Mitchell v Royal New South Wales Canine Council Ltd - [2001] NSWCA 162

No judgment structure available for this case.

Reported Decision:
52 NSWLR 242

New South Wales

Court of Appeal

CITATION: Mitchell v Royal New South Wales Canine Council Limited [2001] NSWCA 162

FILE NUMBER(S): CA 40364/00

HEARING DATE(S): 14/08/01

JUDGMENT DATE:
27 August 2001

PARTIES :

Colleen Terris Mitchell v Royal New South Wales Canine Council Limited

JUDGMENT OF: Mason P at 1; Stein JA at 2; Ipp AJA at 3

LOWER COURT JURISDICTION : Supreme Court

LOWER COURT
FILE NUMBER(S) : SC 11356/99

LOWER COURT
JUDICIAL OFFICER : Simpson J

COUNSEL: P Roberts SC/ M Green (Appellant)
R Beech-Jones (Respondent)

SOLICITORS: Horowitz & Vilinsky (Appellant)
Henry Davis York (Respondent)

CATCHWORDS: VOLUNTARY ASSOCIATIONS - disciplinary proceedings - jurisdiction of court to intervene - nature of charges made by voluntary association - duplicitous charges - unfairness and ambiguity of charges. D

CASES CITED:
Scandrett v Dowling (1992) 27 NSWLR 483
Australian Football League v Carlton Football Club Limited [1998] 2 VR 546
Dickason v Edwards (1910) 10 CLR 243
Hayman v Governors of Rugby School (1874) LR 18 Eq 28
Johnson v Miller (1937) 59 CLR 467
Walsh v Tattersall (1996) 188 CLR 77
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
Duncan v Medical Disciplinary Committee [1986] 1 NZLR 537
R v General Medical Council, Ex parte Gee [1986] 1 WLR 226
Gee v General Medical Council [1987] 1 WLR 564

DECISION: (1) The appeal is upheld (2) The orders made by Simpson J are set aside (3) The decision and orders made by the Committee of Inquiry held on 2 February 1999 are declared to be void (4) The decision and orders made by the Appeal Committee held on 15 September 1999 are declared to be void (5) The respondent to pay the appellant's costs of the proceedings before Simpson J and this appeal (6) The respondent to have a certificate under the Suitors' Fund Act, if qualified.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

MASON P
STEIN JA
IPP AJA

COLLEEN TERRIS MITCHELL v ROYAL NEW SOUTH WALES CANINE COUNCIL LIMITED

Facts:

The appellant is a breeder and judge of Papillon dogs, she is also is a member and director of the respondent, which is a voluntary association. The appellant was charged, in late 1998 with an offence of “misconduct” arising from false statements made by the appellant during various campaigns for her election as a director of the respondent. A disciplinary committee of the respondent found the appellant guilty of misconduct and ordered that she retract the false statements or pay a $2,500 fine. The appellant appealed this decision to the respondent’s appeal committee and while initially refused, an appeal did take place. The appeal was allowed in part with a fine of $100 substituted as the penalty, however during this process the appellant commenced an action in the Supreme Court for orders setting aside the decision of the original committee of inquiry. The summons to set aside the original decision was heard by Simpson J and dismissed. The appellant appeals this decision.

Several arguments were raised on appeal however only the following were continued:

(a) That the Committee of Inquiry failed to make essential findings of fact, and

(b) The findings of the Committee of Inquiry were ambiguous, resulting in gross unfairness to the appellant.

HELD
(i) Per Ipp AJA, Mason P and Stein JA agreeing

The respondent, by virtue of its articles of association had power to convene a committee to carry out inquiries and investigations in relation to misconduct or breach of its regulations. These articles, regulations and provisions provided a structure for the conduct of any inquiry or investigation and definitions of misconduct and dishonest or prejudicial conduct.

Whilst the respondent had in place its own internal disciplinary procedures the courts have a discretionary power to intervene in the internal affairs of voluntary tribunals. The power is usually regarded as being derived from the presence of a contract or consensus among members of voluntary organisations but may also be based on broad principles of justice.

(Scandrett v Dowling (1992) 27 NSWLR 483 and Australian Football League v Carlton Football Club Limited [1998] 2 VR 546 discussed)

(ii) Per Ipp AJA, Mason P and Stein JA agreeing

The two arguments raised by the appellant are best understood by reference to the specific charge of misconduct which she faced. The charge itself was duplicitous in that while identified as a single charge of “misconduct” it in fact contained elements of at least two separate charges. The rule against duplicitous charges is a matter of elementary fairness, to protect against the injustice that arises where a person charged does not know what exactly they have been charged with or found guilty of.

(Johnson v Miller (1937) 59 CLR 467, Walsh v Tattersall (1996) 188 CLR 77, Vrisakis v Australian Securities Commission (1993) 9 WAR 395, Duncan v Medical Disciplinary Committee [1986] 1 NZLR 537, R v General Medical Council, Ex parte Gee [1986] 1 WLR 226, Gee v General Medical Council [1987] 1 WLR 564 discussed)

(iii) Per Ipp AJA, Mason P and Stein JA agreeing

In relation to the first argument the Committee of Inquiry failed to make reference to any mental element involved in the misconduct, such that there was no finding that the false statements were dishonestly, recklessly or negligently. From the failure to refer to this necessary mental element the findings of the Committee of Inquiry are materially ambiguous or defective and are incapable of grounding the misconduct charge.

(iv) Per Ipp AJA, Mason P and Stein JA agreeing

In relation to the second argument the duplicitous nature of the charge resulted in the findings of the Committee of Inquiry being contrary to the principles of common justice, unfair in a material respect and requiring the intervention of the Court.

(1992) 27 NSWLR 483

[1998] 2 VR 546

(1910) 10 CLR 243

(1874) LR 18 Eq 28

(1937) 59 CLR 467

(1996) 188 CLR 77

(1993) 9 WAR 395

[1986] 1 NZLR 537

[1986] 1 WLR 226

[1987] 1 WLR 564

ORDERS

******

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40364/00

SC 11356/99

MASON P
STEIN JA
IPP AJA

Monday 27 August 2001

COLLEEN TERRIS MITCHELL v ROYAL NEW SOUTH WALES CANINE COUNCIL LIMITED

JUDGMENT

1 MASON P: I agree with Ipp AJA.

2 STEIN JA: I agree with Ipp AJA.

3 IPP AJA:

4 The respondent is the Royal New South Wales Canine Council Limited, a voluntary association. The appellant is a member and director of the respondent.

5 Towards the end of 1998 the respondent charged the appellant with a single offence of “misconduct” as defined by its articles of association. The misconduct was said to arise from false statements the appellant allegedly made in various campaigns she conducted for election as a director of the respondent. On 2 February 1999, a Committee of Inquiry, appointed by the respondent to hear the charge, found the appellant guilty.

6 By way of penalty, the Committee of Inquiry required the appellant to retract, in writing, the statements she had made. The retraction was to be in terms specified by the Committee and made by the April issue of the respondent’s journal, otherwise the appellant was to pay a fine of $2,500.

7 An appeal against the decisions of the Committee of Inquiry ensued (in controversial circumstances) to an Appeal Committee appointed under the respondent’s articles of association. The appellant did not participate in the hearing of the appeal. On 15 September 1999 the Appeal Committee allowed the appeal in part. It varied the penalty imposed by the Committee of Inquiry by substituting a fine of $100 for the entirety of that penalty.

8 Before the Appeal Committee had handed down its decision, the appellant commenced proceedings by summons in the Supreme Court for orders setting aside the decision and orders made by the Committee of Inquiry. The relief claimed was later amended to incorporate claims for orders setting aside the decision and orders made by the Appeal Committee.

9 The matter came before Simpson J who dismissed the appellant’s summons. The appellant now appeals against the decision of her Honour.

10 Several arguments were raised by the appellant but Mr Roberts SC, senior counsel for the appellant, was stopped save in regard to one category of arguments, and the appeal proceeded only in regard to the latter.

11 The arguments in question were as follows:

(a) The Committee of Inquiry failed to make certain findings of fact that were essential to its finding that the appellant was guilty of misconduct. The absence of these essential findings meant that the finding of guilt was fundamentally flawed.

(b) The findings of the Committee of Inquiry were ambiguous in material respects and thereby resulted in gross unfairness to the appellant.

12 The appellant is a breeder of Papillon dogs. She is also qualified internationally as a judge of all breeds of dogs. Unless she continues to be a member of the respondent, she will not be able to obtain work as a judge of dogs.

13 Simpson J inferred that the appellant derived income from her practice as a judge of dogs and also inferred that the appellant’s accreditation as a judge had some bearing on her business activities as a breeder. Accordingly, her Honour held, the finding that the appellant was guilty of misconduct carried with it “clear potential financial implications” and, additionally, there were likely to be professional implications concerning the appellant’s reputation as a judge and breeder of dogs. The respondent did not contend that her Honour was wrong in these respects.

14 In 1978 the appellant became a member of the Papillon (Dog) Club of New South Wales Inc and in 1981 she became a member of the committee of that club. From 1982 to 1984 she acted as the Club’s publicity officer.

15 The appellant became involved in the preparation of a handbook which was eventually published in 1982 or 1983 under the title “Papillons in Australasia 1983”.

16 In 1992 the appellant stood for election to the board of directors of the respondent. In support of her campaign she published a statement in the respondent’s journal setting out her credentials for election. In that statement was the following passage:

“Past publicity officer and committee member of Papillon Club - financed and published the first breed history and handbook”.

17 The appellant was elected to the board. In 1995 and 1998 she again stood for election and on each occasion re-published a statement in the same terms. On each occasion she was re-elected.

18 On 19 June 1998 the secretary of the Papillon Club wrote as follows to the manager of the respondent concerning the appellant’s election statement:

“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 advertisement. The Club feels a retraction from Mrs Mitchell should appear in the Viewpoint column”.

19 This letter led to a complaint of misconduct being preferred against the appellant and the appointment of the Committee of Inquiry with the consequences I have set out above.

20 Article 21(a) of the respondent’s articles of association empowered the board of directors to cause inquiries and investigations to be conducted in relation to any alleged misconduct or breach of the articles or regulations by a member.

21 Article 21(b) empowered the board to:

“[I]mpose 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”.

22 Article 84 empowered the board to make 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 of penalties”.

23 Regulations were made pursuant to article 84 and provided for the appointment of a committee of inquiry from the members of a “judicial panel”. The Committee of Inquiry that found the appellant guilty of misconduct was so appointed.

24 Section 5.2 of the regulations provided:

“The member concerned shall be informed in writing of any complaint and be provided with a copy of all documents in the possession of the Committee necessary to enable the member to understand the nature of the complaint and of any case that he may have to answer”.

25 The regulations provided that a Committee of Inquiry was not to be bound by any rules of evidence and a Committee was empowered to conduct an inquiry with the minimum of formality and in such manner as it saw fit (section 5.6). No person was to be legally represented before a Committee of Inquiry (section 5.8).

26 Section 6.1(a) provided:

“The Committee shall publish a written report on the facts as found by the inquiry and the penalty (if any) the Committee considers appropriate to impose in the circumstances”.

27 Section 6.7 provided:

“The decision of the Committee as contained in the report shall be binding on all members and shall have effect, unless the member concerned appeals to an Appeal Committee pursuant to regulation 7.1, in which the Committee’s decision shall be stayed … pending the outcome of the appeal”.

28 Section 7.1 provided for an appeal to an Appeal Committee against the decision of the Committee of Inquiry appointed pursuant to s 6. Section 7.1 provided further “that an appeal shall only lie if :

(a) there is fresh evidence that could not have been placed before the Committee, or

(b) the member has been denied natural justice by the Committee.”

PROVIDED FURTHER THAT save in respect of any such fresh evidence, the Appeal Committee shall not reopen any factual issue determined by the Committee”.

29 Section 7.4 provided that the Appeal Committee might make such decision in relation to the appeal as it considered appropriate, including allowing or dismissing the appeal, amending the decision of the Committee of Inquiry, or remitting the matter for re-hearing, “and that decision shall be binding on all members”.

30 Further, as to the finality of a decision made by the Committee, article 85(a) provided:

“If a question shall arise as to … the rights or obligations … of a member … as to any matter or thing arising out of or governed by the articles or regulations such question may be determined by the Board of Directors … and the determination of the Board of Directors … shall be final and binding and shall be given effect to accordingly”.

31 Article 1(32) defined “misconduct” 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 [the respondent] into discredit or the member concerned as a breeder, owner or member into discredit; …”

32 Article 17 provided:

“17. (a) A member shall strictly observe and act in conformity with and not otherwise than in accordance with the articles and regulations of [the respondent].

(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 [the respondent], or

(v) contrary to the spirit and intent of the articles, regulations, or any code, resolution, policy or direction of [the respondent] or any committee.”

33 Article 20 provided:

“No member shall conduct himself in such a way as to bring [the respondent] into discredit or to bring himself as a breeder … or member into discredit”.

34 The jurisdictional basis of the exercise of the court’s discretionary power to intervene in the affairs of voluntary tribunals has long been recognised. The discretion will more readily be exercised where (as in the present case) a person’s livelihood substantially depends upon membership of the association.

35 Despite the long-standing recognition of the court’s power to intervene, there is no unanimity as to its source and it has been explained on varying grounds.

36 Generally, the power is ordinarily regarded to be derived from consensual arrangements or contracts between the members of the association concerned: see Scandrett v Dowling (1992) 27 NSWLR 483 at 504 to 505 and at 507 per Mahoney JA. Once it is established that a decision is in breach of the arrangements or contract between the parties, a provision that the decision is final will not prevent the court from intervening.

37 It has further been held that, in certain circumstances, the court has power to intervene, irrespective of the terms of any contract that may be applicable. In Australian Football League v Carlton Football Club Limited [1998] 2 VR 546, Tadgell JA (at 552) observed:

“I do not think it is satisfactory to regard a tribunal’s obligation to act, for example, honestly and in good faith, as depending on any implication of a contractual term … it goes against the grain to say that an obligation to act honestly and in good faith should be a matter of implication of a term of … a contract …. The law does not countenance the establishment or the existence of any body for the purpose of its acting dishonestly or without good faith. Rather than implying a term that a body will act honestly and in good faith the law axiomatically assumes that that will be done: the body has no option that depends on the presence or absence of an implied term. At least, therefore, the legal obligation of a body to act honestly and in good faith goes hand in hand with an obligation to accord procedural fairness, but it may go further. The courts ought, I should think, in cases where they assume jurisdiction to interfere with decisions of domestic tribunals at all, to treat the power which any domestic tribunal may exercise as exercised defectively unless exercised honestly and in good faith.”

38 In the course of his extensive discussion of the topic, Tadgell JA said (at 550):

“Statutes aside, the courts have been disposed to interfere in a limited way with decisions of private or domestic tribunals in order to protect private rights that have been adjudged to deserve protection, including rights in property. The concept of property has been broadly interpreted for this purpose and, in cases within that category, I believe that there is no decision of a private or domestic tribunal with which the courts will refuse to interfere if interference be considered necessary for the attainment of justice”.

39 The approach of Hayne JA in the same case was not dissimilar to that of Tadgell JA. His Honour said at 568:

Dickason v Edwards

Dickason

Lee v Showmen’s Guild of

Great Britain

Wednesbury

Associated Provincial Picture Houses Limited v Wednesbury Corporation

40 I return now to the two arguments that were advanced on the appellant’s behalf, to which I earlier referred. In summary these were, firstly, that the Committee of Inquiry failed to make certain findings of fact that were essential to a finding that the appellant was guilty of misconduct. Secondly, the findings of the Committee of Inquiry were ambiguous in material respects and thereby resulted in gross unfairness to the appellant.

41 The first argument in essence is based on a breach of contract, that is to say, the appellant submits that, by the articles, before a finding of misconduct could be made, the Committee of Inquiry was required to make certain essential factual findings. It did not make those findings; therefore it had no power under the articles to find the appellant guilty.

42 The second argument is based on lack of fairness in a fundamental part of the proceedings, namely, the terms of the decision that was pronounced. Fairness is an ambulatory concept in that it depends on the particular circumstances and it usually involves matters of fact and degree. But a material lack of fairness, if established, is itself a form of injustice. Thus, following the approach of Tadgell and Hayne JJA in Australian Football League v Carlton Football Club Limited, the jurisdiction to intervene on the basis of the second argument depends on the appellant establishing that the terms of the Committee of Inquiry’s decision were contrary to “fundamental principles of common justice” (per O’Connor J in Dickason v Edwards (1910) 10 CLR 243 at 254) or unfair in a material respect (cf Hayman v Governors of Rugby School (1874) LR 18 Eq 28 at 68) or that intervention is “necessary for the attainment of justice” (per Tadgell JA in Australian Football League v Carlton Football Club Limited).

43 The two arguments advanced on the appellant’s behalf are best understood in the light of the precise terms of the charge of misconduct brought against her.

44 The charge was in the following terms:

“[The appellant] 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. Article 20 of the Memorandum and Articles of association in that the conduct brought herself, as a Member, into discredit.

4. [Item 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.”

45 It can be seen that the single charge of misconduct is based on breaches of five separate provisions of the respondent’s Articles. These separate breaches are set out in the form of five particulars to the allegation of misconduct. The first particular alleges dishonest conduct on the part of the appellant. The remaining four particulars all involve allegations that the appellant was guilty of conduct that brought herself as a member into discredit.

46 Thus, the elements of the misconduct alleged in particulars 2 to 5 are the same, but differ from those in particular 1. The difference arises from the fact that misconduct involving dishonesty is an essential element of a breach of article 17(b)(i), as alleged in particular 1, but dishonesty forms no part of the misconduct alleged in particulars 2 to 5 .

47 Accordingly, while the charge brought against the appellant alleged only one offence, there were at least two distinct offences contained in the charge. The charge in these terms was, therefore, duplicitous: Johnson vMiller (1937) 59 CLR 467 at 489; see also Walsh v Tattersall (1996) 188 CLR 77 (at 84 per Dawson and Toohey JJ).

48 In Vrisakis v AustralianSecurities Commission (1993) 9 WAR 395 at 438 I remarked that the vice of duplicity is injustice; that is, unfairness in the trial, an unfairness that may take many forms. Similar observations were made in Duncan vMedical Disciplinary Committee [1986] 1 NZLR 513 at 535 to 536 and on appeal at [1986] 1 NZLR 537 at 545.

49 In R v GeneralMedical Council, Ex parte Gee [1986] 1 WLR 226 Mann J, at first instance, said (at 238 to 239):

“A person should know of what it is that he has been found guilty (if guilty he should be found). He cannot know if he has been found guilty on a duplicitous charge whether he has been found guilty of one offence or of many. He should have the opportunity of submitting that there is no case to answer in relation to a particular occasion. That he cannot do if he is confronted with a duplicitous charge. A person cannot make a sensible plea in mitigation unless he knows of the number of his offences. The rule concerning duplicity seems to me to be a rule of elementary fairness which should apply to a charge before the Professional Conduct Committee”.

Gee v General Medical Council

Walsh v Tattersall

.

50 I do not suggest that the rule against duplicity that is applicable in criminal cases applies necessarily and to its full extent in disciplinary proceedings of voluntary associations. But, as the rule is one of “elementary fairness”, the principles that have been developed in criminal law are useful guidelines in determining the nature of the prejudice that may flow from duplicitous charges in such proceedings and the consequences that should ensue.

The decision of the Committee of Inquiry

51 The decision of the Committee of Inquiry was contained in a written report as required by s 6.1(a) of the regulations. The report commenced:

“The Committee was to inquire into and report in relation to an allegation that Mrs C Mitchell was guilty of misconduct by causing to be published in The Canine Journal of [the respondent] in May 1992, May 1995, May 1998, a claim that she did finance and publish the first Papillon Breed History and Handbook, being claims not correct in truth and in fact”.

52 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”.

53 After a brief discussion of some of the evidence the report went on to say:

“After a short adjournment, 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 [the respondent]in 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 [sic] 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 in to the preparation of this Handbook, but she cannot allege that it was she alone who financed and published this Book”.

54 The report was entirely silent as to whether the Committee found the appellant guilty of misconduct by reason of dishonesty or whether it found merely that she was guilty of misconduct on the grounds of conduct discreditable to her as a member.

55 The charge of misconduct against the appellant was based solely on the publication of an alleged false statement. Misconduct arising in this way must involve some mental element on the part of the appellant that, together with the false statement, results in conduct that is improper. The making of a false statement alone will not ordinarily constitute misconduct. For example, if the false statement is made inadvertently, as a result of a misunderstanding and without carelessness, it is not likely to constitute misconduct. It is not desirable or necessary to give a catalogue of the mental elements that may result in a false statement being misconduct. Suffice it to say that well-known examples are dishonesty, reckless indifference to whether the statement is true or not, and gross carelessness.

56 The report of the Committee of Inquiry omits any reference to any mental element involved in the misconduct it found. As I have pointed out, the finding of misconduct is based merely on the finding that the appellant’s statement that she financed and published the first Papillon Breed History and Handbook was not true. There is no finding that this statement was made dishonestly, or with reckless indifference as to its truth, or even negligently.

57 Mr Beech-Jones, counsel for the respondent, submitted that, properly construed, the report contained no finding of dishonest conduct and the Committee’s finding of misconduct involved only a finding that the appellant was guilty of discreditable conduct in accordance with particulars 2 to 5 of the charge. This submission rested entirely on the Committee’ failure to make any reference to dishonesty. Mr Beech-Jones submitted that in the light of the absence of an express finding of dishonesty, it should be inferred that the finding was one of discreditable conduct.

58 I do not accept this submission. Not only does the report make no reference to dishonesty, it makes no reference to any other mental element relating to the false statement it found, and, indeed, makes no reference to discreditable conduct. There is thus no reason to infer that the Committee found discreditable conduct rather than dishonesty.

59 I would add that having regard to the fine of $2500 imposed in the event of a retraction as required not being published, there is reason to think that the Committee may well have found dishonesty. The fine is a substantial one that would not ordinarily be imposed unless the misconduct was particularly serious.

60 On the other hand, the terms of the Committee’s report also give rise to a real possibility that it made no finding whatever as to a mental element. This inference arises particularly as a result of the duplex charge. But for the duplicity in the charge, it might have been open to argument that the requisite mental element should be inferred. In other words, had the charge been one of misconduct based solely on dishonesty, a guilty verdict based on the finding that the statement in question was false might be open to the argument that the Committee, self-evidently, held that the representation was made dishonestly. Had the charge been based solely on discreditable conduct, the requisite mental element for a guilty verdict might, arguably, similarly be inferred. But in the circumstances, inferences of this kind cannot be drawn.

61 Additionally, the statement by the Committee that the issue before it was the narrow question whether the appellant did in fact finance and publish the first Papillon Breed History and Handbook suggests that the Committee may not have thought it necessary to make any finding as to the appellant’s mental state when she made the statement found to be false.

62 Accordingly, on the basis of the report of the Committee of Inquiry, it is simply not apparent whether the Committee found dishonesty established, or some lesser mental element, or simply did not apply its mind at all to the need to find an appropriate mental element.

63 Accordingly, in my opinion, the findings of the Committee of Inquiry are materially ambiguous and defective. I accept the argument advanced on behalf of the appellant that the report does not disclose findings adequate to ground a verdict of guilty of misconduct under the respondent’s articles of association and regulations.

64 In R v GeneralMedical Council, Ex parte Gee the medical practitioner who was faced with a duplex charge argued that he would be materially prejudiced in the conduct of his defence because he would not be able to plead guilty to one offence contained within the charge and not guilty to the other. Furthermore, a guilty verdict would not inform him of which particular offence he had been found guilty and he would be prejudiced in making submissions on penalty.

65 These arguments were answered in the Court of Appeal (at [1986] 1 WLR 1247) as follows. Nicholls LJ said (at 1262):

“If, in the event, some but not all of the facts alleged in the charge should be proved to the satisfaction of the committee, I consider that fairness to the applicant will require that the announcement in this case should be in terms that make plain which facts have been proved and which have not”.

“The chairman must say, concisely, no doubt, but clearly, which of the facts alleged in each charge, with reference to the names in the particulars, have been found proved. Even if, therefore, the charge is technically duplicitous, the practitioner will be told which parts of the charge - or which charges within the charge - have been found proved”.

66 In the House of Lords (at [1987] 1 WLR 564) Lord Mackay said (at 575) that, in the particular circumstances, there was no unfairness in a procedure which gave rise, in effect, to a duplicitous charge of serious professional misconduct where the disciplinary tribunal makes plain, in good time, which of the allegations of fact, if any, it has found proved, so that the practitioner is not prejudiced in the further conduct of the case once the relevant finding has been made.

67 The Committee of Inquiry did not make plain which of the allegations of fact, if any, it found proved. Thus, it is not apparent whether the appellant was found guilty of dishonesty or discreditable conduct or both. This has two consequences. Firstly, it was not possible for the appellant to make appropriate submissions in connection with the penalty that should have been imposed. Secondly, unless the finding is set aside, her reputation will remain tainted by the possibility that she was found guilty of the more serious offence of misconduct involving dishonesty.

68 In my opinion, for the reasons I have set out, the findings of the Committee of Inquiry were contrary to fundamental principles of common justice, or unfair in a material respect, and intervention by the Court is necessary for the attainment of justice.

69 I have noted that the Appeal Committee allowed in part an appeal against the decision of the Committee of Inquiry by varying the penalty imposed by substituting a fine of $100 for the entirety of the penalty imposed by the Committee of Inquiry. It did not interfere with the finding of misconduct.

70 In the course of the report issued by it, the Appeal Committee said that it was unnecessary for it to consider each of the “five claims, breach of which would lead to a determination that the member has been guilty of misconduct”. The Appeal Committee considered that the facts established, at least, that the appellant’s claim that she published and financed the Papillon Dog History and Handbook was not likely to be regarded by a reasonable person “as reflecting the way in which the maker of the claim should properly conduct herself”. It found, therefore, that the appellant had correctly been found guilty of discreditable conduct and hence misconduct.

71 In making these findings the Appeal Committee went further than the Committee of Inquiry. As mentioned, the Committee of Inquiry made no separate finding of discreditable conduct.

72 While section 7.4 of the regulations gave the Appeal Committee wide powers “in relation to the appeal”, it did not expressly empower the Appeal Committee to make factual findings necessary to cure fundamental defects in a finding by the Committee of Inquiry that a member has been guilty of misconduct. Such a power is not ordinarily possessed by an appellate tribunal and there is nothing in the regulations or articles which supports the regulations being so construed. Indeed, section 7.1, which provides that the Appeal Committee “shall not reopen any factual issue determined by the Committee” may be thought to be inconsistent with such a construction.

73 In my opinion, the Appeal Committee acted outside its powers in making the findings in question.

74 I propose the following orders:

(a) The appeal is upheld.

(c) The decision and orders made by the Committee of Inquiry held on 2 February 1999 are declared to be void.

(d) The decision and orders made by the Appeal Committee held on 15 September 1999 are declared to be void.

(e) The respondent to pay the appellant’s costs of the proceedings before Simpson J and this appeal.

(f) The respondent to have a certificate under the Suitors’ Fund Act, if qualified.

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Citations

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Wylde v Attorney-General (NSW) ex rel Ashelford [1948] HCA 39

Scandrett v Dowling [1992] NSWCA 222

Johnson v Miller [1937] HCA 77

CITATION:	Mitchell v Royal New South Wales Canine Council Limited [2001] NSWCA 162
FILE NUMBER(S):	CA 40364/00
HEARING DATE(S):	14/08/01
JUDGMENT DATE:	27 August 2001
PARTIES :	Colleen Terris Mitchell v Royal New South Wales Canine Council Limited
JUDGMENT OF:	Mason P at 1; Stein JA at 2; Ipp AJA at 3

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	SC 11356/99
LOWER COURT JUDICIAL OFFICER :	Simpson J

COUNSEL:	P Roberts SC/ M Green (Appellant) R Beech-Jones (Respondent)
SOLICITORS:	Horowitz & Vilinsky (Appellant) Henry Davis York (Respondent)
CATCHWORDS:	VOLUNTARY ASSOCIATIONS - disciplinary proceedings - jurisdiction of court to intervene - nature of charges made by voluntary association - duplicitous charges - unfairness and ambiguity of charges. D
CASES CITED:	Scandrett v Dowling (1992) 27 NSWLR 483 Australian Football League v Carlton Football Club Limited [1998] 2 VR 546 Dickason v Edwards (1910) 10 CLR 243 Hayman v Governors of Rugby School (1874) LR 18 Eq 28 Johnson v Miller (1937) 59 CLR 467 Walsh v Tattersall (1996) 188 CLR 77 Vrisakis v Australian Securities Commission (1993) 9 WAR 395 Duncan v Medical Disciplinary Committee [1986] 1 NZLR 537 R v General Medical Council, Ex parte Gee [1986] 1 WLR 226 Gee v General Medical Council [1987] 1 WLR 564
DECISION:	(1) The appeal is upheld (2) The orders made by Simpson J are set aside (3) The decision and orders made by the Committee of Inquiry held on 2 February 1999 are declared to be void (4) The decision and orders made by the Appeal Committee held on 15 September 1999 are declared to be void (5) The respondent to pay the appellant's costs of the proceedings before Simpson J and this appeal (6) The respondent to have a certificate under the Suitors' Fund Act, if qualified.