Ridley v The Australasian Institute of Mining and Metallurgy - [2018] WASC 37

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RIDLEY -v- THE AUSTRALASIAN INSTITUTE OF MINING AND METALLURGY [2018] WASC 37

CORAM: MASTER SANDERSON

HEARD: 23 JANUARY 2018

DELIVERED : 23 JANUARY 2018

PUBLISHED : 7 FEBRUARY 2018

FILE NO/S: CIV 2715 of 2017

BETWEEN: JAMES EDWARD RIDLEY
Plaintiff
AND
THE AUSTRALASIAN INSTITUTE OF MINING AND METALLURGY
Defendant

Catchwords:

Injunction - Application where it is alleged defendant has breached rules of natural justice - Turns on own facts

Legislation:

Nil

Result:

Injunction granted

Category: B

Representation:

Counsel:

Plaintiff: Mr B H Taylor
Defendant: Ms T L Jonker

Solicitors:

Plaintiff: Mills Oakely
Defendant: HWL Ebsworth Lawyers

Case(s) referred to in judgment(s):

Calvin v Carr [1980] AC 574
Rush v WA Amateur Football League (Inc) [2007] WASCA 190; (2007) 35 WAR 101

MASTER SANDERSON: This was the plaintiff's application for an interim injunction seeking to restrain the defendant through its Ethics Committee from proceeding with a complaint dated 8 July 2016 against the plaintiff. At the conclusion of the hearing I issued the injunction sought by the plaintiff. I indicated that I would provide reasons for my decision. These are those reasons.
At the outset I should make the point that this was an application for an interim injunction. Accordingly I was required to determine whether there was a serious question to be tried and where the balance of convenience lay. In determining both of those issues I was required to give consideration to the relevant facts. But I was not required to determine finally any issue of fact or law and I did not do so. These reasons are designed to show why I found in favour of granting the injunction. But they are deliberately brief and incomplete so as not to prejudice any future determination of the issues between the parties.
The plaintiff's application was supported by two affidavits he swore - the first on 10 October 2017 and the second on 22 December 2017. The defendant relied upon an affidavit of Jennifer Stiffe affirmed 21 December 2017. The relevant facts are drawn from these three affidavits.
The plaintiff is a geologist. As at the date of the swearing of his first affidavit he was a director and principal geologist of Ridley Mineral Resource Consulting Pty Ltd (Ridley Mineral). By the time the matter came on for hearing he had taken a position as a resource geologist with Ardea Resources Ltd. I will have more to say about the plaintiff's employment later in these reasons.
It is clear the plaintiff is a very experienced geologist. He obtained a Bachelor of Science degree in geology in 1985 and has worked for over 30 years managing and evaluating resources. He has been a member of the defendant since 1991. The defendant was incorporated by Royal Charter in 1955. It has as its objects and purposes the promotion and advancement of the science and profession of engineering with special reference to mining and metallurgy. In short it is the professional body concerned with monitoring the performance of geologists. It has a Code of Ethics and a complaints procedure which is at the heart of the issue between the plaintiff and the defendant.
In or about April 2016 Ridley Mineral was engaged by a publicly listed company Metalicity Ltd to undertake a ground up review of the available exploration data and previous resource estimates and provide updated mineral resource and exploration target estimates for the Admiral Bay Project located approximately 140 km south of Broome. The plaintiff undertook the necessary work and on 4 July 2016 signed what is known as a 'Competent Person consent form'.
It is unnecessary for present purposes to go into detail with respect to the report. Suffice it to say the plaintiff says the report was completed to the best of his ability and in conformity with relevant professional standards. However a complaint was made to the defendant about the report. In general terms the complaint alleged the plaintiff had engaged in unprofessional conduct. The complaint was made to the defendant. That triggered the defendant's complaints procedure.
On or about 7 December 2016 the defendant's Complaints Committee wrote to the plaintiff notifying him of the complaint. The letter asked for a written response. On 9 January 2017 the plaintiff provided a detailed written response. On 16 May 2017 the Complaints Committee wrote to the plaintiff 'to update [the plaintiff] regarding the progress of the Complaints Committee investigation'. The letter then went on relevantly to say:
A Committee has taken into account your comprehensive response, as well as the findings of a confidential independent review of the allegations, as provided by an experienced JORC practitioner.
The letter then provided some details of the findings of the Complaints Committee and said as there had been 'potential breaches' of the code of conduct the matter was being referred to the Ethics Committee under by‑law 26(d)(v).
Clause 26 of the defendant's by‑laws deals with 'complaints'. Clause 26(e) and (f) are in the following terms:
(e)A complaint referred to the Ethics Committee under By‑Law 26(4)(v) for hearing and determination must be referred as expeditiously as is reasonable, and the member against whom the complaint was made shall be advised that this process is being followed. The Ethics Committee shall deal with all complaints directed to it by the Complaints Committee and any appeals against Complaints Committee decisions brought before it.
(f)A member against whom a complaint alleging a breach of ethics is made shall be entitled to notice in writing of the grounds of the complaint and to a reasonable opportunity to be heard in respect of such complaint before the Ethics Committee, and the procedure to be adopted in respect of an ethics complaint shall be at the discretion of the Ethics Committee. The Ethics Committee may obtain independent or legal advice on evidence before it, but cannot seek additional evidence or bring an ethics complaint against any member of its own accord.
It is clear this by‑law involves a process which has three parts. First, the member being given notice in writing of the grounds of complaint. Second, after notice was given there would be a hearing before the Ethics Committee. Third, after the hearing the Ethics Committee would make a determination.
The first thing to note is that a member, in this case the plaintiff, is 'entitled to a notice in writing of the grounds of the complaint'. In fact no such notice was given to the plaintiff. By letter dated 8 September 2017 the Ethics Committee wrote to the plaintiff advising it had found that he was in breach of the Code of Ethics. So not only was the plaintiff not advised in writing of the grounds of the complaint he was not given the opportunity to attend a hearing. The letter went on as follows:
The rationale behind the Ethics Committee's finding has been provided to allow you and [sic] opportunity to submit any new information that could influence this decision, prior to the conclusion of this process. Such information should be submitted to the AusIMM before COB on 22 September 2017. (original emphasis)
So what the Ethics Committee was seeking was any new information which might be in the plaintiff's possession. They emphasised the information had to be 'new'. The Ethics Committee said they had taken into account the written response the plaintiff had provided to the Complaints Committee. They may well have thought that was complete and comprehensive. Either way the plaintiff was not provided with any opportunity to put his version of events to the Ethics Committee prior to a determination being made. The determination having been made the plaintiff was provided with the opportunity to put on further evidence so long as that evidence was 'new'.
Once that point is reached it is unnecessary to take the matter any further. The principles of natural justice apply to any decision by an association to suspend or expel a member unless those principles are expressly or by necessary implication excluded by the rules of the association. That principle was established by any number of cases and confirmed in this jurisdiction in Rush v WA Amateur Football League (Inc) [2007] WASCA 190; (2007) 35 WAR 101. It is clearly arguable in this case that not only are the rules of natural justice not excluded by the defendant's by‑laws but that the proper procedure has not been followed and the plaintiff has not been afforded natural justice. In my view there is no question but that a serious question to be tried has been established.
There is one matter which was raised by the defendant which requires comment. It was the defendant's submission that the appeal procedure in cl 26 ought be allowed to run its course because any defects in the procedure to date might well be rectified by the way the appeal was handled. This submission was based upon the decision of the Privy Council in Calvin v Carr [1980] AC 574. For present purposes the facts of the case are irrelevant. In dealing with a submission that an appeal process could rectify defects in a disciplinary hearing process Lord Wilberforce said:
Their Lordships regard this as a decision that in the context, namely one of regulations concerning establishments procedures, justice can be held to be done if, after all these procedures have been gone through, the dismissed person has had a fair hearing and put his case. It is thus an authority in favouring the existence of the intermediate category, but not necessarily one in favour of a general rule that first instance defects are cured by an appeal. Their Lordships are also of opinion that the phrase 'hearing of evidence de novo', though useful in that case, does not provide a universal solvent. What is required is examination of the hearing process, original and appeal as a whole, and a decision on the question whether after it has been gone through the complainant has had a fair deal of the kind that he bargained for (594).
The appeal process in cl 26 is found in cl 26(i). It reads as follows:
A decision of the Ethics Committee may be appealed. An appeal may be made to, and considered by an independent third party acceptable to both the Board and the appellant.
The difficulty with the provision is that it is so vague as to be virtually unworkable. For instance what happens if the plaintiff and the defendant are unable to agree on 'an independent third party'. There is no timeframe for the appeal and no indication as to whether or not an appeal once lodged acts as a stay or whether or not any penalty imposed by the Ethics Committee could apply while the appeal is determined. To leave the plaintiff at the mercy of such a process when he has established that this is a serious question to be tried would be both unfair and unreasonable.
Turning then to the balance of convenience, it is clear if the disciplinary process proceeds there is a real risk the plaintiff will not be able to continue to work for Ardea Resources Ltd. Appearing as attachment JER‑27 to the plaintiff's affidavit of 22 December 2017 is a copy of his employment contract. That employment contract anticipates his signing off on certain reports for his employer. If his membership of the defendant was either suspended or terminated he may well not be able to engage in his profession. That would cause him considerable hardship. That being so the balance of convenience clearly favoured the granting of the injunction.
It was for these reasons I made orders restraining the defendant continuing with its disciplinary process pending final determination of this action. The costs of the application were reserved.