Rush v WA Amateur Football League Inc - [2005] WASC 206

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: RUSH -v- WA AMATEUR FOOTBALL LEAGUE (INC) [2005] WASC 206

CORAM: COMMISSIONER ODES QC

HEARD: 18-22 JULY 2005

DELIVERED : 23 SEPTEMBER 2005

FILE NO/S: CIV 2245 of 2002

BETWEEN: PETER RUSH
Plaintiff
AND
WA AMATEUR FOOTBALL LEAGUE (INC)
Defendant

Catchwords:

Administrative law - Decisions of domestic tribunals - Approach of courts - Denial of natural justice - Double jeopardy - Procedural fairness - Proper opportunity to prepare case and plead in mitigation - Sufficiency of charges - Bias - Whether actual or reasonably apprehended

Legislation:

Associations Incorporation Act 1987 (WA)

Result:

Action dismissed

Category: A

Representation:

Counsel:

Plaintiff: Mr M S Macdonald
Defendant: Mr J R B Ley

Solicitors:

Plaintiff: Macdonald Rudder
Defendant: Michael Whyte & Co

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

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Australian Football League & Ors v Carlton Football Club Ltd [1998] 2 VR 546 (CA)
Australian Workers' Union v Bowen & Ors (No 2) (1948) 77 CLR 601
Barnes v Australian Telecommunications Commission (1989) 25 FCR 283
Bornecrantz v Queensland Bridge Association Inc [1999] QSC 058
Bromley London Borough City Council v Greater London Council [1983] 1 AC 768
Cains v Jenkins (1979) 28 ALR 219
Calvin v Carr [1979] 1 NSWLR 1
Cameron v Hogan (1934) 51 CLR 358
Commonwealth of Australia v Pharmacy Guild of Australia & Anor (1989) 91 ALR 65
Dale v NSW Trotting Club Ltd (1978) 1 NSWLR 551 (CA)
Davern v Messel (1984) 155 CLR 21
Dickason v Edwards (1910) 10 CLR 243
Freedman v Petty & Greyhound Racing Control Board [1981] VR 1001
Gamilaroi Boomerangs Sports Aboriginal Corporation v Members of New England Group 19 [1999] NSWSC 495
Geng v Minister for Immigration & Multicultural Affairs (1998) 84 FCR 87
Hall v NSW Trotting Club Ltd [1977] 1 NSWLR 378
Jackson v Western Australian Basketball Federation Inc (1990) 21 ALD 283
Julien v The Racing Penalties Appeals Tribunal of Western Australia [2001] WASCA 345
Justice v South Australian Trotting Control Board (1989) 50 SASR 613
Kioa v West (1985) 159 CLR 550
Lau Liat Ming v Disciplinary Executive [1968] AC 391
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Lillee v WA Cricket Association Inc, unreported; SCt of WA; Library No 5219; 7 February 1984
Malone v Marr [1981] 2 NSWLR 894
Maloney v NSW National Coursing Association Ltd (No 2) (1978) 1 NSWLR 161
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24
Mitchell v Royal New South Wales Canine Council Ltd (2001) 52 NSWLR 242
Mobil Oil Australia Pty Ltd v FCT (1963) 113 CLR 475
National Companies & Securities Commission v News Corporation Ltd (1984) 156 CLR 296
Okyere v Minister for Immigration and Ethnic Affairs (1997) 44 ALD 549
Parramatta City Council v Pestell (1972) 128 CLR 305
R (Pro Life Alliance) v British Broadcasting Corp [2004] 1 AC 185
R v Associated Northern Collieries (1910) 11 CLR 738
R v Radio Authority ex parte Guardian Media Group PLC [1995] 1 WLR 334
Re Mullen [1995] 2 Qd R 608
Ridge v Baldwin [1964] AC 40
Robbins v Harness Racing Board [1984] 1 VR 641
Rush v WA Amateur Football Club League Inc [2001] WASC 154
Rush v WA Amateur Football League Inc [2003] WASC 70
Russell v Duke of Norfolk [1949] 1 AER 109 (CA)
Shepherd v SA Amateur Football League Inc (1986) 44 SASR 579
Skelton v Australian Rugby Union Limited [2002] QSC 193
Smith v South Australian Hockey Association Inc (1988) 48 SASR 263
Vakauta v Kelly (1989) 167 CLR 568
Waterford v Commonwealth (1987) 163 CLR 54
Whittle v The Australian Miniature Pony Society Inc (1995) 57 FCR 252

Case(s) also cited:

Nil

INDEX

Paragraph number

Background   [1]
(a)     The first tribunal – 29 August 2000       [9]
(b)     The first action – 3 May 2001     [10]
(c)     Appointment of the second tribunal – 18 March 2002              [12]
(d)     The first hearing – 17 April 2002  [15]
(e)     The Prior report – 29 May 2002   [17]
(f)     The defendant’s letter dated 31 May 2002      [23]
(g)     The second hearing – 27 June 2002      [26]
(h)     The final Prior report – 19 July 2002   [28]

(i) The plaintiff’s response – the second action

- 4 September 2002 [30]

The Pleadings [33]

The relationship of the parties [50]

Approach to decisions of domestic tribunals [53]

The Jurisdiction issues [62]

•Whether the "rules" included "by-laws"  [65]
•Whether motions to amend were "carried"  [77]
•Whether by-law 3 was amended in accordance with
carried minute  [82]
•Whether amendment to by-law 3 was "publicised"                 [91]
•Whether the prescribed procedure was followed in
terms of by‑law 3   [93]
•Whether the Investigation Tribunal may act under by‑law 9.4 [102]

Breaches of Natural Justice Principles

Double Jeopardy [112]

Procedural fairness [121]

-Insufficient opportunity to prepare case  [125]
-Insufficient notice of the charges  [137]
-Insufficient opportunity to argue mitigation of sentence          [153]
-Unaware of possibility of suspension at hearings                   [125]
-Unfairness of charges as formulated   [164]

Bias - Whether actual or reasonably apprehended [167]

Material ambiguity and defectiveness of findings [182]

Unreasonableness or absurdity of decision of Tribunal [196]

COMMISSIONER ODES QC:

Background

This dispute has a long and acrimonious history involving two separate actions and two interlocutory applications. The conflict arises out of a suspension for part of the 2002 and the whole of the 2003 football seasons imposed upon the plaintiff as a player, coach and official of the Bayswater Amateur Football Club by the defendant, the WA Amateur Football League Inc, for breaching certain of its by‑laws. The defendant was incorporated on 23 February 1984 in terms of the Association Incorporation Act 1895 (WA) as amended (now repealed) but deemed to be incorporated in terms of the present Associations Incorporation Act 1987 (WA) ("the Act").
By this action, the plaintiff seeks a declaratory order setting aside the decision of a tribunal of the defendant to suspend him as being void and of no effect.
Interlocutory injunctions have been issued, first by Templeman J on 14 June 2001 (Rush v WA Amateur Football Club League Inc [2001] WASC 154) in respect of an earlier action for similar relief and thereafter by Hasluck J on 4 April 2003 (Rush v WA Amateur Football League Inc [2003] WASC 70) suspending the implementation of the defendant's decision pending adjudication of this action.
I will, in the course of these reasons, refer to both of these interlocutory judgments.
The basis upon which the plaintiff approaches the Court for the relief claimed is essentially contractual, in the sense of reliance upon various breaches of the constitution ("the Constitution") and by‑laws of the defendant and breaches of principles of natural justice. No reliance is placed by him upon tortious conduct, breaches of trust or statute. Nor does he claim that his right to earn a living has, by the decision of the defendant, been infringed in any way.
The plaintiff is without doubt an aficionado of football. He is now 46 years old and has been involved in the playing of amateur football since 1978 when he first registered as a player. At various times thereafter, he also coached teams and filled positions in the management of the Bayswater Club including that of President of that club. He was not at the time of the incident remunerated for fulfilling any of the above roles which he had fulfilled. Despite his age, he still plays for the enjoyment of the game.
The incident giving rise to the earlier action, the present proceedings and the injunctions referred to above occurred on 19 August 2000, when the Bayswater D Reserve team played a team from the Willetton Amateur Football Club. The plaintiff was the player/coach of the Bayswater team which contained three players who were not registered with the defendant, which is the governing body of amateur football in the State.
Shortly before the end of the match, one of the unregistered players, George Coyne, disagreed with the decision of a field umpire who, as a result, found himself at the receiving end of a punch by that player. The hapless victim sustained a fractured jaw, was removed to hospital by ambulance and the police were summoned.

(a) The first tribunal – 29 August 2000

The incident obtained wide media coverage. On or about 29 August 2000, the Management Committee of the defendant convened a meeting to which the plaintiff was summoned, where the circumstances of the incident were aired and at which the plaintiff, as coach with knowledge that the players concerned were not registered and had played under the assumed names of registered players, was disqualified from playing, coaching, or being an official in any of the member clubs affiliated to the defendant for a period of 10 years. There is a dispute as to whether the charge of plaintiff signing statutory declarations on the forms of persons applying to the defendant for permission to play in the defendant's league, when he was not authorised to do so, was canvassed at this tribunal.

(b) The first action – 3 May 2001

The order imposed upon the plaintiff by the defendant gave rise to an action by the plaintiff to set aside the disqualification as void ("the first action"). The injunction issued by Templeman J in the interim referred to above, suspended the implementation of the disqualification of the plaintiff pending the outcome of the first action.
Attempts at mediation initially came to naught, but on 29 November 2001 the parties consented to an order in which the defendant agreed to set aside the disqualification decision and to pay certain of the legal costs of the plaintiff who in turn consented to the dismissal of the first action. It was envisaged at that time that fresh charges would be brought against the plaintiff by the defendant. Suggestions were in fact made by the plaintiff (though no agreement was reached) as to the composition of the Tribunal when the charges were to be re‑activated.

(c) Appointment of the second Tribunal – 18 March 2002

By letter dated 18 March 2002 (Ex 1) the Executive Officer of the defendant reactivated the inquiry by notifying the plaintiff that its Management Committee had appointed an Investigation Tribunal to investigate the incident.
The letter was addressed to the President of Bayswater Club for the attention of the plaintiff who happened to be the President at that time. The plaintiff was informed in that letter that Mr John Prior ("Prior"), a legal practitioner, would be the sole member of the Tribunal, Prior being requested to "investigate" the following allegations:
"1.That you [the plaintiff] 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 continues 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 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."

(d) The first hearing - 17 April 2002

The hearing was arranged to take place on 11 April 2002, but because the plaintiff was not available at the time for that date, the hearing was rescheduled for the 17 April 2002 ("the first hearing"). The plaintiff and his witnesses gave evidence on the rescheduled date. Those who attended the first hearing and gave evidence were the plaintiff himself, one Aaron Waldock, the Vice‑president of the Bayswater Club, who handed in a letter of good character in relation to the plaintiff, pointing out the disastrous effect a suspension of the plaintiff would have on the club, and George Coyne, the unregistered player involved in the incident. Evidence was also led from Shane Fillipos, a member of the plaintiff's club who was a boundary umpire at the time of the incident, as well as from Phillip Hayes, a member of the Management Committee of the defendant, who deposed to investigations conducted by him in relation to the documentation provided by Bayswater Club to the defendant during the 2000 season, relevant to the statutory declaration allegation.
At the conclusion of the first hearing Prior informed the plaintiff that he would consider the evidence and that the plaintiff would be contacted in due course. The plaintiff was subsequently notified that a resumed hearing would take place on 27 June 2002 ("the second hearing").

(e) The Prior report – 29 May 2002 (Ex 2)

In the interim and prior to the second hearing, Prior, on 29 May 2002, wrote to Neil Judge, then the Acting Executive Officer of the defendant, enclosing a copy of the report of what transpired at the first hearing ("the Prior report"). Prior, in his report, recommended that of the three allegations listed in the letter of 18 March 2002, two charges for by‑law breaches be preferred against the plaintiff (Ex 2). In the covering letter, Prior stated that a copy of the report could be sent to the plaintiff. He also advised Judge to request the plaintiff to advise the defendant "of his pleas to the two charges and whether he seeks a further hearing on the matter or I can determine the charges on the evidence I heard on 17 April 2002".
Prior concluded his report to the defendant by stating that he was satisfied that the plaintiff should be charged with breaches of the following by‑laws:
"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."
It is convenient at this stage of the background narrative to note the differences between the allegations which Prior was requested to investigate as reflected in the letter to the plaintiff on 18 March 2002 (Ex 1) and the charges which Prior in his report to the defendant (Ex 2) recommended be preferred against him. Whereas the substance of the charges recommended in the Prior report was substantially similar, the letter informed the plaintiff that Prior would be requested to investigate whether that conduct constituted a breach of By‑law 10 of the by‑laws (unregistered players) and Appendix 4 of the by‑laws (unauthorised signature to statutory declarations) while the charges set out in the Prior report alleged that the conduct concerned breached by‑law 9.4 of the by‑laws. The differences between the by‑laws in question and the significance of such differences are dealt with later. Sight should not, however, be lost of the express reference to by‑laws 3.1, 8.2.4 and 9.4 in the 18 March letter and to the remainder of its contents, referred to in Background (c) above.
By‑law 9.4, forming the basis of both charges, 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 confers upon the Investigation Tribunal the powers under by‑law 8.2.4 which in turn empowers it to "impose such penalties or fines authorised by these Rules as it deems fit or it may give a caution."
The third allegation listed in the letter to the plaintiff on 18 March 2002 was not proceeded with.

(f) Defendant's letter to the plaintiff dated 31 May 2002 (Ex 28)

Judge, the Executive Officer of the defendant at the time, deposed that he sent a copy of the Prior report to the plaintiff on 31 May 2002 requesting him to advise the defendant of his pleas to the two charges. The plaintiff was requested to state whether he wished to seek a further hearing on the matter or whether he would agree to Prior determining the charge on the evidence heard. The letter requested the plaintiff's response as soon as possible. No response was forthcoming. Because of the plaintiff's failure to respond, Prior decided that a second hearing would be necessary. He instructed the Executive Officer to inform the plaintiff that a second hearing would be held on 27 June and to inform him that he could call any further evidence, if he wished to do so. This the Executive Officer did telephonically.
It is common ground that the letter of 31 May was addressed to the plaintiff at "12 Landel Place" in Redcliffe when the plaintiff's correct address was "12 Andell Place". The plaintiff denies that he received the letter and the enclosed Prior report. He states that he saw the Prior report for the first time at the second hearing on 27 June 2002.
One of the factual issues to be determined is whether the plaintiff saw the Prior report before the second hearing and, if not, whether he had sufficient opportunity to deal with the charges. This issue will be dealt with more fully below.

(g) The second hearing – 27 June 2002

Factual disputes between the plaintiff and Prior emerge in relation to what transpired at the second hearing. For the purposes of outlining the background, it suffices at this stage to state that at some stage at the hearing Prior showed the plaintiff his report. Whether that was the first occasion upon which the plaintiff saw the report containing the charges recommended to be brought against him is open for my determination. However, it is common ground that the plaintiff was asked what he pleaded to the charges and he pleaded not guilty. Prior told him he would take the evidence adduced at the first hearing into account and asked him whether he wished to call further evidence. The plaintiff addressed Prior on both charges, handed in the minutes of the meeting of the Bayswater Club dated 1 August 2000 (Ex 15) and a letter from Zelesco (Ex 14), the secretary of the club. Both the minutes and 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. Plaintiff also called a witness, Martin Smith, who gave evidence. The plaintiff wished to call a further witness (Chris Fillipos) who was on his way to the hearing. Prior asked the plaintiff what the witness would say and when told by the plaintiff, Prior indicated that the evidence had already been led and that it was unnecessary to hear him. 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 handed in by the plaintiff at the second hearing.

Prior then proceeded to ask the plaintiff about his playing career and his activities at the club, whereupon the hearing ended. The plaintiff was uncertain how he came to know about the date of the second hearing, but stated that it was well before 27 June 2002.

(h) The final Prior report – 19 July 2002 (Ex 4)

The final report of Prior (sent to Judge on 19 July 2002) records what occurred at both the first hearing and at the second hearing in a fair amount of detail. Having done so, Prior came to the conclusion, for the reasons which he stated therein, that Rush was guilty of both charges. In imposing 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), Prior took the following matters into account:
1.The fact that the plaintiff pleaded not guilty to both breaches and therefore was not entitled to a discount as he might have been entitled to by entering pleas of guilty.
2.The relevant factual circumstances he found in this decision and the decision from the hearing of 17 April 2002.
3.The plaintiff's "significant and long‑standing contribution to WAAFL, in particular through the Bayswater Amateur Football Club".
4.The period of time served of the original 10‑year suspension imposed on 23 August 2000 and until the Supreme Court injunction was ordered on 14 June 2001 (approximately half a WAAFL season).
5.The two breaches of the by‑laws involved two entirely separate actions by the plaintiff.
In each case the suspension precluded him from acting as player, coach or official within the WAAFL. The recommendations as to penalty and findings of Prior were accepted by the Management Committee at its meeting on 22 July 2002 (Ex 40). The plaintiff was informed of his suspension for the remainder of the 2002 season on the first charge and for the entire WAAFL 2003 season for the second charge in a letter addressed to him by the President of the defendant (Ex 11).

The plaintiff's response - the second action – 4 September 2002

The response of the plaintiff took the form of a letter by him dated 14 August 2002 to Prior personally (Ex 12) expressing his "absolute disappointment" at the findings. The letter indicated that the plaintiff had consulted his lawyer to whom he had shown Prior's findings and that he would recommence legal proceedings. The letter proceeded to reargue his case, stating in relation to the first charge that the playing of unregistered players was a breach by the club of by‑law 10.8.1 which is the charge which should have been preferred. He reiterated further in effect, that the use of by‑law 9.4 for preferring both charges against him was inappropriate.
The writ commencing the present action was issued on 4 September 2002. As stated above, the plaintiff obtained an interlocutory injunction from Hasluck J on 4 April 2003 suspending the implementation of the defendant's decision pending the outcome of this action.
The above background sets out basically the events which are common ground (save in the respects specifically indicated). Evidence was led by a number of witnesses in a trial extending over five days. I have not resorted to any great detail in the recital of the background, but will do so insofar as such detail is necessary to deal with the numerous issues which arise for determination in this action.

The pleadings

The issues raised by the plaintiff in the pleadings are numerous. In these reasons, I have confined myself to the issues specifically covered in the pleadings. There are, however, other issues which have been raised in the plaintiff's written Outline of Argument at Trial handed to the Court before the commencement of the trial, as well as certain issues raised in the course of closing argument which are not covered by the pleadings. For example, in its outline of argument, the plaintiff questions the validity of a motion of the Management Committee adding by‑law 3.3 to the defendant's by‑laws on the ground that no notice of intention to amend the by‑laws was given (paras 48 to 50 of the outline). The failure to give such notice has not been pleaded.
So too the point in the plaintiff's outline (at para 33) that the resolution of the Management Committee to charge the plaintiff was invalid because it was not taken at a formal meeting (as opposed to the unanimous telephonic approval of its constituent members) similarly finds no place in the pleadings.
One argument put forward during plaintiff's closing address which falls into the same category is that Prior took into account the fact that players were played under false names in arriving at his decision (TS693‑5) which was – according to the argument - an irrelevant consideration indicating unfairness to the plaintiff.
Indeed, a far more fundamental point was raised in closing argument to the effect that no by‑law of the defendant amended or introduced after 1992 was valid because of a shortage of numbers in the Management Committee as provided in its Constitution (TS708 et seq). The issue had also not been pleaded and an application to amend the pleadings to incorporate it was made during closing argument and was refused for the reasons set out (at TS717‑8). The examples of non‑pleaded issues raised in argument are not exhaustive.
No doubt a source for the raising of a number of issues not pleaded is the direction of the Court requiring an exchange prior to the trial of witnesses' statements and a book of documents containing those documents which the parties intended to use at the trial.
The purpose of pre‑trial directions providing advance disclosure of statements of witnesses and documents to be used, is to promote case management inter alia by streamlining and promoting greater efficiency in court procedures, thereby curtailing the duration of trials in an already overloaded court system. The use of such materials as a trigger for raising issues not pleaded, totally undermines the principles upon which case management is founded and should, without timeous amendment not prejudicial in the relevant sense to the opposing party, not be tolerated. To canvass such unpleaded issues would give rise to the very problems which the case management regimen was designed to obviate. I proceed to deal with the pleaded issues.
While the pleadings reveal a number of factual conflicts between the versions of the plaintiff and Prior as to what occurred at the hearings, those differences, save in the respects dealt with below, have largely disappeared as a result of admissions made by the plaintiff during his evidence (TS281, 289‑292).
However, the number of legal issues raised in the pleadings abound. The plaintiff, in the first instance, relies upon an agreement in writing between the parties in terms of which the plaintiff was registered with the defendant as a player. He alleges it was an express term that the plaintiff would abide by the defendant's rules and an implied term that the defendant would abide by and follow its own rules (paras 3 to 5 of the statement of claim). The defendant denies those allegations. These issues call for a consideration of the nature of the relationship between the parties and the approach to be adopted by the Court in respect of decisions made by domestic tribunals arising out of that relationship.
The plaintiff relies upon a number of alleged breaches by the defendant of the Constitution and its by‑laws which, he asserts, render the decision of Prior invalid.
The plaintiff relies upon breaches of the 1986 by‑laws (par 27 of the Claim) in terms of which he alleges the defendant had no power to appoint a tribunal with only one member (par 28 of the Claim), nor do those by‑laws – according to the plaintiff – empower the Investigation Tribunal or the committee to prefer a charge, lay a complaint, punish or suspend anyone (par 29 and 30 of the Claim). He alleges in the alternative that the Tribunal had no power to prefer or hear a charge under by‑law 9.4 (par 31 of the Claim). In the further alternative, the plaintiff claims that the charge of playing unregistered players could only be preferred against the club under those by‑laws (par 32 of the Claim). In another alternative claim, the plaintiff asserts that the rules in question precluded the defendant from appointing a tribunal "to both investigate a matter and perform other duties" (par 32A of the Claim).
The defendant counters these allegations basically by denying that the 1986 by‑laws upon which reliance has been placed were applicable at the time of the hearing. The by‑laws were amended by resolutions passed by the defendant's management committee in March 1992 and April 1994 which empowered the Tribunal to act as it did (paras 40 to 44 inclusive of the Defence). The defendant contends that these amendments appeared in the 1998 revision of the by‑laws which were the relevant by‑laws applicable to the hearings in question (par 40.16 of the Defence). To the extent that the other breaches relied upon by the plaintiff do not fall within the argument relating to the validity of the amendments to the by‑laws, the defendant challenges the plaintiff's interpretation thereof.
In his Reply the plaintiff contends that the 1986 by‑laws apply because they were part of the "rules" of the Constitution of the defendant and therefore required to be amended in accordance with the provisions of the Act relating to constitutional amendments and that they were not so amended (par 15 and 16 of the Reply). (Amendments of the "rules" of a Constitution require a special resolution taken at a general meeting of members followed by registration with the Commissioner before they are valid (s 17 of the Act, read with s 24 thereof).) None of the subsequent amendments to the "by‑laws" referred to by the defendant complied with the Act and were – according to the plaintiff - therefore void. There is agreement between the parties that the by‑laws were not amended in accordance with the procedure required for constitutional amendment in terms of the Act. However, the defendant contends that because the "by‑laws" are not part of its "rules", the procedure for their amendment did not require the procedure laid down in the Act for the amendment of the "rules" to be followed. As will be seen below, this argument by the plaintiff forms a major platform to his case, and covers a number of issues raised in the pleadings.
It is common ground between the parties that if the 1986 by‑laws are found by me to be the operative provisions, the defendant must fail. It is also common ground that if the by‑laws are found not to be part of the "rules" of the Constitution of the defendant, the contentions raised in paras 27 to 32A inclusive of the statement of claim, fall away, as those paragraphs are premised on the basis that the 1986 by‑laws were operative at the time of the incident.
Further, in his reply, the plaintiff says that if the by‑laws were not part of the rules and therefore did not require to be amended in terms of the Act they were nevertheless invalid because they were not publicised as required by the by‑law in question (paras 12 to 14 of the Reply). In the alternative, the plaintiff alleges that by‑law 3.3 as enacted is void for uncertainty (para 17 of the Reply).
In yet a series of further alternatives, if by‑law 3.3 is valid and, upon a proper construction, empowers the Management Committee to prefer a charge and the Management Committee did prefer charges against the plaintiff, the plaintiff in his Reply, pleads as follows:
"18(a)By‑law 3.3 also provides in effect that in preferring a charge the Management Committee must follow the same procedure as that followed by clubs so far as that is possible, namely it must:
(i)pursuant to by‑law 9.8, forward the charge and particulars thereof in writing to the Executive Officer of the defendant within 7 days after the date upon which the incident complained of occurred;
(ii)pursuant to by‑law 9.9 give notice in writing of the charge and particulars thereof to the club concerned by certified mail within 48 hours after lodging the same with the Executive Officer of the defendant.
(b)The defendant breached its by‑laws by failing to comply with any part of either 9.8 or 9.9.
(c)By‑law 9.12 of the Rules provides in effect that the Executive Officer cannot refer a charge to an Investigation Tribunal until he has satisfied himself that all provisions of the Rules have been complied with;
(d)The Executive Officer failed to so satisfy himself.
19.Further and alternatively if by‑law 3.2, as alleged by the defendant is valid, then:
(a)by‑law 3.2.1 authorises an Investigation Tribunal to hear charges referred to it by the Management Committee under the by‑laws of the defendant, namely by‑laws 9.8 and 9.12; and
(b)the charges against the plaintiff were not referred to the Tribunal under the by‑laws of the defendant or at all."
Apart from relying upon the above breaches by the defendant of its Constitution and by‑laws, the plaintiff has invoked a number of principles of natural justice as a basis for setting the decision of the Investigation Tribunal aside.
The plaintiff has pleaded in the alternative (in par 33 of the statement of claim) that the charges and hearing were contrary to the fundamental principles of common justice in that:
(a)the defendant sought to punish the plaintiff twice for the same offence;
(b)the plaintiff was not given any reasonable opportunity to answer the charges levelled against him;
(c)when the charges were formulated, they were formulated and preferred by the person who heard the evidence and delivered the verdict. That is, the tribunal that accused the plaintiff also sat in judgment upon him, which gave rise to a reasonable apprehension of bias.
(d)The plaintiff was not brought before either Prior or anyone else to hear the verdict and therefore was not in a position make any plea in mitigation.
(e)The charges as formulated disclosed unfairness.
(f)The findings of the tribunal are materially ambiguous and defective (para 33(a) to (f) of the statement of claim).
Further, or alternatively, the decision of the tribunal was absurd, alternatively a decision that no reasonable man could come to (para 34 of the statement of claim).

The relationship of the parties

It is common ground that the plaintiff is not a member of the defendant. According to the defendant's Constitution its members are the affiliated amateur football clubs, one of which is the Bayswater Club of which the plaintiff is a member (see cl 5 of the Constitution). The defendant 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 plaintiff to apply to the defendant, the controlling body of the sport, to enable him to do so. The plaintiff, in the course of his evidence, tendered an "Application for Registration" dated 24 April 1996 (Ex 3) directed to the defendant 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 defendant).
The defendant accepted the plaintiff's application for registration and has in fact admitted in the pleadings that the plaintiff is a registered player under its rules. Thus, although the relationship between the plaintiff and the defendant is not contractual by virtue of membership, it is nevertheless consensual in the sense that the plaintiff has submitted to the jurisdiction of the defendant 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:
"30In 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 plaintiff 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 plaintiff as a member who consented to abide by the defendant'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.

Approach to decisions of domestic tribunals

A clear distinction has been drawn by the courts in relation to the extent to which they are prepared to interfere in the decisions of statutory tribunals, on the one hand, and domestic tribunals of a consensual nature on the other.
The locus classicus of the approach in regard to domestic tribunals is to be found in Cameron (supra) where it was held as follows:
"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." (at 370 per Rich, Dixon, Evatt and McTiernan JJ. See also Starke J at 384.)
Cameron, it should be noted, involved an unincorporated voluntary association which gave rise to the additional problem of the standing of members to sue, but leaving that aside because of its inapplicability in the instant case, the general approach stated above has been applied, by and large, for the last 70 years. Thus courts have refused to interfere with decisions of domestic tribunals where no "proprietary interest" has been demonstrated by the applicant seeking relief. (Gamilaroi Boomerangs Sports Aboriginal Corporation v Members of New England Group 19 [1999] NSWSC 495) In the latter case Bryson J held (at [16]) as follows:
"Unless the litigation relates to protection of important subjects of the protection of livelihood interests and property rights, the policy against intervention as stated in 1934 is just as pressing a consideration now as it was then. If a voluntary association relates only to sporting or social purposes I see nothing of substance to be achieved by the State and its judiciary making themselves responsible for resolution of internal disputes about who shall be members or who shall be officers."
While the term "proprietary interest" has often been given a wide interpretation in order to justify interference by the courts, the criteria for intervention have remained unaltered.
In relation to sporting associations specifically, perhaps the most complete statement of the extent to which courts of law can, and should, interfere with the decisions of domestic tribunals by whose decisions the parties have agreed to abide, was set out by Tadgell JA in Australian Football League & Ors v Carlton Football Club Ltd [1998] 2 VR 546 (CA). The learned Judge at 549 ‑ 550 expressed himself as follows after posing the question of the extent of interference in decisions of such tribunals:
"Counsel for the respondent sought to distinguish this case from a long line of decisions in which the courts have declined to interfere, save on a strictly limited basis, at the instance of parties affected by decisions of domestic tribunals to which there has been consensual submission. Examples are legion in which the courts have consistently refused to review on the merits decisions made by private or domestic tribunals that had been established to deal with disputes within organisations to which people had become voluntarily affiliated, by contract or otherwise … The kinds of organisations with whose internal decisions the courts have declined to meddle include social clubs, sporting associations, trade unions, professional associations such as a stock exchange, political parties … The courts have not taken the view that a privately‑founded, privately‑managed organisation … is necessarily to be subject to control by the courts. That is certainly not to say that such an organisation may treat itself as above the law: it is merely to acknowledge that the courts will not discourage private organisations from ordering their own affairs within acceptable limits …
Statutes aside, the courts have been disposed to interfere in a limited way with decisions of private or domestic tribunals in order to protect private rights that had been adjudged to deserve protection, including rights in property. The concept of property has been broadly interpreted for this purpose and, in cases within that category, I believe that there is no decision of a private or domestic tribunal with which the courts would refuse to interfere if interference be considered necessary for the attainment of justice." (Authorities quoted in the above passages have been omitted)

(See also Mitchell v Royal New South Wales Canine Council Ltd (2001) 52 NSWLR 242 at [38].)
Similar approaches have been taken in relation to the suspension of amateur players who had been found guilty of misbehaving in a manner which brought the game into disrepute. Thus in Skelton v Australian Rugby Union Limited [2002] QSC 193, Chesterman J refused to grant an interlocutory injunction on the basis that the applicant who had complained of being unjustifiably excluded from a voluntary association was playing as an amateur without remuneration and was unable to establish "some right of a proprietary nature". In Skelton, the applicant had been suspended for assaulting a touch judge after being sent off the field for kicking an opposing player. In regard to the kicking of the opposing player, he was suspended from playing rugby for 12 months, and in regard to the assault on the touch judge he was suspended for 10 years. The basis of Chesterman J's doubt as to whether there was a serious question to be tried in Skelton appears from para 16 where he held that:
"The absence of any economic benefit in the applicant's being allowed to play club rugby is the obstacle on which the second basis also founders. There are many cases in which the courts have intervened where exclusion or suspension from membership of a club or association has occurred in breach of the organisation's rules, or of natural justice. All the cases are, however, predicated upon the person involved suffering some diminution of rights of property, livelihood or trade."
(See also Gamilaroi Boomerangs v Members of New England Group 19 (supra); and Smith v South Australian Hockey Association Inc (1988) 48 SASR 263 at 264‑5; Shepherd v SA Amateur Football League Inc (1986) 44 SASR 579.)
Great emphasis was placed upon the above authorities by the defendant's counsel. I proceed to deal with the issues raised by the plaintiff bearing the approach enunciated above in mind.

The jurisdiction issues

The plaintiff contends, in the first instance, that because there has been a failure to comply with the defendant's by‑laws in the respects adverted to below, the decision of the Investigation Tribunal is invalid and must be set aside.
The plaintiff's objections to the jurisdiction of the Investigation Tribunal are sixfold. His counsel's submissions were as follows:
"1.Because the defendant lodged its Constitution together with its by‑laws for registration at the time of its incorporation under the repealed Act, both the Constitution and the by‑laws became and constituted the 'rules' of the defendant referred to in the Act. The result of registration in that form is that any amendment to the Constitution or the by‑laws is required to comply with the provisions of the Act. Because the applicable by‑laws were not amended as provided in the Act, namely by a special resolution taken by three-quarters of its members at a general meeting followed by registration, it is contended that the amendments to the by‑laws are void.
2.Alternatively if the by‑laws are not part of the 'rules' of the defendant, the motion to amend by‑law 3 was not "carried" as reflected in the minutes relating thereto.
3.If the motion to amend was carried, the by‑law appearing in the revised version was not in accordance with the carried motion.
4.In any event, by‑law 3 was not 'publicised' as required by by‑law 10.2.
5.Further, the failure of the Management Committee in terms of by‑law 3.3 to follow the procedure as set out in paras 18 and 19 of the Reply (s.v. 'Pleadings' (supra) rendered the decision invalid.
6.Upon a proper construction, the Investigation Tribunal had no power to act in terms of by‑law 9.4."
(It should be noted that the plaintiff has pleaded in the alternative that "by‑law 3.3 as enacted is void for uncertainty". (Paragraph 17 of the Reply.) No particulars were furnished to identify the respects in which it is alleged to be void on that ground, nor has the plaintiff made any submissions in support of it. I am unable to discern a basis for that allegation.)
I propose to deal with each of the above submissions seriatim.

Whether the rules of the defendant include the "by‑laws"

The Act requires an application for incorporation to be made to the Commissioner and to be accompanied by a copy of the rules of the association which conform to the requirements of the Act. Section 16 of the Act deals with rules of association and provides as follows:
"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."
Section 17 of the Act deals with alteration of the rules and provides as follows:
"(1)Subject to sections 18 and 19 an incorporated association may alter its rules by special resolution but not otherwise.
(2)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 at a special resolution and that the rules of the association as so altered conform to the requirements of this Act."
Sections 18 and 19 are not relevant for present purposes.
A "special resolution" requires a resolution of a majority of not less than three-fourths of the members entitled to vote and vote in person at a general meeting of which notice specifying the intention to propose the resolution as a special resolution has been given (s 24 of the Act).
Plaintiff's counsel has then referred me to Sch 2 of the Act dealing with the savings and transition provisions, the relevant sections of which provide as follows:
"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.
…
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."
There is no definition as to what is encompassed in the word "rules" as used in the Act. As stated above, 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. The plaintiff contends, because s 16 has been excluded by Sch 2 in relation to incorporations which predated the present Act, that the requirements of the Act in relation to what should be inserted in the rules as specified in Sch 1 do not apply to the defendant and that because the defendant's by‑laws were in addition to its Constitution registered in 1985, they were deemed by item 1 of Schedule 2 to be part of the "rules" so registered. The plaintiff accordingly submits that the defendant's Constitution and its by‑laws registered under the repealed Act constitute its "rules" and that therefore the procedure for any amendment to the defendant's rules (including its by‑laws) had to comply with s 17 of the Act. Plaintiff's counsel therefore contends that because the requirements of s 17 of the Act have not been complied with, amendments to by‑law 3 are invalid and the power of the Investigation Tribunal to do anything other than investigate is void and of no force and effect.
As stated above, the defendant concedes that if its by‑laws are to be regarded as part of its "rules" the amendment to those by‑laws was not made as required in s 17. (TS634) However, the defendant contends that the "rules" of the defendant do not include its by‑laws but are to be confined only to those provisions which are, by the Act, required to be part of its Constitution. The defendant submits that the fact that the defendant lodged its by‑laws together with its Constitution when it was registered under the Act did not by that fact alone – as contended by the plaintiff – make those by‑laws part of its rules requiring adherence to the procedures laid down by s 17 of the Act for their alteration or amendment.
As indicated above, the word "rules" has not been defined in the Act which does not distinguish between rules and by‑laws. The Act itself refers to rules but makes no reference to "by‑laws". However, the Constitution of the defendant upon which the plaintiff relies for the above argument (revised in 1986 and filed with the Department of Corporate Affairs on 28 April 1987) itself draws a distinction between the "rules" of the association and "by‑laws". Whereas Rule 14 deals with and provides a specific procedure for the amendment of the Constitution, a power is conferred on the Management Committee under Rule 10(b) of the Constitution, "to make, repeal or amend by‑laws, not inconsistent with this Constitution or with the provisions of the Associations Incorporation Act (1895‑1969) to carry out the objects of the League …". An entirely different procedure is laid down in relation to by‑laws and their amendment, to the effect 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" (Rule 10(b)). The latter Rule, renumbered 10.2, would have no field of operation if "by‑laws" were part of the "rules" and could only be amended in terms of s 17 of the Act.
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. It is true – as pointed out on behalf of the plaintiff – that some of these topics overlap with provisions in the by‑laws but, in my view, it was not the intention of the legislature that the registering authority and the Commissioner should be concerned with the minutiae of management of an association, provided that the by‑laws enacted are not inconsistent with the provisions of the Act. It is difficult to conceive that it was the legislative intent to require every minor amendment to the by‑laws to be adopted by a special resolution of three‑fourths of the members present and entitled to vote at a general meeting followed by registration by the Commissioner.
The Act was designed, in my view, to ensure that every association which desired incorporation would have a basic framework containing certain essential features. Clearly, the legislature could not prescribe the by‑laws which were to be adopted by associations seeking incorporation because of the wide spectrum of bodies, large and small, with different aims and objects, which would be seeking registration. The minutiae regulating the internal management of such a diverse and differing group could not possibly be prescribed by the legislature on the basis of one set of by‑laws "to fit all". These are left to each incorporated body to regulate. Provided the by‑laws are not inconsistent with or contrary to that basic structure, the association was free to introduce and amend those by‑laws by a less complicated and cumbersome method than that demanded of amendments to the constitutional framework itself. That the Constitution itself makes express provision for by‑laws and their alteration by a different method and that the Constitution in that form was approved by the Commissioner is not without significance. I am therefore unable to accept the argument proffered on behalf of the plaintiff, outlined above. The mere fact that the by‑laws made by the Management Committee were lodged, together with the defendant's Constitution for registration with the Department, did not, in my view, make those by‑laws part of the defendant's "rules" which were required to be registered. The erroneous and unnecessary lodgement by the defendant of the by‑laws, together with the Constitution, did not, in my opinion, elevate those by‑laws to the status of "rules" which the Act required to be incorporated in the Constitution.
An identical argument to the above was raised by the plaintiff in the application for an injunction before Hasluck J. His Honour, after setting out the respective arguments ([2003] WASC 70 at [28]‑[37]) came to a similar conclusion to that arrived at by me when he found:
"the submissions made on behalf of the defendant are more persuasive than the opposing case. 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" (at [38]).
While it is readily conceded that the views of his Honour were expressed in the context of an application for interlocutory relief, they relate to a legal interpretation of the provisions of the Act and are to a large extent unaffected by any factual dispute arising on the affidavits placed before him. I find myself in full agreement with his reasons.
The effect of this conclusion is, as stated above, that it is unnecessary for me to deal with the issues raised in par 27 to 32A inclusive of the statement of claim, as they are based on an assumption contrary to the conclusion reached by me.

Whether the motions to amend by‑law 3 were "carried"

The plaintiff argues even if the by‑laws are not part of the "rules" of the defendant, that the motions to amend by‑law 3 were not "carried" by the Management Committee. In support of his argument, counsel for the plaintiff referred to minutes of the Management Committee dated 9 March 1992 (Ex 19), which were confirmed at the following meeting on 23 March 1992 (Ex 35). He also in a similar context referred to the minutes of the Management Committee meeting dated 11 April 1994 (Ex 21) which were confirmed in the subsequent meeting dated 2 May 1994 (Ex 36).
In the minutes of 9 March 1992, plaintiff's counsel referred to the notation in relation to each of the motions placed before the Management Committee that such motions were recorded as either carried or lost. The exception to such notation was to be found in the motion moving the alteration of by‑law 3.1 and 3.2. Similar observations were made by the plaintiff's counsel in relation to the minutes of 11 April 1994 where all the motions except those relating to the addition of by‑law 3.3 were noted as "carried", while there is no notation as to whether the motion introducing the new by‑law 3.3 was carried or lost.
The only witness called in relation to this aspect of the matter was Neil Judge who was, at the relevant time, the Executive Officer of the defendant. He indicated that he attended all meetings of the Management Committee, took notes and typed up the minutes concerned. Although these meetings took place some time ago, he is adamant that the motions in question were in fact carried (TS395, 460). This is to some extent supported (subject to what is stated below) by the fact that those amendments were incorporated in subsequent revisions of the by‑laws. Moreover, the accuracy of the minute‑taking clearly leaves much to be desired. It is patent particularly from the minute of 9 March 1992 that in setting out by‑law 3.1 and 3.2 as recorded in the minute there have been obvious omissions (TS394). Thus in dealing with by‑law 3.2, the minute records the by‑law as follows:
"The investigating chairman or tribunal shall exercise the following functions and its decision shall be final. No appeal will be allowed."
However, the minute omits to record what the "following functions" are. This is a patent oversight when compared with the proposed minute which was attached to the agenda for that meeting (Ex 18), and which in fact sets out what "the following functions" were. These are set out in the following main heading.
I am accordingly satisfied, in light of the above considerations, that the omission in each case to indicate that the motion was carried was in fact an oversight and that on the probabilities the evidence of Judge on this aspect should be accepted that the motions were duly carried.

Whether by‑law 3 was amended in accordance with the carried minute

This submission also stems from the inaccuracy of the minute‑taking. Plaintiff's counsel contends that by‑law 3 as appearing in the various revisions does not accord with the precise terms of the motion carried and recorded at the relevant meeting. He therefore argues that the amendments were invalid.
It appears from the evidence of Judge on two occasions after the proposed amendments were carried at the Management Committee meetings, that he (Judge) made alterations to the motions carried by the Management Committee. By‑law 3 dealing with the Investigation Tribunal as it appears in the 2001 revision, provides as follows:
"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 and its decision shall be final. No appeal will be allowed. [original emphasis]
3.2.1Hear all charges or protests referred to it by the management committee or Executive Officer under the By‑laws of the League.
3.2.2Hear all witnesses to the incidents as the chairperson of the tribunal deems in his/her or their absolute discretion to be relevant.
3.3Members of the management committee and official observers appointed by the management committee may prefer charges against players, clubs, coaches, or other officials of any club in respect of matters arising out of, or in the course of any game and in relation thereto, shall so far as possible, follow the same procedure as in the case of charges preferred by umpires." [emphasis supplied in by‑laws 3.2.2 and 3.3]
When the first amendments to by‑laws 3.1 and 3.2 were made in 1992 the motion as carried contained at the end of 3.1 the words "of the Protests and Disputes Tribunal". Those words were deleted by Judge on the basis that by‑law 8.2.4 deals with the powers of Protests and Disputes Tribunal (P & D Tribunal) and that according to him the words deleted were superfluous (TS396, 456). The by‑law in question (8.2.4) empowers a P & D Tribunal inter alia to "impose such penalties or fines authorised by these by‑laws as it deems fit, or it may give a caution". I agree that the deleted words were superfluous, in that their deletion does not in any way detract from the import and meaning of the by‑law in question.
I am of the view that, in his role as Executive Officer, charged with the duty of putting into practical effect the decisions of the Management Committee, he had the implied authority to rectify anything which was "blatantly wrong or incorrect" as he deposed was his practice to do (TS457). Judge in fact deposed that it was his understanding at the time that he had general delegated authority from the Management Committee "to correct any obvious anomalies in the by‑laws" (TS397). No serious argument could, in my view, be mounted against that proposition. It would be absurd to suggest that Judge was obliged (no matter how blatantly wrong or incorrect) to incorporate into the revision of the by‑laws, amendments which fell into that category.

The same considerations apply to the alteration made by Judge to by‑law 3.3 when he replaced the words "to the Investigation Tribunal" by the emphasised words. A perusal of the by‑law then operative when by‑law 3.3 was introduced in 1994 (the 1986 revision) reveals that in fact there were no procedures laid down for charges preferred "to the Investigation Tribunal". The only procedures provided for in any detail were those in the case of charges preferred inter alia by umpires (by‑law 7 read with by‑law 8). To have left the replaced words as they stood would have deprived the amendment of all meaning and would have rendered it nugatory. The absurdity of leaving the replaced words in by‑law 3.3 as it stood is therefore self‑evident. For the reasons expressed above, I find that Judge, pursuant to his duties of Executive Officer, was impliedly authorised to make the changes he made in by‑law 3.1 and 3.3.
The alteration made in by‑law 3.2.2 however falls into an entirely different category. It cannot be explained on the basis that the amendment was blatantly wrong. In by‑law 3.2.2 the emphasised words above replaced the words "as requested by all parties" appearing in the proposed amendment attached to the agenda for the meeting of 9 March 1992.
Judge's memory on this amendment is understandably non‑existent (TS458). Indeed, I would have had cause for doubt had he remembered, independently, the circumstances of the change which took place at a meeting in March 1992. As indicated above, the minute itself does not record the proposed amendment fully in that it completely omits to record by‑laws 3.2.1 and 3.2.2 at all, so that no assistance in refreshing his memory can be obtained therefrom. I am satisfied that Judge would not, of his own initiative, have made an alteration of the kind under discussion. I am of the view that, on the probabilities, the proposed amendment attached to the agenda came up for discussion at the meeting and was altered and carried in the form found in the following revision, i.e., 1998 revision (Ex 20) with the emphasised wording.
In any event, the difference of wording in its pre and post‑amendment forms had no material effect either on the decision or on the manner in which the hearings were conducted as Prior in fact heard all witnesses "as requested by the parties". As has been seen earlier in these reasons, there is a general reluctance on the part of courts to interfere with decisions of domestic tribunals and they will generally not set aside, in the exercise of its discretion, a decision of such a body where – as here – the difference of the wording in by‑law 3.2.2 would not have materially affected the decision. (The propriety of this approach is dealt with fully below where the effect of a failure of the Management Committee to follow the procedures stipulated in by‑laws 9.8, 9.9 and 9.12 is examined more fully. See generally Halsbury "The Laws of Australia", Vol 1(2) paras 10‑2186 and 10‑2482.)
The evidence taken at the hearings and dealt with more fully below, indicates that the plaintiff called the witnesses he wished to call and there is no suggestion that Prior exercised any discretion which prevented the plaintiff from presenting the evidence of witnesses which he wished to call and which could in any way have materially affected the decision which Prior arrived at. (There were additional witnesses of the plaintiff at both hearings who were to be called in relation to evidence which had already been adduced and accepted by Prior. Prior's indication that it was unnecessary for the plaintiff to call them cannot be construed as preventing him from calling further evidence which could have added to his defence. The plaintiff did not in any way object to that course being taken.) Had the hearings been conducted under the original by‑law 3.2, the evidence led and the procedure followed would have been exactly the same. I am therefore not prepared, in the exercise of my discretion, to invalidate the decision on this ground, on the basis of a different wording to the by‑law which would have had no bearing on the proceedings or their outcome.

Whether the amendment to by‑law 3 was "publicised" as required

Rule 10(b) (or Rule 10.2 as it is now renumbered) of the Constitution empowers the Management Committee to make, repeal or amend by‑laws not inconsistent with the Act and specifies in a proviso that "all by‑laws made by the committee shall have effect only 14 days after being publicised and shall be subject to disallowance or amendment at the next council meeting." The plaintiff's counsel has argued that the need to "publicise" requires the defendant to publish the amendment in a newspaper or other publication which will reach the public at large. He contends that the publication must be wider than merely confined to the members of the defendant who are the constituent clubs and argues that because there was no such publication, the amendments to the by‑laws are all invalid.
I am unable to accept that submission. In my view, the proviso to Rule 10.2 requires nothing more than that the amendment to the by‑laws be brought to the attention of the members of the defendant. There is, in my view, no interest in bringing amendments or alterations to the by‑laws of the defendant to the attention of any person outside its membership. I accordingly dismiss this argument, as being without merit.

Whether in terms of by‑law 3.3, the prescribed procedures were followed

The pleading in relation to this issue is fully set out above (see [47]) and need not be repeated. The issue raised by the reply is premised upon a failure of the Management Committee, as required by by‑law 3.3, to follow the procedures "so far as it is possible" when charges are preferred "by clubs". However, by‑law 3.3 does not require the procedure prescribed for "clubs" to be followed, but procedures for charges preferred "by umpires".
The above notwithstanding, the gravamen of the argument is that the procedure laid down in by‑laws 9.8, 9.9 and 9.12 has not been followed. The procedure to be followed for charges preferred by umpires is "so far as possible the same procedure as in the case of charges against players" (by‑law 7.2).
By‑laws 9.8, 9.9 and 9.12 do in fact prescribe a procedure to be followed in charges preferred inter alia against players. However, those by‑laws have not been pleaded in full by the plaintiff, the extracts pleaded in the reply not indicating the context in which they must, in my view, be interpreted. The by‑laws in question provide relevantly as follows:
"9.8Any club or any person making any … charge against another … player or official … shall forward the same with particulars in writing to the Executive Officer together with the sum of twenty (20) dollars within seven (7) days after the date upon which the occurrence complained of took place … or such further time as the management committee or Executive Officer in their discretion may allow. Any … charge under this rule shall be referred to the management committee or Executive Officer and be considered by them immediately, or at the meeting of the management committee next following the date upon which such … charge was received by the Executive Officer. The management committee or Executive Officer may dismiss any such … charge if they consider it frivolous or vexatious but otherwise they shall refer it to the investigation tribunal for determination. Should the Executive Officer dismiss such … charge it shall be referred to the management committee for review. The said sum of twenty (20) dollars shall be forfeited to the League upon dismissal by the management committee or if it be decided by the tribunal that the … charge was frivolous or groundless, but shall be refunded if the … charge is upheld or the tribunal so directs.
9.9Any club or person making a … charge against … another player, or official … shall give notice thereof and of the particulars to such club by certified mail within forty eight (48) hours after lodging the same with the Executive Officer.
…
9.12The Executive Officer … in all cases shall satisfy himself that all the provisions of this by‑law have been complied with before submitting any complaint to the investigation tribunal."
The procedures laid down are, in my view, intended to provide a "filtering" system, controlled by the Executive Officer and the Management Committee designed to eliminate complaints or charges which are frivolous or vexatious. The procedure discourages complaints falling into that category by requiring the payment of a deposit which is forfeited should the Management Committee determine that the charge preferred or complaint made can be so described.
In the instant case, the charges to be investigated and later preferred emanated from or were approved by the Management Committee itself. It would therefore be absurd for the Management Committee or persons acting on its behalf to provide details to itself of the charge it has preferred or to pay a deposit in relation to a charge, the source of which is the Management Committee itself. The phrase used in by‑law 3.3 that the procedure to be followed should be "so far as possible" the same, clearly indicates that in the context of by‑laws 9.8, 9.9 and 9.12, a complaint which is made by the Management Committee does not sensibly require to be particularised in writing to itself or that a deposit need be paid against the possibility of it being determined by itself to be frivolous or vexatious, or that the Executive Officer, the instrument of the Management Committee, need satisfy himself that the rules in question have been complied with for the above purpose.
In the event that I am wrong in my construction of the by‑laws above, I am of the view, nevertheless, that the argument relating to the failure to follow the procedures mentioned above cannot prevail for the following reasons. A court will not set aside every decision in which there is a failure to take into account a relevant consideration (Halsbury: "The Laws of Australia", vol 1(2), par 10‑2186) where the relevant consideration is so insignificant that the failure to take it into account could not have materially affected the decision (Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 40; Okyere v Minister for Immigration and Ethnic Affairs (1997) 44 ALD 549 at 554). Even in the case of some statutes, certain failures to comply with procedure laid down therein may be so relatively unimportant to the attainment of the general object of the statutory provision that total non‑compliance with that element will not invalidate the administrative action taken (Halsbury: (op cit) par 10‑2090 and the authorities cited at note 9).
In the case of a domestic tribunal's decision where the failure to follow procedures will not, for lack of materiality, invalidate that decision, that qualification can be regarded as part of the general discretion of the Court to decline relief (Halsbury: (op cit) par 10‑2186, and 10‑2482).
In my view, the failure to follow the procedures laid down in by‑laws 9.8, 9.9 and 9.12 fall into the above category in that its non‑compliance in no way, materially or otherwise, affected the hearings or the decision arrived at by Prior. The fact therefore that the Management Committee has failed to furnish particulars in writing of the charge to the Executive Officer and to deposit a sum of $20 within the time periods concerned cannot, in any way, have materially affected the decision of the Investigation Tribunal or the interests of the plaintiff.
It should be noted further that, while the particulars of the charge were not furnished to the club by certified mail, as required by by‑law 9.9, the letter of 18 March 2002 was, in fact, addressed to the President of the Bayswater Club for the attention of the plaintiff (who was the President at that time) which, in my view, constituted a substantial compliance with that by‑law.
I am accordingly of the opinion that the plaintiff's argument under this head must also fail.

Whether the Investigation Tribunal is empowered to act under by‑law 9.4

The plaintiff contends that upon a proper construction of by‑law 9.4, the Investigating Tribunal does not have the power to penalise him or anyone else (par 31 of the Claim).
The provisions of by‑law 9.4 are fully set out above (see Background (e)).
For the purpose of this argument, it is only necessary to refer to the relevant portion of by‑law 9.4 which provides:
"… and in the case of a player disqualified from playing during such time as […] deems fit …"
The question which arises is which entity is empowered to do the disqualifying.
The plaintiff argues that the only power to penalise in terms of by‑law 9.4 resides in the Protests & Disputes Tribunal. The argument rests upon the judgment of Templeman J who held that by‑law 9.4 must be read as if the words "P & D Tribunal" were inserted between the words "as" and "deems". The learned Judge found that there was an obvious omission in by‑law 9.4 and that the only entities to which the omission could relate were either the Management Committee or the P & D Tribunal. (See [2001] WASC 154 at [35] to [49] inclusive).
A perusal of the judgment of Templeman J reveals that the entire argument revolved around the proper construction of by‑law 9.4 in the context of the 1986 by‑laws. This is clear from his Honour's quoting of the provisions of by‑laws 9.1 to 9.5 at [35] of his judgment where no reference is made to by‑law 9.4.1 which was introduced thereafter and which was incorporated in the 1998 revision of the by‑laws (Ex 20).
The significance of the reliance on the 1986 by‑laws is that by‑law 3 had, at that stage, not yet been amended. The amendments to by‑law 3, as appears from the 1998 and subsequent revisions of the by‑laws, empowered the Investigation Tribunal expressly "to act in accordance with the powers laid down in by‑law 8.2.4 …" (by‑law 3.1). By‑law 8.2.4 in turn, which deals with the powers of the P & D Tribunal empowers the latter body (and by virtue of the amended by‑law 3.1, the Investigation Tribunal) to "impose such penalties and fines authorised by these Rules as it deems fit, or it may give a caution."
Templeman J did not deal with the amendment to by‑law 3.1 as outlined above and therefore did not (and indeed, could not) consider whether the omitted words in by‑law 9.4 might refer also to the Investigation Tribunal. I am of the view that had the learned Judge been referred to the amended by‑law 3.1, he would probably have concluded – as I do- that the words omitted should read "the P & D Tribunal or the Investigation Tribunal". I have come to the conclusion by reason of the fact that the intention of the amendment to by‑law 3.1 was expressly to confer upon the Investigation Tribunal the power not only to investigate but also to penalise in the same way as the P & D Tribunal is empowered to do under by‑law 8.2.4. This it would do after it (the Investigation Tribunal) "hear[s] all charges or protests referred to it by the Committee of Management or Executive Officer under the By‑laws of the League" (amended by‑law 3.2.1).
There is, in my view, no reason why the P & D Tribunal and the Investigation Tribunal, both of whom possess identical powers under by‑law 8.2.4, should be treated any differently in supplying the obvious omission in by‑law 9.4. In my view the argument of the plaintiff that the powers referred to in by‑law 9.4 are confined to the P & D Tribunal and that the Investigation Tribunal is not empowered to act under that by‑law therefore fails.

Breaches of Natural Justice Principles

Double Jeopardy

One of the oldest rules of natural justice is that against double jeopardy. The plaintiff pleads that this principle has been violated (par 33(a) of the Claim). The rule that no man should be tried twice for the same offence rests upon solid foundations throughout common law jurisdictions, traces its origins to Greco‑Roman times, and forms the cornerstone of the pleas autrefois acquit and autrefois convict (Davern v Messel (1984) 155 CLR 21 at 29-30, 46, 62-3, 67-8). Underpinning the rule is the need for fairness to an accused who should not be vexed, oppressed or placed in jeopardy a second time for the same offence (ibid). This is particularly so if the accused has been acquitted of the charges and it is sought to re‑charge him for the same offences. The latter scenario does not arise for consideration before me.
In the instant case, the plaintiff was charged and found guilty before the Management Committee which sentenced him to a disqualification of 10 years. After the first action was instituted, the parties, following negotiation, agreed to set aside the disqualification and orally and by conduct agreed to a rehearing de novo. The agreement to a re‑hearing was arrived at when discussions were held as to the composition of the new tribunal when the charges were to be reheard (TS269, 272). Indeed the plaintiff protested in an email dated 9 April 2002 after receipt by him of the letter of 18 March 2002, informing him of Prior's appointment, that "[W]e agreed that the tribunal would be chaired by Mr Prior with the WAAFL supplying one delegate and myself supplying one delegate. The need for this tribunal to be impartial is paramount and what we agreed to in the mediation meetings should be followed…" (Ex 7). In response, the Executive Officer (Stow) on the same day reminded the plaintiff that the composition referred to by him was one of three proposals which had been rejected by the plaintiff but that the one suggested by his (the plaintiff's) solicitor was accepted. Stow's email (Ex 8) stated further that "if you believe that the procedure used is not correct, you have the right as always to seek legal advice as afforded you by common law". What clearly emerges from this interchange is that the parties had agreed that the charges were to be re‑heard, after the original disqualification was set aside.
The hearings then proceeded and at no time during the hearings or in the plaintiff's response thereafter (see Background (i)) was the agreement that the charges were to be re‑heard ever challenged.
Once the agreement was reached to set aside the first tribunal's disqualification of 10 years and to reactivate the charges before another tribunal in the circumstances outlined above (whatever its composition was to be) there was, in my opinion, no scope for invoking the double jeopardy rule. The plaintiff was not being punished twice for the same offence as the penalty of the first tribunal was set aside by agreement. The reason for setting it aside did not emerge in evidence before me. It is difficult to conceive of a reason for agreeing to set aside the decision of the first tribunal and to re‑try the plaintiff on the same charges other than that it was tainted by some irregularity or procedural unfairness. (It appears from the judgment of Templeman J in the first interlocutory proceedings (at par 6) that when the plaintiff attended the first tribunal he had not been told of any proposal to discipline him, nor had a charge or complaint been put to him, when he was disqualified.) Whatever the reason might have been, the aborting of the decision of the first tribunal by agreement between the parties coupled with the agreement to re‑hear the charges before a tribunal, other than by the Management Committee itself, eliminated the plaintiff's possible exposure to a double penalty. The possibility of penalising the plaintiff twice for the same offences simply did not exist.
The courts have generally recognised the propriety of a re‑trial of charges when the decision of a tribunal has been set aside. In most cases, the courts have been concerned with whether, on re‑trial of the charges by the same tribunal, a defence of bias could be successfully raised. In none of the cases, however, has it been suggested that there has been a double jeopardy when charges under those circumstances have been retried.

In light of the above I have come to the conclusion that the hearings conducted by Prior were fair, that the plaintiff was given sufficient opportunity to prepare his case which he did, and that he did in fact produce evidence in mitigation of sentence which Prior duly took into account as appears from his second report dated 19 July 2002 (see Background (h)).

Bias – whether actual or reasonably apprehended

The plaintiff has contended, because Prior was responsible for the drafting of the charges and for adjudicating thereon, that there has been breach of a fundamental rule of natural justice that a prosecutor cannot sit as a judge in the same matter (par 33(c) of the Claim). The principle invoked is clear (Dickason v Edwards (1910) 10 CLR 243 at 259; Australian Workers' Union v Bowen & Ors (No 2) (1948) 77 CLR 601 at 628.) However, there is no absolute rule that a denial of natural justice must necessarily be found when the person laying the charge also adjudicates upon it, nor is there a rule of law that a committee that has adjudicated guilt on issues, cannot afford natural justice on a second hearing of the same issues. The plaintiff contends that there is a reasonable apprehension of bias by reason of the fact that Prior fulfilled both functions. The defendant on the other hand contends that the test to be applied is not the one contended for by the plaintiff but that it is necessary to find actual bias on the part of Prior. I am of the view for the reasons which follow, that the arguments proffered on this issue by the defendant are to be preferred.
In Bowen's case (supra) the secretary of the trade union was entitled by its rules to sit as a member of its executive council. However, he had been actively engaged in a controversy with certain members which included Bowen and the other respondents. The secretary had presented to the executive council, as "prosecutor", certain charges against those members and also took an active part in the hearing of these charges as a member of the council. The members were expelled. Evidence was led that prior to the bringing of the charges, Bowen had sent out circulars to members of the union "in strong terms". The secretary then published in "The Worker" a number of attacks upon Bowen and the other respondents. Those attacks were reduced to a synopsis and published as a separate booklet which was distributed amongst the members. As Dixon J pointed out (at 626):
"The strength and bitterness of the pamphlet is undeniable. The ground which it covers includes the matters forming the basis of the charges and much else besides".
Dixon J then dealt separately with the principle of bias to be applied to the members of the executive council and that of the secretary. As will be seen from the extracts of his Honour's reasons cited below, Dixon J appeared to deal with the question on the basis of actual bias. No mention was made by him of a reasonable apprehension of bias. After setting out the contention on Bowen's behalf that the executive and the secretary were both prosecutors and Judges and were animated by such intensity of feeling that they were disqualified by bias, his Honour at 630 dealt with the alleged bias of the executive council as follows:
"So far as this contention is based upon the fact that the executive council promoted the charges and that they were vitally concerned in the controversy not only as members of the union but as office bearers whose authority had been resisted, there is in my opinion no substance in it. The reason lies in the constitution of the union. In choosing as a domestic forum a governing body and in authorising it to make inquiries and investigations of such a kind the rules necessarily bring about, if they do not actually contemplate, such a situation. Domestic tribunals are often constituted of persons who may, or even must, have taken some part in the matters concerning which they are called upon to exercise the quasi‑judicial function. Nor do I think that it has been shown that any particular member, putting aside the general secretary was disqualified by any interest or specific ground of bias attaching to him or to them all."
His Honour proceeded to deal with the position of the secretary and outlined the extent to which the secretary took part not only prior to the hearing in the formulation of the charges, but also in the participation by him "in bitter public attacks on the respondents, particularly on Bowen, and had exhibited the most intense and extreme opinion about the respondents' conduct concerning the matters in question". His Honour then dealt with the position of the secretary in the following terms (at 631):
"It is true that the rules make him a member of the Council as general secretary and require the general secretary's attendance. But they do not make his presence indispensable and do not necessitate his participation in the decision of questions in which his interest or concern makes it improper … It is not in accordance with the principles of natural justice to have present as a member of the tribunal a person who has promoted the charge and supports it as the prosecutor or one who is invincibly biased against the accused as a result of his participation in the controversy, and this was the case with Doherty [the secretary]. If a person disqualified by such considerations sits with the tribunal and takes part in the decision, that is enough to vitiate it; Dickason v Edwards." (Emphasis supplied)
In Maloney v NSW National Coursing Association Ltd (No 2) (1978) 1 NSWLR 161, Glass JA, with whom Hope and Hutley JJA concurred, dealt with the passages cited above in Bowen's case and noted the absence of any reference to reasonable apprehension of bias in those passages. His Honour observed that "its total omission is eloquent". Glass JA found in support of his view that actual bias must be established in the case of domestic tribunals of a consensual nature that it was clear from the judgment of Dixon J (at 170) that:
"The only legally operative bias from the standpoint of natural justice was the actual bias of Doherty which had assumed invincible proportions. It seems clear that, if the actual bias of Doherty was necessary to vitiate the proceedings of the tribunal, the bias as to which all the others must have come under reasonable suspicion could not have been either relevant to disqualify them or sufficient to invalidate what they decided".
After reviewing the authorities referred to above as well as Cains v Jenkins (1979) 28 ALR 219, (a decision of the Full Court of the Federal Court), Nicholson J in Jackson v Western Australian Basketball Federation Inc (1990) 21 ALD 283 held at 285 ‑ 286 as follows:
"The purport of those authorities is that there is a different approach to be taken to the rules of natural justice depending upon whether the tribunal hearing the charges is statutory or domestic or consensual in origin. To the statutory tribunal the law applies a test based on the appearance of fairness; a reasonable suspicion of bias generated in an assumed informed observer is sufficient to nullify proceedings. In the case of a consensual tribunal the reality is considered; actual bias must be proved."
(See also Whittle v The Australian Miniature Pony Society Inc (1995) 57 FCR 252 at 268 ‑ 269; Bornecrantz v Queensland Bridge Association Inc [1999] QSC 058 per Chesterman J [33] ‑ [34]; Dale v NSW Trotting Club Ltd (1978) 1 NSWLR 551 (CA) at 554‑555).
In order to constitute actual bias or "invincibly biased" in the Bowen sense, there must be a pre‑existing state of mind which renders decision‑making dysfunctional, (Geng v Minister for Immigration & Multicultural Affairs (1998) 84 FCR 87).
In support of the contention that the test to be applied is one of a reasonable apprehension of bias, the plaintiff relied mainly on Laws v Australian Broadcasting Tribunal (supra). That case, however, dealt with a statutory tribunal to which, as indicated above, entirely different considerations apply (see also Stampalia v The Racing Penalties Appeal Tribunal of Western Australia [2000] WASCA 24 (supra); Julien v The Racing Penalties Appeals Tribunal of Western Australia (supra).
It is unnecessary by reason of concessions made by counsel for the plaintiff to examine the conduct of Prior in order to determine whether he was motivated in his inquiries, deliberations and decision by actual bias. The plaintiff did not contend that there was actual bias nor is there any scope for a suggestion to that effect. The plaintiff based his argument on the allegation that there was a reasonable apprehension of bias because Prior had fulfilled the dual roles of prosecutor and judge.
My findings that the proper test to apply in the case of a domestic tribunal of a consensual nature is one of actual malice and the fact that the plaintiff did not argue that there was actual malice make it strictly unnecessary to deal with the contention of reasonable apprehension of bias raised by the plaintiff's counsel.
Insofar as I may be incorrect in the conclusion that the proper test is one of actual bias and should the true test be one of a reasonable apprehension of bias, I am unable to conclude that even the lesser test has been satisfied. In this connection it is convenient to refer to Julien's case (supra) where the Full Court of the Supreme Court of Western Australia found that, dealing with a statutory tribunal, there was no reasonable apprehension of bias on the facts on the part of a panel of stewards which conducted two hearings in respect of the same incidents and the same charge against the applicant, notwithstanding that the panel had made findings adverse to the applicant's credit and those of his witnesses after the first hearing and notwithstanding the finding that it may have been preferable for the second inquiry to have been conducted by a different panel (at [72]). The conclusion was arrived at by the Full Court on the basis that there was ample evidence justifying the conclusion to which the stewards had arrived and felt that there was no basis to interfere with their conclusion in the light of the appropriate manner in which the second inquiry had been conducted.
I have dealt at some length with the manner in which the hearings were conducted in the section headed "Procedural Fairness" (supra). The contents of the various issues discussed thereunder need not be repeated. The conclusion reached by me in that section indicates that the conduct of the hearings in which the plaintiff was given a full opportunity to prepare his case, and to adduce the evidence of the witnesses he desired to call and to present his case, (both on the merits and in mitigation) was in the circumstances fair. In my view no case has been made out that there was a reasonable apprehension of bias, even on the assumption that the latter test is the appropriate one.
Moreover, it is to be noted that at neither the first, nor the second hearing, did the plaintiff object to Prior sitting as investigator and in judgment on the basis that he was actually, or might reasonably be viewed as being biased against him. In fact Prior was nominated by the plaintiff as one of a panel to re‑hear the charges (see "Double Jeopardy" (supra)). It should be noted further that after the findings of Prior at the second hearing were made known to the plaintiff, he wrote a letter dated 14 August 2002 (Ex 12) in which he expressed disappointment in Prior's findings and raised arguments as to why he should not have been convicted of the charges. What is significant for present purposes, is that although in that letter he dealt at length with the provisions of the by‑laws and the appropriateness of charging him under by‑law 9.4 when other by‑laws covered the admitted playing of unregistered players, he at no stage until the second action was instituted raised the issue of bias whether actual or apprehended. While I do not attach too much weight because the plaintiff is a layman, it should be noted that it has been held that it is not permissible to remain silent until the final judgment is known and then object if the judgment is adverse (Vakauta v Kelly (1989) 167 CLR 568 at 572; Bornecrantz (supra) at [37].)
By reason of my finding that there is no evidence of actual bias, nor of apprehended bias on the part of Prior, it is not necessary for me to deal with the submission of the plaintiff, forming the substratum of his argument on bias, that the charges were preferred by Prior and not by the Management Committee.

Material ambiguity and defectiveness

The plaintiff has pleaded (at par 33(f) of the Claim) that "contrary to the most fundamental principles of common justice" the findings of the Tribunal "are materially ambiguous and defective". In support of that allegation he has set out six specific particulars in which it is claimed the findings fall into the alleged category. The particulars alleged are as follows:
"1.The Tribunal assumed that the factual allegations constituted a breach of by‑law 9.4 (presumably because he formulated the charges). There was no finding that the relevant conduct was conduct prejudicial to the good order, management, control and administration of amateur football.
2.The fourth paragraph of the Reasons contains a non sequitur. On the one hand it is said that the plaintiff does not deny that he knowingly allowed unregistered players to play. On the other hand it is said that the plaintiff's evidence is to the effect that there was nothing he could have done to prevent the conduct.
3.After noting that the plaintiff's said evidence was corroborated by two other witnesses and documentary evidence the Tribunal found that these facts did not constitute a defence and then found that the plaintiff ultimately had the final decision as to who played … [original emphasis].
4.The finding that the plaintiff would have been clearly aware of the By‑laws of the WAAFL and in particular, the significance of By‑law 9.4 because of his involvement with the WAAFL as a player, coach, umpire, Committee Member and President of the BAFC is irrelevant and defective.
5.The finding that Appendix 4 to the by‑laws had important information about who could witness statutory declarations is incorrect.
6.The Tribunal did not make plain which of the allegations of fact in the second charge it found proved. Specifically it did not find either that the plaintiff knew, or that he ought to have know, [sic] that he was not qualified to witness a declaration."
Generally, ambiguity or uncertainty as a ground for review for denial of natural justice finds expression in the area of delegated legislation, the granting of licences, permits (or other administrative instruments) or where the exercise of statutory power is uncertain. (Halsbury: op cit para 10‑2270) Thus courts attempt to interpret delegated legislation, or administrative instruments so as to avoid ambiguity in order to circumvent the consequences of an ultra vires finding. (Halsbury: op cit par 10‑2273) The field of operation of ambiguity as a ground for review is thus generally confined to the improper exercise of power in the sense referred to above.
Ambiguity or uncertainty or defects in the reasons for decision of an administrative tribunal are not, of themselves, a basis for review on the ground of breach of natural justice unless the ambiguity, uncertainty or defects are such that they either constitute errors of law or they fall within the unreasonableness or absurdity principle discussed below.
The latter principle (unreasonableness) and the criteria expounded by the courts therefor would be rendered otiose if decisions of domestic tribunals could be set aside on the grounds of ambiguity and defectiveness. I therefore am unable to conclude that findings by the Tribunal which are materially ambiguous and defective constitutes a denial of natural or common justice, let alone being (as pleaded) "contrary to the most fundamental principles" thereof. As stated above, the findings of a tribunal might be open to attack on the basis that they constitute errors of law or unreasonableness. Even on the latter grounds, plaintiff's submission is flawed.
Most of the particulars referred to by the plaintiff attack findings of fact of the Tribunal. As pointed out by Brennan J (as he then was) in Waterford v Commonwealth (1987) 163 CLR 54 at 77, "[t]here is no error of law simply in making a wrong finding of fact". Factual findings of tribunals are left in their hands by the courts unless the tribunal has acted "perversely that is without any probative evidence at all or where no honest or reasonable tribunal could have made the decision in question". (Forbes op cit par 6.36 and the authorities there cited). The essential question to be determined therefore is whether there is a legally sustainable conclusion and not whether this court would evaluate the facts differently. (Malone v Marr [1981] 2 NSWLR 894 at 899‑900; R v Radio Authority ex parte Guardian Media Group PLC [1995] 1 WLR 334 at 344 F-H.)
I have earlier in these reasons concluded that the decision reached by Prior was legally sustainable on the evidence adduced before him. (See Issues "(i) and (iv)" s.v. "Procedural Fairness" supra). That being so, it follows that the plaintiff's arguments on the above basis must fail.
Should I be incorrect in the view taken of the authorities on this aspect of the case, I propose briefly to deal with each of the particulars referred to above in support of the allegation of material ambiguity and defectiveness in the findings of the tribunal as a denial of natural justice.
As to particular 1 above, it is in my view implicit in the finding that the plaintiff knowingly allowed unregistered players to play on the day in question and that he witnessed the signature of applicants on statutory declarations when he was aware or should have been aware that he was not authorised to do so, that such behaviour constituted conduct prejudicial to the good order, management, control and administration of amateur football. There was in my opinion no ambiguity or defect in his decision.
As to particular 2, the pleader has misquoted the Reasons as stating there was "nothing he could have done" when the decision states the plaintiff's "involvement in such breach was minimal because the unregistered players would have played irrespective of his actions". There is in my opinion no non sequitur at all. The finding that the plaintiff admitted that he knowingly allowed unregistered players to play is perfectly reconcilable with the finding that the plaintiff's evidence was that his involvement was minimal. In any event, Prior was in that part of his decision merely setting out what the evidence was. The particulars in question were not findings.
As to particular 3, it is difficult to determine why the findings referred to are said to be materially ambiguous or defective. The plaintiff admitted he was the playing coach of the team (TS290). It was open to Prior to find that as the coach he had the final say as to who played. That finding was neither ambiguous nor defective.
As to particular 4, the findings made were not irrelevant. One of the matters investigated by Prior was whether the plaintiff knew or ought to have known the by‑laws of the defendant and in particular by‑law 9.4. The fact that the plaintiff had an extremely close and longstanding relationship in numerous capacities from player to club president with the Bayswater club which was a member of the defendant was a relevant factor to take into account in determining the state of his knowledge of the by‑laws. Although the weight of such evidence may be open to argument, it was not in my view ambiguous, defective or irrelevant as claimed.
As to particular 5, this argument has been dealt with and rejected elsewhere in relation to whether the by‑laws were part of the rules of the defendant and also in relation to the argument that the note in Appendix 4 gave rise to a confusion (the alleged inability to determine between one who "witnesses" and one who "swears" argument). The latter argument is dealt with below.

As to particular 6, Prior did in fact find that the plaintiff "was well aware, or should have been well aware" of the notes in Appendix 4 detailing who could witness statutory declarations and the consequences for a failure to comply. In my view, there is nothing ambiguous or defective in that finding.
Assuming that "material ambiguity and defectiveness" do constitute a ground for asserting a denial of natural justice (and one separate from an error of law or unreasonableness), I am satisfied that none of the particulars alleged above fall into that category in the sense that they are sufficiently materially defective or ambiguous to warrant the exercise of my discretion in the plaintiff's favour.

Unreasonableness or absurdity of decision of Tribunal

The plaintiff seeks to set aside the decision of Prior on the basis that it was absurd, alternatively a decision that no reasonable man could come to (par 34 of Claim).
The particulars furnished by the plaintiff in support of this ground, in relation to the first charge are that "Rule 10.9 of the by‑laws specifically provides that a club will be fined $20 if it allows unregistered players to play". In relation to the second charge, the plaintiff relies on the following particulars:
"1The Tribunal based its finding on the fact that the Rules at the time of the offence, contained an appendix 4. In fact there has never been an appendix 4 to the Rules. Alternatively appendix 4 is irrelevant to the charge in that it does not contain any information about who can witness statutory declarations.
2Without a finding that the plaintiff knew he was not authorised to witness the declaration it was not open to the Tribunal to find that the act of witnessing a declaration contravened by‑law 9.4."
The basic fallacy of this attack on Prior's decision in relation to the first charge is that because there is a specific by‑law which deals with playing unregistered players rendering the club liable to a $20 fine it was absurd or unreasonable to charge the plaintiff under another by‑law, which could and did result in a suspension of the plaintiff. The fact that the by‑laws have a general and a specific provision into which particular conduct may fall does not render unreasonable the action of the defendant in choosing to charge an individual in terms of the by‑law under which a heavier penalty may be imposed. Nor does the fact that a penalty might appear to be disproportionate justify a court interfering with it, where it was imposed by a domestic tribunal (Shepherd v SA Amateur Football League Inc (supra) at 583‑5). The by‑laws in fact contain a provision (by‑law 9.4) which empowers the imposition of a harsher penalty if the conduct complained of falls within its ambit. The fact that there is a disparity between the penalty imposed on the club under by‑law 10.9 and that open to be imposed on a player or official under by‑law 9.4 does not in my view render the decision absurd or unreasonable. It was open to the defendant to charge and penalise the plaintiff under any of the by‑laws available to it.
Similarly, in relation to the second charge, the reference in the particulars to Prior's reliance on Appendix 4 is flawed. Prior based his decision on what the plaintiff had told him, namely, that he knew at the time that he was not authorised to sign statutory declarations but became confused when he saw other unauthorised persons doing so. Little or no reliance was placed by Prior on Appendix 4 which was not the basis on which the plaintiff was charged. In any event the allegation that Appendix 4 was not part of the Rules at the time of the offence is factually incorrect because it is based on the contention – rejected by me at [73] – that the 1986 by‑laws were applicable at the relevant time by reason of invalid amendments. Appendix 4 was part of the later revised version which was (as I have found) current at the time the offence was committed.
Great play was made by the plaintiff's counsel relating to the alleged confusion generated by the use of the terms "witnessing" and "swearing" of statutory declarations. Appendix 4, dealing with the statutory declarations contained, at the end thereof, a note "that it is necessary, when swearing statutory declarations, for the witness to be present when the person who swears the statutory declaration signs it". The note then says "the following persons are authorised to swear statutory declarations" followed by a list of authorised persons.
It is argued that according to those notes only an authorised person can be a declarant and that the latter is the only person who "swears" the declaration. It is further contended that according to Appendix 4, the witness who requires no special authority, merely signs the form where indicated as he is not the person who swears it. It is argued further that anyone looking at the form would not know that the person who attests the signature of the declarant is the person who must be authorised to do so. These arguments cannot be accepted. In my view, it is clear, despite the wording, that the list of authorised persons in Appendix 4 are those required to witness the signature of the declarant. The argument that only listed persons are authorised to sign the form as declarants and not as witnesses is devoid of all merit. If that argument were accepted, it would mean that only a justice of the peace, a Member of Parliament, or other persons mentioned on the list could apply to play amateur football – an absurd construction. The statutory declaration itself provides for two signatures, one is the "Signature of Applicant" (clearly the person who is applying to play football) and the "witness" (clearly the person before whom the applicant signs (being the person listed in Appendix 4 as an authorised person to witness the applicant's signature.)
Although the notes can give rise to confusion, it is not a confusion which affected the plaintiff. He admitted to Prior that he originally knew he was not authorised to witness statutory declarations but became confused when he had seen other unauthorised persons witness them (TS292, 509).
It was therefore not any ambiguity in the wording of the notes to Appendix 4 or the form, as argued by his counsel, which caused any confusion at all. What confused the plaintiff was not the apparent ambiguity of language on the form, but the fact that at a later stage, he saw persons whom he knew were not authorised to witness the forms, sign them.
The submissions proffered by plaintiff's counsel on the language used in, and the contents of, Appendix 4 and the statutory declaration forms therefore go nowhere as far as the plaintiff himself is concerned. It was in my view, open to Prior to find on the evidence before him, that the plaintiff knew or on his own admission, ought to have known that he was not authorised to sign or witness a statutory declaration. I turn to consider the criteria for determining the claim of unreasonableness or absurdity.
A variety of formulae is used by the courts when arguments based on unreasonableness or absurdity are raised in relation to domestic and other tribunals. It is said that in order to overturn a decision on this basis it must be "so unreasonable that no reasonable person could have reached it" (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (cited with apparent approval in Parramatta City Council v Pestell (1972) 128 CLR 305 at 327)) or "at which no reasonable person could honestly arrive" (Dickason v Edwards (supra) at 258), or "looked at objectively, must be so devoid of any plausible justification that no reasonable body of persons could have reached it" (Bromley London Borough City Council v Greater London Council [1983] 1 AC 768 (HL) at 821), or in more tempered language "manifestly unreasonable" (Commonwealth of Australia v Pharmacy Guild of Australia & Anor (1989) 91 ALR 65 at 87), or one "devoid of any plausible justification" (Halsbury: op cit par 10‑2252). Other language to a similar effect, some more expressive than others, has been used in the authorities cited by Tagdell and Hayne JJA in Australian Football League & Ors v Carlton Football Club Ltd (supra) at 557 and 568‑7 respectively (see also Mitchell v Royal New South Wales Canine Council Ltd (2001) 52 NSWLR 242 (CA) at 247‑8). It should be noted that although the House of Lords has recently referred to a movement away from "Wednesbury irrationality", that movement has been limited to cases where human life or liberty is at risk (R (Pro Life Alliance) v British Broadcasting Corp [2004] 1 AC 185 (HL) at 253-4). But in my opinion perhaps the lowest common denominator to be derived from these authorities would appear to be that the decision must be so illogical that the tribunal could not have applied its mind to the matter at hand.
Although it has been found that the "Wednesbury unreasonableness" principle does not apply to decisions of domestic tribunals (Shepherd (supra) at 583‑5; Bowen (supra) at 628) I am prepared to assume in the plaintiff's favour that it does.
Whatever formula is used, I find in light of the considerations not only stated under this head but also by reason of the findings made by Prior which were open to him (see s.v. Procedural fairness – Issues (i) and (iv) supra), that the submission of the plaintiff even on the most charitable interpretation of "unreasonableness or absurdity" favourable to him cannot be sustained.
It follows from the above, that the various arguments of the plaintiff must fail. The action is accordingly dismissed.