Oei v The Australian Golf Club

The Parties

1. The Plaintiff, Dr Bing Michael Oei, practises as a sports physician with an MBBS from the University of Adelaide. He is a fellow of the Australian College of Physical Medicine and has been practising medicine for some 41 years. Currently, he runs a practice specialising in musculoskeletal disorders and 'golf injuries' at Mosman, with an additional clinic at Darlinghurst. He became a member of the defendant golf Club on 27 April 2007, at which time states that he paid a joining fee of approximately $20,000.00 plus approximately $4,000.00 for his first year subscription. On or about 6 August 2015 he claims to have paid the Club the sum of $3,508.90 for his 2015-2016 half yearly membership subscription and monthly incidentals.
2. The Defendant is a golf club located at Rosebery in NSW. It was duly incorporated as a voluntary association of its members for the purpose of playing golf. Subclauses 4(a) and (b) of its Constitution state its purpose as being 'to promote the game of golf in accordance with the Royal and Ancient Golf Club of St Andrews', and to provide a golf course maintained for the use of its members. By-Law 20 of the Australian Golf Club By-Laws ('the By-Laws') states that the Club takes the playing of golf seriously and members have high expectations of each other.

Incidents

1. The current Secretary and Chief Executive Officer of the Club is Mr Robert Selley, who has held the position for the past six years. In his affidavit dated 14 April 2016, he states that on 11 November 2015 at about 5:00pm, he had a conversation about the Plaintiff with a member of the Club named Mr Stuart Cox. At this time, Mr Selley asserts that Mr Cox made a statement to the effect that: I wish to report that Michael Oei was seen by me handling his golf ball on hole 9 in order to improve his line. I saw Michael's drive on hole 9 went into the fairway bunker on the right side of that hole. Michael played his second shot out of the bunker but the ball landed on the grass lip above the bunker on the upslope. Michael appeared to have trouble taking his stance to play his third shot with his ball lying down in the grass. I then saw Michael move the ball and place it on top of the slope so that his stance was easier and his lie improved. Michael's playing partners were beyond him on the fairway and facing the opposite direction and therefore they would not have seen him do this.
2. Mr Selley claims to have approached the Plaintiff at approximately 5:30pm on the same day and said to him: Michael, I have received a report from a fellow member who claims that they saw you move your ball by hand above the bunker on hole 9. Is this correct? to which he claims that the Plaintiff replied: I did not touch my ball. My second shot remained in the bunker and my third shot was out of the bunker and into the water.
3. Mr Selley alleges that he approached another member at approximately 5:40pm on the same day, Mr Noel Darnell, who was Mr Cox's playing partner at the time in question. By way of response to Mr Selley's question about what he witnessed of the incident, he stated: I saw Michael stoop down and handle his ball, placing it in an improved position to the right from where he played his next shot. The ball was not in the bunker, it was to the right of the fairway bunker.
4. At about 6:15pm on 11 November 2015, Mr Selley claims that the Plaintiff telephoned him and said during the course of the conversation: I have been thinking about what you asked me and I can confirm that I definitely did not touch my ball on hole 9.
5. On 17 November 2015, Mr Selley wrote a letter to the Plaintiff which sought a formal written response from him in reply to the allegations made. In the letter Mr Selley outlined his understanding of what the Plaintiff told him in discussion on 14 November 2015, and highlighted that these facts were in conflict with those stated by the other member.
6. By way of response, the Plaintiff sent a fax to Mr Selley dated 7 December 2015 in which he stated that he 'at no stage recalled touching the ball as alleged'.
7. On 8 December 2015, Mr Selley sent an email to a Mr Darnell, with a copy of the Plaintiff's fax dated 7 December 2015 attached, asking him to provide his version of the events. Mr Darnell replied with an email which stated that he was playing behind the Plaintiff on the day in question and that he witnessed the situation. He alleged that the Plaintiff's ball was 'right of the fairway bunker on the 9th hole either in the tussock grass or the rough between the bunker and the tussocks. It was not in the bunker!'. He further asserts that he 'saw Michael stoop down and appear to handle the ball, and then proceed to play his shot which ultimately ended up in the water. He subsequently picked up and presumably did not score on the hole'.
8. On 15 December 2015, Mr Selley wrote to the Plaintiff and indicated that such allegations 'are not made or taken lightly' and that the Board would be dealing with it in 'the appropriate manner'. The Plaintiff was informed again that as his version of events conflicted with those of other witnesses he was requested to attend a meeting with representatives of the Board on 7 January 2016 'in an effort to establish what actually occurred and to consider if any further action is required.'
9. Mr Selley alleges that the Plaintiff telephoned him at approximately 11:30am on 23 December 2015 and during the course of the conversation said: Please can you tell me about what was reported? to which Mr Selley replied: It was reported by more than one member that they had seen you move your ball by hand alongside the bunker on hole 9. The Plaintiff allegedly replied: I will need to rethink what happened on the day in question.
10. On 7 January 2016, Mr Selley held a meeting with two directors of the Defendant (Mr Jim Tait and Mr Paul O'Neill) and the Plaintiff. At the meeting, Mr Selley claims that Mr Tait said to the Plaintiff words to the effect that: Michael, it is reported that the following occurred on 11 November 2015 on the 9th hole while you were playing in a Club competition: You hit your first shot into the bunker. You hit your second shot which stayed on the edge of the bunker. You raked the bunker. You walked around the top of the bunker and tried to take a stance to hit your next shot. You picked up your ball and rather than dropping it, you placed it on the ground. You then hit your next shot into the water. The Plaintiff allegedly responded by stating: I do not recall touching my golf ball and would not do anything like that intentionally.

The Charge

1. The Plaintiff in his affidavit dated 29 March 2016 alleges that on or about 12 January 2016 he received a letter from the Club which enclosed a "Notice of Disciplinary Charge and Hearing". The charge outlined in the letter alleged he had engaged in 'conduct that is unbecoming (of a member) of the Club' ('the Charge').
2. A cover letter signed by Mr Selley in his capacity as Chief Executive Officer (annexed to Mr Selley's affidavit) indicated that: One of the particulars of the conduct alleged against you relates to an incident on Saturday, 25 July 2015. I have to advise you that while the Board was promptly informed of this incident, it chose not to pursue the allegation at the time.
3. The cover letter also stated that '[a]s the most recent allegation is now the second incident of a similar nature in a short space of time, the Board has determined that both now be dealt with.' The Plaintiff was also informed in the letter that pursuant to cl 42(f) of the Constitution, the Board had determined that he be immediately suspended from all privileges of membership until the Board met on 28 January 2016.
4. Clause 42 of the Constitution provides the Club's disciplinary process. Subclause 42(a) states that if the Board is of the opinion that a member is guilty of any conduct considered to be unbecoming or prejudicial to the interests of the Club, the Board may suspend privileges or expel such a member. Subclause 42(e) describes the purpose of a disciplinary hearing as being 'to determine the facts concerning the complaint based on the evidence presented at the hearing'.
5. The 'particulars of conduct' outlined in the charge alleged: On Saturday, 25 July 2015 while participating in a Club competition, it is alleged that you picked up and threw your golf ball approximately 3 metres while playing hole 1 (in close proximity to the 17th tee) in an attempt to improve your lie and/or your line of sight to the hole and contrary to Rule 18 of the Rules of Golf. On Wednesday, 11 November 2015 while participating in a Club competition it is alleged that you moved your golf ball by hand approximately 1 metre while alongside the fairway bunker on hole 9 in order to improve your stance and/or lie and contrary to Rule 18 of the Rules of Golf.

Rules of Golf

1. Rule 18 of the Rules is entitled 'Ball at Rest Moved'. It states at 18-2 that: Except as permitted by the Rules, when a player's ball is in play, if: (i) the player, his partner or either of their caddies: - lifts or moves the ball, or - touches it purposely (except with a club in the act of addressing the ball), or - causes the ball to move, or (ii) the equipment of the player or his partner causes the ball to move, the player incurs a penalty of one stroke. If the ball is moved, it must be replaced, unless the movement of the ball occurs after the player has begun the stroke or the backward movement of the club for the stroke and the stroke is made. … *PENALTY FOR BREACH OF RULE: Match play - Loss of hole; Stroke play - Two strokes. (emphasis added)
2. Rule 28 is concerned with balls that are unplayable. It states: The player may deem his ball unplayable at any time on the course, except where the ball is in a water hazard. The player is the sole judge as to whether his ball is unplayable. If the player deems his ball to be unplayable, he must, under penalty of one stroke: a. Proceed under the stroke and distance provision of Rule 27-1 by playing a ball as nearly as possible at the spot from which the original ball was last played (see Rule 20-5); or b. Drop a ball behind the point where the ball lay, keeping that point directly between the hole and the spot on which the ball is dropped, with no limit to how far behind that point the ball may be dropped; or c. Drop a ball within two club-lengths of the spot where the ball lay, but not nearer the hole. If the unplayable ball is in a bunker, the player may proceed under Clause a, b or c. If he elects to proceed under Clause b or c, a ball must be dropped in the bunker.
3. Rule 20-2 is concerned with the practice of dropping and redropping. It states: A ball to be dropped under the Rules must be dropped by the player himself. He must stand erect, hold the ball at shoulder height and arm's length and drop it. If a ball is dropped by any other person or in any other manner and the error is not corrected as provided in Rule 20-6, the Player incurs a penalty of one stroke. … When a ball is to be dropped as near as possible to a specific spot, it must be dropped not nearer the hole than the specific spot which, if it is not precisely known to the player, must be estimated. (emphasis added)

The Plaintiff as a Golfer

1. In his affidavit the Plaintiff claims to have played golf at the Club, on average, about twice a week for the past five or more years, during which time he has had numerous occasions to pick up his golf ball for one reason or another. He claims that as at 12 January 2016, he had no recollection of any particular occasion back in July 2015 when he 'took a drop'. Conversely, he had a clear recollection that he never failed to take a penalty on any occasion on which he touched his ball and became liable to a penalty under the Rules when he was playing in a competition at the Club (as opposed to a practice round).
2. The Plaintiff asserts that he is not a very good golfer, and that he ended up in the woodchips more often than most players. His 'Proposal for Membership' form indicates that although he joined the Club in 2007, he started playing golf in 2002 and had lessons with a professional from about that time (CB 56).

The Disciplinary Hearing

1. In the Notice of Disciplinary Charge and Hearing sent to the Plaintiff dated 12 January 2016, his attention was drawn to By-Laws 101, 20 and 802, the latter of which states that termination of membership is the ultimate sanction for breach of the Rules (albeit normally reserved for an 'extremely serious breach'). He was also supplied with a copy of eyewitness accounts purporting to set out the factual circumstances supporting the particulars of the charge.
2. On 28 January 2016, the Plaintiff attended the disciplinary hearing which was convened before the entire Board. An agreed transcript was prepared. It will be necessary to make detailed reference to aspects of it in due course.
3. At the conclusion of the hearing, the Plaintiff was advised that he was found guilty of the matters as charged. He was then asked whether he wanted to make any submissions on penalty. The Plaintiff suggested a reprimand on the basis he promised to abide by the Rules in the future. The Board retired and upon resumption informed him it had decided to terminate his membership. He was given the opportunity to resign but he refused. On 5 March 2016, the Plaintiff's membership was terminated by the Board.

Standing

1. The Plaintiff claims that his standing in these proceedings arises out of a binding contractual relationship between the Club and himself, formed by the Constitution of the Incorporated Club. He also claims that the loss of membership at the Club would give rise to serious consequences, including loss of enjoyment of club amenities, loss of part of his annual subscription and damage to his reputation. The Club does not contest that he has the requisite standing. There is no doubt that he does have standing to bring proceedings to challenge his expulsion. In Mitchell v Royal NSW Canine Council Limited (2001) 52 NSWLR 242 at 246 [34], Ipp AJA (with whom Mason P and Stein JA agreed) stated that: The jurisdictional basis of the exercise of the court's discretionary power to intervene in the affairs of voluntary tribunals has long been recognised. The discretion will more readily be exercised where (as in the present case) a person's livelihood substantially depends upon membership of the association.

Procedural Fairness and the Wednesbury Principle

1. The Plaintiff concedes that the question of fairness will depend on the rights of the person affected and the particular tribunal, including the context of its existence and duties, and the relevant legal framework. Here, the Plaintiff contends that he was denied fairness on two primary grounds.
2. First, the Plaintiff invokes the 'Wednesbury Principle' in submitting that 'acting according to law, and properly informed, no reasonable tribunal could have concluded guilt as charged'.
3. Secondly, it is claimed that the Club's breach of its obligation to afford that Plaintiff procedural fairness was not trivial or immaterial, and that such denial of natural justice deprived him of the possibility of a successful outcome thereby warranting a declaration that the decision is a nullity in accordance with Samad v District Court of New South Wales (2002) 209 CLR 140 at [44].
4. In Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229-30, Lord Greene MR (with whom Somervell LJ and Singleton LJ agreed) famously stated: [I]f a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming … it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether.
5. There is no doubt that the Wednesbury principle applies to decisions of domestic tribunals. Indeed, as Kunc J has recently pointed out in Christie v Agricultural Societies Council of NSW Ltd [2015] NSWSC 1118 at [38], 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.
6. As Kunc J observed at [38]: 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.
7. The Plaintiff accepts that he is not entitled to a merits review of the decision made by the Board (T2-3). Again, that is entirely consistent with views expressed in Dickason v Edwards. See also the decision of the Victorian Court of Appeal in Australian Football League v Carlton Football Club Limited [1998] 2 VR 546 at 549 per Tadgell JA.
8. A tribunal will very often however have specialised knowledge and experience which it is fully expected to deploy. A tribunal can therefore act upon that knowledge and indeed upon hearsay if satisfied it is credible and a proper opportunity is afforded to the person concerned to deal with any such matters: Australian Workers' Union v Bowen (No 2) (1948) 77 CLR 601 at 628 per Dixon J. In Australian Football League v Carlton Football Club Limited [1998] 2 VR 546, Tadgell JA remarked (at 557-8) that: A domestic tribunal may in general use information available to it which it is prepared to accept, whether or not it is hearsay or sworn to be true. Indeed, a tribunal might fall into error by following rules of evidence, and thereby depriving itself of information, if its true task is to conduct a broader investigation than adherence to the formal rules of evidence would permit: R. v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 C.L.R. 13.
9. In the same case, Hayne JA remarked (at 569) that: The second matter that should be mentioned is the respondents' contention that the tribunal could not act except on evidence produced at a hearing. It was submitted that the repeated references in the A.F.L. Rules and Regulations to the tribunal hearing and determining a charge before it mean that proceedings before the tribunal are adversarial and the members of the tribunal can act only on material brought forward in the course of the hearing. Rule 27 directs the tribunal to conduct the hearing "with as little formality and technicality and with as much expedition as a proper consideration of the matter permits". It follows that the tribunal is not limited to acting on what would amount to evidence in a court of law. Thus, it may receive information in writing or orally and it is not precluded from receiving hearsay evidence or non-expert opinion evidence. Further, in my view the members of the tribunal may bring to their deliberations whatever expert knowledge they may have about football. I would go so far as to say that the members of the tribunal may inform themselves in whatever way the chairman sees fit to direct, subject only to their informing the player of the material upon which they propose to act but again I need not decide that in this case. There is no suggestion here that the tribunal acted on such material.
10. It is a common feature of proceedings before tribunals that the strict rules of evidence do not apply. Subclause 42(g) of its Constitution so states here. That will generally free the tribunal from legal forms and technicalities such as to provide it with significant flexibility in any procedure it may adopt.
11. At common law as well it has been held that the rules of evidence do not generally bind tribunals (Maclean v Workers Union [1929] 1 Ch 602 at [621]; TA Miller Ltd v Minister for Housing and Local Government [1968] 1 WLR 992 at [955]; R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; Australian Football League v Carlton Football Club Limited [1998] 2 VR 546).

Consideration

1. The Plaintiff's affidavit evidence was in many respects inconsistent with things he told representatives of the Defendant at various points in time and statements made in correspondence. This is not a merits review and such inconsistency is not to the point from the Court's point of view. It however was identified as an issue that the Board rightly in my view confronted the Plaintiff with at the hearing on 28 January 2016.
2. However, for example, in relation to the allegations surrounding the events of 11 November 2015, the Plaintiff says that he denied at the time and continues to do so in his affidavit that he ever moved the ball in the bunker. The problem for the Plaintiff was at no time was it alleged he moved his ball in the bunker.
3. He then asserted in his affidavit that the sequence of the events was his first shot on the 9th hole ended up in the fairway bunker and his second shot went into the wall of the bunker and bounded out leaving him with what he considered to be an unplayable lie on the grassy bank just outside the rim of the bunker. He then asserted he took a drop and a penalty as he says he was entitled under Rule 28. This of course is to be contrasted with his conversations with Mr Selley when he denied touching his ball at all which he confirmed in his fax to Mr Selley of 7 December 2015.
4. He further asserted that he dropped his ball about one club length to his right and did not improve his lie. On his fourth shot however he hooked the ball into the lake and abandoned the hole. The latter statement is not controversial.
5. When cross examined the Plaintiff conceded that either in July or November 2015, he understood precisely what was required of him to effect a drop in accordance with the Rules (T11-12). This obviously had a significant impact on the Board at the hearing when contrasted with what in fact he was alleged to have done.

The Submissions of the Parties

1. The first proposition put by the Plaintiff is that there is no allegation of dishonesty or cheating in the charge of 'conduct unbecoming' and that there should have been such an allegation. I will return to this aspect of the matter.
2. The Plaintiff also submits that the only breach alleged is that on two occasions the Plaintiff breached Rule 18. It is further said that there is no allegation that when the Plaintiff 'took a drop' he did so in a manner which contravened the rule which governs the correct procedure for dropping his ball (Rule 20-2) or that he dropped his ball from the wrong place (Rule 20-7). The core of the charge as particularised, the Plaintiff submits, is simply moving his golf ball on two occasions.
3. It seems to me that putting the argument that way entirely misconceives the charge and misses important detail in the particulars of the charge. The first particular alleges that on 25 July 2015, the Plaintiff 'picked up and threw his golf ball approximately 3 metres'. The second particular alleges that on 11 November, the Plaintiff 'moved his golf ball by hand approximately 1 metre'. In both cases it was alleged that the Plaintiff did so to secure a playing advantage.
4. Rule 28, which is applicable if the player deems his ball unplayable, requires apart from suffering a penalty of one stroke that the player 'drop the ball within two club lengths of the spot where the ball lay'. The Defendant was in the particulars of the charge asserting quite clearly that what the Plaintiff did on these two occasions did not amount to a 'drop' within the Rules. Importantly Rule 20-2 provides that when executing a 'drop' the player 'must stand erect, hold the ball at shoulder height and arms-length and drop it'. Therefore independently of whether a player may deem his 'ball unplayable' for a drop to be executed it must also be done in accordance with the rules. It is plain and obvious on the face of the charge that what was being alleged against the Plaintiff if proven would not permit his conduct being characterised as having executed a drop on either occasion. The charge in my view was clear and unambiguous.
5. A further misconception is evident in the Plaintiff's submission that Rule 18 had no application because what the Plaintiff did somehow or other fell within the exception stated clearly in Rule 18-2. The Plaintiff submits that Rule 18 expressly recognises and permits a player to touch and move his ball where that is allowed elsewhere under the Rules. The misconception exposed by this proposition is that there is no exception in the Rules which would permit a player to throw his ball underarm 3 metres or move it by hand except for example in the event that he was executing a 'drop', as prescribed by Rule 20-2.
6. The Plaintiff further appears to submit that a breach of Rule 18 must necessarily involve an allegation such as dishonesty or cheating. I do not accept that proposition. In my view a breach of Rule 18 might, but on the other hand might not, involve a player acting dishonestly or indeed cheating. It is theoretically possible that a player might lift or move his ball in ignorance of the Rules. If the Club came to the view that the person moved the ball due to ignorance of the Rules that would be one thing. A player may of course deliberately in full knowledge of the Rules move a ball to secure an advantage. Both however infringe the Rules. In any event the charge need not expressly allege dishonesty or cheating. The charge here certainly asserted the Plaintiff acted deliberately, but a failure to employ epithets such as dishonesty or cheating would not render the charge bad.
7. The Plaintiff then submits that the evidence led by the Defendant through Mr Selley at the disciplinary hearing convened on 28 January 2016 was consistent only with the Plaintiff having deemed his ball unplayable and electing to take a drop under Rule 28(c). I do not accept that as a correct proposition.
8. In relation to the incident in July 2015 the Defendant had before it on 28 January 2016 an assertion by an eyewitness Mr Grant Booth (which it is accepted had been supplied to the Plaintiff on 12 January 2016). 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. However, what the Plaintiff knew unequivocally from having read the statement was that the person was purporting to indicate that he witnessed the Plaintiff pick up his ball from some woodchips and 'underarm throw it about 3 meters [sic] onto the grass next to the 17th tee box'. In his submissions the Plaintiff asserts that that evidence was 'perfectly consistent with Dr Oei having deemed his lie in the woodchips unplayable'. It is submitted that in the absence of any charge of dishonesty and in the absence of any suggestion that he had not taken a correct drop the Plaintiff should have been exonerated by reason of Rule 28(c).
9. I have already expressed the view that it is not necessary for the purposes of an alleged breach of Rule 18 that the conduct be characterised as either dishonest and/or amounting to cheating. What the Defendant did allege however in the charge was that the Plaintiff had moved his ball in an attempt to improve his lie and/or his line of sight contrary to Rule 18.
10. It seems to me it was open to the Board to form the view that the account given by the eyewitness if accepted, was entirely inconsistent with the Plaintiff in any sense at all attempting to take a drop. It was open on the eyewitness account that the Plaintiff concluded his ball was not placed in an advantageous position. Rule 28 permits a player to 'deem' his ball unplayable as to which he is the 'sole judge'. This on any view gives the player a significant degree of latitude. But if the deeming process occurs, apart from the penalty of one stroke, the player then has a number of further options available. Here the Plaintiff asserts he was taking advantage of Rule 28(c) which permitted him to 'drop' the ball within two club lengths of the spot but not nearer the hole. Under no circumstances does that rule as I have already said permit the player to throw the ball. The Board was entitled to proceed on the basis that the Plaintiff understood this rule, and what his options were if he deemed the ball unplayable. It had an eyewitness account asserting that the Plaintiff had thrown his ball 3 metres underarm. That was entirely inconsistent with him taking a drop. The Plaintiff did not it seems to me in any sense seriously contest that factual assertion at the Board hearing.
11. At the Board hearing, when initially asked about his attitude to the 'charges' the Plaintiff asserted that he was a relatively new golfer having only started learning the rules and playing since 2007 (CB 15). On that basis the Plaintiff asserted that that should lead to him being seen as 'inexperienced'. He denied any suggestion that he had done anything in a dishonest fashion. But when pressed further as to what his attitude to the charges was, his response was that he may have erred in throwing the ball rather than dropping it (CB 16). He purported to call in aid Rule 28 and asserted that he was taking a 'relief'. He was pressed as to whether he pleaded guilty to the first particular to which he clearly it seems to me indicated that he was (CB 16).
12. The Board was entitled reasonably to proceed upon the basis that in relation to the first particular of the charge the Plaintiff was not in the position to deny that he had thrown the ball underarm three metres as alleged. On one view, at no time did he ever suggest he had attempted to take a drop as it is strictly understood. Further he did not assert at the hearing that he did not understand what was involved in a drop. Indeed his response at the very end of the disciplinary hearing shows he knew exactly what was required.
13. When he gave evidence before the Court he acknowledged that he understood the difference between throwing a ball underarm and a drop at the time he was in the hearing before the Board (T11). The Board was entitled to proceed upon the basis he well understood the difference. It was therefore open in my view to the Board to conclude and determine accordingly that in July 2015 when faced with a disadvantageous lie and even assuming he deemed his ball unplayable, he deliberately decided instead to throw his ball underarm some three metres on the basis that that would provide him with an advantage by improving his lie. They were entitled reasonably in the circumstances to reject his assertions to the contrary.
14. Alternatively and more seriously the Board was in my opinion entitled reasonably to come to the view that he did not go through any process of deeming his ball unplayable. Indeed they could reasonably have concluded he never gave it a thought, but just immediately resorted to an underarm throw. They were reasonably entitled in my view to come to that view because, knowing the difference between a drop and an underarm throw and aware of his obligations under Rule 28, he apparently made no bona fide attempt at a drop, but immediately resorted to an expedient.
15. In relation to the incident said to have occurred on 11 November 2015, the Plaintiff submits that the eyewitness account of the club captain Mr Cox (presented as unsigned, undated and redacted and anonymous) was also consistent with the Plaintiff having deemed his lie to have been unplayable.
16. The Defendant submits that the evidence however of Mr Cox included the assertion amongst other things that the Plaintiff 'appeared to place his ball to the right'. It was further stated that the ball had been moved about an arms length to the right. Another account of the same incident was to the effect that the person 'saw Michael stoop down and appear to handle the ball…'. The Plaintiff however submits that again there was no suggestion of cheating or dishonesty or a suggestion that he did not make his drop correctly. It is uncontroversial on this hole that the Plaintiff's ball ended up in the water and he did not score the hole.
17. The Plaintiff submits that he could not be in breach of Rule 18 because what he did was permitted by Rule 28 and his conduct on no view could be said to be 'unbecoming'. At the hearing on 28 January 2016, he said he was initially not sure whether his second shot was still in the bunker due to a mental blank (CB 18). Having read the allegations however he was then able to tell the Board that his second shot went into the rough just above the bunker and he regarded the ball as unplayable, so he chose to take a drop and move it within an arms-length to the right (CB 18). He stated unequivocally that when he did move the ball he was well aware of Rule 28 and that he was taking a drop (CB 18). The Plaintiff knew what he was to do physically if he was executing a drop. He did not seriously deny the accounts given as to what he was seen doing which were quite inconsistent with him attempting to execute a drop. He was seen by the Club's captain who would be intimately familiar with the particular physical stance to be adopted by a player attempting to execute a drop. This was corroborated by a second eyewitness. As noted by the Defendant in its submissions, those versions do not even remotely describe a person attempting to execute a drop. One version had the plaintiff bending down and the other had him stooping down. The Board was entitled to reject the Plaintiff's account and find reasonably that he deliberately flouted the Rules again to place himself in a more advantageous position. Again for similar reasons the Board could reasonably reject that he had deemed his ball unplayable pursuant to Rule 28 at all.
18. I should add that in my view, it was not for the Defendant to assert that he had attempted but failed to take a drop correctly. The Defendant was perfectly entitled to formulate the second particular in the way that it did. It was for the Plaintiff then to assert a positive defence by seeking to invoke Rules 28 and 20 which he did. By the time he got to the hearing he certainly expressly invoked Rule 28. But his inability to contest the particular factual assertions left open a real question of whether he was bona fide attempting to take a drop on either occasion. That was a live issue it seems to me for determination by the Board.
19. However it is clear from the transcript of the hearing that certain members present believed at least they were listening to the Plaintiffs' assertion that on the second occasion he was taking a drop, for the first time (CB 18). When the plaintiff was pressed on why he had not made it clear prior to the hearing that he was taking a drop he ventured a number of explanations. He was asked whether his playing companions had been informed that he taken a drop. The Plaintiff made the following positive assertion (CB 19): I told them when I caught up with them that I took a drop an then the ball it went into the water so I did not score.
20. It was put to the Plaintiff expressly that on the very day the incident had occurred he was asked what had happened and gave a different story shortly after he had in fact played the hole.
21. When asked again whether he had told the other three players he was with he responded that he thought that he might have spoken to 'Athol' (CB 20). When pressed further he indicated that he had not asked any of the persons he was playing with to give evidence. The Plaintiff then proceeded to say that he was not sure whether they had seen all the things that had occurred (CB 20).
22. The Plaintiff was then asked whether he wanted to call any witnesses or question any person. The Plaintiff clearly elected not to call any witness himself. The Board then decided to call Mr Cox, one of the eyewitnesses into the hearing room.
23. Prior to that occurring, it was put to the Plaintiff that he was 'probably guilty' of the first charge and he was asked effectively how often in taking a drop did he throw a ball (CB 22). He responded by indicating that it was not very often but because he found himself on the day in the woodchips and because he was concerned about holding the players up and out of frustration he may have thrown the ball knowing that he would not score anyway. That concession seems to me to be an acceptance by the Plaintiff of the accuracy of the account of the eyewitness (CB 22).
24. Mr Cox joined the hearing and the Plaintiff asked Mr Cox some questions. It was put to Mr Cox that the Plaintiff had said that he took a drop of an unplayable lie near the bunker. Mr Cox responded that he had seen the Plaintiff move the ball without appearing to have notified anybody that he was in fact asking for a drop (CB 23). The Plaintiff insisted that he had not dropped the ball closer to the hole in any event.
25. The Plaintiff was given a further opportunity to indicate whether he wanted to call any witnesses or ask any further question to which he answered in the negative.
26. Importantly in conclusion he was asked the following question by Mr Hunter (CB 24): Q: So with the drop you took on the top of the bunker was it like this type of drop. A. Yes yeah, it was shoulder height.
27. It is reasonable I consider to infer that Mr Hunter postured so as to effect the physical stance assumed by a player executing a drop pursuant to Rule 20-2.
28. Leaving aside whether for the first time or not, that the Plaintiff was asserting that in relation to the November incident he had deemed his ball unplayable and executed a drop from shoulder height, the Board as I have already observed had two eyewitness accounts which were quite contrary to that assertion. Indeed when the matter was first raised with the Plaintiff he had failed to indicate that he had dropped the ball from shoulder height and appeared to concede as has allegedly been witnessed that he simply moved the ball an arms-length to the right. He knew the difference between moving the ball and a drop on 28 January and yet it was not until he was asked the express question towards the conclusion of hearing that he indicated quite precisely what he had done was a 'shoulder' height drop. It would be fully expected as I have already said that Mr Cox and the other eyewitness would, if they had observed the Plaintiff execute a drop, have said so. They too like the Plaintiff would be expected to know the difference between a drop in accordance with the Rules and simply moving the ball as alleged.
29. The Board was therefore confronted with conflicting factual accounts. The Board was well able to make its own mind up as to which of those versions was more credible and which they accepted. Whilst it is accepted by the Defendant that there is no rule requiring a player to notify any other person that he has deemed his ball unplayable and hence proposes to execute a drop (T51), it must be said that it would normally be obvious if that person were playing with others and that was occurring. What was critical here though was a conflict between two very starkly different accounts. The Plaintiff at one point of the hearing asserting unequivocally that he had deemed his ball unplayable and taken a drop precisely in accordance with the Rules. The eyewitness accounts on the other side however denied that as a possibility. It was the Plaintiff attempting to call in aid some form of corroboration by asserting that he had told 'them' when he caught up to his playing companions what he had done. Somewhat remarkably however he then conceded that he had not asked anyone to come along to be a witness for him so as to corroborate his story.
30. In the circumstances the Board was entitled reasonably to be highly suspicious of the fact that he had indeed told anyone as he was unable or unwilling to produce anyone to support him.
31. It seems to me that on the basis of the accounts the Board had of what occurred on 11 November it was reasonably entitled to form the view that the Plaintiff had deliberately breached the Rules and accordingly reject any suggestion by him that he was intending to execute a drop consistent with the Rules, or for that matter had in truth deemed his ball unplayable as alleged.

Other Matters

1. In his written submissions the Plaintiff raises a number of quite specific arguments with which I now propose to deal.
2. First it is submitted that under cl 42(a) of the Constitution, the Board may only discipline a member for conduct 'unbecoming' which must be construed as conduct of a 'scandalous or unlawful' variety. Clause 42 of the Constitution allows for the expulsion of a member if his or her conduct is considered to be 'unbecoming'. The term is not defined in the Constitution or in the Rules.
3. The Defendant submits the term should not be given a narrow meaning and should be construed in context. It submits that the ordinary meaning of 'unbecoming' encompasses 'not becoming; not appropriate; unsuited … improper; unseemly … unattractive/inappropriate', citing the Macquarie Dictionary (6th ed). The Oxford Dictionary of English (2nd ed) similarly provides that 'unbecoming' merely means not fitting or appropriate (p 1914). The Defendant submits that the playing of a game of golf, indeed in a tournament, in disregard of the Rules is capable of amounting to 'conduct unbecoming'. The Defendant also submits that the phrase 'fit and proper', is a similar notion likewise to be viewed in context. For example, in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 388, Toohey and Gaudron JJ stated that: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision-maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
4. I do not regard the Plaintiff's construction of 'unbecoming' as a tenable proposition. The term 'unbecoming' obviously has to be seen here in the context of the game of golf and the Rules. Whether the conduct could be so described will turn precisely upon what the conduct is and to what extent it might be said to be for example, trivial, unintentional or intentional. Conduct might require no more than an explanation as opposed to expulsion. It seems to me that a deliberate flouting of the Rules would reasonably be in context regarded as conduct unbecoming. As a matter of language or construction there is no warrant for the narrow construction proposed by the Plaintiff.
5. The second proposition advanced is that By-Law 802, when taken in conjunction with By-Law 803, on a proper construction leads to the proposition that the Board had no jurisdiction to proceed to terminate the Plaintiff's membership absent legal advice prior to any decision on penalty. It was accepted the Board did not obtain legal advice prior to deciding to terminate the Plaintiff's membership.
6. However, at the hearing of this matter Senior Counsel for the Plaintiff indicated that he did not press the way in which the matter had been articulated in written submissions. Rather, By-Law 803 was to be seen only as a powerful indicator of what the Board should arguably do. In the ultimate it was put simply that it was a matter which the Board may or may not in their discretion choose to take into account prior to expelling the member (T54).
7. This part of the Plaintiff's submission was therefore no longer pressed as a matter of jurisdiction but rather a matter for the discretion of the Board. Senior Counsel did not make any attempt at all although it was uncontroversial that the Board had not obtained legal advice before it expelled the Plaintiff to suggest in any way that the Board's discretion had miscarried by reason of its failure to do so. In my view therefore that matter can be put to one side.
8. Thirdly the Plaintiff submits that he was denied procedural fairness by reason of the way in which the disciplinary hearing was conducted on 28 January. The particulars under this heading are as follows ( I have adopted the lettering from the Plaintiff's submissions): 1. The first complaint is that the charge was incapable of being sustained under the Constitution of the Club in that 'conduct unbecoming' does not and could not include conduct of a member acting within his rights engaging in what may be characterised as trivial misconduct. So much may not be gainsaid. However for reasons already discussed it was open however to the Board to come to the view that he was not acting within his rights. In other words when he said he was duly executing a drop and doing so having deemed his ball unplayable the Board clearly rejected that explanation. It was open to the Board to find that the Plaintiff had on both occasions deliberately flouted the Rules during a competition. Such conduct could hardly be described as trivial and in my view would comfortably conform with the description 'unbecoming'. 2. The next submission proceeds upon the basis that no charge was open on the facts as alleged in that Rule 18 permitted the Plaintiff to move his ball under Rule 28. However, it is clear that in respect of both particulars the Board rejected the Plaintiff's assertion that he was executing a drop. He was given ample opportunity to answer that allegation, and present an opposing set of facts, plus any corroboration he may have had. He was not denied in my view ample opportunity to do just that. I do not regard this complaint as having any substance. 3. It is asserted that the Board denied the Plaintiff natural justice in proceeding on a charge that was not open on the facts, in that Rule 28 permitted him to move his ball and the Plaintiff was the sole arbiter of his entitlement to do so. Again that may be so, but it was the manner in which he did so which resulted in the finding. Again he had ample opportunity to deal with that allegation, and at the risk of repetition it was in my view open to the Board to reject his assertion that he was merely exercising his rights under Rule 28, because they would have led him to execute a drop pursuant to Rule 20-2(a), which again the Board was on the facts entitled to reject he did. 4. It is then submitted that the Board had regard to an irrelevant matter namely the Board treated as relevant the fact that differences of recollection between members of the Club meant that the integrity of members had been called into question. Fairly read in context the reference to 'integrity' is nothing more it seems to me than a prelude to the hearing commencing by simply noting the importance and solemnity of the occasion. Indeed what it does, which is a highly relevant matter in my view, is that it shows an acknowledgement on the part of the Board of the importance of the hearing to all concerned, the Plaintiff and others alike and the seriousness of the charge. In my view it was a perfectly reasonable statement to have made in the circumstances. Rather than it pointing to some irrelevant consideration, it underscored the gravity of the consequences facing the Plaintiff if the matters were to be determined against him. Equally if the evidence of witnesses who gave various eyewitness accounts had been rejected, depending upon the basis of the rejection, it could reflect adversely upon them as well, as members of the Club. I do not regard this complaint as having any substance. 5. The next point can be fairly described as one of confession and avoidance. It is suggested the Board overlooked the fact that the Plaintiff accepted the evidence of his accusers and relied upon his entitlement to move his ball under Rule 28. Therein lies the difficulty. In accepting the evidence of his accusers he accepted versions which are utterly inconsistent with his having executed a bona fide drop. Either he threw the ball underarm 3 metres or alternatively he bent over to move the ball on each occasion by inference to gain some advantage (as opposed to a bona fide drop). Again I do not regard this complaint as having any substance. 6. It is then submitted that the Board treated the Plaintiff as having pleaded guilty to the 'first charge' when there was only one indivisible charge of conduct unbecoming. Further it is submitted that no plea of guilty was open to be made or was made as a matter of fact and the charge was incapable of sustaining the offence as charged or a plea of guilty to that charge. This rolled up assertion involves certain underlying assumptions which I have already dealt with above. It also proceeds again in my view on a misconception. There was one charge but two particulars. The two particulars dealt with two specific incidents. The Board was quite correct in dealing with them separately; indeed there would have been reason to complain had they not. The Plaintiff was simply asked to indicate precisely what he agreed with and what he disagreed with as a matter of fact as a prelude to determining any issue. That was a reasonable procedure to adopt. Again I see no substance in this complaint. 7. There is then an assertion that there was a failure to comply with By-Law 803. This matter has already been dealt with and does not require any further consideration. 8. 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. 9. It is submitted that the Plaintiff was told too late of the contents of the redacted material, which prevented him from properly preparing his case. This argument was not developed in submissions. There is no material or evidence to support this proposition and I regard it as having no substance. 10. It is also submitted that the Board proceeded to expel the Plaintiff as if it had an unfettered discretion to do so and without regard to the evidence. Again this ground was not advanced in any way during the hearing and I must confess that I regard it as some sort of catchall. The Board was entitled to reject or accept the Plaintiff's explanation and defence. Clearly they rejected it. The Board had a discretion as to what penalty it thought appropriate. In my view it could hardly be said that the Board acted without regard to the evidence. Indeed their determination in my view was wholly consistent with the evidence, especially that of the the eyewitnesses, which they were entitled to accept. After all there was nothing inherently incredible about the eyewitness accounts. Again I regard this as having no substance. 11. It is submitted that, by reason of reference having been made at the hearing of the Board to what occurred at the 7 January 2016 meeting between the Plaintiff and Mr Selley and others, an irrelevant consideration was introduced. This is purportedly because what occurred at the earlier meeting could not amount to evidence 'presented' to the Board on 28 January 2016 for the purposes of cl 42(e) of the Constitution. As I understand it, the Plaintiff also submits that various pieces of correspondence were also not 'presented' at the hearing and likewise should not have been taken into account by the Board. 12. Clause 42(e) provides that 'the purpose of a disciplinary hearing is to determine the facts concerning the complaint based on the evidence presented at the hearing' (emphasis added). 13. There are a number of answers to the Plaintiff's criticism. 14. First, there is a difficulty with the Plaintiff's submission in the context of the principles that apply to domestic tribunals that I have previously noted but more to the point by reason of cl 42(g). That subclause provides that the rules of evidence do not apply to disciplinary hearings. This means in broad terms that material, whether in admissible form or not, can be taken into account; the term 'evidence' in cl 42(e) does not mean only that which would be admissible in a court. The term 'present' in the context of cl 42(e) should likewise be given a wide meaning for the same reason. It means in my view no more than introduce, as but one obvious meaning. 15. Here what the Plaintiff was being confronted with what were the inconsistencies between what he was asserting before the Board and his previous account given at the 7 January meeting. 16. The reference to the 7 January meeting was fairly and in my view reasonably raised to draw to the Plaintiff's attention the fact that he had said something different on a previous occasion to what he was now asserting. In his opening remarks at the Board meeting on 28 January, Mr Farr-Jones made reference to the meeting on 7 January and noted expressly that the Plaintiff had denied that he had engaged in the conduct alleged. It was put squarely to the Plaintiff that on 7 January, he had not said that he was actually taking a drop and that he had been extremely vague. The Plaintiff accepted that he had been vague previously. He seemed to accept that he had not asserted that he was taking a drop. 17. It was further put to the Plaintiff that he had given different versions of events at different points in time. Before the Board on 28 January were the eyewitness accounts and the statement of charge. In addition, Mr Selley's evidence is that his letter of 17 November 2015, the Plaintiff's response of 7 December 2015, the letter of 15 December 2015 from the Defendant to the Plaintiff, the letter containing the charge and the eyewitness accounts had all been circulated to the Board in advance of the hearing. That correspondence exposes that the Plaintiff had been clearly told for example that there was conflict between his explanation and that of the eyewitness accounts and that at one point the Plaintiff in his fax of 7 December denied moving his ball in the bunker or at any stage touching the ball 'as alleged'. I see no difficulty in the Board or any member of it having regard to what the Plaintiff had said in correspondence. 18. Importantly, the Plaintiff did not deny that his story had changed - rather, in my view, a careful reading of the transcript of the Board hearing indicates that the Plaintiff gave inconsistent answers to which I have already referred. It seems to me that giving inconsistent versions of events was clearly a relevant matter which the Board was entitled to hear and deliberate upon in determining which version of events they would accept. Indeed it was important that the Plaintiff be confronted with his alleged inconsistencies to test his credibility. That approach was reasonable and again in my view there is no substance in this complaint. 19. The only witness who has given an account of what occurred at that meeting of 7 January 2016 was Mr Selley in his affidavit of 14 April 2016. The Plaintiff has not advanced any evidence contesting Mr Selley's account. It was not put to Mr Selley in cross examination that his account was erroneous but rather that it was only a very small portion of what had taken place over perhaps forty five minutes to an hour (T30-31). Mr Selley's account is that the Plaintiff was confronted with the allegation he had touched his ball and said he could not recall doing it but asserted he would never do so intentionally. 20. It is submitted that the Board proceeded on an erroneous basis namely that the Plaintiff was required to advise his marker and/or seek approval of his fellow players before taking a drop. As I have clearly observed, it is accepted that there is no rule which required him to do so. It is equally clear that at least one member of the Board in particular (Mr Hunter) may have been under the impression that there was an obligation to advise his marker before he took the drop. Mr Cox made the point during the hearing that he had not seen the Plaintiff speak to anybody and ask them about the drop he was intending to take. 21. Whether or not the Plaintiff spoke to anybody or told anybody he executed a drop is clearly a relevant consideration whether there was a rule obliging him to do it or not. He was not facing any charge of failing to inform his marker or fellow competitors. However if he had been able to produce evidence that on the particular occasion he had told somebody at the time that he was intending to take a drop and forfeit a stroke that might have aided his credibility in terms of whether or not he was attempting to do so and invoke Rules 28 and 20-2. After all he was the person who first volunteered that he had notified one of his fellow players and even if it be correct that one or more of the Board members entertained some erroneous view that notification was obligatory there was simply no suggestion that that played any part in the outcome. What clearly may have played a part in the outcome (and reasonably so) however is that having asserted that he did notify one of his fellow players he was unable to produce any evidence of having done so. No doubt the Board was able more comfortably to come to the view that he had not intended to execute a drop primarily because of the eyewitness accounts which were antithetical to him physically attempting to do so but in addition being satisfied he told no one he had done so during the competition. Again in my view there is no substance in this complaint. 22. It is submitted that the Plaintiff was not given an opportunity to make written or oral submissions as to why he should not be expelled contrary to cl 42(b). 23. There are numerous answers to this proposition. First having announced its decision the Board asked whether the Plaintiff had any 'suggestions' of where the Board should go on penalty. That was a clear invitation to the Plaintiff to make oral submissions on the question of penalty. In addition he was well aware from the Defendant's letter to him on 12 January 2016 that he had and would be given any opportunity he sought to make any verbal or for that matter written submissions as to any response on any issue. In my view nothing turns on the fact that apart from his letter of 7 December 2015 the Plaintiff had never communicated with the Defendant or for that matter any member of the Board in writing. When asked he made a short oral submission to the effect a reprimand was appropriate. He never asked for an opportunity at any time to make submissions in writing. Again I am of the view there is no substance in this complaint.

Unreasonableness

1. In addition to the above particulars relating to procedural fairness, the Plaintiff also submits that on the basis of the charge and the evidence before the Board the decision was so unreasonable that no disciplinary tribunal acting reasonably could so find. In addition it is submitted that to expel the Plaintiff from the Club on the basis of the charges and the evidence was also a decision so unreasonable that no reasonable tribunal could have so found.
2. In my view these propositions are likewise without any substance. As is plain from what I have already said it was open on the evidence before it for the Board to determine that on the two occasions the Plaintiff deliberately moved his ball in a manner contrary to the Rules so as to gain a playing advantage.
3. In my opinion, I consider not only was it reasonable for the Board to so find, but having done so to regard his breaches as deliberate and serious and amounting to conduct unbecoming sufficient to warrant expulsion.

Conclusion

1. In my view the Plaintiff has not exposed any legitimate basis to have this Court interfere with the Board's finding on 28 January, and his ultimate expulsion from the Defendant.
2. I would invite the parties to prepare short minutes to reflect these reasons and I will hear the parties on costs if necessary.

Amendments 23 June 2016 - Paragraph [41] change "Tagell JA" to "Tadgell JA" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 June 2016