PERIOD OF DISQUALIFICATION
1 YEAR 2 YEARS 3 YEARS (Please tick or cross).
OTHER PENALTY (Please insert).
42 On 1 April Mr Watt had sent Mr Sutton a copy of this document with a message which said:
"We still do not have your statements and submissions. Please provide same by Tuesday 6th April 1999 so that they can be circulated."
Mr Watt sent Mr Sutton a further message on 8 April asking for the statements by the following day.
"…..as it is proposed that the rest of the Inquiry will be dealt with by way of your written submissions."
Mr Watt also asked for a submission dealing with any matters relating to penalty in the event of the General Committee arriving at a finding of misconduct. On 9 April 1999 Mr Watt sent Mr Sutton's firm a letter by facsimile message further calling for evidence and submissions.
43 On 12 April 1999 Mr Sutton's firm responded by letter sent by facsimile message, the first response since 1 April. The letter protested against the procedure which had been followed. The letter asserted that Mr Sutton had been advised that the plaintiff would have the opportunity to question any witness who had submitted evidence, that Mr Sutton had said that he would be questioning adverse witnesses and would call a number of witnesses, and it was attributed to Mr Watt that he said that he expected that the plaintiff would need to call witnesses to give live evidence. Mr Sutton said:
"It now appears that the goal posts are being moved once again confirming the view we expressed to his Honour Mr Justice Young that the result of this Inquiry is already determined and that the whole procedure would be a traversty of the constitution and the rules of fairness.
We rely upon the procedure that was set by your own clients and which was made known to us at the inquiry. At this stage we do not wish to submit written statements. We require that we be given the opportunity promised us that we could question all adverse witnesses. We wish to do that before we, in effect, mount our own case. If you do not afford us this opportunity as promised you do so at your own peril."
44 The Executive Committee received responses from club delegates and other General Committee members and concluded from the responses that the General Committee had found the plaintiff guilty. On 13 April 1999 the Executive Committee issued a press release and informed club secretaries that the meeting set down for 13 April had been cancelled. The General Committee members were then asked to vote on a further written resolution which was in these terms:
"Having voted in writing to find the Boomerangs Club guilty of misconduct or conduct detrimental to the control, welfare or interest of the Group or of Rugby League football and that a period of disqualification of one year be imposed on the club it is resolved that the inquiry be now closed."
The Executive Committee later concluded from the responses
that that resolution had been carried.
45 The decision to disqualify the plaintiff is ineffective if it fails on grounds which fall into two different classes. One is non-compliance with steps which are necessary under the Group Constitution for an effective decision to disqualify. The other is non-compliance with the requirement that procedures must be followed in good faith and must be fair: that is, the requirement of natural justice. In my opinion it is a necessary implication in Clauses 47 and 48 that a club will not be disqualified as a disciplinary measure in any other way than in accordance with the procedure in Clauses 47 and 48, and also that any exercise of the power to impose disqualification will be carried out fairly and in good faith. These are conditions of the effectiveness of any disqualification.
46 The principal contention put to me by Mr Sutton was that when the whole course of the events from August 1998 until April 1999 is considered, it should be found that the outcome of the Inquiry was pre-determined, that there was no real possibility of consideration in good faith by the General Committee of the business under Clause 47 and Clause 48 and that the plaintiff was going to be disqualified come what may. In my view the facts should not be found in that way. One basis put forward for that conclusion was that the complaint itself was lacking in substance, and that there was not a reasonable basis for the view that the information put before the General Committee justified the conclusion that there was misconduct, or conduct detrimental as in Clause 47. The facts are to the contrary; it was well within the range of reasonable conclusions on the complaints in Exhibit B that the charge should be upheld. That being so, conduct which continued to further the complaints in the letter of charge through various unsuccessful procedural courses over earlier months does not ground the conclusion argued for. The conclusion which it tends to ground is that there was a genuine belief that there really was something to be considered and decided. Apart from the disciplinary resolution of 28 August 1998 none of the later resolutions had been effectual at all. None of the judicial decisions had established or dealt with whether there was or was not any substance in the matter of the charge.
47 It was contended on behalf of the plaintiff that inclusion in the particulars of events of 23 August 1998 which had been the subject of a disciplinary decision and penalty on 28 August 1998 showed that the proceedings were unfair. The ground referred to in Clause 48 on which disqualification may be imposed is misconduct or conduct detrimental to the control, welfare or interest of the Group or of Rugby League football, and the particulars referred to the cumulative effect of a series of events at three games, the first being that of 23 August 1998. The range of matters which could be found to be misconduct or conduct detrimental to the control, welfare or interest of the Group or of Rugby League football is very wide and is left by the Group constitution to the judgment of the General Committee. If the General Committee acts in good faith and fairly it can come to its own decision about the impact on the whole matter under consideration of the fact that part of the facts under consideration have already been the subject of disciplinary action; and on any other questions involved, including the responsibility to be attributed to the club for the behaviour of players, officers or supporters. The decision of 28 August 1998 included an indication of further action if there were any further incidents that season. Under the general law a previous conviction is excluded for policy reasons, although it is relevant. In my judgment bringing the events of 23 August 1998 under consideration again in the way indicated in the complaint is not an indication of lack of good faith or of unfair procedure.
48 Mr Sutton also contended that procedural unfairness was shown by the fact that earlier decisions of Group 19 bodies and the Boundary and Competition Committee on similar or the same facts had been found to be ineffective by Court decisions. As the Court decided, the earlier decisions based on those facts were ineffective, there is no reason for treating the earlier decisions as conclusive of the matters in the charge.
49 It was contended that by undertaking the inquiry the Group had shown a determination to circumvent the judgments of the Court. It must be said that this contention was entirely groundless, and there is no event which could be thought of as circumventing a Court decision.
50 It was contended that the proceedings were unfair in that the particulars were inadequate as they did not give enough indication of what was being inquired into. I do not accept this complaint; in the name of particulars the plaintiff was furnished with all the information which was proposed to be put before the General Committee, and, so far as the evidence shows, all the information which was put before the General Committee, apart from cross-examination by the defendant's solicitor of the referee Mr Higgins. The plaintiff was given more than particulars: it was given everything that was put before the General Committee.
51 Regard has to be kept steadily on the nature of the General Committee . Group 19 has a huge territory from Glen Innes to Walcha to Moree, and assembling a General Committee from nine different cities and towns involves a large number of people in lengthy journeys. It is difficult for meetings to be extended beyond a few hours.
52 A standard of procedural fairness must be understood to be inapplicable if as a matter of practicality it would prevent a decision from emerging. All parties are committed to be bound by decisions of the General Committee, and procedural short-comings which are inherent in the way the General Committee is constituted cannot be a ground for invalidating its decision.
53 Officers of the Group and delegates of clubs will in the nature of things have some involvement in the affairs on which the General Committee has to reach a conclusion. The General Committee and the officers were not disqualified from considering the charge and from exercising its powers under the Rules, and from conducting Group business by the fact that they had continued participation in and conduct of Group affairs. Unless someone carried them on they could not be carried on, and unless the Executive Committee thought there was something worthy of consideration, business would never receive consideration. There is no equation between a wish to have a disciplinary measure considered on the one hand and bad faith or bias on the other hand.
54 On the need for actual bias see Australian Workers' Union v Bowen (No 2) (1948) 77 CLR 601 per Dixon J at 628 and at 630-631. See too Maloney v NSW National Coursing Association [1978] 1 NSWLR 161 at 169-172 and Dale v New South Wales Trotting Club Limited [1978] 1 NSWLR 551 at 554 and 555.
55 Delegates attend the General Committee as delegates of clubs: they can be expected to express the feelings of their clubs and to act on them. Delegates of football clubs cannot be turned into discreet Elder Statesmen. On the Warialda motion on 29 March the Guyra and the Inverell delegates frankly did express the feelings of their clubs. Stating their clubs' attitudes was what they were there to do, and a standard of behaviour imposed by the Court would be unrealistic if it did not recognise that club delegates will speak openly in that way. What they do is not tested for lack of involvement: it is tested for lack of bias. If the fact that Guyra was not prepared to play unless the boundary was changed was a relevant thing to say in debate on the motion, it would have been wrong to keep quiet about it. It said nothing about the charges against the Moree Boomerangs and in my opinion it shows involvement but does not show bias.
56 The Executive initiated the complaint and the three members of the Executive participated in the deliberations to the General Committee. However they did not in my opinion take the part of the prosecutor, or of a witness; they did not originate any of the information on the nature of the complaint, and in view of the nature of the information furnished to them by complainants they could hardly have done otherwise than to bring the matter before the General Committee for its consideration, if they were functioning as an Executive in a proper way. These are not disqualifying circumstances.
57 A person who took the role of prosecutor, or a person who was shown actually to be biased against the plaintiff could not, consistently with a fair outcome, participate in its decisions; but there is no basis for a finding of actual bias against any of the delegates or officers, and the position of prosecutor was taken by the honorary solicitor Mr Watt. Standards which required that, for example, Executive Committee Members who took part in the decision to call a meeting of the General Committee or to put the charge before it were disqualified from participation, or which disqualified a delegate who had opposed what was in effect a closure motion and expressed the view of the club that he represented that they would not participate unless there was a certain outcome, impose a standard of purity which as a matter of practicality cannot be expected of a body of this kind.
58 For a Court, or a public authority or tribunal with a salaried staff, stricter standards would be expected. A voluntary association, largely composed of representatives of football clubs with a quite direct interest in the quality of participation of other clubs, cannot be required to conform to the standards imposed in public administration. Clubs have no real opportunities for ready substitution for persons who disqualify themselves, having regard for the considerations of time and distance and the voluntary nature of the Group.
59 The cross-examination of Mr Higgins, who was referee on 23 August 1998, demonstrates the limits of practicality. The cross-examination related very largely to the events of the game of 23 August, took almost two hours and terminated at 11.20 pm. That was a lot of attention for a game which lasted 31 minutes. In the world of practicalities the Court cannot expect that a committee of 28 persons from widely separated country districts would continue to reassemble itself from time to time for long enough to enable this kind of examination of each complainant the plaintiff chooses to cross-examine to take place. The events of 29 March demonstrate the impracticability of allowing cross-examination of all persons furnishing information which the General Committee was to consider.
60 As a general proposition, domestic tribunals are not required to allow cross-examination, and I was not referred to any particular circumstances of this case which make that general approach inapplicable; this is not for example a case which could turn on a detailed consideration of the credibility of a small number of participants in an event. After particulars had been given in the full form in Exhibit B, the requirements of fair procedure included giving the plaintiff an opportunity to put before the General Committee any factual information which it wished the Committee to consider; they did not extend to allowing cross-examination or a confrontation with all informants, or indeed with any informants. The conversations between Mr Watt and Mr Sutton after the meeting of 29 March and on 1 April, the exact details of which were disputed, whatever else was said, kept before Mr Sutton and the plaintiff the opportunity to bring forward written statements and submissions for consideration. Indeed, the opportunity to do that should in reality have suggested itself to Mr Sutton and the plaintiff before 29 March, and their preparation would have been a better use of time than pursuing unsuccessfully an interlocutory injunction. The need for written statements was obvious.
61 A change in the procedure which has been earlier indicated has been frowned on when it occurs in the proceedings of a public body; see Attorney-General of Hong Kong v Ng Yuen Shui [1983] 2 AC 629 and Wu v Minister for Immigration and Ethnic Affairs (No. 2) (1994) 51 FCR 232. Those cases relate to public authorities and to decisions of great personal importance. However where a substantial reason exists there is no basis for the Court to forbid a change in procedure.
62 Mr Sutton contended that lack of procedural fairness was shown by the alteration in the procedure which appeared to be adopted on 29 march when he was allowed to cross-examine Mr Higgins. It is plain enough that the Executive Committee decided after 29 March 1999 to put forward a change in the procedure which the General Committee had adopted until then. The change was in my view reasonable to adopt, as the events of 29 March demonstrated the impracticality of continuing to proceed in any other way. The plaintiff and Mr Sutton did not respond in any way to the opportunity offered to submit written statements and submissions, and Mr Sutton's letter of 12 April shows, not that the plaintiff was suffering from any practical difficulty in doing so, but that the plaintiff altogether refused to do so; and it shows that the plaintiff made a requirement for a procedure in which Mr Sutton cross-examined all other persons furnishing information before the plaintiff made any response. This demand was not made until the time by which submissions were called for had passed, it was too late, but if it had been made in due time, there could not have been any reasonable expectation that it would be granted.
63 The procedure to be adopted is within the control of the General Committee, and the plaintiff had no entitlement that any particular procedural course would be adopted. If the plaintiff had been assured that some particular procedural course would be adopted, the plaintiff had no entitlement to be exempt from any further decision modifying the procedure, or adopting a different procedure. I have to consider whether the procedure, including the procedure after the modification and the manner of modification, gave the plaintiff a reasonable opportunity to bring forward for consideration material which it wished to have considered. After the experience of 29 March, a decision to abandon cross-examination was, on the grounds of sheer practicality, well within the range of fair procedural decisions which might be adopted.
64 The change in procedure might be unfair if it deprived the plaintiff in some way of an opportunity of bringing forward what it wished to have considered. However there was no basis for thinking that it did so. The plaintiff's difficulties arise out of not putting the information and submissions in writing in any form, although invited to do so, and notwithstanding the obvious impracticality of a lengthy hearing before the General Committee at which all adverse informants were to be cross-examined that was not in the world of the practical. The General Committee included 28 persons and delegates from 11 clubs in 9 different cities and towns, and there would be no real chance of assembling the same 28 persons at each of a series of meetings. The claim which Mr Sutton eventually brought forward on behalf of the plaintiff that all adverse information should be the subject of cross-examination before the plaintiff made any statement was, it must be said, preposterous. In any event the claim was not advanced until about the time when a decision was reached.
65 Mr Sutton contended that the alteration in the procedure deprived the plaintiff of the opportunity to bring factual matter forward, and had the result that no evidence was led from the plaintiff at all. However in explaining this he adopted the position taken in his letter of 12 April, that there should be cross-examination of all prosecution witnesses before the plaintiff determined what evidence the plaintiff would lead in response. This demonstrates the vacuity of the contention that the change in procedure deprived the plaintiff of the opportunity to produce evidence; the plaintiff's opportunity was defeated by its deliberate decision not to bring material forward at a time when it was appropriate to do so and when it was invited to do so. In effect it was contended that the plaintiff was entitled to test everything before the plaintiff said anything; and a claim like that could not be justified.
66 In its broad outlines the controversy was not a new one and it had been under consideration within the Group for some months before March 1999. In the circumstances adopting a procedure which called for the plaintiff's position to be stated, and moved to consider the outcome in a relatively short time, was not unjust.
67 Mr Sutton contended that practical difficulties relating to assembling a General Committee to consider the charge could and should have been dealt with by appointing some disinterested outsider, and he instanced Sir Laurence Street, to conduct the Inquiry. In the context of a voluntary association conducting amateur sport I think it is enough to state the suggestion to demonstrate that the arrangement would not be suitable. In any event there is no reason why the General Committee should have entirely disqualified itself from consideration of the business. The General Committee is the tribunal which all members agreed would decide charges of misconduct or other charges within Clause 47.
68 Mr Sutton contended to the effect that it was beyond the powers of the Executive Committee to institute an Inquiry, and in support of this he pointed to Clause 31 and contended that its proviso disqualified any member of the Executive from dealing with a contentious question. The short answer to this is that the Executive did not resolve that the General Committee should undertake the Inquiry. There is no Minute and the evidence seems to show that there was no occasion when the General Committee formally resolved, following the terms of Clause 47, to inquire into the matter of the complaint; but the evidence including the Minute clearly shows that the General Committee embarked itself on doing so, and it must be understood that it decided to do so. The General Committee itself inquired into the charge; their decision to do so is not affected by the powers of the Executive Committee.
69 Mr Sutton contended that some persons who participated in the General Committee as delegates were not or may not have been entitled to attend as delegates. There was no evidence that any club delegates were not in fact regularly appointed by their clubs. The plaintiff bore the onus of showing that any of them were not actually delegates.
70 Mr Sutton also contended to the effect that when certain Committee members whom he contended should be disqualified for earlier participation or for the expressed attitude of their clubs were excluded, the two-thirds majority required by Clause 17 for a written resolution had not been reached. In my view however no participant was disqualified in this way. A related contention was to the effect that certain of the persons who voted as delegates on the written resolutions were not identical with the delegates who were present on 29 March and then took part in the Inquiry. For the satisfaction of the requirements of Clause 17 for a two-thirds majority it is in my opinion enough that the persons voting on the written resolution should at the time they voted be delegates of a club, and the plaintiff did not adduce evidence that the persons who voted were not delegates at the time they voted. To test the procedural fairness of the resolution it is not in my opinion required that the two-thirds of the total membership of the committee, that is nineteen persons, both participated in the meeting of 29 March and voted in support of the written resolution. The requirement to comply with Clause 17 and the requirement that there should be procedural fairness are different requirements and should not be confused; there is in my opinion procedural fairness if persons who were in attendance on 29 March formed a simple majority of the persons who actually voted for the written resolution; and it has not been shown that they did not.
71 The effectual decision was made by the first written resolutions. The second written resolution expresses confirmation, but it was not the occasion of disposition of the complaint, and it is not to the point to test it for procedural fairness. No demonstration of lack of procedural fairness of the second written resolution was made, in my opinion.
72 In calculating a two-thirds majority in relation to the first written resolutions it seems clear that a two-thirds majority, or nineteen persons did not vote for a disqualification of one year; the conclusion that there was a two-thirds majority for disqualification of one year is reached by counting all who voted for a longer disqualification, two years or three years, as supporting a disqualification of one year. This was generous to the plaintiff and was not an injustice. The second written resolution had the effect, among other things, of confirming that it was the decision of the General Committee to disqualify for one year.
73 The disqualification imposed is clearly one of the penalties authorised by the terms of Clause 48. It was contended that evidence which shows that in the course of the past ten years no similar disqualification has been imposed is an indication of bias or prejudgment. In my view that evidence has no such implication
74 The context in which a disciplinary complaint is to be decided by a body which is inherently unwieldy and inherently likely to include persons with some degree of knowledge or involvement includes Clause 49, which gives a general right of appeal from a decision of the General Committee to the Appeals Board of CRL. That is to say, there is ready access and a general appeal to an Appeals Board which is not part of the structure of the Group and does not have involvement in Group affairs.
75 The right of appeal to a tribunal which is not local and which would not be affected by practical difficulties arising out of the constitution of the General Committee is the means available under the Group Constitution to remedy grievances arising from the unwieldy practicalities of the General Committee and the closeness of its membership to any controversy which it is likely to decide . On the evidence there is no reason to think that a hearing before the Appeals Board would not be conducted on a satisfactory basis. The existence of that right of appeal, and the plaintiff's apparently deliberate election not to exercise it are significant considerations adverse to intervention by the Court.
76 Mr Sutton contended that it should be concluded that the decision to disqualify was a nullity, and for that reason the plaintiff was not obliged to exercise its right of appeal and its not doing so should not be treated as an adverse discretionary consideration. On my findings the decision was not a nullity. It is not clear that if the plaintiff succeeded it would be established that the disqualification was a nullity; it may be that it was voidable but not void; but this does not need to be further explored. If it were correct that the disqualification were a nullity, the appeal remedy would still be available, and the plaintiffs' not having taken it would still be a significant discretionary consideration.
77 In relation to the right of appeal Mr Sutton said to the effect that the letter of charge of 19 March was drafted, as evidence shows, by Mr Riordan, the honorary solicitor of CRL, and that Mr Riordan has a part in the Appeals Board. The Appeals Board is dealt with by Clause 31 of the Constitution of CRL; the honorary solicitor is not necessarily a member, although it seems quite possible that Mr Riordan might be a member of the Appeals Board. An Appeal Review Board, which considers questions of fresh evidence and includes the honorary solicitor, participates in some appeals. On the evidence before me it is not established that Mr Riordan would necessarily be a member of the Appeals Board, or that if he were he would necessarily be disqualified. If there are grounds on which Mr Riordan should be disqualified, the plaintiff would have been able to put them before the Appeals Board.
78 Mr Sutton contended that there was a more general basis for concern about the suitability of the Appeals Board and the part taken by CRL in earlier litigation and other aspects of the controversy. However he showed no grounds of substance why it would not be reasonable to expect of the plaintiff that it would exercise its right of appeal.
79 Even if the plaintiff had shown that the disciplinary decision was invalid, I would not make any of the declarations or the injunctions sought, because of the weight of the discretionary considerations adverse to intervention by the Court. The property interests which would be protected are of nominal value and very indirectly affected by the disqualification. The strength of the view of some clubs that they do not wish to participate in a competition with the plaintiff is clear. As participation is voluntary, a disqualification has been imposed, a significant number of clubs do not want to play against the plaintiff and the referees have refused to take part, it is very unlikely that any judicial order or injunction will bring about the result that the competition will go on with the plaintiff in it. It is far more likely that the competition will lapse, or will continue in the absence of a significant number of clubs who would otherwise participate. The situation on the facts has reached the limit of what a judicial order can achieve against a voluntary association; it is not possible to compel people to continue to associate in Group 19, and the risk is that the plaintiffs will be left almost on their own, with only one or two other first grade clubs. The facts are an exemplification of the wisdom of the policy to which the High Court referred in Cameron v Hogan of restraint in judicial interventions in the affairs of voluntary associations. The only likely outcome would be to break up Group 19.
80 For these reasons the proceedings will be dismissed with costs. I will make a representative order establishing that the eight persons named as defendants represent all members of the General Committee.
81