DISCIPLINARY MATTERS : A CURIOUS POINT OF LAW........ ( First of a 2 part article by Professor Hu Chi Ku Chi )


In a fairly recent case the Court of Appeal judges raised and discussed many interesting legal questions, concerning the expulsion of members from social clubs. One curious and fascination question was " What is the legal position of a club when the following happens ? A club member is expelled having received no initial hearing in the first place, or one which was flawed in some way,  but then he/she attends an appeal hearing which resulted in the committee's original decision being upheld ? 

In Leary v National Union of Vehicle Builders (1971 ) Megarry J appeared to have elevated the conclusion, which he thought proper in this particular type of case, into a rule of general application. In an eloquent passage he said :      " If the rules and the law combine to give the member the right to a fair hearing and the right of appeal,  why should he be told that he ought to be satisfied with an unjust hearing and a fair appeal ?    Therefore, as a general rule, I hold that a failure of natural justice in the initial hearing cannot be cured by a sufficiency of natural justice in the appellate body ".

However, top ranking judges thought that this rule was too broadly stated. Nevertheless, they affirmed the principle in a certain category of cases : these may well include trade union ones, where movement solidarity and dislike of the rebel, or renegade, may make it difficult for appeals to be conducted in an atmosphere of detached impartiality and so make a fair trial at the first  -probably branch-  level an essential condition of justice. But to seek to apply the principle generally, say to social clubs for instance, overlooks, in their Lordship's respectful opinion, both the express and implied terms of membership, which include no doubt an agreement that both parties will abide by fair decisions resulting from by the club's internal disciplinary procedures, notwithstanding some initial defect in the disciplinary process.

In such intermediate cases, it is for the court, in the light of agreements made, and in addition having regard to the course of proceedings, to decide , whether at the end of the day, there has been a fair result, reached by fair methods, such as the parties should fairly be taken to have accepted when they joined the association. Naturally, there may be instances when the defect is so flagrant, the consequences so severe, that the most perfect of appeals or rehearings will not be sufficient to produce a just result.