Miller v Australian Cycling Federation Inc
[2012] WASC 74
•6 MARCH 2012
MILLER -v- AUSTRALIAN CYCLING FEDERATION INC [2012] WASC 74
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 74 | |
| Case No: | CIV:2529/2011 | 6 DECEMBER 2011 | |
| Coram: | KENNETH MARTIN J | 6/03/12 | |
| 36 | Judgment Part: | 1 of 1 | |
| Result: | Declaration granted | ||
| B | |||
| PDF Version |
| Parties: | RUSSELL MILLER AUSTRALIAN CYCLING FEDERATION INC |
Catchwords: | Disciplinary Panel Investigation Panel's report findings Second tribunal appointed Self-correction of error principle First report used by second tribunal No error acknowledged |
Legislation: | Associations Incorporation Act 1991 (ACT) Associations Incorporation Regulations 1991 (ACT) Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) |
Case References: | Chandler v Alberta Association of Architects [1989] 2 SCR 848 Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 1) (1991) 103 ALR 661; (1991) 32 FCR 219 McManus v Lithgow and District Workmen's Club Ltd (Unreported, NSWSC, 25 May 1981) Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 R v Moodie (1977) 17 ALR 219 Ridge v Baldwin [1964] AC 40 Rootkin v Kent County Council [1981] 2 All ER 227 Rush v WA Amateur Football League Inc [2007] WASCA 190; (2007) 35 WAR 101 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
AUSTRALIAN CYCLING FEDERATION INC
Defendant
Catchwords:
Disciplinary Panel - Investigation - Panel's report findings - Second tribunal appointed - Self-correction of error principle - First report used by second tribunal - No error acknowledged
Legislation:
Associations Incorporation Act 1991 (ACT)
Associations Incorporation Regulations 1991 (ACT)
Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT)
Jurisdiction of Courts (Cross-vesting) Act 1987 (WA)
Result:
Declaration granted
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr N D C Dillon
Defendant : Mr M L Bennett
Solicitors:
Plaintiff : Hammond Legal
Defendant : Bennett & Co
Case(s) referred to in judgment(s):
Chandler v Alberta Association of Architects [1989] 2 SCR 848
Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 1) (1991) 103 ALR 661; (1991) 32 FCR 219
McManus v Lithgow and District Workmen's Club Ltd (Unreported, NSWSC, 25 May 1981)
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
R v Moodie (1977) 17 ALR 219
Ridge v Baldwin [1964] AC 40
Rootkin v Kent County Council [1981] 2 All ER 227
Rush v WA Amateur Football League Inc [2007] WASCA 190; (2007) 35 WAR 101
(Page 3)
1 KENNETH MARTIN J: This trial concerns the efforts of the defendant association to implement further disciplinary processes against the plaintiff, Mr Miller (an individual member of the association) in relation to certain conduct of Mr Miller which took place in 2009.
2 Mr Miller resists the further processes now foreshadowed. Essentially he says, 'enough is enough'.
Background
3 The defendant (the ACF) is an association incorporated pursuant to the Associations Incorporation Act 1991 (ACT) (the ACT Act). As an incorporated association the ACF may by resolution adopt 'rules' (see s 16(c) of the ACT Act). The ACT Act defines 'rules' to mean:
In relation to an incorporated association … the rules that are, under s 31(1), the rules of the association.
4 By s 31 of the ACT Act an incorporated association can either adopt 'model rules' as its rules, or adopt other rules (see s 33(1)(b) and s 16(c)(ii) referring in turn to s 32 of the ACT Act).
5 The term 'model rules' is defined as well, as 'the rules prescribed under s 127(2)(a)'. That is a reference to the regulation making power under the ACT Act. Section 127(2) provides:
A regulation may make provision in relation to -
(a) prescribing model rules; …
6 The Associations Incorporation Regulations 1991 (ACT) provides by reg 15:
For the Act, s 127(2)(a), the provisions set out in Schedule 1 are prescribed as model rules for the Act.
- Schedule 1 to the Regulations accordingly contains the 'model rules'.
7 In Part 1.2 of Schedule 1 are found model rules about association membership, including rules as to membership qualifications, transferability of membership, cessation and resignation of membership, fees and subscriptions and member liabilities.
8 Rules 9 and 10 of the model rules deal with 'disciplining of members' and the 'right of appeal of disciplined member' respectively. I return to these model rules in due course.
(Page 4)
9 Within the materials provided for the purposes of this trial is the Constitution of the ACF (see exhibit 1, pages 61 - 84). It is clear that the content of the ACF's Constitution, for the purposes of s 16(c)(ii) of the ACT Act, provides the custom designed rules of the ACF.
10 However, an association's right to adopt its own rules is not open-ended. The custom drafted rules chosen must comply with s 32 of the ACT Act (see also s 16(c)(ii)). Under s 32, rules other than the Schedule 1 model rules will be taken to comply if they
(a) provide for the matters stated in schedule 1, column 2 [of the ACT Act] as required by schedule 1, column 3; and
(b) provide for any prescribed matters; and
(c) are arranged numerically by subject matter.
11 I will reach Schedule 1 of the ACT Act and its important columns 2 and 3, in due course. But I note now that r 10.6 of the ACF's Constitution provides: 'The model rules referred to in the Act are displaced by this Constitution'.
12 Rule 11 in the ACF's Constitution deals with the issue of association membership. It provides:
11.1 Membership of the [ACF] shall comprise:
(a) Constituent Associations;
(b) Life Members; and
(c) Individual Members.
11.2 Only Constituent Associations through their nominated Delegates shall have the right to vote, debate and move and second motions at General Meetings. All other Members shall have no such rights.
13 A Constituent Association under the ACF's Constitution (see r 10.1) means (unless the contrary intention appears):
A body which is or may be recognised by the [ACF] as the controlling body of and for cycling in each state.
Agreed Facts
14 For the purpose of these proceedings the parties conferred and settled upon a statement of agreed facts, which became exhibit 2. The agreed facts, comprising 11 paragraphs, are:
(Page 5)
- 1. The plaintiff's, Mr Miller's, background in the cycling community in Western Australia and Australia can be summarized as follows. Mr Miller:
1.1 has been a member of the defendant, Australian Cycling Federation Incorporated [ACF] (and/or the bodies that performed the role of that organisation prior to its incorporation), for over 50 years;
1.2 was a board member of [ACF] for a consecutive period of over 10 years and a former vice president of [ACF];
1.3 has been a Union Cycliste Internationale ('UCI') commissionaire since approximately 1990 - as a UCI commissionaire, Mr Miller has officiated at Olympic games, Commonwealth games, world championships, national championships and state championships;
1.4 participated in the organisation of two world cycling championships on behalf of the [ACF], in 1993 and 1997;
1.5 is the president of the Melville Fremantle Cycling Club - the club is a member of the West Australian Cycling Federation Inc ('WACF');
1.6 during 1996 and 1997, Mr Miller was the president of the board of commissioners of WACF; and
1.7 in July 2009, he was again appointed a commissioner of WACF and resigned from that appointment on 23 April 2010.
2. Mr Miller is an individual member of [ACF]. WACF is a constituent member of [ACF]. Individual members and constituent members of [ACF] agree to be bound by its Constitution and by-laws.
3. In November 2009, two of the then commissioners of WACF, staff members of WACF and a consultant to WACF lodged complaints with [ACF] regarding Mr Miller's conduct as a board member including allegations of harassment.
4. In response to the complaints made against Mr Miller, the board of [ACF] ('[ACF] Board') appointed an Investigation Panel ('Investigation Panel') (of 3 members including a certified Western Australian legal practitioner as chairperson) to undertake an enquiry pursuant to specific terms of reference. [ACF] advised that the appointment of the Investigation Panel was pursuant to clause 17.1 of [ACF's] Constitution. In undertaking its investigatory process the Investigation Panel stated that it was guided by principles of natural justice, including those noted in
- [ACF's] by-law 2.10.03, and that Mr Miller consented to participate in the investigation process.
- 5. During the course of 2010, the Investigation Panel undertook its investigatory processes including:
5.1 conducting hearings;
5.2 taking evidence from each of the 7 complainants;
5.3 providing to Mr Miller written statements of the evidence given by the complainants to the Investigation Panel;
5.4 taking evidence from 4 witnesses called by Mr Miller in his defence to the complaints;
5.5 taking evidence from and interviewing Mr Miller in respect of the complaints and the issues he raised in defence, the evidence being taken over a period of 7 hours;
5.6 obtaining, from various sources, documents relevant to the Investigation Panel's investigations and seeking further documents from various parties;
5.7 providing to Mr Miller the documents obtained by the Investigation Panel and taking steps to obtain and provide documents specifically requested by Mr Miller to assist him in his defence;
5.8 allowing Mr Miller by his legal representatives to make oral submissions to the Investigation Panel in defence of the complaints and receiving written submissions prepared by Mr Miller's legal representatives; and
5.9 providing Mr Miller with a draft of the Investigation Panel's principal findings and requesting from Mr Miller responsive submissions on the issue of penalty.
6. In response to the draft report of the Investigation Panel Mr Miller provided submissions which challenged:
6.1 the validity of the Investigation Panel's term of reference dealing with penalty;
6.2 the jurisdiction of the Investigation Panel to make determinative findings and recommendations on penalty; and
- 6.3 the jurisdiction of the [ACF] Board to act on the Investigation Panel's report and, more particularly, to seek to impose any penalty on Mr Miller.
- 7. Notwithstanding the challenges raised in Mr Miller's submissions as referred to in the preceding paragraph, the Investigation Panel handed down its report on 16 February 2011. The report included adverse findings against Mr Miller (and other parties) and made recommendations in relation to penalty.
8. On the Investigation Panel's report being published, Mr Miller pressed direct with [ACF] the challenges raised in his submissions as referred to in paragraph 7 above.
9. On 13 May 2011, the [ACF] Board advised, by its solicitors, that it had resolved as follows:
(a) to refer to a special disciplinary tribunal, consisting of one person, the following allegations:
That Mr Miller:
(i) breached, failed, refused or neglected to comply with [the ACF] Constitution, By-Laws and other resolution or determination of the Board; or
(ii) acted in a manner unbecoming of a Member and/or prejudicial to the Objects and interests of [ACF] and/or cycling; or
(iii) prejudiced [ACF] and/or cycling and/or brought [ACF] or cycling into disrepute;
(the 'Allegations'),
(b) the special disciplinary tribunal is to conduct a hearing in relation to the Allegations and make a determination about:
(i) whether each of the Allegations is proven; and, if so;
(ii) what penalty, if any, is to be imposed on Mr Miller,
(c) for the purposes of hearing and determining the Allegations the special disciplinary tribunal act in accordance with a specified procedure, the procedure being set out in an annexure to the letter of 13 May.
(Page 8)
- 10. In acting as referred to [in] the preceding paragraph, [ACF] advised it was exercising powers granted by clause 17.1 of [ACF's] constitution.
11. In response to [ACF's] position stated in its solicitor's letter dated 13 May, Mr Miller has instituted these proceedings.
15 As I will explain, and since it is clearly not fact, I do not consider myself bound by par 5's preface nomenclature (adopted by the parties) which categorises each of the nine distinct matters referred to in pars 5.1 through 5.9 as 'investigatory processes'.
16 Paragraph 5.9 is important. It is accepted that Mr Miller was provided with a draft of the Investigation Panel's principal findings, prior to that panel settling its final report.
Other background matters
17 Mr Miller is an Individual Member of the ACF. He is also President of the Melville Fremantle Cycling Association of Western Australia and a member of the Western Australian Cycling Federation (WACF). WACF is the relevant Constituent Association of the ACF for Western Australia. Mr Miller seeks both declaratory and permanent injunctive relief against the ACF. Injunctive relief is unnecessary, as I will explain.
18 Proceedings were commenced by writ on 17 August 2011. They were admitted into the Commercial and Managed Cases List of this court on 17 October 2011. By agreement of the parties the matter has proceeded without pleadings and without formal discovery. The parties proceeded upon the basis of agreed facts and issues and their efforts to identify the key relevant documents, in accordance with directions I made on 27 October 2011.
19 Pursuant to my directions the parties filed a book of (six) agreed documents for this trial which became exhibit 1.
20 I have already referred to the Constitution of the ACF, found within the agreed documents.
21 Also within the agreed documents are the by-laws of the ACF, found at pages 85 - 115 in exhibit 1. The ACF's Constitution enables it to enact by-laws (see r 73 of the ACF's Constitution).
22 There is a fundamental distinction that needs to be recognised at an early point between the ACF's rules (i.e. its Constitution) and its by-laws. By r 5 of the ACF's Constitution, no addition, alteration or amendment
(Page 9)
- can be made to the Constitution, unless approved by Special Resolution (as defined). On the other hand, the by-laws are far more fluid. By r 73.1 of the Constitution:
The Board [of the ACF] may from time to time as circumstances dictate, formulate, interpret, adopt, make, alter and amend By-Laws for the proper advancement, management and administration of the [ACF], the advancement of the Objects and cycling as it thinks necessary or desirable. The By-Laws must (as far as practicable) be in conformity with the rules and regulations of UCI [the Union Cycliste Internationale of which the ACF is the only Australian affiliate - see r 2(a) of the ACF's Constitution identifying the ACF's first Object] and must be consistent with this Constitution and all policy directives of the Council. The By-Laws are binding on all Members.
The Controversy
24 The present dispute arose after the ACF received a number of complaints against Mr Miller which were tabled at the ACF's Board meeting of 23 November 2009. The essential nature of the grievances relate to the allegedly overbearing way Mr Miller dealt with staff in his role as Commissioner and Treasurer of the WACF. No suggestion of impropriety is made against Mr Miller. The ACF's notification of these complaints to Mr Miller, by a letter of 25 November 2009, is found as Annexure A to document 1 of exhibit 1, being the final report to the Board of the ACF of an 'Investigation Panel' (bearing the generic date February 2011).
25 The report comprises 28 pages of findings and recommendations plus five annexures (Annexures A - E, found at pages 29 - 57 of exhibit 1). The Investigation Panel comprised three persons appointed by the ACF: its Chair, Ms Venetia Stewart, and Messrs Philip Badock and Geoff Rynne.
26 It is necessary to remember, in these proceedings, that the February 2011 report of the Investigation Panel is not impugned by Mr Miller. Or at least, it is not impugned in a sense I am asked to make orders or grant any relief concerning that report. Rather, the controversy arises from a communication found within exhibit 1, at pages 58 - 59. This is a letter of 13 May 2011 from the ACF's solicitors to Mr Miller's solicitors, advising that the ACF, upon considering the findings of the Investigation Panel,
(Page 10)
- had formed a view that Mr Miller 'has a case to answer in respect of a number of complaints against him' and that, accordingly, the ACF had exercised its discretion under r 17.1 of its Constitution (in particular by the second limb thereof) to refer certain specified allegations to 'a special disciplinary tribunal consisting of one person'.
27 The ACF's 13 May 2011 proposal to refer allegations to a 'special disciplinary tribunal' has caused Mr Miller to seek the intervention of this court. The indorsement to Mr Miller's writ of summons of 17 August 2011 is relevant (bearing in mind the parties agreed to dispense with pleadings). But before examining the basis of the relief sought by Mr Miller, it is convenient to set out r 17 of the ACF's Constitution. It is of pivotal importance to understanding the present dispute.
28 Rule 17 of the ACF's Constitution (page 69, exhibit 1), under the heading 'Discipline of Members', provides:
17.1 The Board in its sole discretion may refer any of the following matters for investigation or determination either under the procedures set down in the By-Laws or by such other procedure and/or persons as the Board considers appropriate:
(a) an allegation (which in the opinion of the Board is not vexatious, trifling or frivolous) by a complainant (including but not only a Director or a Member) that a Member has:
(i) breached, failed, refused or neglected to comply with a provision of this Constitution, the By-Laws or any other resolution or determination of the Council, Board or any duly authorised committee; or
(ii) acted in a manner unbecoming of a Member or prejudicial to the Objects and interests of the [ACF] and/or cycling; or
(iii) prejudiced the [ACF] or cycling or brought the [ACF] or cycling into disrepute.
17.3 During investigatory or disciplinary proceedings under this Rule 17, a defendant may continue to participate in cycling, pending the determination of such proceedings (including any
- available appeal) unless the Board decides such continued participation is inappropriate having regard to the matter at hand.
29 The heart of Mr Miller's grievance is his contention that, having once been subjected to the processes of the Board's appointed Investigation Panel during 2010, it is no longer open to the ACF, as a matter of the proper interpretation of its Constitution, to subject Mr Miller (effectively, he says, for a second time) to the further processes of a special disciplinary tribunal in the fashion the Board's solicitors have foreshadowed on 13 May 2011.
30 By the indorsement to his writ, Mr Miller claims:
1. Declarations that:
1.1 Having exercised its right under clause 17.1 of the Defendant's constitution to refer to an investigatory panel certain complaints ('Complaints') raised against the Plaintiff and the Investigation Panel having completed its referral and provided its report to the Defendant, the Defendant (by its Board or otherwise) is not permitted to exercise the right under clause 17.1 for a second time and again refer the complaints for investigation or determination;
1.2 Alternatively, having adopted By-Laws which prescribe, following the Defendant (by its Board) exercising the right to refer under clause 17.1, the procedure to be followed by a disciplinary tribunal before penalty or sanction can be imposed on a member of the Defendant, the Defendant (by its Board or otherwise) cannot exercise the said right to refer the complaints to another body with the power to impose penalty or sanction but which body is not subject to the prescribed procedure provided by the By-Laws.
32 There was also no suggestion in oral or written argument that this court lacked power to grant declaratory relief in the terms sought by Mr Miller, in the event the court was satisfied that such relief was appropriate.
(Page 12)
33 On the topic of this court's jurisdiction, I observe upon the somewhat unusual circumstances in which this court is asked to deliberate over a controversy concerning an incorporated association that is governed by the laws of the ACT.
34 Of some importance in this controversy are ss 49, 53 and 124 of the ACT Act. The dictionary in the ACT Act defines 'court' to mean 'the Supreme Court or the Magistrates Court [of the ACT]'. The ACF initially doubted this court's jurisdiction, on the basis that jurisdiction as conferred by ss 49 and 53(1)(b) of the ACT Act would not extend to the Supreme Court of Western Australia. However, during the course of argument the ACF's concern as to jurisdiction, by reference to those provisions of the ACT legislation, was resolved. It was accepted for the ACF that by reason of the provisions of s 4(3) of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) and s 9 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) operating together, this Court may exercise the jurisdiction of the Supreme Court of the ACT in respect of 'ACT matters'.
35 Given the cross-vested jurisdiction, I was satisfied this court has the jurisdiction to grant the declaratory relief sought in Mr Miller's dispute with the ACF, if that relief is ultimately assessed as appropriate.
Parties' alternate formulations of issues for determination
36 The parties are mildly discordant over the precise issues which arise for determination. Pursuant to my directions, both the plaintiff and the defendant have exchanged their separate formulations of the key issues, by written submissions of 29 November 2011 and 2 December 2011 respectively.
37 As formulated by Mr Miller, four essential issues emerge, identified as issues 2.1 through 2.4. The formulation is quite lengthy. Rather than quote it verbatim I will summarise the issues as follows:
2.1 Having already exercised its rights under cl 17.1 of the ACF's Constitution, issued terms of reference and received the Investigation Panel's report, the Board has no power to re-exercise its rights under cl 17.1 or otherwise in respect of the same complaints.
2.2 The ACF has adopted By-Laws which provide a detailed procedure under which its members may be subject to disciplinary proceedings leading to penalty; the Board has no power to exercise the right under cl 17.1 of the ACF Constitution to adopt procedures
- that depart from the By-Laws and institute an alternative procedure which could lead to the imposition of a penalty.
- 2.3 It would be a breach of the By-Laws for the ACF's Board to adopt disciplinary procedures that conflict with the By-Laws.
2.4 If the Board has the power to make a second referral in relation to the same complaints, doing so is a breach of an implied term in the ACF's Constitution that the Board must act 'honestly, reasonably or in good faith'. Alternatively, making a second referral in relation to the same complaints would be oppressive or a breach of natural justice.
38 The ACF formulated the key issues somewhat differently (though it went on to summarise and respond to each of Mr Miller's issues). As formulated by the ACF the issues are also said to be fourfold, namely:
4.1 Whether clause 17.1 of [ACF's] Constitution enables matters to be referred for investigation or determination in a manner other than that set out in clauses 2.10 to 2.15 of [ACF's] By-Laws;
4.2 Whether, once a matter has been referred for investigation under clause 17.1 of [ACF's] Constitution, the discretion under clause 17.1 can be further exercised to refer the matter for determination;
4.3 Whether the [ACF] Board, or a disciplinary body convened by the [ACF] Board pursuant to clause 17.1 of [ACF's] Constitution has the power to impose penalties otherwise than pursuant to clause 2.10 of [ACF's] By-Laws;
4.4 Whether in circumstances where the time prescribed under the By-Laws (clause 2.12.02) for a referral to a body with the power to impose penalty or sanction has lapsed the referral was nonetheless valid and effective.
39 Synthesising the rival formulations, it is apparent that the ACF's by-laws form a central component in the arguments which have been fashioned around this controversy. It is necessary to say something more about the ACF's by-laws, particularly insofar as they expressly deal with disciplinary matters and procedures.
40 Mr Miller's second and third formulated issues focus heavily upon these by-laws, contending essentially that notwithstanding the width of the terminology used by r 17.1, that the ACF can only impose a disciplinary regime by reference to its by-laws. That position by Mr Miller is a central feature of the controversy.
(Page 14)
41 It will be remembered that r 17.1 (extracted at [28]) uses the word 'either' in reference to procedures set down in the ACF's by-laws disjunctively (using the word 'or'), alongside 'such other procedure and/or persons as the Board considers appropriate'. The controversy essentially distils to an exercise in contractual interpretation with respect to r 17.1.
42 It is the ACF's construction submission, which I accept, that the clearly expressed disjunctive terminology in r 17.1, allowing the ACF secondary recourse to a procedure the Board considers appropriate, must be attributed proper measure and function. The ACF submits that disjunctively recognised alternative disciplinary procedure, as is clearly envisaged under r 17.1, is not a feature to be ignored or emasculated. I agree.
43 The consequence of my view is that Mr Miller's second and third issues, formulated by reference to an underlying challenge to the ACF's departure from its by-laws procedure, must fail.
44 For the reasons to be articulated, only Mr Miller's first issue needs to be considered. Paragraph 2.1 of Mr Miller's submissions formulate the first issue as:
2.1 Having:
2.1.1 formally received the subject complaints;
2.1.2 exercised the power of referral under cl 17.1 of the Defendant's Constitution ('[ACF] Constitution');
2.1.3 issued specific terms of reference to an Investigation Panel which Panel completed its investigations and published its report to the Board of the Defendant,
The Board in respect of those same complaints has no power under cl 17.1 or otherwise to re-exercise or exercise a second time the right under cl 17.1 by a reference to a Special Disciplinary Tribunal.
45 The contractual character of the dispute over the first issue is manifest at a number of places including, first, at s 48 of the ACT Act, which provides:
The rules of an incorporated association are taken to bind the association and its members from time to time as if the rules had been signed and
(Page 15)
- sealed by each member and contained covenants on the part of each member to observe all the rules.
46 Second, there is a clear distinction, as I have mentioned, between the ACF's Constitution (being its rules) and the ACF's by-laws (which are not its rules). That may be contrasted with a contrary situation considered by the Court of Appeal of Western Australia for different provisions in Rush v WA Amateur Football League Inc [2007] WASCA 190; (2007) 35 WAR 101. In Rush, Buss JA concluded that the rules of the WA Amateur Football League Inc did include that incorporated association's by-laws, as part of its 'rules and regulations' (see [96], [99], [104], [117] and [119]). But the present is a different governance regime. No submission was made to me that the by-laws of the ACF form part of that incorporated association's 'rules', for the purposes of the ACT Act. Clearly they do not.
47 Third, there is r 15.1 of the ACF's Constitution, under which members acknowledge and agree:
(a) The Constitution constitutes a contract between each of them and the [ACF] and that they are bound by the Constitution and the By-Laws.
- See also r 73.1, to which I have already referred.
48 So, it is only the ACF's Constitution (i.e. its rules) which provides the contract between each member and the ACF. That is the case notwithstanding that in addition, each member, as a matter of the association's overall governance, is also bound by the ACF's by-laws.
49 The present exercise raises an issue of contractual construction, particularly as regards a proper interpretation of r 17.1, followed by applying the ascertained meanings (or implications) to the presenting facts for the present controversy.
50 The controversy must also be evaluated within the context of the applicable ACT statutory framework. Because of the relevance of that surrounding statutory context, it is necessary to say something more about the ACT Act's provisions in relation to the work of the model rules in certain situations. Of particular consequence are the implications arising from the interaction of columns 2 and 3, found within Schedule 1 to the ACT Act and s 32(a).
(Page 16)
Further provisions in the ACT Act
51 Under the ACT Act, even if an incorporated association elects to adopt its own custom specific rules other than the model rules (see s 16(c)(ii)), those rules must still comply with s 32.
52 By s 32, custom specific rules will be taken to comply if they
(a) provide for the matters stated in schedule 1, column 2 as required by schedule 1, column 3; and …
53 That provision leads back to Schedule 1 in the Act, entitled 'Matters to be provided for in rules other than model rules'.
54 Schedule 1 is constructed by reference to three columns. Schedule 1 addresses 11 discrete subject matters: membership qualifications, fees and subscriptions, members' liability, discipline, committee of the association, general meetings, financial year, funds, common seal, custody of books and documents and the inspection of books and documents.
55 By column 2 in Schedule 1, each of the 11 subjects is then identified as a matter which must be provided for, where an incorporated association elects to be governed by rules other than the model rules (s 32(a)). Of direct relevance in Schedule 1 column 2 is the fourth topic, 'discipline'.
56 We have already seen that r 17 of the ACF's Constitution explicitly addresses the subject matter of discipline, in terms as referred. But the position is complicated by the phrase used within s 32(a), 'as required by schedule 1, column 3'.
57 Schedule 1, item 4, column 3 requires an incorporated association to adopt rules that provide for:
(a) the procedure (if any) for disciplining members; and
(b) the way (if any) in which a member may appeal in respect of any disciplinary action taken against the member; and
(c) the way (if any) in which a member may make representations to, or appear before, the association or its delegate, in relation to any charge made against the member.
58 The words 'if any', found used in parentheses within column 3 as regards discipline, are unclear in my view, particularly when juxtaposed against the phrase 'as required by schedule 1, column 3' in s 32(a).
(Page 17)
59 Tension arises, as I see it, between a transparency policy outcome that is obviously striven for under s 32(a), in requiring that each of the 11 subject matters be explicitly provided for by an incorporated association's rules, measured against column 3's use of the phrase, 'if any' as regards discipline. That later laissez faire terminology generates a problem: Where an incorporated association does not adopt the model rules, do its custom specific rules as to discipline have to address the matters listed under Schedule 1, column 3? The words 'if any' suggest that even if an association's rules regarding discipline are silent on these matters, the rules may still satisfy s 32(a).
60 Considering the legislative intent underlying s 32(a) of the ACT Act and its interrelationship with Schedule 1, I find it helpful to examine how the model rules function procedurally around the subject matter of discipline. The exercise requires reference to the Associations Incorporation Regulations 1991 (ACT) and Schedule 1 to those Regulations which contains the model rules, as enacted pursuant to reg 15 and s 127(2)(a) of the ACT Act.
61 Model rules 9 and 10 provide respectively for 'Disciplining of members' and 'Right of appeal of disciplined member'. Model rules 9(1)(c) and (d) only allow for the disciplinary sanctions of expulsion or suspension. Those sanctions can follow only where the envisaged disciplinary procedure has first been complied with.
62 Under the model rules, the association's committee must pass a resolution expelling or suspending a member, effectively on a prima facie basis (model rule 9(1)). This resolution must then be confirmed by a further resolution at a subsequent committee meeting that is held 14 - 28 days after notice is given to the member subjected to the process (model rule 9(2)).
63 Model rule 9(3) essentially affords a member a degree of procedural fairness. First, it requires the member to be informed of the committee's initial disciplinary resolution and the grounds on which it was based. Second, the member must be advised of their right to address the committee (either orally or in writing) at the subsequent meeting. The requirement to afford a member procedural fairness is reaffirmed by model rule 9(4), particularly by its reference to s 50 of the ACT Act.
64 Section 50 provides:
If an incorporated association exercises any power that it has to adjudicate a dispute between its members, or between itself and a member or
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- members, in relation to the rights given to the members by the rules of the association, any decision made by the association is not taken to be valid unless, in any proceedings in relation to the dispute, the rules of natural justice have been complied with.
65 Where a resolution to expel or suspend the member is confirmed at the second meeting of a committee, model rule 10(1) still affords that member an entrenched right of appeal. That appeal right is again (see model rule 10(3)) conditioned by reference to s 50 of the ACT Act and accordingly, by considerations of procedural fairness.
66 The appeal right that is entrenched under model rule 10 is by way of an appeal to a general meeting of the association. A general meeting is to be called within 21 days after a member gives notice (model rule 10(2)). Both the member and committee are given the right to make oral and/or written representations to this general meeting (model rule 10(3)(b)). The general meeting must then pass a special resolution confirming the committee's resolution under model rule 9(4), in order for the expulsion or suspension sanction against the member to take effect (model rule 10(4)).
67 So then, if an incorporated association elects to adopt its own custom specific rules, rather than the model rules, what is the effect of the words 'if any', used within column 3 of Schedule 1 of the ACT Act, when assessed as working alongside the term 'as required', as used by s 32(a) of the ACT Act? The intended position overall still remains undesirably unclear.
68 Arguments focused at the interrelated meaning and function of these provisions by counsel for Mr Miller emerged during the course of argument on 6 December 2011. They had not been dealt with in written submissions. No applicable case authority either directly on point from the ACT, or by analogy from counterpart provisions in other States or Territories, was mentioned at the time. My own and counsel's subsequent researches post trial turned up nothing directly relevant.
69 Before resolving the issue I should observe that the ACF's by-laws manifestly deal, very elaborately, with the issues of discipline, including in relation to applicable hearing procedures and appeal rights. I mention by-laws 2.10 (Disciplinary matters - General principles), 2.11 (Disciplinary matters - Definitions), 2.12 (Disciplinary matters - Procedure), 2.13 (Disciplinary matters - In competition), 2.14 (Penalties) and 2.15 (Appeals), including under by-law 2.15.04 (Appeals Process).
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70 So as to not unduly encumber the reasons, I will not set out the by-laws. For present purposes, it suffices to recognise that the ACF's by-laws comprehensively address disciplinary procedures for members, appeals in relation to members, and a capacity of members to make representations within the disciplinary process and on appeal (see by-law 2.10.02(2) concerning ACF disciplinary tribunals appointed by the Board of Management and by-law 2.10.03 concerning the enshrined right to a fair hearing and applicable principles including a right to an appeal). It presents no difficulty that the column 3 matters are dealt with under the ACF's by-laws, rather than by its Constitution (i.e. rules), once the assessment is reached, as I do, that such matters do need to be catered for.
71 [I would point out in passing that there appears to be a numerical error manifest within by-laws 2.10.01, 2.10.05(6) and 2.10.06. The error was accepted and acknowledged during submissions before me by counsel for each of Mr Miller and the ACF. Sensibly, both counsel approached the matter on the basis that I read these by-laws, as I do, referring to r 17.1 and r 17.3 of the ACF's Constitution rather than to r 1.17 and r 1.17.3, which do not exist.]
72 It is clear that the ACF's by-laws detail an elaborate regime concerning discipline. There are detailed procedures within the ACF's by-laws that enable the ACF's board to authorise or refer a matter for 'investigation or determination'; essentially to either an official (defined in by-law 2.11.02) for cycling competition transgressions or to an ACF disciplinary tribunal (see by-law 2.11.03). I also note the penalty guidelines found in Schedules 1 and 2 of the by-laws (see exhibit 1, pages 116 and 117 - 122).
73 But a more difficult and abiding uncertainty arises in relation to column 3's potential application to the alternate 17.1 disciplinary path, which envisages an investigation or determination, but without reference to the ACF's by-laws.
74 As a matter of contractual construction, I earlier rejected Mr Miller's argument that the correct construction of r 17.1 only allows for an investigation or determination referred by the Board under the procedures that are found in the ACF's by-laws. That construction would do violence to the word 'either', used within r 17.1 and to the following words, used disjunctively, 'or by such other procedure and/or persons as the Board considers appropriate'. But now, venturing along the alternate path, which I find to be open, the issue is different. What are the effects and implications of the ACT Act on that alternate disciplinary path, having
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- regard to the interaction between s 32(a) and the requirements of Schedule 1 column 3 in relation to discipline?
75 An examination of the balance of the ACF's Constitution shows that, save for r 15.2 (for members determined to be not of good standing), the Constitution is silent as to the column 3 requirements concerning disciplinary procedures, appellate rights or a capacity to make representations by way of answer to a charge against a member.
76 I interpret the phrase used within s 32(a), 'as required by schedule 1, column 3' as meaning essentially, 'to the extent required by column 3'. So my analysis starts from the premise that 'discipline' has been provided for, complying with the requirement of Schedule 1 column 2 in the ACF's Constitution. But then, as to the further work of column 3, as regards discipline and procedures, my assessment is that the words used in parentheses 'if any' deliver a consequence, read with the phrase 'as required' in s 32(a), that it is not necessary for the non-model rules governing an associated incorporation to expressly address procedure, appeal mechanisms or mechanisms for making representations. In my view, interpretations to the contrary would not render a sufficient measure of meaning and function to the words 'as required' and 'if any'. Certainly I would observe, however, that a column 3 'carve out' methodology presents as a rather tortuous and obscure way of addressing the issue.
77 The result is that, in a context of a disciplinary investigation or determination to be dealt with other than by reference to ACF disciplinary by-laws, the matters specified at Schedule 1 column 3 in relation to discipline do not need to be explicitly dealt with. But, as I explain, that conclusion does not mean that the alternate path disciplinary proceedings may unfold in a procedural vacuum. That undesirable outcome is avoided, in my assessment, by the 'gap-filling' work of s 31(2) of the ACT Act, incorporating, for such a situation, the model rule provisions for the required areas, if they are not properly addressed. It will be remembered s 31(2) of the ACT Act provides:
If the model rules make provision in relation to any matter not provided for in the rules of an incorporated association, the rules of the association are taken to include the provision of the model rules in relation to that matter.
78 The model rules do contain explicit procedures relating to disciplinary action against members by a hearing process that affords natural justice and an appeal (to the incorporated association's general
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- meeting). Those disciplinary procedures will be picked up, where there is a 'gap', by the operation of s 31(2).
79 Thus, in a scenario where the ACF's Board refers a matter for investigation or determination pursuant to the second limb of r 17.1, by reference to a specified ad hoc procedure, my assessment is that these aspects of the model rules could then become applicable if the matters listed by Schedule 1, column 3 as to discipline are not addressed, or even if the ad hoc procedure is inconsistent with column 3 (such as, for instance, a provision that said, 'there shall be no right to be heard', or a provision that said, 'there shall be no right of appeal').
80 In such circumstances, the consequence will be that ACF's Constitution (i.e. rules) will be 'taken to include' the model rules concerning discipline.
81 The applicable model rules are 'taken to be included' because whilst r 17.1 establishes a viable alternative disciplinary path, there is seen to be a vacuum as to the required procedures to be followed along that alternate path. If the alternative path procedure the Board considers appropriate does not properly address matters as required by Schedule 1, column 3, the consequence is that the model rules become applicable.
82 As I explain, that is the situation in the present case.
Major Issue
83 Having reached those construction conclusions, I can move to confront what I assess to be the major residual issue between Mr Miller and the ACF, concerning the ACF's intended referral of 'allegations' about Mr Miller to a 'special disciplinary tribunal', in the aftermath of the Investigation Panel's report of February 2011. At the heart of this argument, once again, is r 17.1 of the ACF’s Constitution.
84 But some explanation is first required as to what the Investigation Panel actually did and then, what it is now proposed the ACF's special disciplinary tribunal will do.
The Investigation Panel
85 I have already referred to the Investigation Panel's report (including its five annexures), found at pages 1 - 57 of exhibit 1.
86 At the outset, it is important to recognise that the parties accept, as is manifest, that the ACF's referral to an Investigation Panel was not a
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- reference under the ACF's by-laws to a disciplinary tribunal. It was a referral to the Investigation Panel on the alternate path envisaged by r 17.1, whereby the ACF's Board considers such a reference 'appropriate'.
87 To the extent use of the nomenclature 'Investigation Panel' may implicitly suggest the Panel's terms of reference only involved a bare 'investigation' of allegations against Mr Miller, the terminology is misleading. The Investigation Panel, as we shall see, did more.
88 Annexure B to the Investigation Panel's report sets out its terms of reference from the ACF's Board (exhibit 1, page 32). They were:
• Investigate the allegations brought by the complainants, and recommend any action;
• Deal with any apparent disciplinary matters that arise in the course of the investigation process and if found proven to the satisfaction of the Panel, recommend penalties to the Board of [ACF]; and
• Recommend any further action that should be undertaken by [ACF] or [WACF] regarding matters that may arise during the course of the investigation.
89 The first term of reference envisages investigation. But the second goes further, particularly by the phrases 'deal with' and 'if found proven to the satisfaction of the Panel'. Moreover, the second term of reference to provide a recommendation as to penalties travels beyond the realm of a mere investigation.
90 Properly understood, an investigation usually connotes an analysis of the relevant facts and circumstances surrounding particular allegations. An investigation will sift or assess facts to a sufficient extent that it may provide a basis for someone else to make determinations about the allegations investigated. But the term of reference of the Investigation Panel as to things being found proven to the satisfaction of the Panel connoted more than investigation.
91 It is clear from the terms of reference (particularly the second term of reference), that this Panel was charged not only with an investigation task, but also with the making of determinations (see r 17.1 of the ACF’s Constitution).
92 It was submitted for the ACF that the Board's reference to the Investigation Panel was appropriate for an investigation, simpliciter. It was argued that notwithstanding seemingly wider terms of reference, the Panel was actually charged with a purely investigatory task. I cannot
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- accept the submission. First, as seen, it is directly inconsistent with the second term of reference. Second, scrutiny of the Investigation Panel's report, as I will now explain, shows that at many places its work substantially exceeded the bounds of an investigation. That is no criticism of the Panel. It did precisely what it was asked to do by the Board under its terms of reference.
93 The following extracts from the Investigation Panel's report reinforce my assessment that far more than investigation was undertaken (see exhibit 1, page 14):
The investigation panel considers that the manner in which Mr Miller corresponded with and addressed Mr Manning was of a type that a reasonable person would recognise as being unwelcome and was likely to cause Mr Manning to feel offended, humiliated and to a lesser extent, intimidated. The investigation panel finds that Mr Miller's manner in dealing with Mr Manning in July 2009 amounts to harassment under the Cycling Australia Member Protection Policy.
94 For ease of reference I will record that a Cycling Australia Member Protection Policy is to be found at pages 123 - 167 of exhibit 1. It is a document arising out of the ACF's by-laws (see by-laws 2.08.03 and 2.08.04). Of particular reference are cl 2 (who this policy applies to), cl 3 (code of conduct), cl 6.2 (anti-discrimination and harassment policy), cl 10 (complaints procedures - particularly cl 10.5 as regards tribunals) and finally, a long and internally inconsistent definition of 'harassment' bridging pages 140 - 141 of exhibit 1. Attachment A to the Member Protection Policy (exhibit 1, page 145) is a Code of Conduct (see Member Protection Policy cl 3(h) and particularly cll 10 and 11 in that Code of Conduct).
95 A second extract from the Investigation Panel's report, at page 15, also exhibits non-investigatory aspects of the Panel's work. In part it said:
Mr Miller's reaction to the complaints filed against him (that is, retaining lawyers not to represent him in addressing the complaints, but rather to send letters of demand threatening the complainants with the commencement of litigation) was a breach of the spirit and guidelines of the Cycling Australia Member Protection Policy. …
The investigation panel finds that at best, Mr Miller's reaction was inappropriate in the circumstances and at worst, was designed to intimidate and threaten the staff members who had filed complaints in accordance with the procedure under the Cycling WA Constitution. …
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- In light of the above, the investigation panel finds that in sending letters of demand to the three complainants following receipt of their complaints amounts to harassment of the three staff members. In this respect, the investigation panel notes that, whether or not it was Mr Miller's intention, the letters were threatening to the staff members and of the type that a reasonable person would recognise as being likely to cause the staff members to feel intimidated.
The investigation panel has also found that the letters amounted to victimisation of the three staff members, because they threatened legal action against the complainants as a result of those staff members having made a complaint.
96 The extract again shows the Panel reaching findings, concerning its characterisations of Mr Miller's conduct as 'harassment' or 'victimisation'. Those findings manifestly travel wider than what would fall within the bounds of a process that could be regarded or assessed as merely investigatory.
97 Third, I mention a further extract at exhibit 1, page 16:
On the basis of the above considerations and circumstances as at 15 October 2009, the investigation panel finds that the contact made by Mr Miller regarding the payment of staff wages, in addition to being inappropriate in the circumstances and contrary to employment law, amounted to harassment and victimisation of Mr Manning, Mr Hodgson and Ms Lenson.
- Like observations apply.
98 Further instances could be assembled from the Panel's report. But the examples suffice to demonstrate that the Investigation Panel's workings and report travelled well beyond mere investigation to embrace determinations.
99 At pages 21 - 23 of exhibit 1, the Investigation Panel also made a number of 'recommendations' in respect of Mr Miller. See page 22:
Pursuant to its terms of reference, the investigation panel's recommendations are set out below:
1. In light of its findings outlined on pages 9 to 19 above, the investigation panel recommends that Mr Miller be suspended as a member of [ACF]. Taking into account the reasons set out below, and the submissions made by Mr Miller both during the investigation process and in his written submissions dated
- 10 February 2011, the investigation panel considers that an appropriate period of suspension is 2 years.
- Further on page 22:
The investigation panel has seen fit to recommend less than the maximum period of 4 years suspension for Mr Miller for the following reasons:
* The investigation panel regards Mr Miller's attitude in respect of [ACF's] policies to be a serious breach of his obligations as a member of [ACF]. The seriousness of this breach is due to Mr Miller's position as a commissioner of [WACF] - the investigation panel believes that Mr Miller ought to have actively sought to comply with the spirit of the [WACF] Constitution, the [ACF] Constitution and the Cycling Australia Member Protection Policy;
Deal with any apparent disciplinary matters that arise in the course of the investigation process and if found proven to the satisfaction of the investigation panel, recommend penalties to the Board of [ACF].
- The Investigation Panel observes (exhibit 1, page 27) towards this term of reference:
The investigation panel has addressed the disciplinary matters regarding Mr Miller (that is, those identified in the letter from [ACF] to Mr Miller on 25 November 2009) and has made recommendations as to, amongst other things, penalties to the Board of [ACF].
The investigation panel is empowered to make recommendations to the Board of [ACF] under its second term of reference and must do so in order to discharge its terms of reference. The investigation panel notes however, that submissions have been received from Mr Miller in respect of this term of reference (see Annexure E). [See exhibit 1, pages 40 - 57]
In the course of conducting its investigation, the investigation panel did not feel that it was in a position to deal with any apparent disciplinary matters outside those specifically named in the complaints about Mr Miller.
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102 So the Investigation Panel 'dealt with' apparent disciplinary matters concerning Mr Miller. This reaffirms that the Investigation Panel's work, by its very terms of reference and then what it did, travelled well beyond mere investigation.
103 What arises from that conclusion sets the platform for evaluating the basal grievance of Mr Miller. This is that, having once faced what was both an investigation and a determination process from the Panel, there is, as a matter of the proper interpretation of cl 17.1 of the ACF's Constitution, a jurisdictional impediment against what would amount to a second reference by ACF to a special disciplinary tribunal, as to determinations yet again being potentially made against him, as is foreshadowed by the ACF's solicitors on 13 May 2011 (exhibit 1, pages 58 - 59).
The Special Disciplinary Tribunal
104 Four matters need to be observed upon at the outset as regards the ACF's reference to a 'special disciplinary tribunal', as advised to Mr Miller on 13 May 2011.
105 First, the intended reference under r 17.1 is, once again, not a reference to a disciplinary tribunal established under the ACF's by-laws. This is clear from par 4 of the letter, 'Accordingly, exercising its discretion under clause 17.1 (and in particular the second limb), the Board of [ACF] has resolved …'.
106 Second, Annexure 1 to the ACF's solicitors' letter specifies an 11 point 'Tribunal Procedure' for the special disciplinary tribunal. This procedure as specified (exhibit 1, page 60) has been uniquely prepared for a 'one-off' exercise concerning Mr Miller and the 'special disciplinary tribunal'.
107 Third, of interest within the foreshadowed tribunal procedure is item 11 which provides, 'There is no further right of appeal from the decision of the Tribunal'. Immediately it will be appreciated that the 'no appeal' position for Mr Miller is in sharp contrast to the clearly stipulated appeal procedure recognised, as I have mentioned, by the ACF's by-laws for decisions of the ACF's disciplinary tribunals (see by-law 2.15). Indeed, cl 10.5 of the Cycling Australia Member Protection Policy (established, as I have mentioned, pursuant to the by-laws) concludes, 'Every organisation bound by this policy will recognise and enforce any decision made, and form of discipline imposed, by an appeals tribunal
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- under this policy'. That normative position, as to an appeal right, is in accord with the ACT Act's requirement for procedural fairness (see s 50).
108 There being no specified appellate procedure or route discernible under the ACF's rules (Constitution) following a disciplinary referral under the second limb of r 17.1, the disciplinary procedure provisions of the model rules, as I have found earlier, are to be incorporated by reason of such matters not being dealt with (s 31(2) ACT Act and model rule 10 as to appeals in Schedule 1, Part 1.2 of the Associations Incorporation Regulations).
109 Fourth, and most importantly as regards a resolution of this action, there arises the critical issue as to how it is proposed the 'special disciplinary tribunal' would treat, deal with or interrelate with the report of the Investigation Panel (if at all). This is specifically addressed both in the ACF's solicitors' advice of 13 May 2011, then in the ACF's special tribunal procedure document (exhibit 1, page 60).
110 The ACF's solicitors' letter, having advised Mr Miller of the referral of three identified allegations (at par 4(a)(i), (ii) and (iii)), informs him:
(b) The special disciplinary tribunal is to conduct a hearing in relation to the Allegations in the manner set out below and make a determination about:
(i) whether each of the Allegations is proven; and, if so
(ii) what penalty, if any, is to be imposed on Mr Miller.
(c) For the purposes of hearing and determining the Allegations against Mr Miller the special disciplinary tribunal act in accordance with the procedure set out in annexure 1 attached.
111 Paragraphs 5 and 6 of the ACF's solicitors' advice provides:
5. For the avoidance of doubt, we advise that the particulars of the allegations are as follows:
Particulars
- Mr Miller acted contrary to the Cycling Australia Member Protection Policy and the Cycling Australia Code of Conduct in that he harassed and/or victimised three employees of Cycling WA.
Mr Miller refused to agree to be bound by the Cycling Australia Member Protection Policy and openly acted in contravention of it.
- [ACF] relies upon the Investigation Panel Report of February 2011. [ACF] will provide further particulars before the Tribunal.
- 6. As noted in the attached Annexure 1, the report of the Investigation Panel (Report) will be provided to the tribunal by way of hand up brief.
112 What emerges is a clearly stated position - the ACF envisages the work of the special disciplinary tribunal will be to make determinations about 'Allegations' dealt with by the Investigation Panel (i.e. previously found proven by that Panel). However, this apparent attempt to draw a line as between 'investigation' and 'determination' is belated. In my assessment, it is a futile attempt to respect the dichotomy in r 17.1 of the Constitution as between those two notions, which has previously been ignored in the reference to and then in the report of the Investigation Panel.
113 Drawing a distinction between investigation and determination would have been open in my view. The ACF's first reference to its Investigation Panel could have confined that Panel's terms of reference more closely, just to investigation. Plainly, however, the ACF did not do that. The Panel, as observed, had wider terms of reference. Unsurprisingly, it rendered wider findings and wider determinations accordingly.
Self-correction
114 There is an established body of authority in Australia supporting the scope for a body to self-correct internally recognised deficiencies, acting of its own initiative: see Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 1) (1991) 103 ALR 661; (1991) 32 FCR 219, a decision of the Full Federal Court comprising Beaumont, Hill and Heerey JJ. There Beaumont J, referring to R v Moodie (1977) 17 ALR 219, said:
Some administrative decisions, once communicated, may be irrecoverable. But where it appears to a decision-maker that his or her decision has proceeded upon a wrong factual basis or has acted in excess of power, it is appropriate, proper and necessary that the decision-maker withdraw his or her decision (225).
115 Beaumont J also referred to observations by Lawton LJ in Rootkin v Kent County Council [1981] 2 All ER 227, 233. In Comptroller-General of Customs see, to like effect, the reasons of Hill and Heerey JJ, who said:
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- It would in our opinion be strange if an administrative order remained valid until set aside by an order of a court even though the decision-maker did not seek to uphold the order. Courts have long recognised the rule of policy that there is a public interest in the avoidance of litigation and the termination of litigation by agreement when it has commenced. The argument that disputed orders could not be treated, by agreement of all concerned, as void would directly conflict with that rule. Parties would be forced into pointless and wasteful litigation (229 - 230).
116 The ACF invokes this line of authority to support the 2010 intended reference to the 'special disciplinary tribunal'. Counsel for the ACF mentioned the High Court decision Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 [15] (Gleeson CJ), [53] (Gaudron and Gummow JJ), [154] - [155] (Callinan J) and [163] (Callinan J). A self-correction of error principle for a tribunal is therefore well established. But as I explain, that is not this case.
117 I have not lost sight of the fact, at the end of the day, the present dispute concerns contractual arguments involving the interpretation of rights of Mr Miller vis-à-vis the ACF, by reference to the ACF's rules (Constitution) which form their personal contract (r 15.1(a) and s 48 of the ACT Act). Nevertheless, the submissions of the ACF draw in by analogy principles applicable to administrative tribunals. As expressed in the ACF's written submissions:
The propositions advanced in relation to the exercise of power are not applicable in respect of administrative tribunals and the construction of a contractual power on the part of a body to make a determination should be similarly construed in conformity with principles applicable to administrative tribunals [12.5].
118 Supporting the ACF's submission as regards self-correction of errors are passages to which I have referred from Bhardwaj, Kawasaki Motors, Ridge v Baldwin [1964] AC 40, 79 and the Canadian Supreme Court decision of Chandler v Alberta Association of Architects [1989] 2 SCR 848, 861 and 862.
119 I accept the force of principles applicable to recognising a capacity of a tribunal to self-correct its acknowledged errors, as discussed in decisions such as Bhardwaj. That being so, were it the case here that the ACF was recognising error, and then attempting to correct an acknowledged vitiating deficiency in the Investigation Panel's report by another hearing, the array of case authority as to sanctioning a self-correction would present as compelling.
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120 However, passages from the ACF's solicitors' letter to Mr Miller (extracted above) clearly show that the present situation is by no means one of the ACF seeking to acknowledge deficiencies, then self-correct some vitiating aspect(s) of the Investigation Panel's report at a further disciplinary hearing. To the contrary, the ACF's solicitors' letter explicitly says that fulsome relevance will be attributed to the Investigation Panel's report within the proposed work of the ACF's special disciplinary tribunal. The Panel's report is even to be provided to the special disciplinary tribunal, 'by way of hand up brief'.
121 The intended continuing relevance and reliance upon the Investigation Panel's report before the special disciplinary tribunal is further manifested in an examination of the nominated tribunal procedure, being Annexure 1 to the ACF's solicitors' communication, which was in these terms:
1. As soon as practicable after being appointed, the Tribunal shall convene a teleconference of relevant parties to set a timetable for the filing of written submissions, and exchange of materials including witness statements, by the parties. A hearing date will also be set at this time. The hearing will be conducted in Perth, Western Australia.
2. The report of the Investigation Panel shall form evidence before the Tribunal. To the extent that either party wishes to challenge, impugn or clarify matters contained in the report of the Investigation Panel, they should present additional evidence or call witnesses to achieve that aim. Parties are entitled to produce expert witnesses.
3. The Tribunal will give all relevant parties and their witnesses every opportunity to be heard and will give due consideration to any written statements received from any relevant party.
4. Any party who wishes to call witnesses must notify the Tribunal and the other party of the name(s) of the witness(es) at the teleconference referred to in 1 above.
5. The parties shall have the right to cross examine any witness(es) called by any other party.
6. The Tribunal shall form its own conclusions on the basis of the evidence before it. The evidence shall comprise the report of the Investigation Panel together with any further evidence led by any party at the Tribunal hearing. While the findings and recommendations of the Investigation Panel may be taken into account by the Tribunal they are to be given no greater weight than any other evidence.
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- 7. No objection may be made to the contents of the Investigation Panel report on the basis that it is hearsay.
8. The Tribunal will not be bound by the rules of evidence.
9. While the parties may seek legal advice and assistance in order to prepare for, and draft documents relating to, the Tribunal hearing, legal representation is not permitted at the hearing itself as of right. Parties can make application to the Tribunal seeking leave to have legal representation at the hearing.
10. The Tribunal will have no power to award costs. All parties must bear their own costs of the hearing.
11. There is no further right of appeal from the decision of the Tribunal.
122 The intended special tribunal procedure shows repeatedly that far from correcting, quarantining or sterilising any problematic aspects of the Investigation Panel's report, the tribunal procedure delivers the Panel's report into evidence before the new tribunal. In doing so, it ensures that report's continuing foundational relevance.
123 Counsel for Mr Miller pointed out (correctly, in my view) that, under the intended special tribunal procedure, it would be (theoretically) possible for the Investigation Panel's report by itself to be tendered by the ACF as its whole case, there being then no opportunity for Mr Miller to cross-examine any (uncalled witness) complainant who raised an allegation of harassment or victimisation against him. That would be so, notwithstanding otherwise alluring references within the foreshadowed special disciplinary tribunal procedures to the filing of witness statements (cl 1) and a right to cross-examine witnesses called (cl 5). But witnesses may never be called if the Investigation Panel's report alone is used, as could eventuate. On that hypothesis, any assumed fairness in what is now proposed would be illusory.
124 Furthermore, the overall content of the Investigation Panel's report, as constructed, is such that it is no easy task to extract from its melded content pure facts, so as to isolate evidence for the second tribunal. The investigation report contains mixed findings, recommendations, characterisations and commentary, which have been lumped together in a fashion that would render it a difficult task, even for someone legally trained, to isolate a particular finding of fact which could then be assessed to constitute evidence.
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125 Therefore, on analysis, it cannot be accepted the envisaged work of the ACF's special disciplinary tribunal properly falls to be assessed within the scope of the principles concerning a self-correction of vitiating errors by administrative tribunals. No errors or deficiencies are acknowledged as regards the report of the Investigation Panel. The envisaged process before the special disciplinary tribunal may, not unreasonably, be characterised as being grounded upon the Investigation Panel's report, as its cornerstone.
126 It is no amelioration of this problem that by cl 2 of the tribunal procedure, Mr Miller (or the ACF) may wish to challenge, impugn or clarify matters within that report by a presentation of additional evidence or by the calling of witnesses. The Investigation Panel's report remains the founding platform from which the special disciplinary tribunal's further work is to proceed.
127 That ongoing interrelationship between the report of the Investigation Panel is intimate, continuing and, in my view, ultimately problematic.
Mr Miller's challenge against the referral by the ACF to the special disciplinary tribunal
128 I return to the essence of Mr Miller's fundamental grievance which, it will be remembered, is a challenge grounded in his assertion (by reference to r 17.1 of the ACF's Constitution) of his contractual right not to be twice subjected to a determination process. In this context, I accept Mr Miller's submission that there will be the inevitable ongoing uncertainty, stress and legal expense for him arising out of what is now foreshadowed.
129 In this context it will be remembered as well that had the ACF chosen, it might have referred these complaints against Mr Miller, in accord with its by-laws, to a disciplinary tribunal (see by-laws 2.11.03 and 2.12.02). But the ACF did not follow that course, either in respect of the first referral to an Investigation Panel or now, by the foreshadowed referral to a special disciplinary tribunal. In each instance it has acted (permissibly) under what it refers to as the 'second limb' of r 17.1 of the ACF's Constitution, following a procedure it considered 'appropriate'.
130 Supporting the underlying basis of his 'not again' challenge, Mr Miller invokes an unreported New South Wales decision by Helsham CJ, McManus v Lithgow and District Workmen's Club Ltd (Unreported, NSWSC, 25 May 1981). Passages from what would appear to be an ex tempore judgment of Helsham CJ were raised to support
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- Mr Miller's objection stance, by analogy to the position of domestic tribunals. In McManus, Helsham CJ said (3):
The jurisdiction possessed by a domestic tribunal of the kind involved here which enables it to rule upon disciplinary matters comes from it acting under rules which rest upon a consensual basis; the powers which the tribunal has stem from the contract between each member of the club and other members and the club itself constituted by the Memorandum and Articles of Association, and any rules made in pursuance of any power given to make rules. It is part of the agreement between members that any untoward conduct can be investigated by a tribunal constituted by the Board and punitive action can be taken if decided to be proper. But in the absence of any express provisions in the Articles or rules to the contrary, that is all that can be done in relation to such conduct; investigative and punitive action having been done once, it cannot be done again. In the present case there is no provision to be found in Art 27 or elsewhere that enables any repetition of disciplinary procedures; that Article gives a power to deal with a member if he is found guilty of conduct prejudicial to the interests of the club. Having exercised the power, the Board is given by agreement nothing upon which to base a claim that it could exercise the same power, that is to say in relation to the same conduct, again. No implied power to do so would be read into the relevant Article.
- That passage frames the objection raised by Mr Miller.
131 In my view, far from being outdated or unhelpful, as suggested, Helsham CJ's reasons present as a wise and appropriate application of some fundamental principles of fairness. Notwithstanding the ACF's submission to the effect that McManus should not be followed, because it has been overtaken by subsequent authorities such as Bhardwaj, that, with respect, is not my assessment. Had the ACF self-assessed the Investigation Panel's report to be deficient, the position would be different. But clearly, as has now been demonstrated, that is not this case.
132 The following observations by Helsham CJ made in McManus show, on my assessment, that his Honour, in 1981, effectively recognised that same distinction. Helsham CJ said, immediately after the passage above:
Different considerations may arise if action taken by the board were to be vitiated because of failure to observe conditions precedent to the valid exercise of the power, or because, for example, the rules of natural justice had not been observed. It is unnecessary for the purposes of this decision to reach any conclusion as to what may or may not be done where there has been an ineffectual attempt to discipline a member; whether a
- domestic tribunal could then set about properly exercising its powers without interference from the court would need to be looked at in the light of the circumstances in which the question emerged. But that is not the case here. The defendant club has not resiled from the stance that it adopted in answer to the challenge made by the plaintiff to the action of the Board, and presumably asserts that the Board validly suspended his membership. The club treated that suspension as a valid exercise of its disciplinary power by excluding the plaintiff from the club premises and denying him the benefits of membership. Further, by 'rescinding' the motion by which the plaintiff was suspended, the club must be deemed to have proceeded upon the basis that there was a suspension capable of being set aside. This simply means that while asserting that the disciplinary power was in fact exercised in relation to the particular conduct of the member concerned, the club is desirous that the same power should be exercised once more. I do not believe that the Articles permit this to be done. It could be done by consent, but not, in my view, otherwise (4).
133 The situation with Mr Miller therefore presents as being one where the ACF desires that the power it holds under r 17.1 of its Constitution 'should be exercised once more', against him. Like Helsham CJ, in his Honour's close examination of the Lithgow and District Workmen's Club articles, I also can find nothing here express or implied in the ACF's rules to suggest there is legitimacy in a further exercise of the ACF Board's power to refer the same complaints against Mr Miller for further determinations.
134 The conclusion may well have been different had the Investigation Panel's terms of reference been confined just to investigation. Plainly they were not. The second term of reference, as has been seen, goes significantly beyond investigation, encompassing outright determinations by the Panel. Such determinations were made in the Panel's report.
135 There having been one investigation conducted with determinations already made by the ACF's Investigation Panel, in my view, there is now no legitimate basis for a second reference to the 'special disciplinary tribunal'. In this context I do note from Bhardwaj, that Gleeson CJ, after referring to Ridge v Baldwin [1964] AC 40, 79, said:
The requirements of good administration and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction (603).
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136 Here, finality for me is a powerful consideration as regards the referral to a body to 'investigate or determine'.
137 In my assessment, albeit not precisely for reasons as articulated under par 2.1 of Mr Miller's submissions, the basal, inescapable problem for the ACF is that no express, inferred or implied foundation can be located within the ACF's Constitution to support what, in substance, amounts to a second referral to a disciplinary body of the ACF for determination of the same misconduct allegations against Mr Miller.
Orders
138 On my assessment, it is appropriate to declare, as Mr Miller essentially seeks, that having once exercised a right under r 17.1 of the ACF's Constitution to refer to the Investigation Panel certain complaints raised against Mr Miller and with that Investigation Panel having completed the referral and provided its report to the ACF, the ACF (by its Board or otherwise) is, as a result, not now permitted to exercise power under r 17.1 of its Constitution a second time, by referring the same complaints to a special disciplinary tribunal for determination, as is foreshadowed in the letter of Lander & Rogers, solicitors for the ACF, dated 13 May 2011.
139 However, I reiterate what I said at the commencement of these reasons. I am (in these proceedings) not at all concerned about assessing the validity of the Investigation Panel's report. That report has been prepared and delivered in accordance with the Panel's terms of reference. It was open, as the ACF's Board did, to refer the complaints to that body (i.e. otherwise than under a procedural path in the ACF's by-laws). But no disciplinary procedure or appeal procedure for that alternate process was specified. Hence, model rules 9 and 10, to which I have referred, become applicable, pursuant to s 31(2) of the ACT Act.
140 On that basis, the ACF's Board may now (potentially), by resolution, follow the two committee meetings procedure under model rule 9 concerning a possible expulsion or suspension of Mr Miller.
141 Depending upon the outcomes of model rule 9 processes, model rule 10 conferring a right of appeal could then be applicable, i.e. providing an appeal route to a general meeting of the ACF, in that event. Nothing I have observed upon in resolving the present dispute bears upon such potential eventualities.
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142 Prima facie, I am also of the view that Mr Miller, as the substantively successful party, should receive his costs of this trial, to be taxed.
143 I will hear the parties as to the precise formulation of final orders, including as to costs, if they cannot be agreed.
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