WHAT IS IT WITH CLUB COMMITTEES AND THEIR INABILITY TO CARRY DISCIPLINARY HEARINGS PROPERLY ?............ ( Article by Professor Hu Chi Ku Chi )
A very sad and appalling truth needs to be acknowledged. No matter where in the world you care to look , club committees get it all wrong when handling out disciplinary suspensions and expulsions to misbehaving members. Is it down to ignorance of the law ? Is it down to a blatant arrogance that somehow small clubs are exempt from the law....or maybe they stand above it ? Well , down under in Queensland Australia a court was quick to overturn the committee's decision to expel a member from their bowls club.
The incident which triggered a rather bitter and costly legal dispute was an altercation between the member and his sister. This resulted in several people sending in letters of complaint about the " language used to describe her " . One of the letters came from the victim and her husband. The others were sent in from witnesses friends keen to offer their support.
However , the committee then proceeded to make a series of mistakes , which led to the court to believe that several irregularities had taken place , along side the complete absence of natural justice.
1. The plaintiff's solicitor had made several requests to the committee for information and answers, all of which were ignored. One involved the important question of whether or not he was allowed to legally represent his client at the initial disciplinary hearing.
2. So when the solicitor turned up with his client to the disciplinary hearing , only then was he told " no ". The committee decided on the spot to put a motion forward to exclude him , which of course was carried successfully. At this point both the member and his solicitor walked away. This resulted in the remainder of the hearing taking place in their absence.
3. The secretary had failed throughout to notify the member ( and his solicitor ) in writing the exact nature of the charge(s) made against him , opting instead to show him the letters of complaint . By not knowing the true nature of the charges, the accused member was severely prejudiced.
4. Although the member was offered the right of appeal , procedural obstacles were then put in his way to make his life more difficult.
5. At the appeal the member's solicitor wanted to know if a proper assessment had been carried out as to whether or not the alleged conduct did indeed amount to conduct , which would be sufficient to warrant suspension or termination of membership. No adequate answer was offered or given.
6. At the appeal much store was placed on the letters of complaint which were read out by their authors. This was followed by a secret ballot which resulted in the original ban being upheld.
7. Fairness , which is clearly the touchstone of natural justice , might well be satisfied by different procedures even in the same association in different circumstances , but in the court's opinion the more serious the outcome then the greater degree of fairness required .
8. Certain requirements laid down in the club's constitution were not fully met.
9. The member , in the absence of not knowing what the charges against him were , was never in a position to prepare submissions on an appropriate penalty , and perhaps search the minutes for comparable instances.
10. Once the committee incurs upon itself a duty to investigate, hear , determine and impose a penalty , then it must be even more meticulous in following its rules.
11. There will always be the suspicion of bias and prejudice if the punishment was unlikely to be as severe if a similar incident had occurred in a similar club , or if correct procedures had been carried out.
One final observation is that prejudgement will always undermine any argument that a fair hearing took place . Members of a club committee should only make decisions about a accused member at the end of the hearing but not before . So imagine then how a court might react to the chairman of an appeal panel telling the member in writing , that he agreed with the committee's decision to ban him several weeks before the scheduled date of the appeal hearing ?