Rush v WA Amateur Football League (Inc) - [2003] WASC 70

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RUSH -v- WA AMATEUR FOOTBALL LEAGUE (INC) [2003] WASC 70

CORAM: HASLUCK J

HEARD: 20 MARCH 2003

DELIVERED : 4 APRIL 2003

FILE NO/S: CIV 2245 of 2002

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

Catchwords:

Contract - Voluntary sporting association - Decision by Investigation Tribunal to suspend plaintiff as coach and player - Whether the inquiry was conducted in accordance with the club rules - Whether the rules of natural justice were infringed - Whether Supreme Court has power to intervene - Interlocutory injunction granted

Legislation:

Associations Incorporation Act 1987, s 5, s 16, s 17, s 48, Sch 1, Sch 2

Rules of the Supreme Court 1971, O 20 r 19

Result:

Application for injunction granted
Application to strike out allowed in part

Category: B

Representation:

Counsel:

Plaintiff: Mr M S Macdonald
Defendant: Mr M F Herron

Solicitors:

Plaintiff: Macdonald Rudder
Defendant: Michael Whyte & Co

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

American Cyanamid Co v Ethicon Ltd [1975] AC 396
Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546
Australian Workers' Union v Bowen (No 2) (1948) 77 CLR 601
Cameron v Hogan (1934) 51 CLR 358
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
Cohen v Peko Wallsend Ltd (1986) 68 ALR 394
Kioa v West (1985) 159 CLR 550
Lee v Showmen's Guild of Great Britain [1952] 2 QB 329
McKinnon v Grogan [1974] 1 NSWLR 295
Mitchell v Royal New South Wales Canine Council Ltd (2001) 52 NSWLR 242
Mott v Mount Edon Goldmines Australia Ltd (1994) 12 ACSR 658
Nurses Memorial Centre of SA Inc v Beaumont (1987) 44 SASR 454
Rush v WA Amateur Football Club League (Inc) [2001] WASC 154
Zusman v Royal Western Australian Bowling Association (Inc) [1999] WASC 86

Case(s) also cited:

Dickason v Edwards (1910) 10 CLR 243
Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378
McNab v Auburn Soccer Sports Club Ltd [1975] 1 NSWLR 54
Russell v Duke of Norfolk [1949] 1 All ER 109
Scandrett v Dowling (1992) 27 NSWLR 483

HASLUCK J: The plaintiff, Peter Rush, has applied for an interlocutory injunction to restrain the defendant, the WA Amateur Football League (Inc), from acting on or giving effect to the decision of the League to suspend the plaintiff from acting as a club player, club coach or club official or in any capacity within the League for the whole of the 2003 football season.
The plaintiff also seeks to strike out certain paragraphs of the statement of defence filed herein on behalf of the defendant.
The plaintiff relies principally upon his own affidavit sworn 4 September 2002. The League relies upon the affidavits of Ronald James Webster sworn 17 March 2003 and that of Alan John Clement sworn 13 March 2003.
I was prepared to receive the defendant's affidavits, notwithstanding that they were filed and served shortly before the hearing commenced. However, in these circumstances, I was also prepared to receive a further affidavit sworn by the plaintiff on 20 March 2003 which was handed up at the hearing.
These evidentiary materials and the pleadings filed on behalf of the parties are of assistance to me in describing the background to the present dispute.

Background

The plaintiff is a dedicated amateur player and coach of Australian Rules Football. He has been registered as a player with the League since 1978 and has been a member of the Bayswater Amateur Football Club since 1991. He has played approximately 185 games for the Bayswater Club and served as president of the Club from February 2002 until July 2002. He is an accredited football coach with the League and was acting in that capacity for the Bayswater Club when the incident mentioned below occurred.
On 19 August 2000 the Bayswater D Reserve team played a team from the Willetton Amateur Football Club. About one minute before the end of that game, George Coyne, a player with the Bayswater team punched one of the field umpires. The media devoted some attention to the incident and a few days later the management committee convened a meeting at which it purported to disqualify the plaintiff from playing, being a coach of, or acting as an official, in amateur football governed by the League for a period of 10 years, on the grounds that he had allegedly caused or suffered people who were not registered with the League to play football.
After a period of controversy, the plaintiff commenced proceedings in the Supreme Court against the League seeking a declaration that the disqualification was void. On 14 June 2001 Templeman J granted an interlocutory injunction restraining the League from giving effect to the disqualification decision: Rush v WA Amateur Football Club League (Inc) [2001] WASC 154. Some months later, on or about 29 November 2001, the League set the disqualification decision aside and the legal proceedings were dismissed by consent upon the basis that the plaintiff recovered his legal costs.
That was not the end of the matter. By letter dated 18 March 2002 the Executive Officer of the League advised the plaintiff that he was required to attend an Investigation Tribunal which had been established to investigate the striking incident. The letter went on to say that the Investigation Tribunal was to be chaired by a barrister, Mr John Prior, sitting alone. The management committee had asked the Tribunal to investigate three allegations against the plaintiff, namely, first that he knowingly allowed players to play in the subject game and other games who were ineligible to play in the League competition as they were not registered by the Bayswater Club as required by by‑law 10, second, that he knowingly, or could have been reasonably expected to know, that he signed statutory declarations when not authorised by law to do so contrary to Appendix 4 of the League by‑laws and, third, that he had deliberately aided and abetted a player to fill out and sign a registration form under a false name.
The letter went on to remind the plaintiff of by‑laws 3.1, 8.2.4 and 9.4 which allow the Tribunal to impose penalties. The plaintiff was at liberty to provide witnesses or other evidence. The decision of the Investigation Tribunal was to be final, without appeal.

The Investigation Tribunal

The plaintiff attended before the Investigation Tribunal. He contends that Mr Prior informed him that the hearing was to be adjourned to a date to be fixed. He was subsequently informed that the hearing would take place on 27 June 2002.
The plaintiff alleges that the further hearing took place as alleged. At the end of the hearing Mr Prior handed to the plaintiff a document entitled "Investigation Tribunal Hearing" and charged the plaintiff with the two charges specified in that document.
The document in question is signed by Mr Prior and appears to be a summary of events leading up to the laying of charges. Mr Prior reports that at the hearing on 17 April 2002 he heard evidence from various witnesses and took account of certain admissions allegedly made by the plaintiff concerning unregistered players and the witnessing of statutory declarations. Mr Prior then proceeded to say:
"Having considered all the evidence at the hearing I presided at, I am satisfied Mr Rush should be charged with breach 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 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 he was not suitably qualified, in breach of by‑law 9.4 of the WAAFL."
As appears at par 39 to par 40 of the plaintiff's principal affidavit, the plaintiff said that he was sure he received the ITH hearing document at the hearing on 27 June 2002 because before that hearing he did not know that he had been charged with anything. He recalled that towards the end of the hearing John Prior pointed to the charges at the end of the document and asked whether he pleaded guilty to them. This was the first time he knew he was being charged with anything. He said that he pleaded not guilty. As appears from his affidavit his recollection of the relevant events was subsequently put to the League by his solicitors. The League has not refuted his account.
It seems that Mr Prior heard evidence bearing upon the two charges against the plaintiff at the hearing on 27 June 2002 and then adjourned the matter to complete his deliberations. His reasons for decision are set out in a document signed by him and dated 19 July 2002 which refers to the fact that he conducted an initial hearing on 17 April 2002 at which he found that the plaintiff should be charged with breach of two by‑laws and conducted a further hearing on 27 June 2002.
Mr Prior's reasons for decision go on to say this:
"At the hearing on 27 June 2002, I advised Mr Rush I would take into account the evidence at the hearing on 17 April 2002 and given the charges I had issued and my reasons for charging him (which he was provided), he may wish to call further evidence. I also asked Mr Rush to enter pleas of guilty or not guilty to each of the two charges."
Mr Prior goes on to confirm in his 19 July reasons for decision that the plaintiff entered pleas of not guilty to both charges and adduced evidence in his defence to the effect that his involvement in the alleged breach was minimal because the unregistered players would have played irrespective of his actions. Mr Prior concluded that this line of defence did not form a sufficient defence to the charge but at best could be said to mitigate the penalty. He concluded that the plaintiff was guilty of the second charge also in that the statutory declaration forms and Appendix 4 of the Constitution and By‑laws of the League made it clear that the plaintiff was not at liberty to witness the relevant statutory declarations.
Mr Prior then referred to taking into account various matters bearing upon penalty including the plaintiff's maintenance of his pleas of not guilty, his significant contribution to amateur football and the fact that he had stood aside from the game for half the 2001 season as a consequence of the earlier proceedings. Mr Prior then made the following, final observations:
"Considering the above, I would impose a penalty of suspension for the remainder of the WAAFL season 2002 for the first charge and suspension for the whole of the WAAFL season 2003 for the second charge. In each penalty, the suspension is from acting as a player, coach or official within the WAAFL."
The plaintiff felt aggrieved by this outcome. On 4 September 2002 he issued a writ of summons, with a statement of claim attached, seeking a declaration that the decision to suspend him was void and of no effect.
An application for injunctive relief was brought on for hearing before McKechnie J on 6 September 2002. The upshot of that application was that the plaintiff was allowed to play in the final game of the 2002 season but without any ruling being made as to the matters in issue and upon the basis that he was at liberty to renew his application for an injunction in respect of the 2003 season. Two months later a statement of defence was filed on behalf of the League. It is against this background that the matter comes before me. I understand that the football season commences on 12 April 2003.

The issues

The statement of claim filed on behalf of the plaintiff raises various issues. The plaintiff alleges in par 28 of the claim that the League has no power to impose any penalty on the plaintiff other than in his capacity as a player. Alternatively, the Rules do not confer any power on either an Investigation Tribunal or the management committee to prefer a charge, lay a complaint, punish or suspend anyone. It is said further that the Investigation Tribunal had no power to confer a charge or impose any penalty on the plaintiff.
In par 31 the plaintiff alleges that the Investigation Tribunal had no power to prefer or hear a charge under rule 9.4 of the by‑laws. Rule 9.4 provides that 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 and shall be liable to a fine not exceeding $500 and in the case of a player, disqualified from playing during such term as the Protests and Disputes Tribunal deems fit.
It is said further in par 32 that the first charge could only be preferred against the Bayswater Club pursuant to rule 10.8 of the by‑laws.
The plaintiff then pleads in the alternative that the charges and hearing were contrary to the most fundamental principles of common justice in that the defendant sought to punish the plaintiff twice for the same offence, the plaintiff was not given any reasonable opportunity to answer the charges levelled against him, the charges were formulated and preferred by the person who heard the evidence and delivered the verdict, the plaintiff was not brought before Mr Prior to hear the verdict and was therefore not in a position to make any plea in mitigation, the charges as formulated disclosed unfairness in that both charges were said to be based upon rule 9.4 but did not identify the elements of the offence.
The plaintiff pleads further in par 34 of the claim that the decision of the Tribunal was absurd or, alternatively, a decision that no reasonable man could come to.
In summary, then, there are two broad areas of controversy, namely, first, the plaintiff contends in respect of the present application that there is a serious issue to be tried as to whether the League failed to act in compliance with its Rules with the result that the penalties sought to be imposed were ultra vires and invalid; second, that the League was in breach of the rules of natural justice.
It therefore becomes necessary to take a closer look at the Rules and By‑laws of the League.

Rules and By‑laws

The plaintiff alleged in par 1 of the statement of claim that the League is an association duly incorporated pursuant to the provisions of the Associations Incorporation Act 1987. This plea was admitted by the defendant in its statement of defence. I note in passing that by s 48 of the Associations Incorporation Act every association incorporated under the repealed Act, that is to say, the Associations Incorporation Act 1895, is deemed to be an association incorporated under the subsequent Act and the Rules of the association shall, subject to alteration under the later Act, be the Rules of the association as registered at the commencement of the later Act.
Section 5(2)(a) of the 1987 Act provides that an application for incorporation must be accompanied by a copy of the Rules of the association conforming to the requirements of the Act. By s 16 the Rules of an association do not conform to the requirements of the Act unless they include provision in respect of each of the matters that are specified in Sch 1 and are otherwise consistent with the Act. It appears from Sch 1 that the matters to be provided for in the Rules include such matters as the name and objects of the body, qualifications for membership, powers of the management committee, provisions concerning general meetings and the manner in which the funds of the association are to be controlled. It is significant that the schedule does not contain any express reference to disciplinary powers.
Section 17 provides that an incorporated association may alter its Rules by special resolution provided that notice of the same is lodged with the Commissioner within one month setting out particulars of the alteration together with certification that the resolution was duly passed. An alteration of the Rules does not take effect until the prescribed requirements are complied with.
The plaintiff exhibited to his principal affidavit a document that he believed to be a true copy of the Rules of the League in that he had been informed by his lawyer that the Rules in question had been obtained from the Ministry of Fair Trading. The relevant document bears a printed description "Constitution and By‑laws - Revised 1986". As indicated by this description, the document is divided into two parts being, first, a constitution including reference to the objects, membership and management of the body and other matters of the kind referred to in the schedule I mentioned a moment ago. The second part consists of "By‑laws" dealing with particular matters such as the process whereby membership is applied for and disciplinary powers to be exercised (pursuant to cl 3) by an Investigation Tribunal and (pursuant to cl 8) by a Protests and Disputes Tribunal. For ease of reference I will call this document the "1986 Rules". Counsel drew my attention to a date stamp suggesting that the 1986 Rules had been received at the Corporate Affairs Department on 28 April 1987.
On the other hand, Mr Webster, in his affidavit sworn on behalf of the League, said that, having read the plaintiff's affidavit, he searched the League's records to identify the by‑laws which were current as at 2002 when the proceedings the subject of the plaintiff's complaints were conducted by Mr Prior and the League. He then exhibits to his affidavit a document which he says is a true copy of the By‑laws of the League which were current as at 2002. The relevant document bears a printed description "By‑laws of the Western Australian Amateur Football League (Inc) Revised 2001". For ease of reference I will refer to this document as the "2001 By‑laws".
In his capacity as executive officer of the League, Mr Webster went on to say at par 4 of his affidavit that the by‑laws annexed to the plaintiff's affidavit (being the second part of the 1986 Rules) were not the by‑laws which were current in 2002. Mr Webster said that the 2001 By‑laws for which he contended were different in a number of respects. In particular by‑law 8.1 allows a Protests and Disputes Tribunal to be constituted by either a chairman sitting alone or a chairman with two other persons as determined by the management committee. Further, the by‑laws contain appendix 4 in relation to statutory declarations.
I will return to the provisions concerning disciplinary powers in due course. For the moment, my task is to determine which of the competing documents should be regarded as the operative set of by‑laws. I note in passing, as emerges from what was said to me at the hearing, and by an analysis of the relevant documents, that in the earlier proceedings Templeman J had access only to the 1986 Rules. It follows that his judgment is not of assistance to me in determining which document should be regarded as the operative set of rules for present purposes. However, as the terms of cl 9.4 are the same in each case, counsel on both sides acknowledged that I am entitled to take into account the views expressed by Templeman J as to the proper interpretation of cl 9.4.
Counsel for the plaintiff contended that I was entitled to infer upon the basis of the evidentiary materials before me that the 1986 Rules, that is to say, both the Constitution and the By‑laws should be regarded as the operative point of reference. In the absence of any evidence establishing that the 1986 Rules had been altered in accordance with the procedure described in s 17 of the 1987 Act the Court had to assume, having regard to s 17(2), that any alteration to the rules of the kind reflected in the 2001 By‑laws, being the version contended for by the League, was of no effect. Accordingly, in seeking to understand the workings of the Investigation Tribunal and the powers purportedly exercised by Mr Prior, I should have regard only to the by‑laws forming part of the 1986 Rules.

The defendant contended that a distinction had to be drawn between rules in the nature of constitutional rules and by‑laws which were directed to more particular matters. It was apparent from a reading of the 1987 Act as a whole that the rules referred to in s 17 of the Act were constitutional rules directed to matters of the kind set out in Sch 2 of the Act such as the objects of the body and the management structure. It was therefore open to the League to revise its by‑laws without necessarily having to comply with the procedure prescribed by s 17. On this view of the matter, in the context of an interlocutory application for injunctive relief, I should act upon the assertion of the Chief Executive Officer of the League that the 2001 By‑laws were the operative by‑laws.
The difference between the two competing views was said to be important in that by cl 3 of the by‑laws forming part of the 1986 Rules the Investigation Tribunal is required to forward its findings to the management committee for authorisation and action. If these by‑laws were held to apply then it was open to the plaintiff to contend (as a line of argument not necessarily open to him under the 2001 By‑laws) that Mr Prior had failed to comply with the operative rules in that he sought to impose a penalty without referring the matter back to the management committee.
As to this preliminary issue, I consider that the submissions made on behalf of the defendant are more persuasive than the opposing case. In my view, s 17 is directed to constitutional rules dealing with matters of the kind set out in Sch 2 of the Act. The prescribed procedure does not extend to incidental matters or to matters not expressly covered by the Schedule such as disciplinary powers. I therefore consider that I should prefer the view expressed by the Chief Executive Officer that the 2001 By‑laws are the operative by‑laws.
My ruling means that issues concerning the inquiry conducted by Mr Prior fall to be determined by reference to the 2001 By‑laws. It is in this context that the two broad issues emerging from the plaintiff's statement of claim must be considered, namely, first, the question of whether Mr Prior failed to comply with the requirements of the Rules and, second, whether there was a failure to observe the rules of natural justice.
In considering those issues I am conscious that I am not necessarily obliged to make a final determination in respect of the matters in issue. It will therefore be useful to call to mind the principles applicable to the grant of an interlocutory injunction. It will also be useful to look at decided cases concerning the review of determinations made by domestic tribunals.

Legal principles

An applicant for interlocutory injunctive relief must satisfy the Court that there is a serious question to be tried. Even if there is a serious question to be tried the Court does not grant an injunction if common law damages would be an adequate remedy. If there is a serious question to be tried and damages would not be an adequate remedy, the Court then considers whether the balance of convenience lies in favour of granting or refusing the relief sought: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153.
When considering the balance of convenience, it is appropriate for the Court to take into account the relative strengths and weaknesses of the applicant's case. At the hearing the Court should not attempt to decide factual conflicts that arise from the affidavit material nor should it determine difficult questions of law which require detailed argument: Mott v Mount Edon Goldmines Australia Ltd (1994) 12 ACSR 658 at 661 ‑ 662.
The Court on the hearing of an interlocutory application has the discretion to decide a question of law upon which the decision of the case depends. If the question is one susceptible of resolution without further evidence and the urgency of the case does not render it impracticable to give proper consideration to the question, the desirable course will be to decide it: Cohen v Peko Wallsend Ltd (1986) 68 ALR 394. Where other factors are evenly balanced, the appropriate course is to preserve the status quo: American Cyanamid Co v Ethicon Ltd [1975] AC 396 at 408.
In Cameron v Hogan (1934) 51 CLR 358 Starke J observed at 384 that as a general rule, the courts do not interfere in the contentions or quarrels of political parties, or, indeed, in the internal affairs of any voluntary association, society or club. It was said in that case that in order to establish a civil wrong from an alleged refusal to comply with the club Rules, it is necessary to see that the pursuer has suffered some practical injury, either in his reputation or in his property. However, the reasoning in that case appears to proceed from the premise that the rules governing the affairs of an unincorporated association do not create actionable rights in contract. This meant that steps taken pursuant to the passing of an unauthorised resolution for the exclusion of a member of the association did not afford a basis for relief unless the member complaining had under the rules some civil right of a proprietary nature.
In Nurses Memorial Centre of SA Inc v Beaumont (1987) 44 SASR 454 at 466 von Doussa J held that the association in question, being an incorporated body, was a legal entity distinct from its members. Every person who was a member of the association stood in a contractual relationship with it.
The power of the courts to intervene in the affairs of a domestic body is usually regarded as being derived from the presence of a contract or consensus among members of voluntary organisations but may also be based on broad principles of justice: Mitchell v Royal New South Wales Canine Council Ltd (2001) 52 NSWLR 242.
In Zusman v Royal Western Australian Bowling Association (Inc) [1999] WASC 86 McKechnie J approved the observations of Wootten J in McKinnon v Grogan [1974] 1 NSWLR 295 at 299 to the effect that courts should be willing to assist in resolving disputes in organisations, whatever their size, in which the parties have deliberately adopted formal rules to govern their relations. Thus, the Court should lend its aid where a management committee holds a mistaken view as to its powers.
In the earlier proceedings Rush v Western Australian Amateur Football League (supra) Templeman J found that there was a serious question to be tried as to whether the plaintiff's registration as a player with the defendant created legal relations between the plaintiff and the defendant, and that a player registered with the defendant should be treated as if he were a member. Every person who is a member of an association stands in a contractual relationship with it.
In Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546 the Court of Appeal in Victoria appeared to accept that there was a power in the courts to intervene but held in the circumstances of that case that the trial Judge had erred in interfering with a Disciplinary Tribunal's decision.
Tadgell JA undertook a lengthy review of decided cases bearing upon the extent to which the civil courts can and should interfere with the decision of a domestic tribunal by whose decision the parties have agreed to abide under the rules of an association. He noted that 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. The reasons for declining to interfere were said to be various. For one thing, where the parties have agreed to have their disputes decided by domestic tribunals, the courts have been in the habit of respecting the agreement. For another thing, the courts have been prepared to recognise that there are some kinds of dispute that are much better decided by non‑lawyers or people who have a special knowledge of or expertise in the matters giving rise to the dispute than a lawyer is likely to have. Further, the courts have been willing to understand that not every aspect of community life is conducted under the auspices of the State.
However, Tadgell JA went on to say at 550 that the courts have been disposed to interfere in a limited way with decisions of private or domestic tribunals in order to protect private rights that have been adjudged to deserve protection, including rights of property. The concept of property has been broadly interpreted for this purpose and the courts are therefore prepared to interfere if interference be considered necessary for the attainment of justice. Hence, if a tribunal's decision purports to owe its binding quality, for example, to a contract, the courts will recognise that the making of the decision is to be consonant with the contract before it is binding. If it is not so consonant a declaration may be made accordingly and any appropriate injunction granted upon the suit of an aggrieved person who the tribunal's decision wrongly purports to bind. It remains the law, for example, that if a domestic tribunal was designed to enquire into facts, there must be due enquiry. The tribunal must do the job it was designed to do and not merely go through the motions of doing it.
Tadgell JA went on to say at 552 that he did not think it was satisfactory to regard a tribunal's obligation to act, for example, honestly and in good faith, as depending on any implication of a contractual term. The law does not countenance the establishment or the existence of any body for the purpose of its acting dishonestly or without good faith. Rather than implying a term that a body will act honestly and in good faith, the law axiomatically assumes that that will be done. The legal obligation to act honestly and in good faith goes hand in hand with an obligation to accord procedural fairness. In his Honour's view, in a case where a court will exercise jurisdiction to interfere with a decision of a domestic tribunal, it should be seen as a jurisdiction to encourage and secure the tribunal's due performance of its prescribed role.
His Honour observed further at 557 that in considering whether a conclusion was reasonably open to a domestic tribunal, it is appropriate to ask whether there was any evidence upon which a jury might have come to the conclusion: Lee v Showmen's Guild of Great Britain [1952] 2 QB 329 at 345. However, alongside such a view was to be contrasted the observation of Dixon J in Australian Workers' Union v Bowen (No 2) (1948) 77 CLR 601 at 628 that a domestic forum acting under rules resting on a consensual basis is a tribunal that has no rules of evidence and can inform itself in any way it choses. Members may act upon their own knowledge and upon hearsay if they are satisfied of the truth of what they so learn and if they give the member with whom they are dealing a proper opportunity of answering the charge and defending himself.
The constituents of the rules of natural justice were reviewed by the High Court in Kioa v West (1985) 159 CLR 550. Mason J said at 582 that it is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.
His Honour went on to say at 584 that where the decision in question is one for which provision is made by a statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the enquiry, the subject matter and the rules under which the decision‑maker is acting. The critical question in most cases is not whether the principles of natural justice applies. It is: What does the duty to act fairly require in the circumstances of the particular case?
Having regard to these principles, I must now return to the circumstances of the present case.

Conduct ultra vires the rules

It follows from my earlier determination that the operative point of reference is the 2001 By‑laws. Clause 3.1 provides that there shall be an Investigation Tribunal which can be constituted by a chairman sitting alone. The Tribunal is empowered to act in accordance with the powers laid down in By‑law 8.2.4 that is to say, it is empowered to impose such penalties or fines authorised by the Rules as it deems fit. By cl 3.2 the Tribunal shall hear all charges or protests referred to it by the committee of management and hear all witnesses to the incident as the chairman deems in his absolute discretion to be relevant. The decision of the Tribunal shall be final and no appeal will be allowed.
Importantly, for present purposes, cl 3.3 provides that members 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.
The 2001 By‑laws also make provision for hearings to be conducted by a Protests and Disputes Tribunal. By cl 8.2 the P&D Tribunal shall hear charges of the kind specified in that clause including, per cl 8.2.1, all charges in respect of offences under the laws of the game.
Counsel for the defendant submitted that the work of the Investigation Tribunal is of a broader kind than that of the P&D Tribunal which is largely confined to charges in respect of offences under the laws of the game. In that respect, it is important to note that cl 7 of the by‑laws clearly contemplates that charges against clubs, coaches or other officials in respect of matters arising out of or in the course of any game and in relation thereto shall be preferred by umpires.
Clause 9 deals with offences, penalties and judicial proceedings. Importantly, cl 9.4 (which is in the same terms as the earlier cl 9.4 in the 1986 Rules) provides that 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.
Templeman J in the earlier proceedings Rush v WA Amateur Football Club League Inc (supra) was of the view at par 42 that certain words had been omitted from rule 9.4 and when the missing words were imported the intention was that the P&D Tribunal was the body empowered to impose the penalty. In other words, Templeman J found that rule 9.4 of the League's by‑laws, on its proper construction, provided that only the Protests and Disputes Tribunal could impose a penalty under that rule.
If the 1986 Rules were held to be the operative point of reference, then it would be open to the plaintiff to assert that there was a non‑compliance with the Rules in that Mr Prior purported to impose a disqualification pursuant to cl 9.4 while sitting alone as an Investigation Tribunal when, in strict analysis, action under cl 9.4 could only be taken by the P&D Tribunal constituted by a chairman with one or more other persons as determined by the management committee. However, it follows from earlier discussion that, in my view, the 1986 Rules do not apply and the 2001 By‑laws must be treated as the operative point of reference.
Under the 2001 By‑laws a P&D Tribunal could be constituted by a chairman sitting alone. It might be thought that little turns upon the fact that Mr Prior purported to be acting as an Investigation Tribunal, rather than as a P&D Tribunal, when it is apparent that both bodies could be constituted by a single individual and were exercising similar powers as to penalties. I do not purport to make any final ruling as to whether anything turns upon the fact that the powers under cl 9.4 should properly have been exercised by the P&D Tribunal. However, in regard to the grant of an injunction, and bearing in mind the general reluctance of courts to intervene in the affairs of a domestic body, I am not persuaded that there is a serious issue to be tried that the plaintiff is entitled to a declaration that the disqualification decision was a nullity because of an alleged non‑compliance with cl 9.4 in this respect.
Different considerations apply in regard to another issue raised by the plaintiff. Mr Prior purported to be sitting as the Investigation Tribunal. Clause 3.3 expressly provides for charges to be preferred by members of the management committee. The plaintiff contends that the by‑laws upon their proper interpretation do not allow for the chairman of the Investigation Tribunal to play a part in the formulation and preferring of charges against the plaintiff.
It is true that there had been a preliminary enquiry into the incident as a result of which it seems Mr Prior obtained an approval from the management committee to proceed further. However, in the absence of specific evidence that the charges were preferred by the management committee, and in the presence of some indications that Mr Prior himself was instrumental in the subject charges being presented to the plaintiff, it is said that the rules governing the procedure and process of the Investigation Tribunal were not complied with.
The exact sequence of events, and the exact roles played by the management committee and Mr Prior in the presentation of charges, will be a matter for evidence at the trial if the proceedings are taken to that point. However, having regard to the evidentiary materials before me, I consider that there is a serious issue to be tried as to whether there was a failure to comply with the Rules in regard to the preferring of charges. It follows from my review of the decided cases that there is an arguable basis for relief being afforded to the plaintiff in such circumstances in that the rules of an incorporated association give rise to a contractual relationship between the parties. The decided cases as evidenced by the reasoning of Tadgell JA in the Carlton case (supra) suggest that non‑compliance with rules can be regarded as a basis for intervention on the grounds that the obligation to act honestly and in good faith goes hand in hand with an obligation to accord procedural fairness in accordance with prescribed rules.

Rules of natural justice

It follows from earlier discussion that it is open to the plaintiff to assert that the rules of natural justice were infringed in that when the charges were formulated, they were formulated and preferred by the person who was charged with the responsibility of hearing the evidence and imposing the penalty in the event of it being held that cl 9.4 had been infringed.
I noted earlier that there appears to be an arguable basis for concluding that Mr Prior played a part in the formulation of the charges, especially in the absence of any clear evidence that the charges were preferred and pursued by the committee of management.
When charges of misconduct are advanced there is generally an assumption that the party preferring the charges holds a bona fide belief that there is substance in the allegations and that a verdict of infringement is appropriate. It is therefore clearly undesirable that a person charged with the responsibility of resolving the dispute by an impartial consideration of evidence bearing upon the charges should play any part in the formulation and advancement of the charges in question. This could give rise to a reasonable apprehension of bias which is inconsistent with a proper application of the rules of natural justice. Further, if the adjudicator has played a part in formulating the charges then it might be thought that if any procedural issue arose as to duplicity or some other flaw in the charges then the adjudicator could not bring an unbiased mind to the resolution of such a controversy. He would appear to have an interest in defending the sufficiency of his own handiwork in formulating the charges.

When considerations of this kind are combined with the factual circumstances of the present case whereby the plaintiff was not afforded an opportunity to be heard in respect of any plea in mitigation or as to other matters upon the handing down of the verdict, I consider that there is a serious issue to be tried as to whether the plaintiff is entitled to relief upon the grounds that there was an infringement of the rules of natural justice.
This brings me to the balance of convenience.

Balance of convenience

I am conscious that from the plaintiff's point of view damages would not be an adequate remedy. Even though he could be compensated in money for any loss of income from coaching, he could not be easily recompensed for not being able to participate in the 2003 football season, being a form of recreation which has been of great importance to him for many years. Essentially, what is to be weighed is the damage that the League will suffer if the injunction is granted against that which the plaintiff may suffer if the injunction is refused.
The plaintiff contends that it would work an injustice to him if he were deprived of an opportunity to participate in the forthcoming football season and ultimately his claim was found to be meritorious. I am conscious also that the season is about to start and that if injunctive relief is to be granted then the relief should be provided promptly.
The plaintiff submits further that the League will suffer little if any loss if the injunction is granted as contrasted with the loss of opportunity to which the plaintiff will be exposed. I am also obliged to keep steadily in mind that the terms of the proposed injunction do not have the effect of purporting to reinstate the plaintiff as an office bearer or otherwise in some senior position within the League or the Bayswater Football Club. The injunction is aimed at any effect being given to the decision of the League to suspend the plaintiff from acting as a club player, club coach or club official in any capacity for the whole of the 2003 season. Even if the injunction be granted, it will probably be necessary for the plaintiff to establish his credentials to act as a coach or to be included as a player. However, the likelihood is that he will have a better opportunity of being treated with respect and on his merits if the effect of the suspension is removed.
Counsel for the League submitted that the balance of convenience weighs against the plaintiff in that there has been a restructuring of the Bayswater Club. The office bearers have now been appointed, and there is some evidence to suggest that the plaintiff is unlikely to resume his former standing in the Club. Some reliance was placed upon the affidavit of Mr Clement who has been the president of the Bayswater Football Club since 12 January 2003 when he was elected to that position. Mr Clement says in his affidavit that his aim is to carry out a comprehensive overhaul of the entire Club, including official and administrative personnel, to enable the Club to progress and become successful on and off the field, that is, to operate efficiently and solvently off the field and field competitive football teams. He says that he is not prepared to have the plaintiff associated with the Club in any official capacity in the future given the negative feedback from players and other members of the club with respect to the plaintiff's previous involvement.
I note in passing that the plaintiff sought to answer these contentions with a further affidavit by himself sworn 20 March 2003. His affidavit suggests that the opposition to him is not as deeply rooted as Mr Clement's affidavit might suggest. A letter dated 18 March 2003 signed by Mr Clement appears to recognise that the plaintiff has been useful in contributing to the Club's financial base. Further, and in any event, the Club is a democratic body and one must allow for the possibility that opinions will change.
Against this background, I am of the view that the balance of convenience favours the plaintiff. The proposed injunction is not likely to interfere with any overhaul of the Club. It is open to the incoming president and committee to proceed with their plan of action, notwithstanding removal of the suspension. On the other hand, if the injunction is granted, the plaintiff will be afforded a better opportunity to reinstate himself in the eyes of his fellow club members and players than if he were subject to the suspension. Further, and in any event, he will be at liberty to participate in the forthcoming football season. If he were denied that opportunity for an entire season then this could give rise to a sense of grievance which could substantially interfere with his ability to return to the Club as a coach or player in seasons to come.
It emerges, then, that I am persuaded that the injunction applied for should be granted upon the grounds that there is a serious issue to be tried and the balance of convenience favours the plaintiff.

Application to strike out defence

It will be apparent from earlier discussion that the writ of summons issued by the plaintiff on 4 September 2002 was accompanied by a detailed statement of claim. I will not traverse the statement of claim in detail. Broadly described, the plaintiff provides a description of the parties, he describes the incident on 19 August 2000 and the subsequent decision to disqualify him for a period of 10 years. He refers to the legal proceedings which had the effect of setting aside the first decision and the settlement of his claim. He goes on to refer to the second decision made by Mr Prior and the various rules and by‑laws bearing upon that decision. As I have indicated, the claim contains allegations that the League failed to act in conformity to its by‑laws and acted in a manner that was contrary to the rules of natural justice. One of the most significant issues in that regard is the plea set out in par 33(c) that the charges were formulated by the person who heard the evidence and delivered the verdict.
Let me now turn to the statement of defence filed and served on 19 December 2002. The plaintiff had pleaded in par 1(c) of the claim that the League last registered its Rules with the Department of Consumer Affairs as required by the Associations Incorporation Act on 28 April 1987. Paragraph 1.2 of the statement of defence states that the League does not admit par 1(c) of the claim.
Order 20 rule 19 of the Rules of the Supreme Court provides that the Court may strike out any pleading on the ground that it discloses no reasonable defence or may prejudice, embarrass or delay the fair trial of the action. On an application of this kind the facts alleged must be accepted as true. The rule concerning whether a reasonable defence has been disclosed is intended to apply only to cases which are untenable or really not arguable.
Counsel for the plaintiff submitted that par 1.2 of the statement of defence should be struck out on the grounds that it was evasive and embarrassing. The plea that the League did not admit par 1(c) of the claim left open the possibility that a set of rules had been registered other than on 28 April 1987 as alleged by the plaintiff. As the allegation advanced by the plaintiff dealt with facts that must be in the knowledge of the defendant it was an allegation that had to be either admitted or denied with an allegation as to when the rules were last registered.
A similar issue was raised by the plaintiff concerning par 3 of the statement of defence. The plaintiff had alleged in par 3 of the claim that by an agreement in writing between the plaintiff and the defendant made in or about 1978 the plaintiff was registered with the defendant as a player. It is pleaded in par 3 of the statement of defence that the defendant admits the plaintiff was registered as a player with it in or about 1978 but denies that there was any agreement in writing between the plaintiff and the defendant. The plaintiff contended that a plea in this form was evasive and embarrassing as it left open the possibility that there was an oral agreement or an agreement by conduct.
To my mind, these passages of the statement of defence are expressed in a conventional form and I am not persuaded that they are embarrassing or should be struck out.
In par 8 to par 10 inclusive of the claim allegations were made by the plaintiff concerning the making of the first decision. In response to these paragraphs par 7 of the statement of defence contains an admission that the defendant disqualified the plaintiff from playing, being a coach of, or acting as an official in amateur football governed by the defendant for a period of 10 years following the first decision but otherwise does not admit the paragraph.
Again, I am not persuaded that this paragraph of the statement of defence should be struck out. The allegations made by the plaintiff seem to have been included in the claim as matters of narrative and I am not persuaded that the plaintiff or his advisers are truly embarrassed by the manner in which the defence is pleaded.
Paragraph 27 of the statement of claim was a lengthy paragraph in which the plaintiff purported to set out the meaning and effect of various by‑laws (called rules in the claim) bearing upon the matters in issue between the parties. The defendant responded to these allegations in par 22 and par 23 of the statement of defence. In doing so, the defendant purported to be admitting a number of the assertions advanced by the plaintiff as to the effect of the Rules or By‑laws, but it is clear that in many respects additional observations were made which could arguably be construed as advancing an alternative interpretation of the various rules. This part of the statement of defence was also said to be embarrassing in that, given the controversy between the parties as to what constituted the operative rules of the League, it was incumbent upon the defendant to make it clear in its defence which rules were being referred to.
I am of the view that, for the reasons relied upon by the plaintiff as I have just described them, these paragraphs of the statement of defence are embarrassing and should be struck out. I will make an order to that effect with leave to replead.
The statement of claim contained an allegation in par 34 that the decision of the Tribunal was absurd or, alternatively, a decision that no reasonable man could come to. Particulars were provided containing reference to certain aspects of the rules which were said to be relevant to this assertion. The defendant by its statement of defence denied each and every allegation contained in par 34 and went on to say in par 31 that the defendant was not required to disclose adequate findings in its reasons for decision. I am not persuaded that a plea in this form is embarrassing and I therefore decline to make an order striking out the paragraph in question.

Summary

In summary, then, I will order that par 22 and par 23 of the statement of defence be struck out on the grounds that the said paragraphs are embarrassing. The defendant will be granted leave to replead the paragraphs in question and to file a revised statement of defence within 21 days. An injunction will be granted in favour of the plaintiff to the effect that until further order the defendant whether by itself, its officers, servants, agents or otherwise be restrained and an injunction is granted restraining it from directly or indirectly or in any way howsoever acting on or giving effect to the decision of the defendant to suspend the plaintiff from acting as a club player, club coach or club official or in any capacity within the Western Australian Amateur Football League for the whole of the 2003 season. I will hear from the parties as to whether any further orders or directions are required.