Mitchell v Royal New South Wales Canine Council Limited

[2000] NSWSC 330

CITATION:	Mitchell v Royal New South Wales Canine Council Limited [2000] NSWSC 330
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 11356/99
HEARING DATE(S):	5 April 2000
JUDGMENT DATE:	19 April 2000
PARTIES :	Colleen Mitchell (Plaintiff) Royal New South Wales Canine Council Limited (Defendant)
JUDGMENT OF:	Simpson J at 1

COUNSEL :	Mr P Roberts SC with Mr M Green (Plaintiff) Mr F Corsaro (Defendant)
SOLICITORS:	Horowitz & Bilinsky (Plaintiff) Henry Davis York (Defendant)
CASES CITED:	Lee v The Showman's Guild of Great Britain [1952] 2 QB 329 Australian Football League v Carlton Football Club Limited [1998] 2 VR 546 Malone v Marr [1981] 2 NSWLR 894 Briginshaw v Briginshaw (1938) 60 CLR 366 Rejfek v McElroy (1965) 112 CLR 517
DECISION:	Summons dismissed. Any previous orders that subsist are discharged; The plaintiff to pay the Council's costs of the proceedings.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Wednesday 19 April 2000

11356/99

MITCHELL v ROYAL NEW SOUTH WALES CANINE COUNCIL LIMITED

Judgment

HER HONOUR :

1    In these proceedings the plaintiff, Ms Colleen Mitchell, claims injunctive, declaratory and consequential relief in relation to certain internal disciplinary proceedings conducted by the defendant association of which she is a member and director. The full title of the defendant association is “Royal NSW Canine Council Limited”. I will refer to it as “the Council”. The Council’s Articles of Association, but not the Memorandum, are in evidence.

2    The rights and obligations incidental to membership of the Council are the subject of an elaborate set of provisions contained in the Articles of Association and Regulations made under the authority of the Articles. Membership of the Council amounts to a contractual arrangement between the Council and its members. The Articles of Association are properly to be seen as the written form of the contract containing the terms which bind the Council and its members.

3    It is convenient here to refer to the relevant Articles and Regulations, and the structures pursuant to which the Council operates and which are involved in the various procedures to be outlined below. The first document to be noticed is the Articles of Association.

4    Article 17 is concerned with and headed “Disciplining of Members”. It may be set out in full:

“17. (a) A member shall strictly observe and act in conformity with and not otherwise than in accordance with the Articles and Regulations of RNSWCC.
(b) Without limiting (a), a member must not engage in any conduct that could reasonably be considered to be:
(i) dishonest, malicious, vexatious, or scandalous or contrary to law,
(ii) discreditable to the member concerned or any other member,
(iii) prejudicial or injurious, or tending to prejudice or injure, any person interested in canine affairs,
(iv) prejudicial or injurious, or tending to prejudice or injure, the interests, image or standing of RNSWCC, or
(v) contrary to the spirit and intent of the articles, regulations, or any code, resolution, policy or direction of RNSWCC or any committee.”

5    In Article 1 various terms and expressions used in the Articles are defined. “Misconduct” is defined, relevantly, as:

“…any conduct whether by word or action:
(a) considered by a reasonable person to be unsportsmanlike or of a nature which is contrary to the manner in which the person ought properly to conduct himself; or
(e) which brings RNSWCC in discredit or the member concerned as a breeder, owner or member into discredit; …”

6    The Board of Directors is empowered, by Article 84, to make regulations, including regulations:

“providing for the conduct of inquiries, investigations, hearings and appeals concerning such matters as the Board of Directors may from time to time determine and for the imposition, waiver or suspension on penalties;”

7    By Article 21 the Board of Directors is empowered, in accordance with the Regulations, to conduct or cause to be conducted all such inquiries and investigations as it considers appropriate in relation, inter alia, to any alleged misconduct or breach of the Articles or Regulations by a member; and to:

“(b) impose such penalty (whether by way of reprimand, fine, disqualification, suspension [including interim suspension] or termination of membership or other mandatory requirement) as it in the circumstances of the case considers appropriate.”

8    Regulations pursuant to Article 84 have in fact been made. Those relevant to the present proceedings are numbered “Part X1” and headed “Inquiries, Investigations and Appeals.” These Regulations are divided into fourteen sections. Section 2 is headed “Bodies that may Conduct Inquiries”. Section 2.1 provides for the creation of “a Judicial Panel”, from the members of which are to be selected persons to constitute “the Committee”. “The Committee” is not, in the materials before me, otherwise identified or elucidated. Upon initiation of an inquiry (which is, by section 3.2, “always at the absolute discretion of the Chairman of the Judicial Panel”), the Chairman of the Judicial Panel is required to select no less than three other members of the Panel to constitute a Committee for the purpose of the inquiry, appoint one of those persons as Chairman, and give such directions as are necessary to ensure the efficient disposition of the inquiry. Section 5 of the Regulations is directed to the conduct of inquiries and investigations concerning misconduct or breaches of the Rules or Regulations by members. It envisages that a hearing will take place, with the calling of witnesses, but expressly excludes the application of the rules of evidence and requires that the proceedings be conducted with a minimum of formality. Section 6 is devoted to prescribing matters concerning decisions of the Committee and creating penalty guidelines. By section 6.1 the Committee is required to publish a written report on the facts as found by it and the penalty (if any) it considers appropriate to impose in the circumstances. In section 6.2 are listed the penalties available to the Committee. These are:

(i) to reprimand the member;
(ii) to impose a fine;
(iii) to disqualify the member from certain activities at a Show;
(iv) to suspend from membership for a specified period;
(v) to require the member to resign;
(vi) to terminate the member’s membership; or
(vii) any combination of the above.

9    Section 7 provides for appeals from decisions of the Committee. It envisages the appointment of an Appeal Committee by the Chairman of the Judicial Panel. Appeals are restricted to circumstances where there is fresh evidence that could not have been placed before the Committee, or where there has been a denial of natural justice by the Committee. Sub-section 7.1 specifically prohibits re-opening by the Appeal Committee of any factual issue determined by the Committee.

10    Article 85 commits questions of the construction of the Articles or Regulations to the Board of Directors who may in turn refer such questions to solicitors acting for the Council. The determination of the Board of Directors or the written determination of the solicitors is expressed to be final and binding and is required to be given effect.

11    Article 47 confers on the Board a power of delegation. By resolution of 11 October 1994 the Board delegated to the Judicial Panel all its functions in relation to the conduct of inquiries, investigations or appeals as referred to in Article 21.

Background

12    The plaintiff describes herself as a businesswoman. She is a breeder of Papillon dogs. In 1978 she joined the Papillon (Dog) Club of NSW Inc.; in 1981 she became a member of the Committee of that Club; from 1982 to 1984 she was The Publicity Officer. She became involved in the preparation of a handbook which was eventually published in 1982 or 1983 under the title “Papillons in Australasia 1983”. On its cover the handbook bore the notation “Presented by the Papillon Club of NSW”.

13    In 1992 the plaintiff stood for election to the Board of the Council. In support of her campaign she published a statement in the Council’s journal, “The Canine Journal”. In that statement she set out her relevant history and her credentials for election. Included in the statement was the following passage:

“Past Publicity Officer and Committee member of Papillon Club - financed and published the first breed history and handbook.”

14    She was duly elected to the Board. In 1995 and 1998 she again stood for election to the Board and on each occasion re-published a statement in the same terms as that quoted above. On each occasion she was re-elected.

15    On 19 June 1998 Ms Jean Rimmer, the secretary of the Papillon Club, wrote to the manager of the Council, expressing concern at the publication of the extracted passage. She wrote:

“In this section Mrs C Mitchell states that she ‘financed and published’ the first Papillon handbook.
Whilst we admit Mrs Mitchell paid for the location of breeders and researchers, which was greatly appreciated, the handbook was financed by members through their advertisements.
The Club feels a retraction from Mrs Mitchell should appear in the Viewpoint column.”

16    The matter thus raised by Ms Rimmer appeared on the Agenda of successive meetings of the Board of the Council and there was some correspondence with the plaintiff which it is unnecessary here to detail. In December 1998 the secretary of the Council wrote to the secretary of the Papillon Club advising that a “Committee of Inquiry” had been appointed:

“…to inquire into and report in relation to an allegation against Mrs C Mitchell that:
“She was guilty of misconduct by causing to be published in The Canine Journal of RNSWCC in May 1992, May 1995 and May 1998, a claim that she did finance and publish the first Papillon Breed History and Handbook, being claims allegedly not correct in truth and in fact (‘the conduct’). By reason of the conduct, she has allegedly been guilty of misconduct in that she breached the following Regulations:
1. 17(b)(i) of the Memorandum and Articles of Association in that the conduct was dishonest.
2. 17(b)(ii) of the Memorandum and Articles of Association in that the conduct was discreditable to herself.

3. Clause 20 of the Memorandum and Articles of Association in that the conduct brought herself, as a Member into discredit.
4. Clause 32(a) [sic-clause 1(32)(a)] in that the conduct was conduct which would be considered by a reasonable person to be of a nature which is contrary to the manner in which a person ought properly to conduct herself.
5. Item 1(32)(e) of the Memorandum and Articles of Association in that the conduct was conduct bringing herself, as a Member, into discredit.

17    A Committee of Inquiry was appointed to section 2.6 of Part 11 of the Regulations. The Committee met during the evening of 2 February 1999. A transcript of the proceedings is in evidence as Ex 1. It will be necessary later to refer to some parts of the transcript. It reveals that the plaintiff was present, witnesses were called and questioned. The Committee reported to the Board. It made findings and reached conclusions of fact, specifically in relation to the work that had gone into the handbook and the circumstances in which relevant payments in relation to the handbook were made and received. The Committee identified the issue before it as:

“… a quite narrow one of fact as to whether Mrs Mitchell did finance and publish the first Papillon Breed History and Handbook as she had alleged.”

18    The Committee unanimously found the plaintiff guilty of misconduct. In its report the Committee wrote:

“…the Committee of Inquiry by a unanimous decision found that Mrs Mitchell was guilty of misconduct by causing to be published in The Canine Journal of RNSWCC May 1992, May 1995 and May 1998 a claim that she did finance and publish the first Papillon Breed History and Handbook when in fact those claims were not true. While it is clear that Mrs Mitchell undertook a substantial amount of work in producing this Handbook, it was not she who was the sole person who published it. Further, Mrs Mitchell was involved in raising revenue from advertising and sponsorship and also would have met some of the costs of the publication, in particular some later photocopying to enhance the quality of the Handbook and also include costs in taking trips to the printer in Goulburn, the evidence reveals that she did not solely finance the book. Indeed the records clearly indicate that Mrs Mitchell received reimbursement of at least $1,000 from the Papillon (Dog) Club of NSW Inc. in respect of the printing of the Handbook. Mrs Mitchell can be congratulated for the amount of time and effort she took into the preparation of this Handbook, but she cannot allege that it was she alone who financed and published this book.”

19    The Committee then proceeded to impose a penalty. It required the plaintiff to provide a retraction in writing of her claims, and to state that she was involved in the publication of the handbook in her capacity as Publicity Officer of the Club and that she had done it for the Club, and that the handbook was, at least in part, financed by the Papillon Club and published for the Club in her capacity as Publicity Officer. It required the retraction to be made at least by the April 1999 issue of the Canine Journal. In the event of failure by the plaintiff to publish the retraction, the Committee imposed a fine of $2,500 to be paid by 30 May.

20    On 17 March the plaintiff, by letter directed to the Secretary of the Council, lodged an appeal against the decision. On 19 April the Council wrote to the plaintiff in the following terms:

“The Chairman of the Judicial Panel has carefully considered your Application for leave to Appeal.
Your Application for leave to Appeal is refused for the following reasons:
1. You have not provided details of any fresh evidence that could not have been placed before the original Committee of Inquiry; and
2. You have failed to provide evidence of the ways in which you say you have been denied natural justice by the Committee.”

The letter went on to refer to correspondence that had apparently taken place between the parties.

21    On 1 June 1999 the Council again wrote to the plaintiff, this time noting the absence of a “written apology” and the non payment of the fine, and advising that, as a consequence, her membership of the Council was “ipso facto suspended”.

22    On 4 June 1999 the plaintiff filed the summons commencing these proceedings. On that day Grove J in chambers made an interlocutory order in accordance with paragraph 1 of the summons, which was in the following terms:

“An injunction restraining the defendant by its officers, servants, and agents from interfering with the exercise by the plaintiff of her rights and duties as a director of the defendant.”

23    The order was expressed to remain in force until 14 June (on which date the summons was made returnable) or further order. On 14 June the parties consented to a continuation of that order on an interim basis and to the making of additional orders as claimed in the summons.

24    On 1 July 1999 the President of the Council wrote to the plaintiff. On this occasion he advised that the Council had received advice that her appeal, initiated by the letter of 17 March:

“… may not have been properly dealt with in terms of the Regulations.”

and:

“… that it would be appropriate for an Appeal Committee to be constituted so that you may proceed with your Appeal and have it duly considered by an Appeal Committee.”

He added that if the Council did not hear from the plaintiff within seven days it would assume that she had no objection to the course of action proposed and that an Appeal Committee would be appointed to deal with the matter.

25    On 31 August the plaintiff’s solicitors wrote to the Council’s solicitors saying that the appeal was instituted by the Council itself (not by the plaintiff) and that the plaintiff did not intend to participate in the process and that the relief sought in the summons related to the decision of the Committee of Inquiry of 2 February.

26    Notwithstanding the position so taken by the plaintiff, the Council proceeded to appoint an Appeal Committee which met on 15 September. It was constituted by Malcolm Craig QC as Chairman, Malcolm Boyd and Brian Neaves. The proceedings were transcribed. The Chairman is recorded as noting that the appeal hearing was fixed for 7.30 pm and that by 8.00 pm the plaintiff had not appeared. The Appeal Committee nevertheless decided to determine the appeal in the plaintiff’s absence. It held that the original Committee had erred in two respects. The errors were identified as the imposition of a penalty requiring publication of a retraction which, according to the Appeal Committee, was beyond the power of the Committee; and, in considering the imposition of such a penalty, which it described as “novel”, it failed, in contravention of the rules of procedural fairness, to afford the plaintiff an opportunity to be heard on that question. The Appeal Committee concluded that the finding of misconduct should be allowed to stand and confirmed it, but varied the penalty imposed by the Committee, substituting a fine of $100. The plaintiff has refused to pay the fine.

27    The plaintiff now seeks a continuation, on a permanent basis, of the orders made by consent on 14 June 1999. These are injunctions restraining the Council from interfering with the exercise by the plaintiff of her rights and duties as a director and member, from requiring payment of the fine of $2,500 imposed by the Committee, and from publishing any report relating to the Committee hearing and its conclusions. She further seeks orders setting aside the decisions of both the Committee and the Appeal Committee; quashing the penalties imposed by each; declarations that the hearings were void and of no effect; and that the penalties imposed were not valid. She seeks orders for costs and that costs be assessed on an indemnity basis.

Jurisdiction of the court

28    The power of the court to intervene in the affairs of the voluntary domestic organisation is limited, although the precise boundaries of the limitation are not entirely clear cut. They are discussed below, under the question of discretion. It is probably most appropriate to see the power as the power, exercisable by this court, to enforce the terms of a contract into which the parties have voluntarily entered: Lee v The Showman’s Guild of Great Britain [1952] 2 QB 329; Australian Football League v Carlton Football Club Limited [1998] 2 VR 546 (“AFL”). This may involve the court in determining whether a domestic tribunal, established within the terms of the contract between the parties, has exercised the functions and powers given to and conferred upon it, and whether it has correctly interpreted the contract: Malone v Marr [1981] 2 NSWLR 894. In considering the issues raised on behalf of the plaintiff I keep in mind the limitations to which I have referred and the principles stated, particularly in AFL.

29    It is important to bear in mind that this Court does not sit on appeal from such a tribunal, although it is at times difficult to avoid using language customarily associated with an appellate jurisdiction

Discretion

30    All the remedies sought by the plaintiff are discretionary. The Council argued that, even if the plaintiff succeeds in establishing that any or all of the decisions or processes which she attacks were flawed, the court should, in the exercise of its discretion, decline to make the orders sought. This requires a more searching analysis of the principles to which I have already referred under the heading of Jurisdiction, in relation to the circumstances in which a court will interfere in the domestic contractual arrangements of members of a social, professional, sporting, or other private organisation. The competing considerations are set out in the opening passages of the judgment of Tadgell JA in AFL. On the one hand, courts are reluctant to interfere when parties have willingly bound themselves to an extra curial system of dispute adjudication. That reluctance pays proper regard, not only to individual rights and decisions concerning adjudication (decisions invariably made before disputes arise) but also to the sometimes superior expertise in the particular area the subject of the dispute enjoyed by those to whom the dispute resolution is entrusted, and to the public interest in the self-regulation of organisations in which individuals voluntarily participate. The other side of the coin is in the contract created by membership of the organisation. Enforcement of contractual obligations has always been a function of the courts. While injunctive and declaratory relief are quintessentially discretionary matters, if breach of a contractual term is established, the discretion to deny relief should be exercised, in my view, with considerable caution. Interestingly, despite the passage in which Tadgell JA dilated on the reasons that militate against court intervention, he concluded, in AFL (p 550), that no decision of a domestic tribunal is exempt from oversight by a court if interference is considered necessary for the attainment of justice.

31    Where proprietary rights or monetary loss are involved the tendency is for the courts more readily to intervene, although that observation should not be taken to mean that property and money issues necessarily eclipse claims less definable or more amorphous. The point is merely that actual, perhaps quantifiable, injury may more easily be recognised where the wrong asserted can be shown to affect property or monetary interests or rights and may consequently justify a remedy by the court. Here, the Council has argued that, even if a breach of the contract between the parties can be established by the plaintiff (in the sense that correctable error infected the adjudicative process) relief ought, in the exercise of discretion, be refused. It was argued that no proprietary interest has been shown to have been adversely affected, and that, having regard to the determination of the Appeal Committee, only the relatively modest sum of $100 prevents the final resolution of the matters over which the parties are in dispute. It was specifically put that there is no direct evidence that the plaintiff derives any financial or economic benefit from her membership of the Council. I do not accept this proposition. The plaintiff’s evidence, which is unchallenged, is that she is qualified internationally as a judge of all breeds of dogs but pursuit of that calling is dependent upon continued membership of the Council. True it is there was no direct evidence that she derived income from the practice of this profession but I am prepared to infer that she did so. Further, she described herself as a dog breeder and I am prepared to infer that her accreditation as a judge has some bearing on her business activities as a breeder. There are, in my view, clear potential financial implications beyond the payment of the fine of $100 imposed on her by the Appeal Committee. There are, additionally, likely to be professional implications to do with the plaintiff’s reputation as a judge and breeder of dogs.

32    In any event, as I observed above, questions solely of principle, excluding financial considerations, may be of importance. If the plaintiff is able to establish that the processes implemented by the Council breached the prescribed procedures, in any substantial or significant way, I would not refuse relief on those discretionary grounds, that is that the plaintiff’s financial interests have not been shown to be involved in any significant way.

The plaintiff’s contentions

33    The plaintiff’s global contention is that the procedures adopted by the Council and the decisions impugned were defective and marked by specific error. It will be necessary to outline the separate criticisms made of the procedures and the decision making process.

The finding of misconduct:
the decision of the Committee of Inquiry, 2 February 1999.

34    (i) The first matter raised concerned the complaint originally made to the Council by Ms Rimmer, and the charge eventually levelled against the plaintiff by the Council. The plaintiff seeks to draw a distinction between the two in order to establish that the charge upon which the Council proceeded did not properly reflect the complaint made by Ms Rimmer and was therefore improperly laid.

Ms Rimmer wrote:

“In this section Mrs C Mitchell states that she ‘financed and published’ the first Papillon handbook.
Whilst we admit Mrs Mitchell paid for the location of breeders and research, which was greatly appreciated, the handbook was financed by members through their advertisements.”


The charge put to the Committee alleged misconduct, in a number of particularised respects, those respect being drawn from the definition of “misconduct” contained in the Articles of Association. The first of these was an allegation of dishonesty.

The plaintiff argued that a distinction is to be drawn between the assertion made by Ms Rimmer, which should essentially be seen as one of inaccuracy, and the charge, which is essentially one of dishonesty, and that the charge in those terms should not have been allowed to proceed.

I do not accept this contention. First, Ms Rimmer’s letter did not specify whether she was alleging intentional or unintentional inaccuracies; she simply asserted inaccuracies. Second, there is no reason to suppose that the Council is bound, in formulating a charge within its own regulations, by the language of the accusation that initiates the process. Third, regardless of the charge, the Committee merely found misconduct in making a claim that was not true. It did not specifically find the allegation of dishonesty proven. Even if it were correct that the Council could not proceed on a charge framed other than within the terms of the initiating complaint, it has not been established that any adverse consequence flowed from that.

35    (ii) The next matter raised was an assertion that the charge as laid was confusing in that it assumed that inaccuracy equated with dishonesty. Again, I do not accept the criticism. The Council reformulated the allegation in order to bring it within the terms of the Articles and Regulations and incorporated the various particular forms or descriptions of misconduct which, on its case, may have been constituted by the plaintiff’s assertions in her election statement. It was for the Committee to determine whether her conduct did in fact constitute misconduct in any of those respects.

36    (iii) The third matter raised was an assertion that the Committee erroneously approached its task as evidenced by the test that it posed for itself. This was in the following terms:

“The issue before the Committee was quite a narrow one of fact as to whether Mrs Mitchell did finance and publish the first Papillon Breed History and Handbook as she had alleged …”


It was argued that this was not the issue for the Committee determination, although it may have been one factual issue in the proceeding. The argument was that determination of this question favourably to the plaintiff would inevitably determine the entire proceedings in her favour, but that an answer adverse to the plaintiff on this question merely led to a second question which was whether on that finding the plaintiff should be found guilty of misconduct.

In my view a fair reading of the Committee’s report does not support the claim here made. It is true that the Committee, early in the report, identified as “the issue” the question I have set out above, but this was in the context of noting certain irrelevancies in the questioning of witnesses by the plaintiff. The factual question, or at least the principal factual question for the Committee, was indeed whether the plaintiff’s claims in her election statement were true. What flowed from a finding adverse to her in that respect was a second and important question. I do not think the Committee misdirected itself in this respect.

37    (iv) The next matter argued was that the Committee misconstrued the assertion made by the plaintiff in the election statement. The Committee placed considerable weight on its finding that, although the plaintiff did contribute substantially to the handbook, she did not solely finance and publish it. The argument was that the plaintiff did not assert in the election statement that she was solely responsible for the financing and publication of the handbook.

In my opinion the proper construction of the claim in the election statement was a matter for the Committee. This provides an excellent illustration of the kind of matters mentioned by Tadgell JA in AFL , acknowledging that the localised knowledge of the Committee members may be far superior to that of the court. The members of the Committee were in a better position than this court to appreciate the manner in which the statements would have been read by members of the Council. Certainly, the statement is open to the interpretation that it was a claim that the plaintiff alone was responsible for the financing and publication of the handbook. Such an interpretation would not be strained or artificial. It having found that that was the proper construction of the claim made, it was further open, on the evidentiary material before it, to the Committee to conclude that the claim was untrue. The next step for the Committee was to decide whether the making of such an untrue claim came within any of the descriptions or definitions of misconduct provided for in the Articles and Regulations. This is what it did.

38    (v) The next argument was that the Committee failed to consider the proper meaning of the words “finance” and “publish”. Reliance was placed upon dictionary definitions of these words. This argument meets the same fate as those previously advanced. Dictionary definitions may be helpful in the construction of some instruments, statutes and judgments. They cannot, in the present circumstances, prevail over the common usage of the words as would have been understood by members of the Council and members of the Committee.

39    (vi) It was then argued that the Committee failed to make a specific finding of intention or to specify in what respect the plaintiff’s conduct fell into the definition of misconduct.

If the Committee were operating as a court of law determining an alleged criminal offence, or breach of some civil obligation, it would be essential for it to go about its task in a judicial fashion, and this would probably include spelling out the steps from start to finish by which it arrived at its determination. Notwithstanding the rather elaborate structures provided for in the Articles and Regulations, I find nothing that requires such a formalised, legalistic approach. There is nothing in the report to indicate that the Committee did not adequately appreciate that its task was to interpret the plaintiff’s statement, determine if it was true or untrue, and if not true, then determine whether, to the extent that it was untrue, its making amounted to misconduct within one of the descriptions contained in the Article.

40    (vii) A further argument was that the conclusions of the Committee were not open, and were, accordingly, perverse and irrational. For the reasons already given I reject this contention. Once the Committee accepted that what was conveyed by the election statement was a claim of sole responsibility for financing and publishing the handbook, then whether they amounted to misconduct was a matter properly within their province. The conclusion it reached was open to it.

41    (viii) It was then argued that if dishonesty was an issue and was found, the wrong test had been applied and procedural fairness had been denied, in that it was not suggested to the plaintiff during the course of the Committee proceedings that she had acted dishonestly. As to the first proposition, reliance was placed on the formulation of the standard of proof in serious matters spelled out in Briginshaw v Briginshaw (1938) 60 CLR 366 and Rejfek v McElroy (1965) 112 CLR 517. There are a number of responses to these contentions. The Committee did not explicitly find dishonesty and the issue is, really, hypothetical. Since the Committee did not make such a finding, it is not possible to discern whether it applied a Briginshaw test or otherwise. As to the claim that procedural fairness was denied in this respect, it is to be observed that the plaintiff was provided with a copy, in writing, of the charge, and that this incorporated the specific allegation of dishonesty. She had the opportunity to respond to that allegation when giving evidence to the Committee.

42    (ix) The next argument was that the Committee, in making its determination, imposed an onus of proof on the plaintiff to substantiate the claims she had made in the election material and that this was a further error. This argument depended upon a short part of a sentence of the paragraph in which the Committee pronounced its conclusions. The sentence reads:

“Mrs Mitchell can be congratulated for the amount of time and effort she took into the preparation of this handbook, but she cannot allege that it was she alone who financed and published this book .” (emphasis added)


I do not think the imposition of an onus of proof can be read into this passage. In my opinion, all that was intended by this was a finding by the Committee that it was incorrect to state that the plaintiff alone financed and published the handbook.

Penalty: The Committee of Inquiry

43    The next matters to which submissions were directed concerned the penalty imposed by the Committee. Firstly, it was argued that Regulation X1 contains no provision empowering the imposition of a mandatory order for publication of a retraction. This raises a question concerning the role of the Committee. I have already set out the provisions of Article 21(b). This provides, inter alia, that the Board of Directors may, in accordance with the Regulations, impose a penalty which includes a mandatory requirement. This power is not replicated in section 6.2(a) of Regulation XI. However, as noted in paragraph 11 above, the Board has delegated its powers under Article 21 to the Judicial Panel. A question arises as to whether delegation to the Judicial Panel carries with it delegation to a Committee constituted by the Chairman of the Judicial Panel.

44    In my view a fair reading of the Articles and Regulations establishes that the Committee constituted by the Chairman of the Judicial Panel is empowered to exercise the powers of the Board under Article 21. It had, therefore, the power to make a mandatory order.

45    Finally, in relation to the Committee decision, it is asserted that the plaintiff was denied procedural fairness in not being given an opportunity to make submissions on penalty and this amounted to procedural error; see Malone v Marr (supra). The contention must be rejected. The transcript of the proceedings before the Committee is in evidence as Exhibit 1. On the second last page the Chairman of the Committee is recorded as adjourning the inquiry at 11.15 and resuming at 11.22. On resumption he announced the unanimous view of the Committee that the charges were proved and that the statements made by the plaintiff were false. He then said:

“Now do you want to make any submissions on sentence?”

The plaintiff replied that she did not wish to do so as she had known that she was wasting her time in attending.

46    As I understand the submission made on behalf of the plaintiff it was to the effect that, bearing in mind the unusual nature of the course the Committee proposed to adopt in imposing a mandatory penalty as distinct from one of the penalties identified in section 6.2 of the Regulation, it should have alerted her specifically to that fact. Given the attitude displayed by the plaintiff to the invitation to make submissions on penalty I am not satisfied that the failure to alert her to that possibility amounted to a denial of procedural fairness; and, if it did, it was one that had no adverse consequences, as the plaintiff would have maintained the position she forcefully took and would not have availed herself of any opportunity offered.

The Appeal Committee procedure of 15 September 1999

47    The Appeal Committee came into existence in an unusual way. The plaintiff initially filed an appeal against the decision of the Committee of Inquiry. She was told, in effect, that her appeal was incompetent because she had not shown that she proposed to proceed on either of the only two grounds available, fresh evidence or denial of natural justice. So far as the evidence goes she engaged in no further correspondence with the Council, although she did receive, on 1 June 1999, a letter telling her that her membership was terminated. Her silence may be taken as an acceptance of the decision of the Council to reject what it erroneously referred to as her application for leave to appeal.

48    She then commenced these proceedings. It was following the commencement of the proceedings that the Council wrote the letter to her set out above in paragraph 24, advising that an Appeal Committee would be constituted. Plainly enough, on the commencement of the proceedings, the Council received advice as to its error in relation to the plaintiff’s appeal. The question which arises is whether it was open to the Council to override its earlier position and constitute an Appeal Committee in accordance with the plaintiff’s earlier expressed wish. A further complication arises because the Council added that, in the absence of a contradictory response within seven days of the letter (1 July 1999) it would assume that the plaintiff had no objection to the course of action it proposed. So far as the evidence goes, the plaintiff did not respond to that letter until 31 August 1999, when, through her solicitors, she told the Council that she did not intend to participate, and regarded the appeal as being one instituted by the Council itself.

49    I have some doubt as to whether the Council could, in this fashion, cure its earlier error, particularly in the light of the plaintiff’s position that she did not then wish to proceed with the appeal. In saying this I am conscious that she delayed for a very long time before conveying that position to the Council. Nevertheless, she had embarked by that time on a course of litigation which she was entitled, and wished, to pursue. She made it plain, well before the Appeal Committee met, that she did not intend to participate, and did not wish to be seen as the moving party in the appeal. In those circumstances I would, in the ordinary course, be inclined to think that the Appeal Committee’s processes and decisions were invalid. For the reasons that follow, I do not find it necessary to reach a concluded view on this aspect of the matter.

50    This is an area in which it seems to me appropriate to exercise the Court’s discretion to refuse to make any of the orders sought. The fact is that the plaintiff has failed to establish error in relation to the decision of the Committee; I am unable to see that she has been disadvantaged in any way by the processes and decisions of the Appeal Committee. To grant the orders sought by the plaintiff in relation to the decisions of the Appeal Committee would be to reinstate the decisions of the Committee of Inquiry which were considerably more adverse to her than those of the Appeal Committee. The effect of this, in my view, is that the plaintiff has failed to establish a sufficient basis for the grant of discretionary orders in relation to the decision of the Appeal Committee.

51    The consequence of these conclusions is that the Summons should be dismissed. I so order. Any previous order that subsist are discharged. The plaintiff is to pay the Council’s costs of the proceedings.

*********

Last Modified: 09/25/2000