THE UNCERTAINTY OF LEGAL DISPUTES AND THEIR OUTCOMES : BUT SOME ARE A LITTLE MORE PREDICTABLE THAN OTHERS.........( Article by Professor Hu Chi Ku Chi )

Common law which is made up of judges' decisions , many of which go on to become binding precedents , sets out to balance rigidity with flexibility. Although the doctrine of judicial precedent requires precedents to be followed , there is tremendous scope for judges to decide on issues purely on the given set of circumstances , and the merits of each individual case. Therefore what we end up with are authoritative precedents which lay down the general rules , with a whole raft of exceptions , and exceptions to the exceptions. A legal minefield in fact.

In matters relating to disciplinary hearings held by private clubs , rules regarding natural justice

cannot be ignored. Every committee member involved in the hearing is under a duty to act in good faith and fairly listen to both sides before making any decisions as to whether the alleged wrongdoing can be established , and what , if any , sanctions or punishment would be both appropriate and proportional. Certainly,  the basic bottom-line requirements include notice and the opportunity for the accused to be heard in order to respond to allegations made against them. Nevertheless the requirements of natural justice and the standards of fairness are flexible , depending on the nature of the power being exercised, and the effect of the decision on personal interests.

Indeed , in determining the presence and level of natural justice , one must start with the body's own rules themselves. Subject to anything in the rules , other relevant factors will include the nature of the interest at stake , whether an adverse decision would amount to a finding of misconduct and the severity of the sanction which the body is empowered to impose. 

Those criteria , by no means exhaustive , will be important when deciding what the parties intended or implied in their contract. In one form or another they are all concerned with the seriousness of the proceedings. The greater the extent to which a disciplinary committee sets out to operate in a quasi-judicial fashion , the greater the expectation the courts will place on them to adhere to the minimum requirements of natural justice. 

What reported cases tell us is that members may not be expelled without full knowledge of all the charges , adequate notice and a hearing , with committee members needing to approach the task ahead with open minds , displaying no personal animosity or bias against the accused. Clearly , the committee need to assiduously follow their own written procedures and not act in an arbitrary fashion, such as declaring " there was no point in having a hearing because we had already decided that the life ban was the right decision to take " .