Rose v Boxing NSW Inc & anor

Dear Wayne At a meeting of the Executive Committee of the above Association on 17 June 2004, I am directed to write and request that you attend a meeting of the Executive Committee of the above Association on Tuesday 29 June 2004 at 8.00 pm at the Randwick Coogee RSL. You will be requested to explain your actions against the Association and its Members before any action is taken to suspend you, or otherwise, as a person associated with Amateur Boxing in NSW in accord with Rule 22 Disciplinary Provisions of the Constitution of the NSWABA.

9 It will be observed that that letter did not explain what were "your actions", for which an explanation was sought, and that while it referred to the possibility of suspension, it did not mention expulsion. However, it did refer to Article 22 of the Constitution, to which I shall come in due course.

10 Mr Rose replied, by letter dated 25 June 2004, in the following terms:

Dear Arthur I acknowledge your letter dated 18 June 2004. Your letter states that 'you will be requested to explain your actions against the Association and its Members before any action is taken to suspend you, or otherwise, as a person associated with Amateur Boxing in NSW in accord with Rule 22 Disciplinary Provisions of the Constitution of the NSWABA'. However, you have neglected to advise what "actions against the association" I am alleged to have taken. Rule 22 states that at least one week before the meeting of the Executive Committee the member shall have had written notice of such meeting and of what is alleged against him '. The purpose of this provision is clearly to allow a person to prepare a response to any allegations being made against them. That can hardly happen if the person has not been notified of what those allegations are. I feel sure the Executive members did not intend that I should appear before them without my knowing the details of the allegations made against me. I look forward to receiving those details in due course, at least one week before any meeting that proposes to discuss the matter.

11 The observations which Mr Rose made in that letter about the necessity of notice, not only of the meeting, but also of what was alleged against him, were apt. Mr Tunstall replied on 28 June 2004 in the following terms:

Dear Wayne Acknowledgement is made of your letter of 25 June 2004, received this day. Article 22 My letter to you requested that you attend a meeting on 29 June to explain your actions against the Association in accordance with Rule 22 and I quote line 13: "that he shall attend at such meeting and before passing of such a resolution, have had an opportunity of being present and giving ORALLY or in writing any explanation or defence he may think fit." The reason for asking your attendance on the 29th is to allow you the opportunity to answer a number of questions by the Executive over statements made by you concerning the Members and the Association. My letter to you does not say you will be suspended or otherwise on the 29th. Any decision taken will be at a later meeting following your attendance on the 29th June. Please advise, with the explanation above, if you will be attending on 29 June, as requested.

12 About that letter it can be observed: first, that reference was again made to Article 22; secondly, that the letter suggested that the purpose of the meeting was to allow Mr Rose the opportunity of answering questions by the Executive about statements which he was said to have made; and, thirdly, that once again the letter contemplated suspension, but did not refer specifically to expulsion.

13 Mr Rose replied to it on 29 June 2004, in the following terms:

Dear Arthur, I acknowledge your letter dated 28 June 2004. As I stressed in my letter dated 25 Jun 04 Rule 22 states that at least one week before the meeting of the Executive Committee the member shall have had written notice of such meeting and of what is alleged against him '. This did not occur nor did your letter dated 28 Jun 04 provide this information. You have again neglected to advise what "actions against the association" I am alleged to have taken (refer letter dated 18 Jun 04) or what "statements I have made concerning the Members and the Association" (refer letter dated 28 Jun 04). Your letter dated 28 Jun 04 stated 'that he shall attend at such meeting and before passing of such a resolution, have had an opportunity of being present and giving ORALLY or in writing any explanation or defence he may think fit'. This is correct and I expect that this process would occur following the receipt of what is alleged against the member and in the required timeframe, and in accord with Rule 22. The purpose of this provision is clearly to allow a person to prepare a response to any allegations being made against them. That can hardly happen if the person has not been notified of what those allegations are. I feel sure the Executive members did not intend that I should appear before them without my knowing the details of the allegations made against me. I look forward to receiving those details in due course, at least one week before any meeting that proposes to discuss the matter.

14 On 29 June 2004, Mr Tunstall responded, as follows:

Dear Wayne Thank you for your reply to my fax of yesterday (28.6.04). You state you want to know the allegations against yourself. I thought from the contents of some of your correspondence this would not be necessary. However, allegations made by you against Paul Toweel is one which he replied to your accusations. Secretary's reluctance to answer correspondence Secretary unwilling to cooperate with Boxing Australia Allowing League boxers to register with NSWABA without league boxers surrendering their League Book . You were aware of this before you resigned from the NSWABA, but you did nothing about it. Insufficient officials thereby not providing athletes with fair play, etc. etc. Finally, your latest request for people to sign to support what you term "Boxing NSW " - signatures to be sent to you - and you want a week's notice! All you were asked to do was to attend the meeting on the 29th to answer your own allegations. If you still do not wish to attend tonight, please confirm immediately.

15 Of this letter it will be observed that the accuser appears to have proceeded on the erroneous basis that it was unnecessary for the accused to know the allegations against him. However, Mr Tunstall then proceeded to specify some of the statements which Mr Rose was alleged to have made, which presumably founded the suggestion that he was acting to the prejudice of the Association. The concluding observation - that all Mr Rose was asked to do was to attend "to answer your own allegations" - is unfortunate, because he was not being asked to answer his own allegations at all, rather to answer a charge of prejudicial conduct under Article 22.

16 After all that, however, the meeting did not proceed on 19 June 2004, but was deferred to a special meeting to be held on 20 July 2004. On 5 July 2004, Mr Tunstall sent a further letter to Mr Rose, as follows:

Dear Wayne Further to correspondence from the above Association to you requesting your attendance at an Executive Meeting on 29 June 2004 you now wish that more advance notice be given you regarding your allegations about members of the Association and its administration as per Rule 22 of the Constitution. I set out the following further detailed information for your consideration before your requested attendance at an Executive Meeting on Tuesday 20 July 2004 at 8 pm at the Coogee-Randwick RSL, Carr Street Randwick . 1. Your letter of resignation 19.11.03 - you claim this Association refused to act towards numerous serious situations, which has signaled the demise of boxing within NSW. 2. Government Submission relating to the Management of NSW Boxing. i Control of Boxing in NSW has succeeded in degrading the sport. ii details and issues relating to the mismanagement of the sport iii Improprieties by NSW Board members have contributed to Amateur Boxing being in a State of crisis etc, etc. I suggest you read and consider the remaining statements and Allegations made by you against the members of the Association. 3. Yours latest circular - Establish Boxing NSW. Reasons of forming New Association. May I remind you that while you may have resigned from the NSWABAInc as an Executive Member you are still at this point of time the Secretary of a Zone Association affiliated to the NSWABAInc. As such your actions to establish another boxing association, and your allegations, are completely contrary to the Rules of the Association and Article 22 of which you are aware. May I suggest you read again this article before you attend the meeting of 20 July 2004. 17 This letter acknowledges Mr Rose's desire for "more advanced notice". Although it continues to refer to "your allegations about members of the Association", by its reference to Article 22, it makes tolerably clear that what is alleged is a contravention of Article 22. It then specifies the time and place of the proposed meeting, and three particular matters that are identifiable as the grounds relied upon for the proposed disciplinary action. Those three matters, in short, were:

· Mr Rose's letter of resignation of 19 November, · a document entitled "Government Submission", and

· another document, described as Mr Rose's "latest circular - Establish Boxing NSW - Reasons of forming New Association ".

18 Mr Rose replied on 16 July 2004: Dear Arthur, I acknowledge your letter dated 5 Jul 2004 and am pleased that you have finally complied with Rule 22 of the Constitution. I wish to highlight that your letter of 5 Jul 04 is illegal, and therefore I am not compelled to comply with your request. Nonetheless, I acknowledge the letter and will be attending the meeting of 20 Jul 04 to answer the issues raised in your letter dated 5 Jul 04. As the issues are not only relevant to myself I will be accompanied by subject witnesses Warwick Warn, Steve Warn and John Thompson.

19 That letter is important for two reasons. First, it contains an acknowledgment that there had been compliance with Article 22 - although it does proceed to maintain that the letter of 5 July is illegal, it is not apparent upon what ground that assertion was made. Secondly, it conveyed that Mr Rose did intend to attend the meeting to answer the issues raised against him, and to bring with him "subject witnesses Warwick Warn, Steve Warn, and John Thomson". The term "subject witnesses" was also used by Mr Rose in his oral evidence, and although at first I was unsure what was conveyed by it, I think "subject witnesses" means witnesses as to the subject matter, or witnesses on the relevant subject - what a lawyer would call witnesses of fact.

20 Following that letter, Mr Rose received a telephone call from Mr Tunstall who told him: "You cannot have any witnesses at the meeting", to which Mr Rose replied: "That is not your decision to make. It is the Board's decision. I will be attending with these witnesses". My acceptance of Mr Rose's evidence of that conversation is one respect at least in which I can be all the more comfortable in the absence of any evidence from Mr Tunstall, who was in court and had sworn an affidavit which was not read.

21 Outside the meeting venue, and shortly before it commenced, Mr Rose had a conversation with the President of the Association, Mr Patrick Hailwood, in which Mr Hailwood told Mr Rose that he would not be permitted to have any witnesses. Mr Hailwood then proceeded into the meeting, which commenced in the absence of Mr Rose. In the course of that preliminary stage of the meeting, the question was raised and discussed as to whether Mr Rose would be permitted to bring his witnesses to the meeting. A motion was proposed and ultimately adopted that he be allowed to bring one witness only to the meeting. Ultimately, the Executive Committee voted unanimously to permit Mr Rose to bring only one witness. One reason motivating that decision was a concern held by at least some members of the Executive Committee that if Mr Steven Warn were admitted, an argument would ensue. Mr Hailwood went downstairs, spoke to Mr Rose, and told him that he would be permitted one witness only. At that point, Mr Rose decided not to participate in the meeting and left. The Minutes record the following:

MINUTES OF SPECIAL EXECUTIVE MEETING OF BOXING NEW SOUTH Wales INC. held on Tuesday 20 July 2004, at 7.30 pm at the Coogee Randwick RSL Club, Carr Street, Coogee PRESENT : Pat Hailwood President/Chairman; Arthur Tunstall, Secretary; Tony Pratten, Treasurer; Michael Dann, Asst. Secretary; Ray Birchall, Paul Toweel, David Birchell APOLOGY : I Gardiner, G Turner DECISION OF EXECUTIVE RE SUSPENSION OF WAYNE ROSE Following the many allegations of Wayne Rose of the mismanagement of boxing by the NSWABA through its Executive Committee, he was requested to be present at this Special Meeting to allow him to discuss these allegations. At 8pm as agreed, the President Pat Hailwood approached W Rose with the request to meet the Executive. Mr Rose advised the President he would only attend if his colleagues Messrs W Warn, S Warn and J Thompson were present as witnesses. He was advised only one person may accompany him to the meeting. This offer was refused. Following the report by the President the following motion was moved by Tony Pratten, seconded Michael Dann. Carried Unanimously. "in line with the Constitution of Boxing NSW, Rule 22, Disciplinary Provisions, that you be expelled from the Association for a period of 5 years from 20 July 2004, in any official capacity in Amateur Boxing in New South Wales, ie: as a delegate or representative of a zone Club/Gymnasium, or refereeing or judging." W Rose will have the right of appeal within 21 days of receipt of this motion should you he so desire. The Southern District Association if it wishes to be represented should nominate another delegate. Meeting closed at 8.30pm 22 Significantly, those Minutes confirm that Mr Rose was advised that only one person could accompany him to the meeting, and that when he did not attend, it was unanimously resolved that he be expelled for a period of five years "in any official capacity in amateur boxing in New South Wales, ie, as a delegate or representative of a zone club/gymnasium, refereeing or judging".

23 On 6 August 2004 Mr Tunstall informed Mr Rose of the resolution in the following terms:

Dear Mr Rose Without Prejudice As a consequence of your failure to appear before a meeting of the Executive Committee on Tuesday 20 July 2004 as requested, I am directed to inform you that the following motion was passed unanimously. " Under the Constitution of Boxing NSW, Rule 22, Disciplinary Provisions, that you be expelled from all positions you currently hold within the Association for a period of 5 years effective immediately." You have the right of appeal within 21 days of receipt of this letter should you so desire. The Southern District Association, if it wishes to be represented should nominate another delegate.

24 Notably, while that letter referred to expulsion from all positions held within the Association, it did not refer to a prohibition from refereeing or judging, and Mr Rose continued to referee and judge in New South Wales in at least one tournament after that date.

25 On 27 August 2004, Mr Tunstall wrote to the President of the Southern District Zone Association, to the effect that if that Zone wished to nominate a second delegate it could do so, "to replace Mr Rose who will not be allowed to attend the meeting having been expelled for a period of five years".

26 Also on 27 August 2004, Mr Rose's solicitor, Christopher M Edwards, wrote to Mr Tunstall, in his capacity as Secretary, complaining that he had been refused the right to call witnesses and asserting that that rendered the purported expulsion void, and foreshadowing legal proceedings. On 9 September 2004, Carneys Lawyers replied, on behalf of the Association, asserting that Mr Rose's decision declining to participate in the meeting was regrettable, acknowledging that his decision not to participate in the meeting may have been taken in the heat of the moment, and thus inviting him to attend a meeting to be held on Saturday, 11 September 2004, which was an ordinary meeting of the Council of the Association. It will be appreciated that that invitation, which was sent at 4.58pm on the Thursday before a meeting to be held on the Saturday at 12 noon - for which meeting the agenda did not include any proposal to deal with Mr Rose - was very short notice indeed, and Mr Robinson, for the Association, quite properly did not assert that proceedings at that later meeting could have cured any defect in the earlier one.

27 Mr Rose did attend the Council meeting on 11 September, in his capacity as a Council member, for the purpose of participating in the ordinary business of the meeting. It is unnecessary to recite the detail as to what took place at that meeting, since it is not relied on as rectifying any previous defect; suffice it to say that the Council purported to endorse the actions of the Executive Committee, and on 21 September 2004 Mr Tunstall wrote to Mr Rose as follows:

Dear Wayne I am directed to advise you that at the Council Meeting of the above Association held at the Coogee Randwick RSL on Saturday 11 September 2004 at which you were present, it was the decision of the meeting that the actions of the Executive Committee on Tuesday 20 July 2004 to suspend you for a period of 5 years because of you actions under Article 22 of the Association's Constitution, be endorsed. Therefore, as indicated in the Association's letter to you of 8 August 2004, your suspension still stands.

28 On 14 October 2004, Mr Tunstall, having received a report from Mr Rose of the results of the Southern District Championships held on 25 October at Griffith, responded to Mr Rose, noting that he had officiated during those championships as a referee and drawing his attention to the fact that he had been "suspended for a period of 5 years from officiating in any capacity in amateur boxing within New South Wales". On 20 October 2004, Christopher M Edwards wrote again to Carneys, asserting that the notice for the meeting on 11 September was unreasonable, and that that meeting had, in substance, changed nothing. Once again, legal proceedings were foreshadowed.

29 It is convenient to break the narrative at this point, since the subsequent events are most conveniently dealt with when the issues of validity and relief come to be addressed.

30 The Association submits that Mr Rose is not a member of the Association and therefore does not have standing to bring proceedings to challenge the resolution of the Executive Committee purporting to expel him.

31 The relevant time, so far as the form of the Constitution is concerned, is as at the meeting on 20 July 2004. At that time the Constitution provided, by Article 5, as follows: 5. INTERPRETATION … b. Membership means those clubs established under Clause 7 of this Constitution. c. "Executive Committee" means the Executive Committee of the Association as provided by Clause 9 of this Constitution. e. "Member" means an affiliated Club. f. "Registered Member" means a registered junior or senior amateur boxer. g. "Delegate" means a person representing a Club on the Council of the Association as provided by Clause 10. h. "Council" means the governing body of the Association. i. "Office Bearers" means the members of the Association as provided by Clause 18 of this Constitution. 32 So far, it will be apparent that the Constitution contemplated a membership made up of clubs established under Article 7, and that the members of the Association are the affiliated clubs.

33 Article 6 of the Constitution provided as follows

6. OBJECTS The Objects of the Association shall be: a. to foster, promote and control the sport of amateur boxing b. to govern and regulate amateur boxing in New South Wales c. to co-operate with recognised State Associations controlling the sport in other States of Australia and other countries in the fostering and control of the sport of amateur boxing d. to regulate and control the operation of all member bodies and affiliates e. to regulate and control the relationships between member bodies and affiliates and the members thereof and to provide facilities for settlement of disputes, punishment of misconduct and for breaches of the rules or regulations made by the Association f. to make such rules and regulations as may be deemed necessary for the purpose of carrying into effect the objects or for the administration and control of the Association g. to act as the supreme disciplinary and adjudicating body in respect to all matters pertaining to amateur boxing in NSW and ACT h. to inflict fines or penalties by way of suspension, expulsion, or otherwise for any breach of the constitution or rules and regulations of the Association i. to delegate all or any of its powers to any committee or committees consisting of one or more persons appointed by the Association j. to employ staff for the purpose of carrying out its objects k. to affiliate with the Amateur Boxing Union of Australia and to operate under the rules of that Union and under the following rules to control and promote Amateur Boxing in New South Wales and the Australian Capital Territory, the NSW Olympic Council and the NSW Division of the Australian Commonwealth Games Association l. generally to do all things necessary for or incidental to the pursuit of the objects of the Association

34 It will be observed that the objects include the government and regulation of amateur boxing in New South Wales. They also include affiliation with what was formerly the Amateur Boxing Union of Australia, the New South Wales Olympic Council and the New South Wales Division of the Commonwealth Games Association. Articles 6(g) and (h) express an intention that the Association be the supreme disciplinary adjudicating body in all matters pertaining to amateur boxing in New South Wales and be empowered to inflict fines, and penalties by way of suspension, expulsion or otherwise for breaches of the Constitution, rules or regulations.

35 Article 7 of the Constitution - which was foreshadowed in Article 5(b) referred to above - relevantly provides as follows: 7. MEMBERSHIP a. The members of the Association shall be all affiliated Amateur Boxing Clubs and Associations, Gymnasiums, Recreation and Sporting Clubs, and other Amateur Bodies who are presently members of the Association and such other persons, clubs or sporting bodies as the Association shall admit to membership, and such Life Members as it may elect from time to time. b. No Club, Gymnasiums etc shall be admitted to membership unless it comprises at least five members. c. All applications for membership shall be in writing addressed to the Hon. Secretary of the Association on the NSWABA prescribed club affiliation form. d. The Association shall have the right to require such information as it deems necessary before determining whether a club or body shall be admitted to membership. e. Membership shall not be granted to any Association, Gymnasium, Recreation or Sporting club or body nor shall membership be suspended excluded or forfeited without a resolution to that effect passed by a 75% majority of the members present at an Executive meeting. f. Any body of Clubs, Zone Associations or Organisations who have a central or controlling Headquarters of which they are part of, shall only be represented on the NSWABA Inc by the appointed delegates from such Headquarters. g. All Zone Associations, Clubs Gymnasiums etc must be affiliated to the Association. h. The membership fee per annum shall be as determined by the Association from time to time. i. The Association's year shall begin on the first day of January in each year and shall end on the last day of December of that year. j. The acceptance of membership of the NSWABA shall operate as an agreement binding every affiliated Club, Association, Gymnasium, etc to abide by all its provisions, laws and rules, and to accept and enforce all its decisions. Any breach of the agreement by a Zone, Club, Gymnasium etc shall render such Zone, Club, Gymnasium etc liable to such penalty as the executive shall determine and in the event of a two-thirds majority voting in favour of expulsion, such club, Zone, Gymnasium etc shall be expelled from membership.

36 Although it was removed by a later amendment, it is potentially significant that the words "other persons" then appeared in Article 7(a). However, the subsequent sub-articles use the formula "club, gymnasium etc" which recurs later in the Constitution. Article 7(j) is important because it indicates, beyond any doubt, that the Constitution was intended to give rise to legal obligations and consequences.

37 Article 9, entitled "Power of the Executive Committee", includes the following relevant provisions: a. The control and management of the Association shall be vested in an Executive Committee which shall be elected by the delegates every four (4) years and shall report its activities at council meetings. b. The Executive Committee shall consist of the President, The Vice-President, Honorary Secretary, Honorary Assistant Secretary, Honorary Treasurer, Honorary Registrar, six (6) committee men - one of who shall be a representative of the New South Wales Police Citizens Youth Federation, and Life Members. c. No business at any Executive Committee meeting shall be transacted unless a quorum be present. Five (5) members present in person shall constitute a quorum.

38 There is a clear distinction between a member of the Association on the one hand, and a member of the Executive Committee on the other.

39 Article 10, entitled "Power of the Council", includes the following: a. The Council shall consist but not including associate clubs who are members of Zone Association of two (2) delegates from each current affiliated club and Zone Associations and the Office Bearers, and Life Members all of whom shall be amateurs in accordance with the definition of an amateur in this constitution. b. No business shall be transacted at any meeting of the council unless a quorum of members in present at the time when the meeting proceeds to business. Eight (8) members present in person shall be a quorum.

40 The reference to members in Article 10(b) is to members of the Council, as distinct from members of the Association, and it is quite clear that there is a difference between a member of the Council and a member of the Association.

41 Article 18, entitled "Office Bearers", includes the following: a. The office bearers of the Association shall be: President, Vice-President, Honorary Registrar, Honorary Treasurer, Honorary Secretary, Honorary Assistant Secretary and six (6) Committee members who shall be elected for a period of four (4) years.

42 Yet again, this makes clear that there is a difference between committee members and members of the Association.

43 Article 22, entitled "Disciplinary Provisions", is as follows: a. If any Zone, Club, etc or Registered Amateur Boxer or Registered State Trainer of the Association shall be guilty of any conduct which in the opinion of the Executive Committee is unbecoming of a member or prejudicial to the interest, image or welfare of the Association or make public statements which in the opinion of the Executive committee are damaging to the reputation of the Association the Executive Committee shall have power to suspend or expel the member from the Association provided that at least one week before the meeting of the Executive committee at which a resolution for the suspension or expulsion is passed the member shall have had written notice of such meeting and of what is alleged against him and that he shall at such meeting and before the passing of such a resolution have had an opportunity of being present and giving orally or in writing any explanation or defence he may think fit. A Barrister, Solicitor or any person in law shall not be eligible to act as a representative. b. The Executive Committee may be a resolution passed by a majority of the Executive Committee present at a meeting specially called for the purpose suspend, exclude or forfeit the right of a Club Member or Zone Association to membership or representation in the Association as it thinks fit if the club Member or Zone Association shall - i. be guilty of conduct which in the opinion of the Association is unbecoming of a Club Member or Zone Association or is prejudicial to the interests, image or welfare of the Association, ii. amend, alter or otherwise change its Constitution in such manner as to conflict with the constitution of the Association or without the approval of the Executive Committee, iii. fail to pay to the Association any monies due by it after due notice has been given, iv. fail to discipline any of its members who in the opinion of the Association have engaged in any conduct unbecoming of a member of that Club or Zone Association or conduct prejudicial to the interest, image or welfare of the Association or make public statements which in the opinion of the Executive committee are damaging to the reputation of the Association, v. provide always that at least seven (7) days before the meeting of the Executive Committee at which the resolution is proposed the Club or Zone Association shall have notice in writing of such meeting and before the passing of such a resolution have had an opportunity of giving in writing or orally any explanation or defence he may think fit, vi. upon any complaint being made to it of any breach of the Constitution or rules and regulations or of conduct contrary to the policy or prejudicial to the interest or welfare or image of the Association or the sport of boxing on the part of any Member of the Association, Club or any individual member thereof, the council shall have the power to deal with such complaint and in the exercise of the power hereby conferred may disqualify, suspend, find or otherwise deal with any person it finds after due inquiry to have been guilty of such conduct.

44 It seems likely that in the course of the years the typesetting, layout and enumeration of Article 22 has become corrupted. Article 22(a) deals with discipline of any zone, any club etc, registered boxer, registered State trainer of the Association for "conduct ... unbecoming of a member or prejudicial to the interest, image or welfare of the Association", by the Executive Committee. Article 22(b) deals with disciplinary action against "a club member" or "zone association" on any of the four enumerated grounds mentioned; sub-para (v) appears to be a proviso to Article 22(b). However sub-para (vi), although typed as if part of Article 22(b) is, in fact, a separate head of power, and it is a power conferred on the Council, as distinct from the Executive Committee powers contained in Articles 22(a) and 22(b). Significantly, sub-para (vi) deals with conduct "on the part of any member of the Association, club or any individual member thereof". The reference to an "individual members thereof" means any individual member of a club that is affiliated with the Association. There is no reference to individual members in 22(a) or 22(b) - unless it is picked up by the "etc" in 22(a). However, given the structure of the Association as a federation of clubs, it would be surprising if power over individual members of clubs was given so casually under Articles 22(a) and (b) to the Executive Committee, when special reference was required in Article 22(b)(vi) to give power over such persons to the Council.

45 The construct of the New South Wales Association was one quite familiar in the sporting environment - namely, a State federation of local clubs and associations, with the local clubs and associations being the members of the State body, rather than individual members being admitted to the State body. The better view of the Constitution is that it did not contemplate individuals (other than those who were elected as life members) being admitted in their own right as members. The subsequent amendment of the Constitution to remove the words "other persons" from clause 7(a) did not, in fact, change the substance of 7(a), but removed an unintended potential source of confusion.

46 But despite that, for reasons to which I now come, the practical effect of the Constitution is that the individual members of the affiliated clubs and zone associations became members of the State Association.

47 There is no evidence of any application for membership by Mr Rose, or by any other individual for that matter. There is no evidence that individuals were charged or paid subscriptions. As I have pointed out, the circumstance that an affiliated club or zone association appoints someone as a delegate to the State Council makes that delegate a member of the Council, but that is not the same thing as being a member of the Association. However, what has to be borne in mind is that each of the affiliated clubs and associations appear to have been unincorporated clubs or associations. It does not matter whether all of them were, as I can safely infer from its name that the Southern District Zone Association was an unincorporated association, there being no indicia of incorporation attached to its name, and no other evidence of incorporation.

48 In Hawick v Flegg (1958) 75 WN (NSW) 255, McLelland J, as he then was, considered the relationship between the Wagga Rugby League Football Club, an unincorporated Association, and the New South Wales Rugby League, which then was also an unincorporated Association. It was argued that the General Committee of the NSW League was a supervisory body, and that having regard to the rules and the Constitution of the various subsidiary clubs and zone organisations, there was no contractual relationship between each of the individual members. His Honour answered that argument by pointing out that the NSW League consisted of the metropolitan district clubs, junior leagues, the country leagues, the New South Wales referee associations and other affiliated clubs and leagues and continued (at 259):

The bodies mentioned, of course, are all in themselves unincorporated bodies, and the net result is that each member of a club throughout the league is a member of the league and, indeed, throughout the rules individual members are referred to.

49 The same is plainly so in the present case. The zone associations and affiliated clubs are, at least so far as they are unincorporated bodies, no more than the sum of their members, and the result is that each member of a zone association or club is a member of the State Association. Although perhaps references to "individual members" are not as prevalent in the Association's Constitution as they were in the rules of the league, there is at least the reference to individual members in Article 22(b)(6), which reinforces that view.

50 A similar conclusion was reached in the New Zealand Court of Appeal in Finnigan v New Zealand Rugby Football Union Inc [1985] 2 NZLR 159, in which reference was made to the significance of the New Zealand Rugby Union, although technically a voluntary and private sporting association, in the overall New Zealand political and cultural context, and that although the plaintiffs in that case did not have a direct contractual relationship with the national New Zealand Union, they were linked to it as local club members through a chain of contracts sufficient to give them standing.

51 To the extent there is any difference between the approach adopted in Finnigan, and that adopted in Flegg, and I do not think the difference is of significance, I prefer that in Flegg.

52 Mr Rose alleges in his Statement of Claim that he was a member of the Southern District Zone Association. The defence neither admits nor denies that, but the evidence establishes, first, that he was Secretary of the Southern District Association; and secondly, that he was elected as its delegate to the State Council. While those matters probably suffice to justify an inference that he was a member of the Southern District Association, the matter is put beyond doubt by a letter from Mr Tunstall to Mr Barber of the Southern District Association, dated 9 March 2005, which includes: I trust the contents of this letter is clearly understood by your members and the Association awaits your answer and decision that Mr Rose is no longer a member of the SDABA and will not officiate in any capacity within the Zone.

53 Such a construction of the relationship between Mr Rose and the Association is also consistent with the basis upon which all the parties acted at the time in 2004. The Association admits in its pleadings that it treated Mr Rose as if he were a member. No doubt it treated other members of clubs and associations as if they were members in the sense that I have described.

54 Accordingly, I would hold that, as in Flegg and Finnigan, Mr Rose has standing, arising from a contractual relationship with the Association, to challenge the relevant resolution.

55 Even if that view were wrong, I would find that he had standing, at least to claim declaratory relief. Supreme Court Act 1970, s 75, confers on the Court an ample power to grant declaratory relief whether or not any other or consequential relief is sought. The power was not in so ample terms when Cameron v Hogan (1934) 51 CLR 358 was decided.

56 A Court may refuse to grant declaratory relief if a plaintiff seeks a declaration in respect of a non-justiciable issue [Mutasa v Attorney-General [1980] QB 114; Johnco Nominees Pty Ltd v Albury Wodonga (NSW) Corporation [1977] 1 NSWLR 43]. This is the preferable explanation of the view which prevailed in Cameron v Hogan that not only injunctive but also declaratory relief was unavailable in a case of a dispute arising from an expulsion from an unincorporated association - in that case the Victorian branch of the Australian Labor Party - where the members had no interest in property and where it was found that there was no intent that the Constitution give rise to legal regulations.

57 In this case, first, the Association is incorporated and there is a deemed contract on the terms of its Constitution. Secondly, Article 6(h) makes clear that even if the Association were not incorporated, it was intended to have legal consequences for the relations between it and its members.

58 Thirdly, if it be wrong to hold that Mr Rose is a member in the sense I have described, one would have the situation that his ability to carry on his activities and affairs in the boxing sphere could be affected by an organisation of which he was not a member and to which he had not subscribed, yet could determine his ability to participate in boxing affairs. There are cases in which non-members have obtained declaratory relief against Associations for denials of natural justice or excesses of powers. Some of those cases were referred to by Campbell J in McClelland v Burning Palms Surf Lifesaving Club (2002) 191 ALR 759, [110]-[117]. Although many were cases in which a financial interest or a restraint of trade was involved - for example, the warning-off by the Trotting Club of a punter in Forbes v NSW Trotting Club Limited (1979) 143 CLR 242 - that was not so in the student council case of Harrison v Hearn [1972] 1 NSWLR 428, nor in Finnigan v New Zealand Rugby Football Union Inc.

59 The circumstance that the Association here effectively controls the sport of amateur boxing in New South Wales with important affiliations and some public funding places it in a position rather different from a private social club. In Field v New South Wales Greyhound Breeders, Owners & Trainers Association Limited [1972] 2 NSWLR 948, Street J, as he then was, held that the declaratory jurisdiction of the Court extended to a case of disqualification by a club from attending that club's race meetings because the consequences would almost certainly involve cancellation of the plaintiff's registration as a bookmaker and affect his livelihood. In Plenty v Seventh-Day Adventist Church of Port Pirie (1986) 43 SASR 121, the Full Court of the Supreme Court of South Australia held that injury to reputation, even without other relevant property rights, where there were no other means of redress, was sufficient to distinguish the case in fact and in law from the principle in Cameron v Hogan.

60 So, on the several bases (1) that there is plenary power to grant declaratory relief absent a statutory provision precluding it, and (2) that the Association is not a mere private social club, but performs important public functions, and (3) that the reputation and ability of Mr Rose to conduct his affairs and activities in the boxing field, albeit amateur and not professional, is at stake, and (4) that in this case unlike in Cameron v Hogan it is not even faintly arguable that the Constitution of the Association was not intended to give rise to legal consequences, I would hold that Mr Rose has standing to claim declaratory relief, even if he did not have standing on the contractual basis to which I have referred.

61 This issue involves whether the Executive Committee was entitled as a matter of jurisdiction to deal with Mr Rose under Article 22.

62 Article 22(a) deals with "any zone, club, etc or registered amateur boxer or registered State trainer of the Association". It does not deal, for example, with referees or judges, which Mr Rose was. The formula "zone, club, etc" is shorthand for the terms used in the concept of membership in clause 7, and having regard to the overall structure of the Constitution were not intended to extend to individual club members, but to the associations, gymnasiums, clubs or bodies admitted as club members of the Association.

63 In Article 22(b) the power of the Executive Committee is limited to a "club member" or "zone association". The remainder of Article 22(b), including in particular sub-paras (i) to (v), make clear that the reference to "club member" in that clause is not to an individual member of a club, but to a club that is a member of the Association. Mr Rose does not fall within any of the persons liable to be dealt with under Article 22(b), except sub-para (vi).

64 Any power to deal with an individual member of an affiliated club is contained in Article 22(b)(vi). That Article confers power on the Council, but not on the Executive Committee, to deal with a complaint against such a member. The Executive Committee had no power to deal with an individual member of a club, and therefore had no power to deal with Mr Rose on 20 July 2004 as it purported to do. The only organ of the Association that could deal with him under Article 22 was the Council, under Article 22 (b)(vi).

65 I conclude that Mr Rose was not amenable to the jurisdiction of the Executive Committee under Article 22, and that the Executive Committee had no power to pass the resolution which it purported to adopt on 20 July 2004. Lest I be wrong in that conclusion, however, I should address the question of natural justice.

Natural Justice 66 Generally speaking, the rules of natural justice have two aspects: the hearing rule and the bias rule. In this case, only the hearing rule is in question. I refused a late application for leave to amend to rely on an allegation of pecuniary bias, and I shall at this stage shortly explain why I did so. First, an allegation of bias - and the allegation was directed specifically at Mr Tunstall - is always a serious one; in circumstances where the Statement of Claim had already had to be reformulated once, and when this allegation was formulated in the course of the first day of what was meant to be a one day, and has turned out to be a two day hearing, to allow it to be raised at that stage could not possibly have afforded a fair and proper opportunity to the Association and Mr Tunstall to adduce evidence in response to it and address it. To have done so would have been at least as grave a denial of natural justice as that of which the plaintiff complains in these proceedings. Secondly, I concluded that the allegation could not succeed. It was put chiefly as an allegation of pecuniary bias, but that description misconceives what is pecuniary bias. It is not pecuniary bias for a salaried officer of an association to vote on a resolution of the governing body of which he is a member. It is pecuniary bias only if the person against whom bias is alleged has a financial interest in the outcome - that is, if he or she would be better off financially if the matter were resolved one way than the other. So judges do not hear cases about companies in which they have a substantial shareholding, if the outcome of the case might affect their interest in that company. There is nothing to suggest that Mr Tunstall had the slightest financial interest in whether or not Mr Rose was disqualified.

67 The argument was also put on the additional basis that Mr Tunstall acted as a dominant member of the Executive Committee and the Council, but was disqualified from membership of the Council and Executive Committee by reason of not meeting the requirements of the amateur definition. While I do not pretend finally or forever to resolve this issue, it appears that what was then sub-clause 5 of the Bylaws, and has now in the amended Constitution been re-enacted in another form, provided for an exception from loss of amateur status in the following terms:

The following exceptions shall be made to this rule:

(d) Receiving remuneration for any office connected with athletic sport, if sanctioned by the governing association, shall not constitute a person a professional.

68 That exception provides a very significant obstacle to the suggestion that Mr Tunstall, who it may well be receives remuneration in connection with being Secretary of the Association, has thereby become a professional. To the contrary, at least prima facie, that provision would mean that he has not.

69 The issue before the Court on the question of natural justice is therefore restricted to the hearing rule, and in particular to the notice which Mr Rose was given of the proceedings against him and the exclusion of his witnesses.

70 So far as notice is concerned, a valid notice should draw to the attention of the accused the consequences of non-appearance. Here, it drew to his attention the consequence that he might be suspended. It is obvious from the correspondence that Mr Rose, as he was invited to, read Article 22, and had he read Article 22 he would have read that he could have been suspended or expelled from the Association, or disqualified, or otherwise dealt with. However, nothing in the notices addressed to Mr Rose drew his attention to the circumstance that he might be prohibited from acting as a referee or a judge. Not only were the terms of the resolution ultimately adopted by the Executive Committee not notified to him in advance, but when he was advised of the resolution, the advice to him simply referred to expulsion from all positions held within the Association, and did not explain that he was expelled in any official capacity including "refereeing" or "judging", which was the terms of the actual resolution. In my opinion, the notice was inadequate because if failed sufficiently to point out to Mr Rose the potential consequences of non-appearance, in failing to advert not only to expulsion but in particular to acting as a referee or judge.

71 But the far more significant problem is what happened so far as the calling of witnesses is concerned. From the description of the background outlined above, it will be apparent that Mr Rose notified the Association in advance of his intention to call witnesses in support of his case. The concept of an opportunity to present a defence includes an opportunity to tender evidence to prove facts to be relied on in that defence. It may well be that if alternative means were suggested or provided, such as the provision of statutory declarations or statements, then a refusal to hear oral evidence might not be a denial of natural justice. But that is not what happened in this case.

72 In Brettingham-Moore v St Leonards Municipality (1969) 121 CLR 509, Barwick CJ (at 524) pointed out that a rule which authorised a tribunal to proceed "after taking such evidence and hearing such argument as it thinks proper" was not a charter to refuse to hear any argument, but meant no more than that the Commission could decide for itself upon the relevance of evidence offered to it and regulate the extent of the argument which it would allow to be presented, that being a far cry from the power to refuse to hear it at all. Such a provision does not warrant the exclusion of relevant materials or arbitrary interference with the presentation of a party's case [cf Forbes, Justice in Tribunals, [12.53]].

73 I wholly accept that it will often not be a denial of natural justice to reject, even wrongly, certain evidence, and likewise that it is not a denial of natural justice to put some limitation on the number of repetitive witnesses who can be called to say the same thing [Bailey v A'Hearn (1968) 13 FLR 199, 205-206, in which the President of a trade union branch who presided over an investigation indicated that while the rules made no provision, he felt that three witnesses each would be a fair thing, to which the claimants did not object and, indeed, one said "fair enough"]. In R v Dobson; Ex parte ANM (1975) 15 ACTR 33, Fox J pointed out that a wrongful allowance or disallowance of a question does not certainly amount to a denial of natural justice, but added: " Natural justice" is a rather elusive rubric and I would not for myself like to say that in no circumstances could disallowance of a question amount to a denial of natural justice when taken in the situation of a particular case. On the other hand, it is plain that cross-examination can be so excluded or abridged or interfered with that there will be a denial of natural justice.

74 Forbes also points out (at [12.53]) that when in doubt as to the relevance of evidence proposed to be adduced or witnesses proposed to be called, a tribunal is entitled to ask the party concerned to indicate at once how material which presently seems irrelevant will become irrelevant, and to make a provisional or final ruling in the light of the reply. Unfortunately, that did not happen here. The Executive Committee made no attempt to ascertain the relevance of the evidence that Mr Rose wished to adduce from the witnesses he brought with him to the meeting. At this stage of the inquiry, I do not think it falls to Mr Rose to show that they could have given relevant evidence: the question is whether he was given a hearing, in the sense in which that term is understood in the context of natural justice. To be told immediately before that hearing - and having already been told twice that he would not be allowed any witnesses - that he would be allowed only one, conveys that he is not going to be given a hearing and permitted to adduce the evidence that he wishes to adduce. It would expect too much of a layperson faced with that announcement to remain and persist with such a restricted hearing as the Committee was prepared to afford him. The repeated statements, first that he would not be permitted to call any witnesses, and then that he would be permitted only one, amount to a constructive refusal to hear him and indeed, to hear whatever evidence Mr Rose wished to call in his defence.

75 In my opinion that was a breach of the hearing rule and constituted a denial of natural justice. Accordingly, I would find that if the Executive Committee had jurisdiction over Mr Rose, its purported exercise of that jurisdiction was affected by a denial of natural justice.

76 The general rule is that although when a decision to which the rules of natural justice apply is affected by a breach of those rules, it is not void ab initio in the sense of having no effect whatsoever, it is not merely voidable but upon a denial of natural justice being found by a Court is then rendered void, and void from the moment it was made. [Calvin v Carr [1979] 1 NSWLR 1, 8 (Lord Wilberforce); Forbes v NSW Trotting Club Ltd (1979) 143 CLR 242, 277 (Aickin J)]. The consequence of that is that, prima facie, the decision of the Executive Committee is void. Mr Robinson submits, however, that this is overcome on two distinct principles.

77 The first is that referred to by the High Court of Australia in Stead v State Government Insurance Commission (1986) 161 CLR 141, which is to the effect that an appellate Court will not order a new trial if the new trial would inevitably result in the making of the same orders as were made by the primary judge at the first trial. However, the Court added that it was no easy task for a Court of Appeal to satisfy itself that what appeared on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial on an issue of fact, that being magnified when the issue concerned the acceptance or refusal of the testimony of a witness at the trial [see also Murray v Legal Services Commissioner (1999) 46 NSWLR 224, [102]].

78 Whether the principle in Stead applies to tribunals is not entirely clear. It evolved in the context of an order for a new trial on an appeal from a court, which relief has always been discretionary. For present purposes, however, I will accept, as Sheller JA did in Carson v Legal Services Commissioner [2000] NSWCA 308, that the Court has a discretion as to whether it will declare void a decision reached without adherence to the requirements of procedural fairness, which discretion may be exercised against making such an order, for example, in cases of delay by the applicant, or where the decision has been acted on to the detriment of third parties [Carson, [45]]. Nonetheless, as was pointed out both in Stead and in Murray, it is not easy, on a matter of fact as distinct from one of law, to persuade a court that the denial of natural justice could have had no consequences on the outcome.

79 In this case, it seems at least possible that, had Mr Rose been permitted to call witnesses, they might have shown that at least one of the documents which was alleged to be his work was in fact not his document and, moreover, they might have shown that Mr Rose, though dissatisfied with the current management of Boxing New South Wales and though desirous of having it replaced, wished to do so by an internal takeover using its own processes, rather than by setting up a rival organisation. At least, the possibility that the evidence of these witnesses might have illuminated those issues, and that such evidence might have influenced a fair-minded Executive Committee, cannot be excluded.

80 As has already been mentioned, Mr Robinson properly does not assert that any problem with the resolution of 20 July was overcome by the 11 September meeting. However, the second basis of his submission is that the defects in the original resolution have been "cured" by a subsequent process. At this point, it is necessary to return to the chronology.

81 On 7 January 2005 Mr Rose sent a letter to the Secretary of Boxing Australia by way of appeal to Boxing Australia under clause 19(h) of its then Constitution requesting that his appeal be placed on the agenda of Boxing Australia's next meeting.

82 In very early 2005, or perhaps late 2004, Boxing New South Wales distributed a circular which, amongst other things, notified promoters, trainers, boxers and boxing officials that anyone who used a person suspended by Boxing New South Wales would themselves automatically be suspended at pleasure of the Association. On 9 March 2005 Mr Tunstall sent a letter to Mr Barber at the Southern District Zone Association emphasising that Mr Rose was not permitted any connection with Boxing New South Wales.

83 On 23 March 2005 Mr Rose prepared and appears to have lodged with Boxing Australia a detailed submission in support of his appeal. The then Committee of Management of Boxing Australia met on 2 April 2005. The Committee of Management resolved to refer the appeal to the incoming Board of Directors, which was imminently to take office as a result of a change in the Constitution of Boxing Australia. The appeal was referred to a barrister for legal advice, who advised that it was out of time, and on 27 April 2005 the Board of Directors of Boxing Australia dismissed the appeal as out of time. However, it would appear that neither counsel who advised that it was out of time, nor the Board that dismissed it as out of time, were aware that it had been lodged on 7 January 2005 which would seem to have been within time under the Constitution as in force when the decision of Boxing New South Wales was made, and when the appeal was lodged.

84 Nonetheless, having refused to consider the appeal, the Board of Directors wrote to Mr Rose in terms that pointed out that under the new Constitution, he had the right to make an allegation to Boxing Australia against Boxing New South Wales. Clause 17 of Boxing Australia's Constitution is relevantly as follows: 17. Disciplinary Action Grounds for investigation by Judiciary Committee 17.1 The Board may refer for investigation or determination by a Judiciary Committee an allegation that a Member Association has: … (iii) breached, failed, refused or neglected to comply with a provision of this Constitution, the By-Laws or any other resolution or determination of the Board or duly authorised committee; or (iv) acted in a manner prejudicial to the Objects and interests of BAI and/or boxing, or which has brought BAI or boxing into disrepute.

85 This power to discipline member associations (of which Boxing NSW is one) is quite distinct from the power to hear disciplinary appeals by persons against the disciplinary decisions of member associations, under clause 18. 86 Mr Rose took up that invitation and made an allegation under clause 17. It was referred to Mr Tunstall at Boxing New South Wales for comment, and Boxing Australia established a judiciary committee to consider the complaint. Notice of hearing of that inquiry was given, including to Mr Rose, and a full meeting took place at which he was represented by counsel and accompanied by witnesses. It is not without significance that his counsel was called on to open. The determination of the Judiciary Committee was recorded in a minute in the following terms: Mr Wayne Rose's Allegation That Boxing New South has by: Its suspension of him from holding any position within NSW for a period of five years (including the ability to act as a referee and judge) under Boxing Australia's Constitution- Clause 17.1(iii): Breached, failed, refused or neglected to comply with a provision of this Constitution, the By-Laws or any other resolution or determination of the Board or duly authorised committee, and clause 17.1(iv): acted in a manner prejudicial to the Objects and interests of BAI and/or boxing, or which has brought BAI or boxing into disrepute. Judiciary Committee Finding 1. The penalty imposed on Mr Rose although described as a "suspension" is, effectively, an expulsion from Boxing NSW. 2. The penalty has been imposed according to the provisions of the Constitution of Boxing NSW. 3. Mr Rose did not exercise his right of appeal to Boxing Australia against the penalty in the time allowed under the then Boxing Australia Constitution. 4. The appeal provision in Clause 18 of Boxing Australia's newly adopted Constitution cannot be used retrospectively by Mr Rose to launch an appeal. 5. Clause 17 of Boxing Australia's newly adopted Constitution cannot be used by Mr Rose as a substitute for Clause 18 through which to launch an appeal. 6. Mr Rose has not substantiated his claim that Boxing NSW is in breach of Clause 17.1(iii) of BAI's Constitution. 7. Mr Rose has not substantiated his claim that Boxing NSW is in breach of Clause 17.1(iv) of BAI's Constitution. 8. The committee has sympathy with Mr Rose and his situation but has decided that Boxing NSW has arguable reason to have come to its decision. 9. A judiciary Committee's ability at present to make determinations is extremely limited due to the non-existence of a By-Law made pursuant to Clause 17.6. Judiciary Committee Recommendation 1. Action under Clause 17 should not be taken against Boxing NSW regarding Mr Rose's allegation. 2. A By-Law pursuant to Clause 17.6 should be created. 3. A conciliator should be appointed to negotiate with Mr Rose and Boxing NSW with the aim of facilitating his return to amateur boxing activity in NSW.

87 Plainly, that minute addresses not an appeal, but a complaint under clause 17. It records a finding that Mr Rose had not substantiated his complaint, and a resolution that the Committee was not entitled to deal with any appeal, concluding that Boxing New South Wales had "arguable reason to have come to its decision". That is not any indication at all of a hearing de novo of the allegations against Mr Rose, but rather of a hearing of his complaint against Boxing New South Wales.

88 Thereafter, on 25 August 2005, the directors of Boxing Australia ratified the decision of the Judiciary Committee and notified Mr Rose of the dismissal of his complaint. But by the same letter of 31 August 2005, it held out the promise of conciliation of the dispute. That process broke down in early September 2005. On the evidence, I accept that it broke down because Boxing New South Wales refused to change its position over Mr Rose's expulsion.

89 Cases such as Calvin v Carr suggest that there are circumstances in which an internal appellate process can cure a breach of natural justice in the first instance in disciplinary proceedings. The basis in principle for this is unclear, and I respectfully share and adopt the views expressed by Spigelman CJ, endorsing those of Fitzgerald JA, in Hill v Green (1999) 48 NSWLR 161 at [55], [154]-[164]. For present purposes, those views may be summarised as indicating that the internal appellate process does not really "cure" any defect, but may provide a discretionary reason for declining to grant prerogative or similar relief for a denial of natural justice, where there has been a subsequent full appeal unaffected by any such denial. Cases such as Calvin v Carr, Twist v Randwick Municipal Council and Hill v Green also make clear that, for an appellate process to have this effect, the appeal must be a full appeal on facts and law, in which the appellant does not commence from the position of having to establish error. Typically, such a "cure" may be available if there is a full hearing de novo in which the accuser remains the beginning party.

90 On any view, what happened in respect of Mr Rose's appeal was not a full appeal of that type. His appeal was dismissed, prima facie wrongly, as out of time. The clause 17 complaint procedure was quite plainly not an appeal, but a proceeding in which Mr Rose bore the onus of proving breaches of the Constitution against Boxing New South Wales and which was resolved by the Judiciary Committee finding, inter alia, merely that Boxing New South Wales had "an arguable basis" for its decision. There has not been any such appeal as could cure the denial of natural justice in the first instance decision.

91 It has also been submitted on behalf of Boxing New South Wales that the operative decision which affects Mr Rose is no longer that of Boxing New South Wales, but that of Boxing Australia on the clause 17 complaint. I do not agree. The decision of Boxing Australia had the effect of dismissing Mr Rose's complaint, not upholding his expulsion. Nor would I agree even if there had been a full appeal under the original clause 19: by way of illustration, if the Supreme Court of New South Wales strikes off a barrister for misconduct and the barrister then appeals to the High Court, which upholds the decision of the Supreme Court, the operative decision is the initial decision of the Supreme Court. When the High Court allows an appeal, it varies or substitutes orders for those of the Supreme Court, which have effect as orders of the Supreme Court. The operative decision here, which expels Mr Rose, was the decision of the Executive Committee - or at least that would have been so had it been valid.

92 It has also been argued that relief should be declined on the discretionary ground of delay. The chronology recorded above indicates that each time Mr Rose approached Boxing Australia he was, in the words of his counsel, although repelled offered an olive branch: when his appeal was dismissed as out of time, he was offered the olive branch of the s 17 procedure; when the s 17 procedure failed, he was offered the olive branch of conciliation. I do not see why he should be expected to have brought his grievance to the Court before all of these processes ran their course, which was in about early September 2005. And the period from September 2005 until these proceedings were instituted in January 2006 is not material or prejudicial delay such as to disqualify him from claiming relief.

93 On the other hand, it is clear that the pendency of the current resolution is affecting his ability to act as an amateur boxing referee and judge and is affecting his reputation, particularly in New South Wales, and declaratory relief to relieve him of that burden is warranted.

94 Mr Rose claims damages for loss of reputation arising from his wrongful expulsion. Mr Ryan submits that damages are available against an incorporated association for loss of reputation arising from wrongful expulsion; Mr Robinson submits that they are not. This dispute involves, at least, the following issues:

· Can damages be awarded for a breach of natural justice or excess of power by a club or association? · If so, can such damages include damages for loss of reputation and disappointment?

· If so, what damages does the evidence establish in this case?

95 Can damages be awarded for a breach of natural justice or excess of power by a club or association? In Abbott v Sullivan [1952] 1 KB 189, the Court of Appeal held that in the absence of malice, the ultra vires removal of the name of the plaintiff from the register of cornporters founded no action in tort, and there was no basis for implying a contract that the committee would do nothing ultra vires, so that damages were not available. However, Morris LJ acknowledged that the position was otherwise in respect of an incorporated club - presumably because in such a case there is a contract binding the members and the club. 96 In King v Foxton Racing Club [1953] NZLR 852, the New Zealand Court of Appeal held that plaintiffs, who were members of the Club and had been duly nominated for election to the Committee but whose nominations were wrongly rejected as invalid, were wrongly deprived of their right to have their names submitted to the Annual General Meeting for election, and that having suffered a deprivation of such right they were entitled to damages, which in the absence of further evidence were nominal only. Although not expressly stated, the basis for this must have in contract: the "right" in question was clearly enough one under the rules of the Club, of which the appellants were members. 97 In Bonsor v Musicians Union [1956] AC 104, the House of Lords held that a member of a registered trade union who was wrongfully expelled from it was entitled to maintain an action against the trade union for damages for breach of contract, as a result of which he was unable to obtain employment as a musician and was compelled to work in other spheres at a significantly lower remuneration. 98 In Fagan v National Coursing Association of SA Incorporated (1974) 8 SASR 546, Bright J said (at 563) that there appeared to be no reported authorities for the proposition that a mere improper expulsion of a member, not amounting to a breach of property rights or breach of contract, could give rise to a claim for damages (although a claim in tort might arise against anyone who attempted in purported pursuance of a resolution which was a nullity to prevent a person from exercising his rights and thereby caused him damage). As an interlocutory injunction had been granted preventing implementation of the resolution, no damage had been suffered.

99 In Stininato v Auckland Boxing Association (Inc) [1978] 1 NZLR 1, the New Zealand Court of Appeal held that a professional boxer, whose licence was not renewed when it expired, he having applied for its renewal, without notice to him or any opportunity to be heard, was not entitled to damages in lieu of an injunction, when he had not claimed an injunction; the Court said that Lord Cairns' Act should not be invoked to award damages in cases of invalid decisions of domestic tribunals. There was apparently no contractual relationship between the boxer and the association. However, why Lord Cairns' Act should not be available where an injunction would lie for breach of contract is not apparent. The modern form of Lord Cairns' Act, in this state, is as follows [(NSW) Supreme Court Act, s 68]: 68 Damages in case for equitable relief

Where the Court has power: (a) to grant an injunction against the breach of any covenant, contract or agreement, or against the commission or continuance of any wrongful act, or (b) to order the specific performance of any covenant, contract or agreement, the Court may award damages to the party injured either in addition to or in substitution for the injunction or specific performance. 100 That provision makes clear that as a matter of power, damages can be awarded in lieu of or in addition to an injunction in any case where the Court can grant an injunction against a breach of contract. The circumstance that the contract is the constitution of an association cannot cut down that power, and does not dictate that the discretion to award Lord Cairns' Act damages must invariably be exercised against such an award.

101 In Byrne v Auckland Irish Society Inc [1979] 1 NZLR 351, the plaintiffs were wrongfully expelled in breach of the rules of natural justice and the constitution which required that they be given precise notice of the charge against them; because this was an incorporated society the rules of which bound the members and the society as a contract, there was a breach of contract, in respect of which the plaintiffs were entitled to damages. Each was awarded $100, for the inconvenience (resulting from loss of resort to the club's premises), vexation and distress occasioned by their expulsion.

102 In Navarro v Spanish-Australian Club of Canberra Inc (1987) 87 FLR 390, the plaintiff's membership of the defendant club was purportedly suspended. The rules made provision for notice in the case of expulsion but were silent in the case of suspension. Miles CJ held that the absence of proper notice was not a breach of the rules, though it was a denial of natural justice by reason of which the resolution was void. Insofar as breach of the rules was alleged, his Honour said (at 397): I am unable to see on any of the material put before me how an incorporated body such as the club becomes liable in damages simply because it has, through its Committee, acted in breach of the rules of the club to the detriment of a member. No authority was cited as direct support for this broad proposition. In any event there is no causal connection between the breach, namely the failure to give notice of the meeting, and the damage alleged, that is the detriment suffered by the loss of membership for a year. It was the decision of the Committee to suspend membership (not the failure to give notice) which caused the detriment. The decision, and the detriment, might just as well have occurred if notice had been given. Damage to loss of reputation was not pleaded and there was no evidence of it. 103 As to the consequences of a breach of the rules of natural justice, his Honour said: For the plaintiffs it was submitted that a breach of those rules led to a right to damages if damages were sustained. No authority was cited for that submission. It is, in my view, contrary to principle. Where a body is required to observe the rules of natural justice but fails to do so, any decision consequent thereon may be declared void by a competent court and a person adversely affected is restored to the position which he or she occupied prior to the decision. The relief granted which has the effect of nullifying the decision taken, may be by way of a declaration or the prerogative writ of prohibition, but if a right to damages exists, it has to be found elsewhere than in the right to have the decision nullified for breach of natural justice. As I have said, the plaintiffs' claim is not for breach of contract. The club was not guilty of breach of contract, and the decision of the Committee was not a breach of r 93. I can see no basis on which damages might be awarded. 104 With great respect, there are a number of difficulties with this. First, insofar as his Honour held that an incorporated club did not become liable in damages for acting in breach of its rules to the detriment of a member, and that no authority had been cited for the proposition that it did, reference cannot have been made to Abbott v Sullivan, King v Foxton Racing Club, Fagan v National Coursing Association of SA Incorporated or Byrne v Auckland Irish Society Inc, all of which support the view - on which some of them depend - that damages may be awarded in respect of a wrongful expulsion, on the basis of breach of contract, in the case of an incorporated club. Secondly, insofar as his Honour denied a causal connection between the failure to give notice in accordance with the rules and the detriment suffered by loss of membership which was found to flow not from the failure to give notice but from the resolution to suspend, that gives too narrow a content to the obligation to give notice: the true obligation is not to expel (or suspend) without due notice, and the detriment flows directly from the suspension in breach of that obligation. The circumstance that the plaintiff might have been suspended in any event had proper notice been given goes to the measure of damages, not to causation.

105 Thirdly, insofar as his Honour proceeds on the basis of a dichotomy between a breach of the provisions of the relevant constitution requiring notice, and a breach of the rules of natural justice, there is no such dichotomy. The juristic basis upon which the principles of natural justice apply to the pro­ceedings of a domestic tribunal which has no statutory basis is to be found in contract; in the absence of express provision to the contrary, it is implied in disciplinary provisions of the rules of such associations that they will be exercised in accordance with the rules of natural justice [Trivett v Nivison [1976] 1 NSWLR 312, 317-319]. Thus, natural justice comes to operate in private clubs and associations by the interpretation of their rules on the basis that fair procedures are intended, while recognising the possibility that express words or necessary implication in the rules could exclude natural justice in whole or part [Dickason v Edwards (1910) 10 CLR 243 at 250, 255; Australian Workers' Union v Bowen (No 2) (1948) 77 CLR 601, 617, 631; McClelland v Burning Palms Surf Life Saving Club]. Accordingly, their source is contractual, even where the relevant constitution makes no express provision, and their contravention in such a case is a breach of contract.

106 Accordingly, in my opinion, damages may be awarded for a breach of natural justice or excess of power by an incorporated club or association, on the basis of damages for breach of the contract between the members and the club founded on the constitution. Abbott v Sullivan, King v Foxton Racing Club, Fagan v National Coursing Association of SA Incorporated or Byrne v Auckland Irish Society Inc, all allow that damages may be awarded in respect of a wrongful expulsion, on the basis of breach of contract, in the case of an incorporated club. In substance, the breach is constituted by the deprivation of the benefits of membership without compliance with the constitutional conditions precedent - which may be express, or may be implied as in the absence of express contrary intention the rules of natural justice will apply. The circumstance that the same deprivation could have been effected in compliance with the constitution is relevant to the assessment of damages, but does not deny causation. Moreover, I would not exclude the possibility that damages may be available on the same basis in the case of an unincorporated club, if the constitution is intended to give rise to legal consequences, since the members of an unincorporated association agree by accepting membership to conduct its affairs in accordance with the constitution - although in such a case, it would be those members who acted in breach of the constitution, and not the association (which is not a separate legal entity) which might be liable. 107 Can such damages include damages for loss of reputation and disappointment? In Addis v Gramophone Company Ltd [1909] AC 488, the House of Lords held that damages for wrongful dismissal could not include compensation for the manner of the dismissal, injured feelings, or loss sustained by reason of the circumstance that the dismissal made it more difficult for the employee to obtain fresh employment, for example by reason of impact on the employee's reputation.

108 In Byrne v Auckland Irish Society Inc, the plaintiffs' damages of $100 each, for the inconvenience (resulting from loss of resort to the club's premises), vexation and distress occasioned by their wrongful expulsion, were awarded on the basis of Jarvis v Swan Tours Ltd [1973] QB 233 (disappointed expectations in respect of a holiday), and Heywood v Wellers [1976] QB 446 (vexation occasioned by solicitor's negligence). Reference was made (at 364.50) to the proposition that damages may be awarded in contract for injury to the plaintiff's credit or reputation, or for inconvenience or loss of enjoyment, where the injury inconvenience or loss was within the contemplation of the parties as likely to result from the breach. However, I respectfully think that Forbes goes too far in asserting that damages were in fact awarded for odium and injury to reputation as well as vexation [Justice in Tribunals, [16.60]]; although reference was made to that possibility, the Court did not find evidence of any damage to reputation, and to the contrary concluded (at 365.51) that there was no evidence to support the claim that the plaintiffs had been brought into odium, ridicule and contempt.

109 In Baltic Shipping Co v Dillon (1993) 176 CLR 344, the High Court held that damages were recoverable for the distress and disappointment occasioned by a breach of contract if the contract is one by which the other party has undertaken to provide pleasure, enjoyment, personal protection or relaxation or to avoid vexation. [Although there are differences between the various judgments, that proposition is a synthesis of all the judgments on that issue]. Mason CJ, with whom Toohey and Gaudron JJ concurred, remarked (at 361) that the scope of the exceptions to the general rule in Addis - that the plaintiff could not recover in an action for damages for breach of contract in respect of injured feelings and loss of employment prospects arising from the harsh and humiliating manner of dismissal - had been so expanded that the authority of the general rule was now uncertain. 110 In Malik v Bank of Credit and Commerce International SA [1998] AC 20, the House of Lords declined to follow Addis to the extent that it prevented recovery of financial loss which on ordinary principles would be recoverable as damages for breach of contract. Lord Steyn, with whom Lord Goff, Lord Mackay and Lord Mustill agreed, concluded (at 52G-H) that provided that a relevant breach of contract can be established, and the requirements of causation, remoteness and mitigation can be satisfied, there was no good reason why in the field of employment law recovery of financial loss in respect of damage to reputation caused by breach of contract was necessarily excluded. 111 Malik was concerned only with financial loss occasioned by damage to reputation, and not with injured feelings. Loss of reputation simpliciter is protected by the tort of defamation, the requirements of which cannot be sidestepped by a claim for breach of contract that would not succeed in defamation [Lonrho plc v Fayed (No 5) [1993] 1 WLR 1489, 1496 (Dillon LJ); Malik, 40B (Lord Birkenhead)]. However, financial losses occasioned by a breach of contract do not cease to be recoverable because they might also be recoverable in an action for defamation [Foaminol Laboratories Ltd v British Artid Plastics Ltd [1941] 2 All ER 393, 399-400 (Hallett J)], nor because no claim for defamation would lie [Malik, 40D-H (Lord Birkenhead), 51-52 (Lord Steyn)]. Moreover, where the purpose of a contract - including an employment contract - includes promotion or publicity of the employee, damages for loss to the existing reputation [Marbe v George Edwardes (Daly's Theatre) Ltd [1928] 1 KB 269] as well as for loss of the reputation which performance of the contract would have given the employee [Withers v General Theatre Corporation Ltd [1933] 2 KB 536] have always been recoverable [Collier v Sunday Referee Co Publishing Ltd [1940] 2 KB 647, 650; Malik, 41D-F, 51E-52A].

112 Accordingly, in my opinion, where the purpose of a contract is to provide pleasure, enjoyment, personal protection or relaxation or to avoid vexation, damages are recoverable for inconvenience, vexation and distress. As the purpose of membership of a club is to provide opportunities to participate in social, sporting, cultural, political or other activities, breaches of contracts founded on their rules constituted by improper exclusion from membership will commonly attract such damages, because such a breach defeats the purpose of the contract. Those damages may include damages for financial loss in respect of damage to reputation caused by breach of contract.

113 What damages does the evidence establish in this case? Mr Rose has been excluded since August 2004 from judging and refereeing in amateur boxing in New South Wales (but not elsewhere). He would plainly have had extensive opportunity to do so but for his expulsion, as he would be in high demand given his reputation and status. His inability to participate in his chosen sport has no doubt occasioned disappointment and frustration to him. It has defeated the benefits that his (indirect) membership of the Association was intended to provide. But his involvement has been in amateur boxing, from which he derives no remuneration; and although there is a faint suggestion in the evidence that he may one day try to turn his hand to the professional arena, there is no evidence of financial loss. His damages are therefore limited to the vexation and disappointment occasioned to him by his exclusion from refereeing in New South Wales for nearly 2½ years, for which - before any discount - I would allow $5,000.

114 It is conceivable that he might have been expelled in any event, absent any denial of natural justice. However, the onus of establishing matters that reduce the prima facie damages falls on the defendant, at least in an evidentiary sense, and the defendant has adduced no evidence on that issue. Accordingly, while some discount should be allowed for that possibility, it should not in the circumstances be a large one; on this account I would reduce by 20% the damages that I would otherwise have awarded.

115 Accordingly, I assess damages in the sum of $4,000.

116 It follows that, despite the able submissions of Mr Robinson who has said everything that could be said in favour of his client's case to the contrary, I have reached the following conclusions:

· Mr Rose has standing to challenge the decision of the Executive Committee to expel him. · Mr Rose was not amenable to the jurisdiction of the Executive Committee, which had no authority to expel him.

· Alternatively, Mr Rose was purportedly expelled in breach of the rules of natural justice, which are implicit in the constitution of the Association, and thus in breach of conditions precedent to a valid expulsion.

· It cannot be said that the denial of natural justice did not affect the outcome, nor that subsequent proceedings have cured it.

· As a matter of discretion, declaratory and injunctive relief is appropriate.

· Damages may be awarded in respect of adverse disciplinary action taken in breach of natural justice or excess of power by an incorporated club or association, on the basis of damages for breach of the contract between the members and the club founded on the constitution.

· Where the purpose of a contract is to provide pleasure, enjoyment, personal protection or relaxation or to avoid vexation, damages are recoverable for inconvenience, vexation and distress. As the purpose of membership of a club is to provide opportunities to participate in social, sporting, cultural, political or other activities, breaches of contracts founded on their rules constituted by improper exclusion from membership will commonly attract such damages. Those damages may include damages for financial loss in respect of damage to reputation caused by breach of contract.

· Mr Rose's damages are limited to the vexation and disappointment occasioned to him by his exclusion from refereeing in New South Wales for nearly 2½ years, for which I would allow $5,000, discounted by 20% for the risk that he might have been expelled in any event, so that damages are assessed at $4,000.

117 I make the following orders: (1) Declare that the resolution of the Executive Committee of the first defendant, Boxing New South Wales Incorporated, on 20 July 2004 in respect of the plaintiff, Wayne John Rose, is void and of no effect.

(2) Order that the first defendant be restrained from acting upon, implementing, carrying into effect or otherwise treating as valid in any respect the said resolution.

(3) Give judgment that the first defendant pay the plaintiff $4,000.

118 The parties have requested an opportunity to be heard on the question of costs after all liability issues are finalised.

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