Written by Victor Hamit

Clubs Victoria has received a number of queries regarding member disciplinary proceedings during winter. I am not sure whether there is any correlation between the increased queries and a cold wet winter.

There are some key principles to be observed in Clubs conducting disciplinary proceedings which include:-

Adhere to the Clubs Constitutional requirements; and
Adhere to “procedural fairness” and “natural justice” requirements.
Most Club Constitutions set out a process for disciplinary hearings against members which should be followed strictly. Common charges against members include conduct “prejudicial to the interests of the Club” or conduct “unbecoming a member of the Club”.

The law requires that a member be accorded “natural justice” or the now more common expression “procedural fairness”. Simply, the law requires that a member be treated fairly. Fairly in this context means:-

The member should be given notice of the allegations against him.
The member should have a reasonable opportunity to prepare and present his defence; and
The member has a right to be heard by an objective and unbiased tribunal.
This article outlines some suggested processes to consider. The notice of charge to be given to the member is the single most important document and should include:-

The charge and a summary of the details (sometimes referred to as the particulars) of the charge;
The time, date and place of the hearing;
Advice that the member can provide an explanation or defence and present witnesses at the hearing;
Advice of the powers of the tribunal in the event of a guilty finding (e.g. reprimand, suspension or expulsion);
Advice that the hearing may proceed in the member’s absence.
Most Constitutions provide that the charge may be heard in the absence of the member. However, the tribunal should consider before proceeding with the matter in the absence of a member, that due notice has been given and if the member has provided a written representation, that due consideration be given to the written representation.

Frequently Constitutions enable the Board or the Manager to suspend the member pending the hearing. If such a provision is included in a Clubs Constitution, then care must be taken to ensure that it is followed strictly. Alternatively, if there is no such express provision in the Clubs Constitution, then a member cannot be suspended prior to the hearing.

The Supreme Court in New South Wales has held that there is no automatic right in a member having legal representation at a hearing. Subject to the provisions of a Clubs Constitution, such a request may be granted or denied. If the tribunal wishes to allow legal representation for the member, then it should also consider engaging a legal representative to assist the Board at the hearing.

The tribunal should preferably deliver its decision at the hearing and if the member is found guilty, then allow the member an opportunity to speak on penalty. The decision on penalties should be considered after the member has made his representations on penalty.

Following the tribunal decision, the Club should confirm in writing to the member the decision, penalty (if any) and any rights of appeal. If a member has been suspended, then the consequences and the period (including start and end dates) should be briefly explained.

Club Constitutions vary widely when dealing with disciplinary proceedings and in particular, whether rights of appeal are available to members. It is important to ensure that the procedures laid down in the Clubs Constitution are followed. Although many Club Constitutions stipulate that a decision is final and binding on the member, a Court may still have jurisdiction to review the decision where procedural fairness has not been accorded to the member.

By way of example: a club provided free “monte carlo” biscuits next to two self service tea and coffee stations. A member was identified by staff loading several hands full of biscuits from each station and placing them into napkins and then into her bag late on Friday afternoon. The staff member immediately reported the events to the President who was having a pre-dinner sherry in the bar. The President was so incensed that he confronted the member and demanded that she appear before the Board to be disciplined the next morning (Saturday). The President ignored the requirements of the Constitution for due notice of the charge. Procedural fairness? – You be the judge!

Article Published: Club Connect – October 2011


Victor Hamit
Wentworth Lawyers
Level 40,
140 William Street

Email: vhamit@wentworthlawyers.com.au
Website: www.wentworthlawyers.com.au

Tel: +61 3 9607 8380
Mobile: +61 408 590 706


These materials are provided as a general guide on the subject only, not as specific advice on any particular matter or to any particular person. Please seek specific advice on your own particular circumstances as situations and facts vary.
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