from past associations with members. Apprehension of bias could be generated in all kinds of ways. If it was a disqualifying consideration, the enforcement of the consensual rules would be largely unworkable. There may be some circumstances where a suspicion of bias would operate to disqualify a member of a domestic tribunal. But generally speaking it does not so operate and, in particular, it cannot operate with respect to tribunals such as that set up by Art. 10 in the articles of the defendant association.” (Emphasis added)

130. Article 10 of the association in that case was in similar terms to cl 11 of the Constitution. One of the circumstances giving rise to the necessary suspicion of bias (that is to say, a reasonable apprehension of bias) is whether the decisionmaker was also the prosecutor. The category of circumstances is not closed but is necessarily very fact specific. It would, however, not be lightly found given the circumstances which I have emphasised in the passage from Maloney in the preceding paragraph.

131. The applicability of the consideration identified by Glass JA is illustrated by this part of the submissions:

“28. In the current circumstances, both the [disciplinary hearing and the hearing] consist of decision makers who are actively engaged, involved and otherwise invested in the Club and there is a risk that such conduct endangers the impartiality which the process is expected to maintain.”

132. While it may be assumed that the members of the Appeals Committee “are actively engaged, involved and otherwise invested in the Club”, Mr Carmody has failed to prove any role or conduct of those members that would fall within the category of circumstances sufficient to prove a reasonable apprehension of bias on their part in the context of a domestic tribunal (or at all).

133. Third, the principles in relation to actual bias were set out in Collier v Country Women’s Association of New South Wales [2018] NSWCA 36 by Gleeson JA (referring to Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98):

“[27] In Reid v Commercial Club (Albury) Ltd, the following summary of principles was stated:

[68] A finding of actual bias is a grave matter. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required.

[69] Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the primary judge was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). See also Kirby J at [127].

[70] As Gleeson CJ and Gummow J observed in that case at [71]:

“The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion.”

[71] In the same case, Hayne J noted at [185] the several distinct elements underlying the assertion that a decision-maker has prejudged or will prejudge an issue, or the assertion that there is a real likelihood that a reasonable observer might reach that conclusion. The first is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. The second is the contention that the decision-maker will apply that opinion to the matter in issue. The third is the contention that a decision-maker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case.

[72] His Honour observed at [186] that allegations of actual bias through prejudgment often fail at the third step he had identified. This was because notwithstanding whatever expression of preconceived opinions by the decision-maker, it does not follow that the evidence will be disregarded.

[73] The test of actual bias in the form of prejudgment requires an assessment of the state of mind of the judge in question. However, actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real. As Finkelstein J said in Bilgin v Minister at 290:

“The wrong involved is the failure to decide a case impartially. Whether that failure was deliberate or not should be beside the point insofar as the validity of the decision is concerned.””

134. There is no evidence (cogent or otherwise) of anything on the part of the members of the Appeal Committee that would represent even a starting point for a finding as serious as actual bias on their part. I repeat my conclusion set out in [11] above.

Ground 30

135. Ground 30 was:

“That the Plaintiff was denied procedural fairness by the Appeals Committee due to the fact that the Appeals Committee, in determining whether the charge had been made out was biased, in that the Appeals Committee took into account adversely to the Plaintiff and without affording him an opportunity to respond to the same, the fact that the Plaintiff had reserved his position to commence legal proceedings as a result of the actions of the Defendant.”

136. It was submitted that Mr Carmody’s position of reserving the right to commence legal proceedings was a conventional one. However, the Appeals Committee:

137. Negatively viewed Mr Carmody as having approached the process “aggressively”;

138. Took into account that Mr Carmody’s legal position did not demonstrate remorse; and

139. Viewed this as indicating that Mr Carmody may continue to be a threat to staff.

140. As Mr Carmody was never appraised of these matters, he could not address the Appeals Committee on them. The oral evidence of Mr Harty was particularly relied upon, who said he considered Mr Carmody’s submissions to the Appeals Committee to be aggressive. The members of the Appeals Committee were again thereby submitted to have displayed “some level” of bias (Tcpt, 5 August 2025, p 133(46)).

141. The Club submitted that the ground failed as a matter of fact. Neither Ms Campbell nor Mr Collins gave evidence that they took into account Mr Carmody’s reservation of his rights. Neither was challenged on this point in cross-examination. Mr Hartry did not consider the reservation of rights in the way contended, but saw it as part of what he considered to be the aggressive tone of the submissions.

142. In reply, Mr Hopkins submitted this ground was not simply one of bias, but also a failure to afford Mr Carmody a chance to respond in breach of the requirements of natural justice.

Disposition

140. In rejecting this ground, I will consider it both as an allegation of bias and a failure to afford procedural fairness in breach of the requirement to give Mr Carmody natural justice.

141. The submissions conclude:

“For the reasons raised above, the Appeals Committee should withdraw the Charge, reinstate the Appellant’s membership at the Club and reimburse the Appellant for all related losses incurred to date including legal fees and fees for the period in which the Appellant was unable to use his annual membership at the Club.

The Appellant reserves all of their rights including the right to commence legal proceedings against the Club. Costs associated with such proceedings will be sought, together with any interest accrued.”

142. The starting point is that the Court accepts Mr O’Neill’s submissions that the ground is not made out on the facts. There is no evidence from two of the Appeals Committee members that they took the reservation of rights into consideration at all and they were not cross-examined on the point. As for Mr Hartry, the Court has already accepted (see [80(4)] above) that the reservation of the right to sue the Club was not relevant to his decision to find the complaint against Mr Carmody proven.

143. Next, as I understand it, the allegation of bias springs from the alleged failure to afford procedural fairness: the members of the Appeals Committee demonstrated bias by not telling Mr Carmody that they were taking an adverse view of Mr Carmody’s reservation of rights. Paragraphs [144] to [146] below will proceed on the assumption (contrary to the evidence and the Court’s finding) that the members of the Appeals Committee in fact did so and did not tell Mr Carmody.

144. I do not accept that would be conduct sufficiently serious to warrant a finding of actual bias. Nor does is it fall within the limited circumstances that would support a reasonable apprehension of bias (see [130] above).

145. Nor would such conduct constitute a breach of procedural fairness. It was de minimis. On this hypothesis, the Appeals Committee were taking into account something that he had put into his submissions. While a lawyer might see it as an unremarkable and conventional reservation of rights, to non-lawyers it would undoubtedly appear threatening. On a fair reading, it was intimidating. However, Mr Carmody has not suggested how he was prejudiced or what he would have done had he been told “we take an adverse view of you because of your reservation of your right to sue the Club”. The fact of these proceedings fortifies the Court in its conclusion that he would not have replied to the effect “I withdraw that sentence. I would never do such a thing”.

146. Finally, insofar as such conduct might relate to the Appeals Committee’s decision on penalty, it is of no avail to Mr Carmody because the Court has found that the Appeals Committee had no obligation to give reasons as to its guilty finding or as to penalty (see [21] above).

147. Accordingly, this ground is not made out.

Ground 31

148. Ground 31 was:

“That the Plaintiff at the Appeal hearing of 8 March 2024 was denied procedural fairness in that the Appeals Committee considered matters to which the Plaintiff did not have an opportunity to respond, including the Appeals Committee’s perception that the alleged conduct raised serious work health and safety risks to the Defendant.”

149. This ground complains that Mr Carmody was not informed that the Club’s obligations to the effect of having to provide a safe workplace for employees were being considered by the Appeals Committee and therefore could not address it. This was submitted to demonstrate an extraneous or ulterior motive on the part of the members of the Appeals Committee.

150. The Club first submitted that the ground was not made out on the evidence. That evidence was that the members of the Appeals Committee had made their decision based on their acceptance of the witness statements in preference to Mr Carmody’s evidence, and that in their view Mr Carmody’s conduct evidenced in the witness statements was unbecoming for the purposes of the Constitution.

151. Furthermore, while the obligation to afford natural justice required Mr Carmody to be given notice of the charge and particulars, it did not create a requirement for the Appeals Committee to expose every thought they had on a matter, particularly when reasons are not required to be given. There was no obligation to inform Mr Carmody that they had in their minds (if it be the case) the duties of directors, the Club’s legal responsibilities, or the way that as directors of the Club the members of the Appeals Committee may think about their duties in the context of making their decision. The evidence of Ms Campbell was the Club had a duty to protect their employees in the workplace and as a director of the Club, those duties were in the back of her mind. There was also no evidence that the possibility Mr Carmody’s actions may have breached the Club’s workplace safety obligations was considered by the Appeals Committee to be indicative of those actions being more egregious.

152. Nor had Mr Carmody demonstrated how he had been prejudiced. Had he been told of an alleged concern that his conduct as evidenced by the witness statements raised a serious risk (my emphasis) for the Club under the workplace safety laws (presumably of prosecution by the relevant authority or suit by an employee) he had not shown how he might have assuaged that concern.

Disposition

153. The Court accepts the Club’s submissions set out in [150] to [152] above.

154. Furthermore, the email sent to Mr Carmody on 4 January 2024 (see [34] above) included:

“The Board further determined that given the serious nature of the allegations involving staff that there was an obligation to provide for a ‘safe working environment’ for those staff.”

155. Mr Carmody was clearly on notice from the time he was first advised of the complaint that the Board considered his actions to raise workplace safety concerns. There was no legal requirement for the Appeals Committee specifically to identify to Mr Carmody that, as directors, such a concern was present in their minds.

156. This ground fails accordingly.

Orders

157. The orders of the Court are:

158. Amended summons dismissed;

159. Plaintiff to pay the defendant’s costs of the proceedings.

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