Dickason v Edwards [1910] HCA 7

Dickason v Edwards [1910] HCA 7 - HCA 1910 case summary — Zoe

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governing authorities were, first, what is called the District Meeting - which is a representative body composed of representa- tives of all the courts forming branches of the Order. This may be called the Parliament of the Order. Then there are the "District Executive" consisting of several officers of the Order, a committee called the * District Judicial Committee," whose functions appear in rule 28 to be to investigate charges or com- plaints made against members of the Order, and the " District Appeal Committee," which has appellate jurisdiction from the decisions of the District Judicial Committee. The principal officer of the Order is called the " District Chief Ranger." He is a member of all the committees appointed by the District, and head of the -District Executive. The rule which deals with the expulsion of members is rule 86, which provides as follows, so far as is material : - " Should any member be convicted of felony, larceny, or embezzlement, or adjudged by the Judicial Committee of his Court or by the District Judicial Committee, or District Appeal Committee guilty of any crime, offence or conduct caleu- lated to bring disgrace on the Order, he shall be expelled, and his name published in the half-yearly report of the District ; but such expulsion shall not be inserted until the time (thirty days) has expired for appealing to the District Appeal Committee." I shall have occasion, later, to refer to the rule more in detail, but that is sufficient for the present purpose. On 7th August 1908 a charge was preferred against the plaintiff by the District Secretary by direction of the District Executive, to the effect that the plaintiff had used various expressions which may be described as vulgar abuse with particular reference to the District Chief Ranger and some other members of the District Execu- tive. After setting out the language which was said to have been used the charge concluded thus: - "As such conduct is unbecoming of any respectable member of the Ancient Order of Foresters, Brother John E. A. Dickason is hereby charged under General Law 86 with conduct calculated to bring disgrace upon the Order." The matter was brought before the District Judicial Committee, and the District Chief Ranger was present and pre- sided as chairman during the hearing of the charge. His presence

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that it should appear that the parties intend that a person may sit although he is interested, that is to say, you must be able to collect from the contract itself an agreement either expressly or by necessary implication to that effect. The question there- fore resolves itself into an examination of this contract. For the respondents it is contended, first, that the District Chief Ranger was bound to sit and, secondly, that whether he was or was not bound to sit he was at liberty to sit. Rule 9 provides that "The District Chief Ranger shall preside at all Executive and District Meetings and Committees appointed by the district." I think that applies to the District Judicial Committee and the District Appeal Committee. Rule 28 applies expressly to the District Judicial Committee, which is to consist of fifteen repre- sentatives, and sub-rule (a) provides that "No member of the District Appeal Committee or District Executive shall act on the District Judicial Committee except the District Chief Ranger and District Secretary, who shall only act as chairman and secre- tary of such Committee, and have no vote, the casting vote of the chairman excepted." Sub-rule (b) provides for challenging members of the committee. The names are to be drawn out of a ballot box and each party is entitled to challenge three members. By sub-rule (h) the District Judicial Committee are required to submit a report in writing of any case investigated to the District Meeting immediately following the investigation, and are to have power "to call for all papers, books, documents, or other evidence they may consider necessary for a fair and impartial investigation." Rule 29 deals with the District Appeal Committee. That also consists of fifteen members, Each party is allowed to challenge three members. By sub-rule (c) the names of the witnesses proposed to be called are required to be given in writing to the "District Chief Ranger or Chairman of the Committee" at the time of the meeting. Sub-rule (d) provides that the District Appeal Committee shall submit reports in writing of cases investigated by them to the District Meeting immediately following such investigation, "and the decision of the District Meeting thereon shall be final." Sub-rule (e) pro- vides that "No member of the District Judicial Committee or

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District Executive shall act on the District Appeal Committee, except the District Chief Ranger and District Secretary, who shall only act as chairman and secretary of such Committee, and have no vote, the casting vote of the chairman excepted." Now as to the point that the District Chief Ranger must preside, I think that is negatived by two considerations. First of all, rule 29 (c) assumes that the chairman may be someone else than the District Chief Ranger ; and, secondly, the ordinary rule of com- mon sense which governs all matters of this sort must apply, namely, that if a body is composed of several persons and one of them is ill or for some other reason is absent, there is no reason why the other members of the body should not go on with the business and appoint a chairman pro hac vice. If he is not there the functions of the committee are not to cease. So that the District Chief Ranger is not bound to sit. Then may he sit? I think it is clear that inasmuch as the District Chief Ranger is a member of both these committees, and is head of the District Executive, and as a charge may be brought by the District Executive against a member, it was not intended that he should be disqualified merely by the fact that he is formally a party to a charge brought against a member. But, if he is not merely a formal party but is in substance an individual com- plaining of an offence against himself, then I think very different considerations apply. Then it becomes his own cause, not ina technical sense, but substantially. He is a person complaining of a grievance. Is he a person who ought to be allowed to try the alleged offender? I do not know whether it is material, but the charge was in fact presented to the District Appeal Committee by the District Secretary acting as the mouth-piece of the District Executive as a case in which the Appeal Committee had to decide between the District Chief Ranger and the plaintiff. It was put that if they did not find one guilty they had to find the other guilty. That seems in substance a lis between the District. Chief Ranger and the plaintiff. It is said the District Chief Ranger did not take any part in the proceedings. I am willing to give the fullest credit to that, but I do not think it is material. He was a member of the tribunal that tried the case; he was present when it was heard, and, applying the ordinary rules, I

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cannot sit on the committee, but, as far as I read the rules, there is nothing to prevent the District Chief Ranger if he is inter- ested from sitting thereon. There is power to challenge com- mitteemen, but there is no power to challenge the District Chief Ranger. The fact that a person other than the District Chief Ranger sat upon a tribunal of primary jurisdiction disqualifies him from sitting on the appellate tribunal. That is not the ease with regard to the District Chief Ranger. In all these respects care is taken in the rules to give him permission to sit notwith- standing that he may be inclined to bias from the part he has already taken. But there is no rule which goes so far as to prevent the application of that principle of common justice which prohibits a man from being judge in a cause in which he is personally interested. Now if the contention which is urged for the respondents be right, there would be nothing to prevent the District Chief Ranger from sitting in a case in which he was himself charged with conduct calculated to bring disgrace on the Order. The respondents' contention must carry them to that length. It seems to me that the proposition has only to be stated in that form to have its absurdity revealed. On the other hand, I think it is apparent that an indirect or trivial interest would not interfere with the power of the District Chief Ranger to sit. In other words, it appears to me the true rule is that mentioned in Allinson v. General Cowneil of Medical Education and Regis- tration (1), as laid down by Lord Esher M.R. No doubt the rule applicable to these domestic tribunals differs from that applied to public tribunals. The distinction is well known and has been admitted by counsel on both sides, but as applied to domestic tribunals it must at least involve this - in the words of Lord Esher M.R. - that there must be no reasonable or substantial ground for suspecting bias. He states the rule in these terms (2): - * The question of incapacity is to be one 'of substance and fact, and therefore it seems to me that the man's position must be such that in substance and fact he cannot be suspected. Not that any perversely-minded person cannot suspect him, but that he must bear such a relation to the matter that he cannot reason- ably be suspected of being biassed. I think that for the sake of

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Burton; Ex parte Young (1), by Collins J. as the leading case on this point, and he quoted that particular passage. It does not matter if the person who is alleged to be disqualitied is only present in a nominal capacity. That has been recognized from the earliest times, amongst others in Brookes v. Earl of Rivers (2) and R. v. London County Council; Ex parte Akkersdyk; Ex parte Fermenia (3). The principle then is plain that if a Judge is dis- qualified, he must not even be present during the hearing of the case. One disqualification is pecuniary interest. If that exists there is an end of the matter at once and the Court goes no further. Dimes v. Grand Junction Canal Co. (4) and Allinson v. General Council of Medical Education and Registration (5) are both distinct and express authorities upon that point. But there is another kind of disqualification and that is what I may term "incompatibility." If it is incompatible for the same man to be at once judge and occupy some other position which he really has in the case, then primd facie he must not act as a judge at all. That is a fundamental and essential principle of justice. Aliquis non debet esse judex in proprid causd, so it is put in Co. Litt. 141a, or, as it has been otherwise expressed, nemo debet esse judex et pars. There are two exceptions to this rule recognized by law. One is where a person is relieved from the operation of that rule by Statute, and the second is where there is a necessity for him to act. That principle of necessity is recognized by the House of Lords in Dimes v. Grand Junction Canal Co. (6) and in Ranger v. Great Western Railway Co. (7). Whether this incompatibility exists in any particular case depends upon the facts. There are two sets of cases typical of this particular objection; one set in which the Judge was held to be disqualified, and another in which he was not. Of the first set, an example is R. v. Milledge (8), where certain council- lors were also justices, and it was held by Cockburn C.J. and Mellor J. that they were disqualified. The Lord Chief Justice said (9): - "The mere fact that some of the council who passed

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resolutions for this prosecution were borough justices might have been no objection to the order, if these justices had not assisted at the hearing of the summons. But I cannot see how we can get over the fact of their presence when the order was made. They practically made an order in a case where they were prosecutors." So that the mere fact that they were officially connected with the body of prosecutors was not sufficient to disqualify, but actual participation in the matter which they had to decide did disqualify. Another instance is R. v. Gaisford (1). There the case of R. v. Milledge (2) was followed, the facts being substantially similar. Of the other set, Allinson v. General Council of Medical Education and Registration (3), is an example. In that case Dr. Philipson's position was chal- lenged, and Lord Esher M.R. said (4): - * Dr. Philipson had been a vice-president of the society, and by reason of his being a vice- president he was ex officio a member of the committee to which was entrusted the authority to complain of the conduct of any medical man and to take proceedings in relation to it. He was only ex officio a member of the committee; he never in fact acted as a member of the committee." That is the distinction taken by the Court of Appeal. So that the principle seems to me to be this - that, if the person whose presence is challenged can fairly be said to be biassed, either by reason of his necessary interest or by reason of some pre-determination he has arrived at in the course of the case, then he ought not to act unless there is something to relieve him from these disqualifications. Even in a public prosecution a party may waive the objection. One of the strongest examples of this is the ease of Wakefield Local Board of Health v. West Riding and Grimsby Railway Co. (5). There the Statute provided that the justices should be disinter- ested parties, but the words were held not necessarily to prevent waiv A distinction has been drawn between public judicial tribunals and private judicial tribunals, but I am not satisfied that that is a sound distinction. In Ranger v. Great Western Railway Co. (6), a distinction was drawn between judicial and

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words of Lord Brougham (1): - *I think, therefore, that there is no ground for considering that the position in which he was placed was a qwasi judicial position." There there was a con- tract by which the party had agreed to allow the engineer of the company to arrive at an opinion which would govern him, and it was pointed out that that was in the face of the know- ledge that the engineer represented the company. The House of Lords did not consider the engineer in the light of a judicial tribunal, but considered that there was a contract by which the plaintiff bound himself to submit to the determina- tion of the agent of the defendant. That distinction is also drawn in R. v. Howard (2), and the same point is referred to in R. v. Justices of Dublin (3). But in any event it is clear that in the case of a public tribunal the party affected may, if he has knowledge, waive the objection of disqualification. Now, if he can in the case of a public tribunal, of course he can in the case of a private contract. He can waive the objection by his own agreement. The question then becomes - did the plaintiff waive the objection in this instance, if the disqualification existed? That brings us to the consideration of the question of fact whether Gallant did occupy the position of accuser which disqualified him. It appears that the defendants put in evidence the minutes of a meeting of the District Executive of 4th August 1908, at which it was decided to lay the charge against the plaintiff. That minute shows that there were six persons present including Gallant; that Gallant stated that he had instructed the District Secretary to call the meeting to consider what action should be taken against the plaintiff; that Miller, a member of the Executive, gave his account of what had taken place in his presence, and that Gallant gave his account - practically his evidence - of what took place in his presence. The minute states that : - * Brother Gallant stated that as he left the hall after the meeting, one of the Sisters ran back to him and said : - ' For goodness sake, don't go down Swanston Street, as J. E.A.Dickason was waiting to give it him and Young." When

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near the south end of Swanston Street and not far from Flinders Lane, Brother J. E. A. Dickason spoke to him and he was very excited and threatened to give it to Young and would mark him. Brother Gallant said there was no doubt in his mind that J. E. A. Dickason intended to do grievous bodily harm to Brother Young if he met him." That was the evidence given by Gallant to the District Executive of which he was then a member and chairman; others of the Executive also gave evidence. The minute then states that Gallant rang up Young and advised that steps should be taken to have J. E. A. Dickason bound over to keep the peace and that the solicitor should be consulted with that object in view; that in consequence Young waited on Sir George Turner, who advised that a summons should be taken out and served on the plaintiff. So that on the evidence given by these gentlemen, in- cluding that of Gallant, the Executive was contemplating legal pro- ceedings against the plaintiff. Then a discussion took place at this meeting as to whether legal proceedings should be taken to punish the plaintiff. They decided however that it was inadvisable in the interests of the society to take legal proceedings, and a motion that this charge should be brought against the plantiff was carried unanimously. For myself I do not see how it is possible to doubt that Gallant had formed a predetermination about the conduct of the plaintiff, and as far as any man could be disqualified from acting as a judge he was disqualified by reason of that predetermination. Then Gallant, much to his credit I think, appears to have doubted whether he ought to sit upon the Judicial Committee or the Appeal Committee, and he bond fide got advice and bond fide acting on it he presided on those tribunals, The question is, was that sufficient to upset the proceedings? The only thing that could sustain the finding is some distinct and express or neces- sarily implied provision in the contract under which, despite the natural injustice which would otherwise exist, Gallant was allowed to sit. The rules have been referred to and have been very fully stated in all material parts by my learned brothers; but I would say this about them, that the rules set out, amongst other things, very convenient directions necessary in many con- ditions. By rule 9 the District Chief Ranger has his duties prescribed, and one of them is that he shall preside at all Execu-

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remains a member in accordance with these laws." That puts his position in clear, distinct and intelligible terms, and the ques- tion is whether the plaintiff can be deprived of his share in this society in this way - whether he can properly be got rid of, because expulsion causes him to cease to remain a member in the terms of that rule and, therefore, deprives him of his share, There is a fund accumulated by the voluntary subscriptions of members, and the plaintiff's right is, therefore, a proprietary interest; he is the holder of one share in that fund. It has been laid down by very high authority, and always acted upon so far as I know, that when there is a forfeiture the procednre to bring it about must, in order that the forfeiture may be valid, be strictly pursued. The leading authority on that point is Clarke vy. Hart (1). In that case Lord Chelmsford L.C. said (2): - " It is unnecessary to advert to the principles that forfeitures are strictissimi juris, and that parties who seek to enforce them must exactly pursue all that is necessary in order to enable them to exercise this strong power." Now looking at these rules I thoroughly agree with what counsel has said, viz., that it would be misleading to take one of these rules and construe it by itself and give effect to its words without reading that rule in conjunction with all the others. The respondents rely upon rule 86 which says, amongst other things, that any member who is adjudged by the District Judicial Committee or District Appeal Committee guilty of conduct calculated to bring disgrace on the Order "shall be expelled." They say that is all the rule requires, that the District Judicial Committee found the plaintift guilty, and that the rule is a self-exeeuting provision which at once and ipso fucto expels the plaintiff. Now the words "shall be expelled" may, as the learned Chief Justice has pointed out, mean that or they may mean "shall be liable to be expelled." In that liability I would say there may be included this, that it shall be the duty of the proper organ of the society to expel. But I am very strongly of opinion that it does not mean ipso fucto expulsion. The words are certainly capable of a different interpretation, and I see so many difficulties and incongruities from adopting that interpretation that, unless the (1) 6 H.LC,, 633, (2) 6 H.L.C., 633, at p. 650.

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in rule 86 if the member is ipso fucto expelled and you read that rule by itself, then the member cannot be readmitted " without the sanction of the Court in which he offended, and agreed to at a summoned meeting called for the purpose, also agreed to at the following District Meeting." In order to see what is the meaning of that you have to look at the other rules. No rule is better established than that where two meanings are possible you must take the more reasonable one. The most recent instance in which that is laid down is Attorney-General v. Till (1), where Lord Loreburn L.C. says: - " Where various interpretations of a section are admissible, it is a strong reason against adopting a particular interpretation if it shall appear that the result would be un- reasonable or oppressive." I think that it would be both here, and for this reason, amongst others, that where a member joins this society he sees amongst other things that not only has he a final right of appeal to the District Appeal Committee, but he also finds rule 29 (d), which provides that the District Appeal Committee shall submit reports in writing of cases investigated by them to the District Meeting immediately following such investigation. That is a mandatory provision and he has no control over it. But he is one of the members, and he has the right to insist upon that rule being carried out, and to insist on an adverse finding of the District Appeal Committee being sent on at once to the District Meeting. The rule goes on to say - "and the decision of the District Meeting thereon shall be final." I take it that the fair meaning of that is that a member is not to be considered to be finally expelled from the society and de- prived by forfeiture of his share until the District Appeal Commit- tee has performed its duty and the District Meeting has had the opportunity of considering the matter. That is the final act which completes the process by which he has agreed to be bound, and to which he has a right to look for his protection, That does not appear on the facts of this case to have been done. Whether in fact it was or was not done I do not know. I have only to look at the case as it comes here, and looking at it, there is no such allegation, I think the point is quite within the

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Judgment (89 paragraphs)