Bornecrantz v Queensland Bridge Association Inc
[1999] QSC 58
•24 March 1999
IN THE SUPREME COURT
OF QUEENSLAND No. 71921 of 1998
Brisbane
[Bornecrantz v Queensland Bridge Association Inc]
BETWEEN:
LEIV RUBEN ANDERS BORNECRANTZ
Applicant
AND:
QUEENSLAND BRIDGE ASSOCIATION INC.
Respondent
REASONS FOR JUDGMENT - CHESTERMAN J
Judgment delivered 24 March 1999
The applicant, who appeared in person, is a devoted and accomplished bridge player. By his own admission he is also eccentric and stubborn. The respondent is an incorporated association whose objects are:
(a)the promotion, control and advancement of card games, particularly duplicate contract bridge, in Queensland; and
(b)conducting card tournaments within Queensland, particularly bridge tournaments and congresses.
Its constitution specifically empowers it to print and publish books and leaflets that it thinks desirable for the promotion of its objects and to do “all such other things as are incidental or conducive to the attainment of” its objects. The respondent’s affairs are to be managed by an executive committee, the composition of which is set out in the constitution. The executive committee is given “the general control and management of the administration of the affairs, property and funds” of the respondent and is authorised to interpret the constitution “and any matter relating to the [respondent] on which [the constitution is] silent.” The executive committee may delegate any of its powers to a sub-committee consisting of such members of the respondent as the executive committee thinks fit.
The membership of the respondent relevantly consists of bridge clubs which apply for membership or are affiliated with the respondent and “any bridge player who is a registered player of a member”, that is, a bridge club.
The applicant is not a member of the respondent.
The material filed by the parties assumes rather than imparts a knowledge of bridge and the organisation of bridge tournaments. It seems a fair inference that the game, though sedentary, and played in an atmosphere of quiet politeness, arouses passions in at least some participants which are not easily subdued. Tournaments are organised at national, state and local level and are designated by colour. “Red master point” tournaments are controlled by the respondent which delegates to clubs some of the responsibilities and functions of their organisation. The delegation is necessary because of a lack of human and financial resources in the respondent which is a voluntary association. “Green master point” tournaments are a purely club affair.
The applicant’s dispute with the respondent arises out of his participation in a red master point congress organised by the Moreton-Bribie Bridge Club Inc. at Bribie Island on 27, 28 June, 1998. The applicant was not, as I have said, a member of the respondent. Entry to the tournament was open to anyone holding an approved Australian Bridge Federation system card. The material does not allow me to describe this system of accreditation but nothing turns on it. The applicant and a partner entered the tournament and were accepted as participants.
The applicant’s eccentricities extend to the manner in which he records his written bids. While Mr Bornecrantz regards his habits as harmless idiosyncrasies his manner of marking bids infringes the respondent’s tournament regulations which it has published for the regulation of its tournaments.
The facts out of which the dispute arises may be gathered from the report written by Mr Ward, the tournament director appointed to control the Moreton-Bribie Congress. Mr Ward reported:
“I was recalled to the table after the pairs had started the bidding on their third board and Bornecrantz had refused to write ‘NT’ for no trump. The bidding sheet had ‘1N’ written in the usual place and Bornecrantz had just written a large ‘T’ which had covered the entire bidding sheet. I asked him to abide by the QBA regulations whereupon Bornecrantz wrote four more large ‘T’s all over the bidding pad.
I told him to settle down and get on with the game. He responded that he did not have to follow Queensland Regulations and I told him that it was a condition of entry that he play by the rules. I again gave him the option of continuing with the game and, for the third time, he refused. I then cancelled the remainder of the 5 board match ...
Bornecrantz then indicated that he would withdraw from the competition and that his partner concurred. I advised that, if they withdrew, there was a strong possibility that their entry would not be accepted at any other Queensland Congress. The pair went out to the bar to discuss the matter.
At the start of the next round [Bornecrantz] arrived ... a few minutes late ... they played the first board without incident, but when, on the second board, Bornecrantz proceeded to write ‘1N’ I was again called. Once again, I gave Bornecrantz the opportunity to play the game within the regulations. He maintained that he did not have to abide by QBA or ABF regulations as they had no legal power, not being in the official laws. I then cancelled the next 4 boards ...
At the start of the next match, before the bidding commenced ... I gave Bornecrantz one final opportunity to bid normally. Once again he declined and so I disqualified the pair from the event. It should be noted that, despite all of the above, most of the discussion and rulings took place in a relatively civilised fashion ... when told to leave they left the room quickly and quietly and with a minimum of fuss.”
Immediately prior to the commencement of the tournament, Mr Ward made a number of announcements to those who had gathered to play. One announcement was that the tournament was to be conducted in accordance with the respondent’s rules, one of which is entitled “Conduct and Ethics Committee”. It provides:
“The [respondent] has a standing Conduct and Ethics committee which will conduct hearings on reports of improper behaviour by players at a QBA event, or an event conducted under the aegis of the [respondent]. Players concerned will be invited to attend a meeting of the committee, accompanied if so desired by a friend or a lawyer, to hear the reports and respond to them. The committee will observe the principles of natural justice in all of its proceedings. It is empowered to reprimand, suspend or expel a player from all or some QBA events or event conducted under its aegis. Players will have the right to appeal to a full meeting of Council against any such decision.”
The council consists of delegates from the bridge clubs who are members of the respondent.
At each annual general meeting of the respondent members who have indicated their willingness to serve are appointed to constitute the conduct and ethics sub-committee (“the committee”). The number of members of the committee varies from year to year.
Following on the receipt of Mr Ward’s report Mrs Ellaway, the respondent’s secretary, wrote to the applicant on 9 July, 1998:
“The Queensland Bridge Association has received a report re: your alleged misconduct at the Moreton-Bribie Congress Swiss Pairs on Saturday June 27 1998. A copy of the report is attached.
A QBA Ethics Committee has been established to investigate the report. The committee will consist of Mr Keith McDonald, Mrs Claire Hyne and Mr Tony Jackman.
They will be meeting at the Queensland Contract Bridge Club at 6.00 pm on Thursday 23 July 1998. The committee request you to attend this meeting however it is not necessary or compulsory.
If you cannot attend, please let me know. The committee will hear the case in your absence. If you are attending and intend bringing legal support, please advise. Our legal advisors will be in attendance. Mr Pryde will be attending the meeting as a witness.
After hearing the evidence the committee if you are found guilty is empowered to reprimand, suspend or expel a player from all or some QBA events or events conducted under its aegis.”
The letter was sent by registered mail to the applicant “c/- Cards Bridge Centre, 156 Albion Road, Windsor 4030”. This was not the applicant’s residence but was the address of a facility run by a friend of the applicant’s, Mrs Butts. Mrs Ellaway chose that address because she knew a letter sent there was likely to come to the applicant’s attention. The respondent had, on its records, an address for the applicant but Mrs Ellaway knew he had left it. She did not know where he was living.
The letter was returned unclaimed. Why that happened may be gathered from one of the applicant’s affidavits:
“On or about 9 July 1998 [the respondent] claims to have sent a registered letter to the Applicant. The Applicant remembers being handed a card at some time by his client, Ms Joan Butts. The card indicated that registered mail could be collected at the post office. The Applicant by deliberate policy does not accept registered mail unless content is known. In this case there was no reason to believe that to collect a registered posted article addressed to the address of a client would be a benefit to the applicant”.
In an earlier letter to the respondent the applicant had included as part of his letterhead an e-mail address at which he could be contacted. On 17 July, 1998 Mrs Ellaway transmitted an e-mail message to the applicant at that electronic address. The message read:
“Dear Mr Bornecrantz
Please be advised that Mr Richard Ward, director of the Moreton-Bribie Swiss Pairs will be attending the meeting on Thursday 23 July 1998 as a witness.
Kim Ellaway
Manager, QBA”
The applicant admitted in cross-examination that he had received this message. He did not attend the meeting of the committee which, in his absence, considered Mr Ward’s report and determined that the applicant should not be eligible to enter any “gold or red master point events (including the 1999 Gold Coast Congress and GNOT Qualifying Events) conducted under the auspices of the Queensland Bridge Association until 31 December 1999. Entries after 1 January, 2000 would be accepted only upon the applicant’s prior written agreement to comply promptly with tournament regulations or with any instructions given by a tournament director”.
The applicant was notified of the determination by letter dated 29 July, 1998 from Mrs Ellaway which contained a brief report of the sub-committee’s proceedings and an advice that the applicant could appeal to a full meeting of the council.
The applicant has applied, pursuant to Part 5 of the Judicial Review Act 1991 for an order removing and/or quashing any judgment, order, conviction or other proceedings taken by the respondent in relation to the applicant by its committee at meetings held on 22 and/or 23 July, 1998.
The applicable legal principles are those which, prior to the enactment of section 41 of the Judicial Review Act, apposite to the issue of writs of certiorari.
Notice
The first point taken by the applicant is that he was not afforded procedural fairness in that he was not given notice of the hearing of the committee which led to his disqualification from participation in certain events.
It is, obviously, fundamentally important that persons who are entitled to an audience before a decision-maker be given adequate prior notice of the hearing and its purpose. “There is an impressive volume of cases in which disciplinary decisions have been set aside by the Courts because of the absence or inadequacy of prior notice” see Review of Administrative Action by Aaronson & Franklin, p. 152. The applicant did not in fact receive adequate notice.
Do these principles mean that in the present case the applicant may legitimately complain about the lack of notice of the committee’s deliberations with the result that the decision must be set aside?
The e-mail gave notice of the committee meeting but it did not contain particulars of the complaint which the committee was to investigate. The contents of Mrs Ellaway’s letter of 9 July, 1998 would have been sufficient to acquaint the applicant of what was to be investigated by the committee and sufficient opportunity to prepare his defence. The applicant knew that a registered letter addressed to him could be collected from the post office and the evidence allows the inference that he suspected the letter had been sent by the respondent. But he did not know it to be so and he did not collect the letter or read it. Ordinarily notice is inadequate if it does no more than advise a recipient where he or she may gain access to documents which will give information sufficient to satisfy the requirements of adequate notice. See for example, Public Service Board of New South Wales v. Etherton (1985) 1 NSWLR 430.
Having received the e-mail, the applicant did not contact the respondent to request more information about what it was the committee was to enquire into. He knew when the committee was to meet and that Mr Ward, who was to be a witness, was the tournament director who had disqualified him. He knew, from previous experience, where the committee met and he had at least a shrewd suspicion that more complete information about the matter was to be found in the registered letter. He was not unfamiliar with the purpose and functions of the committee. In 1997 he had incurred the wrath of another tournament director in Brisbane. He had been disqualified from that tournament and been the subject of action by the committee, though differently constituted. On that occasion the applicant made a written submission in answer to that complaint and was represented before the committee by a solicitor who had been his partner at the Brisbane tournament. The outcome was that for six months he was not eligible to play in any match the results of which would count toward the Queensland Championship.
The applicant explained that he did not collect the registered letter, and did not contact the respondent upon receipt of the e-mail, because he wished to challenge the jurisdiction of the committee and did not want to act in any way which might suggest he accepted that it was empowered to enquire into his conduct or to take disciplinary action against him. He did not wish to be better informed as part of his tactics for resisting the respondent’s attempts to control his participation in its tournaments. Lack of notice played no part in the applicant’s absence from the committee’s enquiry. The non-receipt of notice of the committee’s hearing was the direct result of the applicant’s conscious and deliberate decision to ignore the respondent’s processes of investigation and discipline.
The court must be careful that its decisions do not diminish the principle that timely and sufficient notice must be given of a determination that may affect rights. But there is something unsatisfactory about extending its protection to someone who avoids notice as a tactic in an ongoing dispute with the decision-maker.
In such a case there seems a substantial basis for saying that the applicant has waived the requirement that he be given notice, or alternatively, that in the circumstances the lack of notice did not deprive the applicant of the opportunity to be heard by the committee. The deprivation was the result of his own decision to avoid being given notice.
Another approach is to impute to the applicant the knowledge that would have been his had he obtained and read his mail. The common law would draw an inference from the fact that a man refused to make enquiries that he had actual knowledge of what the enquiries would have revealed. Lord Esher explained in English and Scottish Mercantile Investment Company v. Brunton [1892] 2 QB 700 at 707-8:
“The doctrine of constructive notice is wholly equitable; it is not known to the common law. There is an inference of fact known to common lawyers which comes somewhat near to it. When a man has statements made to him, or has knowledge of facts, which do not expressly tell him of something which is against him, and he abstains from making further enquiry because he knows what the result would be - or, as the phrase is, he ‘wilfully shuts his eyes’ - then judges are in the habit of telling juries that they may infer that he did know what was against him”.
The cognate equitable doctrine of construction notice has become elaborate. In Baydon & Ors v. Societe Generale Pour Favoriser Le Development Du Commerce et de L’industrie en France SA [1992] 4 All ER 161 at 235, Gibson J identified six categories of such knowledge, the second of which was “wilfully shutting one’s eyes to the obvious”. Of the categories his Lordship said:
“More accurately, apart from actual knowledge they are formulations of the circumstances which may lead the Court to impute knowledge of the facts to the alleged constructive trustee even though he lacked actual knowledge of those facts. Thus the Court would treat a person as having constructive knowledge of the facts if he wilfully shuts his eyes to the relevant facts which would be obvious if he opened his eyes ...”
The Court of Appeal in United States Surgical Corporation v. Hospital Products International Pty Ltd (1983) 2 NSWLR 157 said much the same thing at 254:
“Thus a calculated omission to inquire, for fear of unearthing fraud or breach of duty, or the unreasonable failure to recognise fraud or breach of duty, may well be equivalent to actual knowledge.”
I do not suggest that the straight forward, though flexible, concept of notice developed as part of administrative law should be complicated by adopting equitable concepts of constructive notice. However, when one comes to consider whether, in this case, the applicant was deprived of the right to be heard by reason of his declining to obtain and read Mrs Ellaway’s letter, it is helpful to know that both common law and equity developed the notion that a man should be taken to possess that information which was immediately available but which he did not acquire only because of his conscious refusal to do so. Both law and equity, by their separate approaches, withhold an advantage which comes only from an irresponsible commitment to ignorance.
A brief dictum in De Verteuil v. Knaggs [1918] AC 557 at 560-1 lends support to the view that administrative law, too, has a similar concept. The Privy Council suggested that in exceptional cases notice could be dispensed with. One example given was “obstructive conduct on the part of the person affected”. In my opinion these considerations lead to the result that the applicant was not denied his right to be heard by a lack of notice of the committee meeting. He may not rely upon an insufficiency of notice because it came from his own “obstructive conduct”.
Bias
The next point taken is that the members of the committee were biased. In context I take this to mean that Mr Bornecrantz alleges the committee entertained feelings of antipathy towards him. The three members of the committee were Mr McDonald, Mrs Hyne and Mr Jackman. The complaint of bias seems to be limited to Mr McDonald, who is the president of the respondent. The factual basis for the complaint is that Mr McDonald:
(a)chaired the earlier committee which in 1997 upheld a complaint against the applicant; and
(b)remarks made by Mr McDonald in a conversation in July 1997 at the home of Mr Arkinstall, the chairman of the New South Wales Bridge Association. Another man, Mr Bolonogov, was also present.
The applicant apparently wished to prove that Mr McDonald had said something which might indicate his attitude to be that whenever the opportunity arose the respondent should treat the applicant severely. Some proof of this conversation might appear in an affidavit sworn by Mr Bolonogov but, the applicant did not include it in the material on which he relied and I have not read it. Mr McDonald was cross-examined about the conversation. I accept his evidence that in the course of a broad ranging conversation occupying several hours the applicant was discussed, but Mr McDonald said no more than the respondent had appropriate procedures to deal with complaints and that any complaint would be dealt with in the appropriate way. Mr McDonald expressly asserted that he had an open mind when chairing the committees and bore no animosity towards the applicant.
Although the applicant was disposed to argue with much of what Mr McDonald had to say he did not challenge this aspect of his evidence.
Although nothing was said about it I should mention that the applicant’s material includes a letter written to him by Mrs Hyne on 20 June, 1997. In it she refers to law 74 of The Laws of Duplicate Contract Bridge, 1997 which requires a player to maintain a courteous attitude at all times and to avoid any remark or action that might cause annoyance or embarrassment to another player or interfere with their enjoyment of the game. Mrs Hyne’s letter concluded that should the applicant wish to play at her club (the Queensland Contract Bridge Club) in future he would “be under strict scrutiny and if any infringement takes place” he would not be allowed to play.
Mrs Hyne swore an affidavit in the proceedings in which she said that she acted “fairly and appropriately in my capacity as a member of the conduct and ethics committee and I did not, nor have I ever acted with any personal bias towards the applicant”. Mrs Hyne was not cross-examined. The third member of the committee was not the subject of any comment.
I did not understand the applicant to argue that Mr McDonald (or any other member of the committee) was actually biased against him. The submission was that the earlier decision “then colours everybody for the next decision ... The procedure, in fact, that they found me guilty then influences the next decision ...” which is a description of apprehended bias arising from pre-judgment. This formulation of the applicant’s point shows that it is without substance. Although apprehended bias is a ground for disqualifying a judge or a statutorily established tribunal it is not so in the case of private or domestic tribunals such as those established by the constitutions of voluntary associations. Actual bias must be proved in the case of such bodies before the court will set aside a decision. The rule is established by Maloney v. New South Wales National Coursing Association Ltd (1978) 1 NSWLR 161. The reason for it was explained by Glass JA at 170-1:
“... The requirements of natural justice are in some respects different where domestic tribunals are concerned. ... In the administration of justice by courts proper, and those acting in a similar capacity, public policy requires that there should be no doubt about the purity of that administration ... The rules being enforced have no consensual basis. The parties have not chosen the tribunal. The judges and those being judged are drawn from two groups of people so numerous and so placed in relation to each other that it is not only desirable, but also eminently feasible, to insist that the former should be purged of all bias towards the latter, whether real or apprehended. Domestic tribunals are usually established in circumstances which are radically different. The members, generally speaking, have agreed to abide by a set of rules and the authority of a committee to enforce them. ... The committee members cannot, in the nature of things, divest themselves of the manifold predilections and prejudices resulting from past associations with members ...”
I respectfully agree with the judgment of Thomas J in Re Maggacis [1994] 1 Qd R 59 that the authority of Maloney has not been diminished by the subsequent decision of the Court of Appeal, Dale v. New South Wales Trotting Club Limited (1978) 1 NSWLR 551. Dale merely affirmed that the decision of a domestic tribunal might be overturned where the decision-maker had been guilty of misconduct or impropriety in the course of the hearing or decision-making. It did not draw a distinction between apprehended bias in the constitution of a tribunal (which would be insufficient to quash its determination) and apprehension of bias in the conduct of the hearing itself (which would be sufficient to quash the result).
The applicant did argue that the sanction imposed was so severe that bias, in the sense of ill will, should be inferred in the committee members who imposed it. I discuss this question later.
Mrs Ellaway who was responsible for appointing the members of the committee took some trouble to select people who would approach the task impartially and who had no knowledge of, or involvement in, the events which were to be investigated. The number of people willing and eligible to serve was limited. To obtain a committee of three it was necessary to include Mr McDonald.
The applicant must be taken to have lost his right to object to the constitution of the committee when he declined to appear before it. He did not care who sat as members of the committee. He had determined to ignore it and challenge its jurisdiction should it take action against him. It is well established that the right to object to a tribunal on the ground of its apprehended bias will be lost if the objection is not taken promptly. It is not permissible to remain silent until the final judgment is known and then object if the judgment is adverse. See Vakauta v. Kelly (1989) 167 CLR 568 at 572. The principle is not restricted to objection on the ground of apprehended bias. It extends to actual misconduct by the tribunal during the course of the hearing. See Stathooles v. Mount Isa Mines Limited [1997] 2 Qd R 106.
Issue Estoppel
The applicant’s next point is that the respondent had no power to embark upon a hearing of the complaint or to take action against him arising out of it because of what he called double jeopardy. He submits his disqualification from the congress was punishment for any breach of the rules he may have committed. Having been dealt with once he was not amenable to a further disciplinary sanction from the committee.
This submission proceeds from a misunderstanding of the administrative nature of the tournament director’s ruling and of the rule against double jeopardy. The applicant was, I think, attempting to argue that the committee was estopped from determining the complaint because the same issue had been effectively adjudicated by Mr Ward when he disqualified the applicant. “The policy of the law is to prevent any issue of fact or law in dispute between the parties from being determined in judicial proceedings more than once”. Per McHugh JA in Cachia v. Isaacs (1985) 3 NSWLR 366 at 386. Although the principle is normally expressed with reference to judicial proceedings,
“the doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc”
Administration of Papua New Guinea v. Daera Guba (1973) 130 CLR 353 per Gibbs J at 453 who made it clear that issue estoppel cannot arise from a “mere administrative decision”. It is not always clear whether the decision in question is of that character or is sufficiently “judicial” to give rise to the estoppel. See for example the division of opinion in Cachia. There can be no doubt that Mr Ward’s action was purely administrative. He was not deciding a question arising between parties. No dispute in the nature of a suit was submitted for his decision. He acted on his own initiative. The essential requirements in Gibbs J’s formulation are missing. Mr Ward’s disqualification of the applicant was no different to a referee or umpire taking action against a player for misbehaviour. The football codes provide frequent examples of players being sent from the field and later dealt with by a duly convened committee. I am not aware of any case in which the referee’s decision was held to estop the committee from proceeding to inquire, and where misconduct was proved, to discipline the player.
In any event there is not, in this case, a sufficient identity of subject matter between Mr Ward’s decision to disqualify the applicant and the committee’s determination to preclude him from participation in future tournaments. Mr Ward took action because the applicant persisted in recording his bids in a manner contrary to the rules. The committee’s concern was that the applicant had refused to obey the direction of the director to whom responsibility for the orderly conduct of the tournament was committed.
Restraint of Trade
The next point taken was that the committee’s decision operates as an unreasonable and therefore unlawful restraint of trade. Although the applicant’s material does not address this point he told me that it is possible to earn substantial sums from playing bridge. Wealthy devotees of the game pay very large sums to partner a skilful player and perhaps win a tournament. Mr Bornecrantz has never been the recipient of such an offer nor does he teach bridge which is another source of income. His earnings from prize money have been modest. In the twelve months prior to his suspension he earned only $129.00 nett after deduction of expenses. His particular ambition is to become a tournament director but there is no evidence that the applicant has in the past or is likely in the future to earn an income from that activity. It is to be observed that the committee’s decision does not prevent the applicant from teaching or from directing. It precludes him only from participating in events organised by or on behalf of the respondent. The applicant does not show that the decision has any measurable impact on his ability to earn income.
Application of Rules
The applicant made a number of submissions which can conveniently be dealt with together. In essence, they were that the respondent’s rules, breach of which gave rise to the complaint, did not apply at the particular Congress or that, on their proper construction, the rules did not confer jurisdiction on the committee to hear the complaint against him. Part of the submission is that Mr Bornecrantz is not a member of the respondent and is therefore not amenable to the deliberations of the committee.
The short answer is that the Moreton-Bribie tournament was convened on the express basis that it was a red master point congress approved by the respondent and to which the respondent’s rules applied. This is made clear from the evidence of the convener, Mr Davidson, and the tournament director, Mr Ward. It is confirmed by the entry form which the applicant himself exhibits to his material. The congress might have been organised on the basis that some only of the respondent’s rules were to apply. I think the applicant is right that the rules allow that course. Mr Davidson did not do this. Mr Ward announced that the respondent’s rules in their entirety would apply to the tournament and the applicant commenced to play on that basis. The applicant cannot now be heard to say that the convener might have arranged his tournament on the basis that some but not all of the respondent’s rules should apply.
One of those rules was that the committee was empowered to conduct hearings “on reports of improper behaviour by players at ... an event conducted under the aegis of the [respondent]”. It was pursuant to this rule that the committee met to consider Mr Ward’s complaint.
There can be no doubt that the committee acted in accordance with the powers conferred on the respondent by its constitution. I have pointed out the nature of the powers conferred on the respondent to regulate and conduct bridge tournaments and do all things incidental or conducive to the attainment of that object. Enforcing compliance with its tournament rules and acting to sanction those who disregard the rule is within the respondent’s power. Clause 13 of the constitution allowed the respondent to delegate the disciplinary function to the committee.
There is nothing in the argument that the committee could not determine the complaint because the applicant was not a member of the respondent. What the committee had under consideration was whether the applicant should be excluded from participation in bridge tournaments for which the respondent was responsible. Whether or not the applicant was a member of the respondent, it would, for obvious reasons, have been inappropriate to make a determination adverse to the applicant without affording him the right to argue against the exclusion. Neither the respondent nor the committee have purported to “punish” the applicant by reference to his status as a member. What the respondent did was to exercise his powers with respect to the conduct of bridge tournaments in a way which affected the applicant and which therefore obliged it to afford him procedural fairness. The respondent’s capacity to act did not depend upon the applicant being one of its members.
Severity of Sanction
The applicant’s last point is that the committee’s decision is so disproportionate to his transgression that it must indicate bad faith or some other miscarriage of the committee’s function. It is no doubt right that where such disproportionality is established that the Court would infer that a tribunal must have misbehaved or misconceived its function and will set aside the determination. See for example Shepherd v. South Australian Amateur Football League Inc [1986] 44 SASR 579 at 585 and the cases there cited. This is merely an adjunct to the “wednesbury principle” by which if a decision is so unreasonable that no reasonable decision-maker could have made it, the decision itself supplies the grounds for impugning it as being unlawfully made. See the discussion in Aaronson & Franklin, op cit at p. 69.
The unreasonableness, or disproportionality, must be self-evident. The Court is reluctant to intervene in the affairs of a voluntary association whose members have joined on the basis that some of their number will be entrusted with the task of enforcing the rules which form the basis of their association. Where the object of the association is the furtherance a particular past-time those familiar with the past-time and the spirit in which it should be engaged are much better positioned than the Court to determine what, in a particular case, should be done to enforce compliance with the rules.
The sanction is not so extraordinary as to overcome that reluctance. Indeed it does not seem extraordinary at all. The occasion with which the committee was concerned was the second on which the applicant had refused to obey a tournament director and had disrupted a competition. The applicant’s conduct was flagrant in the sense that he openly defied the authority of the director and challenged the applicability of the rules under which the director acted. A consequence of the applicant’s disqualification was that the applicant’s opponents could not be given a score that would be equitable as between them and the other players. The whole tournament was affected. The committee was entitled to view the matter seriously and to take steps which, in its view, would uphold the respondent’s authority and preserve the integrity of future tournaments. I can see no valid criticism.
There is no substance in any of the points raised by the applicant. The application must be dismissed with the usual consequences.
IN THE SUPREME COURT
OF QUEENSLAND No. 71921 of 1998
Brisbane
BETWEEN:
LEIV RUBEN ANDERS BORNECRANTZ
Applicant
AND:
QUEENSLAND BRIDGE ASSOCIATION INC.
Respondent
REASONS FOR JUDGMENT - CHESTERMAN J
Judgment delivered 24 March 1999
CATCHWORDS: JUDICIAL REVIEW - application for prerogative order - application pursuant to Part 5 Judicial Review Act 1991 - whether applicant could rely upon insufficiency of notice arising from his “obstructive conduct” - whether the applicant could raise bias - waiver - whether issue estoppel could arise in relation to a decision of a domestic tribunal - whether the committee’s decision was an unlawful restraint of trade - whether the committee acted in accordance with the constitution of the QBA - whether the sanction imposed by the committee was disproportionate.
Counsel:Applicant in person
Mr T P Sullivan for the respondent
Solicitors:Jones King Lawyers for the respondent
Hearing Date: 5 March 1999
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