Given the likely consequence that expulsions will impinge upon the affairs of the individuals, and their impact might well impeach some of their legal rights. courts have been forced to intervene. The need to protect an individual's interest may therefore involve the exercise of some control over those who are making such important decisions.
It is trite law that a court will not sit as a tribunal of appeal, conducting a re-hearing of the complaint on its merits as it came before the club's committeee. According to the Court of Appeal in Dawkins v Antrobus (1881) there were three grounds upon which a court could intervene. They were : (1) that the proceeedings though within the rules of the association were contrary to natural justice; (2) that the proceedings were not in accordance with the rules; and (3) that the decision to expel was not arrived at in good faith.
Therefore, if a committee is seeking to discipline a troublesome member, where expulsion is a possible outcome, then the following advice needs to be taken on board :
1. Utilise key aspects of employment law regarding dismissals as a benchmark for "correctness ", irrespective of whether ( or not ) such law is embodied within the club's constitution.
2. If an expulsion is possibly up for consideration,then look to seek legal advice right from the outset. This might ensure nothing gets overlooked, reducing the risk of any mistakes.
3. Committee members with personal axes to grind need to step down, since they cannot claim to remain objective and impartial. If for instance it was a committee member who made the initial complaint, then it becomes quite possible that the committee as a whole will make supportive decisions, which by implication have become " skewed ".
4. No matter how dreadful the member's behaviour appeared to be with regards to the complaint, it must only be the established and corroborated facts of the incident, on which a judgement should be made. Indeed, judgements based on assumptions, speculation and guesswork are clearly open to bias and prejudice.
5. Gross misconduct requires evidence of serious, highly damaging, misconduct, but where the committee are dealing with another complaint in relation to repeated petty misconduct, then there needs to be already in place an earlier letter of warning, which has alerted the errant member to the reality of an expulsion, should another complaint be upheld.
6. Only when all other punitive sanctions have been considered, and rejected as inadequate or inappropriate, might expulsion be seen as a fair and just recommendation.
7. If during an internal appeal process, the expelled member seeks to enhance his/her case by having counsel present, the duty of fairness does not necessarily mean that permission has to be given. Nevertheless, in cases of expulsion, it would be a very wise move for a committee to permit this right, if only to firmly establish its claim that procedural fairness has always been at the top of its priorities.
8. If there are voices of dissent both inside and outside the committee, then they must be allowed the opportunity to be heard, with relevant questions and concerns duly acknowledged and answered.
In conclusion, " the obligation of natural justice need not be met in any particular formal way, but it must be met nonetheless. For clubs, this needs to be met in broad principle, not according to precise rules. Courts will look at the nature of the power being exercised, and whether or not the individual's rights and interests have been recognised and protected " : Royal Australian College of Surgeons v Phipps (1999). Similarly, in the case of Street v BC Schools Sport (2005) the court took the view that " the aim of the association was not to create procedural perfection but to achieve a certain balance between the need for fairness, efficiency and predictability of outcome ".
Procedural flaws therefore will always be a reality, especially if the constitution is flawed by virtue of omissions, ambiguities, contradictions, or badly worded provisions. To expel a troublesome member now requires committee members to take off their blinkers and " apply the wisdom of Solomon ".
Sadly, clubs must come to terms with another reality, which is a far harsher one : " the law has become a very blunt, and hugely expensive, instrument ".
......
( I would like to acknowledge that several of my legal observations were based on some excellent material published by Mark von Dadelszen, a New Zealand lawyer, who clearly specialises in this area of law. )
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