Walker v Roller Sports Australia Inc
[2001] VSC 235
•20 July 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 5932 of 2001
| SIMON WALKER | Plaintiff |
| v | |
| ROLLER SPORTS AUSTRALIA INC | Defendant |
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JUDGE: | Hansen J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 June 2001 | |
DATE OF JUDGMENT: | 20 July 2001 | |
CASE MAY BE CITED AS: | Walker v Roller Sports Australia Inc | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 235 | |
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Disciplinary hearing on appeal – Penalty increased on appeal, notwithstanding lack of power to increase in governing provision – Whether parties agreed a rehearing de novo.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A T Schlicht | Taylor Splatt & Partners |
| For the Defendant | Mr S W Stuckey | Rigby Cooke |
HIS HONOUR:
This application concerns the decision of an appeals committee appointed by the Roller Sports Association Inc ("the Association") on 13 December 2000 to suspend the plaintiff, Simon Walker, who is a member of the Association, from all competition for a period of 12 months from 25 September 2000 to 24 September 2001.
The context in which the question arises may be shortly stated. In mid 2000 the plaintiff was selected in the Australian Inline Speed Skating team as one of two representatives in the 15 km points/elimination event and as a reserve for the 1000 m track event at the World Skating Championships in Colombia held between 29 July and 6 August 2000. On the morning of the 1000 m event team officials advised the plaintiff he was to compete in the 1000 m event in place of an injured competitor. He refused to do so for fear of aggravating a groin strain and as a result not being able to compete in the 15 km event. The plaintiff refers to team officials being angered and to heated discussions and arguments with team officials. He was barred from all events at the Championships. A complaint was made concerning his behaviour and on the return of the team to Australia disciplinary charges were brought against him and heard by a tribunal appointed for the purpose on 24 September 2000. He was suspended from all competition in the sport for six months. On his appeal on 13 December 2000 the period of suspension was increased to 12 months from the same date of commencement. The evidence discloses that on the appeal the plaintiff was found guilty of conduct injurious or prejudicial to the Association in not informing team management or coaching staff of his inability to skate in the 1000 m event in a reasonable time so as to allow a replacement skater to be in attendance, and in verbally abusing the team coach and showing disrespect to the Australian team on the evening of the 15 km event. I assume these were the complaints or charges brought against him and heard by the initial tribunal.
The Association's constitution and by-laws
The Association is the peak body responsible for the administration of roller sports in Australia. Its members consist of clubs, rinks and individuals. It is governed by a council and an executive committee. The constitution of the Association makes provision for disciplinary action in cl. 11. In summary, if a member conducts himself or herself in a manner considered to be injurious or prejudicial to the character or interests of the Association and that conduct is drawn to the attention of the relevant person or body then that person or body shall consider whether disciplinary action should be taken in accordance with procedures laid down by the executive committee. The constitution states that "Those procedures must provide for the appointment … of a three person tribunal to hear the complaint and to decide on an appropriate penalty that does not exceed those penalties as provided for in sub clause 11.02".
The penalties in sub-cl. 11.02 are forfeiture of membership of the Association or suspension not exceeding one year. Five different varieties of suspension are provided for but in each case the maximum period is one year. One form of suspension, and that applied to the plaintiff, is suspension from all competition. Finally, sub-cl. 11.03 states that any disciplinary procedures laid down by the executive shall ensure that the rules of natural justice apply.
The executive committee made a by-law providing for disciplinary procedures. The by-law makes provision for procedure in three situations, namely:
(a)alleged misconduct arising out of or conjunction with a National Championship or Nationally Sanctioned Event;
(b)alleged misconduct not arising out of or in conjunction with a competition;
(c)alleged misconduct of a National Team Member or Coach during a tour.
The scheme of the by-law is that it provides for an initial hearing of a complaint before a Tribunal and an appeal to an Appeals Committee. There is an exception to this in category (c) in that in cases dealt with while on tour there is no Tribunal; that exception is not applicable in the present case. There are some differences in the provisions between the categories. Category (c) is the applicable category in this case.
I now summarise the procedure in category (c). Team managers have the power to discipline members during the currency of their authority, which I would infer is during the currency of the tour, and thus there is provision for a team manager to deal with the matter by way of a disciplinary hearing. The team manager's authority in disciplining a member extends to excluding the member from events to the end of the tour, sending the member home or excluding the member from accompanying the team for the rest of the tour. If the team manager feels the matter has been satisfactorily dealt with no further action is necessary. But, should an infringement be serious, the manager is to refer the matter to the chairman of the appropriate branch in writing within 14 days of the conclusion of the tour in which event the procedures described in the category (b) apply to the conduct of the complaint. I say they "apply" as that seems the sense of the reference to category (b).
It is evident that there was such a reference concerning the plaintiff at the conclusion of the tour and that the reference led to the hearing of the complaint or charge against him on 24 September 2000. I have not seen the communication of the team manager or any initiating documentation including the document which informed the plaintiff of the complaint or charge against him. No issue was raised as to any of these matters. It was not suggested I need see any such document and the complaint or charge sufficiently appears from the evidence as being that which was dealt with on appeal.
I mentioned above that in a case such as the present, category (c) incorporated the procedures under category (b). The result is that the provisions as to procedure in category (b) are to be followed. They cover the matter from the reference of the alleged misconduct through to the hearing and determination of the complaint by a Tribunal of three independent persons and the hearing and determination of an appeal by an Appeals Committee of three independent persons, the persons constituting the Tribunal and the Appeals Committee being appointed for that purpose. The by-law excludes a right of appearance either of the person charged or by a legal representative before the Tribunal or the Appeals Committee. Materials are to be submitted in writing, with the person complained against being able to furnish a separate submission on penalty to the Tribunal in a sealed envelope not to be opened until the charge is found proven. If it is found proven the Tribunal will then consider the second part of the submission on penalty, and decide on the appropriate penalty. The range of penalties and outcomes is prescribed. I note they are prescribed in identical terms in category (a). The Tribunal may terminate membership, suspend membership or exclude from competition for up to 12 months, or ban from attendance at events.
The category (b) provisions go on to provide that the person penalised may appeal within seven days on one or more of the following grounds only:
1.the tribunal was not unbiased;
2.he/she was not given adequate notice of the charge;
3.he/she was not given the opportunity to be heard on the substantive matter or penalty;
4.the penalty was excessive and out of line with previous penalties in similar circumstances.
In other words, the right of appeal is limited to a natural justice ground or to penalty. The right of appeal is so limited in each category (a), (b) and (c). There is no general right of appeal.
It is to be observed that the third ground of appeal is concerned with a person charged being given a reasonable opportunity to be heard in his or her defence whereas under the by-law category (b) a person charged is not entitled to appear either in person or by a legal representative. The charge is determined on written submissions. The incongruity between the exclusion of the right to be heard in person and the third ground of appeal is obvious and does not require further comment. The explanation for the presence of the third ground of appeal may be as simple as this: that the ground has been carried over from the by-law category (a) in which there is a right of appearance both before the Tribunal and the Appeals Committee. Another explanation may be that in category (b) the word "heard" is to be understood as meaning a reasonable opportunity to provide a written submission. Whatever may be the explanation, the point does not arise for determination and I do not consider it further.
Having thus stated the grounds on which an appeal may be brought, the provisions in category (b) then require the appointment of the Appeals Committee, not being members of the original Tribunal, and the nomination of a time when the Appeals Committee is to meet and which must be within seven days of receipt of the written appeal. The person penalised is to be given notice of the time and place of the Appeal Hearing and personally or by a representative may lodge such other material as the person desires. But, as before the Tribunal, there is no right of appearance. Then it is provided that the Appeals Committee:
" shall decide if the basis of the appeal is adequate. If not the appeal shall be dismissed or the Appeals Committee may:-
1.dismiss the appeal, or
2.reduce the penalty, or
3.cancel the penalty."
It is seen, and it is common ground, that on appeal under these provisions there is no power to increase the penalty imposed by the Tribunal that dealt with the matter in the first instance. In consequence, unless the Appeals Committee in this case were otherwise conferred with power enabling it to increase the penalty as it did by its decision on 13 December 2000, that decision to increase the penalty must have been made without power and is liable to be quashed.
The language in which the power of the Appeals Committee is thus expressed is not as clear as it might be. Is it only addressed to a case in which there is no adequate basis for an appeal? In such a case an appeal would be dismissed. But what meaning is to be given to the words following "shall be dismissed"? What is the effect of the word "or" and the reference to reducing or cancelling the penalty? The premise of a reduction or cancellation of penalty is that an appeal on penalty has been found to have an adequate basis. Hence it may be argued that the words after "shall be dismissed" apply to or include a case in which an appeal has an adequate basis. Perhaps this is so, perhaps it is not. Perhaps there is a reason why the word "dismiss" is used in point 1. Whatever the position may be, I did not hear an explanation or argument on this aspect and I say no more about it. I say what I have only to indicate that the drafting appears not to be as clear or complete as it might be. In the present case it is sufficient that it was common ground between the parties that under the by-law the power of an Appeals Committee in relation to penalty was limited to reduction or cancellation.
Events after the Tribunal's decision
On 25 September, the day following the decision of the Tribunal, the plaintiff's solicitors, Taylor Splatt & Partners ("Taylor Splatt"), wrote to the executive director of the Association advising that the plaintiff intended to appeal on six grounds, four of which were natural justice grounds, and the other two of which related to the penalty. The former grounds included that the Tribunal was biased, that the plaintiff was not given adequate notice of the charges, that he was prevented from presenting witnesses and that the Tribunal procedures had denied him natural justice.
On 28 September the National Executive Officer of the Association wrote to the plaintiff acknowledging the letter from Taylor Splatt and advising the names of the members of the Appeals Committee which included Mr Tim Frampton as chairman, and that the Committee would meet on 3 October 2000 to hear the appeal. He was invited to lodge written material on 2 October with the chairman of the Appeals Committee. The letter advised the four grounds of appeal set out in the by-law. The letter stated there were two stages to the appeal process, the first being to consider if the permitted grounds had been established, at which stage there was no right of appearance. The second stage would arise if a ground of appeal was established. Then the Appeals Committee would convene as soon as possible to hear evidence from the parties, and he would be notified "when and where the re-hearing of the matter will proceed".
A two stage appeal process and a rehearing following the establishment of a ground of appeal is not provided for in the by-law. The appeal provided for in the by-law is one in which the party penalised lodges such other written material he or she desires in respect of the appeal, there is no right of appearance before the Appeals Committee, and the Appeals Committee determines the appeal on the materials placed before it. On the terms of the by-law it is a one, and not a two, stage process. It seems irresistible that if that process had been followed in the present case the appeal would have been dismissed without alteration to the penalty. That was because the Appeals Committee would not have had power to increase the penalty. But that one stage process was not followed, and the seeds of what happened go back to the letter of the National Executive Officer, for it naturally led on to a search for the procedure to be followed in the second stage. And in the result the parties solicitors reached an agreement which is relied on by the Association as conferring power on the Appeals Committee to increase penalty.
I was not addressed as to the origin of or reason for a two stage process or as to practice under the by-law in this regard. Counsel concentrated on the issue whether the power of the Appeals Committee on penalty had been increased by agreement of the parties. Perhaps it has been considered, and it seems inherent in the letter of the National Executive Officer, that the by-law has a gap in not expressly referring to the procedure in the event that a ground of appeal is found "adequate" or established. If it be established that the person penalised was denied natural justice in connection with the disposition of the matter by a tribunal, the normal consequence in law would be to set that decision aside on the basis that the matter be reheard by another tribunal. The person penalised then has a right (although limited) to appeal, whereas under the procedure followed here the process is truncated, the Appeals Committee "rehears" the complaint and the person penalised has no right of appeal from the decision on that appeal. If a person penalised establishes the ground of appeal concerning penalty the Appeals Committee may reduce or cancel the penalty imposed by the Tribunal but, as is conceded, not increase such penalty. It is not clear why an appeal on penalty would involve a "rehearing" in the way that may follow the establishment of a denial of natural justice. However this may be, it was asserted by counsel for the Association that in the present case the conduct of the appeal by the Appeals Committee involved a two stage process. As mentioned, the point was not developed; in particular counsel did not engage in an analysis of the application of the by-law and although I have ventured the above observations, which may or may not be of assistance, I do not take this aspect further.
In an affidavit Mr Frampton said that the parties submitted written material in support of their respective arguments "as to whether the matter should proceed to appeal". On 3 October 2000 the members of the Appeals Committee conferred and determined the plaintiff had made out sufficient grounds for the appeal to proceed. Mr Frampton advised the decision in a letter to the parties dated 4 October 2000 in which he stated:
" [T]he appellant has established a prima facie case on the ground that he was not given the opportunity to be heard either on the substantive matter or on the question of penalty.
Subject to the convenience of the parties and to any further submissions the Appeals Committee proposes to hear full argument from the parties in relation only to this ground of appeal on Monday 9 October 2000.
The Appeals Committee would prefer further evidence to be by way of witness statement although the parties may, if they wish, present oral evidence at the hearing.
Any further written submissions including any submissions on the scope of the Appeals Committee's enquiry should be sent to the Chairman and each other party by no later than 10.00 am on Monday 9 October 2000."
It is to be noted that Mr Frampton's letter identified only one ground as established prima facie, namely, that the plaintiff was not given an opportunity to be heard on the substantive matter or on penalty. That is ground 3 of the permissible grounds of appeal. I have already pointed out, but I mention it again, that the by-law precludes a right of appearance before the Tribunal; before the Tribunal the matter is to be determined on written materials. Hence the existence of the ground is inconsistent with the procedural scheme in the by-law. Perhaps there are explanations for this as I said at [10]. However that may be, the Appeals Committee notified the finding of a prima facie case of the establishment of that ground of appeal.
The parties' solicitors were confused as to the course being proposed. This led to correspondence and discussions on 5 October 2000. Each solicitor—Rigby Cooke acting for the Association—wrote to Mr Frampton on 5 October. Taylor Splatt's letter sought clarification as to whether the 9 October hearing was to be limited to further submissions on the ground of appeal identified in Mr Frampton's letter and whether there was to be a second "hearing" on the grounds and no rehearing of the entire matter de novo. His letter referred to a hearing on the issue of penalty, which was one of the grounds of appeal.
Rigby Cooke's letter raised several matters. They sought clarification that the grounds of appeal other than the two grounds stated in Mr Frampton's letter had been dismissed by the Appeals Committee. By two grounds the letter meant the two parts that make up the ground that there had been no opportunity to be heard on the substantive matter or on penalty. (Of course, that is not a ground that the penalty was excessive, which was one of the plaintiff's grounds of appeal and had to be considered even if the complaints against the plaintiff remained proven.) Rigby Cooke also stated that any further submissions should be in writing. It was stated that the disciplinary procedures did not allow for oral submissions when determining whether a ground of appeal exists. I interpolate that in fact the by-law in category (b) made no allowance for oral submissions at all.
Following the correspondence, some e-mails passed between Mr Rowe of Rigby Cooke and Mr Frampton. The e-mails were also sent to the plaintiff's solicitor Mr Splatt of Taylor Splatt. The first was from Mr Rowe in which he referred to confusion as to the purpose of the hearing on 9 October. In reply Mr Frampton advised that it was intended there be full argument in relation to the ground identified as prima facie arguable which he said, by reference to Mr Rowe's e-mail, sounded more like a rehearing than further submissions on establishing grounds of appeal. However, subject to any submissions to the contrary, it was only intended to hear evidence/submissions "on that one ground and not the others as the Appeal Committee does not consider that they are arguable". On its face this statement was wide enough to include the ground of appeal concerning penalty. In other words, the Appeals Committee had considered that ground of appeal also and concluded it was not arguable and hence must fail. Mr Frampton's letter dated 4 October was not as explicit of the Committee's position on these matters as it might have been. But, even if his letter dated 4 October was to be understood as advising a rejection of the appeal against penalty, the e-mail on the following day stated the door was not completely closed. That was not indicated by the letter of 4 October.
Mr Frampton and the solicitors had a telephone conference later on 5 October. According to Mr Frampton the parties indicated to him they agreed the matter would proceed as a rehearing or a hearing de novo, and that he suggested that if the Appeals Committee found there was to be a rehearing the parties should try and agree on the procedures for it.
The Association did not file an affidavit by Mr Rowe. Hence there is no evidence from him as to the telephone conversation on 5 October or the discussions he had with Mr Splatt concerning the manner of conduct of the appeal. There is an e-mail from Mr Rowe to Mr Frampton on 5 October following the telephone conference in which he makes reference to the appellant having intended to call witnesses and to the tribunal chairman telling an advocate at the hearing he could call witnesses, and to a Wilkins report, and to the absence of a right of reply on this point. In the absence of evidence I do not know what the Wilkins report is or what the other matters refer to, except that they may refer to matters that occurred in relation to the conduct of the plaintiff's matter by the Tribunal.
Later in the afternoon on 5 October Mr Frampton sent an e-mail to the parties' solicitors in which he advised having confirmed with the other committee members that:
' we find that a ground of appeal has been established, namely that the skater was not given the opportunity to be heard on a substantive matter or the question of penalty and therefore, as we discussed this afternoon, there ought to be a "rehearing".
I note that you are to try and agree on the procedures for that rehearing.'
Mr Splatt swore an affidavit. He was not cross-examined. He wrote to Mr Rowe at Rigby Cooke on 6 October 2000 with a proposal for the procedures for rehearing. Before referring to that letter I refer to his affidavit.
In his affidavit Mr Splatt said that there were difficulties and disagreements between himself and Rigby Cooke "as to the procedures to be followed on an appeal". Did the Tribunal first have to establish a ground of appeal had been satisfactorily made out, and what was the burden of proof? There was also disagreement about the nature of the hearing process should a ground be established. The solicitors spoke together and then with Mr Frampton to try and clarify these matters and adopt a sensible and agreed approach to the appeal process. All parties agreed the existing Rules did not adequately set out the procedures to be adopted. He said that the agreement reached as to procedures was not intended to do anything other than fill a void in the Rules. He said the issue of penalty at the completion of the appeal process was not discussed at all and there was no agreement on this. He said it was agreed the hearing be "de novo". That was the way the Appeals Committee would conduct the hearing of the appeal. There was no agreement reached and no discussion whatever as to whether this affected the Committee's power to impose a greater penalty than that imposed by the Tribunal. He said that these matters were not raised by any party at all.
Objection was taken to para. 5 of Mr Splatt's affidavit on the basis it went to the intention of those involved in the discussions. The point was taken that the existence and terms of the relevant agreement concerning the conduct of the hearing is to be determined objectively and not by reference to subjective intention. Of course that is a correct legal proposition. However, counsel for the plaintiff submits that the Taylor Splatt letter referred to below which is said to contain or reflect the agreement does not truly do so in referring to the rehearing as a "hearing de novo". It is submitted that in context it was not agreed the hearing be "de novo" in the sense that on the complaint being found proven the Appeals Committee had the powers of penalty as had been possessed by the Tribunal.
Putting aside the reference to intention in para. 5, Mr Splatt said that it was never discussed or agreed that by reason of the appeal being conducted de novo the Appeals Committee had any greater power in respect of penalty than that allowed to an Appeals Committee by the by-law.
Mr Splatt concluded his affidavit by saying that neither the Appeals Committee nor Mr Frampton raised or alluded to the possibility of the Appeals Committee imposing an increased penalty. As expressed, this evidence relates to the time prior to and during the hearing of 13 December 2000. I asked counsel for the Association, whose solicitors in this proceeding are Rigby Cooke, if the Appeals Committee warned of the possibility of an increased penalty during the hearing. It was not suggested by counsel that any such warning was given, and Mr Frampton did not depose to any; indeed it was put by counsel that none was required to be given. As I have said, Mr Splatt was not cross-examined. I accept his evidence.
In his letter dated 6 October Mr Splatt commenced by referring to notification from Mr Frampton that the Appeals Committee considered that grounds of appeal had been established and that there ought be a rehearing. The letter went on:
"In the interests of minimising further dispute and costs for the parties I would like to settle the procedures for that rehearing with you and propose as follows:-
1That the rehearing be held as soon as possible and on a date convenient to all parties.
2That the rehearing be a hearing de novo.
3That each party be entitled to call all or any such witness as it may choose.
4That if there are any written submissions to be presented to the Tribunal, these be exchanged at least 72 hours prior to the Tribunal hearing.
5That if any witnesses are to make statements but not be available to give evidence, then notification of that fact be given to the other side and witnesses statements be exchanged in accordance with paragraph 4. We would expect in those circumstances that the Tribunal would give less weight to this evidence when compared with evidence that is capable of being tested.
6That where necessary witnesses be permitted to give evidence by telephone link.
7Otherwise, we suggest that the Tribunal Rules (such as they are) be followed where applicable and for clarity, suggest those Rules that start at the foot of page 1 of the Disciplinary Procedures document and which conclude two-thirds of the way down on page 2, be adopted as the applicable Rules."
The letter then requested details of previous Tribunal penalties in relation to incidents involving language and on national tours. It concluded by referring to a possibility that the Tribunal (by which he meant the Appeals Committee) might have to be re-constituted and requested advice of those to be appointed with Mr Frampton.
The rules referred to in point 7 of Mr Splatt's letter are that part of category (a) of the by-law which relate to the hearing of a complaint by a Tribunal. Category (a) provides for hearings at which persons may be present, evidence is given and submissions may be made. It also states the powers of the Tribunal on penalty; I referred to these at [8] above. The reference to those powers concludes the category (a) by-law concerning tribunal hearings; that is about two-thirds down page 2 as stated in point 7 of Mr Splatt's letter. Counsel for the Association relied on this as indicating that Mr Splatt was intending that on the rehearing the Appeals Committee have all the powers of a Tribunal including the power of penalty set out in category (a). Therefore, it was submitted, the Appeals Committee, acting de novo, had the power to suspend the plaintiff from competition for up to 12 months.
Later on 6 October Rigby Cooke replied to Taylor Splatt's letter advising agreement with the proposals 1-7 inclusive and maintaining that legal representation should be excluded from the rehearing.
On 12 October the National Executive Officer of the Association advised Taylor Splatt of the names of the two persons who with Mr Frampton as chairman would constitute the Tribunal, and of two penalties of six months' suspension from competition for swearing at a coach in one case and team members in another. I note that the Appeals Committee was here being referred to as the Tribunal. That was not a correct way of referring to the Appeals Committee.
On 10 November the Association advised the plaintiff that a rehearing of the charges relating to his alleged misconduct had been set for 13 December 2000. The letter stated that the rehearing was to determine if he had breached cl. 11.01 of the constitution and/or cl. 3.8 of the athlete agreement and team behaviour guidelines in relation to charges of disrespect to Australia and the Australian Team by his actions on the morning of the 1000 m heats, and his actions and abuse of the team coach on the evening of the 15 km event. The rehearing tribunal procedure would follow the procedure set out on pages 1 and 2 of the by-law which was stated to have been agreed between the Association and Taylor Splatt. A list of witnesses was given and there was reference to witness statements and cross-examination by the plaintiff or his representative if one was allowed.
On 8 December the Association wrote to Taylor Splatt with further advice as to penalties imposed for swearing at a coach, including one of six months' suspension imposed on the plaintiff during the 2000 World Speed Championships. Perhaps that was a reference to the suspension subsequently imposed, but nothing turns on the point.
Mr Frampton said that on or about 10 or 11 December he received papers from the Association for the purpose of the hearing. They included Taylor Splatt's letter dated 6 October 2000, each party's list of witnesses and 10 statements of witnesses for the Association. It was noted the plaintiff had not provided witness statements by 6.00 pm on 10 December. The Association also sent a copy of the letter to the other members constituting the Committee. Mr Frampton said that the reference to the rehearing being a hearing de novo was consistent with his understanding. He also noticed the reference to the portion of the category (a) by-law which included the power to suspend for up to 12 months.
In response to a request by Taylor Splatt on 12 October Mr Frampton ruled that the plaintiff be permitted to have an observer present at the hearing, provided the observer not advise the plaintiff or any other person who might be permitted to represent him or otherwise act in such a way as to become a de facto representative. I note that the relevant part of the by-law prohibited legal representation but permitted a parent of a skater under age 18 to represent that skater and that a chairman could permit a representative if the person charged was not fully able to represent himself or herself.
The appeal was heard on 13 December. In his affidavit Mr Frampton said the matter proceeded as a rehearing. The plaintiff was represented by his father. There is no suggestion that the plaintiff's father possessed the skills of an "advocate" as Mr Frampton described him, in the sense of his vocation or skills being in that area. An observer arranged by the plaintiff was also present. It seems from a letter of one of the Committee members, which Mr Frampton produced as an exhibit to his affidavit, that the observer was "a legal person". It was not Mr Splatt. The observer was not permitted to offer advice or take part in the proceeding. The letter also stated that the person who represented the Association informed the Committee that the Association considered that an appropriate penalty would be suspension for one year. The hearing concluded with the result that the charges were found proved and, following a plea, a period of suspension from competition of 12 months was imposed. The plaintiff's father was courteous and said the matter would be taken further.
I referred above to the evidence of Mr Frampton that the matter proceeded as a rehearing. He said his memory of the proceedings was a little unclear and that he relied on his notes made during the hearing and letters of the other members of the Committee. The notes were brief and related more to preliminary matters. The letters were dated 2 and 8 June 2001 respectively, that is, almost six months after the hearing. Neither of those Committee members referred to or produced a contemporaneous note. Nor did they swear an affidavit. Their letters were produced as an exhibit to Mr Frampton's affidavit. Counsel for the plaintiff did not object to the admissibility of the letters. It would seem they were relied on to provide more detail than Mr Frampton could give of events during the hearing. In his affidavit Mr Frampton said the matter proceeded as a rehearing and that he was confident (because there was no reference to it in his note) that no party argued there was a limit on the "Tribunal's power to penalise Mr Walker other than in accordance with the power expressed on page 2 of the by-law". The first point was in the nature of an assertion in that he did not explain the course of the hearing following preliminary matters: that is to say, whether witnesses were called, or statements were received without calling the witness, or evidence was by telephone or the like. But he was not cross-examined and although the letters were hearsay and for that reason unsatisfactory as proof of a matter that might be in issue, no submission critical of that evidence or the letters was addressed by counsel for the plaintiff. In addition to Mr Frampton's evidence that the matter proceeded as a rehearing, the letters support the position as being that at an early stage Mr Frampton stated, and it was accepted, that it was a new hearing. One letter said that the contents and result of the first hearing, including the sanction, were not to be considered and, further, that the plaintiff's father and the representative of the Association agreed the case was to be heard de novo. The other letter used different words, and did not refer to "de novo", but was to the same effect. It is pertinent to note that the plaintiff's affidavit did not describe the course of events at the hearing and he did not swear an affidavit in answer to Mr Frampton's affidavit. Nor did the plaintiff's father or the observer swear an affidavit.
Since the hearing in December, commencing in January 2001, there has been correspondence between the parties regarding the suspension for 12 months and in particular the power of the Committee to impose the penalty. It also raised the matter of the power of the Association's executive to quash the penalty. At one stage the Association proposed the matter return to the Committee for further consideration. The plaintiff would not agree to that course, perhaps not surprisingly in view of the Committee's disposition of the matter. In any event the parties remain at an impasse. It is not necessary to refer to the correspondence in detail.
Resolution
The question which I have to determine is whether on the rehearing the Committee's power in relation to penalty was the limited power possessed by an Appeal Committee to reduce or cancel a penalty imposed by a Tribunal or the power of suspension possessed by a Tribunal at an initial hearing. The plaintiff contends it was the former and, hence, that the penalty imposed was ultra vires and should be quashed. On that basis the plaintiff, who has now served a period of suspension of close to 10 months, would be free of suspension. The Association contends that the agreement reached between the parties as to the matter being reheard de novo, as stated in Taylor Splatt's letter dated 6 October 2000, had the effect of placing the Appeals Committee in the same position in all respects including in relation to penalty as the initial Tribunal. That is to say it was possessed of the same discretions and the same power in relation to penalty as that Tribunal.
There is no doubt as to the terms of Taylor Splatt's letter. Nor is there doubt at to the meaning ascribed by decisions of the courts as to what is an appeal by way of a hearing de novo. It is sufficient to refer to Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd[1] and Williams, Civil Procedure Victoria.[2] An appeal by way of rehearing or hearing de novo is to be distinguished from an appeal in the strict sense. In the latter case, which commonly is that of an appeal from the decision of a lower court to a higher court of appeal, the question is whether the judgment was right on the evidence before the lower court when the judgment was given. By contrast, on an appeal by way of rehearing or hearing de novo further evidence may be received and the matter is judged afresh by the appeal court which makes its own findings of fact and its own decision in the light of matters (fact and law) as then exist. In other words, "the appellate court may give such judgment as ought to be given as if the case at that time came before the court of first instance".[3] The difference between a rehearing and hearing de novo may be further explained: in the former the appeal court acts on the basis of the evidence below but can receive further evidence, whereas in the latter the appeal court hears the evidence afresh. But in either situation it decides the appeal as though the case was before it at first instance.
[1](1976) 135 CLR 616 at 619-621.
[2]At [I 64.01.120]–[I 64.01.135].
[3]Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 620.
On this basis it would not matter whether the hearing by the Appeals Committee was to be a rehearing or a hearing de novo. In either case the Committee would determine the appeal as it considered appropriate on the basis of the materials then before it. The only difference would be that in the former case the materials would be those before the Tribunal supplemented by any additional material, whereas in the latter case of the hearing de novo all evidence would be given afresh. The submission of counsel for the plaintiff did not rest on any distinction between a rehearing and a hearing de novo. The submission took the course of implicitly accepting that the nature of a hearing de novo was as I have described, but contended that in the context of the solicitors' discussions in October 2000 the agreement of the parties was limited to matters of procedure and did not extend to the power on penalty. Hence, it was submitted, the Committee's power on penalty remained a mere power of reduction or cancellation.
The question at issue is not answered, as at one stage counsel for the plaintiff seemed to submit, by reference to the fact that the Committee did not warn it might increase the penalty or even advert to it having the power to do so. I have referred at [40] above to statements that there was reference to the nature of the hearing at an early stage of the hearing. The hearsay nature of the letters, the absence of cross-examination, and the limited evidence on the point affects the comfort that one has in knowing what was said. In any event it would have been wise for the Committee to have unequivocally adverted to its power on penalty or warned of the possibility of its exercise at a later stage in the hearing in the course of evidence or even later when the stage of penalty was getting closer. It is not that there was a requirement at law to advert to the power in this regard, or the possibility of its exercise. As it seems to me, the reason for doing so, and why judges do so, is the importance of ensuring that the person under risk of an increased penalty is aware of the power to increase penalty and that such a possibility is a serious issue for that person to consider in continuing with his or her appeal. With that intimation it is common that the appeal is withdrawn. An added factor here, and one of significance in my view, is that the plaintiff and his father were lay people, not lawyers. But as the Appeals Committee was not required by law to act in that way, its failure to do so cannot affect the answer to the issue for determination and I put the submission aside.
When a question arises as to the meaning to be given to the word rehearing or the expression hearing de novo in a statute or other instrument including a private agreement, regard must be had to the language and context of the instrument in question. Counsel for the plaintiff submits that the context in which Taylor Splatt's letter dated 6 October 2000 was written was the need to establish the procedures for the conduct of the rehearing. It is true that in putting forward his proposals the plaintiff's solicitor proposed a rehearing de novo and in suggesting that the category (a) rules be followed seemed to include that part of those rules concerning the power of penalty. The reference might be taken as being consistent with a proposal that the rehearing be de novo in the technical sense in which an appeal of that nature is commonly understood. It is also true that Rigby Cooke responded for the Association by agreeing with the proposals. In addition to these submissions, I have accepted the evidence of Mr Splatt that the parties were seeking to fill a void in the rules as to procedure and that, while it was agreed that the rehearing be de novo, the matter of the Committee's power on penalty was never discussed let alone was it stated that by reason of being a hearing de novo the Committee had a greater power of penalty than it would otherwise have under the by-law. The discussion was about the procedure to be adopted by the Committee in conducting the appeal. As I have said Mr Rowe did not swear an affidavit at all and Mr Splatt was not cross-examined on his affidavit. Nor did Mr Frampton swear a further affidavit dealing with Mr Splatt's affidavit. And, while counsel for the Association submitted that the evidence, particularly the solicitors' letters, established the nature of the rehearing as being de novo in the commonly accepted legal sense, I did not understand him to attack the credit of Mr Splatt or to otherwise submit I should not accept his evidence. Of course, as mentioned earlier, counsel did object to the admissibility of the evidence of intention but that was not an objection that went to Mr Splatt's credit or otherwise to the acceptance of his evidence.
It is useful to note the language used by the parties. The Association's letter dated 28 September referred to a Committee to hear the appeal and to a rehearing at the second stage. Mr Frampton's letter dated 4 October referred to hearing full argument on the prima facie ground of appeal and to evidence at the hearing on that ground. It also invited submissions on the scope of the inquiry. Then there are the solicitors' letters on 5 October. In Taylor Splatt's letter a question is asked as to a rehearing of the entire matter de novo. The e-mails on that day refer to a rehearing and to the parties agreeing on procedure, but the phrase de novo is not used. In his affidavit Mr Frampton said, in reference to the telephone discussion on 5 October, that the parties indicated they agreed the matter would proceed as a "rehearing" or a hearing "de novo", and he suggested if it was a rehearing that the parties agree on procedure. He said he confirmed a discussion by an e-mail to Mr Splatt and Mr Rowe. That e-mail did not refer to a hearing "de novo"; it referred to there being a "rehearing" and that the parties would try to agree on the procedures for "that rehearing". I am not satisfied, on the balance of probabilities, as to any particular reference to "de novo" in the telephone discussion on 5 October. There is a difficulty with Mr Frampton's affidavit on this point in that it is most generally expressed, and does not recount the substance of the discussion as it occurred. It is conclusionary in its nature. Nevertheless I accept that there was reference to a "rehearing" and a "hearing de novo". I find that the expressions were used in a general sense to refer to the fact that there was to be a rehearing. In a general or inexact sense a person may regard the two things as the same as compared to an appeal in a strict sense or an appeal on papers with no right of appearance. There was no discussion as to any technical difference in law between the nature and characteristics of an appeal by way of rehearing and an appeal by way of a rehearing de novo, and no reference to the power of the Committee on penalty.
In para. 13 of his affidavit Mr Frampton said that when he received documents from the Association on or about 10 or 11 December 2000 he read Taylor Splatt's letter dated 6 October. He noted the second point that the rehearing be a hearing de novo and said that was consistent with his understanding. Such an understanding is consistent with there having been a discussion in which there was general reference to a rehearing or a hearing de novo, as I have found.
The next step is the Taylor Splatt letter dated 6 October. The position to this time is that it has been agreed there be a "rehearing". It was left to the solicitors to try to agree on procedure for the conduct of the rehearing. It is in these circumstances that the letter was sent. The letter did address the matter of procedures for the conduct of the hearing. The suggestion that the rehearing be a hearing de novo might not necessarily be a suggestion that the Appeals Committee be placed in the same position and have all the powers in relation to penalty possessed by the initial Tribunal as distinct from a suggestion concerned with the matter of evidence. The remaining points 3-7 are consistent with the latter as the intended meaning or purpose, in particular the suggestion in point 7 to apply the rules in category (a) cases which provide for an oral hearing with witnesses.
Considering the matter overall the writer was concerned to advantage his client by him having an oral hearing with witnesses. Is it a correct construction of the letter that the writer was intending to go further and clothe the Appeals Committee with the power on penalty of the initial Tribunal? This question is to be determined objectively and not on the basis of the subjective intention of the plaintiff's solicitor. It is relevant that the author was a solicitor and that it was, as it seems, a considered letter in which he may be supposed to have been seeking to advance the matter in his client's best interests. Yet, in context, there is reason to think it somewhat curious for the plaintiff's solicitor to suggest the Appeals Committee have that increased power. Mr Frampton's letter dated 4 October 2000 and two e-mails on 5 October 2000 indicate that the Appeals Committee was of the view that the appeal on penalty was not even prima facie arguable. That would indicate that the Committee regarded the penalty of six months as warranted. In that circumstance it might be considered a risky venture for a legal practitioner to suggest the Committee be empowered to do what it could not otherwise do, namely, have power to increase the penalty up to a period of 12 months. The possible consequences could be even more serious than a mere lift in the period of suspension. For instance, what if the Committee imposed a period of suspension without directing it run from the original date of the suspension directed by the Tribunal? In his affidavit Mr Frampton stated that in sentencing the plaintiff the period already served by him was taken into account. If that had not been done there might have been an overall period of suspension greater than 12 months. The purpose of mentioning this possibility is not to note whether it might have been open or appropriate to impose such a penalty, on which matter I was not addressed and do not express a view, but to point out that in the circumstances the mere possibility of such a request might have disinclined one to suggest the Appeals Committee have the power of penalty of the initial Tribunal. Further, it might be argued that the suggestion in point 7 that the category (a) Tribunal rules be applicable was intended to be, and is properly to be read as being, a short-hand and rather loose way of referring to the rules concerning procedure only without writing them out in the terms or to the extent to which they might be treated as applicable. Approaching the matter in this way, properly construed and read in the context of the letter as a whole, it might be argued that point 7 was not intended, and would not reasonably have been understood to have intended, as a suggestion to entrust the Committee with the powers of a Tribunal on penalty set out in by-law.
Prior to the hearing the matter of the Appeal Committee's power on penalty was never raised between the parties or by or with the Committee. The evidence of any reference at the hearing to the nature of the hearing or the Committee's powers is contained in the hearsay letters exhibited to Mr Frampton's affidavit. In addition there was the evidence of Mr Frampton as to a limitation on those powers not being referred to. I did not understand counsel for the Association to rely on those letters or that evidence as constituting an agreement then made as to the power on penalty or as constituting a sufficient explanation to lay persons of the Committee's powers in that respect. He founded his submission on the correspondence between the parties' solicitors on 6 October 2000, and, as I understood the submission, he relied on what was said and done at the hearing as being consistent with or confirmatory of the agreement contained in that correspondence. Counsel submitted that in imposing the penalty of 12 months' suspension the Committee acted on the basis that the parties had thus agreed on a hearing the nature of which was that, in dealing with the appeal, the Committee possessed the same powers in relation to penalty as the initial Tribunal.
In the result, having considered the rival submissions, I am of the view that the submission of the Association must be upheld. Regarding the solicitors' correspondence of 6 October, whether with or without reference to any of the oral discussions that preceded it or other considerations I have referred to, objectively considered the parties must be taken to have agreed in their correspondence that there be a rehearing and that it be a hearing de novo. As I have said, for present purposes, whether the appeal was by way of rehearing or hearing de novo, the result is the same on the application of the generally understood meaning of those words, as on either basis the Appeals Committee was to decide afresh the matter of penalty as though it were in the position of the Tribunal originally hearing the matter. But, overlooking any point of difference between a rehearing and a hearing de novo, the position is, in my view, that when the plaintiff's solicitor wrote on 6 October suggesting a hearing de novo he was using an expression of a commonly understood meaning among lawyers. Further, he also identified as applicable that portion of the by-law which stated the powers of a Tribunal on penalty. That inclusionary reference was consistent with the Appeals Committee truly proceeding de novo. If the solicitor had not intended to include those powers he could have made his reference to a point half way down page 2 of the by-law or have been even more explicit to the same effect. I consider that for these reasons the parties intended, objectively considered, that the appeal go forward on the basis that the hearing was to be conducted on a de novo basis, as I have stated above. Accordingly the plaintiff's claim must fail.
For completeness I refer to the submissions which counsel for the Association made in case I concluded the Committee did not possess the power to increase penalty. He submitted that if I reached that conclusion the plaintiff should nevertheless be refused any relief; being declaratory, the relief lay in the discretion of the Court and should be refused. He submitted that the plaintiff had sat on his rights since 13 December; he had delayed in coming to the Court; he had not followed avenues of approach to resolution suggested by the Association. On this submission the plaintiff should continue to suffer the penalty even though the Appeals Committee had acted without power in imposing it. Moreover, no prejudice has been suffered by the Association by reason of the alleged delay. The prejudice is all the plaintiff's way, for on the alternate conclusion his suspension would have expired last March. The injustice thus contended for could not be accepted. Indeed I do not understand how a responsible body could contend for such a result. I add that there is nothing in the dealings between the parties this year that would warrant the plaintiff being denied relief. At the conclusion of the hearing on 13 December his father stated the matter would be taken further. In January attempts were made to resolve the issue and it was only when they were unsuccessful that, after being threatened, the present application was filed on 24 May. The plaintiff acted with reasonable endeavour and expedition.
There will be an order that the proceeding be dismissed. I will hear counsel on the question of costs.
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