Rush v WA Amateur Football League (Inc) - [2007] WASCA 190

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: RUSH -v- WA AMATEUR FOOTBALL LEAGUE (INC) [2007] WASCA 190

CORAM: WHEELER JA
PULLIN JA
BUSS JA

HEARD: 6 JUNE 2007

DELIVERED : 19 SEPTEMBER 2007

FILE NO/S: CACV 134 of 2005

BETWEEN: PETER RUSH
Appellant
AND
WA AMATEUR FOOTBALL LEAGUE (INC)
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :COMMISSIONER ODES QC
Citation  :RUSH -v- WA AMATEUR FOOTBALL LEAGUE (INC) [2005] WASC 206
File No  :CIV 2245 of 2002

Catchwords:

Administrative law - Domestic tribunal - Suspension of person from playing football or acting as coach or official - Amateur association - No effect on property, income or reputation - Consensual relationship but no contract between parties - No jurisdiction to deal with issues - Procedural fairness - Need for separate hearing on penalty

Legislation:

Associations Incorporation Act 1895 (WA) (repealed), s 2, s 3, s 4A, s 5(3), s 7(1), s 7(2), s 7A
Associations Incorporation Act 1987 (WA), s 3(1), s 5(1), s 5(2), s 9(1), s 16, s 17, s 18, s 19, s 24(1), s 38, s 48, sch 1, sch 2
Incorporated Societies Act 1908 (NZ)
Incorporated Societies Amendment Act 1953 (NZ), s 4
Interpretation Act 1984 (WA), s 32(1)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr M S Macdonald
Respondent: Mr J R B Ley

Solicitors:

Appellant: McDonald Rudder
Respondent: Michael Whyte & Co

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

Barnes v Australian Telecommunications Commission (1989) 25 FCR 283
Barr v Victorian Football Association (Unreported, VSC, 5 June 1979)
Calvin v Carr [1979] 1 NSWLR 1
Cameron v Hogan (1934) 51 CLR 358
Carter v NSW Netball Association [2004] NSWSC 737
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95
Forge v Australian Securities and Investments Commission (2004) 213 ALR 574
Freedman v Petty [1981] VR 1001
Gamilaroi Boomerangs Sports Aboriginal Corporation v Members of New England Group 19 [1999] NSWSC 495
Hall v NSW Trotting Club Ltd [1977] 1 NSWLR 378
Malone v Marr [1981] 2 NSWLR 894
McKinnon v Grogan [1974] 1 NSWLR 295
McRitchie v Greyhound Racing Control Board [1982] AILR 533
Plenty v Seventh‑Day Adventists Church of Port Pirie (1986) 43 SASR 121
Re Railway Appeal Board; Ex parte The Western Australian Government Railways Commission (1999) 21 WAR 1
Rush v WA Amateur Football League (Inc) [2003] WASC 70
Scandrett v Dowling (1992) 27 NSWLR 483
Skelton v Australian Rugby Union Limited [2002] QSC 193
Smith v South Australian Hockey Association Inc (1988) 48 SASR 263
Stollery v Greyhound Racing Control Board (1972) 128 CLR 509
Wilcox v Kogarah Golf Club Ltd (1995) 14 ACLC 421

WHEELER JA: I agree with Pullin JA.
PULLIN JA: This is an appeal against the judgment of Mr Commissioner Odes QC, dated 23 September 2005, dismissing the appellant's action. In the action the appellant had claimed a declaration that the decision of the respondent to suspend the appellant from acting as a club player, coach or official within the WA Amateur Football League (Inc) ('WAAFL') for the remainder of the 2002 season and the whole of the 2003 season is void and of no effect.

Facts

The respondent was incorporated in February 1984 when, according to the Commissioner, 'its Constitution was lodged and registered' [69]. On 28 April 1987 the respondent 'again lodged its Constitution with the Commissioner of Fair Trading, but this time it included with the Constitution its by‑laws which were then registered' [69]. The Commissioner noted that the reason for the 1987 lodgement did not emerge in the evidence. The Commissioner wrongly referred to the lodgement on 29 April 1987 as having occurred in 1985, but no point turns on that fact.
The appellant was, at the time of the proceedings before Commissioner Odes, 46 years old, and had been involved in the playing of amateur football since 1978. He coached teams and filled positions in the management of the Bayswater Club, including President of that club. Amongst the papers before the court was a document entitled 'Application for Registration' as a player. In that document the appellant stated that he agreed to abide by the Constitution and by‑laws of the WAAFL. The suspension did not affect any property or income. The appellant did not plead that the suspension affected his reputation.
The incident which set in train steps leading to his suspension occurred on 19 August 2000, when the Bayswater D Reserve team played a team from the Willetton Amateur Football Club. The appellant was the player/coach of the Bayswater team which contained three players who were not registered with the respondent, which is the governing body of amateur football in the State. Shortly before the end of the match, one of the unregistered players disagreed with a decision of the field umpire. The unregistered player punched the field umpire. The umpire sustained a fractured jaw, was taken to hospital and the police were summoned. On 29 August 2000 the Management Committee of the respondent convened a meeting to which the appellant was summoned. At the meeting the circumstances of the incident were aired and, because the appellant had

knowledge that the players concerned were not registered and had played under the assumed names of registered players, he was disqualified from playing, coaching, or being an official in any of the member clubs affiliated to the respondent for a period of 10 years.

The appellant then commenced proceedings in the Supreme Court to set aside the disqualification. An interlocutory injunction was granted by Templeman J, suspending the implementation of the disqualification of the appellant pending the outcome of that action. On 29 November 2001, the parties consented to an order as a result of which the respondent agreed to set aside the disqualification decision and the appellant consented to the dismissal of the action. It was envisaged at the time that fresh charges would be brought against the appellant by the respondent.
By letter dated 18 March 2002, the Executive Officer of the respondent notified the appellant that its Management Committee had appointed an Investigation Tribunal to investigate the incident. The letter informed the appellant that Mr John Prior, a legal practitioner, would be the sole member of the Tribunal and that he was being requested to investigate the following allegations:
1.That you [the appellant] knowingly allowed players to play in the above game and other games, who were ineligible to play in the WAAFL competition, as they were not registered by your club as required under WAAFL By-law 10.
2.That you knowingly, or could have been reasonably be expected to know, that you signed Statutory Declarations when not authorised to do so, as per WAAFL By-laws, Appendix 4.
3.That you deliberately aided and abetted a player to fill out and sign a registration form under a false name because you knew that the player was suspended in another competition.
The letter to the plaintiff relevantly continued as follows:
You are reminded of By-laws 3.1, 8.2.4 and 9.4 which allow the Investigation Tribunal to impose such penalties and fines authorised by the League's By-laws as it deems fit, make recommendations to the management committee, or it may give a caution.
You may provide such witnesses or any other evidence you believe will assist you in your defence against these allegations as you wish.
There is no appeal against an Investigation Tribunal decision (By-law 3.2), which is final.
The hearing took place on 17 April 2002, the appellant and his witnesses gave evidence, and during this hearing the Vice‑president of the Bayswater Club presented a letter of good character in relation to the appellant, pointing out the disastrous effect a suspension of the player would have on the club. At the conclusion of this hearing, Mr Prior informed the appellant that he would consider the evidence and that the appellant would be contacted in due course. The appellant was subsequently notified that a resumed hearing would take place on 27 June 2002.
Before that date, and on 29 May 2002, Mr Prior wrote to the Mr Neil Judge, then the Acting Executive Officer of the respondent, enclosing a copy of a report of what transpired at the first hearing (the 'Prior report'). The Prior report recommended that of the three allegations listed in the letter of 18 March 2002, two charges for by‑law breaches should be preferred against the appellant. Mr Prior, in a covering letter, said that a copy of the report should be sent to the appellant. He also advised Mr Judge to request the appellant to advise the respondent 'of his pleas to the two charges and whether he seeks a further hearing on the matter' or whether he could 'determine the charges on the evidence … heard on 17 April 2002'. The Prior report concluded with a statement that Mr Prior was satisfied that the appellant should be charged with breaches of the by‑laws as follows:
1.As the coach of the Bayswater Amateur Football Club D Reserves team on 19 August 2000 at Willetton, Mr Rush knowingly allowed unregistered players to play in breach of By-law 9.4 of the WAAFL.
2.As an official of the Bayswater Amateur Football Club, Mr Rush witnessed statutory declarations of persons at the Bayswater Amateur Football Club during the 2000 WAAFL season when he knew or should well have known that he was not suitably qualified, in breach of By‑law 9.4 of the WAAFL.
By-law 9.4 provides:
Any player or official who acts or conducts himself in a manner prejudicial to the good order, management, control and administration of amateur football commits an offence under these Rules, shall be liable to a fine not exceeding $500 and in the case of a player, disqualified from playing during such time as deems fit or, in the case of an official in any capacity either, permanently, or during such time as determined
By‑law 3.1 conferred upon the Investigation Tribunal the powers under by‑law 8.2.4, which in turn empowered it to '[i]mpose such penalties or fines authorised by these Rules as it deems fit, or it may give a caution'.
Mr Judge deposed that he sent a copy of the Prior report to the appellant on 31 May 2002 requesting him to advise the respondent of his pleas to the two charges. The letter also requested the appellant to state whether he wished to seek a further hearing, or whether he would agree to Mr Prior determining the charge on the evidence heard. No response was forthcoming. As a result, Mr Prior decided that a second hearing would be necessary. The Executive Officer told the appellant that the second hearing would be held on 27 June 2002. It is common ground that the letter of 31 May 2002 was addressed to the appellant at '12 Landel Place' in Redcliffe when the appellant's correct address was '12 Andell Place'. The appellant denied that he received the letter and the enclosed Prior report. However, he saw the Prior report at the hearing on 27 June 2002. The appellant was uncertain how he came to know about the date of the second hearing, but it was well before 27 June 2002.
At the hearing on 27 June 2002, and having seen the Prior report, the appellant was asked what he pleaded to the charges, and he pleaded not guilty. Mr Prior told him that he would take the evidence adduced at the first hearing into account and asked him whether he wished to call further evidence. The appellant did wish to do so and he tendered the minutes of the meeting of the Bayswater Club dated 1 August 2000 (exhibit 15) and a letter from Mr Zelesco (exhibit 14), the secretary of the club. Both the minutes and Mr Zelesco's letter stated that the policy of the club was to play unregistered players rather than forfeit the game which would occur if the team was short of the requisite number of players. The appellant also called a witness, Mr Martin Smith, who gave evidence. The appellant said that he wished to call a further witness (Chris Fillipos) who was on his way to the hearing. Mr Prior asked the appellant what the witness would say and, when told what it was by the appellant, Mr Prior indicated that the evidence had already been led and that it was unnecessary to hear Mr Fillipos. The proposed evidence related to the policy of the Bayswater Amateur Football Club, which was already reflected in the minutes of the meeting of that club and in the Zelesco letter tendered by the appellant. Mr Prior then asked the appellant about his playing career and his activities at the club and the hearing then ended.
On 19 July 2002, Mr Prior sent to Mr Judge a final report recording what occurred at the first and second hearings in some detail. Mr Prior came to the conclusion, for the reasons stated in his report, that the appellant was guilty of both charges. He imposed a penalty of suspension for the remainder of the WAAFL season 2002 for the first charge (playing unregistered players) and suspension for the whole of the WAAFL season 2003 for the second charge (witnessing statutory declarations on a number of occasions when he was not authorised to do so). The suspension in each case was a suspension as club player, club coach or club official.
Mr Prior's conclusions were accepted by the Management Committee at its meeting on 22 July 2002. The appellant was informed of his suspension.
The appellant then commenced the action which led to the decision of Commissioner Odes. This action commenced on 4 September 2002. The appellant applied for, and was granted, an interlocutory injunction by Hasluck J on 4 April 2003, suspending the implementation of the respondent's decision pending the outcome of the action. McKechnie J had also earlier suspended the implementation of the respondent's decision for a short time towards the end of the 2002 season to permit the appellant to play in the grand final.
A great number of issues were raised by the parties and dealt with by the Commissioner in his reasons. Only some are the subject of the notice of appeal.

Grounds of appeal

There are five grounds of appeal and an overriding issue about justiciability.
Ground 1 complains that an amendment to by‑law 3, which authorised an Investigation Tribunal to impose penalties set out in by‑law 8.2.4, was of no effect because there was non-compliance with the provisions of the Associations Incorporation Act 1987 (WA) ('1987 Act'), which required that amendment to the rules had to be in accordance with the provisions of the 1987 Act. As a result, the appellant submitted that the charges could only have been heard by a Protests and Disputes Committee, which had to consist of two members, and that the Commissioner erred in concluding otherwise. In short, the appellant contended that if by‑law 3 was not validly amended, the tribunal constituted by Mr Prior was not authorised by the respondent's rules to impose any penalty.
The following grounds are alternatives to ground 1 because they all assume that cl 3 was validly amended. Ground 4 alleges that Mr Prior charged the appellant when cl 3.2 of the by‑laws required the Management Committee to charge him. The ground alleges that the Commissioner erred in concluding otherwise.
Ground 3 alleges that the Commissioner erred in concluding that Mr Prior, in his capacity as Investigation Tribunal, had power under by‑law 9.4 to impose penalties. The appellant contends that in the circumstances by‑law 9.4 authorises only the Protests and Disputes Tribunal to impose the penalty.
Ground 5 alleges that the Commissioner erred in failing to conclude that Mr Prior's decision was an 'unreasonable decision', in the sense that Mr Prior was alleged to have made a finding that unregistered players would have played irrespective of the appellant's actions and yet elsewhere held that the appellant allowed the unregistered players to play.
Ground 2 alleges that the Commissioner erred in not concluding that the rules of procedural fairness were breached, because after the charges were found to be proved, there was no second hearing afforded by Mr Prior to hear submissions in mitigation.
Two other grounds, ground 6 and 7 were abandoned by the appellant.

Jurisdiction

An issue was raised by the respondent about whether all, or any, of the issues were justiciable. Reliance was placed by the respondent on Cameron v Hogan (1934) 51 CLR 358.
The appellant in his statement of claim pleaded that:
3.By an agreement in writing between the [appellant] and [respondent] made in or about 1978, the [appellant] was registered with the [respondent] as a player.
4.It is an express term of the said agreement in effect that the [appellant] would, as a player in the amateur football competition governed by the [respondent], abide by the Rules of the [respondent].
5.It is an implied term of the said agreement, to be implied as a matter of law, that the defendant would abide by and follow its own Rules.
The respondent in its defence admitted that the appellant had been registered since about 1978 as a player with clubs which were members of the unincorporated WAAFL, and with the respondent after incorporation, but denied that such registration was affected pursuant to an agreement (ie contract) between the parties; denied that there were terms or implied terms as pleaded in pars 4 and 5 of the statement of claim and pleaded that the respondent was a voluntary association.
The appellant did not lead or contend that any property right, that his right to earn income, or that his reputation were affected by the decision. The appellant does not contend that he is a member of the respondent. Those circumstances led the respondent to contend that the complaints raised by the appellant were not justiciable.
The Commissioner began his consideration of this issue by referring to what was said in Cameron v Hogan (supra) at 370 per Rich, Dixon, Evatt and McTiernan JJ, namely:
Judicial statements of authority are to be found to the effect that, except to enforce or establish some right of a proprietary nature, a member who complains that he has been unjustifiably excluded from a voluntary association, or that some breach of its rules have been committed, cannot maintain any action directly founded upon that complaint.
The Commissioner noted that Cameron's case involved an unincorporated voluntary association, which gave rise to problems associated with the standing of members to sue, but said that he would leave that aside because of its inapplicability in the instant case, and noted that the general approach in Cameron had been applied 'by and large' for the last 70 years. He referred to Gamilaroi Boomerangs Sports Aboriginal Corporation v Members of New England Group 19 [1999] NSWSC 495, Smith v South Australian Hockey Association Inc (1988) 48 SASR 263 at 264 - 265; Shepherd v SA Amateur Football League Inc (1986) 44 SASR 579 and Skelton v Australian Rugby Union Limited [2002] QSC 193.
In Skelton's case, Chesterman J noted that there were many cases in which courts have intervened where exclusion or suspension from membership of a club or association had occurred in breach of the organisation's rules or of natural justice. However, as his Honour noted, all of those cases were predicated upon the person involved suffering some diminution of rights of property, livelihood or trade. To that category of case may be added cases where a person's reputation is damaged: see Starke J in Cameron v Hogan at 383, Plenty v Seventh‑Day Adventists Church of Port Pirie (1986) 43 SASR 121 at 124 and Carter v NSW Netball Association [2004] NSWSC 737 at [107].
There was some debate about the proper interpretation of the Commissioner's reasons at [51] and [52]. The Commissioner said:
51 The [respondent] accepted the [appellant's] application for registration and has in fact admitted in the pleadings that the [appellant] is a registered player under its rules. Thus, although the relationship between the [appellant] and the [respondent] is not contractual by virtue of membership, it is nevertheless consensual in the sense that the [appellant] has submitted to the jurisdiction of the [respondent] in order to play the game.

The Commissioner then referred to a part of Templeman J's judgment in the interlocutory proceedings for an injunction, where Templeman J said that he thought it was arguable that a contract should be implied between the appellant and the respondent to the effect that the respondent would abide by its by‑laws in dealing with the appellant. The Commissioner continued:
52 It is clear from the above by virtue of the application for registration and by the registration of the [appellant] as a member who consented to abide by the [respondent's] constitution and by‑laws, that the parties contemplated the creation of enforceable legal rights and duties which required the mutual observation of them: cf Cameron v Hogan (1934) 51 CLR 358. I agree with the views expressed by Templeman J above and the parties ‑ correctly, in my view - presented their respective cases on the basis of a consensual relationship between them as outlined above.
The parties on this appeal are at issue as to whether the Commissioner decided that there was a contract or not. The appellant contended that if the reasons should be interpreted as he contended, namely that the Commissioner had found that there was a contract, then there was no question that the court had jurisdiction.
It appears from the Commissioner's statement that 'although the relationship … is not contractual … it is nevertheless consensual', he meant that there was a 'consensual compact' (to use the words of Priestley JA in Scandrett v Dowling (1992) 27 NSWLR 483 at 513 and of Young J in Wilcox v Kogarah Golf Club Ltd (1995) 14 ACLC 421 at 425), meaning the expression of shared purposes rather than the expression of contractually binding rights and duties enforceable in a court of law. In Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95, in the joint judgment of Gaudron, McHugh, Hayne and Callinan JJ, there was a discussion about the subject of intention to create contractual relations. Their Honours noted that circumstances may show that parties did not intend, or cannot be regarded as having intended, to subject the agreement to the adjudication of the courts. The joint judgment makes it plain that there must be an objective assessment of the state of affairs between the parties as distinct from identification of any uncommunicated subjective reservation or intention that either party may harbour. It is necessary to decide what would be objectively conveyed by what was said or done having regard to the circumstances.
The circumstances here were that the respondent was an incorporated body concerned with the running of amateur football. Neither the players nor the officials do what they do for any financial reward. The appellant, in applying for registration to play football, was obliged to sign a statutory declaration that he was an amateur, was not playing football for pecuniary gain, and was not in receipt of any promise or inducement of gain. The application form advised the appellant that no player should be permitted to take part in any match under the control of the council unless he was an amateur. The application for registration was also signed by the Secretary of the Bayswater club, stating that the secretary had stressed the importance of the appellant being an amateur. The by‑laws provided for the imposition of fines to be paid by players or officials in certain circumstances, but the only sanction for non‑payment of a fine was that the player was disqualified from playing football and an official disqualified from acting in any capacity during the period of non‑payment (cl 9.4). The by‑laws established in‑house tribunals to resolve disputes.
Those circumstances must have suggested to the appellant and the respondent at the time the appellant applied for registration that the resolution of any disagreements which might arise between the respondent and the appellant would not involve litigation in the courts. As a result, it seems reasonable to conclude that when Commissioner Odes said, at the conclusion of [52], that there was a 'consensual relationship' between the parties, he meant to indicate that, although there had been mutual promises, there was no intention to create contractual relations. There was no attempt made by the appellant to contend that, because the form of relief was declaratory in nature, this should have justified the intervention of the court, which would have in turn raised arguments of the kind which were dealt with in Plenty v SDA Church (supra).
In the particular circumstances of this case, in the absence of any property, income or reputational interests, this Court has no jurisdiction to decide issues arising out of the consensual but non‑contractual relationship between the parties. The appellant did not submit that Cameron v Hogan could be ignored because it was decided in 1934. Wootten J came perilously close to saying this in McKinnon v Grogan [1974] 1 NSWLR 295. Intermediate courts have no authority to ignore a binding High Court decision on the basis that it might be thought to be out of touch with the times. In any event, this case shows that Cameron v Hogan is not out of touch with the times. The case ran for five days before Commissioner Odes, involved another action which had to be settled, involved three interlocutory injunction applications and then this appeal to the Court of Appeal. The dispute has involved the time of seven Judges. There has been an absurd amount of time, money and valuable court resources consumed in resolving a dispute which has no effect on property, income or reputation and which is about whether the appellant could play footy or give up some of his leisure hours to coach or help with administration for no financial reward. Counsel for the appellant conceded before this Court that all that was left by the time the matter was heard on appeal were the questions of 'pride' and 'costs'. Apart from a few games of amateur football, that was all the case was ever about.
In case others disagree with the conclusion that the court has no jurisdiction, the five grounds of appeal are dealt with below.

Ground 1

By this ground the appellant contends that by‑law 3 was not validly amended. It will be necessary to give consideration to provisions not only of the 1987 Act, but also the Act repealed by that Act, namely the Associations Incorporation Act 1895 (WA) ('the 1895 Act').
The 1895 Act in s 3 provided that an Association might be incorporated under the Act by a trustee or person, authorised by a majority of the members of the Association, filing with the Registrar a memorial containing certain information, an affidavit verifying the contents of the memorial and a copy of 'the rules and regulations or Trust or Settlement deed of the Association', together with an affidavit verifying the contents of the copy of the rules and regulations or trust or settlement deed of the Association.
After filing the memorial and the rules and regulations or trust or settlement deed 'as the case may be', the trustee or person had to advertise a notice in a prescribed form. After advertising, the Registrar was then authorised to grant to the trustee or person a Certificate of Incorporation. Section 5 then provided that the Association would, within 28 days after the 'making of any additional rules, regulations or trusts, or any alteration to any rules, regulations or trusts, file with the Registrar, a copy of the additional rules, regulations or trusts or the alteration of the rules, regulations or trusts'.
The Commissioner found that:
the defendant was incorporated in February 1984 when its Constitution was lodged and registered. In 1985 the defendant again lodged its Constitution with the Commissioner of Fair Trading, but this time it included with the Constitution its by‑laws which were then registered. The reason for the 1985 lodgement has not emerged in the evidence.
It is common ground that the reference to 1985 in the passage just quoted should be a reference to 28 April 1987.
The 1987 Act commenced on 25 July 1988. It repealed the 1895 Act. Schedule 2 of the 1987 Act contains savings and transitional provisions and cl 1 reads:
Every association that was, immediately before the commencement of this Act, an association incorporated under the repealed Act, shall, upon the commencement of this Act, be deemed to be an association incorporated under this Act, and the rules of the association shall, subject to alteration under this Act, be the rules of the association as registered at the commencement of this Act.
Section 16 of the 1987 Act read:
The rules of an association do not conform to the requirements of this Act unless they include provision in respect of each of the matters that are specified in Schedule 1 and the rules are otherwise consistent with this Act.
However, cl 4 of Sch 2 provided that:
Section 16 (which specifies matters to be provided for in the rules of an incorporated association) does not apply to any association that was immediately before the commencement of this Act incorporated under the repealed Act.
Section 17(1) provided that an incorporated association might alter its rules by special resolution but not otherwise. Section 17(2) provided that, within one month of the passing of a special resolution altering its rules, an incorporated association shall lodge with the Commissioner notice of the special resolution setting out particulars of the alteration together with a certificate certifying that the resolution was duly passed as a special resolution. Section 17(3) provided that an alteration of the rules of an incorporated association did not take effect until s 17(2) was complied with. The word 'rules' was not defined in the 1987 Act.
The result is that if the 'rules' of the respondent included the by‑laws then they could not be amended save by special resolution. On 9 March 1992 the Management Committee resolved to amend by‑law 3. This resolution was not a special resolution of the respondent. Before 9 March 1992, by‑law 3 read:
There shall be an Investigation Tribunal which will be constituted by either a Chairman sitting alone or a Chairman with one or more other persons as determined by the Management Committee.
The Tribunal shall forward the findings to the Management Committee for authorisation and action.
The Management Committee resolved to amend by‑law 3 so that it read:
3-1There shall be an Investigation Tribunal constituted by either a chairperson sitting alone or a chairperson with one or more other persons as determined by the management committee. The tribunal shall be empowered to act in accordance with the powers laid down in By‑law 8.2.4.
3-2The investigating chairperson or tribunal shall exercise the following functions …
3-2-1Hear all charges or protests referred to it by the management committee or Executive Officer under the By‑laws of the League.
The reference to by‑law 8.2.4 was a reference to a by‑law which authorised the imposition of penalties or fines authorised by the rules.
The Commissioner at [45] of his reasons said:
It is common ground between the parties that if the 1986 by‑laws are found by me to be the operative provisions, the [respondent] must fail.
The Commissioner then turned to consider the question about whether the 'rules' of the respondent included the by‑laws. The appellant submitted that the respondent's Constitution and by‑laws which, for reasons never revealed, got onto the file of the Commissioner of Fair Trading and which were stamped with a date 28 April 1987, were part of the 'rules' of the respondent and that therefore the amendment by the Management Committee was invalid.
The appellant tendered into evidence a certificate of the Commissioner for Fair Trading pursuant to s 38 of the 1987 Act which read:
This is to certify that:
1.The above named association was incorporated as of the Twenty Third day of February 1984; and
2.The attached copy of the above‑named association's rules is a true copy of those rules lodged with the Commissioner for Fair Trading as at the Twenty Fifth day of July 1988, the Nineteenth day of August 2000 and the Twenty Seventh day of June 2002.
The attached copy document consisted of the Constitution and the by‑laws. Section 38 provided that a certificate of the Commissioner, to the effect that the copy of the rules of an incorporated association specified in the certificate is a true copy of those rules as lodged with the Commissioner at the date specified in the certificate, is evidence of the matter or matters so specified.
Notwithstanding the certificate, Commissioner Odes held that the by‑laws were not part of the rules. The Commissioner said, at [72]:
I am of the view that the 'rules' referred to in the Act are the constitutional rules that are to comply with the provisions of Sch 1 which deals with matters such as the name of the association, its objects and purposes, the qualification for membership, entrance fees and subscriptions, the composition of a body having the management of the incorporation which makes provision for the election of members to that body, their term of office, the grounds upon which their position on the Committee may become vacant, the quorum and procedures of meetings of the Committee, and of general meetings of members, as well as the manner in which the funds of the association are to be controlled, and other matters listed in Sch 1 of the Act.
The Commissioner noted that Hasluck J, in the injunction proceedings Rush v WA Amateur Football League (Inc) [2003] WASC 70, came to a similar conclusion when he said, at [38]:
In my view, s 17 [of the Act] is directed to constitutional rules dealing with matters of the kind set out in Sch 2 of the Act [this should read Sch 1]. The prescribed procedure does not extend to incidental matters or matters not expressly covered by the Schedule such as disciplinary powers.
Commissioner Odes agreed with Hasluck J. On that basis it was held that it was not necessary to amend by‑law 3 by special resolution and that the Management Committee amendment was effective.
Ground 1 challenges that conclusion of the Commissioner. The arguments advanced at the hearing below were advanced again before this Court. A point not touched on by the Commissioner but referred to on this appeal was the effect of cl 10 of the Constitution. Clause 10 referred to the powers of the Management Committee, and cl 10(b) states that the Management Committee should have the power:
To make, repeal or amend by‑laws, not inconsistent with this constitution or the provisions of the … [1895 Act] …
In my opinion, if the by‑laws are part of the rules, then this provision, which purports to circumvent s 17, would be invalid.
The critical question, therefore, is whether the by‑laws are part of the 'rules'. If there had been no certificate tendered, I would agree with Hasluck J and the Commissioner that the 'rules' would normally be taken to refer to the Constitution. If there had been some evidence to explain that the by‑laws were accidentally filed, then the evidentiary effect of the certificate might have been overcome. But there was no such evidence.
The word 'rules' is a word of broad meaning. A rule according to ordinary meaning is a principle or regulation governing conduct, action, procedure or arrangement: see Macquarie Dictionary. Thus both the Constitution and the by‑laws satisfy that description. The Constitution and by‑laws which were placed on the file in 1987 were certified to be the rules of the respondent and, in my opinion, it was not possible in the face of the evidence afforded by that certificate, and in the absence of any other contrary evidence, to conclude that the rules were constituted only by the Constitution and that the by‑laws did not form part of them. As a result, if the Court had had jurisdiction I would have upheld ground 1.
In view of my conclusion about ground 1 it is not strictly necessary to dealt with the other grounds. However, once again, in case other minds differ on my conclusions on ground 1, I will dealt with them.

Ground 4 - Who charged the appellant

This ground assumes that ground 1 has been dismissed and that by‑law 3.2 is valid. The appellant contends that he was charged by Mr Prior, when cl 3.2.1 of the by‑laws provides that the Investigating Tribunal should hear all charges 'referred to it by the management committee or Executive Officer under the By‑laws of the League'.
The events leading to the hearing on 27 June 2002 are set out above. Mr Prior had prepared the Prior report which stated that the appellant should be charged with two breaches of the by‑laws, and the Executive Officer of the Management Committee then wrote to the appellant requesting the appellant to advise WAAFL of the pleas to the two charges contained in the Prior report.
The essence of the appellant's ground of appeal is that because he did not receive the letter, and because Mr Prior read out the charges to him, this means that Mr Prior charged him rather than him being charged in accordance with by‑law 3.2.
The Management Committee acted on Mr Prior's recommendation and made the decision to charge the appellant. Mr Prior merely read out the charges. If the Court had jurisdiction and I was wrong about ground 1, I would dismiss this ground.

Ground 3

The essence of the appellant's submissions in relation to this ground is that because by‑law 9.4, which stated that the player or official who committed the offence referred to in by‑law 9.4 was to be disqualified 'during such term as deems fit [sic]', was in existence at a time when there was only a Protest and Dispute Tribunal, that only the Protest and Dispute Tribunal could order disqualification. Clearly, there is some slight error in drafting because in context the verb in the phrase 'as deems fit' does not have a subject. 'Deems', in context, means 'think', and if the phrase is read 'as thought fit' it makes sense, although it still does not say who has to form the opinion about how long the period of suspension should be. It is true that when there was only a Protests and Dispute Tribunal then it would have been that Tribunal which had to form the opinion. However, once the Investigation Tribunal was given power to impose penalties, it was then entitled to impose the penalty of suspension. This is because the Tribunal was empowered to act in accordance with the 'powers laid down in by‑law 8.2.4'. By‑law 8.2.4 authorised the imposition of penalties or fines 'authorised by these rules as it deems fit'. That clause was expressing the functions of the Protests and Disputes Tribunal, but by‑law 3.2 adapted or applied the words of by‑law 8.2.4 to empower the Investigation Tribunal to order disqualification under by‑law 9.4.
If the Court had jurisdiction and I was wrong about ground 1 I would dismiss this ground.

Ground 5

This ground, although headed 'Unreasonable decision', is in fact a submission that there are inconsistent findings of fact revealed in Mr Prior's reasons. The appellant points to the passage in Mr Prior's report and to the sentence which reads:
In [the appellant's] defence, he gave evidence that his involvement in such breach was minimal, because the unregistered players would have played irrespective of his actions and at the time, such actions were condoned, if not encouraged, by the Bayswater Amateur Football Club, due to a shortage of players at the Club.
Mr Prior's report also said that this evidence was corroborated by some other evidence. The appellant contends that this sentence involved a finding that unregistered players would have played irrespective of his actions and was therefore inconsistent with the sentence which followed two paragraphs later where Mr Prior's report read:
His actions would also need to be considered in the factual circumstances that he was the team coach on the day in question and ultimately had the final decision as to who played, or whether it was appropriate to concede a forfeit for lack of registered players to comply with the minimum of 14 players required by the laws of Australian Football.

There is no inconsistency revealed. The first quoted portion of Mr Prior's report is referring to the evidence advanced in the appellant's defence and the second quoted portion is the finding. It is therefore not correct to say, as the appellant contends, that Mr Prior found that the unregistered players would have played irrespective of his actions and that the appellant had the final decision as to who played. Mr Prior's decision was that the appellant had the authority to make the decision as to who played. If the Court had jurisdiction and if I was wrong in relation to ground 1 I would have dismissed this ground.

Ground 2 - No hearing on penalty

It is true that there was no hearing after Prior found the charges to have been proved. The Commissioner said in relation to this contention at [156] ‑ [157]:
However, it is clear as the [appellant] admitted that he was questioned at some length by Prior as to his contribution to the game of football in general and his involvement with the Bayswater Club in particular (TS318-22), and that mitigatory evidence was in fact given at both hearings. Prior's evidence is to the same effect (TS527‑8). Again I refer to the Waldock letter handed in at the first hearing which was purely mitigatory in its nature (TS277, 280) and to the arguments proffered by the [appellant] at both hearings as to the reasons why, although he acknowledged that he allowed an unregistered player to play, he did so (TS245).
A perusal of the decision of Prior clearly indicates that he in fact considered the mitigatory evidence in imposing the suspension. After referring to the mitigatory evidence adduced at the two hearings (Ex 4), Prior, in imposing the penalty expressly took into account 'Mr Rush's significant and long-standing contribution to Western Australian Amateur Football, in particular through the Bayswater Amateur Football Club' as well as 'the period of time served of the original 10-year suspension imposed on 23 August 2000 until the Supreme Court injunction was ordered on 14 June 2001 (Approximately half a WAAFL season)' (Ex 4). There is in addition no suggestion either in the evidence placed before me or in relation to the [appellant's] response to the verdict (Background (i)) that the [appellant] would have called any further evidence in mitigation or that there was evidence of that kind available which he intended, but was not able, to call. Neither did [the appellant's] counsel in argument suggest that there might have been other evidence in mitigation which could have been adduced. It remains to deal with an authority contrary to the above conclusions.
The appellant now contends on appeal that there might have been other evidence in mitigation which could have been adduced. There is no challenge to the Commissioner's statement that counsel did not suggest to the Commissioner that there might have been other evidence in mitigation which could have been adduced. The appellant should not be permitted to raise for the first time on appeal something that was not suggested to the Commissioner. In any event, the contention about what evidence might have been led appears only in the submissions. No attempt was made to lead any further evidence on the appeal to support those submissions.
There remains only the submission made by the appellant that it is impossible to deal with matters of mitigation other than in a separate hearing after conviction. The appellant contends that the decisions of Hall v NSW Trotting Club Ltd [1977] 1 NSWLR 378, Malone v Marr [1981] 2 NSWLR 894; Forge v Australian Securities and Investments Commission (2004) 213 ALR 574 and Re Railway Appeal Board; Ex parte The Western Australian Government Railways Commission (1999) 21 WAR 1 compel this Court to conclude that it is always necessary to have a separate hearing to deal with issues of penalty. The respondent disputes that view of the authorities. The respondent contends that the Commissioner's decision reveals no error.
The Commissioner cited several authorities, including Calvin v Carr [1979] 1 NSWLR 1 at 12, to the effect that domestic tribunals are not expected to follow the formal procedures of courts of law. The Commissioner referred to the judgment of Holland J in Malone v Marr (supra), where his Honour said that the law demanded that a domestic tribunal, in dealing with alleged misconduct for which it has power to penalise, must always keep procedurally distinct the question of guilt and the question of penalty. The Commissioner said that a perusal of the judgment in Hall's case did not go as far as Holland J suggested. The Commissioner noted that in Hall the majority set aside the penalty on the basis that Hall had not been given the opportunity to be heard on the question of penalty. However, the Commissioner considered that the judgments in Hall's case did not indicate that a procedural separation between a finding of guilt and imposition of penalty must be rigidly followed in all cases. The Commissioner concluded that Hutley and Samuels JJA in Hall's case went no further than holding that the Tribunal was under a duty to hear the accused on the question of penalty. The Commissioner said (at [161] ‑ [163]):
Had that been their intention, one would have expected an in-depth discussion by their Honours of the authorities cited above signalling such a radical departure. Indeed the reliance by Samuels JA, who delivered the main majority judgment, upon Russell v Duke of Norfolk [[1949] 1 AER 109 (CA)] emphasising the diversity of domestic tribunals and the requirements of natural justice to be dependant upon the circumstances of the case (at 386) and upon Bowen's case [(1948) 77 CLR 601] emphasising the non-curial nature of procedures and evidence in domestic tribunals (at 386‑7) serves to underline the fact that his Honour's findings in Hall were directed at the circumstances of the case before him, and not at a fairly radical departure from the observations made in those authorities cited by him with apparent approval.
To the extent therefore that Holland J concluded that the majority in Hall intended to lay down a principle of procedural separation between a finding of guilt and the imposition of penalty by a domestic tribunal, I must, with the greatest respect, reluctantly disagree.
As stated above, in the instant case evidence in mitigation of penalty was not only adduced before Prior at both hearings but was clearly taken into account by him in imposing the suspension. I am therefore of the view that the failure to afford the plaintiff a separate opportunity to plead in mitigation did not in the circumstances of this case outlined above constitute a denial of natural justice.

It is true that some comments, particularly in Hall v NSW Trotting Club (supra) and Malone v Marr (supra) and Forge v ASIC (supra), contain some statements which may be read as suggesting that procedurally there must always be one hearing to determine guilt and a separate hearing to determine the penalty. However, I would adopt the view expressed by the authors of Judicial Review of Administrative Action, Aronson, Dyer and Groves (3rd ed) at 549 where, after referring to Hall v NSW Trotting Club, Calvin v Carr, Malone v Marr and other cases they said:
These cases have sometimes been explained on the basis that procedural fairness requires a distinct hearing on 'penalty'. The better view, we think, is that there is no absolute requirement to that effect. There must be adequate opportunity to address the question of penalty.
There was such an opportunity in this case. The appellant put forward his points in mitigation. The Commissioner's reasoning does not reveal error. If the Court has jurisdiction and if I were wrong in relation to ground 1 then I would dismiss this ground.
BUSS JA: The material facts and the grounds of appeal are summarised in the reasons of Pullin JA.

Jurisdiction

The facts of the present case are distinguishable from those in Cameron v Hogan (1934) 51 CLR 358 in that, at all material times, the respondent has been an incorporated association and the appellant has not been a member of the respondent.
The critical issue, in relation to jurisdiction, is whether the appellant and the respondent made an agreement which embodied mutual promises to observe and be bound by the respondent's constitution and by‑laws and, if so, whether the parties intended to create legally enforceable contractual relations.
In Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95, the High Court considered the principles relating to intention to create contractual relations in the context of an incorporated association formed for the promotion of Hellenic culture (including, but not limited to, religious and spiritual matters) which had engaged a clergyman to assume the position of Archbishop of the autocephalous Greek Orthodox Church in Australia. Gaudron, McHugh, Hayne and Callinan JJ said, at 105 ‑ 106 [24] ‑ [25]:

'It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty' (Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 92 CLR 424 at 457, per Dixon CJ, Williams, Webb, Fullagar and Kitto JJ). be a legally enforceable duty there must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement. Yet '[t]he circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts' (South Australia v The Commonwealth (1962) 108 CLR 130 at 154, per Windeyer J).
Because the inquiry about this last aspect may take account of the subject matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances (South Australia v The Commonwealth (1962) 108 CLR 130 at 154; Placer Development Ltd v The Commonwealth (1969) 121 CLR 353 at 367, per Windeyer J) not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. Because the search for the 'intention to create contractual relations' requires an objective assessment of the state of affairs between the parties (Masters v Cameron (1954) 91 CLR 353 at 362, per Dixon CJ, McTiernan and Kitto JJ; ABC v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548-549, per Gleeson CJ) distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word 'intention' is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened (Codelfa Construction Pty Ltd v State Rail Authority(NSW) (1982) 149 CLR 337 at 348-353, per Mason J; Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 76 ALJR 436; 186 ALR 289) It is not a search for the uncommunicated subjective motives or intentions of the parties.

Before this Court, the appellant asserted that the learned Commissioner had found that there was a contract between the appellant and the respondent, a material term of which was that the respondent 'promised to abide by its Constitution and by‑laws'. On the other hand, the respondent asserted that the learned Commissioner had found that the relationship between the appellant and the respondent was 'not contractual but consensual'. The relevant passages in the learned Commissioner's reasons are at [50] ‑ [52]:
It is common ground that the [appellant] is not a member of the [respondent]. According to the [respondent's] Constitution its members are the affiliated amateur football clubs, one of which is the Bayswater Club of which the [appellant] is a member (see cl 5 of the Constitution). The [respondent] however concedes that in order to become a member of the Bayswater Club and to play football for that club, it was necessary for the [appellant] to apply to the [respondent], the controlling body of the sport, to enable him to do so. The [appellant], in the course of his evidence, tendered an 'Application for Registration' dated 24 April 1996 (Ex 3) directed to the [respondent] in which he:
(i)indicated his wish to apply for a permit to play with the Bayswater Club;
(ii)certified that he was not at the time a player under suspension or disqualification from playing for any club in any league, and
(iii)agreed 'to abide by the constitution and by-laws of the league' (i.e. the [respondent]).
The [respondent] accepted the [appellant's] application for registration and has in fact admitted in the pleadings that the [appellant] is a registered player under its rules. Thus, although the relationship between the [appellant] and the [respondent] is not contractual by virtue of membership, it is nevertheless consensual in the sense that the [appellant] has submitted to the jurisdiction of the [respondent] in order to play the game. This relationship was put on the basis of an implied contract by Templeman J in the interlocutory proceedings referred to above, when he observed at [30] and [31] as follows:
'30 In my view, it is clear from the tenor of the application form and the statutory declaration, that registration as a player with the League is no mere formality. It requires the applicant to make a serious commitment which is reinforced by his agreement to abide by the Constitution and by‑laws of the League.
31… I therefore consider there is merit in the submission by counsel … that registered players, who had bound themselves to agree to abide by the Constitution and by-laws of the League, would be astonished to learn that they would have no redress against the League if it chose not to abide by its constitution and by-laws in its dealings with them. In short, I think it arguable that a contract should be implied between the [appellant] and the League to the effect that the League will abide by its constitution and by-laws in dealing with him. A similar conclusion was reached in Hawick v Flegg (1958) 75 WN (NSW) 255, 259.'
It is clear from the above by virtue of the application for registration and by the registration of the [appellant] as a member who consented to abide by the [respondent's] constitution and by-laws, that the parties contemplated the creation of enforceable legal rights and duties which required the mutual observation of them: cf Cameron v Hogan (1934) 51 CLR 358. I agree with the views expressed by Templeman J above and the parties - correctly, in my view - presented their respective cases on the basis of a consensual relationship between them as outlined above.
In my opinion, there is ambiguity as to the learned Commissioner's finding (if any) concerning the legal characterisation of the relationship between the appellant and the respondent.
The learned Commissioner found, correctly, at [51], that the relationship between the appellant and the respondent was not contractual 'by virtue of membership'. He then added that the relationship was 'nevertheless consensual in the sense that [the appellant] has submitted to the jurisdiction of [the respondent] in order to play the game'. According to the learned Commissioner, that consensual relationship was put on the basis of an implied contract by Templeman J in earlier interlocutory proceedings. However, Templeman J did not make a final determination as to the legal characterisation of the relationship. His Honour merely said that he thought it 'arguable' that a contract should be implied between the appellant and the respondent to the effect that the respondent would abide by its constitution and by‑laws in dealing with him.
The learned Commissioner said, at [52], that:
[T]he parties contemplated the creation of enforceable legal rights and duties which required the mutual observation of them: cf Cameron v Hogan (1934) 51 CLR 358. I agree with the views expressed by Templeman J above and the parties - correctly, in my view - presented their respective cases on the basis of a consensual relationship between them as outlined above.
The reference to 'the creation of enforceable legal rights and duties which required mutual observation of them', and the reference by way of comparison to Cameron v Hogan, suggest a finding that the parties intended to create legally enforceable contractual relations. Also, the learned Commissioner's agreement with the views expressed by Templeman J suggests that the learned Commissioner considered that the relationship between the parties was based on the implied contract which Templeman J had thought was arguable. The learned Commissioner then said, however, that the relationship between the parties was 'consensual'; that is, he did not describe it as 'contractual'.
If the learned Commissioner had found that there was a legally enforceable contract between the appellant and the respondent, in the terms alleged by the appellant, it is curious that he devoted substantial attention, at [53] ‑ [61], to examining Cameron v Hogan and later authorities concerning the enforcement of the constitution or rules of unincorporated or incorporated associations in circumstances where the constitution or rules did not constitute a legally enforceable contract between the parties or there was no legally enforceable contract that each of them would observe the constitution or rules.
Unfortunately, I am unable to discern, with sufficient assurance, from the learned Commissioner's reasons, what finding he made as to the legal characterisation of the relationship between the parties.
The appellant's grounds of appeal assume that the learned Commissioner found that there was a legally enforceable contract between the parties, in the terms alleged by the appellant. The respondent's written submissions assert to the contrary, but it did not file a notice of contention. The point was, however, raised in argument by this Court, and each of the parties made submissions as to the finding which the learned Commissioner made, and also, in substance, as to the finding which should have been made. In those circumstances, it is open to this Court to make its own determination as to the proper legal characterisation of the relationship between the appellant and the respondent.
I agree with Pullin JA, for the reasons he gives, that there was a 'consensual compact' between the appellant and the respondent, but that the compact was not intended to give rise to legally enforceable contractual relations. I also agree with his Honour that, in the particular circumstances of this case, relief is not available from the courts in relation to the respondent's by‑laws in that the matters of which the appellant complains are not alleged to have affected adversely any property, income or reputational interest.

Notwithstanding my conclusion in relation to the jurisdictional issue, like Pullin JA, I will consider the five grounds of appeal.

Ground 1: was by‑law 3 validly amended?

It is necessary, in considering whether by‑law 3 was validly amended, to determine whether the respondent's by‑laws were part of its 'rules and regulations' under the Associations Incorporation Act 1895 (WA) (the 1895 Act) and part of its 'rules' under the Associations Incorporation Act 1987 (WA) (the 1987 Act). The determination of that issue depends on the proper characterisation of the by‑laws in the context of the meaning to be ascribed to 'rules and regulations' under the 1895 Act and 'rules' under the 1987 Act.

Ground 1: the status of the respondent's constitution and by‑laws under the 1895 Act

In February 1984, the respondent was incorporated under the 1895 Act.
I will refer to the provisions of the 1895 Act as in force between February 1984 and 25 July 1988 (when the 1895 Act was repealed).
Section 3(1) provided that an Association (as defined in s 2) may be incorporated under the Act by a trustee or a person authorised by a majority of the members of the Association so to do, filing with the Registrar:
(a)a memorial in the prescribed form and containing the particulars therein required to be set forth, together with an affidavit by the trustee or person verifying the contents of the memorial; and
(b)a copy of the rules and regulations or Trust or Settlement deed of the Association, together with an affidavit by the trustee or person verifying the contents of the copy of the rules and regulations or Trust or Settlement deed of the Association.
By s 3(3)(a), after compliance by the trustee or person referred to in s 3(1) with certain advertising requirements, the Registrar was empowered, relevantly, to grant to the trustee or person a certificate of incorporation in the prescribed form.
Section 5(3)(a) required that within 28 days after 'the making of any additional rules, regulations or trusts, or any alteration to any rules, regulations or trusts', the incorporated Association file with the Registrar a copy of the additional rules, regulations or trusts or the alteration to the rules, regulations or trusts.
Section 7(2) empowered an incorporated Association to alter, vary or rescind, from time to time, any or all of 'its rules and regulations, or the provisions of its trust deed or deeds, and make new or additional rules and regulations or trusts'. The Act did not prescribe the manner or form of any such alteration, variation, rescission or addition. In particular, it did not specify that a resolution for the alteration, variation, rescission or addition must be passed by a specified majority of the members.
By s 7(1)(a), an incorporated Association 'with the sanction required by its constitution', was empowered, with the written approval of the Registrar, to change its name. By s 7A(1), an incorporated Association was empowered, 'with the sanction required by its constitution', to alter, vary, rescind or add to the objects for which it was constituted. That power was, however, subject to a proviso, namely, that no such alteration, variation, rescission of or addition to the objects would be of any force or effect unless and until the Attorney General issued a certificate in the terms stated in the proviso.
The 1895 Act did not define the terms 'rules and regulations', 'Trust or Settlement deed' or 'constitution' in relation to an Association or at all. Also, the 1895 Act did not refer to 'by‑laws'.
The term 'by‑law', in the context of a by‑law made by an incorporated or unincorporated body, ordinarily describes a provision which is of secondary or subsidiary importance to its constitutional or principal rules. Although the 1895 Act did not recognise 'by‑laws', s 4 of the Incorporated Societies Amendment Act 1953 (NZ), by contrast, empowered an incorporated society, relevantly, to make, amend or repeal regulations or by‑laws for purposes specified in its rules, provided that the regulations or by‑laws were not inconsistent with the Act or its rules. Section 4(1) and (2) provided:
(1)In addition to the matters specified in section six of the principal Act, the rules of any society may make provision empowering the society from time to time, by resolution in general meeting, to make, amend, or rescind regulations or by‑laws, not inconsistent with the principal Act or with the rules of the society, for such purposes as may be specified in that behalf in the rules.
(2)The making, amendment, or rescission of any regulations or by‑laws pursuant to any rules in accordance with this section shall not be deemed to be an alteration of the rules within the meaning of section twenty‑one of the principal Act.
By s 4(3), those provisions were deemed to have come into force on the date of commencement of the principal Act (that is, the Incorporated Societies Act 1908 (NZ)).
In my opinion, the term 'rules and regulations' in the 1895 Act referred to any and all non‑statutory provisions, binding on an Association, which determined the Association's nature and purpose, and how it would function. For example, an Association's 'rules and regulations' included any and all non‑statutory provisions, binding on the Association, which:
(a)related to its name, objects, internal management and administration, powers and membership; or
(b)established a framework for, or regulated, the pursuit or carrying into effect of any of the Association's objects.
In my opinion, whether or not particular provisions were 'rules and regulations', for the purposes of the 1895 Act, is to be determined according to their substance and not their form. For example, the name ascribed to the provisions (rules, regulations or by‑laws etc) is not critical. Similarly, whether the power to make, amend or rescind the provisions in question lay with the members or an internal management committee of the Association is not decisive.
The 1895 Act conferred on an Association freedom to decide upon the nature, extent and content of its 'rules and regulations'. The Act did not prescribe a minimum content for rules and regulations. Each Association decided what was necessary or sufficient for its purposes. The Act confined its restrictions to the objects of an Association (see the definition of 'Association' in s 2 and the provisions with respect to amendment in s 7A) and to the adoption and change of its name (see ss 4A and 7(1)(a)).
The respondent's by‑laws were made by its management committee pursuant to cl 10(b) of the respondent's constitution (currently cl 10.2). Clause 10(b) conferred on the management committee power:
To make repeal or amend by‑laws, not inconsistent with this constitution or with provisions of the [1895 Act] to carry out the objects of the League provided that all by‑laws made by the committee shall have effect only fourteen days after being publicised and shall be subject to disallowance or amendment at the next Council meeting.
The by‑laws were binding on the respondent and established a regulatory framework for the pursuit of its objects, namely, the control, encouragement and advancement of amateur football played under the Australian Rules of football in Western Australia: cl 2 of the respondent's constitution. In my opinion, the respondent's by‑laws were therefore part of its 'rules and regulations' for the purposes of the 1895 Act. This characterisation is consistent with the respondent's conduct in lodging its constitution and by‑laws with the Registrar, apparently under s 5(3)(a) of the 1895 Act.

Ground 1: the status of the respondent's constitution and by‑laws under the 1987 Act

On 25 July 1988, the 1987 Act came into operation and the 1895 Act was repealed. I will refer to the provisions of the 1987 Act as in force between the date of commencement of the Act and the date on which the purported amendment to by‑law 3 was made.
The 1987 Act refers to, but does not define, the 'rules' of an association incorporated under the Act. It does not refer to 'rules and regulations', 'Trust or Settlement deed' or 'constitution'. Also, it does not mention 'by‑laws'.
Section 5(1) provides that an application for the incorporation of an association (as defined in s 3(1)) must be made to the Commissioner in the prescribed manner and form by a person duly authorised by the association to apply for incorporation. By s 5(2), an application for incorporation must be accompanied by a copy of the 'rules' of the association conforming to the requirements of the Act and a certificate given by the applicant which, relevantly, verifies that 'the copy of the rules of the association accompanying the application is a true copy and that the rules include provisions as to the matters set out in Schedule 1'.
By s 9(1):
If upon an application duly made in accordance with this Part, the Commissioner is of the opinion -
…
(b)that the rules of the association lodged with the Commissioner conform to the requirements of this Act;
…
the Commissioner shall, subject to subsection (2), incorporate the association by the issue to the association of a certificate of incorporation.
Part IV is headed 'Rules of incorporated associations'. The heading forms part of the Act. See s 32(1) of the Interpretation Act 1984 (WA). Part IV comprises ss 16 ‑ 19.
Section 16 provides that the rules of an association do not conform to the requirements of the Act unless they include provision in respect of each of the matters that are specified in Sch 1 and the rules are otherwise consistent with the Act.
The matters specified in Sch 1 comprise, in essence:
(a)the name of the incorporated association;
(b)its objects or purposes;
(c)the qualifications (if any) for membership;
(d)the register of members;
(e)the entrance fees, subscriptions and other amounts (if any) to be paid by members;
(f)the name, constitution, membership and powers of the committee or other body having the management of the incorporated association;
(g)the quorum and procedure at general meetings of members;
(h)the time within which, and manner in which, notices of general meetings and notices of motion are to be given, published or circulated;
(i)the manner in which the funds of the association are to be controlled;
(j)the intervals between general meetings of members and the manner of calling general meetings;
(k)the manner of altering and rescinding the rules and of making additional rules of the incorporated association;
(l)provisions for the custody and use of the common seal;
(m)the custody of records, books, documents and securities; and
(n)the inspection by members of records and documents of the incorporated association.
Section 17(1) provides:
Subject to sections 18 and 19, an incorporated association may alter its rules by special resolution but not otherwise.
The term 'special resolution' is defined in s 3(1) to mean a resolution of an association passed in accordance with s 24. By s 24(1), for the purposes of the Act, a resolution is a special resolution if it is passed by a majority of not less than three‑fourths of the members of the association who are entitled under the rules of the association to vote and vote in person or, where proxies or postal votes are allowed by the rules of the association, by proxy or postal vote, at a general meeting of which notice specifying the intention to propose the resolution as a special resolution was given in accordance with those rules.
Section 17(2) provides:
Within one month of the passing of a special resolution altering its rules, or such further time as the Commissioner may in a particular case allow, an incorporated association shall lodge with the Commissioner notice of the special resolution setting out particulars of the alteration together with a certificate given by a member of the committee certifying that the resolution was duly passed as a special resolution and that the rules of the association as so altered conform to the requirements of this Act.
Section 18 concerns an alteration of the rules having effect to change the name of the association (which does not take effect until s 17 is complied with and the approval of the Commissioner is given to the change of name). Section 19 relates to an alteration of the rules having effect to alter the objects or purposes of the association (which also does not take effect until s 17 is complied with and the approval of the Commissioner is given to the alteration of the objects or purposes).
Section 48 provides that Sch 2 to the Act has effect. Clauses 1, 3 and 4 of Sch 2 provide:
1.Every association that was, immediately before the commencement of this Act, an association incorporated under the repealed Act, shall, upon the commencement of this Act, be deemed to be an association incorporated under this Act, and the rules of the association shall, subject to alteration under this Act, be the rules of the association as registered at the commencement of this Act.
…
3.The statement of objects of an association incorporated under the repealed Act filed with the Commissioner shall upon the commencement of this Act be deemed to form part of the rules of the association as registered at the commencement of this Act.
4.Section 16 (which specifies matters to be provided for in the rules of an incorporated association) does not apply to any association that was immediately before the commencement of this Act incorporated under the repealed Act.
The 1987 Act differs in significant respects from the 1895 Act. Relevantly, for present purposes, the 1987 Act prescribes matters in respect of which provision must be made in an association's 'rules', and provides for the manner in which the rules may be amended.
Section 16 (in combination with ss 5(2) and 9(1)(b)) requires, in effect, that an association's rules include provision in respect of each of the matters specified in Sch 1. Significantly, neither s 16 nor any other section in the 1987 Act specifies the content of the provision which must be made in respect of each of those matters. In other words, the statute requires that some provision be made in respect of each of the matters set out in Sch 1, but each association decides upon the substance of the provision. Further, the 1987 Act does not provide that the matters specified in Sch 1 are exhaustive of the matters which may be dealt with in an association's rules. That is plain from the language of ss 5(2) and 16, which require that the rules 'include' provisions in respect of the matters set out in Sch 1. The 1987 Act does not restrict the nature, extent or content of any other matters that an association may include in its rules. The absence of such a restriction is consistent with the diverse objects and purposes of associations which are eligible for incorporation under the 1987 Act, and the differing views that will undoubtedly exist between members of associations concerning the degree to which their rules should be prescriptive.
Section 17(1), which provides, subject to ss 18 and 19, that an incorporated association may alter its rules by special resolution but not otherwise, does not expressly distinguish between rules dealing with the matters specified in Sch 1 and rules dealing with other matters. In my opinion, s 17(1) applies to any alteration to an association's rules. There is no satisfactory basis for an implication that s 17(1) applies only to alterations to those rules which deal with the matters specified in Sch 1. Such an implication would be inconsistent with the express and general language of s 17(1). Also, as I have mentioned, s 16 (in combination with ss 5(2) and 9(1)(b)) stipulates that the rules must make provision in respect of each of the matters set out Sch 1, but does not specify the content of the provision. The absence of a requirement to adopt 'model rules' in respect of those matters, and the absence of any specification as to content, suggests that Parliament did not intend that s 17(1) should be confined to those rules of an association which deal with the subjects itemised in Sch 1.
Schedule 2 to the 1987 Act applied to the respondent. By cl 1 of Sch 2, upon the commencement of the 1987 Act (that is, on 25 July 1988), the respondent was deemed to be incorporated under the 1987 Act, and the 'rules' of the respondent were deemed, subject to alteration under the 1987 Act, to be the 'rules' of the respondent as registered at the commencement of the 1987 Act. In cl 1 of Sch 2, 'rules', in relation to an association that was, immediately before the commencement of the 1987 Act, an association incorporated under the 1895 Act, included, relevantly, the 'rules and regulations' of the association within the meaning of the 1895 Act. For the reasons I have given previously, in the context of the respondent's 'rules and regulations' under the 1895 Act, the 'rules' of the respondent, as registered at the commencement of the 1987 Act, included the by‑laws. Accordingly, by cl 1 of sch 2 to the 1987 Act, the 'rules' of the respondent, for the purposes of the 1987 Act, were deemed, subject to alteration under the 1987 Act, to include the by‑laws. Further, any alteration to the respondent's rules, including the by‑laws, under the 1987 Act had to comply with s 17(1).

Ground 1: conclusion in relation to whether by‑law 3 was validly amended

It follows, from my conclusion that the respondent's rules included the by‑laws, that the by‑laws could not be amended except by a special resolution of the respondent passed in accordance with s 24 of the 1987 Act. Section 17(1) overrides cl 10(b) of the respondent's constitution (currently cl 10.2). By‑law 3 was not amended in the manner prescribed by ss 17(1) and 24 of the 1987 Act and, in consequence, the amendment was invalid.
Ground 1 has been made out.

Ground 2: no separate hearing in relation to penalty

I agree with Pullin JA that ground 2 is without merit.
The requirements of procedural fairness depend upon the circumstances of the particular case. See Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 per Gibbs J at 526; Hall v NSW Trotting Club Ltd [1977] 1 NSWLR 378 per Samuels JA at 386.
It is desirable that where a tribunal is conducting an inquiry into whether an offence has been established and, if so, what penalty should be imposed, the tribunal should determine the issue of liability before turning its attention to the appropriate penalty. However, the tribunal will not breach the rules of procedural fairness by failing to proceed in that manner if, in substance and reality, the person charged has been given a proper opportunity to address the tribunal on the issue of penalty in the event the tribunal finds the charge against him or her to be proved. See Barnes v Australian Telecommunications Commission (1989) 25 FCR 283 per Spender J at 290 ‑ 291 where his Honour refers to Hall per Hutley JA at 382 ‑ 383 and per Samuels JA at 391, Freedman v Petty [1981] VR 1001 per Marks J at 1030, and McRitchie v Greyhound Racing Control Board [1982] AILR 533 per Powell J.
In McRitchie, Powell J said, in relation to an alleged failure by a disciplinary body to permit a person charged a proper opportunity to address on penalty:
Since ... the plaintiff was offered an opportunity to address on the question of penalty if a finding adverse to him were made, this attack cannot be sustained unless it be the law that such an opportunity must be awarded after the making of any adverse finding and before the imposition of any penalty. While, in the context provided by trials in the Courts, such a procedure is the norm, I do not consider that the rules of natural justice require that there must always be a separate hearing on penalty; nor, although the steward's failure to receive submissions on the question of penalty was the basis for the decision of the majority in that case, I do not consider that the decision of the Court of Appeal in Hall v New South Wales Trotting Club Ltd lays down any such rigid rule - my view appears to be shared by Marks J (Freedman v Petty (1981) VR 1001 at 1030) and by Jenkinson J (Barr v Victorian Football Association (Unreported, 5 June 1979) of the Supreme Court of Victoria.

In Freedman, Marks J, after referring to the judgment of Jenkinson J in Barr v Victorian Football Association (Unreported, VSC, 5 June 1979), said, at 290:
Consistent with what I have observed elsewhere I doubt if the rules of natural justice compel automatic vitiation of a penalty imposed without separate hearing on the question. Circumstances in particular cases such as those with which Jenkinson J was concerned may show that in effect fair cognisance of the relevant matters had been taken at an earlier point than the actual pronouncement of decision and penalty. Further, circumstances in a particular case may show that the offender expressly or impliedly indicated he did not wish to be so heard.
I agree with Pullin JA, for the reasons he gives, that Mr Prior gave the appellant a proper opportunity to deal with the issue of penalty in the course of the hearing on 27 June 2002.

Ground 3: the proper construction and application of by‑law 9.4

I agree with Pullin JA, for the reasons he gives, that ground 3 fails.

Ground 4: who charged the appellant?

I agree with Pullin JA, for the reasons he gives, that ground 4 fails.

Ground 5: 'unreasonable decision'

I agree with Pullin JA, for the reasons he gives, that ground 5 fails.

Conclusion

I would dismiss the appeal.