Sydney United Football Club v Soccer New South Wales

[2005] NSWSC 474

CITATION:	Sydney United Football Club v Soccer New South Wales [2005] NSWSC 474 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	12, 13 May 2005
JUDGMENT DATE :	13 May 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	McDougall J at 1
DECISION:	See paras [90] and [91] of judgment

CATCHWORDS:	ADMINISTRATIVE LAW - where defendant set up Independent Panel of Inquiry - where Panel interviewed plaintiff's representatives - where defendant's board adopted Panel report recommending suspension of plaintiff - where defendant's board suspended plaintiff without hearing further from it - natural justice - content of rules of natural justice - whether Panel denied plaintiff natural justice - whether board denied plaintiff natural justice by not providing opportunity to be heard on adoption of report - whether board denied plaintiff natural justice by denying opportunity to be heard on penalty
LEGISLATION CITED:	Corporations Act 2001
CASES CITED:	Abebe v The Commonwealth (1999) 197 CLR 510 Browne v Dunn (1894) 6 R 67 Forbes v NSW Trotting Club Ltd (1979) 143 CLR 242 Hall v NSW Trotting Club Ltd [1977] 1 NSWLR 378 Mahon v Air New Zealand Limited [1984] AC 808 Malone v Marr [1981] 2 NSWLR 984 Minister for Immigration v Bhardwaj (2002) 209 CLR 597 Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S154/2002 (2003) 77 ALJR 1909 State of South Australia v O'Shea (1987) 163 CLR 378
PARTIES:	Sydney United Football Club Pty Limited (Plaintiff) Soccer New South Wales Limited (Defendant)
FILE NUMBER(S):	SC 2812/05
COUNSEL:	C J Birch SC (Plaintiff) T F Bathurst QC/M Christie/M White (Defendant)
SOLICITORS:	Dibbs Barker Gosling (Plaintiff) Diamond Peisah & Co (Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

McDOUGALL J

Friday 13 May 2005 Ex tempore (revised 13 May 2005)

SOCCER NEW SOUTH WALES LIMITED

JUDGMENT

1 HIS HONOUR: A football match was played on 13 March 2005 between the plaintiff and the Bonnyrigg White Eagles Sports Club (White Eagles). The match was played in the Premier League competition organised by the defendant. It was marred by disgraceful behaviour on the part of some of the spectators. The defendant determined that the circumstances warranted the punishment of the plaintiff. On 2 May 2005, the board of directors of the defendant resolved to suspend the plaintiff, with effect from 4 May 2005, from the defendant's Premier League and Continental Cup competitions for four consecutive matches. The plaintiff says that the decision to suspend it is vitiated by denial of natural justice.

Background

2 The defendant is a company limited by guarantee. Its objects include to foster and control what used to be called the game of soccer in New South Wales. It runs the competitions to which I have referred. The plaintiff and White Eagles (and other clubs) field teams in those competitions. The defendant admits for the purpose of these proceedings that the plaintiff is a member of the defendant; I assume, although it is not necessary to my conclusions, that White Eagles is also a member.

3 It seems that many of the supporters of the plaintiff are people of Croatian birth or descent; and that many of the supporters of White Eagles are people of Serbian birth or descent. It is clear that there are very strong feelings between at least some of the supporters of the two clubs, and that those feelings are not friendly.

4 The match in question was played at the plaintiff's home ground at Edensor Park. The plaintiff was responsible for security. The security appears to have been inadequate. Banned articles, including flares and flags or banners bearing racist or offensive insignia or remarks, were smuggled into the ground, as was the carcass of a pig on which anti-Serbian comments had been inscribed. There was a strong police presence. Many people were ejected; but nonetheless there was provocative behaviour, violence and other conduct that can only be characterised, as I have done, as disgraceful. Each side (if I can use that expression) blames the other.

5 The defendant investigated the events. On 16 March 2005, its board resolved to take two steps. The first was to establish a commission pursuant to s 3.9 of the defendant's rules and regulations, to be known as the Independent Board of Inquiry, to investigate the disturbance in accordance with terms of reference that were specified. The second was to refer the matter to the defendant's General Purposes Tribunal:

“And in this regard it was confirmed that the chairman would nominate a suitable person to lead the [Tribunal] with the prosecutions to be handed down [sic] by Soccer NSW.”

6 The members of the Independent Panel of Inquiry, as it called itself (the Panel) were Mr Stepan Kerkyasharian AM, Ms Irene Moss AO and Mr Kevin Waller AM.

The Panel

7 The minutes of the defendant's board meeting of 16 March 2005 suggest that the Panel was, or was thought to be, a joint initiative of the State Government and the defendant:

“The Chairman identified the strong Government support that had been provided and that conversations on Sunday 13 March 2005 with Director’s [sic] Ross Kelly and Frank Wilson as well as the CEO and the Media Manager had agreed that an immediate statement to announce an independent inquiry would be the best way forward in the interests of the sport. The meeting was advised that this had been well received by both media and Government and that at a meeting with Carl Sculley, [sic] Investigation Panel Members were discussed and identified as being Stepan Kerkyasharian, Irene Moss and Kevin Waller. Noted.
The Chairman confirmed that the Police Minister Carl Sculley [sic] will hand down the report in State Parliament. It was confirmed that it would be an open hearing and that submissions would be welcomed from the general public. The Board was advised that costs for services were expected from Irene Moss and Kevin Waller. Investigations had been made in relation to the appointment of Senior Councils [sic] and QC’s should Ms Moss and Mr Walker [sic] not be acceptable to the Board.”

8 That is confirmed, to some extent, by the terms of a letter of 17 March 2005 from the defendant to the plaintiff, advising the plaintiff of the reference to the Panel. That letter said, relevantly:

“As you are aware investigations are continuing in relation to the crowd disturbance that occurred at the NSW Premier League round 14 fixture held at Edensor Park on Sunday 13 March 2005. Soccer NSW is continuing to work closely with the NSW Police Service in their investigations.
At a meeting of the Soccer NSW Board of Directors that was held on Wednesday 16 March 2005, the Board has now endorsed that an independent investigation be completed by the Community Relations Commission into these crowd disturbances at Sydney United Sports Centre. A copy of the Terms of Reference, to include the identification of the endorsed investigation panel, is attached for your reference.”

9 The Panel's terms of reference read, relevantly, as follows:

“ Terms of reference
1. Investigate and establish the cause of the crowd disturbance, with reference to any contributing political, cultural or social factors
2. Review the adequacy of existing legislation to ensure the maintenance of public order at sporting events and the adequacy of sanctions against individuals involved in disrupting the quiet enjoyment of those attending soccer matches
3. Investigate and establish the responsibilities of the two participating clubs in the safe conduct of matches
4. Recommend safety and security measures for future matches between the two participating clubs
5. Recommend measures to ensure the future safe conduct of matches under the jurisdiction of Soccer NSW
6. Recommend punitive sanctions as appropriate
7. Report by 21 April 2005”.

The panel interviews the plaintiff’s representatives

10 On 30 March 2005, the plaintiff interviewed Messrs Harry Stilin and Sam Krslovic. Mr Stilin is the president of the plaintiff and Mr Krslovic, I think, is a director. The interview was recorded and the recording has been transcribed. At the start, Mr Kerkyasharian said:

“Thank you very much for making time to come here and help us with this inquiry. As you know we are conducting it at the request of NSW Soccer but we are conducting it independently. And our report will go to NSW Soccer with our recommendations. I think it might be best if I just let you make a statement if you want, at the beginning. And then – “

11 Messrs Stilin and Krslovic between them made a detailed presentation to the Panel of the plaintiff's view of the events of 13 March. It is apparent that what they said repeated in substance, although with embellishments, a report that the plaintiff had prepared and sent to the defendant on 15 March 2005. In broad terms, both that report and what Messrs Stilin and Krslovic said to the Panel on 30 March put the blame for the events of 13 March entirely on the shoulders of the White Eagles' supporters.

12 It is clear from the transcript that the Panel had already received an amount of information. Panel members put to Messrs Stilin and Krslovic a number of matters that seemed to be inconsistent with their presentation.

13 It is clear from the transcript that there was a degree of confusion as to where, in terms of consequences for the plaintiff, the Panel's investigations and conclusions might lead. I have already referred to the terms of reference, and I note that term 6 referred to "punitive sanctions". Clearly, that was present to the mind of Mr Stilin:

“Sam K We are held responsible.
…
HS We are under the threat of suspension, of expulsion or heavy fines.
…
IM Yeah, but they feel that if there was a system of say strict responsibility -
HS It is now Irene. There is now. I can show you the disciplinary code within the rules and regs, we are exposed to suspension, expulsion and heavy fines, what more can they do?
IM But is that going to actually happen to you?
HS Well I hope not because we’ve done as much as we could and we talked to the police and the police will tell you that we did as much as we could in preparation of this game and the whole way through. They were satisfied with our duty of care that we showed, and in fact, we wouldn’t be sitting here today, we wouldn’t be looking at photos today, or talking to this panel if our original plan had been implemented. I keep coming back to that. If our original plan had been, which was accepted by Bonnyrigg, endorsed by the police, was accepted by Soccer NSW we wouldn’t be here today. And now what are you saying, are they going to crucify us because we weren’t allowed to do what we planned to do. I think that is totally unfair.”

14 The topic was further discussed. I must say that little clarification resulted:

“HS I mean, very early in the piece I wanted to get some clarification on the terms of reference …
SK Sure.
HS And point 6, recommend punitive sanctions is appropriate, what’s the scope for those punitive sanctions?
IM Well, that’s what we need …
KW We work that out and … instruct them.
HS Well what are your reference points?
IM … anything goes.
HS Anything goes?
SK Anything that would be legitimate and within the regulations of Soccer NSW.
…
HS Okay, I want to understand that those -
SK We can’t go beyond this scope, this NSW -
HS Because currently -
SK … association.
HS Section 17 of the rules and regulations of Soccer NSW disciplinary, discipline generally talks about suspension, expulsion or for a club of up to $10,000. Is that the framework that you are working within?
IM Oh, I don’t know, I am under the impression that if we feel that the present rules and regulations are insufficient we would be able to say to them.
HS And then implement them retrospectively to this incidence.
SK Oh no, that’s [sic] won’t be for us to implement, that would be up to NSW Soccer.
IM I mean I doubt very much that it would be retrospective.
Sam K I would just be very careful who I step on because I wouldn’t like to see you guys to be used as a scapegoat or an excuse to apply retrospectively. And my experience with them is that’s what they would be likely to do.”

15 Clearly, Messrs Stilin and Krslovic remained dubious. They returned to the topic:

“Sam K Yeah, just one final point. My concern is [sic] that we do have is that there’s been a number of rumours circulating from the board of Soccer NSW which are pre-empting the findings of the inquiry and the actual punitive damages. A number of comments have come back to us saying that we will be fined, another comment was that they are going to ban all national and international team jerseys and … I think that’s very dangerous for board members to be pre-empting the inquiry when they have -
… “

16 It will be noted that the terms of reference formulated no charges or complaints against the plaintiff. This is consistent with the inquisitorial nature of the inquiry, a topic to which I shall return. Nor did the Panel at any stage direct the plaintiff's attention to charges or complaints that might flow from their investigations and conclusions.

Further correspondence between the plaintiff and the panel

17 On 14 April 2005, the Panel wrote to the plaintiff. The letter commenced:

“I write seeking your response to a number of allegations, made by several parties, in relation to the crowd disturbances at Sydney United Sports Centre on Sunday 13 March. Your response is invited by next Tuesday 19 April COB at the latest as the report will be provided to Soccer NSW on 21 April.”

18 The letter then posed a number of questions and issues, and stated:

“As noted above your response on these matters should be forwarded to the panel of inquiry no later than 19 April to be considered prior to the release of the report to Soccer NSW.”

19 On 19 April 2005, the plaintiff's solicitors Dibbs Barker Gosling replied. They said, amongst other things:

“At the outset, we wish to make the objection that the time required to respond to the issues raised is inadequate.
Be that as it may, we have been instructed on the limited time available to respond to the issues raised as follows:
…”.

20 They then identified each question or issue from the Panel's letter, and gave a response. Having done that, they referred to the General Purposes Tribunal and to the question of findings and recommendations as follows:

“ General Purposes Tribunal
Furthermore, we ask the Panel of Inquiry to consider the actions of Soccer NSW in convening a General Purposes Tribunal to consider whether supporters of Sydney United engaged in conduct which brought or may have brought the game into disrepute prior to the report of the Panel of Inquiry being provided to Soccer NSW. In our view, the convening of the General Purposes Tribunal in [sic] inappropriate for the following reasons:
1. Sydney United is being subjected to two investigations arising out of the same incident and which undermines and calls in question the purpose being served by the Independent Soccer Enquiry [sic].
2. General Purposes Tribunal hearing listed on 20 April 2005 will purport to make a determination without the benefit of the findings of the Independent Soccer Inquiry which has been set up to investigate the incident.
3. Evidence has been presented to the Independent Soccer Enquiry [sic] and that evidence in some cases [sic] not readily available to be presented before the General Purposes Committee.
Findings and Recommendations
Finally, we would like the Panel of Inquiry, prior to the making of any final recommendations or findings, should any recommendations or findings be made which are adverse to the interests or affect in any way Sydney United, that Sydney United be given the opportunity of reviewing the findings and the supporting evidence which goes to those findings so it may be given an opportunity, in accordance with the principles of natural justice to be heard before any final recommendations are made.”

21 The Panel's report was delivered to the defendant on 21 April 2005. I will return to its contents; but at present I note that at page 3, under the heading "Chapter 2 - Procedures", it said:

“The Inquiry wrote to the President, SUFC, setting out some of the information received by the Inquiry which would have a strong bearing on its findings. The Inquiry invited SUFC to comment by 19 April 2005.
On the evening of 19 April 2005 a response to that letter was received from Dibbs, Barker, Gosling Solicitors for SUFC. It mainly contained statements denying allegations put to the club. The arguments outlined in the letter were not in consonance with evidence received by the Inquiry. The Inquiry had invited submissions on the basis of direct evidence from witnesses, and the letter from SUFC’s lawyers has not detracted from the weight of that evidence and accordingly the Inquiry proceeds with its findings.”

22 I have to say that I do not find in the Panel's letter of 14 April 2005 a request for "direct evidence from witnesses" if, in the second of the paragraphs that I have set out, that is what the Panel is saying that it wanted from the plaintiff.

23 On 3 May 2005, Dibbs Barker Gosling wrote to the defendant. That letter dealt mostly with the separate inquiry by the Tribunal, but said, in relation to the Panel:

“In the meantime, we note that the Independent Soccer Inquiry was scheduled to make its findings known on 21 April and that those findings would be relevant to the matters being considered by the General Purposes Tribunal. Please advise us when we will be shown a copy of those findings as they may impact upon the preparation of our client’s case.”

24 It is clear from this letter that, although the decision to suspend the plaintiff was taken on 2 May 2005, the Panel's report had not been provided to the plaintiff or to its solicitors by that date. That seems to have been done on 3 or 4 May; the defendant wrote to the plaintiff on the latter date informing the plaintiff of the suspension:

“Further to the Independent Inquiry report, of which you have a copy, and based upon recommendation 51 of that report, the Board of Directors of Soccer NSW have determined that Sydney United Football Club has been suspended for four consecutive matches, effective 4th May 2005. Please be advised that this is applicable to both your First Grade and Grade 20 fixtures.”

The Panel’s report

25 I have referred already to section 1 of the report. Of present relevance, the Panel wrote, in relation to the sixth term of reference:

“ Recommend punitive sanctions as appropriate.
The Panel of Inquiry has heard unsworn evidence during this inquiry about the gross misdemeanors [sic] of fans:

- Using racist and racially offensive terms and foul language.
- Hurling missiles including flares at other spectators and players.
- Shouting threats at individuals and groups.
- Confronting and assaulting each other and Police.
- Spitting at various persons.
- Exhibiting politically offensive banners and attire.
- Making offensive gestures and indecent posturing.

The Panel of Inquiry regards this behaviour as deplorable and destructive of the good name of soccer in NSW.
The Inquiry believes that the time is now appropriate for firm action to be taken to prevent recurrence of crowd violence at football matches. The Inquiry feels it necessary that sanctions should be imposed that will impact upon the clubs involved with a view to making them take a more responsible attitude towards the identification and exclusion of offenders, the education of their fans, and to comply literally with the rules and regulations of Soccer NSW.

The Inquiry is concerned about the behaviour of both groups of fans involved but more particularly of those supporting the Sydney United Football Club.
The Inquiry finds an incongruence between Sydney United Football Club having serious concerns about violence on the day and allowing fans to come into the stadium prior to the commencement of the match to put up banners which were likely to be offensive to those of Serbian background.
After considering all the evidence and submissions the Inquiry finds it necessary to recommend the following sanctions.
Given that Sydney United Football Club was responsible for the venue on the day and given the shortcomings in security outlined in the report the Inquiry proposes that Soccer NSW suspends Sydney United Football Club from taking part during the current season for between two and four consecutive matches. Points are to be allocated according to Soccer NSW’s formula.
If there are future disturbances of a like kind involving Sydney United Football Club Soccer NSW should seriously consider expelling them from the competition.
In the case of Bonnyrigg White Eagles Sports Club the Inquiry considers their culpability less than that of Sydney United Football Club primarily because they were not responsible for the venue and its security. There is no evidence to suggest that they encouraged the behaviour of their fans. Their case could be dealt with by the imposition of a fine with a clear warning that a repetition of violent behaviour by their supporters could lead also to suspension or expulsion.”

26 It may be that the Panel thought that their report would be given to the plaintiff for its comment. This was not done. Indeed, as I have indicated, the defendant's board acted on the report without providing a copy of it to the plaintiff and, as will be seen, without any notice to the plaintiff of its intention to do so.

The Tribunal’s inquiry

27 As I have said, the decision to refer the matter to the Tribunal was taken on the same day as the decision to set up the Panel.

28 It is completely unclear why the defendant chose to set up two independent disciplinary processes relating to the one incident, if that is really what it intended to do. Be that as it may, whilst the Panel was conducting its investigation, the Tribunal's processes were set in motion. On 8 April 2005, the defendant wrote to the plaintiff. That letter commenced:

“Your club is required to appear before the General Purposes Tribunal on Wednesday 20th April 2005 at 7pm at Valentine Sports Park, 235-257 Meurants Lane, Glenwood, NSW 2153 to answer the following:
…”.

29 It then set out some five charges, each with detailed particulars. (I note that, on 5 May 2005, the defendant notified the plaintiff of a sixth charge and particulars, to be dealt with by the Tribunal. Nothing turns on this.)

30 The letter concluded:

“Please be advised that there will be no adjournments to [sic] this meeting.”

31 A great deal of material, including internal reports produced by the defendant of its investigations, a report from the match referee and a report from the security company engaged for the game, was attached to the letter of 8 April 2005.

32 On 20 April 2005, Dibbs Barker Gosling responded. They said, relevantly:

“… Accordingly a key issue before the Independent Soccer Inquiry is the conduct of Soccer NSW in the incident. In the circumstances we believe it inappropriate for Soccer NSW, especially bearing in mind that the Independent Soccer Inquiry has not made any findings or recommendations, to conduct another hearing into the matter at this point in time. Furthermore, to maintain public confidence in Soccer NSW we submit it is more appropriate that a tribunal representative of Soccer NSW not conduct an investigation where its own conduct is being brought into question. Impartiality in this situation, and at least the perception of impartiality, should be maintained.”

33 There was a hearing in the Tribunal on 20 April 2005. Despite what was said in the last paragraph of the letter of 8 April, that hearing appears to have dealt only with procedural matters. Directions were given for evidence and the like, and a further date (presumably for a substantive hearing) was to be fixed. It should be noted that White Eagles was also the subject of complaint and that the Tribunal hearing was to deal with that complaint as well.

34 In subsequent correspondence, a further hearing in the Tribunal was fixed for 25 May 2005.

The defendant’s constitution and rules

35 The parties relied on or referred to the following clauses of the defendant's constitution:

“11. (a) If any member shall refuse or neglect to comply with the provisions of the Constitution of the Company or regulatory provisions it shall be guilty of conduct which is unbecoming of a member or prejudicial to the interests of the Company.
(b) Where a member is deemed by the company to be guilty of such conduct the Board of Directors shall have the power to fine, reprimand, suspend and/or expel the member from the Company and remove the member’s name from the Register of Members.
…
Powers and Duties of the Board
44. The business of the Company shall be managed by the Board of Directors who may exercise all such powers of the company as are permitted from time to time by part 2(d) division 4 of the Act or are not by the Act or by this Constitution required to be exercised by the Company in General Meeting.
…

Rules and Regulations

46. The Board of Directors has the power from time to time to make, vary, rescind or alter the regulatory provisions to give proper effect and to implement any or all of the objects of the company and without prejudice to the generality of this Clause such regulatory provisions may provide for:-
(a) The exercise of any disciplinary power reserved by this Constitution to the Board of Directors.
(b) The penalties imposed for any breach of any of the provisions of this Constitution or of regulatory provisions and;
(c) The delegation by the Board of Directors to any Director and/or committee of any of the powers conferred upon the Board of Directors by this Constitution or by the company’s regulatory provisions.
…
Constitutional Objectives
65. The objects for which this Company has been established and the powers of the Company are: -
…
(b) To foster and control the game of football including whatever competitions are deemed in the interests of the Company throughout the football state of New South Wales and/or interstate or territories and generally to implement such action and procedures as may be considered conducive to the company’s objects.
…
(e) To join with other organisations controlling the game in Australia and with other countries, in the playing of interstate and international matches, and in controlling and regulating those matches and the movement of players between the States and between Australia and the other countries concerned.
…
(g) To regulate and control the relationships between member bodies and affiliates and the members thereof and to provide facilities for settlement of disputes, punishment of misconduct and for breaches of any Constitution of the Company or any rules, regulations and by-laws made by the Company.
(h) To determine which Members shall be entitled to enter teams in the football competitions conducted by the Company and the terms and conditions upon which and the manner in which Members shall make and renew such applications.
(i) To administer laws relating to football and to take such action as may be necessary to achieve uniformity in such laws.
…
(k) To hear and determine upon and settle all questions or disputes on any matter relating to football.
(l) To hear and determine any allegation, complaint or charge in respect of any member of the Company or any Affiliated Body involving a breach of the Constitution or the Regulatory Provisions of the Company or the Laws relating to football.
(m) To inflict fines or penalties by way of suspension expulsion or otherwise or any breach of the Constitution or the rules, regulations and by-laws of the Company or the law relating to football. A decision of the Company in respect thereof shall be final conclusive and binding.
…
(q) To delegate all or any of its powers to any Committee or Committees consisting of one or more persons or to any Board or Tribunal appointed by the Company.
…”

36 The expression "Regulatory Provision" is defined as "the Company's rules and regulations as are in force from time to time.”

37 The board has made detailed "Rules and Regulations" (rules) pursuant to clause 46. They include the following provisions, upon which the parties relied or to which they referred:

“ COMMISSIONS
3.9 ESTABLISHMENT
The Directors may at any time appoint a Commission or Sub-Committee consisting of such a number of persons as they may deem the circumstances warrant, for the purpose of inquiring into any matter pertaining to Soccer NSW or its affairs. In cases of emergency, the President shall have power to appoint any such Commission or Sub Committee.
…
3.12 REPORTS
Reports from any Commission or Sub-Committee shall be in, the first instance, given [sic] to the Chief Executive Officer for distribution to the Board of Directors, who shall make such decisions as they deem appropriate.
…
4.3 OTHER COMMITTEES
(a) General Purposes Tribunal:-
Membership – The General Purposes Tribunal shall consist of such persons who shall not be officials or officers of the member clubs or associations or an employee of Soccer NSW and may include one (1) person qualified for admission as a Barrister or Solicitor of the Supreme Court of New South Wales.
Quorum – The quorum of the General Purposes Tribunal shall be three (3) members and may include one (1) person qualified for admission as a Barrister or Solicitor of the Supreme Court of New South Wales.
Functions – To investigate and deal with any matter referred to it by the Board of Directors or the General Manager including but not being limited to:
(i) Appeals against compensation fees for players
(ii) Reports of breaches and discipline as provided for in Section 17 of the Rules and Regulations
(iii) Reports of misconduct as provided for in Section 12
(iv) Contractual Disputes Between Clubs and Players
Decisions – The General Purposes Tribunal shall report its decision on any matter to Soccer NSW which shall notify the parties to any hearing or investigation.
In exercising its functions the General Purposes Tribunal shall have the power to disqualify, suspend, fine, expel, reprimand or otherwise deal with any Member Club, Associate Member Coach, Manager, Club Official or other persons found guilty after investigation of any matter referred to it.
…
SECTION 17
BREACHES
DISCIPLINE GENERALLY
17.1 The General Purposes Tribunal may investigate any complaint of:
(a) any breach of these rules and regulations;
(b) unsportsmanlike or unbecoming conduct against any club, member or official thereof, player or coach;
(c) violence or threats of violence or intimidation; or
(d) conduct which brings or may bring the game into disrepute.
17.2 Before the General Purposes Tribunal investigates any such complaint written particulars thereof are to be given to the club or any person concerned and the club or person concerned shall be given an opportunity to appear before the General Purposes Tribunal and to participate in the enquiry and to offer such defence or submissions as it or he/she thinks fit.
17.3 Video evidence is permitted for the identification only of person or persons in relation to charges under this section of the Rules and Regulations.
17.4 If the General Purposes Tribunal is satisfied that any such complaint has been made out it may impose penalties as follows:
(a) suspension for such period of time as may be determined from Soccer NSW or from any competition conducted by or in conjunction with Soccer NSW; and
(b) a fine, in the case of a club not exceeding $10,000-00 or in the case of an individual not exceeding $5,000-00.
Recommendation to the Board of Directors for:
(c) expulsion from Soccer NSW or from any competition conducted by or in conjunction with Soccer NSW.
17.5 The General Purposes Tribunal shall inform Soccer NSW of its decision and any penalty imposed.”

Natural justice

38 The defendant accepted that it had an obligation to afford natural justice to the plaintiff. This obligation, said the defendant, it had discharged.

39 The parties referred me to many decisions dealing with the concept of natural justice. It is not necessary to set them all out; nor does time permit this. The basic principle, relevant to this case, is clear. Someone who may be adversely affected, and in a serious way, in relation to rights or property, by a decision of a competent authority is entitled to an opportunity to be heard by that authority before it makes its decision.

40 The application of that basic right - its content in particular fact situations - is a matter for case by case analysis. To the extent that my analysis requires, I will refer to the decisions cited by the parties insofar as they bear on the application of that basic principle to the facts of the present case.

The plaintiff’s case

41 The plaintiff put its case in a number of different ways:

(1) Section 17 of the rules was binding between it and the defendant, and it was not open to the board of the defendant to bypass or short-circuit the s 17 process (as the plaintiff submitted had been done).

(2) Alternatively, the plaintiff had a legitimate expectation that the defendant would follow the s 17 process to its conclusion.

(3) Alternatively, the failure of the defendant to follow its own disciplinary processes is oppressive, so as to entitle the plaintiff to relief under s 232 of the Corporations Act 2001.

(4) However the process was analysed, the plaintiff had been denied procedural fairness, because:

(4.1) the Panel had not put to the plaintiff for response - had not enabled the plaintiff to be heard on - a number of matters on which (according to the plaintiff's reading of the report) the Panel founded its conclusions and recommendations;

(4.2) the Board had not given the plaintiff the opportunity to be heard on the adoption of the report, or its conclusions and recommendations insofar as they affected the plaintiff; and

(4.3) neither the Panel nor the board had given the plaintiff the opportunity to be heard on the question of penalty.

The defendant’s case

42 The defendant submitted that:

(1) It had power to act as it did; s 3.9 of the rules authorised the institution of the Panel inquiry, and s 3.12 permitted the board to act on it.

(2) In any event, clause 44 of the constitution reserved the question of discipline to the board, and the rules (including s 17) could not and did not abrogate that power.

(3) The plaintiff had received the measure of natural justice to which it was entitled. In particular:

(3.1) there was no requirement to allow comment on proposed findings, especially in the context of inquisitorial proceedings (as, the defendant submitted, the Panel's inquiry was);

(3.2) there was no requirement for the board, as well as the Panel, to afford the plaintiff an opportunity to be heard in circumstances where the board had delegated the power of inquiry to the Panel;

(3.3) the Panel, between the interview process and the letter of 14 April 2005, had given the plaintiff an adequate opportunity to put its case and had apprised the plaintiff of the Panel's concerns, with an adequate opportunity to the plaintiff to address those concerns;

(3.4) implicit in the last point, but made explicit in submissions: that the fundamental issues that drove the Panel's report had been put to the plaintiff with a sufficient opportunity for the plaintiff to respond; and

(3.5) whether viewed objectively or subjectively, the plaintiff had no expectation, legitimate or otherwise, in relation to the observance of the s 17 procedures.

Analysis: power to discipline and the Panel

43 I have referred already to the difficulty of understanding why the defendant (as it now says it did) set up two separate inquiries for disciplinary purposes. The result was to cause confusion and, perhaps, to mislead the plaintiff into thinking that the two processes would be followed through, with the Panel process feeding into the Tribunal process, before any action was taken. If what was done was not misleading, or did not mislead the plaintiff, it was at the very least confusing, and most certainly, I think, did confuse the plaintiff.

44 It may be arguable that s 17 of the rules constitutes a discrete code dealing exclusively with disciplinary matters. If this were correct, the general power under s 3.9 of the rules to refer matters to a commission or subcommittee would not enable the board to refer disciplinary matters in that fashion. However, on the view to which I have come, it is not necessary to express a concluded view.

45 Clearly, it was open to the defendant's board to refer the incident to a commission or subcommittee under s 3.9 for inquiry and report. The terms of reference given to the Panel go well beyond the issue of sanctions; and, leaving aside term 6, there can be no doubt that the reference was valid.

46 I do not think that it follows necessarily, from the structure of the constitution and the rules, that the board is bound to refer any disciplinary question to the Tribunal. Clauses 11, 44 and 46 of the constitution make it clear that the power to discipline members is reserved to the board. Section 17 of the rules is made in aid of that power. It is not the grant of power. There is nothing in the constitution or the rules to suggest that the board must refer a disciplinary question to the Tribunal. I think it clear that the board may, should it choose to do so, exercise all incidents of the disciplinary power itself in any given case.

47 On this analysis, it may be open to the board, having reserved a disciplinary matter to itself, to cause an inquiry to be held under s 3.9. But as I have said, I do not need to express a concluded view.

48 No objection was taken to any of the terms of reference. Nor, at any time before the defendant's board decided to suspend the plaintiff, was it said that the reference to the Panel was beyond power. The defendant did not, however, submit before me that the plaintiff was thereby estopped from arguing the point.

Analysis: natural justice and the Panel

49 What is clear is that the plaintiff, at least through Messrs Stilin and Krslovic, understood that the Panel had been given power to consider the question of "appropriate sanctions" arising out of the incident. The terms of reference make this clear. The record of interview, from which I have quoted, shows that Messrs Stilin and Krslovic were acutely aware of this, even if there may have been some confusion on the part of at least some Panel members as to what was comprehended by the sixth term of reference.

50 It is at least arguable that the sixth term of reference referred to sanctions generally - ie, to recommending a range of punishments that might be prescribed for such incidents in the future - rather than to particular sanctions - ie, what punishment should be imposed on those found to be responsible for this particular incident. Indeed, this view appears from the passage at page 65 of the record of interview (page 68 of exhibit PX 1) that I have set out in para [14] above. But again, on the view to which I have come, it is not necessary to express a concluded view.

51 If this case were to be decided according to whether the Panel had given the plaintiff natural justice, I would conclude that the plaintiff must fail.

52 The plaintiff was apprised of the terms of reference. It was given, and took, the opportunity to put its case. In the course of the interview, the members of the Panel raised their principal concerns with Messrs Stilin and Krslovic, and gave them the opportunity to comment. Before the Panel finalised its report, it gave the plaintiff the opportunity to comment on matters of concern. The plaintiff took this opportunity.

53 The plaintiff submitted that not all matters of fact relied upon by the Panel in support of its conclusions were referred to in the letter of 14 April 2005. However, when one reads both the interview on 30 March 2005 and that letter, it is clear that the Panel notified the plaintiff of all the principal issues, and much of the evidence in support: in most cases, more than once. The matters not covered were matters of primary fact, or evidence, that supported the conclusions that were notified and the evident thrust of those conclusions. They did not of themselves modify either the conclusions or where, it might be thought, those conclusions could lead.

54 The Panel's process might have been truncated, but that is not the test. It might not have achieved the level of comparative perfection of a civil trial, but that again is not the test.

55 This was an inquisitorial, not an adversarial, process. It was for the plaintiff, having been apprised of the issues, to put what it wished in response. This it did. There was no "case" that the Panel was required to put to, or against, the plaintiff; and the plaintiff was not required (for example) to comply with the rule of fairness expounded in Browne v Dunn (1894) 6 R 67. See Abebe v The Commonwealth (1999) 197 CLR 510, 576 [187] (Gummow and Hayne JJ) and Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S154/2002 (2003) 77 ALJR 1909 at 1918-1919 [57] (Gummow and Heydon JJ).

56 When one adds to the context that I have described the fact that, on 8 April 2005, the defendant informed the plaintiff of the specific charges and gave the plaintiff in effect the prosecution brief - admittedly in the context of referral to the Tribunal - I think that the plaintiff was given an adequate opportunity to be heard by the Panel.

Analysis: natural justice and the Board

57 By the time the Panel's report was provided to the board (21 April 2005) the reference to the Tribunal had been made, and the plaintiff had been notified of the charges to be considered by the Tribunal. The Tribunal had held a directions hearing, given directions for the preparation, and indicated that there would be a hearing on a date to be arranged more than 28 days later. (I interpose that, before the board resolved to suspend the plaintiff, the defendant wrote to the plaintiff - on 29 April 2005 - confirming the date for hearing as 25 May 2005 and advising of the arrangements needed for that hearing.)

58 The clear inference from all this is that the defendant, from its conduct objectively viewed, intended the question of punishment to be dealt with through the mechanism of the Tribunal inquiry. There was no point whatsoever in taking the steps that I have outlined if it were the intention of the defendant that its board would deal with the question of discipline on the basis of the Panel's report. If that were the defendant's intention, the reference to the Tribunal and the steps that followed were a charade. Further, they were either pointless - assuming incompetence or the lack of intellectual application to be the driving force - or designed to lull the plaintiff into thinking that action would not be taken - assuming a more malign motive. Because there was no cross-examination of the defendant's witnesses, and because the reasons for its actions were not explored, I make no finding on these matters; but I repeat that I find it difficult, to the point of impossibility, to understand what it was that the defendant thought it was doing, or what it hoped to achieve, by the steps that it took.

59 It is clear that the plaintiff came to understand that the question of punishment was to be considered by the Tribunal at some time in the future (later fixed at 25 May 2005). That is apparent from Dibbs Barker Gosling's letter to the defendant of 19 April 2005, the relevant passages from which I have set out in para [19] above. It is apparent that Dibbs Barker Gosling - and, I infer, the plaintiff - understood that the Panel's report when completed would form part of the material before the Tribunal.

60 Indeed, it is very difficult to see what other view could have been taken. There were no formal charges articulated before or by the Panel (so far as the plaintiff was aware): contrast the proceedings in the Tribunal. The Panel's task was to undertake a wide-ranging inquiry; the Tribunal's was focused on the disciplinary issue. Clearly, there would be an expectation of one hearing only for charges arising out of the incident on 13 March 2005. Equally clearly, after 8 April 2005, it was apparent that that hearing was to be held before the Tribunal.

61 The plaintiff's case on the issue of natural justice is that the board was required to give it an opportunity to be heard before deciding whether, on the basis of the Panel's report, to punish the plaintiff. (It was of course the plaintiff's primary case that the board could not do this at all until the s 17, Tribunal, process had been worked through, but I put that to one side.)

62 This aspect of the plaintiff's case was put on two bases. The first is that a party should be given notice of proposed adverse findings, and an opportunity to comment, before an inquiry is finalised: relying on Mahon v Air New Zealand Limited [1984] AC 808. The second is that in any event a disciplinary body, having made a finding of "guilt", must give the party an opportunity to be heard on the question of penalty: relying on Hall v NSW Trotting Club Ltd [1977] 1 NSWLR 378.

63 The defendant submitted that the board, in circumstances where it had referred the inquiry to the Panel and where the Panel had given the plaintiff an adequate opportunity to be heard, was not required to give the plaintiff a second opportunity to be heard: relying on State of South Australia v O'Shea (1987) 163 CLR 378. Further, it submitted, there was no general requirement to allow a second opportunity to be heard, on proposed adverse findings: relying on Aronson and Ors, Judicial Review of Administrative Action (third edition, 2004) at 516.

64 I do not accept that the principle in O'Shea is applicable to this case. O'Shea was a case where the respondent challenged a decision, made by the Governor in Council, not to release him from an order for detention during the Queen's pleasure. The challenge was to a single-stage determination. The order for indefinite detention had been made and was not challenged; the challenge was to the decision not to grant release on licence. There was no question of guilt and no question of penalty. An inquiry was held by the Parole Board, as to whether the respondent should be released on licence. The respondent was given an adequate opportunity to be heard before the Parole Board. The Parole Board's report was given to the Governor in Council. Its recommendation was not adopted. It was in those circumstances that the High Court held that the respondent had been given a hearing, and was not entitled to another.

65 Even if I were to assume that, in the present case, the board was not required to give the plaintiff another opportunity to be heard on the question of guilt or innocence, it does not follow that the board, having decided to adopt the Panel's report on that question, was not required to give the plaintiff an opportunity to be heard on the question of penalty. Nothing in O'Shea requires me so to conclude.

66 Instead, I think, I am bound by the decision in Hall to conclude that the board was required to give the plaintiff an opportunity to be heard on the question of penalty. In Hall, stewards had found the appellant guilty of an offence, and without hearing further from the appellant imposed a penalty. The Court of Appeal held by majority (Hutley and Samuels JJA, with Mahoney JA dissenting) that the decision and penalty were "void" (Hutley JA) or that the decision on penalty was "a nullity" (Samuels JA). Hutley JA said at 382 that the duty of the stewards required either a hearing on the question of penalty or a clear waiver by the appellant of that right. As his Honour pointed out, a "person found guilty cannot really address [the question of penalty] until he knows of what he has been found guilty.”

67 Samuels JA said at 391 that, although the appellant might be taken to have been aware of the range of penalties "He should ... have been distinctly offered the opportunity to speak in mitigation.”

68 In this case, there does not appear to be, as there was in Hall, a prescribed range of penalties for particular breaches: something that fortifies, rather than derogates from, the application of the principle in Hall to this case.

69 In Malone v Marr [1981] 2 NSWLR 984, Holland J considered that the effect of the decision in Hall, in circumstances where the only failure to accord natural justice was in relation to penalty, was to require that the decision on penalty be declared void.

70 On that basis, the "conviction" would stand but the penalty would fall. It is therefore necessary to consider the assumption that the board was not required to give a second hearing to the plaintiff on the question of guilt or innocence.

71 On the facts of this case, I do not think that the decision in O'Shea requires the question to be answered adversely to the plaintiff. In O'Shea, as I have said, the precise issues were dealt with by the Parole Board. In this case, the Panel did not consider precisely formulated (or any) charges; as the terms of reference make clear, it was given a broad-ranging brief to inquire and report.

72 I have adverted to the characterisation, which I think is correct, of the Panel's proceedings as inquisitorial. In substance, once the board decided to rely on the report to make a finding of guilt on a specified charge, the nature of the proceedings against the plaintiff became more adversarial in character. The shift from inquisitorial to adversarial process of itself indicates that the board could not rely on the fact that (to the extent that had occurred) the Panel had given natural justice to the plaintiff. That was natural justice appropriate to, and whose content was to an extent fashioned by, the inquisitorial nature of the Panel's inquiry.

73 This analysis is supported by comparing what it was that the Panel did with what it was that the board did. The Panel put to the plaintiff, both in interview and in correspondence, the questions of fact - both primary fact and conclusions of fact - with which it was concerned. At no stage did the Panel put to the plaintiff any, let alone precise, breaches of the defendant's constitution or rules that might be shown by such facts. No doubt, if the plaintiff had turned its mind to this point, it might have realised that the facts that were of concern to the Panel might indicate breaches of the constitution or rules. But nothing in O'Shea compels the conclusion that the plaintiff should have formulated and addressed, in the context of a broad-ranging factual inquisitorial process, any such charges, for the purpose of answering them. Indeed, as I have said, the plaintiff was reasonably entitled to think after 8 April 2005 that the question of charges would be dealt with by the Tribunal.

74 In contrast, the board wished to press a precise charge against the plaintiff. That charge, although formulated in the report, had not been put by the Panel to the plaintiff. In substance, the defendant and the plaintiff became, through the decision to press a charge, adversary parties. The adversarial context may fashion a different content or application of the broad entitlement to be heard. It is plain that the defendant gave no consideration to whether this was so.

75 Thus, I think, if the defendant wished to rely on the report to support findings of breach against the plaintiff, it was incumbent on the defendant to provide the plaintiff with a copy of the report and to tell the plaintiff what breaches of the constitution or rules the defendant (or its board) considered were made out by the findings in the report, and to provide the plaintiff an opportunity to be heard on that question. That conclusion is reinforced by, although it does not depend on, the institution of the reference to the Tribunal and the inference that I have found would be drawn from that.

76 It follows that, whilst the plaintiff had no entitlement to be reheard on the factual issues canvassed before and decided by the Panel, in the events that occurred it had an entitlement to be notified of the conclusions - as to breach of the constitution and rules - that were said to follow from those factual findings. This is not so much an application of the principles said to be established by Mahon but a working out in the precise facts of this case of the content or application of the right to be heard.

77 Because the plaintiff was not given that opportunity, the decision cannot stand.

Consequences of finding of want of natural justice

78 As I have said, the decision in Hall indicates that a decision vitiated by denial of natural justice is "void" or "a nullity". However, the position may not be so simple. In Forbes v NSW Trotting Club Ltd (1979) 143 CLR 242, Aickin J said at 277 that the better view is that the decision is not void ab initio, but is effective unless and until a challenge to its validity is upheld. His Honour said:

“That which is done without compliance with applicable principles of natural justice, in circumstances where the relevant authority is obliged to comply with such principles, is not to be regarded as void ab initio so that what purports to be an act done is totally ineffective for all purposes. Such an act is valid and operative unless and until duly challenged but upon such challenge being upheld it is void, not merely from the time of a decision to that effect by a court, but from its inception. Thus, though it is merely voidable, when it is declared to be contrary to natural justice the consequence is that it is deemed to have been void ab initio”.

79 It follows that the decision of the board should be regarded as voidable, but that if it is declared to be void, the effect will be that it is deemed, or taken, always to have been void. The parties did not address the conceptual basis of this problem (which is discussed in, for example, the dissenting judgment of Kirby J in Minister for Immigration v Bhardwaj (2002) 209 CLR 597 at 630-634). They did, however, address its results.

80 The suspension has meant that the plaintiff's teams have missed three matches: two, I think, in the Premier League and one in the Continental Cup. Points have been awarded on a forfeit basis to the other teams. If the Court's orders are to have retrospective effect, those teams will be affected. They are not parties, and have not been heard.

81 One team, Rockdale Ilinden Soccer Club, has indicated by letter that, with knowledge of the issues and the potential impact on it, it does not wish to be heard. The parties submitted, and I accept, that on this basis I need not refuse relief having retrospective effect on the ground that it would adversely affect that club.

82 Another club affected is APIA Leichhardt Tigers Football Club Inc. That club has indicated by letter from its solicitor that it "is prepared to have its interests represented by the representatives of Soccer NSW in the proceedings" and that it "is of course prepared to accept and abide by the Court's decision in the matter". That does not seem to me to be a waiver of the right to be heard knowing of the potential adverse consequences. It may very well be that I could infer that APIA has considered the consequences, including the loss of points awarded to it on a forfeit basis, and having done so is prepared to abide the decision of the Court. But the letter does not make it clear.

83 The other club potentially affected is the Sydney Olympic Club. That club has not been the beneficiary of any points awarded on a forfeit basis. However, its standing in the Premier League is such that if the plaintiff does not obtain retrospective relief, it may have some chance of participating in the semi-finals. Sydney Olympic has not, so far as the Court is aware, expressed an attitude.

84 On balance, I do not think that I should refuse relief having retrospective effect on the ground that it may have an adverse impact on Sydney Olympic's prospects of playing in the semi-finals. It loses no points. At most, if the forfeited matches are to be played, Sydney Olympic will be in the position it would have been in had the decision not been made. In other words, its prospects of reaching the semi-finals will depend, as but for the decision they would have done, on the outcomes of those games.

85 The defendant did not rely on any other discretionary bars to the grant of relief, or on any other circumstances said to limit or circumscribe the extent of relief that should be granted.

Conclusion

86 I therefore conclude that the plaintiff has made out its case for relief, on the ground that the whole of the decision to suspend it is voidable for denial of natural justice.

87 I have not canvassed all the issues advanced and argued by the parties. Their positions are set out in written outlines, and their oral submissions have been recorded. I have dealt with the submissions to the extent that they bear, one way or the other, on the conclusion that I have reached and the precise grounds for that conclusion. Because of the urgency with which these proceedings were brought on and decided, I do not propose to deal with submissions or issues that do not bear on my conclusion and its supporting reasons.

88 Before I make orders, I wish to stress that this is not a merits review of the defendant's decision, far less is it any approbation, or vindication, of the plaintiff's position in relation to the events of 13 March 2005. The decision that I have reached flows from an application of my understanding of the requirements of natural justice to the facts of this case.

89 The merits of the plaintiff's and defendant's contentions in relation to responsibility for the events of 13 March 2005 is a matter to be dealt with, in the first instance, by the Tribunal on the hearing of the charges laid against the plaintiff and against White Eagles.

Orders

90 I propose to make the following orders:

(1) Declare that the resolution of the board of directors of the defendant made on 2 May 2005 and notified to the plaintiff by letter dated 4 May 2005 is void.

(2) Order that the defendant be restrained from, by itself, its servants or agents or otherwise, acting upon or giving effect to that resolution.

91 I will hear the parties on the form and implementation of those orders, particularly having regard to the position of APIA, and on costs.

******

17/05/2005 - Change in seniority of counsel for plaintiff - Paragraph(s) on judgment record sheet