Analysis: natural justice and the Panel
49 What is clear is that the plaintiff, at least through Messrs Stilin and Krslovic, understood that the Panel had been given power to consider the question of "appropriate sanctions" arising out of the incident. The terms of reference make this clear. The record of interview, from which I have quoted, shows that Messrs Stilin and Krslovic were acutely aware of this, even if there may have been some confusion on the part of at least some Panel members as to what was comprehended by the sixth term of reference.
50 It is at least arguable that the sixth term of reference referred to sanctions generally - ie, to recommending a range of punishments that might be prescribed for such incidents in the future - rather than to particular sanctions - ie, what punishment should be imposed on those found to be responsible for this particular incident. Indeed, this view appears from the passage at page 65 of the record of interview (page 68 of exhibit PX 1) that I have set out in para [14] above. But again, on the view to which I have come, it is not necessary to express a concluded view.
51 If this case were to be decided according to whether the Panel had given the plaintiff natural justice, I would conclude that the plaintiff must fail.
52 The plaintiff was apprised of the terms of reference. It was given, and took, the opportunity to put its case. In the course of the interview, the members of the Panel raised their principal concerns with Messrs Stilin and Krslovic, and gave them the opportunity to comment. Before the Panel finalised its report, it gave the plaintiff the opportunity to comment on matters of concern. The plaintiff took this opportunity.
53 The plaintiff submitted that not all matters of fact relied upon by the Panel in support of its conclusions were referred to in the letter of 14 April 2005. However, when one reads both the interview on 30 March 2005 and that letter, it is clear that the Panel notified the plaintiff of all the principal issues, and much of the evidence in support: in most cases, more than once. The matters not covered were matters of primary fact, or evidence, that supported the conclusions that were notified and the evident thrust of those conclusions. They did not of themselves modify either the conclusions or where, it might be thought, those conclusions could lead.
54 The Panel's process might have been truncated, but that is not the test. It might not have achieved the level of comparative perfection of a civil trial, but that again is not the test.
55 This was an inquisitorial, not an adversarial, process. It was for the plaintiff, having been apprised of the issues, to put what it wished in response. This it did. There was no "case" that the Panel was required to put to, or against, the plaintiff; and the plaintiff was not required (for example) to comply with the rule of fairness expounded in Browne v Dunn (1894) 6 R 67. See Abebe v The Commonwealth (1999) 197 CLR 510, 576 [187] (Gummow and Hayne JJ) and Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S154/2002 (2003) 77 ALJR 1909 at 1918-1919 [57] (Gummow and Heydon JJ).
56 When one adds to the context that I have described the fact that, on 8 April 2005, the defendant informed the plaintiff of the specific charges and gave the plaintiff in effect the prosecution brief - admittedly in the context of referral to the Tribunal - I think that the plaintiff was given an adequate opportunity to be heard by the Panel.
Analysis: natural justice and the Board
57 By the time the Panel's report was provided to the board (21 April 2005) the reference to the Tribunal had been made, and the plaintiff had been notified of the charges to be considered by the Tribunal. The Tribunal had held a directions hearing, given directions for the preparation, and indicated that there would be a hearing on a date to be arranged more than 28 days later. (I interpose that, before the board resolved to suspend the plaintiff, the defendant wrote to the plaintiff - on 29 April 2005 - confirming the date for hearing as 25 May 2005 and advising of the arrangements needed for that hearing.)
58 The clear inference from all this is that the defendant, from its conduct objectively viewed, intended the question of punishment to be dealt with through the mechanism of the Tribunal inquiry. There was no point whatsoever in taking the steps that I have outlined if it were the intention of the defendant that its board would deal with the question of discipline on the basis of the Panel's report. If that were the defendant's intention, the reference to the Tribunal and the steps that followed were a charade. Further, they were either pointless - assuming incompetence or the lack of intellectual application to be the driving force - or designed to lull the plaintiff into thinking that action would not be taken - assuming a more malign motive. Because there was no cross-examination of the defendant's witnesses, and because the reasons for its actions were not explored, I make no finding on these matters; but I repeat that I find it difficult, to the point of impossibility, to understand what it was that the defendant thought it was doing, or what it hoped to achieve, by the steps that it took.
59 It is clear that the plaintiff came to understand that the question of punishment was to be considered by the Tribunal at some time in the future (later fixed at 25 May 2005). That is apparent from Dibbs Barker Gosling's letter to the defendant of 19 April 2005, the relevant passages from which I have set out in para [19] above. It is apparent that Dibbs Barker Gosling - and, I infer, the plaintiff - understood that the Panel's report when completed would form part of the material before the Tribunal.
60 Indeed, it is very difficult to see what other view could have been taken. There were no formal charges articulated before or by the Panel (so far as the plaintiff was aware): contrast the proceedings in the Tribunal. The Panel's task was to undertake a wide-ranging inquiry; the Tribunal's was focused on the disciplinary issue. Clearly, there would be an expectation of one hearing only for charges arising out of the incident on 13 March 2005. Equally clearly, after 8 April 2005, it was apparent that that hearing was to be held before the Tribunal.
61 The plaintiff's case on the issue of natural justice is that the board was required to give it an opportunity to be heard before deciding whether, on the basis of the Panel's report, to punish the plaintiff. (It was of course the plaintiff's primary case that the board could not do this at all until the s 17, Tribunal, process had been worked through, but I put that to one side.)
62 This aspect of the plaintiff's case was put on two bases. The first is that a party should be given notice of proposed adverse findings, and an opportunity to comment, before an inquiry is finalised: relying on Mahon v Air New Zealand Limited [1984] AC 808. The second is that in any event a disciplinary body, having made a finding of "guilt", must give the party an opportunity to be heard on the question of penalty: relying on Hall v NSW Trotting Club Ltd [1977] 1 NSWLR 378.
63 The defendant submitted that the board, in circumstances where it had referred the inquiry to the Panel and where the Panel had given the plaintiff an adequate opportunity to be heard, was not required to give the plaintiff a second opportunity to be heard: relying on State of South Australia v O'Shea (1987) 163 CLR 378. Further, it submitted, there was no general requirement to allow a second opportunity to be heard, on proposed adverse findings: relying on Aronson and Ors, Judicial Review of Administrative Action (third edition, 2004) at 516.
64 I do not accept that the principle in O'Shea is applicable to this case. O'Shea was a case where the respondent challenged a decision, made by the Governor in Council, not to release him from an order for detention during the Queen's pleasure. The challenge was to a single-stage determination. The order for indefinite detention had been made and was not challenged; the challenge was to the decision not to grant release on licence. There was no question of guilt and no question of penalty. An inquiry was held by the Parole Board, as to whether the respondent should be released on licence. The respondent was given an adequate opportunity to be heard before the Parole Board. The Parole Board's report was given to the Governor in Council. Its recommendation was not adopted. It was in those circumstances that the High Court held that the respondent had been given a hearing, and was not entitled to another.
65 Even if I were to assume that, in the present case, the board was not required to give the plaintiff another opportunity to be heard on the question of guilt or innocence, it does not follow that the board, having decided to adopt the Panel's report on that question, was not required to give the plaintiff an opportunity to be heard on the question of penalty. Nothing in O'Shea requires me so to conclude.
66 Instead, I think, I am bound by the decision in Hall to conclude that the board was required to give the plaintiff an opportunity to be heard on the question of penalty. In Hall, stewards had found the appellant guilty of an offence, and without hearing further from the appellant imposed a penalty. The Court of Appeal held by majority (Hutley and Samuels JJA, with Mahoney JA dissenting) that the decision and penalty were "void" (Hutley JA) or that the decision on penalty was "a nullity" (Samuels JA). Hutley JA said at 382 that the duty of the stewards required either a hearing on the question of penalty or a clear waiver by the appellant of that right. As his Honour pointed out, a "person found guilty cannot really address [the question of penalty] until he knows of what he has been found guilty."
67 Samuels JA said at 391 that, although the appellant might be taken to have been aware of the range of penalties "He should ... have been distinctly offered the opportunity to speak in mitigation."
68 In this case, there does not appear to be, as there was in Hall, a prescribed range of penalties for particular breaches: something that fortifies, rather than derogates from, the application of the principle in Hall to this case.
69 In Malone v Marr [1981] 2 NSWLR 984, Holland J considered that the effect of the decision in Hall, in circumstances where the only failure to accord natural justice was in relation to penalty, was to require that the decision on penalty be declared void.
70 On that basis, the "conviction" would stand but the penalty would fall. It is therefore necessary to consider the assumption that the board was not required to give a second hearing to the plaintiff on the question of guilt or innocence.
71 On the facts of this case, I do not think that the decision in O'Shea requires the question to be answered adversely to the plaintiff. In O'Shea, as I have said, the precise issues were dealt with by the Parole Board. In this case, the Panel did not consider precisely formulated (or any) charges; as the terms of reference make clear, it was given a broad-ranging brief to inquire and report.
72 I have adverted to the characterisation, which I think is correct, of the Panel's proceedings as inquisitorial. In substance, once the board decided to rely on the report to make a finding of guilt on a specified charge, the nature of the proceedings against the plaintiff became more adversarial in character. The shift from inquisitorial to adversarial process of itself indicates that the board could not rely on the fact that (to the extent that had occurred) the Panel had given natural justice to the plaintiff. That was natural justice appropriate to, and whose content was to an extent fashioned by, the inquisitorial nature of the Panel's inquiry.
73 This analysis is supported by comparing what it was that the Panel did with what it was that the board did. The Panel put to the plaintiff, both in interview and in correspondence, the questions of fact - both primary fact and conclusions of fact - with which it was concerned. At no stage did the Panel put to the plaintiff any, let alone precise, breaches of the defendant's constitution or rules that might be shown by such facts. No doubt, if the plaintiff had turned its mind to this point, it might have realised that the facts that were of concern to the Panel might indicate breaches of the constitution or rules. But nothing in O'Shea compels the conclusion that the plaintiff should have formulated and addressed, in the context of a broad-ranging factual inquisitorial process, any such charges, for the purpose of answering them. Indeed, as I have said, the plaintiff was reasonably entitled to think after 8 April 2005 that the question of charges would be dealt with by the Tribunal.
74 In contrast, the board wished to press a precise charge against the plaintiff. That charge, although formulated in the report, had not been put by the Panel to the plaintiff. In substance, the defendant and the plaintiff became, through the decision to press a charge, adversary parties. The adversarial context may fashion a different content or application of the broad entitlement to be heard. It is plain that the defendant gave no consideration to whether this was so.
75 Thus, I think, if the defendant wished to rely on the report to support findings of breach against the plaintiff, it was incumbent on the defendant to provide the plaintiff with a copy of the report and to tell the plaintiff what breaches of the constitution or rules the defendant (or its board) considered were made out by the findings in the report, and to provide the plaintiff an opportunity to be heard on that question. That conclusion is reinforced by, although it does not depend on, the institution of the reference to the Tribunal and the inference that I have found would be drawn from that.
76 It follows that, whilst the plaintiff had no entitlement to be reheard on the factual issues canvassed before and decided by the Panel, in the events that occurred it had an entitlement to be notified of the conclusions - as to breach of the constitution and rules - that were said to follow from those factual findings. This is not so much an application of the principles said to be established by Mahon but a working out in the precise facts of this case of the content or application of the right to be heard.
77 Because the plaintiff was not given that opportunity, the decision cannot stand.
Consequences of finding of want of natural justice
78 As I have said, the decision in Hall indicates that a decision vitiated by denial of natural justice is "void" or "a nullity". However, the position may not be so simple. In Forbes v NSW Trotting Club Ltd (1979) 143 CLR 242, Aickin J said at 277 that the better view is that the decision is not void ab initio, but is effective unless and until a challenge to its validity is upheld. His Honour said:
"That which is done without compliance with applicable principles of natural justice, in circumstances where the relevant authority is obliged to comply with such principles, is not to be regarded as void ab initio so that what purports to be an act done is totally ineffective for all purposes. Such an act is valid and operative unless and until duly challenged but upon such challenge being upheld it is void, not merely from the time of a decision to that effect by a court, but from its inception. Thus, though it is merely voidable, when it is declared to be contrary to natural justice the consequence is that it is deemed to have been void ab initio".
79 It follows that the decision of the board should be regarded as voidable, but that if it is declared to be void, the effect will be that it is deemed, or taken, always to have been void. The parties did not address the conceptual basis of this problem (which is discussed in, for example, the dissenting judgment of Kirby J in Minister for Immigration v Bhardwaj (2002) 209 CLR 597 at 630-634). They did, however, address its results.
80 The suspension has meant that the plaintiff's teams have missed three matches: two, I think, in the Premier League and one in the Continental Cup. Points have been awarded on a forfeit basis to the other teams. If the Court's orders are to have retrospective effect, those teams will be affected. They are not parties, and have not been heard.
81 One team, Rockdale Ilinden Soccer Club, has indicated by letter that, with knowledge of the issues and the potential impact on it, it does not wish to be heard. The parties submitted, and I accept, that on this basis I need not refuse relief having retrospective effect on the ground that it would adversely affect that club.
82 Another club affected is APIA Leichhardt Tigers Football Club Inc. That club has indicated by letter from its solicitor that it "is prepared to have its interests represented by the representatives of Soccer NSW in the proceedings" and that it "is of course prepared to accept and abide by the Court's decision in the matter". That does not seem to me to be a waiver of the right to be heard knowing of the potential adverse consequences. It may very well be that I could infer that APIA has considered the consequences, including the loss of points awarded to it on a forfeit basis, and having done so is prepared to abide the decision of the Court. But the letter does not make it clear.
83 The other club potentially affected is the Sydney Olympic Club. That club has not been the beneficiary of any points awarded on a forfeit basis. However, its standing in the Premier League is such that if the plaintiff does not obtain retrospective relief, it may have some chance of participating in the semi-finals. Sydney Olympic has not, so far as the Court is aware, expressed an attitude.
84 On balance, I do not think that I should refuse relief having retrospective effect on the ground that it may have an adverse impact on Sydney Olympic's prospects of playing in the semi-finals. It loses no points. At most, if the forfeited matches are to be played, Sydney Olympic will be in the position it would have been in had the decision not been made. In other words, its prospects of reaching the semi-finals will depend, as but for the decision they would have done, on the outcomes of those games.
85 The defendant did not rely on any other discretionary bars to the grant of relief, or on any other circumstances said to limit or circumscribe the extent of relief that should be granted.
Conclusion
86 I therefore conclude that the plaintiff has made out its case for relief, on the ground that the whole of the decision to suspend it is voidable for denial of natural justice.
87 I have not canvassed all the issues advanced and argued by the parties. Their positions are set out in written outlines, and their oral submissions have been recorded. I have dealt with the submissions to the extent that they bear, one way or the other, on the conclusion that I have reached and the precise grounds for that conclusion. Because of the urgency with which these proceedings were brought on and decided, I do not propose to deal with submissions or issues that do not bear on my conclusion and its supporting reasons.
88 Before I make orders, I wish to stress that this is not a merits review of the defendant's decision, far less is it any approbation, or vindication, of the plaintiff's position in relation to the events of 13 March 2005. The decision that I have reached flows from an application of my understanding of the requirements of natural justice to the facts of this case.
89 The merits of the plaintiff's and defendant's contentions in relation to responsibility for the events of 13 March 2005 is a matter to be dealt with, in the first instance, by the Tribunal on the hearing of the charges laid against the plaintiff and against White Eagles.
Orders
90 I propose to make the following orders: