LEGAL MINEFIELDS : THEY ARE EVERYWHERE....... ( A revisited topic by Professor Hu Chi Ku Chi )


The law relating to small private social clubs remains sketchy at best. The impact of a member being suspended or expelled is not quite so devastating as a dismissed employee , who suffers as an immediate consequence serious economic or financial loss. Courts would prefer to wash their hands of the affairs of small private clubs, leaving the parties in dispute to resolve their disputes by any other available alternative.
Nevertheless , when a real injustice has been done,  courts have been prepared to intervene.
The bottom line for the courts is club members , who are subject to disciplinary proceedings , are entitled to be treated in a fundamentally fair way. The two key elements to this fundamental fairness is ( i )  the member gets a hearing and ( ii) the committee members involved in the decision making are not biased.
Straightforward you would think ?  But no. Nothing is ever that black and white.
The audi alteram partem rule holds that a man shall not be condemned without being given a chance to be heard in his own defence. The rule is so basic to jurisprudence that it is often termed a rule of natural justice. Fairness is the overriding factor in deciding whether a person may claim a legitimate entitlement to be heard. 
So what would an observer make of a situation where a member was expelled without a hearing , with the ban taking immediate effect. Should a decision made in violation of natural justice be set aside , especially if it is to be implemented immediately ?
Moreover , once a decision has been reached in violation of natural justice , even if it has not been implemented , can a subsequent hearing rescue the situation as a meaningful substitute ?
At this point we enter the legal minefield. 
The starting point is to assume that the prejudicial decision will be set aside as procedurally invalid. Yet there are , quite rightly , some limited situations where a subsequent hearing or appeal will constitute compliance with natural justice , but only if , in all the circumstances , it was sufficiently fair to have the effect of curing the failure to hold a hearing before.
Previous cases suggest real difficulty in resolving this question. 
Any failure of natural justice at the initial hearing ( if there was one at all ) cannot be cured by a sufficiency of natural justice at the appeal appears to be the starting point, but there are of course obvious exceptions. Clubs must be allowed to correct their mistakes , even the gravest ones. However , the Privy Council were keen to point out that if the effect of whatever it was that vitiated the initial decision is perpetrated so as to taint the appeal process , there can be no question of the latter curing the former.
Moreover , even if the appeal process were not intrinsically tainted by the earlier proceedings , the circumstances may be such that consideration of fairness demands that both the initial decision and the appeal process , judged separately , be lawful and procedurally fair. As Lord Wilberforce correctly stated " 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 and fair result . Rules are now in place which anticipate such a situation ,  giving power to the courts to remit for a new hearing. " 
As to whether a court will entertain the proposition that damages may be awarded for wrongful expulsion of a member from a private club , there are very few authoritative precedents to go on.  Nevertheless courts around the world have been moving in the direction of comparing benefits and obligations of the club's by-laws to a contractual relationship between the member and the club. In one South African  case the court reached the conclusion that such an analogy was appropriate. Other commonwealth common law cases were cited where damages were awarded for breach of contract , regarding members who were expelled in a manner not in accordance with the clubs' rules. Thus , it appears theoretically possible to claim damages for breach of contract upon wrongful expulsion from a private club.
As I said before it's a legal minefield.