Thomas v Equestrian Australia Ltd

Supreme Court of South Australia
(Civil)
THOMAS v EQUESTRIAN AUSTRALIA LTD
[2022] SASC 151
Judgment of the Honourable Justice Stanley
CORPORATIONS - MEMBERSHIP, RIGHTS AND REMEDIES - MEMBERS' REMEDIES AND INTERNAL DISPUTES - OPPRESSIVE OR UNFAIR CONDUCT - RELIEF
ASSOCIATIONS AND CLUBS - INCORPORATED ASSOCIATIONS - MEMBERS
The applicant is a member the South Australian Branch of Equestrian Australia Ltd and, thereby, a member of the respondent company, Equestrian Australia Ltd. Equestrian Australia Ltd is a corporation limited by guarantee for the purposes of the Corporations Act 2001 (Cth).
Pursuant to Equestrian Australia Ltd’s rules, which are promulgated by the South Australian Branch, Equestrian Australia Ltd has the power to investigate charges laid against members and to impose disciplinary sanctions.
Throughout his membership, the applicant has been the subject of multiple complaints that have alleged misconduct in contravention of Equestrian Australia Ltd’s rules. Accordingly, Equestrian Australia Ltd has responded and acted upon these complaints. Arising from this exchange, in these proceedings, the applicant challenges two decisions and a notice of charge:
1)      On 18 February 2022, Equestrian Australia Ltd informed the applicant of their intention to conduct an investigation, through an independent body, in response to three complainants. This investigation substantiated the complaints. Accordingly, the Chief Executive Officer of Equestrian Australia Ltd wrote to the applicant on 25 July 2022 informing him of the substantiation and imposed a three-month suspension on his membership (the first decision).
2)      The applicant filed an appeal against the decision of the Chief Executive Officer of Equestrian Australia Ltd on 28 July 2022, which was heard on 25 August 2022. The applicant relied on 10 grounds which, fundamentally, contended that he was denied natural justice in the decision made by the Chief Executive Officer of Equestrian Australia Ltd to suspend his membership for three months. The Appeal Board ultimately confirmed the decision of the Chief Executive Officer of Equestrian Australia Ltd (the second decision).
3)      Concurrently, a Notice of Charge was laid against the applicant on 28 July 2022 in relation to complaints alleging misconduct.
The applicant seeks declaratory remedies that the two decisions and notice of charge are in breach of contract and/or contrary to ss 140, 232 and 233 of the Corporations Act 2001 (Cth).
Distilled from counsel’s submissions, there were three issues to be determined by the Court:
1)      Whether the decision of the Chief Executive Officer of Equestrian Australia Ltd to suspend the applicant for three months was contrary to the applicable rules and by-laws of Equestrian Australia Ltd;
2)      Whether any defect of the decision by the Chief Executive Officer of Equestrian Australia Ltd was cured by the appeal hearing; and
3)      Whether Equestrian Australia Ltd’s Disciplinary By-Laws and rules limited Equestrian Australia Ltd’s power to investigate and sanction breaches of its rules to complaints that have been charged within 14 days of the conduct subject of the charge.
Held per Stanley J:
The decision of the Chief Executive Officer of Equestrian Australia Ltd to suspend the applicant for three months was in breach of the contract that binds Equestrian Australia Ltd to its members.
Overall, in dealing with the applicant, Equestrian Australia Ltd has contravened their rules and the principles of natural justice and procedural fairness. This conduct is oppressive within the meaning of s 232 of the Corporations Act 2001 (Cth), entitling the applicant to relief under an order pursuant to s 233 of the Corporations Act 2001 (Cth). The relief sought is qualified by admissions of the applicant and those complaints made within the 14 day time limit.
Upon proper construction of Equestrian Australia Ltd’s Disciplinary By-Law 11 and rules, Equestrian Australia Ltd cannot bring disciplinary proceedings against the applicant for conduct which was not the subject of a complaint within 14 days of the conduct.
Associations Incorporations Act 1985 (SA) s 61; Corporations Act 2001 (Cth) ss 140, 232 and 233, referred to.
Ambrose v The Commonwealth of Australia [2021] FCFCA 88; CECA Institute Pty Ltd v Australian Council for Proviate Education and Training (2010) 245 FLR 86; Day v Harness Racing New South Wales (2014) 88 NSWLR 594; Day v Sanders (2015) 90 NSWLR 764; Echunga Football Club Inc v Hills League (2014) 121 SASR 449; Epstein v The Workcover Corporation of South Australia (2003) 85 SASR 561; Green v Page [1957] Tas SR 66; Hill v Green (1999) 48 NSWLR 161; Joint v Stephens (2008) 26 ACLC 1467; Kioa v West (1985) 159 CLR 550; Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2005] FCA 1812; Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2006) 156 FCR 1; Millar v Houghton Table Tennis and Sport Club Inc (2003) 225 LSJS 241; Orr v Ford (1989) 167 CLR 316; Pettit v SA Harness Racing Club (2006) SASR 543; Popovic v Tanasijevic (2000) 34 ACSR 1; Popovic v Tanasijevic [2001] SASC 289; R v Marks; ex parte Australian Building Construction Employees Builders Labourers Federation (1981) 147 CLR 471; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; Twist v Randwick Municipal Council (1976) 136 CLR 106; Wayde & Anors v New South Wales Rugby League (1985) 180 CLR 459, considered.

THOMAS v EQUESTRIAN AUSTRALIA LTD
[2022] SASC 151
Civil
STANLEY J:
Introduction

Anthony Thomas (‘the applicant’) is a member of the South Australian Branch of Equestrian Australia Ltd (ESA) and thereby a member of Equestrian Australia Ltd (EA), the respondent. EA is the peak body that governs the sport of equestrianism in Australia. It is a corporation limited by guarantee for the purposes of the Corporations Act 2001 (Cth) (‘Corporations Act’).
Pursuant to EA’s constitution and by-laws promulgated by the South Australian Branch, EA has power to investigate charges laid against its members and to impose disciplinary sanctions when its rules have been contravened by a member or members.
On 18 February 2022, the applicant received written notice from EA of its intention to conduct an investigation into three complaints against him which could result in the imposition of disciplinary measures.
EA appointed Rogan Consulting to conduct an independent investigation into these allegations. The applicant declined to cooperate in that investigation. The investigator provided EA with a report setting out the findings he had made in relation to the three complaints and that the complaints had been substantiated. On 25 July 2022 the Chief Executive Officer of EA (‘CEO of EA’) proceeded to suspend the applicant from membership of the EA for a period of three months on the basis of the applicant’s breach of EA’s Code of Conduct, Social Media Policies and ESA State Squad Agreement. It appears this decision was based on the investigator’s report. The applicant appealed from this decision. An Appeal Board appointed by EA heard the applicant’s appeal on 25 August 2022 and confirmed the decision to suspend the applicant’s membership.
On 28 July 2022, the applicant received a Notice of Charge, signed by the CEO of EA, in relation to other complaints alleging misconduct, namely, cruel and improper conduct and practices in connection with the management and handling of a horse and conduct which is unbecoming of a member of EA or ESA.
In these proceedings the applicant challenges:
·The decision by the CEO of EA of 25 July 2022 to suspend the applicant’s membership for a period of three months;
·The decision of 25 August 2022, made by the Appeal Board established pursuant to EA’s constitution, to confirm the decision of the CEO of EA suspending the applicant’s membership for a period of three months; and
·The “Notice of Charge” laid against the applicant on 28 July 2022 in relation to complaints concerning his alleged misconduct.
The applicant is a professional equestrian, who competes regularly in events for prize money. He also conducts a business concerned with horses and is a riding coach. His livelihood and reputation are adversely affected by the decision to suspend his membership of EA which prevents him from competing in events for the duration of his suspension.
On 30 August 2022, the applicant obtained an interim injunction from a Master of this Court enjoining EA from acting on the Appeal Board’s decision until further order.
The applicant seeks declaratory remedies that the two impugned decisions and the notice of charge laid are in breach of contract and/or contrary to s 140, s 232 and s 233 of the Corporations Act.
Section 140(1)(a) of the Corporations Act provides that a company’s constitution has effect as a contract between the company and each of its members. Section 232(e) of the Corporations Act empowers the Court to make an order under s 233 if the conduct of the company’s affairs or an actual or proposed act by a company is oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member. Section 233(1)(c) of the Corporations Act empowers the Court to make orders it considers appropriate in relation to the company regulating its affairs in the future.
The issues
The issues for determination by the Court are first, whether the decision of the CEO of EA on 25 July 2022 to suspend the applicant was contrary to the applicable rules and by-laws of EA (‘the first decision’). This is not seriously contested by EA. Second, whether any defect in the first decision was cured by the hearing before the Appeal Board which, on 25 August 2022, confirmed the first decision (‘the second decision’). Third, whether EA’s Disciplinary By-Laws limit EA’s power to investigate and sanction breaches of its rules by its members to complaints that have been charged within 14 days of the conduct the subject of the charge.
The factual background
On 18 February 2022, a letter signed by the National Integrity and Complaints Officer of EA was sent to the applicant. The applicant was advised that formal complaints had been received from Mark Lindh, Michael Haese and Sophie Crauford regarding alleged actions which might have breached the EA Member Protection Policy, EA Code of Conduct, EA Social Media Policy and ESA State Squad Agreement. Those complaints were:
1.Mr Mark Lindh (Complainant) alleges that you bullied, harassed, verbally abused, humiliated or victimized him when on 17 August 2021 you sent a private electronic message to Mr Clive Reed belittling Mr Lindh. These allegations, if founded, may constitute breaches of EA’s Member Protection Policy, Code of Conduct and/or Social Media Policies.
2.Mr Michael Haese (Complainant) alleges that social media posts concerning him, particularly a Facebook post on 17 September 2021, was false and misleading or abusive, and potentially breached Social Media Policies.
3.Ms Sophie Crauford (Complainant) alleges that social media posts written by you contain false and misleading information which may be defamatory and vilifying and potentially breached the Code of Conduct, Social Media Policies, and the State Squad Agreement.
The applicant was further advised that an independent investigation in relation to the allegations would be conducted by Rogan Consultancy.
On 23 February 2022, the applicant’s solicitors sent a letter to the National Integrity and Complaints Officer of EA. The letter stated that the applicant believes the complaints detailed in the letter of 18 February 2022 are malicious and vexatious and part of an ongoing campaign to discredit him and damage his reputation. Further, it stated that the applicant is entitled to be provided with details of the complaints, the actions said to give rise to the complaints, and the rules or policies that are alleged to have been breached. The letter sought provision of those particulars.
On 16 March 2022, 22 March 2022, 23 March 2022 and 29 March 2022, Rogan Consultancy unsuccessfully attempted to contact the applicant seeking a response in relation the allegations being investigated.
On 19 May 2022, Rogan Consultancy provided EA with its final report following their investigation into alleged misconduct of the applicant. Rogan Consultancy found that the allegations of Mark Lindh, Michael Haese and Sophie Crauford were substantiated.
On 25 July 2022, a letter signed by the CEO of EA was sent to the applicant. The applicant was advised that the independent investigation conducted by Rogan Consultancy in relation to the complaints received from Mark Lindh, Michael Haese and Sophie Crauford had concluded. As a result of the outcome of the investigation, EA found the applicant had breached the EA Code of Conduct, EA Social Media Policy and ESA State Squad Agreement and imposed a low range sanction of three months suspension.
On 28 July 2022, a letter signed by the CEO of EA entitled ‘Notice of Charge’ was sent to the applicant. The applicant was advised that ESA has formally referred the further handling and determination of a number of complaints received by ESA to EA. EA determined to form a new tribunal so that EA can be satisfied that the complaints are managed in a procedurally correct and fair manner. The Notice of Charge was said to relate to allegations of cruel and improper conduct and practices in connection with the management and handling of a horse and also conduct which is unbecoming of a member of EA or ESA.
Also on 28 July 2022, the applicant filed a notice of appeal against the decision of the CEO of EA of 25 July 2022 imposing the three-month suspension. The applicant advanced 10 grounds of appeal and sought that the decision be revoked or, in the alternative, that the applicant be admonished.
On 21 August 2022, the applicant was sent a letter signed by the solicitors for EA which advised that the appeal in respect of the sanction imposed on 25 July 2022 would be heard on 25 August 2022. The letter referred to an appeal book to be prepared by EA which was ultimately served on the applicant after hours on 23 August 2022.
On the morning of 25 August 2022, an appeal board comprising a chairperson, a legal practitioner member and a member heard the applicant’s appeal. In the afternoon of 25 August 2022, the appeal board sent a letter to the applicant advising that the decision the subject of the appeal was ‘confirmed’.
On 30 August 2022, a Master of this Court made orders staying the decision to suspend the applicant’s membership, restraining EA from taking any steps in reliance on the suspension decision and permitting the applicant to compete at equestrian events in Australia where membership of the respondent is required in order to participate.
The scheme of the rules
EA Constitution
Clause 2(u) of the EA Constitution states that EA is the ‘final arbiter’ on all matters pertaining to the conduct of Equestrian sport in Australia, including disciplinary matters. Clause 10.1 refers to disciplinary action and provides:
Where the Board considers that, or is advised by the Chief Executive Officer that, a Participating Member has allegedly:
(a) breached, failed, refused or neglected to comply with a provision of this Constitution or the by-laws and as a consequence of that breach, failure, refusal or neglect the Company has suffered, or might reasonably be expected to suffer, financial loss or damage or material damage to its reputation; or
(b) acted in a manner unbecoming of a Participating Member or prejudicial to the Objects and interests of the Company and/or Equestrian sport and as a consequence has brought the Company or Equestrian sport into disrepute,
the Board may commence or cause to be commenced disciplinary proceedings against that Participating Member, and that Participating Member will be subject to, and by fact of its membership, submits unreservedly to the jurisdiction, procedures, penalties and appeal mechanisms (if any) of the Company set out in the by-laws. No member of the Board shall take part in any such disciplinary proceeding as an adjudicator.
Clause 34.1 sets out the power to formulate, approve, issue, adopt, interpret and amend such by-laws, regulations and policies for the proper advancement, management and administration of equestrian sport as is necessary or desirable. Clause 34.2 provides that all by-laws duly made under clause 34.1 shall be binding on EA, the Branches and the members.
EA Disciplinary By-Laws
The introduction to the EA Disciplinary By-Laws states that tribunals shall be empowered to deal with allegations of members of EA committing offences under the EA Disciplinary By-Laws at any time during the term of their membership. The EA Disciplinary By-Laws follow as closely as possible the rules laid down by the Federation Equestre Internationale (‘FEI’). The by-laws provide that, in the event of a conflict between EA rules and the FEI regulations and rules, the FEI rules will prevail unless they have been specifically excluded. They also provide it is the duty of a tribunal established in accordance with the EA Disciplinary By-Laws to make a fair decision in a sporting spirit while adhering as closely as possible to the intention of the rules.
By-law 4 relevantly provides that, where a complaint is made, the matter will be heard and dealt with by a tribunal appointed for that purpose. By-laws 6 and 7 state that a tribunal chairman will be appointed and a tribunal must consist of not less than three and no more than five members. Significantly, by-law 11 states that complaints received more than 14 days after the incident will not be considered. By-law 15 provides that when it is believed that an offence may have been committed but no formal complaint has been made, the alleged offence may be investigated and the making of a formal complaint may be recommended. A formal complaint following an investigation should be made within 21 days of the date on which the alleged offence took place. By-law 17(q) states that a person will have committed a breach of the EA Disciplinary By-Laws if they conduct themselves in a manner which is unbecoming of a member of EA, is prejudicial to the interests of EA, or has brought EA into disrepute.
By-law 24 provides that no penalty can be imposed against any person for breach of the EA Disciplinary By-Laws unless such person has received reasonable notice in compliance with by-law 25, details of the alleged breach, and has been given an opportunity to submit an explanation as to the circumstances giving rise to the allegation and to present their side of the case. By-law 28 states that a person likely to be adversely affected by the decision of the tribunal may, with leave of the tribunal, be present, call evidence and put questions to witnesses at any hearing. By-law 31 provides that the procedure at any tribunal hearing shall follow, as closely as is practicable, the hearing procedure set out in the EA Tribunal Procedure and Protocol, however, no decisions of a tribunal shall be invalidated by an irregularity in the implementation of such procedures. By-law 34(a) states that where the tribunal is satisfied that an allegation is proved, or the evidence shows that a person is guilty of a breach of the EA Disciplinary By-Laws, the tribunal may impose a penalty. By-law 43 stipulates that appeals arising from decisions of a tribunal may only be made in accordance with the EA Appeal By-Laws. By-law 44 states that, to the extent that the principles of natural justice are not included in the provisions set out in the EA Disciplinary By-Laws, they are expressly excluded. Attached as a schedule to the EA Disciplinary By-Laws is article 169 of the FEI General Regulations dealing with penalties.
EA Disciplinary Tribunal Procedure and Protocol

One of the objects of the EA Disciplinary Tribunal Procedure and Protocol is to ensure that all persons facing allegations are afforded respect, reasonable assistance, procedural fairness and natural justice. The Tribunal Procedure and Protocol provides that the EA Disciplinary Tribunal should learn of the detail of any alleged offence for the first time during the hearing. This document sets out a 27-step procedure for a hearing before the EA Disciplinary Tribunal.
The document provides that the respondent must have received all of the relevant documents. The details of the alleged offence are read to the respondent, and they may admit or deny the offence. If the alleged offence is denied, the EA representative will proceed to call oral evidence from witnesses on affirmation and tender documents. A statement of the respondent’s rights at the hearing is to be read to them before evidence is called. The respondent is entitled to ask questions of each witness after the EA representative has asked questions. After the EA representative has called their witnesses, the respondent is to be given a similar opportunity to give evidence and call witnesses. At the conclusion of the evidence, the EA representative and the respondent are asked to make submissions about whether the alleged offence should be found proved. If the decision is that the respondent is guilty, the EA representative and the respondent are asked to make submissions on penalty.
EA Appeal By-Laws
By-law 7.1(a) of the EA Appeal By-Laws states that the EA Appeal Board must provide any person whose interest will be directly and adversely affected by its decision a reasonable opportunity to be heard; hear and determine the matter before it in an unbiased manner; and make a decision that a reasonable body could honestly reach. However, by-law 7.2(a) excludes natural justice insofar as it requires a person be given sufficient notice to prepare for an appeal. By-law 9 provides that an appeal is to be dealt with as a new hearing, but regard may be had to the record of proceedings before the previously constituted tribunal. By-law 10.2 states that an appeal hearing will be inquisitorial in nature and conducted with as little formality and technicality and with as much expedition as the proper consideration of the matters before it permits. By-law 13 provides that the EA Appeal Board is not obliged to give reasons for a decision and clause 16 allows the EA Appeal Board to decide questions of law and fact.
EA Member Protection Policy
Clauses 2.1 and 5.1.1 of the EA Member Protection Policy provide that the policy applies to all members of EA. Clause 3 states that abuse, harassment, discrimination and vilification is not acceptable. Clause 8.8 provides that, in accordance with the EA Disciplinary By-Laws, a complaint will not be considered if it is received more than 14 days after the incident has occurred. Clause 9 states that EA may impose disciplinary measures on an individual for a breach of the EA Member Protection Policy. Any disciplinary measures are to be determined in accordance with the EA Constitution, Disciplinary By-Laws and the EA Member Protection Policy. Clause 11 states that it is a breach of the EA Member Protection Policy for any person to fail to comply with any of the responsibilities as set out in the EA Member Protection Policy, breach any part of an EA Code of Conduct, or engage in any form of harassment. Clause 12 stipulates that, in respect of penalties, all procedures are in accordance with the principles of natural justice and the EA Disciplinary By-Laws.
EA Member Protection Procedures
Attachment D1 of the EA Member Protection Procedures sets out the procedure for handling complaints. All complaints must be submitted in writing within 14 days of the incident occurring or they will not be considered. An eight-step practical guide for the complainant is provided. Step 5 relevantly states that if a formal complaint is made, the EA may appoint a person to investigate the complaint. Step 6 provides that if a person is appointed to investigate the complaint under step 5, the investigator will conduct the investigation and provide a written report to EA. The complaint may ultimately be referred to a tribunal. If the complaint is referred to a tribunal, the hearing will be conducted in accordance with the EA Disciplinary By-Laws.
Attachment D3 sets out the process for investigations. The complainant and the respondent are to be given an opportunity to engage with and respond to the investigation. If there is a dispute over the facts, then statements from witnesses and other relevant evidence will be obtained to assist in a determination. The investigator will a make a finding as to whether the complaint is substantiated, inconclusive, unsubstantiated, mischievous, vexatious or untrue. A report documenting the complaint, investigation process, evidence, finding and, if requested, recommendations, will be given to the EA Judicial Committee. A report documenting the complaint and summarising the investigation process and key points will be provided to the respondent who, in turn, may have the right to appeal against any decision based on the investigation.
Attachment D4 sets out the tribunal procedures. In preparation for a tribunal hearing, a tribunal panel will be established and adequate time must be provided to the respondent to prepare for the hearing. The respondent must be notified in writing of a tribunal hearing and provided with any information and documents given to the tribunal panel. At the tribunal hearing, the chairperson will read the complaint and ask whether the respondent agrees or disagrees with the complaint. If the respondent disagrees with the complaint, the complainant will describe the circumstances leading to the complaint and may call witnesses. The respondent may ask questions of the complainant and any witnesses called on their behalf. The respondent will then be asked to respond and may call witnesses. Similarly, the complainant may ask questions of the respondent and any witnesses called on their behalf. After all the evidence has been presented, the tribunal will make its decision in private. It must decide whether the complaint has, on the balance of probabilities, been substantiated. The respondent can address the tribunal on disciplinary measures which may be imposed. If the complainant or respondent is not satisfied with a tribunal decision, they can lodge an appeal as per the EA Appeal By-Laws. The tribunal hearing procedure is to be followed by the appeal tribunal.
FEI General Regulations
Article 156.1 of the FEI General Regulations relevantly states that the FEI legal system provides for a procedure for lodging protests against the actions or behaviour of individuals under the jurisdiction of the FEI. Article 157.1 states that offences falling under the FEI Safeguarding Policy against Harassment and Abuse are not subject to a statute of limitations. The FEI Safeguarding Policy against Harassment and Abuse relevantly provides that harassment and abuse can include psychological abuse. Article 164.13 allows for offences to be categorised as ‘low-end’, ‘mid-range’, ‘top-end’ or ‘max’.
Principle of interpretation of EA’s rules
In Echunga Football Club Inc v Hills League[1] (‘Echunga Football Club’), I considered the principles applicable to the interpretation of the rules of incorporated associations. After referring to the principles applicable to the construction of contracts, I said:[2]
Those principles, however, must be modified for two reasons when a court is construing the rules of an incorporated association such as this. First, because the rules of an incorporated association have a public dimension. They serve a public purpose and third parties will rely upon them from time to time. They are not merely a private record of a private bargain, rather, the rules of an incorporated association have statutory force by reason of s 23 of the Associations Incorporation Act. Secondly, the Court must recognise that this association is not a commercial operation established with a view to generating profits but rather is what may be described as a non-profit making sporting organisation. In this regard it is proper to recognise that the by-laws are drafted in an ad hoc and piecemeal fashion by lay-persons rather than lawyers, couched in terms intelligible to them but which often lack the consistency, coherence, form and drafting that would be expected in a statute or commercial contract. Accordingly, in my view, the Court must approach the construction of a particular by-law, when read in the context of the by-laws as a whole, with a degree of flexibility. This means that the courts should not make too much of infelicities of expression in the by-laws, nor be too quick to identify absurdity, illogicality or apparent inconsistencies. As French J (as he then was) said in the context of interpreting industrial awards, while fractured and illogical prose may be met by a generous and liberal approach to construction, the instrument must make sense according to its ordinary and grammatical language. Nonetheless, because of the public nature of the rules of an incorporated association, I consider it proper to place greater store by, what Kenny J in Lion Nathan calls, the constitutive text in construing the rules of an incorporated association as opposed to a private contract. This approach will constrain the ambit of the matters constituting surrounding circumstances to which a court has regard.
This is because the rules of an incorporated association are a deemed contract, created by statute, without the normal elements of a contract having to be established. Its rules speak not only to its members but to third parties who might consider becoming members. Accordingly, it is important that the rules are capable of being construed by third parties by reference to the text of the rules. …
[1] [2014] SASC 201; (2014) 121 SASR 449.
[2] Echunga Football Club Inc v Hills League [2014] SASC 201, [18]-[19]; (2014) 121 SASR 449, 454-455.
In Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd & Ors[3] Finn J, in a passage subsequently approved by the Full Federal Court on appeal,[4] said:[5]
[3] [2005] FCA 1812.
[4]    Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2006) 156 FCR 1.
[5]    Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2005] FCA 1812, [72]-[77].
The constitution (if any) of a company is deemed by s 140 of the Corporations Act to have effect as a contract between variously, the company and its members, the members inter se and the company and its directors and company secretary.
Nonetheless, it is not a contract which in all respects attracts those principles which are applicable to contracts in general or to commercial contracts in particular. The reason for this is that corporate constitutions historically have served public purposes going beyond the mere delineation of the rights and obligations of the contracting parties for their benefit. So, for example, the memorandum of association in times past served the important purpose of enabling creditors and those who dealt with a company to know what was “its permitted range of enterprise and for this information they are entitled to rely on the constituent documents of the company”: Egyptian Salt and Soda Ltd v Port Said Salt Association. As in other fields where contractual documents serve public purposes beyond those of the parties themselves (cf eg Bowler v Hilda Pty Ltd esp per Gyles J at [57] ff on the position of Crown leases in the ACT), the bifurcated functions so performed by a company’s memorandum and articles has lead to the exclusion of (see e.g. Simon v HPM Industries Pty Ltd – no rectification of articles for mistake), or qualifications on (see e.g. Stanham v The National Trust of Australia (NSW); Bratton Seymour Service Co Ltd v Oxborough at 698 – implication of terms), principles ordinarily applied to contracts.
The function of a company’s constitution in informing those who dealt with it or who acquired shares in it, has in the past influenced in a direct way the principles of construction that have been applied to the constitution and, in particular, to the extent to which extrinsic materials were admissible as an aid to interpretation. Because third parties who dealt with a company would not have had access to information (other than the constitution itself) which might reveal the true meaning of a provision in the constitution, “[t]he intention of the framers of the [constitution] [had to] be gathered from the language in which they have chosen to express it”: Egyptian Salt and Soda Co Ltd at 682.
As was recognised by the New South Wales Court of Appeal in National Roads and Motorists’ Association Ltd v Parkin (“Parkin”) changes in Australia’s corporations legislation have borne directly upon the significance to be attributed to the public purposes served historically by the documents making up a company’s constitution. Ipp JA, for example, noted (at [51]-[52]):
The idea that the constitution should inform the public with absolute precision of the field in which the company is to undertake its activities (Lord Wrenbury’s first purpose in Cotman v Brougham at 518) is no longer of significance. This is the consequence of s 124 and s 125 of the Corporations Act (Cth). Section 124 provides that a company has the legal capacity of an individual. By s 125(2) an act of a company is not invalid merely because it is contrary to any of the objects in the constitution.
It follows, also, from s 124 and s 125, that, nowadays, a company is able to embark on new fields of endeavour untrammelled by objects clauses. Accordingly, the second of the purposes mentioned by Lord Wrenbury (that anyone who deals with the company should know without reasonable doubt whether the contract contemplated is within the company’s corporate objects) has fallen away.
This in turn has led to some reappraisal of principles applied to a company’s constitution which differ from those applied to contracts generally where the reason for a distinct company principle has been undermined or has gone. So, for example, in Parkins’ case, the ordinary rules of contractual certainty exemplified in Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd were applied in preference to the more stringent “company principle” exemplified in Cotman v Brougham, and this for the reasons given in the two paragraphs from Parkin noted above.   I will return to this process of reappraisal of principles below.
There is now a body of Australian case law (see Parkin at 235) which has endorsed and followed what is a well accepted principle for construing contracts. As it was put by Jenkins LJ in Holmes v Keyes at 215:
… the articles of association of the company should be regarded as a business document and should be construed so as to give them reasonable business efficacy, where a construction tending to that result is admissible on the language of the articles, in preference to a result which would or might prove unworkable.
As to the like principle to be applied to contracts, see e.g. Australian Broadcasting Commission v Australian Performing Right Association Ltd at 109-110; Lewison, The Interpretation of Contracts, 7.15 (3rd ed, 2004).
It is consistent with now orthodox rules of construction of articles of association for a court to recognise that articles “are instruments of company governance intended to endure and to be capable of operating with flexibility in changing circumstances: Re GIGA Investments Pty Ltd (in admin) at 476 (“Re GIGA Investments”). Nonetheless, progressive interpretation does not permit the extension of an expression in the constitution to a subject matter that might later be comprehended by the expression itself, if this would be inconsistent with what can reasonably be said to have been the purpose contemplated by the use of that expression at the time of its adoption: see Ford’s Principles of Corporations Law, 6.080.
[citations omitted].
As I said in Echunga Football Club,[6] these principles are an adaptation of the principles which govern the construction of commercial contracts. The adaptation of those principles must recognise that the rules to be construed are not those of a financial or trading corporation but a company limited by guarantee with the object of administering and promoting the conduct of equestrian sport.
[6] Echunga Football Club Inc v Hills League (2014) 121 SASR 449, 454.
EA’s rules reflect the difficulties that frequently attend being drafted by lay people. They are sometimes confusing and contradictory. Nevertheless they must be construed so as to make sense and operate in as coherent a fashion as possible so as to conform to their purpose and objects.
The first decision
The first decision is in breach of the rules of EA. It was made by the CEO of EA. Pursuant to EA Disciplinary By-Laws 5 and 6, the power to impose any penalty on a member is conferred exclusively upon the Disciplinary Tribunal unless it is a strict liability offence.[7] The CEO of EA is not empowered to impose any penalty on a member. There is no power of delegation by the Tribunal to the CEO of EA. As a matter of fact, the Disciplinary Tribunal did not conduct a hearing. Accordingly, the first decision is in breach of the contract that binds the EA and its members, including, in particular, the applicant. That makes it unnecessary to consider the submission that the decision of the CEO of EA is invalid, in any event, on the ground that the decision of the CEO of EA was made in breach of the requirements of procedural fairness enshrined in the Disciplinary By-Laws. It is sufficient to observe that the Disciplinary By-Laws contain a highly prescriptive regime for the conduct of proceedings before the Disciplinary Tribunal.[8] In this case, that regime was not followed. So much is conceded by EA.[9]
[7] It is common ground that these were not strict liability offences.
[8] EA Disciplinary Bylaws and the EA Disciplinary Tribunal Procedures and Protocols.
[9] Respondent’s outline of submissions paragraph 29.
The second decision
The applicant received the decision of 25 July 2022 in writing. It set out a summary of the conduct of the investigation of the complaints of 18 February 2022, the findings made by the investigator engaged by EA, and EA’s findings in relation to the alleged breaches of its Code of Conduct, Social Media Policies and ESA State Squad Agreement as well as its decision on penalty.
Importantly, the notice of decision was in the following terms:
Investigation
1. Mr. Mark Lindh (Complainant)
Allegation(s):
Mr. Mark Lindh (Complainant) alleges that you bullied, harassed, verbally abused, humiliated, or victimised him when on 17 August 2021 you sent a private electronic message to Mr. Clive Reed (third party) belittling Mr. Lindh. These allegations if founded may constitute breaches of EA’s Member Protection Policy, Code of Conduct and/or Social Media Policies.
Findings:
‘It is the belief of the investigator that Mr. Thomas messages to Mr. Lindh were confronting to Mr. Lindh and he felt harassed to receive unsolicited messages at night.
The message on 17 August 2021 read;
[The Complainant] is a useless rider, extremely jealous person and this is his only way to win…I am hoping he is at Kadina Show, and he will be confronted in front of people…
That same evening Mr. Lindh received two (2) messages from Mr. Thomas which are summarised below;
‘I have heard you are supporting a number of people legally against me, is this true?’
Around an hour later Mr. Lindh received a second text from Mr. Thomas, saying something
like,
‘The fact you haven’t replied must mean it is true. That’s all I needed to know’
Mr. Lindh had not been in contact with Mr. Thomas previously, although they had spoken at events from time to time. This on top of the message Mr. Thomas sent to Mr. Reed belittling Mr. Lindh, his riding ability and promising to confront him in front of other people at the next event, caused Mr. Lindh concern and he has stopped attending events.
Mr. Thomas’s actions toward Mr. Lindh with his messages may bring EA into disrepute and is likely to cause harm to the reputation of EA. Mr. Lindh is of the view this message was meant to stop him supporting 3 other complainants.
These comments breach EA’s Code of Conduct
Based on the evidence provided, there is sufficient evidence to substantiate this allegation.
2. Mr. Michael Haese (Complainant)
Allegation(s):
Mr. Michael Haese (Complainant) alleges that social media posts, particularly the Facebook post on 17 September 2021 was false and misleading or abusive, and potentially breached Social Media Policies.
Findings:
‘It is the belief of the investigator that Mr. Thomas’s post on 17 September 2021 not only impugns Dr. Haese’s integrity as the course designer, it implies the competitors attending that day were ‘…unfortunately a group of our leading high level riders decided to pay huge money to pay the State Championships builder, train over the courses and privately train the courses at a private venue and not get caught out…’
These comments breach both EA’s Code of Conduct and Social Media Policy.
Based on the evidence provided, there is sufficient evidence to substantiate this allegation.
3. Ms. Sophie Crauford (Complainant)
Allegation(s):
Mrs. Sophie Crauford (Complainant) alleges that social media posts written by you contain false and misleading information which may be defamatory and vilifying and potentially breach the Code of Conduct, Social Media Policies, and the State Squad Agreement.
Findings:
‘It is the belief of the investigator that Mr. Thomas’s post of the 26 November 2021 Mr. Thomas questions the fairness of ESA judges, other than Mr. Gareth Heron. By saying what he did, even if it is not directed toward Ms. Crauford, he questions the integrity of judges involved in the sport by suggesting they are not fair toward every rider.
In his post of the 26 November 2021 Mr. Thomas questions the fairness of ESA judges, other than Mr. Gareth Heron. By saying what he did, even if it is not directed toward Ms. Crauford,
he questions the integrity of judges involved in the sport by suggesting they are not fair toward every rider.
These comments breach EA’s Code of Conduct, Social Media Policy and ESA State Squad Agreement.
Based on the evidence provided, there is sufficient evidence to substantiate this allegation.
Based on the evidence provided for all three allegations you have breached the following provisions of EA’s Code of Conduct:
•     Respect the rights, dignity and worth of all people involved in equestrian (including all participants, officials, and administrators) regardless of gender, ability, sexual orientation, age, cultural background, or religion.
•     Be fair, considerate, honest and act appropriately in all dealings.
•     Be professional in, and accept responsibility for, your actions
•     Respect the spirit of the rules of the sport (including, without limitation, national and international guidelines which govern Equestrian Sport, the member associations and the affiliated clubs) and fair play and behave accordingly.
•     Refrain from any form of harassment, bullying, abuse, violence, intimidation, or vilification of others, including via the use of social media
•     Refrain from any behaviour that may bring EA, its member associations, its affiliated clubs, or the sport of equestrian into disrepute.
•     Not engage in conduct that is (in EA’s reasonable opinion) unethical, unbecoming, or likely to cause harm to the reputation of EA, its member associations or affiliated clubs or the sport of equestrian.
•     Contribute to a safe sporting environment and respectful culture which is accepting of individual differences and behave accordingly.
•     Condemn the use of violence or abuse in any form, whether it is by other spectators, participants, coaches, officials, volunteers, or athletes.
Based on the evidence provided you have breached the following provisions of EA’s Social Media Policy;
Clause 4
d) You reflect EA
Even if you don’t identify yourself on social media as being associated with EA (whether as an employee, member or otherwise), you can still be linked to EA. Think about what you say and how you’re saying it.
Don’t engage in any conduct on social media that could directly or indirectly damage EA’s name or which may otherwise bring the reputation of EA or its member associations or affiliates into disrepute.
Comments that are contrary to the spirit and integrity of the sport of equestrian will not be tolerated.
Based on the evidence provided you have breached the following provisions of the ESA State Squad Agreement
•     Respect the rights, dignity and worth of fellow riders, coaches, officials, volunteers, parents, and spectators.
•     Be fair, considerate, and honest in all dealing with others including coaches, parents, and officials.
•     Learn and abide by the rules of our sport and respect the decision of the officials making all appeals through the formal process and respecting the final decision.
•     Always operate within the rules, if you are unsure or don’t understand, ask for help.

The notice informed the applicant that EA found his actions breached its Code of Conduct, Social Media Policies and ESA State Squad Agreement. It further informed the applicant that EA was imposing a low range sanction of three months suspension for breaching EA’s Code of Conduct, Social Media Policies and ESA State Squad Agreement.
On 28 July 2022, the applicant filed and served a notice of appeal from the decision of 25 July 2022.
The grounds of appeal were:
1.All of the complaints were made outside the 14-day time period prescribed by EA Disciplinary By-Law 11. Accordingly, it was not open to consider the complaints or impose any disciplinary measure in response.
2.The applicant was not provided with a notice of charge as required by EA Disciplinary By-Law 25.
3.The charge had not been amended to conform to the requirements of EA Disciplinary By-Law 25.
4.The complaints had not been heard and adjudicated by a disciplinary tribunal established pursuant to EA Disciplinary By-Laws 5 and 6.
5.The complaint by Mr Mark Lindh did not constitute a breach of the codes, policies, by-laws or agreements of EA. In particular, the message to Mr Reed concerning Mr Mark Lindh was an assessment by the applicant of Mr Mark Lindh’s capacity as a show jumper. This communication was appropriate in circumstances where Mr Reed was the chairman of the show jumping committee of selectors and the applicant had recently been a selector.
6.The charge concerning a social media post about the conduct of a course designer, Mr Michael Haese and other riders who were intending to compete in State championships on a course which was to be built by Mr Michael Haese constituted a denial of natural justice as the applicant had not been provided with the text of the alleged post and in any event it was a legitimate criticism of Mr Michael Haese’s conduct.
7.The applicant was denied natural justice because he was not informed of the text of the alleged social media posts. In addition, he denies that the contents were directed at Ms Sophie Crauford and complains about a verbal attack by Ms Sophie Crauford upon him in respect of which no action appears to have been taken by EA.
8.The process adopted by the independent investigator to contact the applicant through his solicitors was inadequate. In addition, the applicant complains that third party witnesses were not interviewed which resulted in an inadequate investigation and flawed and unjustified finding.
9.The CEO of EA attributed excessive weight to the untested evidence of the three complainants.
10.The process was flawed and no finding of breaches of policy by the applicant should have been found. In any event, a three-month suspension was excessive and inappropriate. At worst, the applicant’s conduct did not warrant anything more than an admonition.
At the hearing of the appeal, the applicant expressly abandoned any reliance on ground one. Ground six concerns the merits of the complaint by Mark Lindh. By the other grounds, the applicant fundamentally contends that he was denied natural justice as a result of the procedures adopted by the Disciplinary Tribunal.
EA seeks to uphold the first and second decisions on three grounds.
First, that any defect in the proceedings of the Disciplinary Tribunal was cured by the Appeal Board hearing. Second, in any event, the applicant acquiesced in submitting to the jurisdiction of the Appeal Board meaning he is precluded from challenging the second decision. Third, that s 125 of the Corporations Act validates any breach by EA of its disciplinary by-laws.
I turn to address each of these grounds.
Did the appeal hearing cure any defect in making the first decision?
EA submits that any defect in the procedure by which the first decision was made was cured by the hearing before the Appeal Board which culminated in the second decision confirming the first decision. EA contends that the applicant was afforded natural justice in the conduct of the appeal before the Appeal Board. EA relies upon the principle established by the High Court’s judgment in Twist v Randwick Municipal Council (‘Twist’).[10] Before considering that submission, it is necessary to determine whether the Appeal Board was under a duty to observe the rules of natural justice.
[10] (1976) 136 CLR 106.
Is the Appeal Board under a duty to afford an appellant natural justice?
A finding that an administrative body exercising disciplinary powers over a member has breached the requirements of natural justice will usually, but not always, lead a court to grant relief.[11] So much is apparent from the reasons of the High Court in Kioa v West where Mason J said:[12]
The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.
[11] Aronson et al, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 7^th ed, 2022) 481 at [8.290].
[12] (1985) 159 CLR 550, 584.
In this case, I consider the Appeal Board was under a limited duty to afford the applicant natural justice. The so-called “club cases”, adverted to in argument, require observance of natural justice in taking disciplinary action against members of domestic bodies such as trade unions, professional associations, clubs and societies and sporting associations, whether incorporated or unincorporated unless, expressly or impliedly excluded. The duty to observe the rules of natural justice can arise expressly from the rules of the association which bind the association and its members or by implication from the nature of the disciplinary power being exercised.[13] Of course, the instrument which establishes an administrative tribunal can exclude the operation of the principles of natural justice and procedural fairness in the exercise of its jurisdiction. As I explain later in these reasons, to some extent that is what occurred here.
[13] Popovic v Tanasijevic [2001] SASC 289; Pettit v SA Harness Racing Club [2006] SASC 306, (2006) 95 SASR 543; Millar v Houghton Table Tennis and Sports Club Inc (2003) 225 LSJS 241.
In any event, I reject the submission of counsel for EA that the rules should be applied, not in accordance with the reasons underpinning the “club cases”, but by reference to considerations of commercial unfairness.[14] In this case, EA, by suspending the applicant’s membership, acted to affect adversely his livelihood and reputation. In these circumstances the principles enunciated in the “club cases” should generally be followed in determining whether the Court should grant the relief sought by the applicant. Both the Corporations Act[15] and the Associations Incorporation Act 1985 (SA)[16] provide for the protection of members from oppressive conduct on the part of the company or incorporated association. It is difficult to conceive commercial considerations which would warrant diluting that statutory protection of members. The principles applicable to the construction of the rules of an incorporated association are akin to the principles applicable to the construction of a corporate constitution.[17] In any event, EA is not a trading company. Rather, it is a body incorporated with the object of administering and promoting the conduct of equestrian sport. Commercial considerations are less relevant to an evaluation of the conduct of a company such as EA in determining whether orders pursuant to s 233 of the Corporations Act should be made to protect a member from oppression. Both EA’s rules and the common law required EA to observe the rules of natural justice and afford procedural fairness to the applicant in subjecting him to disciplinary sanction for the conduct alleged against him in the Notice of Formal Complaint of 18 February 2022. By-law 44 provides that, to the extent that the principles of natural justice are not included in the provisions of the EA Disciplinary By-Laws, they are expressly excluded. But the principles of natural justice are included in by-laws 24-30 and 33. They are also enshrined in the EA Disciplinary Tribunal Procedures and Protocols in paragraphs 6, 7, 11, 12-24 and 27. The same obligation to afford natural justice to an appellant is provided by the EA Appeal By-Laws. However, it is necessary to consider the terms of by-law 7 of the Appeal By-Laws. There is an obvious tension between appeal by-laws 7.1(a) and 7.2(a). Appeal By-Law 7.1(a) provides that any person whose interest will be directly and adversely affected by a decision of the Appeal Board must be given a reasonable opportunity to be heard. By contrast, Appeal By-Law 7.2(a) provides that, to the extent that the rules of natural justice require that a person be given adequate notice of, or sufficient time to, prepare for an appeal, those requirements are expressly excluded. Nonetheless, the Appeal Board is under a duty to afford the applicant natural justice, and so, it is necessary to consider whether the appeal hearing cured the failure to afford the applicant natural justice in making the first decision.
[14] Joint v Stephens (2008) 26 ACLC 1467, [134]-[136].
[15] Section 232(e).
[16] Section 61(4).
[17] Green v Page [1957] Tas SR 66, 71; Popovic v Tanasijevic [2001] SASC 289, [42]; Echunga Football Club v Hills League [2014] SASC 201, [16]; (2014) 121 SASR 449, 453-454.
In Twist, Barwick CJ and Mason J held that, where a local council was empowered to order the owner of a dilapidated building to demolish the building, the owner did not have a right to be heard by the council because the owner had a full right of appeal to a court from the making of such an order. Jacobs J, in dissent, concluded that a right of appeal did not exclude natural justice and the council was required to hear the owner before making an order, but the right of appeal indicated a legislative intention that breach would not make the order wholly invalid. Broadly, Twist is authority for the proposition that the presence of a right of appeal evinces a statutory intention that the appeal is the exclusive remedy for a breach of the principles of natural justice by the first instance decision-maker. In Twist Mason J said:[18]
[M]ore emphasis would now be given to the duty of the authority to consider the case of the person affected before it proceeds to the making of an order. Even so, it would be recognised in conformity with Lord Reid’s observations in Ridge v Baldwin that if there was a failure to accord natural justice in the first instance, the authority might cure the defect by according a full and fair hearing subsequently.
Further, the earlier cases should not be regarded as deciding that the presence of an appeal to another administrative body is an absolute answer to a departure from natural justice or the standard of fairness. The existence of such an appeal does not demonstrate in itself that the inferior tribunal is at liberty to deny a hearing. But, if the right of appeal is exercised and the appellate authority acts fairly and does not depart from natural justice the appeal may then be said to have “cured” a defect in natural justice or fairness which occurred at first instance.
[18] Twist v Randwick Municipal Council (1976) 136 CLR 106, 115-116.
Subsequently in R v Marks; ex parte Australian Building Construction
[19] R v Marks; ex parte Australian Building Construction Employees Builders Labourers Federation (1981) 147 CLR 471, 484.
[20] Ibid, 485.
Employees Builders Labourers Federation (1981)147 CLR 471 (‘Marks’) Mason J, with whom Murphy, Aickin and Wilson JJ agreed, said that in Twist the High Court held that the existence of a full statutory right of appeal on facts and law was indicative of a legislative intention that the citizen’s only right of redress against the council’s failure to give him an opportunity to be heard before making a demolition order was by way of appeal.[19] In Marks, Mason J held that, as, in that matter, there had been no denial of natural justice on appeal, it was irrelevant that there had been a denial of natural justice at the first instance hearing.[20]
The law in respect of the applicability of the rules of natural justice has moved considerably since the decision of Twist in 1971. The development of the law in this area begs the question whether there is a rule which, in relevant circumstances, requires procedural fairness to be afforded to a person whose rights or legitimate expectations might be adversely affected by the actions of a decision making tribunal, whether public or private, such that a failure to do so will justify curial intervention. In the alternative, is the existence of a full right of appeal merely a discretionary factor to be weighed by a court whose jurisdiction has been invoked to protect a person from the exercise of power, adverse to a person’s rights, in violation of the principles of procedural fairness.
In Day v Harness Racing New South Wales,[21] Leeming JA, with whom McColl and MacFarlan JJA agreed, said that the question whether an appeal excludes the obligation to accord procedural fairness was considered in detail by McHugh J in Re Minister for Immigration and Multicultural Affairs: ex parte Miah[22] by reference to whether the decision is preliminary or final, whether it is likely to affect a person’s reputation, whether it is public or private, the nature of the formalities required by the original decision, its urgency, the breadth of the appeal and the nature of the interest. Leeming JA said further that there is force in the proposition that it is now untenable that a right of appeal, no matter how full, might provide evidence of a legislative intention to exclude natural justice.
[21] [2014] NSWCA 423, [127]; (2014) 88 NSWLR 594, [127]
[22] [2001] HCA 22; (2001) 206 CLR 57, [146].
In Hill v Green, Fitzgerald JA, having considered the High Court’s reasons in both Twist and Marks, set out the principle in the following terms:[23]
In the absence of “plain words of necessary intendment”, an initial decision-maker is required to provide procedural fairness and his or her failure to do so will involve legal error. However, the relief available in respect of such an error is ordinarily confined to any statutory right of appeal, provided that an appeal is adequate to provide the appellant with the procedural fairness to which he or she is entitled. A full appeal on facts and law will ordinarily be adequate for that purpose, even if the appeal involves routine forensic disadvantages compared to a “first instance” redetermination…
[23] Hill v Green [1999] NSWCA 477, [164], (1999) 48 NSWLR 161, 197 [164].
This reasoning suggests that the right of appeal is a discretionary factor to be weighed in deciding what relief, if any, is to be afforded to a person denied procedural fairness.
Hill v Green[24] has subsequently been followed by the New South Wales Court of Appeal in Day v Sanders[25] and the Full Court of the Federal Court in Ambrose v The Commonwealth of Australia.[26]
[24] [1999] NSWCA 477; (1999) 48 NSWLR 161.
[25] (2015) 90 NSWR 764.
[26] [2021] FCFCA 88, [86].
Of course, in this case, I am not concerned with a legislative intention. This is a case about domestic not statutory tribunals. But the principles relevant to statutory tribunals provide guidance to the approach to the construction and effect of the rules of a voluntary incorporated association under the Corporations Act, such as EA. At issue is whether the appeal provided for by EA’s rules cures the failure to afford natural justice in making the first decision, which was confirmed on appeal. That depends on whether the Appeal Board itself has observed the requirements of natural justice.
The conduct of the Appeal Board, like the conduct of the Disciplinary Tribunal, is governed by a set of highly prescriptive rules. The Appeal Board conducted a hearing at which the applicant was legally represented. The applicant contends that the hearing before the Appeal Board also breached the requirements of natural justice and procedural fairness. A transcript of the hearing before the Appeal Board is in evidence.
By the time the appeal came on for hearing on 25 August 2022, the applicant had been provided with sufficient particulars of the complaints against him, the subject of the notice of 18 February 2022. Those particulars were set out in the notice of decision of 25 July 2022. That document provided the applicant with adequate notice of the case against him.
However, having considered the evidence of the proceedings before the Appeal Board, I am satisfied that the applicant was denied natural justice and procedural fairness in the appeal that resulted in the second decision.
Essential requirements of natural justice and procedural fairness in the context of disciplinary proceedings are that the person who is charged with conduct that exposes him or her to the risk of disciplinary action is given fair notice of the conduct alleged against him and a proper opportunity to answer those charges. EA’s rules enshrine those requirements of natural justice and procedural fairness in relation to the conduct of the Disciplinary Tribunal. However, they were not observed in the conduct of the applicant’s appeal hearing.
While by the time of the appeal hearing the applicant had fair notice of the conduct alleged against him, he did not have proper notice of the evidence relied upon. The appeal book that was provided to his lawyers less than two full days prior to the hearing contained statements that were heavily redacted. Those statements were unsworn. The applicant had no way of knowing what was contained in those redacted statements. No witnesses were called by EA to give evidence regarding the conduct alleged in the letter of 25 July 2022. The applicant was not given any notice that he was expected to produce witnesses for cross-examination. Accordingly, the applicant was denied the opportunity to cross-examine the complainant witnesses. This deprived him of a reasonable opportunity to be heard. This was unfair within the meaning of s 232 of the Corporations Act.[27]
[27] Wayde v New South Wales Rugby League (1985) 180 CLR 459, 472 per Brennan J.
During the course of the appeal hearing, the applicant objected to the appeal hearing being conducted contrary to EA’s rules. The applicant’s counsel submitted that he was being denied procedural fairness. The conduct of the appeal hearing contravened the specific provision in by-law 7.1(a) of the Appeal By-Laws. In Popovic v Tanasijevic, Olsson J said that conduct beyond power may well amount to oppression.[28] While the applicant was not given sufficient time to prepare his appeal, as he was only provided with the appeal books less than two days before the hearing, the requirement of the rules of natural justice that he be given sufficient time to prepare for the appeal is excluded expressly by clause 7.2(a) of those by-laws. This is an exclusion that is not found in the Disciplinary By-Laws. That an appeal could be conducted in accordance with the terms of this by-law when the applicant was denied a hearing before the Disciplinary Tribunal leads to the conclusion that the appeal hearing, in these circumstances, could not cure the defects in the first decision.
[28] (2000) 34 ACSR 1, [505].
Instead, the nature of the hearing before the Appeal Board, itself in contravention of Appeal Bylaw 7.1(a), vitiated the second decision.
I should also note that the applicant complains of the failure of the Appeal Board to give reasons for the second decision confirming the first decision. There is no proper basis for this complaint. The Appeal Board, as an administrative tribunal, was not obliged to give reasons.[29] No breach of the rules occurred as a result. On the contrary, the rules expressly relieved the Appeal Board from providing reasons.[30]
[29] CECA Institute Pty Ltd v Australian Council for Private Education and Training (2010) 245 FLR 86, [151]-[152].
[30] Equestrian Australia Appeals By-Laws, by-law 13.
Acquiescence

In the alternative, EA submits that the applicant acquiesced in submitting to the jurisdiction of the Appeal Board such that it is not open to challenge the second decision or the Court should, in the exercise of its discretion, decline to grant relief pursuant to s 233 of the Corporations Act.
I do not accept this submission. Strictly speaking, acquiescence indicates the contemporaneous and informed “knowing” acceptance or standing by, which is treated by equity as “assent”, that is, consent to what would otherwise be an infringement of rights. The term is commonly used to refer to acceptance of a past wrongful act in circumstances which give rise to an active waiver of rights or a release of liability.[31] In this case, there has been no standing by on the part of the applicant. On the contrary, the applicant has swiftly invoked his appeal right. In no sense can he have been said to have acquiesced in the wrong involved in the first decision. In any event, that is irrelevant once he had appealed the first decision. Neither can it be said that he has acquiesced in the asserted errors of which he complains in relation to the second decision. The proceedings in this Court were brought promptly. In no sense can the exercise of the applicant’s appeal rights constitute acquiescence in the first or second decisions. Neither can the applicant be found to have acquiesced in the “right” of EA to investigate and punish complaints that are made outside the 14-day time limit prescribed by the Disciplinary By-Laws. The abandonment by the applicant of that ground of appeal is only relevant to the first and second decisions. It precludes him from complaining about disciplinary action taken in respect of those matters that are the subject of the complaint of 18 February 2022 and were brought outside the 14-day time limit. However, it does not preclude him from objecting to disciplinary action being taken against him in respect of complaints made outside the 14-day time limit as set out in the Notice of Charge of 28 July 2022. His conduct does not constitute acquiescence in any subsequent breach of the 14 day time limit rule.
[31] Orr v Ford (1989) 167 CLR 316, 337, per Deane J.
Section 125 of the Corporations Act
Contrary to the submission of EA, I do not accept that the terms of s 125(1) of the Corporations Act validates any breach by EA of its Disciplinary By-Laws. Section 125(1) provides:
If a company has a constitution, it may contain an express restriction on, or a prohibition of, the company’s exercise of any of its powers. The exercise of a power by the company is not invalid merely because it is contrary to an express restriction or prohibition in the company’s constitution.
In this case the Disciplinary By-Laws are not part of EA’s constitution. Even if the by-laws are considered to be authorised by EA’s constitution, s 125(1) is concerned with the exercise of a power by the company which it is expressly prohibited from, or restricted in, exercising. That is not this case. The relevant by-laws do not impose restrictions or prohibitions but impose positive obligations that must be observed in exercising disciplinary powers over the company’s members. Section 125 is not to be construed as frustrating the Court’s remedial powers. That would be contrary to s 232(e) of the Corporations Act which empowers the Court to provide a remedy to a member who is the victim of oppressive or unfairly prejudicial conduct by a company. In any event, s 232(e) empowers the Court to intervene in the conduct of a company’s affairs where the result of that conduct is to oppress or unfairly prejudice an individual member or his or her interests as a member.[32] Relatedly, in this case, EA’s Disciplinary By-Laws exist to protect it from conduct of its members prejudicial to its interests and to protect its members from the oppressive or unfairly prejudicial exercise of those powers conferred by the by-laws.
[32] Wayde & Anor v NSW Rugby League Ltd (1985) 180 CLR 459.
It is convenient at this stage to address the terms of by-law 31 of the EA Disciplinary By-Laws. It provides that a decision of a disciplinary tribunal shall not be invalidated by an irregularity in the implementation of the procedures set out in the EA Tribunal Procedure and Protocol document. I do not accept that by-law 31 operates to validate the first decision. The effect of by-law 31 is to validate an irregularity in the implementation of the hearing procedures set out in the EA Tribunal Procedure and Protocol document. It is concerned with validating a decision of the Disciplinary Tribunal. It is fundamental to the validating operation of by-law 31 that there had been a hearing procedure of the kind set out in the document. That did not occur in this case. There was no hearing by a Disciplinary Tribunal. Accordingly, there is no scope for the operation of by-law 31 to validate the first decision.
The notice of charge 28 July 2022
On 28 July 2022 EA issued a Notice of Charge to the applicant pursuant to the EA Disciplinary By-Laws. The Notice of Charge enclosed a number of written complaints received by ESA which were referred to EA. The complainants were identified as Kate Crauford, Sophie Crauford and Carla Cerchi. Those complaints were set out in a number of documents. There is a signed, undated statement of 53 pages of Kate Crauford, a further signed complaint of 9 pages of Kate Crauford dated 3 June 2022, a signed, undated complaint of 9 pages of Sophie Crauford together with two message threads of 4 pages and one page dated 1 November 2021, a further complaint of 8 pages of Sophie Crauford dated 3 June 2022, a 1 page letter signed by Kate Crauford and Sophie Crauford addressed to Peter Graham, the Member Protection Officer of ESA dated 23 December 2020 and an unsigned letter of 12 December 2020 from Carla Cerchi to Steve Ludlam and Julie Anderson of ESA. The Notice of Charge informed the applicant that EA had determined to form a new tribunal to hear and determine the complaints on a day seven days after 28 July 2022 unless beforehand EA received from the applicant his written agreement and consent to the complaints being referred to the National Sports Tribunal for its determination. That did not occur.
The notice informed the applicant that because the complaints were the subject of ESA referral, the complaints were not required to be endorsed by EA in accordance with the provisions of by-law 9 and that the strict requirements of by-law 11 were not relevant in the particular circumstances of the ESA referral.
The Notice of Charge proceeded to provide details of the dates and the nature of the alleged breaches of identified by-laws and the penalties provided for such breaches in accordance with by-law 25.
The notice alleged four counts of misconduct by the applicant involving:
(a)One count of cruel and improper conduct and practices in connection with the management and handling of a horse contrary to by-law 17(a) and by-law 18 between 6 December 2020 and about 10 December 2020;
(b)One count of cruel and improper conduct and practices in connection with the management and handling of a horse and specifically in “rapping” a horse contrary to by-law 17(a) and by-law 18(f) on 3 December 2020;
(c)Two counts of conducting himself in a manner which is unbecoming a member of EA or ESA contrary to by-law 25 as particularised in and throughout the complaints.
The 53 page complaint of Kate Crauford alleges 43 incidents from 25 October 2020 to 11 December 2020.[33] It is undated but it is apparent from reading the one page letter from Kate and Sophie Crauford to Mr Graham of ESA, dated 23 December 2020, that the letter refers to incidents described in the 53 page statement of Kate Crauford that occurred within the period of 14 days prior to 23 December 2020. The complaint of Sophie Crauford alleges incidents from 11 to 13 December 2020 and 26 and 27 February 2021. It is dated 3 June 2022. The complaint of 12 December 2020 of Carla Cerchi to ESA alleges incidents on 18 February 2020, 27 February 2020, 18 June 2020, 9 August 2020 and 25 October 2020.
[33] Confusingly the applicant’s written submissions referred to a 60 page complaint with a total of 46 complaints between 25 October 2020 and 12 December 2020 but I am satisfied that this is the document to which the submissions refers.
The applicant submits that all of these complaints are incompetent because they allege conduct that occurred more than 14 days prior to the complaint being made to EA or ESA, contrary to the terms of by-law 11. EA contends that the by-law is no more than a starting benchmark. EA contends that its rules do not impose a strict 14 day time limit and, if they do, the Court should, in the exercise of its discretion, decline to provide the applicant with relief from having to answer those charges.
I do not accept this submission.
This submission depends upon the proper construction of EA’s rules and the timing of these complaints.
EA Disciplinary By-Law 11 provides that complaints reaching the CEO of EA or a Branch manager more than 14 days after the incident constituting the complaint will not be considered. That time limit is subject to the terms of by-law 15 which provides that where EA or a Branch believes that an offence may have been committed but no formal complaint has been made, an investigation may be instigated into the alleged offence. Where that investigation recommends that a formal complaint should be made, EA or a relevant Branch, or the person appointed by it, may make a formal complaint but the complaint should be made within 21 days of the date on which the alleged offence took place.
EA submits that a 14-day time limit on the making of a complaint to the CEO or a Branch manager in accordance with by-law 11 did not apply in this case.
First, on the basis that the introduction to the EA Disciplinary By-Laws provides that while the by-laws apply primarily to events sanctioned by EA and its Branches, tribunals established under the by-laws shall also be empowered to deal with allegations of members of EA or a Branch committing offences under the by-laws at any time during the term of their membership. EA submits that the phrase “empowered to deal with allegations of members… committing offences under the by-laws at any time during the term of their membership” means that the 14-day time limit does not apply. This is because by-laws empower a disciplinary tribunal to deal with allegations of offences by members at any time during the term of their membership. I do not accept this submission. It misconstrues the effect of the provision. The phrase “at any time” does not govern the time when tribunals are empowered to deal with allegations against a member. Rather, the phrase “at any time” governs the phrase “committing offences”. Its effect is to prescribe that the tribunal can deal with an allegation that a member has committed an offence against the by-laws at any time during the term of their membership. The phrase “at any time” is a provision that extends the jurisdiction of the tribunal. It takes its context from the first sentence that provides the by-law applies primarily to events sanctioned by EA and its Branches. The expression is intended to make clear that the jurisdiction of the tribunal is not confined to events sanctioned by EA and its Branches. Its jurisdiction extends to dealing with members who are alleged to have committed offences against the by-laws at any time during the term of their membership.
Second, EA submits by-law 11 is to be construed as a benchmark or a guideline. I do not accept this submission.
The wording of the provision is imperative. It is expressed in mandatory rather than discretionary terms.[34] It is an express provision of limitation. That construction is reinforced by the terms of by-law 15 which creates an exception to the 14-day time limit. If the 14-day time limit was merely a starting benchmark there would be no need to create the exception in by-law 15. That is further reinforced by the stipulation of the 14-day time limit in other rules. For example, Attachment D1 to the EA Member Section Procedures provides that all complaints must be submitted in writing to the CEO of EA or EA Branch Executive within 14 days of the incident occurring or they will not be considered.
[34] Epstein v The Workcover Corporation of South Australia (2003) 85 SASR 561, 575.
I am satisfied that the strict application of the time limit has a relevant purpose given the need for disciplinary proceedings sometimes to be taken against members urgently where it may affect the entitlement of a member to participate in events sanctioned by EA and its Branches, which may be imminent or already underway.
Third, EA submits that no time limit applies to disciplinary action against its members due to the rules of the FEI. The introduction to the EA Disciplinary By-Laws also provides that they follow as closely as possible the rules laid down by the FEI. However, in the event of a conflict between the EA rules and the FEI regulations and rules, the FEI rules will prevail unless they have been specifically excluded. EA relies upon article 157 of the FEI General Regulations which provides that there is a statute of limitation on prosecution by the FEI, which is time barred after periods prescribed by article 157. Article 157.1(d) reads:
…
(d)Match fixing, bribery and corruption and offences falling under the FEI safeguarding policy against harassment and abuse are not subject to a statute of limitation.
I do not accept this submission.
The safeguarding policy is found in Appendix I to the FEI General Regulations. For the purposes of the argument, it can be accepted that it is concerned to protect members, athletes and other participants in equestrian sport from harassment and abuse whether psychological, physical or sexual. It can also be accepted that some of the complaints made against the applicant by the Notice of Charge of 28 July 2022 fall into the category of sexual harassment as defined in Appendix I to the FEI General Regulations. However, article 157 of the FEI General Regulations does not apply to this case. Article 157 imposes a statute of limitations on prosecutions by the FEI. This is not a prosecution by the FEI. Accordingly, there is no inconsistency between the EA rules or Disciplinary By-Laws and the FEI regulations which would require the provisions of article 157 to prevail over the EA rules.
Finally, I should address the proposition set out in the Notice of Charge of 28 July 2022 that the strict requirements of by-law 11 are not relevant in the particular circumstances of the referral of those complaints by ESA to EA. In my opinion there is no basis in the EA rules to accept this proposition. By-law 11, which imposes the 14-day time limit, does not either expressly or impliedly exclude its operation in the case of a referral of a complaint by a Branch to EA. I note this submission was barely pressed at the hearing of the application before me.
Accordingly, I accept the applicant’s submission that EA cannot bring disciplinary proceedings against him for conduct which, contrary to by-law 11, was not the subject of complaint to EA or ESA within 14 days of the conduct.
Discretionary reasons
In this case the applicant has been dealt with in contravention of the rules of the EA and contrary to the principles of natural justice and procedural fairness. By this conduct he has been damaged in his reputation and livelihood. I am satisfied that this conduct is oppressive within the meaning of s 232 of the Corporations Act. It involves a breach of the statutory contract between the applicant and EA enshrined in s 140 of the Corporations Act. I do not consider there is any proper discretionary basis to deprive him of relief except in relation to his admitted breaches of the Code of Conduct. I address that below.
In addition, the applicant is not entitled to any relief in relation to those complaints in the notice of charge of 28 July 2022 which were made within the 14-day time limit, namely, complaints by Kate Crauford concerning the applicant’s conduct on 9, 10 and 11 December 2020. However, with the exception of those complaints, the applicant is entitled to orders that the EA and its officers, employees and agents not proceed to hear and determine those charges set out in the notice of charge of 28 July 2022.
Conclusion
For these reasons I consider the breach of EA’s rules amounted to oppression within the meaning of s 232 of the Corporations Act. The applicant is entitled to some of the relief he has sought. Orders should be made pursuant to s 233 of the Corporations Act.
In formulating those orders it is necessary to consider an important aspect of the hearing before the Appeal Board. During the course of the hearing the applicant, through his counsel, admitted to breaching the Code of Conduct with respect to the complaints by Mr Michael Haese and Ms Sophie Crauford. There is no reason he should not be held to these admissions. No oppression is involved in subjecting him to disciplinary sanction for those admitted breaches of the Code of Conduct. However, given that the penalty of a three-month suspension was confirmed by the Appeal Board in relation to a wider range of contraventions, the Court should order, pursuant to s 233 of the Corporations Act, that an Appeal Board should modify the first decision by dismissing the complaints of 18 February 2022, except for the breaches of the Code of Conduct in relation to Mr Michael Haese and Ms Sophie Crauford. It should confirm the findings of these breaches of the Code of Conduct and consider what penalty is appropriate in respect of these admitted contraventions. I will hear the parties as to whether that Appeal Board should be constituted by the same persons who heard the applicant’s appeal from the first decision.
I would hear the parties as to the orders I should make in the light of these reasons.

[2022] SASC 151

21 December 2022