Sunday, 1 July 2012

THE HEARING RULE ………. ( Part 2 of Professor Hu Chi Ku chi’s article )

In a nutshell, if a club’s disciplinary process is likely to result in the expulsion of a member , it seems imperative that he or she should be given an initial hearing . If a decision to expel a person is taken in his/her absence presence , then there is real ammunition for a lawyer to argue , and establish a claim that procedural fairness may have been compromised.


Problems inevitably arise if club members have agreed to be bound by their own constitutional rules on disciplinary procedures , which then begs the question : why should the courts intrude and impose some different obligations ? However, before that question can be answered , the courts will usually consider several other isues first.


The starting point now appears to be whether or not the courts view the expulsion as wrongful, rather than acknowledging that the club committee may have acted contrary to its own rules. Courts are quite prepared to accept that club’s constitution could well have inadequate systems for dealing with disciplinary matters , falling short of what the common law might otherwise require , but they are more ready to intervene when procedural fairness is missing. Even if members have agreed to abide by an inadequate set of internal rules, they haven’t agreed that these rules can be flouted , or carried out in a grossly unfair way.


In Lee v The Showman’s Guild of great Britain (1952 )  Lord Denning took the view that procedural fairness considerations should also apply to cases involving voluntary associations . Then in 1980 , in a case called Calvin v Carr , which involved the Australian Jockey Club, the English Privy Council dealt with an appeal coming from Australia. The Law Lords considered whether the rules of procedural fairness had been breached in suspending a horse owner from racing , without even specifically asking whether the rules applied.


This ruling was backed up in Plenty v The Seventh-Day Adventist Church , in which a committee arrived at a decision after a most remarkable and convoluted set of proceedings. Here the Supreme Court of South Australia agreed that procedural fairness also applied to the internal affairs of a church committee.  Although the church had good rules , the committee failed to provide sufficient particulars of the charges against Plenty, and by doing so failed to meet the requirements of procedural fairness.


The hearing rule certainly comes into operation whenever the issue concerns a club member's valuable rights , or loss of them , as in the case of expulsions. But what then makes a hearing fair ? This question can only be answered by a judge, who will attempt to take an objective view as to what degree of fairness was deemed necessary in that particular case . In practice there has to be something inherently and fundamentally unfair about the procedure for courts to intervene.


A hearing before an impartial fact-finding and decision-making committee members is of course an essential requirement. That needs to be followed up with the person , whose rights might be affected by the outcome , being given the opportunity to know what was being said against or about him.

Certainly, a person should be entitled to have an opportunity to put their case to the disciplinary committee before the punishment is decided upon. No one can demand the opportunity to examine every nuance of every thought that the decision-maker might be entertaining , or be given notice of every point or matter , however minor, that might be relevant : just the opportunity to hear…. and be heard. Procedural fairness  surely entitles a person to be told , broadly speaking , what the complaint was , the disciplinary charges laid against him/her , the findings of the fact-finding committee members , and the reasons behind the sanction being considered.

A fair hearing should also impose a sanction solely  based on established evidence , and /or an explanation of it, if only to give the accused an opportunity to challenge its severity , before putting in a plea for mitigation. Even if guilt has been admitted to the charge(s) laid down, the member in question should always be given a hearing .

But then there is the thorny problem of whether the accused has a right to a hearing , when it transpires that the constitutional rules stay silent on such an issue , or allow the committee to offer a hearing within its discretionary powers.   In my opinion , there is a strong moral argument for a right of hearing to be declared as  automatic , when expulsion is on the agenda. For instance, if a committee conducts a hearing without the person being present , simply because “ there was no point to him being there “ , then the victim of such arrogance and unfair practice should be able to seek legal redress .

Another obvious requirement is that the club committee must provide adequate notice of the meeting ( at least 3-4 weeks in advance ) , with a willingness to rearrange alternative dates if the person cannot attend the first scheduled hearing. Any efforts by the committee, designed to make life difficult, awkward and problematic for the troubled individual , might well be construed as unfair , if not malicious .
Indeed , it makes good sense for committee to go out of their way to make sure the person involved actually attends the hearing , if only to prove that everything was fair and above board. Committee members are also advised to step down when personal bias against the person cannot be denied. It also wise and prudent to allow the person the right to have a fellow member and friend in attendance , if only to provide moral support and back up. These simple things would help convince any court that the disciplinary procedure was carried out in a fair and proper manner.

Club committees , therefore , are well advised to be accommodating and understanding throughout the whole disciplinary process , if only to demonstrate their determination to act in accordance with rules of natural justice. The manner in which this process is carried out should aim to convince an independent onlooker that a spirit of reasonableness had prevailed from start to finish . This way the courts are more likely to ignore any ongoing grievances of a disciplined member, in that why should there be intervention ,  when a just and fair process has already taken place. It is only in circumstances where the process has all the hallmarks of a kangaroo court that a judge will come to the aid of a wrongfully expelled member, as in a recent Scottish judicial review case Innes v Dullatur Golf Club ( 2011 ) .

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