Carter v NSW Netball Association

[2004] NSWSC 737

CITATION:	Carter v NSW Netball Association [2004] NSWSC 737
HEARING DATE(S):	14 July and 12 August, 2004
JUDGMENT DATE:	17 August 2004
JURISDICTION:	Equity
JUDGMENT OF:	Palmer J
DECISION:	Decision of Defendant's Disciplinary Committee set aside.
CATCHWORDS:	NATURAL JUSTICE - PROCEDURAL FAIRNESS - VOLUNTARY ASSOCIATIONS - Plaintiff a voluntary coach in local sporting body - complaint of child abuse made against her by persons motivated by ill will - complaint tainted by deception - Defendant's disciplinary tribunal bans Plaintiff as member - decision founded on manifest denial of procedural fairness - decision contrary to provisions of Articles and By-Laws - Defendant notifies Commission for Children and Young Persons that Plaintiff has been subject to disciplinary proceedings relating to child abuse - Plaintiff suffers severe emotional illness as consequence - whether Plaintiff's complaint justiciable - discretionary considerations. - CHILD ABUSE - what constitutes - whether notice under s.39(1) Commission for Children and Young Persons Act should have been given - lack of clear and authoritative legislative guidelines for voluntary domestic tribunals as to conduct of relevant disciplinary proceedings which may result in notification of child abuse - lack of supervisory procedure under the Act or Regulations - need for legislative review.
LEGISLATION CITED:	- Commission for Children and Young People Act 1998 (NSW) - s.33, Part 7, s.35, s.36, s.39 - Corporations Act 2001 (Cth) - s.140 - Ombudsman Act 1974 (NSW) - Part 3A, s.25B, s.25E - Ombudsman Regulations 1999 (NSW) - Clause 5
CASES CITED:	- Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 - Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546 - Cameron v Hogan (1934) 51 CLR 358 - Gamilaroi Boomerangs Sports Aboriginal Corporation v Members of New England Group 19 [1999] NSWSC 495 - Hedges v Australasian Conference Association Ltd [2003] NSWSC 1107 - Lee v Showmen's Guild of Great Britain [1952] 1 QB 329 - Lo-Line Electric Motors Ltd, Re [1988] Ch 477 - McNab v Auburn Soccer Sports Club Ltd [1975] 1 NSWLR 54 - Mitchell v Royal New South Wales Canine Council Ltd (2001) 52 NSWLR 242 - R v Pharmacy Board of Victoria; Ex parte Broberg [1983] 1 VR 211 - Scandrett v Dowling (1992) 27 NSWLR 483 - White v Ryde Municipal Council [1977] 2 NSWLR 909 - Wilcox v Kogarah Golf Club Ltd (1995) 14 ACLC 421
PARTIES :	Sandra Viola Carter - Plaintiff The New South Wales Netball Association - Defendant
FILE NUMBER(S):	SC 1679/04
COUNSEL:	J.E. Armfield - Plaintiff R.E. Montgomery, J. Watson - Defendant
SOLICITORS:	Coode & Corry - Plaintiff Sparke Helmore - Defendant

Introduction

1 The Plaintiff seeks declarations that a decision by the Disciplinary Committee of the Defendant made on 2 March 2004 banning her from membership of the Defendant for five years is invalid and of no effect. The Plaintiff alleges that the Disciplinary Committee failed to comply with the procedural requirements for such a determination contained in the Constitution and By-Laws of the Defendant and, in addition, failed to afford the Plaintiff natural justice.

2    The disciplinary proceedings conducted by the Defendant arose out of a complaint about the Plaintiff made by persons calling themselves the “No Excuse for Abuse Committee”, an ad hoc group who shared a dislike of the Plaintiff as President of a local amateur sporting association. Although the complaint was couched in highly charged terms, the accusations, generally speaking, amounted in substance to no more than allegations of “excessively enthusiastic coaching” by the Plaintiff while a coach of a junior netball team, consisting of shouting encouragement or criticism to the players and other means of improving their performance which may or may not have caused distress to particular players. Counsel for the Defendant frankly acknowledged that he would not put the Plaintiff’s conduct any higher than that.

3 After the Defendant’s Disciplinary Committee had determined to make an adverse finding against the Plaintiff, its General Manager, Mr Harkness, gave a notice to the Commission for Children and Young People (“the Commission”) purportedly under s.39 of the Commission for Children and Young People Act 1998 (NSW) (“CCYP Act”) whereby he certified that the Plaintiff “has been the subject of disciplinary proceedings relating to child abuse, sexual misconduct or acts of violence in the course of employment”.

4    Shortly thereafter, Mr Harkness wrote to the Plaintiff advising that he had given such a notice to the Commission and that consequently her name had been “registered” with the Commission. The letter concluded:

“Should you seek child related employment in the future, with this or any other organization, the nature of this disciplinary matter will be taken into consideration during the checking process to determine your suitability for such employment.”

5    As a result of the complaint against her and of the manner in which the disciplinary proceedings were conducted by the Defendant, the Plaintiff’s health has suffered seriously and she has been unable to continue in her previous employment.

The facts

6    In 1983 the Plaintiff became a non-playing member of the Mt Druitt Netball Association (“MDNA”), thereby becoming a member of the New South Wales Netball Association Ltd (“the Defendant”). The Defendant is a company limited by guarantee.

7    Between 1983 and 2003 the Plaintiff coached many netball teams in the MDNA, including at representational level. She devoted a great deal of her time to the affairs both of MDNA and of netball generally. She has held several positions on the executive of the MDNA, including President, Vice President and Treasurer. In 1998 or 1999 she was made a life member of MDNA. Clearly, the Plaintiff has for many years held prominent positions in her local netball community and, doubtless, in the wider netball community as well. As the Plaintiff said: “For the last nineteen years, netball has been my life”.

8    On 6 August 2003, the Defendant received an undated letter from a person identifying himself as Mr Chris Watt, who described himself as “Chairman No Excuse for Abuse Committee”. The letter was purportedly written on behalf of the members of the “No Excuse for Abuse Committee” and it made serious allegations against the Plaintiff of “child abuse – both physical and psychological, gross neglect of duty of care, medical mismanagement, deprivation of prescribed medicine and basic human rights to deception and cheating” (sic).

9    The letter purported to amplify these allegations but it did not identify a single person alleged to have been abused or mistreated by the Plaintiff and it was couched in such generality as not to provide any meaningful and specific accusation to which the Plaintiff could respond with any specific rebuttal. The letter concluded with four demands, the first of which being that the Plaintiff be expelled from all involvement with the MDNA. The letter proceeded:

“Unless these demands are met, we the undersigned with the strength of numbers, will be compelled to take these complaints to another option which could include: The Child Protection Council, D.O.C.S., N.S.W. Police, Dept of Sport and Recreation, The Australian Sports Commission, The Ombudsman and the media.”

10    The letter was signed at the foot of the third last page by Mr Watt. The next page of the letter was headed:

“We the undersigned, who are members of the N.E.F.A. Committee, family, friends, members of MDNA and concerned individuals endorse the sentiments of the attached letter of complaint. We object strongly to child abuse and wish to provide a safe and happy environment for children to enjoy sport.”

Under that statement, on that and the last page, there appeared two columns in which the names of certain persons and their signatures appear. There are thirty-three names and signatures.

11    The unchallenged evidence of four witnesses whose signatures appear on the last two pages of the letter is that they were approached at sporting functions of the MDNA by a Mr Rob Hirst or Mrs Tanya Hirst and asked to sign a “petition for child protection”, which they did. The “petition” did not contain the typing at the top of the page, above the columns headed “Name” and “Signature”. None of the witnesses were informed that the “petition” was anything to do with a complaint to be made against the Plaintiff. On the contrary, one of the witnesses made an enquiry from Mr and Mrs Hirst as to whether the “petition” had anything to do with the Plaintiff and was expressly told that it had nothing to do with any such complaint.

12    The undisputed evidence of the Plaintiff is that prior to the receipt of the letter of complaint she had not known Mr Chris Watt. Further, her undisputed evidence is that she knows only ten of the thirty-three people who signed the last two signature pages of the letter of complaint. It is difficult to understand how people who did not know the Plaintiff could responsibly support the complaints made against her in the letter of complaint to which the signature pages were attached. One possible explanation is that they, like the four witnesses who gave evidence, were asked to sign only a “petition for child protection” and were not told that the “petition” would later be made to appear as if it were the signature pages to a letter of complaint against the Plaintiff.

13    The undisputed evidence of the four witnesses makes it clear that their signatures to a document purporting to be a letter of complaint about the Plaintiff were procured by a deception on the part of Mr and Mrs Hirst. The evidence also makes it clear that it was a gross deception on the part of those forwarding the letter of complaint to the Defendant to attach the “petition” as the signatory pages to that letter, having altered the “petition” by the addition of words which were not there at the time that the signatories signed so as to make it appear that the signatories were in fact endorsing the letter of complaint. The reference in the body of the letter of complaint to “we the undersigned with the strength of numbers” leads strongly to the inference that the deception was deliberate and premeditated.

14    The unchallenged evidence of the Plaintiff is that prior to the receipt of the letter of complaint there had been considerable animosity between herself as President of MDNA and Mr Hirst, who was the director of coaching. A view had been taken by another officer of MDNA that Mr Hirst was not entitled to be paid certain additional fees for coaching and those payments to Mr Hirst had been stopped. Another member of MDNA, Mr Cecil O’Donnell, blamed the Plaintiff for depriving Mr Hirst of some extra money for coaching. There had been a history of acrimony between Mr O’Donnell and the Plaintiff within the MDNA for a number of years. Mr Hirst then moved a motion at an executive meeting of MDNA that the Plaintiff’s life membership of MDNA be revoked. The motion was defeated.

15    Clearly, in the months leading up to the sending of the letter of complaint, there had been hostility within MDNA between Mr Hirst, Mr O’Donnell and their supporters on the one hand, and the Plaintiff and her supporters on the other. Mr O’Donnell is identified on the signatory page of the letter of complaint as a member of the “No Excuse for Abuse Committee”.

16    The Plaintiff was given a copy of the letter of complaint by the secretary of the MDNA. Her undisputed evidence is that it caused her to suffer from severe depression and panic attacks. For a long time she was unable to bring herself to leave her home. She ceased any coaching activity in MDNA very shortly afterwards and resigned from her employment.

17    On 20 August 2003, the secretary of MDNA wrote to Mr Watt asking if he would agree to mediation of the complaints against the Plaintiff set out in his letter. Mediation was part of the procedure set out in the Defendant’s “Anti-Harassment Policy” (to which I will come shortly). By letter dated 26 August 2003, Mr Watt replied, asking a number of questions. By letter dated 2 September 2003, the secretary provided answers to the questions and again asked whether Mr Watt was willing to participate in mediation.

18    By letter dated 11 September 2003, Mr Watt responded, saying amongst other things: “We believe that the matter is not one which requires mediation. Mediation constitutes reconciliation and negotiation which is not what our aim of this exercise has been”. Mr Watt insisted on investigation of the complaint. This rejection of mediation, coupled with the previous threat to take the matter to a variety of bodies including the media, suggests that the aim of the “No Excuse for Abuse Committee” was nothing less than to blacken the name of the Plaintiff publicly. The significance of this observation will emerge shortly.

19    In September 2003 the Plaintiff, who was then President of MDNA, stood down from office because of the complaints in Mr Watt’s letter.

20    On 20 October 2003, Mr Harkness, the General Manager of the Defendant, wrote to a Ms Vicki Fraser engaging her to undertake an investigation into the complaints in Mr Watt’s letter of August 2003. Ms Fraser provides a service of mediating and investigating complaints within the sports industry and in the government sector. Previously, Ms Fraser had served twenty-five years in the Victoria Police Force, retiring with the rank of Chief Inspector. Mr Harkness sent Ms Fraser the letter of complaint from Mr Watt, some handwritten notes of complaints from players and Mr Watt’s letter of 26 August.

21    On 10 November 2003, Ms Fraser wrote to Mr Harkness confirming that she had read the material provided by him “plus further documentation received from Mr Watt”. She advised that Mr Watt had arranged a meeting on 11 November between her and people not named but described as “the complainants”, that she intended to obtain “full details of the complaints from the parents and children, then to give [the Plaintiff] an opportunity to respond” at a meeting between herself and the Plaintiff on 12 November. The letter proceeded:

“I will then prepare a report of these conversations, with my assessment of the substance of the complaints and recommendations for further action, and forward it to you.”

22    On 11 November 2003, Ms Fraser met Mr Watt and thirteen others “wishing to detail their concerns about the behaviour of [the plaintiff]”. The people interviewed were: four current players (including the daughter of Mr Watt), five parents of current players (including Mr Watt), four people who were not parents of current players but were described as “currently holding official positions in netball” (they included Mr and Mrs Hirst and Mr O’Donnell), and an umpire. Ms Fraser took notes during those interviews.

23    On 12 November Ms Fraser interviewed the Plaintiff. Although she had not taken a tape recording of her interviews with “the complainants”, she took a tape recording of the interview with the Plaintiff.

24    Ms Fraser’s report to Mr Harkness is dated 27 November 2003 (“the Report”). Ms Fraser commences by saying that, viewed from the perspective only of the complainants, her assessment of the substance of the complaints is that they constitute harassment as defined in the Defendant’s Anti-Harassment Policy, namely:

“Harassment is offensive, abusive, belittling or threatening behaviour directed at a person … the behaviour must be unwelcome and the sort of behaviour a reasonable person would recognise as being unwelcome and likely to cause the person to feel offended, humiliated or intimidated.”

25    Ms Fraser then reports on her interview with the Plaintiff. She quotes selected extracts from the transcript. In the extracts quoted, as well as in passages not quoted in the Report, the Plaintiff either denies certain of the allegations outright or else endeavours to justify her actions as reasonable in the circumstances.

26    The Report then summarises “points of corroboration in complainants’ statements”, coming to the conclusion that the accounts of the complainants are consistent. The Report makes no mention of the fact that several times during the course of the interview with the Plaintiff the Plaintiff offered the names of people who could corroborate her account of the facts, offered to provide a copy of a player’s medical certificate which would justify the Plaintiff in acting as she did in one matter of complaint, and suggested that because Ms Fraser had interviewed only four of the current players in the team which the Plaintiff was coaching she should also interview the other seven team members who would contradict what the four complainants said.

27    The transcript of the interview shows that Ms Fraser’s response to these objections by the Plaintiff was to say:

“… if you wish to get any support statements for yourself, that’s for you to follow up. From my end I talked to the people who have a complaint to make and want to sign off on the complaints, and then talk to you – but if you want to get any other supportive information then I suggest strongly that you do that, and that the best avenue for sending that would be to Ian Harkness at Netball N.S.W. and as soon as possible, because I’m hoping to put my report in within the next week, so if you could get something to him by then, so he could consider everything.”

28    By this statement Ms Fraser was making it unmistakeably plain that she herself did not intend to investigate the truth or falsity of the complaints by speaking to people who might be able to give an account of events which contradicted the evidence of the complainants. Ms Fraser was making it clear that, in her view, it was up to Mr Harkness to consider whatever contradicting evidence the Plaintiff wished to adduce.

29    Ms Fraser’s Report continues with an assessment of the credibility of the fourteen persons making the complaints against the Plaintiff. The Report states:

“5.1 In assessing the credibility of the fourteen persons making allegations about Ms Carter, it is the opinion of this investigator that each person presented with integrity and no apparent motive to fabricate stories about Ms Carter’s behaviour. No person making a complaint appeared to be under any pressure to do so.

5.2 Five persons from outside the current representative team made statements about Ms Carter’s behaviour – Rob Hirst, Tanya Hirst , Gordon Prevett, Cecil O’Donnell and David Roberts. It is difficult to identify any reason these five persons may have to fabricate observations about Ms Carter’s behaviour – and each advised me they wished to speak out in order to protect the current team and future players from experiencing any of these behaviours. One of these five persons, Mr Cecil O’Donnell, may be regarded as someone of very senior standing in the Mt Druitt Netball Association , as he is a life member of the Association, has been a member of the Executive of the ruling body of the Association, an umpires convenor and served on a number of other committees.

5.3 One parent of a player on another team (not being a player in Ms Carter’s team), Mrs Karli Schneider, also wished to speak out to support players in Ms Carter’s current team and out of concern that her daughter is likely to be coached by Ms Carter next year if she is accepted into the representative team. The corroborative testimony of Mrs Schneider and of the five other persons may be considered to lend substantial weight to the allegations made by the current players and their parents.

5.4 As previously stated, Ms Carter denied all allegations made by the complainants. She offered no reasons why the complainants would make up their allegations. The substance of her denials appears to be that the complainants have misperceived the behaviours they complained about or that the behaviours did not occur at all.” [Emphasis added.]

The following observations should be made.

30    First, it is clear that Ms Fraser did not know that Mr and Mrs Hirst and Mr O’Donnell had a motive for disparaging the Plaintiff because of the dispute concerning Mr Hirst’s coaching fees. The notes of Ms Fraser’s interview with those persons show that they did not refer to it and that they were never asked by Ms Fraser about ulterior motive.

31    Second, one can assume that Ms Fraser did not know that there were grounds for believing that Mr and Mrs Hirst and Mr Watt, at least, were implicated in the deception practised by the alteration of the “petition for child protection” so as to make the signatories to the petition appear to endorse Mr Watt’s letter of complaint.

32    Third, to say that the Plaintiff “offered no reason why the complainants would make up the allegations” is to take a rather specious ground when Ms Fraser never asked the Plaintiff whether she knew of any reason that Mr and Mrs Hirst or Mr O’Donnell, and possibly others, might have to fabricate their allegations.

33    Fourth, Ms Fraser assessed the credibility of the complainants without testing that credibility by interviewing any witnesses who could give a different version although it was made clear to her by the Plaintiff that such people were available and would contradict what the complainants said.

34    Ms Fraser’s Report then states her opinion that “on the balance of probabilities” the Plaintiff’s conduct constituted harassment as defined in the Defendant’s Anti-Harassment Policy. It is difficult to understand how Ms Fraser could properly form an opinion that the complaints against the Plaintiff had been proved on the balance of probabilities when she had not spoken to any of the people who, according to the Plaintiff, would contradict the complainants’ accounts – most importantly, the assistant coach, the Manager and the other seven members of the complainants’ netball team.

35    The Report states two options for the next step to be taken by the Defendant:

“ Option 1 Mr Ian Harkness, General Manager, Netball N.S.W., or a person or persons appointed by him to sit in judgement of all matters contained in these complaints, determine upon the evidence at hand, including the statements of the fourteen complainants and the responses made by Ms Sandra Carter, (plus any supportive documentation that may be submitted by Ms Carter) the validity or otherwise of the complaints. Mr Harkness or person(s) appointed by him may then determine an outcome which should then be communicated to the complainants and Ms Carter in writing.

Option 2 Mr Ian Harkness, General Manager, Netball N.S.W., or a person or persons appointed by him to sit in judgment of all matters contained in these complaints, conduct a formal hearing to determine the validity or otherwise of the complaints made against Ms Sandra Carter. Such a hearing would allow complainants to put their allegations directly to the panel and be subject to questioning by the panel and(as determined by the panel) be subject to questions from Ms Carter. This hearing would also allow for Ms Carter to put her response directly to the panel and be subject to questions from the panel.
…
It is my opinion that Option 1 , whether undertaken by Mr Harkness sitting alone or by a Panel appointed by him, provides an expedient process in which the complaints may be assessed against Ms Carter’s responses and protects the four junior complainants from the necessity of giving testimony in a public forum or the potential of having to undergo questioning from Ms Carter.”

Ms Fraser concludes her Report by recommending Option 1. Her recommendation seems to assume, without foundation, that the “four junior complainants” would be further harassed by the Plaintiff if questioned and that there was no point in affording to the Plaintiff the right to test their evidence because it had already been established “on the balance of probabilities” that the Plaintiff was guilty.

36    On 13 December the Board of the Defendant noted that Ms Fraser’s Report had been received, that legal advice on the Report had been sought and received, and that Mr Harkness had received letters from members of MDNA supporting the Plaintiff which he had forwarded to Ms Fraser for her opinion. It was resolved that the “Review Panel for the Mt Druitt issue be the Disciplinary Committee as outlined in the By-Laws”. It was agreed that the Disciplinary Committee would meet on Wednesday, 17 December “to review documents”.

37    The minute of a meeting of the Disciplinary Committee on 17 December relevantly records:

“Committee members have had the opportunity to consider the information package provided by the General Manager with regard to the allegations of Child Abuse.

Discussion follows on the various Netball NSW Policies including the Anti-Harassment Policy, Disciplinary Policy and Child Protection and Intervention Policy and the relationship of the allegations at hand to them

In the matter of Ethics and Codes of Practice for the Mt Druitt Association are queried.

The recent submission of the letters of support for Sandra are considered and the response from Vicki Fraser on these letters is awaited

The complaint regarding the breach of the 30% Rule is discussed however in the scheme of things it is held over to deal with the more serious allegations.

After consideration of the information presented it is agreed that the following preliminary penalty be imposed – That Sandra Carter be banned as a member of Netball NSW for a period of five years and that during that time Sandra seek professional advice and guidance on the correct procedures on how to manage childrens behaviour in a more appropriate manner.

Prior to seeking admission as a member of Netball NSW proof of having obtained this advice and guidance must be provided.

It is agreed however that should Vicki Fraser present any advice and information that changes her original recommendations that the Committee be reconvened to consider that information .”
[Emphasis added.]

It is clear that the Committee’s decision was “preliminary” only as to what penalty should be imposed, not as to whether the complaints had been proved. The only reference to any further consideration which might be given by the Committee is to a consideration of whatever Ms Fraser might have to say as to her original recommendation by way of “response” to the Plaintiff’s letters of support. There is nothing which suggests that the Committee was prepared to hear directly from the Plaintiff or from such witnesses as the Plaintiff might wish to adduce, as to her guilt.

38    By the time of this meeting the Committee had received twenty-one letters supporting the Plaintiff. The letters contained statements made or endorsed by thirty-one people including the seven members of the complainants’ team, the assistant coach of the team and past players in teams coached by the Plaintiff and their parents. All of these people strongly denied any inappropriate use of physical force or abusive language by the Plaintiff. The team players and their parents contradicted the accounts of certain incidents given by the complainants but it is clear that they did not have the particulars of many of the instances given in the complainants’ accounts because these particulars were never provided to them by the Defendant.

39    It is especially significant that the assistant coach of the complainants’ team protested in her letter that Ms Fraser had not interviewed either her or the team’s manager as they had both attended all training sessions, competitions and carnivals at which the incidents alleged by the complainants were said to have taken place. Many people who provided letters supporting the Plaintiff expressed willingness to be interviewed and gave their contact details.

40    It is abundantly clear that the Plaintiff had available many witnesses who could give accounts of the various incidents complained of which would contradict the complainants’ accounts or would place the Plaintiff’s conduct in a very different light from that presented by the complainants.

41    One of the letters supporting the Plaintiff expressly drew attention to the deception that had been practised by Mr and Mrs Hirst and Mr Watt in attaching the “petition for child protection” as signatory pages of Mr Watt’s letter of complaint. The writer described what had happened as “a very low and dirty trick to pull on anyone”. The Disciplinary Committee seems to have ignored this highly important allegation. So also did Ms Fraser in an e--mail she sent to Mr Harkness on 18 December in which she gave her comments on the letters supporting the Plaintiff.

42    Ms Fraser’s e-mail is disturbing. A reading of it leaves one with the distinct impression that Ms Fraser did not have the open mind required of an investigator; rather, she had taken on the role of prosecutor. Ms Fraser clearly saw no need to interview any of the people who had provided the letters, despite their requests to be interviewed and despite the allegation that the “No Excuse for Abuse Committee” had been guilty of “a low and dirty trick”.

43    Having decided not to interview any of the Plaintiff’s witnesses, Ms Fraser dismissed their statements, either by suggesting that their evidence had been the result of collusion or “external direction” or by extracting from their statements phrases, completely out of context, which she nevertheless claimed supported the complainants’ case.

44    Extraordinarily, despite the express allegation in one of the letters that the “petition for child protection” had been used deceptively to support Mr Watt’s letter of complaint, Ms Fraser repeated what she had said in her Report, namely, that from her meetings with the complainants’ witnesses, she did not perceive any motivation for fabricating false evidence and she repeated her statements that the evidence of Mr and Mrs Hirst and Mr O’Donnell was “compelling” as it was offered by “persons having no apparent vested interest or motive in contriving false observations about [the Plaintiff’s] behaviour”.

45    It is exceedingly difficult to understand how a responsible investigator, particularly one with twenty-five years’ experience in the Police Force, could ignore or dismiss an express allegation that the complainants’ evidence was tainted by deception without interviewing any of the witnesses put forward by the Plaintiff.

46    On receipt of Ms Fraser’s e-mail, Mr Harkness told the chairperson of the Defendant’s Disciplinary Committee that Ms Fraser had not altered the conclusions in her Report. On or about 19 December, according to Mr Harkness, the chairperson confirmed that the Committee was making a “preliminary decision as agreed at the meeting on 17 December”.

47    On 19 December Mr Harkness sent to the Plaintiff a letter in the following terms:

“The review panel’s consideration of the allegations has now been finalized. The review panel has concluded that you have breached aspects of Section 11 of the Netball NSW Anti Harassment Policy. A copy of the Policy is also enclosed.

A preliminary view, based on these findings, has been formed that it is appropriate that you be expelled as a member of Netball NSW for a period of five (5) years. At the completion of this time proof will have to be provided that you have sought and undertaken appropriate counselling.

Before coming to a final decision in relation to the disciplinary action to be taken we are giving you the opportunity to make a submission to the Association by Friday 16th January 2004 in regard to penalty and submit any further information or material you wish to be taken into account.

A final decision will be made on receipt of your response, or in the absence of any response within the time frame indicated. Netball NSW will then advise you in this regard.”

48    I do not agree with the Defendant’s submission that Mr Harkness’ letter should be construed as meaning that the Defendant had reached only a “preliminary view” about guilt. In my view, the letter, particularly the first sentence and the words “based on these findings” clearly convey that the Disciplinary Committee had reached a final conclusion that the Plaintiff had breached the Defendant’s Anti-Harassment Policy, after taking into account all of the evidence as to guilt which it was going to consider. The letter made it plain that all that remained for the Plaintiff to do was to make submissions about the “preliminary view” taken by the Committee as to the appropriate penalty to be imposed.

49    It is hard to escape the conclusion that the Disciplinary Committee of the Defendant, in finding the Plaintiff guilty of the conduct of which she was accused, uncritically accepted the findings and recommendations of Ms Fraser. If that is so, what is troubling is that Ms Fraser’s investigation was manifestly incomplete and one-sided.

50    As a result of the emotional stress caused by the complaint, its investigation and its determination by the Disciplinary Committee, the Plaintiff sought medical assistance and she has been on medication since November 2003. The medical evidence adduced by the Plaintiff shows that she has been diagnosed as suffering from panic attacks with agoraphobia and from Major Depression.

51    On 23 January 2004 the Plaintiff’s solicitor wrote to Mr Harkness, setting out carefully and at length the many flaws in the Defendant’s decision-making process which, he claimed, had resulted in a breach of the Defendant’s disciplinary procedures and a denial of natural justice. The letter laid particular emphasis on the fact that Ms Fraser had interviewed only those complaining about the Plaintiff and none of the persons offering to give evidence to the contrary. The letter stated that if the Disciplinary Committee’s decision were not withdrawn, proceedings would be commenced in this Court.

52    On 29 January 2004, the Defendant’s solicitors responded, stating inter alia that the Defendant had complied with its procedural obligations and with the requirements of natural justice. The letter advised that “a preliminary view had been reached by [the Defendant] in relation to disciplinary action”, noted that the Plaintiff had been asked to respond “in relation to disciplinary action”, and required such response within seven days. In the context of the letter as a whole taken with Mr Harkness’ letter of 19 December, these statements can mean only that the Plaintiff’s response was sought, not as to the issue of guilt, but only as to “disciplinary action”, i.e. penalty. It is significant to observe that the letter does not indicate that any of the witnesses proffered in support of the Plaintiff would be interviewed by Ms Fraser or heard by the Disciplinary Committee.

53    On 29 January the Plaintiff’s solicitors sought a further twenty-one days to obtain instructions. Several further extensions of time were sought by the Plaintiff’s solicitors and granted, the last extension expiring on 2 March 2004. In one of the letters requesting an extension of time the Plaintiff’s solicitors had advised that the Plaintiff had been hospitalised and that her health was not good. There is no dispute that the Plaintiff’s inability to give instructions to her solicitors was the result of the medical condition from which she was suffering and that that condition had been brought on by the complaint against her and its manner of investigation by the Defendant.

54    On 2 March 2004, the Disciplinary Committee declined to grant any further extension of time for the Plaintiff to make “submissions” and confirmed its “preliminary decision” as its final decision.

55    On 5 March 2004, Mr Harkness wrote to the Plaintiff advising her of the Disciplinary Committee’s “final decision” and stating that she had a right to appeal to an “Appeals Panel” within seven days. On 11 March, the Plaintiff’s solicitors responded, advising of the Plaintiff’s intention to appeal on the grounds of “serious breaches of procedural fairness”, requesting documentation and seeking certain particulars.

56    On 18 March, Mr Harkness wrote to the Plaintiff’s solicitors extending time for appeal to 25 March. On 24 March, the Plaintiff’s solicitors wrote to Mr Harkness, saying that they had been endeavouring to contact the Plaintiff without success and requesting a further extension of time for seven days. The following day Mr Harkness responded, refusing any further extension of time.

57    On 29 March, Mr Harkness gave a notice to the Commission under s.39 CCYP Act certifying that the Plaintiff “has been the subject of disciplinary proceedings relating to child abuse, sexual misconduct or acts of violence in the course of employment”.

The effect of notification under CCYP Act

58 Under s.36 CCYP Act, the Commission keeps a data base of “relevant disciplinary proceedings” that have been completed against a person and makes that information available for the purpose of “employment screening” by those employers who are required, by s.37 of the Act, to carry out such screening before employing any person in a “child-related employment”.

59 By s.33(1) CCYP Act, “child-related employment” means:

“… any employment that involves direct contact with children where the contact is not directly supervised, and includes any employment of a kind prescribed by the regulations but does not include any employment of a kind excluded by the regulations.”

“Employment” is defined to include not only paid employment pursuant to a contract of employment but also:

“(c) performance of work as a volunteer for an organisation, or

(d) undertaking practical training as part of an educational or vocational course, or

(e) performance of work as a minister of religion or other member of a religious organisation.”

60 The effect of notification by the Plaintiff under s.39 CCYP Act on the Plaintiff, who is now unemployed, is that if she seeks any employment or to be engaged in any activity, remunerated or voluntary, either to do with netball coaching or otherwise, in which she will be involved in direct, unsupervised contact with children, then her “conviction” by the Defendant of child abuse will be notified under the CCYP Act to her prospective “employer”.

61    If the notification of the Plaintiff in the Commission’s database remains, the prospect of the Plaintiff ever again being permitted by any organisation to be engaged in any activity involving direct, unsupervised contact with children is, one may safely assume, remote.

The Defendant’s constitution and the By-Laws

62    As I have noted, the Defendant is a company limited by guarantee. It was incorporated in 1979. Its constitution comprises the Memorandum and Articles of Association. The Articles refer to “the By-Laws” which are defined as “the By-Laws, Rules and Regulations of the Association for the time being in force”. There are no definitions of “Rules” or “Regulations”.

63    The Articles provide for various classes of members, including life members, of whom the Plaintiff is one. Article 4 provides:

“ CESSATION OF MEMBERSHIP

4. A person shall cease to be a member if –

(i) the member dies or resigns; or

(ii) the member fails to pay any membership dues for six (6) weeks after pay is due;

(iii) having refused or neglected to comply with the provisions of the Memorandum and Articles of Association or By-Laws of the Association or being guilty in the opinion of the Council of conduct deemed by the Council to be unbecoming of a member or prejudicial to the interests of the Association the member be expelled by resolution of the Council

PROVIDED HOWEVER that at least twenty-one (21) days before the meeting at which such matter is to be considered the member concerned shall have been notified in writing and invited to be present at the meeting and that the member shall at such meeting and before any resolution is passed have had an opportunity of giving orally or in writing any explanation or defence the member may think fit.”

64    Article 6 requires that the Council shall consist of active Life Members, the Board of Directors, and two delegates “from each district and league association”. Article 32 provides that, subject to the Corporations Law (now the Corporations Act), the business of the Association is to be managed by a board of directors who may exercise all such powers as are required to be exercised by the Board by the constitution and the Corporations Law.

65    Article 33 provides that the Council is responsible for carrying out the objects of the Association and is given specific powers including:

“g) to take disciplinary action pursuant to these Articles against any member;

h) from time to time to make, amend, and rescind By-Laws not consistent [sic] with these Articles;
…
q) to fine caution expel or suspend from membership for such period as it thinks fit any member who shall wilfully infringe any provision of the Memorandum or Articles of Association or of the By-Laws of the Association or who shall in the opinion of the Council be guilty of conduct unbecoming of a member or prejudicial to the interests of the Association;

r) to delegate its powers to deal with and adjudicate upon questions, disputes, disciplinary disputes and appeals as to the interpretation of the Articles or Association, Rules and By-Laws, Championship and Competition rules, and upon any complaint made to it of misconduct detrimental to the policy, interest or welfare of the NSW Netball Association Limited or any District Association or member to whom the Articles of Association, By-Laws or Rules apply.”

66    Article 44, which somewhat curiously appears in a section headed “Indemnity” provides:

“The Council shall have the power to deal with and adjudicate upon any complaint made to it of misconduct detrimental to the policy interests or welfare of the Association by any member of the Association. The Council may delegate its disciplinary powers to the Board or to a sub-committee of the Council and make By-Laws governing the exercise of such delegated powers.”

The By-Laws are expressly made subject to the Memorandum and Articles.

67    By-Law 9(iv) provides that a number of standing sub-committees are to be elected at the first Council meeting each year, including the “Disciplinary Committee” which is to be constituted by the President, the Director State Administration and the Director Finance. By-Law 9(c) provides that “with the approval of Council, persons other than the elected members may be co-opted to assist with the business of a particular sub-committee”.

68    I pause at this point to note that, according to Mr Harkness’ evidence, the appointment of Ms Fraser to investigate the complaint against the Plaintiff was made, not by the Committee but by himself as general manager, after discussion, not with the Committee, but with the Board of Directors. Clearly, Ms Fraser was not “co-opted” under By-Law 9(c) as a member of the Disciplinary Committee.

69    Again, according to Mr Harkness’ evidence and to Board Minutes which have been tendered, at a meeting of the Board of Directors on 13 December 2003 the Board resolved that the “Review Panel” which was to adjudicate upon the complaint against the Plaintiff would be “the Disciplinary Committee as outlined in the By-Laws”. One of the directors stated that as he might be compromised, he should stand aside from the “Review Panel”. Accordingly, the Board resolved that “J. Webster be appointed to the Disciplinary Committee to review this matter to replace M. Murphy”. By-Law 9(b) provides that in the event that a member of the Disciplinary Committee has a “conflict of interest based on natural justice” the “remaining members” of the Disciplinary Committee may second some appropriate person as a replacement.

70    The evidence does not reveal whether the members of the Board of Directors who appointed Mr Webster to the Disciplinary Committee in place of Mr Murphy constituted the “remaining members” of the Disciplinary Committee. If they did not, the appointment of Mr Webster meant that the Disciplinary Committee was invalidly constituted.

71    The reference in the Directors’ resolution of 13 December to “the Review Panel” was a reference to a body purportedly constituted under the Defendant’s Anti-Harassment Policy, to which I will come shortly.

72    By-Law 11 provides:

“ DISCIPLINARY COMMITTEE shall :

(a) consist of the President, Director State Administration and Director Finance. The President shall ensure the conduct of any and all disciplinary procedures.

(b) in the event that any of the above is deemed to have a conflict of interest based on natural justice and therefore inappropriate to sit on a matter, the remaining members may second an appropriate person as a replacement.

(c) Investigate any matter referred to it arising from any incident(s) involving players and/or officials at any NSWNA event. A matter can be referred for investigation by any registered member of the NSW Netball Association.

(d) All incidents or disputes must be lodged in writing with the Director State Administration within 48 hours of alleged incident having occurred. Where possible, such correspondence shall be submitted through the relevant District and/or League Association Secretary.

(e) Where possible, all persons required to appear at a disciplinary hearing shall be notified personally or by telephone by the Director State Administration. Where a person is unable to be contacted by telephone or in person, a message shall be given to a recognised District official advising of the requirement for their member to attend a disciplinary hearing, detailing date, time and venue for such hearing.

(f) The Disciplinary Committee shall determine who shall be required to attend at any disciplinary hearing. An official of the District who may be the subject of the hearing shall be invited to attend the hearing with the alleged offender. Where a person under the age of 18 years is required to attend a disciplinary hearing, the person’s parent or guardian shall also be invited to attend.

(g) Where an investigation concludes, on the basis of probabilities, that the matter has breached the NSW Netball Association’s Code of Conduct, as detailed in Clause 19 of the By-Laws and Standing Orders, such penalties as deemed appropriate shall be imposed.

(h) The decision of the Disciplinary Committee is to be conveyed to all parties involved immediately the hearing is concluded. The decision shall be confirmed in writing to all parties concerned and the relevant District and/or League Association within seven (7) days of the hearing.

(i) Any appeal to a decision made by the Disciplinary Committee can be made to the Appeals Committee. Such appeal must be lodged in writing within 48 hours of the decision from the Disciplinary Committee. The appeal must fully state, in writing, the grounds for the appeal.”

73    It is plain that the procedure for adjudication of the complaint against the Plaintiff in the present case did not comply with the requirements of By-Law 11, if only because the letter of complaint sent by Mr Watt concerned many incidents which occurred well outside the forty-eight hours referred to in paragraph (d). Further, there was no attempt to hold a disciplinary hearing in accordance with paragraph (e) and (f).

The Anti-Harassment Policy

74    On 4 November 2000 at a meeting of the Council it was resolved “that the Anti-Harassment Policy circularised to all [District] Associations be accepted as a NSW Policy document”.

75    The Anti-Harassment Policy commences with a policy statement in broad terms, concluding with the words: “Disciplinary action can be taken against a person who is found in breach of this policy.” Then follow a number of definitions which, so far as is presently relevant, provide:

“6. The following definition of harassment has been adopted by Netball NSW for the purpose of this policy. It includes but goes beyond what is prohibited by law and does not distinguish between the various types of harassment.

Harassment (general)
7. Harassment consists of offensive, abusive belittling or threatening behaviour directed at a person or people, because of a particular characteristic of that person or people (including the person or peoples’ level of empower relative to the harasser). The behaviour must be unwelcome and the sort of behaviour a reasonable person would recognise as unwelcome.”

76    Paragraph 11 of the Policy further defines behaviour constituting harassment. Omitting those parts which deal with sexual matters, paragraph 11 provides:

“Behaviour constituting harassment can take many different forms and may be explicit or implicit, physical, verbal or non-verbal. Examples include, but are not limited to:

abusive behaviour aimed at humiliating or intimidating someone in a less powerful position;

jokes or comments directed at a person’s body, looks, age, race, religion, sexual orientation or disability;

unwelcome remarks including teasing, name calling or insults;

innuendo or taunting; …”

77    Paragraph 18 provides that “it will be the responsibility of all employees, referees, coaches, administrators, volunteers, players and members to: comply with this Policy …”.

78    Paragraphs 23 and 24 provide:

“23. Netball NSW will deal promptly, seriously, sensitively and confidentially with any complaints about breaches of this policy.

24. Netball NSW will ensure that appropriate complaints procedures are developed to handle harassment complaints. These will provide both formal and informal mechanisms for dealing with complaints. Please refer to the Complaints Procedures at Appendix 1 for details.”

79    Paragraph 25 provides for an informal manner of resolving harassment complaints by discussion and other assistance. Paragraph 30 provides for mediation of complaints. Paragraphs 31 to 35 provide for the lodgement of a formal written complaint by a complainant. The Complaints Officer is to attempt to resolve the complaint by mediation and if that is unsuccessful: “the Complaints Officer will proceed to arrange a fair investigation of the complaint. The purpose of the investigation will be to establish whether harassment occurred, and if so, what action should be taken to resolve the matter”.

80    Paragraph 35 provides:

“Netball NSW can take disciplinary action against any person in Netball NSW who is found to be guilty of harassment. Netball NSW can also take disciplinary action against anyone who victimises a person who has complained of harassment. The discipline would depend on the severity of the case and could involve counselling, compulsory education, a fine, suspension, dismissal or withdrawal of coaching/official accreditation or any other action Netball NSW decides.”

81    There is an appendix to the Policy document which is headed “Complaints Procedures”. The document is described as Appendix A, although it is to be noted that paragraph 24 of the Policy refers to the Complaints Procedures in Appendix 1. Further, paragraph 24 seems to suggest that the Defendant’s “Complaints Procedures” are still to be “developed”, rather than that the procedures specified in Appendix 1 or Appendix A are procedures which are, in fact, already adopted. The Defendant has proceeded in the case on the footing that Appendix A contains the presently applicable procedures for a complaint under its Anti-Harassment Policy but there is no evidence that those, or any other, procedures were adopted or ratified by the Defendant in any way.

82    The relevant provisions of Appendix A are as follows:

“ Formal process

5. If the matter is not resolved with the support and advice of the HCO or other person initially approached the complainant can make a formal complaint in writing about the alleged harassment to the Complaints Officer.

6. The Complaints Officer should attempt to resolve the complaint between the parties concerned by mediation, unless this has already been attempted without success or is clearly not appropriate in the circumstances (for example, the complainant is too distressed to face the alleged harasser).

7. If mediation fails, or is not feasible, the Complaints Officer must then ensure that a fair and impartial investigation is made of the allegations, and that appropriate action is taken to resolve the complaint and, where necessary, to deal with the harasser.

8. The investigation is then conducted by a fairly constituted panel or a suitably skilled and impartial individual from within or outside the organisation/sport (this is likely to be the Complaints Officer). Natural justice is to be observed for the alleged harasser.

9. The steps for an investigation consistent with the principles of natural justice are:

a) the complainant is interviewed and the complaint is documented in writing;

b) the allegations are conveyed to the alleged harasser in full;

c) the alleged harasser is given the opportunity to respond;

d) if there is a dispute over the facts, statements from witnesses and other relevant evidence is gathered;

e) a finding is made as to whether the complaint has substance, and

f) a report documenting the investigation process, the evidence, the finding and the recommended outcome/s is submitted to the decision maker (normally the senior official with responsibility for the anti-harassment policy).

10. Both parties are entitled to support through this process from their chosen support person/adviser (for example, the HCO, a legal representative).

11. If the report is endorsed by the decision maker, the organisation then carries out the recommendations of the report. These may include such actions as an apology, counselling, a fine, suspension, dismissal or withdrawal of coaching/official accreditation.

12. Both the complainant and the respondent have the right to appeal against the findings of the investigator/panel or against the resulting recommended action if they have any concerns about procedure, bias or fairness. Appeals are to be handled by an appropriately qualified panel appointed by Sports NSW and made up of members other then those who conducted the original investigation.

13. The appeal body can uphold the decision of the investigator/ panel, reverse the decision of the investigator/panel, and/or modify any of the investigator/panel’s recommendations for disciplinary action or remedial measures.”

The status of the Anti-Harassment Policy

83    The first question is: what status within the constitution of the Defendant does the Anti-Harassment Policy have by reason of the resolution of the committee on 4 November 2000 that the Policy “be accepted as a NSW Policy document”?

84    Mr Armfield, who appears for the Plaintiff, submits that the Defendant’s Anti-Harassment Policy forms part of the contract between the Defendant and its members which is constituted by the Memorandum and Articles of Association, the By-Laws and other codes of conduct apparently adopted by the Defendant. Mr Armfield says that the Defendant was, therefore, bound by contract to decide the complaint against the Defendant in accordance with the procedures specified in the Anti-Harassment Policy, including the requirement in that Policy that the principles of natural justice were to be observed.

85    Mr Montgomery, who appears with Mr Watson for the Defendant, says that neither the Defendant’s Memorandum and Articles, the By-Laws nor the Anti-Harassment Policy have any contractual force to the extent that they provide, expressly or by implication, for disciplinary procedures. He says that they are merely guidelines, or a “consensual compact”, which the members of the Defendant agree to observe without affording each other contractual rights and remedies.

86    The phrase “consensual compact” was used by Priestly JA in Scandrett v Dowling (1992) 27 NSWLR 483, at 513, and by Young J (as his Honour then was) in Wilcox v Kogarah Golf Club Ltd (1995) 14 ACLC 421, at 425, to describe the status of rules or procedures which, construed in their context and with regard to their purpose, can be seen as adopted by the members of a non-profit organisation in order to express their shared ideals, purposes or beliefs rather than in order to create contractually binding rights and duties enforceable in a court of law.

87 I do not agree with Mr Montgomery’s submissions as to the Defendant’s Memorandum and Articles and the By-Laws. It is trite law that the Articles of Association of a corporation such as the Defendant constitute a contract between the corporation and its members: see e.g. s.140 Corporations Act 2001 (Cth); McNab v Auburn Soccer Sports Club Ltd [1975] 1 NSWLR 54, at 59; Gamilaroi Boomerangs Sports Aboriginal Corporation v Members of New England Group 19 [1999] NSWSC 495, para.4. The Defendant’s Articles incorporate the By-Laws by express reference so that the By-Laws are also part of the contract between the Plaintiff and the Defendant.

88    However, I agree with Mr Montgomery’s submission as to the Anti-Harassment Policy. A reading of the Policy document as a whole shows that, for the most part, it is couched in language remote from the precision and formality of contract or of the Memorandum and Articles of Association and the By-Laws of the Defendant. The tone of the Policy is hortatory and didactic, not legalistic and definitive.

89    Further, the procedures for determining complaints which are specified in Appendix A seem, from the terms of paragraph 24 of the Policy, to be indicative of what the Defendant may in the future set in place. As I have noted, there is no evidence to suggest that the procedures in Appendix A have been formally ratified by the Board of Directors or the Council of the Defendant or otherwise incorporated into the Memorandum and Articles of Association or the By-Laws.

90    In my view, the Anti-Harassment Policy is no more than a policy or guideline espoused by the Defendant, without having the binding contractual force which it would have if formally incorporated either into the Memorandum and Articles of Association or into the By-Laws of the Defendant.

91    It follows, therefore, that whether or not the Defendant had power under its constitution to entertain and deal with Mr Watt’s complaint against the Plaintiff in the way that it did is not to be determined by reference to whether it complied with the procedures set out in the Anti-Harassment Policy.

92    What is significant about the Anti-Harassment Policy, however, is that it expressly requires that any procedure for determination by the Defendant of any serious complaint of harassment must be subject to the rules of natural justice. Further, although it does not have contractual force, the Policy may be regarded as stating a “consensual compact” as to what conduct by a member of the Defendant could properly be regarded as “unbecoming of a member or prejudicial to the interests of the Association” for the purposes of disciplinary proceedings under Article 4(iii) and Article 33(q) or “misconduct detrimental to the policy, interests or welfare of the Association” under Article 44.

What disciplinary procedure was engaged

93    It is clear that when Mr Harkness appointed Ms Fraser to investigate the complaint against the Plaintiff he must have believed that he had validly set in train a disciplinary procedure established by the Defendant’s Anti-Harassment Policy. Paragraph 32 of the Policy requires the Complaints Officer (Mr Harkness) to “arrange a fair investigation of the complaint”.

94    However, as I have observed, the Anti-Harassment Policy was not made part of the Articles of Association of the Defendant nor its By-Laws. Accordingly, the rights of the Plaintiff as a member of the Defendant were governed, not by the Anti-Harassment procedure, but by the procedures established in the Articles and in the By-Laws: those procedures could not be varied except in accordance with the usual mechanisms for amending a corporation’s constitution. It follows that if the Plaintiff were to be expelled from membership of the Defendant, or fined, cautioned, or suspended for a period, those penalties had to be imposed pursuant to and in accordance with Articles 4(iii), 39(q) or 44. The Council had the power to try, convict and punish the Plaintiff under those Articles but under Articles 33(r) and 44 the Council could delegate that power to the Disciplinary Committee. By Article 44, the exercise of that delegated power is governed by the By-Laws.

125    Sixth, By-Law 11 required the Disciplinary Committee, as decision-maker, to afford the Plaintiff the opportunity of making submissions to it as to her guilt. This opportunity was denied. As to guilt, the Disciplinary Committee in effect had only the “submissions” of Ms Fraser in her Report, a report fatally flawed by Ms Fraser’s refusal to interview witnesses whom the Plaintiff said would be available. Ms Fraser’s Report, far from being impartial, is very much in the nature of submissions for the prosecution.

126    In this regard it is significant to note that the Plaintiff makes an express allegation against Ms Fraser of bias, or a reasonable apprehension of bias, in the way in which Ms Fraser carried out her investigation. Prima facie, there is a basis for such an allegation, in my opinion, having regard to the one-sided nature of Ms Fraser’s investigation but Ms Fraser has not been called to give any evidence explaining her conduct.

127    Seventh, both By-Law 11 and procedural fairness required that the decision-maker charged with making a finding, that is the Disciplinary Committee, actually make the finding after itself hearing the evidence and submissions of both sides. The evidence strongly leads to the inference that the Disciplinary Committee adopted uncritically the findings and recommendations of Ms Fraser in her Report and Ms Fraser’s “assessment” of the letters of support produced by the Plaintiff.

128    Eighth, the Articles of Association and the By-Laws require the Disciplinary Committee to identify for itself under what powers it was acting in hearing the complaints and in imposing a penalty. This seems to have been done correctly at the Board meeting on 13 December 2003 when a resolution was passed that “the Mt Druitt issue” be heard “by the Disciplinary Committee as outlined in the By-Laws”. Yet what was actually done by Mr Harkness in procuring Ms Fraser’s investigation and Report seems to have been done under paragraphs 5 to 12 of the Complaints Procedures attached to the Anti-Harassment Policy. In particular, the Disciplinary Committee, being “the decision-maker”, seems to have “endorsed” Ms Fraser’s Report, under paragraph 11 of those Procedures.

129    As I have pointed out, the Procedures, in permitting the Disciplinary Committee simply to endorse the investigator’s Report rather than itself hearing and deciding the matter, is in conflict with By-Law 11 and it is the By-Laws not the Anti-Harassment Policy which constitute the contract between the Defendant and its members as to disciplinary proceedings. The Disciplinary Committee followed a procedure which was inconsistent with the By-Laws and which was inconsistent with the resolution of directors on 13 December 2003.

130    Ironically, even if it had been permissible for the Disciplinary Committee to conduct the disciplinary process according to the Procedure specified in the Anti-Harassment Policy, Ms Fraser’s investigation manifestly failed to follow that procedure:

– contrary to paragraph 9(a), “the complaint” as ascertained by an interview, was not documented in writing. All that Ms Fraser did was take notes of what fourteen people said;

– contrary to paragraph 9(b), the “allegations” – clearly being those required to be documented in writing as a result of the investigator’s interview – were not conveyed to the Plaintiff in full: she was not given any notes which Ms Fraser had taken in interviewing the complainants nor was she given any document prepared specifically in accordance with paragraph 9(a). All the Plaintiff was given was Mr Watt’s letter of complaint, which could not possibly have constituted a properly particularised complaint;

– contrary to paragraph 9(c), the Plaintiff was not given an opportunity to respond to the allegations. Here, “opportunity” must mean “reasonable opportunity” and the Plaintiff was simply told in general terms and for the first time in the course of the interview with Ms Fraser what various people had said to Ms Fraser on the previous day;

– most glaringly, paragraph 9(d) was not complied with: the Plaintiff made it very clear to Ms Fraser that there was “a dispute over the facts” , but Ms Fraser refused to take statements from any of the witnesses proffered by the Plaintiff;

– under paragraph 9(e), a “finding” as to whether a complaint had substance could only be properly made if the specified preceding steps in the investigation process had been taken – they had not been taken.

131    Further, under paragraph 10 of the Anti-Harassment Policy, the Plaintiff was “entitled to support throughout this process from [her] chosen support person/ adviser”, including a legal representative. The Plaintiff was never told of this entitlement, either by the Defendant or Ms Fraser. The undisputed evidence of the Plaintiff is that had she been told that the interview with Ms Fraser was part of a disciplinary proceeding she would have insisted on having a lawyer present to advise her during the interview with Ms Fraser.

Conclusion

132    For the foregoing reasons, I conclude that the decisions of the Defendant’s Disciplinary Committee made on 17 December 2003 and 2 March 2004 imposing penalties upon the Plaintiff were made contrary to the requirements of natural justice imposed both by the general law and by the contract between the Plaintiff and the Defendant constituted by the Defendant’s Articles and By-Laws. There will be a declaration that the decisions are invalid and there will be an order setting them aside.

133    I note that the Defendant has, through its Counsel, offered to notify the Commission of the result of this decision so that its data-base may be corrected. I will accept an undertaking to the Court to that effect rather than making an order.

Whether notification under s.39 CCYP Act proper

134    Although it does not arise directly for determination in this case, it may be of assistance generally if I make some observations as to whether there should have been any notification to the Commission even if the decision of the Disciplinary Committee had been valid.

135 It was the duty of the Defendant to give a notification under s.39(1) CCYP Act if the disciplinary proceedings against the Plaintiff were “relevant disciplinary proceedings”. Such proceedings are proceedings involving “child abuse, sexual misconduct by the employee or acts of violence committed by the employee”: s.33(1). In the present case one may immediately put aside sexual misconduct. Did the proceedings against the Plaintiff involve “child abuse” or “acts of violence”?

136    “Child abuse” is relevantly defined by s.33(1) as “assault of a child, or ill-treatment or neglect of a child or exposing or subjecting a child to behaviour that psychologically harms the child”.

137    Ms Fraser was not asked to investigate and report on complaints of “child abuse” as defined in the CCYP Act or upon whether the Plaintiff had committed “acts of violence” within the meaning of s.33.

138    From her Report it appears that she conceived her brief as being to investigate and express a conclusion as to whether the Plaintiff had been guilty of “harassment” as defined in the Defendant’s Anti-Harassment Policy and she reported in her opinion that the Plaintiff’s behaviour did, on the balance of probabilities, constitute “harassment”.

139    As the Defendant’s Anti-Harassment Policy clearly states, its definition of harassment “includes but goes beyond” what is prohibited by law. On the evidence, no consideration at all was given either by Ms Fraser or by the Disciplinary Committee as to whether the Plaintiff’s conduct constituted “child abuse” as defined in the CCYP Act or “acts of violence”, for the purpose of the definition of “relevant disciplinary proceedings”. Certainly, it was never made known to the Plaintiff by the Defendant at any time before or after the Disciplinary Committee gave its decision that it regarded the proceedings as “relevant disciplinary proceedings” for the purposes of s.39(1).

140 In these circumstances it was wrong of Mr Harkness to send a notice to the Commission under s.39(1) of the Act. Mr Harkness apparently took it upon himself to interpret the findings of Ms Fraser and the Disciplinary Committee as “involving” findings of child abuse when “child abuse” within the CCYP Act was never the subject of investigation or a finding by the Disciplinary Committee. It was not open to Mr Harkness or anyone else to characterise the proceedings of the Disciplinary Committee as “involving” child abuse as defined in the CCYP Act unless those proceedings had been explicitly identified as such by the Disciplinary Committee itself and by a notice of the complaint or charge given to the Plaintiff prior to the hearing of evidence as to her guilt.

141    Proceedings do not “involve” child abuse for the purposes of the definition of “relevant disciplinary proceedings” in s.33(1) of the CCYP Act simply because some third party later believes that some conduct examined in the course of the proceeding might be so characterised. For the purposes of the definition of “relevant disciplinary proceedings” the phrase “involving child abuse … etc” means that child abuse as defined under the Act is expressly made an issue in the proceedings. If it were otherwise, people could be “registered” as child abusers under the Act without ever having been told that that was the nature of the charge which had been levelled against them and had been determined in the disciplinary proceedings brought against them.

142 However, I do not intend to suggest by these observations that Mr Harkness was acting otherwise than in the honest, but mistaken, belief that s.39(1) CCYP Act required him to give notice to the Commission of the Disciplinary Committee’s decision.

143    In this regard it must be borne in mind that the gist of the complaints against the Plaintiff was “excessively enthusiastic coaching” including rough handling of the players as she moved them about on the court for the purpose of drill. If the Disciplinary Committee had been expressly considering whether this constituted “assault” or “ill treatment” or “acts of violence” for the purposes of the definition of child abuse, it would have done well to have borne in mind considerations such as those expressed by Young CJ in Eq in Hedges v Australasian Conference Association Ltd (supra) at paras.135ff:

“[135] However, it must be remembered that not all physical contact between people is an assault. The expected jostling in peak hour conditions does not involve assault, not because of consent, but because the ordinary incidents of social intercourse even though there might be touching, does not constitute an assault: Boughey v R (1986) 161 CLR 10, 24.

[136] Likewise in a school scenario. The ordinary incidents of social and sporting intercourse does not constitute an assault. A teacher tapping a child on the shoulder to indicate that it is his or her turn to go on stage , a teacher demonstrating to a child how to hold a cricket bat or tennis racquet does not commit an assault even if the child is physically touched.
…
[138] The meaning of the word ‘assault’ in the Commission for Children and Young People Act must be given a sensible meaning that would make it a worthwhile exercise for money to be spent in making investigation, the cost incurred in keeping a government register and the cost of future employers taking notice of the entries in the register.”

144    With respect, I strongly endorse those observations of his Honour; they should be borne much in mind by all those administering the CCYP Act.

145    In the light of these considerations, whether the Disciplinary Committee could reasonably have come to the conclusion that the Plaintiff had been guilty of child abuse is very much open to question.

Whether CCYP Act needs amendment

146    In Hedges, Young CJ in Eq said at para.104 that he believed it may well be that the State has thrown too heavy a burden on voluntary organisations to police child abuse under the CCYP Act. What has happened in this case causes me to endorse that observation.

147    The disciplinary proceedings pursuant to which the Plaintiff was entered on the database of the Commission as a child abuser were riddled with injustice and illegality, from their very initiation by a complaint tainted by fraud and deception to their conclusion in a decision founded upon a one-sided investigation, a manifest denial of procedural fairness, and numerous breaches of the Defendant’s contractual obligations to give the Plaintiff a proper and fair hearing. The results of proceedings of such character have, nevertheless, passed into record under the CCYP Act and their consequences have already had, and may well continue to have, a devastating effect on the Plaintiff’s emotional health and reputation and, potentially, upon her future livelihood.

148    The CCYP Act is a powerful weapon to protect children and young people against the monstrous evil of abuse. Like any powerful weapon, it must be used only when necessary and only to the extent necessary to achieve its purpose. The conduct of relevant disciplinary proceedings as defined in the Act is, in many instances, placed in the hands of voluntary associations, such as the Defendant, which may be ill equipped, in terms of legal resources or the experience of tribunal members, to guard adequately against the kind of miscarriage of justice which has occurred in the present case. Some voluntary domestic tribunals might even be open to actual prejudice or malice. When a decision of a domestic tribunal flawed by injustice brings into operation the provisions of the CCYP Act, the consequences may ruin the lives of innocent people.

149    There are statutory protections against unjust and invalid decisions of some domestic tribunals, but these protections are absent in cases such as the present. The Ombudsman Act 1974 (NSW) includes provision for the Ombudsman to monitor systems for handling and responding to allegations of conduct that would constitute child abuse under the CCYP Act: see Part 3A, esp. s.25B, s.25E. However, these safeguards apply only when the alleged conduct is by employees of designated Government or non-Government agencies or of other public authorities. Voluntary sporting bodies such as the Defendant are not designated employers within Part 3A of the Ombudsman Act: see Clause 5 Ombudsman Regulations 1999 (NSW).

150    There is no provision in the CCYP Act, the Regulations or the Guidelines published by the Minister under s.35 of the Act whereby the Commission itself may scrutinise the conduct of relevant disciplinary proceedings resulting in a notification under s.39(1). There are no procedures for the conduct of relevant disciplinary proceedings by voluntary or domestic tribunals suggested in the Guidelines.

151    Procedural fairness in the conduct of relevant disciplinary proceedings as defined by the CCYP Act is vital to the proper and just operation of the Act upon alleged victims and alleged abusers alike. Voluntary organisations such as the Defendant are left without authoritative and clear guidance as to how to conduct relevant disciplinary proceedings which may result in a notification under s.39(1) of the Act.

152 Further, if a miscarriage of justice occurs in relevant disciplinary proceedings to which the Ombudsman Act does not apply, such as the present case, there is no recourse for the injured party than to come to this Court, with the attendant heavy expense and delay. In many cases, the expense might be beyond the resources of the injured party, so that an injustice possibly causing serious damage would go unremedied.

153    In my opinion, what has happened in the present case demonstrates that these are matters to which the legislature should give urgent attention.

Orders

154    The Plaintiff is entitled to a declaration that the decisions of the Defendant’s Disciplinary Committee banning her as a member of the Defendant are invalid and of no effect. There will be an order setting aside those decisions. The Court will accept an undertaking from the Defendant to give the appropriate notification to the Commission.

155    I will stand the proceedings over for a short time to enable the parties to bring in Short Minutes of Order reflecting these reasons for judgment. I will then hear argument, if any, as to costs.

– oOo –

Last Modified: 08/17/2004