Carmody v Roseville Golf Club Ltd

The plaintiff Mr Patrick Carmody joined the defendant, Roseville Golf Club Limited, in 2008. On 8 March 2024, an Appeals Committee constituted by three directors of the Club determined after a hearing that Mr Carmody was guilty of the charge of having engaged in conduct which was unbecoming of a member and expelled him from the Club.

By an amended summons filed on 18 October 2024, Mr Carmody challenges his expulsion, essentially on grounds alleging denial of natural justice, with the consequence that his expulsion should be declared void and of no effect. He also claims damages.

For the reasons which follow, the Court has determined that Mr Carmody was not denied natural justice and that the proceedings should be dismissed with costs.

Mr A E Hopkins of Counsel appeared for Mr Carmody. Mr C O’Neill of Counsel appeared with Mr J Charlton of Counsel for the Club.

There are several matters which can be dealt with by way of introduction.

First, two hearings were held. The first was a hearing of a disciplinary committee of the Club on 30 January 2024 in which Mr Carmody chose not to participate. He was found guilty of the charge and expelled. The second is the hearing which is the subject of these reasons, being a hearing of the Appeals Committee. As he originally framed his case, Mr Carmody challenged both hearings. However, the parties sensibly agreed that the Court need only consider the hearing before the Appeals Committee on the basis that if the Court upheld Mr Carmody’s challenge to that hearing, the Club would consent to orders declaring the first (disciplinary committee) hearing void. For this reason, only grounds 17 to 31 of the Amended Summons were pressed.

Second, the Appeals Committee was constituted differently to the disciplinary committee. Although called an Appeals Committee in the Club’s Constitution, the reference to an “appeal” is apt to mislead. This is considered further in [15] to [33] below in relation to the proper construction of the Constitution. In these reasons, I shall refer to what took place before the Appeals Committee as the hearing.

Third, each of the following gave evidence and was cross-examined: Mr Carmody; his support person at the hearing, Mr Noel Robertson; the Club’s General Manager, Mr Oliver Raggett; and directors of the Club Mr Paul Carey, Ms Nerida Campbell, Mr Brett Collins and Mr Nicholas Hartry (the last three of whom constituted the Appeals Committee). The evidence of the members of the Appeals Committee included explanations of how they had approached their task and the reasoning each had applied in coming to his or her decision. While there were differences in recollection, with one exception (see [42] below) nothing turns on them having regard to the grounds relied upon by Mr Carmody. I have formed the clear impression that each witness was doing his or her best to assist the Court and to recall events as best they could, irrespective of the effect of that evidence on the case of the party which had called them.

Fourth, it is important for any reader of this judgment to appreciate that the Court's task is not to conduct what lawyers call a "merits review". That means that this Court does not express any opinion about whether or not the hearing resulted in the "correct" decision. It is completely irrelevant to the Court’s present task whether or not I agree with the outcome of the hearing (as to the finding of guilt or the penalty) or would have reached the same conclusions as the Appeals Committee if I had been involved in the hearing.

The only issue with which this Court is concerned is to determine if Mr Carmody received a hearing that complied with the terms of the Constitution, including and insofar he was entitled to be afforded natural justice under the Constitution. This is because the Constitution (and By-Laws) evidence the terms of a contract between the Club and Mr Carmody. His cause of action is contractual and invites two questions: to what was Mr Carmody entitled on the proper construction of the Constitution in relation to the hearing and, as a matter of fact, was that entitlement fulfilled?

Fifth, and again without any reference to the merits of the allegations against Mr Carmody, my impression of each person who gave evidence before me and who played a role in the events which have given rise to these reasons (including Mr Carmody and his support person Mr Robertson) is that they acted appropriately in relation to the hearing. In particular, I have no doubt that the members of the Appeals Committee approached their task seriously, responsibly and with open minds, assisted by the preparatory work undertaken by Mr Carey and Mr Raggett. As is further developed in [123] to [134] below, the Court rejects any suggestion of any bias (apprehended or actual) on the part of the members of the Appeals Committee against Mr Carmody.

Among the general objects of the Club set out in the Constitution is Clause 4.1(e) “To establish and carry on a club for the use and benefit of its members and to afford to its members the usual privileges, advantages, conveniences and accommodation of a club”.

Clauses 11.1 and 11.2 of the Constitution of Club provide:

The By-Laws of the Club include:

Because it involves considering the nature of the hearing, it is convenient to deal with an argument as to the construction of the Constitution before setting out the facts.

Ground 22 in the amended summons is that both as a matter of natural justice and on its proper construction, the Constitution required the Appeals Committee to give reasons. Mr Hopkins accepted that to succeed on this ground, the Court needed to be satisfied that cl 11.2(e) applied to the disciplinary committee hearing alone. He contended that it cannot be assumed the exemption from reasons applies equally to the hearing. Instead, the fact that the disciplinary committee hearing is specifically exempted from giving reasons while the Constitution is silent regarding the Appeals Committee was submitted to indicate the drafter turned their mind to the issue and chose not to excuse the Appeals Committee from an obligation to give reasons.

Such a reading was submitted to be consistent with the Appeals Committee providing a “review” in accordance with cl 11.2(j). Mr Hopkins accepted that by reason of cl 11.2(m), the procedure at the hearing was to be the same as at the disciplinary committee hearing. Even if it were characterised as a de novo hearing, Mr Hopkins submitted that the word “review” suggests there is to be some review of the original decision, while accepting that a “review” of the underlying decision is made difficult by there being no requirement for the disciplinary committee to give reasons.

Mr Hopkins further submitted that cl 11.2(l) should be read as requiring the reasons to form part of the “outcome” to be notified and that the task of the Appeals Committee was submitted to be a more fulsome one than that of the disciplinary committee. It was submitted that meaningful submissions as to penalty could not be made to the Appeals Committee as the final arbiter without understanding the reasons for a finding of guilt.

If it were found that the Constitution is silent on the question, it was submitted in the alternative that the authorities otherwise require a domestic tribunal to give reasons. Mr Hopkins further accepted there is no authority stating an incorporated association or sporting club is required to give reasons at common law. However, he submitted that just as the decision in Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 is authority for the proposition that a duty to give reasons could be implied from a statutory context, so could it be implied from the Constitution.

Mr O’Neill submitted that, as a matter of construction, the meeting referred to in cl 11.2(e) included a meeting of the Appeals Committee. In the alternative, Mr O’Neill submitted that if the Court was of the view that the Constitution is silent on the issue, then the Court should apply the decision of the High Court in Public Service Board of NSW v Osmond (1986) 159 CLR 656; [1986] HCA 7 that there is no general principle of natural justice or common law that requires reasons to be given.

For the reasons which follow, the Court has concluded that there was no obligation on the Appeals Committee to give reasons, whether expressly, by implication or as matter of the general law.

While the words of the Constitution are paramount, in my respectful view where there is room for doubt the rules of a private body such as a club should be interpreted with an eye to simplicity and practicality and against the background that courts in this country do not in engage in merits review of the decisions of domestic tribunals. This latter consideration points against the implication of an obligation to give reasons, because it is where the merits are in issue that there is an obvious case for reasons.

With the greatest of respect to the drafter, Clause 11.2 is not an example of clinical precision. Three examples will suffice. First, cl 11.2(e) says that the decision of the board at the disciplinary meeting is “final” without qualification. However, the existence of an express appeal right gainsays that reading. Second, cl 11.2(i) refers to the request for an appeal being made “within 14 days of receiving notification of a disciplinary hearing”. Read literally the provision makes no sense. It must be read as referring to being notified of the outcome of a disciplinary hearing. Third, the introductory words of cl 11.2(j) – “appeals for such will be reviewed” – require some explication.

Nevertheless, infelicitous drafting does not excuse the Court from construing the words of the clause.

From that starting point, it is clear that there is no express obligation on the Appeals Committee to give reasons, that is to say an obligation in terms. The next step is one of construction.

It is because of the plain words that the Court does not accept Mr O’Neill’s primary submission that the meeting referred to in cl 11.2(e) includes, as a matter of construction, a meeting of the Appeals Committee. Unsurprisingly, the overall structure of cl 11.2 is to proceed chronologically, beginning with notification to the member of the charge. Clause 11.2(e) comes at the point of the Board (itself or through a disciplinary committee) making its decision. In its terms, it is that “decision” which is referred to in the clause.

The other decisive matter against Mr O’Neill’s submission is that while that initial decision is expressly one of the “Board” (whether as such or by its powers being exercised by a disciplinary committee which must be constituted by at least three directors), the decision of the Appeals Committee is not one of the Board. The only express requirements for determining the membership of the Appeals Committee are that it be determined by the Board and that it must not include any members “associated with” the hearing the subject of the appeal. In other words, the Appeals Committee does not need to be constituted by directors of the Club (or perhaps even members) and could not be constituted by directors if all of them had been “associated with” the appealed decision.

Can an obligation to give reasons be implied? That inquiry must begin with the terms of cl 11.2 which deal with the Appeals Committee. The right of appeal is conferred by cl 11.2(i) and the task (“reviewed”) and composition of the Appeals Committee appears in cl 11.2(j). The next two sub-clauses deal with the convening, determination and notification of the outcome of the appeal meeting. The member’s rights at the appeal meeting are specified by reference to cl 11.2(b) and the Appeal Committee’s entitlement to proceed in the absence of the member are conferred by incorporating cl 11.2(b). None of these provisions bespeak by implication an obligation to give reasons.

More importantly, in my respectful opinion there are express indications to the contrary. The Appeals Committee has an obligation under cl 11.2(k) to “determine an appeal outcome” and then, under cl 11.2(l), to “notify the member with the outcome of the appeal within 7 days of the determination of the appeal”. The natural and ordinary meaning of “outcome” is “result”. That is the extent of what the Appeals Committee must do and it will be taken to have fulfilled its express duties by doing those things. These express provisions leave no room for the implication of an obligation to give reasons when all that is required is to determine and notify an “outcome”. The specification of 7 days is also inconsistent with an obligation to give reasons, being a relatively short period in which to produce reasons, but being sufficient to allow for deliberation after a hearing and to notify the member (including if the hearing was conducted in the member’s absence). Insofar as the Constitution may be characterised as a contract to which the principles of contractual implication apply, nor can it be said that the implication of an obligation to give reasons is necessary to give business efficacy or that it is so obvious that it goes without saying.

Nor do I accept the argument that the deliberate exclusion of the obligation to give reasons at the stage of the initial disciplinary hearing provides a logical basis to imply that the Appeals Committee had to give reasons. That conclusion is neither logical nor necessary. If an explanation is required for the express exclusion, it may be found in the fact that the appeal is a “review”, the natural and ordinary meaning of which is “to look at something again”. There was no real dispute that “review” meant the hearing was, in the language of lawyers, de novo. The exclusion of reasons is an obvious and sensible means of facilitating that by avoiding the potential distraction of reasons. Putting it another way, the Board’s reasons would be unnecessary for the matter to be looked at again.

There are four general considerations which I have also taken into account in finding against an implied obligation to give reasons by the Appeals Committee:

Finally, turning to the general law, Campbelltown does not assist Mr Carmody. That case concerned a statutory regime where implication of an obligation on an Appeal Panel to give reasons were based upon this conclusion (at [117] per Basten JA; Handley and McColl JJA agreeing) about its functions: “Those functions might not constitute an exercise of judicial power for the purposes of the federal Constitution, but they are functions properly characterised as judicial in nature, for the purposes of determining their incidents.” On no view can the functions of the Appeals Committee be characterised as “judicial in nature”.

As to the general law, the applicable principle is set out in Osmond. Applying that principle, the Court concludes that as a matter of general law, including the principles of natural justice, there was no obligation under the Constitution for the Appeals Committee to give reasons.

The terms of the charge and particulars originally provided to Mr Carmody on 4 January 2024 were:

In response to an inquiry from Mr Carmody as to the definition of “unbecoming”, a letter was sent by email to Mr Carmody on 22 January 2024 which stated, “The term “unbecoming conduct” means inappropriate, unseemly or unsatisfactory conduct as a member.”

The disciplinary committee ultimately met on 30 January 2024. Mr Carmody elected not to attend. He was informed of the adverse outcome and, through his solicitors, indicated that he intended to appeal.

Mr Carmody was provided with a “Notice of Disciplinary Charge and Hearing for Appeal Hearing” on 20 February 2024 which included the charge and particulars:

Attached to the Notice was an appendix containing what was described as “the complaint against you and witness statements”:

I will refer to complaint and the witness statements together as the Club’s evidence.

In various documents, Mr Carmody provided his account of what occurred (Mr Carmody’s evidence). This is how it appeared in his submissions dated 8 March 2024 that Mr Carmody handed up at the hearing:

With one exception (which is resolved in the next paragraph), there is no real dispute about the overall conduct of the hearing, the material facts being:

There was only one factual matter relevantly in dispute as to what occurred at the hearing. That was whether, after the Appeals Committee informed Mr Carmody that he had been found guilty of the charge, he was given a further express opportunity to address on the question of penalty. The Court finds that he was, for these reasons:

The legal principles were not in issue. I reproduce with gratitude Mr Hopkins’ helpful summary of those principles:

Ground 17 was:

It was submitted by Mr Hopkins that cl 11.2(a) of the Constitution required the Notice to set out “the facts, matters and circumstances” from which the charge arises, which accords with the general principle that an accused person has to be fairly apprised of what is being alleged against them. It was submitted the Notice failed to comply with the standard set out in Samuel:

In support of the case at bar requiring detailed particulars, Mr Hopkins pointed to the Board members referring to the conduct as “serious”, that there was a suggestion of a potential referral to the police and the concerns regarding Mr Carmody’s actions being a breach of work, health and safety laws.

At a minimum, Mr Hopkins submitted Mr Carmody was entitled to particularisation of the actual conduct of which he was accused in order to mount a defence. Instead, the charge was simply a characterisation. It was submitted the entire process miscarried because the central focus of the hearing was not on identifying the actual conduct. The Appeals Committee failed to undertake any inquiry or make any factual findings.

Mr O’Neill submitted the particulars as provided informed Mr Carmody that he was alleged to have spoken in a rude, offensive, intimidating and disrespectful way to staff, which constituted conduct unbecoming. Conduct unbecoming was a broad and general term, and is not a high hurdle. The context specific nature of such a charge was highlighted and is the reason the Board is constituted by members. Private member clubs are entitled to set their own standards and enforce them. Any conduct the members deem to be unbecoming is sufficient, making the actual words spoken by Mr Carmody irrelevant to making out the charge in circumstances where the manner in which he conducted himself is sufficient. The particulars were adequate and when read with the Club’s evidence could not have left Mr Carmody in any doubt as to the case he had to meet.

The Constitution speaks of disciplinary action being enlivened if “in the opinion of the Board” a member is guilty of “conduct which is unbecoming of a member” (my emphasis). Mr Carmody was informed that he had been charged with “conduct which is unbecoming of a member of the Club” by speaking to “an employee of the Club in a rude, offensive, intimidating and disrespectful manner”.

The particulars of the charge as provided to Mr Carmody clearly indicate the primary issue – the relevant conduct - was the manner in which Mr Carmody spoke, not what he said. In Mr Carmody’s evidence he gave an account of the “conversation” and said that “at no point during the above conversation did the Appellant engage in any rude, offensive, intimidating and/or disrespectful behaviour”. It is clear that Mr Carmody understood that how he spoke rather than what he actually said was the issue. Even words that in terms are benign can be spoken in a way that is rude, offensive or intimidating.

The Court finds that the particulars were adequate and further particulars were not required. This ground fails.

Ground 18 was:

There was some factual dispute about whether there were three or five staff members in the Pro Shop on the day in question. However, Mr Carmody’s oral evidence was that there were possibly five staff members in the Pro Shop at the time (Tcpt, 4 August 2025, p 17(18)). Mr Carmody’s affidavit dated 30 April 2024 stated:

Mr Carmody was asked about the divergence in his evidence in cross- examination:

Mr Raggett’s affidavit stated that there were three staff members in the Pro Shop at the time of the incident.

It was submitted for Mr Carmody that as only one of the statements was from the person who had the actual conversation with Mr Carmody, it would have been impossible for Mr Carmody to call witnesses who may have been there but did not provide statements without knowing the identity of the witnesses. Mr Hopkins submitted that even if Mr Carmody had called the staff, they could have denied providing a statement as only three of the alleged five staff members provided statements.

It was also submitted that the Appeals Committee appeared to be aware of the identities of the witnesses and complainant, and conclusions were drawn on the basis of those identities of which Mr Carmody was not appraised or able to test.

Mr Hopkins submitted it was irrelevant whether Mr Carmody could have worked out who the complainant and witnesses were, based on the charge, it should not have been a situation where Mr Carmody had to divine that for himself. The identity of the complainant was submitted to be particularly important. This person may have been known to Mr Carmody and it is possible there may have been answers Mr Carmody could have given as to why they had made the complaint.

The Club submitted that while Mr Carmody did not have the Club’s list of who had been contacted in the course of the Club’s investigation of the incident, Mr Carmody did have the Pro Shop tee off timesheet and could have obtained contact details through the member’s directory. It was further submitted that there were only three staff members in the Pro Shop and that Mr Carmody knew who each of them were. It was submitted regardless of their identities, all of the statements were consistent in that they were adverse to Mr Carmody and stated, at the least, that he had been rude to the staff. No other witnesses were present, which is evidenced by the extensive canvassing which failed to produce any further witnesses. This was known to Mr Carmody, who in a statement that he had provided included that a Mr Olivier was the only one who could remember anything from that day and also sent an email to Mr Raggett on 29 January 2024 which included:

As such, it was submitted that short of cross-examining the witnesses and complainant, which he was not allowed to do under the Constitution, there was nothing Mr Carmody could have done further to ‘test their evidence’ or ‘identify potential witnesses’ for statements. It was submitted that there was no evidence testing to be done with respect to the witnesses because Mr Carmody never attacked their credibility or suggested they were lying. Mr Carmody did in fact telephone one of the witness staff members and spoke to them, so he could have called the other staff members too. No prejudice resulted from the information being withheld or from Mr Carmody failing to lead any evidence. He chose not to call Mr Olivier and did not proffer any explanation for not doing so.

Mr O’Neill submitted that the protection of the witnesses and complainant’s identities was a legitimate way for the investigation to have taken place. The judgment of Sackar J in Oei v The Australian Golf Club [2016] NSWSC 846 was relied upon for the proposition that without something more, protecting identities would not prevent a plaintiff such as Mr Carmody from presenting their position. Whether the plaintiff makes any attempt to ascertain them is also relevant. Furthermore, some negative impact upon a party’s ability to present their case must result.

Not being advised of the complainant and witnesses’ names did not adversely impact Mr Carmody’s ability to answer the charge. He failed to demonstrate what he could have done otherwise or how knowing the identities would have made a difference.

In response to being questioned about the impact of the witnesses being asked to provide statements as opposed to voluntarily providing them, Mr O’Neill submitted the content of the statements speak for themselves. If the true position had been they did not think the incident was a problem, that would have been reflected in the statements. However, all three statements indicated the conduct was rude and disrespectful.

It was also pointed out that Mr Carmody had called the Pro Shop to speak to a staff member about the incident prior to receiving the actual complaint, while he was on provisional suspension. This was submitted to refute any argument that Mr Carmody felt he could not call the staff or did not know who any of the witnesses were.

Mr Hopkins submitted in reply that it was not put to Mr Carmody that he could have used the information on the timesheet to contact those members by using the Club’s online interface and therefore could not be relied on. Mr Hopkins’ evidence from the bar table was his instructions were Mr Carmody’s rights and access were terminated upon his suspension. Mr Carmody did not have the handwritten list of members’ calls, he had requested it and was rebuffed. The fact that Mr Carmody did not call witnesses was then held by the Appeals Committee to be a factor weighing against him. Mr Hopkins submitted the test was that the Court would set aside the decision unless the Court was satisfied – which it could not be - that if Mr Carmody had the information, no different outcome could have eventuated and it was not material in any way, relying on Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54.

To say that a person should always know the identity of their accuser may be rhetorically powerful but does not necessarily represent the law. This right of confrontation is undoubtedly an important principle of the criminal law: see D Lusty, Anonymous Accusers: An Historical & Comparative Analysis of Secret Witnesses in Criminal Trials (2002) 24 Syd Law Rev 361. However, in the case of a domestic tribunal, the question is whether that information is necessary to ensure someone in Mr Carmody’s position is afforded the natural justice to which they are contractually entitled.

Oei was also a case involving a member expelled from a golf club, where one of the witness statements was redacted. Sackar J said:

There is, with respect, an air of unreality about Mr Carmody’s complaint in this ground. I do not accept that Mr Carmody has demonstrated that he was put at any, or any relevant, disadvantage in being able fairly to meet the charge by not being informed of the identity of the complainant or the witnesses in the Notice or otherwise. For this reason, it is not necessary for the Court to make findings dealing with the various factual assertions made by the parties that I have set out relating to this ground. I emphasise that this conclusion does not mean that there cannot be cases where, for example, the nature of the allegation would mean that natural justice required the identity of the complainant or witnesses to be given to the accused person. This is not such a case.

These observations may be made:

This ground is not made out.

Ground 19 was:

The parties did not really join issue on this ground. To my observation, this was because it was ambiguous.

Mr O’Neill’s submissions focussed on the outcome of the process. He submitted that there is no general principle of natural justice requiring reasons to be given and there was no specific requirement for the Appeals Committee to provide reasons. Because no reasons were required, there can be no requirement for the Appeals Committee to identify the evidence upon which they relied to find Mr Carmody guilty. As such, this ground was submitted to fail.

Mr Hopkins’ submissions for Mr Carmody focussed on the process itself, in particular on the extent to which the members of the Appeals Committee had in their possession, and relied upon, the contents of what was referred to as an information pack. The Court concludes from the evidence that Ms Collins and Mr Campbell had been given the information pack, but Mr Hartry had not.

Failing to advise Mr Carmody of exactly what was in the information pack and what was being considered was submitted to be a denial of procedural fairness. This was particularly so where the correspondence was in the information pack and was the basis of Mr Hartry concluding Mr Carmody displayed “aggressive conduct” and was considered in the deliberations of the Appeals Committee.

It was submitted a complete and accurate copy of the information pack could not be found in the evidence. Mr Hartry said he was not given an information pack and Mr Collins had put together what he thought was in the information pack, but had clearly included some documents that could not have been in it. It is unclear how it was said the version of the information pack provided by Ms Campbell was incomplete.

While it was accepted that Mr Carmody was the creator and recipient of the correspondence in the information pack, it was submitted that he was unaware that the Appeals Committee had the information and was considering it. As such, he could not address it.

If the ground is to be read as a complaint about the end of the process, the Court accepts Mr O’Neill’s submissions because the Appeals Committee was not required to give reasons (see [21] above).

Turning to Mr Hopkins’ submissions, the dispute about the exact contents of the information pack does not need to be resolved because there was no real dispute about what might be described as its essential contents. The information pack was a chronology of events in relation to the complaint. Where correspondence was referred to, it attached the correspondence. That correspondence was between the Club (or its solicitors) and Mr Carmody (or his solicitors). I accept the Club’s analysis which suggests that the only things in the information pack which would have been unknown to Mr Carmody (unknown items) were a note of names of members contacted by the Club as part of its inquiry based on the tee off timesheet on the day in question, and an email from Mr Raggett to the Club’s board members reporting on the outcome of the disciplinary hearing.

Against that background, the Court rejects Mr Hopkins’ submissions for these reasons:

This ground fails irrespective of however it is understood.

Ground 20 was:

It was accepted that Grounds 20 and 22 rose and fell together upon the Court’s interpretation of cl 11.2 of the Constitution (Tcpt, 5 August 2025, p 124(50)). The Court has concluded (see [21] above) that no reasons were required to be given. As such, this ground is not made out.

Ground 21 was:

This ground was based on the Wednesbury unreasonableness test: Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223. It was submitted that on the evidence, there was no reasonable basis for the Appeals Committee to find Mr Carmody had done anything other than make enquiries about a topic which could not have constituted unbecoming conduct. The lack of particularisation and failure to indicate specifically what action was engaged in or words were said by Mr Carmody that constituted conduct unbecoming meant that no Appeals Committee properly instructed on the charge and evidence could have found Mr Carmody guilty. Further, the penalty was the most extreme one available and could not be justified, particularly on the evidence presented.

The Club submitted this ground should fail on the basis that the Court should not covertly conduct a merits review. The Appeals Committee’s reasoning was set out in their affidavits and their evidence given under cross-examination. The Appeals Committee carefully considered all the statements they had been provided. The conclusion to be drawn, it was submitted, was the Appeals Committee all agreed Mr Carmody had conducted himself in a manner that caused offence to staff members of the Club. It was submitted this was not indicative of the Appeals Committee acting unreasonably, particularly where they were required to form an opinion as to whether the conduct of Mr Carmody was unbecoming of a member of a private club. There was submitted to be sufficient evidence to make out the charge of conduct unbecoming, and a finding of guilt could not be unreasonable.

As to penalty, it was submitted that for this ground to be established, the Court would have to conclude that once Mr Carmody had been found guilty of conduct unbecoming, it was so unreasonable that no reasonable decision maker could have arrived at the decision to expel the member from the Club. With one exception, none of the Appeals Committee were asked in cross-examination about their process and reasoning regarding penalty. As such, no submissions can be made about their decision being unreasonable. The exception to this was Ms Campbell, who was asked whether the specific words used could have been relevant to the penalty. She accepted it could to a degree, however she stated:

It was submitted she was entitled to consider the evidence in this way. That this hearing was not a merits review was again highlighted in relation to the penalty imposed by the Appeals Committee. Mr O’Neill submitted it was sufficient for the Appeals Committee to have turned their minds to the range of sanctions available to them.

There was no dispute that the Wednesbury unreasonableness principle applies to domestic tribunals, as I set out in Christie v Agricultural Societies Council of NSW Ltd [2015] NSWSC 1118 at [38]:

As to the adequacy of the particulars, this was considered at [44] to [51] above.

The complaint was directed to the manner in which Mr Carmody spoke to a staff member in the Pro Shop and how that made the staff member and other staff feel. The precise words he used were not part of the complaint and not necessary to be determined. The Appeals Committee had to decide whether it accepted Mr Carmody’s version of events or that of the complainant and, more pertinently, the three staff witnesses. On no view could it be said the Appeals Committee’s acceptance of the evidence in the witness statements in preference to Mr Carmody’s evidence was unreasonable.

Similarly, as to penalty, the Court finds that having regard to the witness statements and Mr Carmody’s denial of what occurred, and his apparent lack of remorse or apology, the penalty of expulsion is not Wednesbury unreasonable. Noting that one of the objects of the Club is “to afford to its members the usual privileges, advantages, conveniences and accommodation of a club”, the members of a private club such as the Club are entitled to determine what conduct is and is not acceptable on the part of their fellow members. Mr Carmody’s expulsion is not so unreasonable that no reasonable Appeals Committee could not have imposed that penalty.

This ground fails.

Ground 22 was:

This ground has been addressed above at [15] to [33] and is not made out.

Ground 23 was:

This ground was said to have two bases: that Mr Carmody was denied the opportunity to make submissions as to penalty to the Appeals Committee, based upon his evidence of what occurred, and, even if his account is not believed, Mr Carmody was not able to make any meaningful submissions as to penalty due to the panel failing to provide an indication as to what was the conduct that they had found to establish his guilt. This latter failing was said to occur either by the drafting of the charge, or due to the absence of reasons.

This ground fails for three reasons:

Ground 24 was:

In his closing written submissions, it was accepted by Mr Carmody that Ground 24 was a slightly different reformulation of Ground 23 and would rise and fall with Ground 23. For the same reasons that Ground 23 has failed, Ground 24 is also not made out.

Ground 25 was:

The primary submission on this ground was that the information pack was never given to Mr Carmody and the documents given to him were different to what was before the Appeals Committee. This denial of procedural fairness was said to be made more acute if the Court accepted the evidence of Mr Robertson based on his contemporaneous notes, that the wording of the charge and statements relied upon by the panel were different to that provided to Mr Carmody. It was submitted there was no reason not to accept the evidence of Mr Robertson, who was an honest and forthright witness.

The Club argued that both Mr Collins and Mr Hartry gave evidence that the statements read out in the hearing were the same as the ones they had received previously, and that Mr Carmody did not raise any complaint about inconsistencies at the hearing. Further, all of the statements were read out in the hearing, meaning Mr Carmody had adequate opportunity to comprehend the material and raise a complaint if desired. As such, it was submitted this ground should fail.

The Court rejects Mr Carmody’s complaint in this ground for the following reasons.

The Court has already determined that failure to provide Mr Carmody with the information pack was not a breach of the requirements of natural justice (see [71] to [81] above).

The particulars provided to Mr Carmody in the Notice were:

What is recorded in the final transcript as having been said was:

This is not, in the Court’s opinion, a material difference given that the only evidence at the hearing of a member’s reaction was in the complainant’s complaint.

In relation to the witness statements, the Court accepts the evidence of Mr Collins and Mr Hartry that what was read out was not different to what they had been provided (which was the Notice). The information packs in evidence that were in the possession of Ms Campbell and Mr Collins each include the Notice which contained the complaint and witness statements. No other forms or versions of the statements were included.

The Court has also found (see [42(1) above) that the hearing was conducted in accordance with the run sheet, which includes:

This fortifies the Court in its conclusion that the witness statements read out were those annexed to the Notice.

Mr Robertson’s typed notes record:

Mr Robertson’s evidence did not explain on what he basis he formed the impression (given his repeated use of “appear”) of the differences to which his note refers. That decisively reduces the weight which the Court can give his evidence. It is outweighed by the evidence of the Appeals Committee members, the guide, the run sheet and the final transcript, all of which the Court prefers.

Finally, the Court has taken into account that there is no suggestion that Mr Carmody drew to attention or made any complaint about any alleged differences between what he had been provided and what was read out. He is recorded by Mr Robertson as having “politely told the panel that the statements were false and the facts/information were incorrect”.

This ground fails.

Ground 26 was:

The basis for this ground was again the alleged lack of adequate particulars of the charge. The Club submitted this complaint was one which went to the merits and therefore outside the scope of these proceedings.

This ground fails because:

Ground 27 was ultimately not pressed.

Ground 28 was:

The following exchange occurred in relation to the investigation report:

Where it was conceded there is no evidence that either document was in the information pack, this ground cannot succeed. Nor was there anything like such a document in the information pack. Such documents were apparently provided to the disciplinary committee. Insofar as this ground was, as Mr Hopkins described it, “really a different version of the complaint about the information pack” (Tcpt, 5 August 2025, p 130(10)), it fails for the reasons set out in [79] and [80] above. The Court also accepts the Club’s submissions that nothing turns on the title of the covering chronology and index being “Information Management”.

Ground 29 was:

It was submitted for Mr Carmody that actual bias can be demonstrated by the Appeals Committee in that before making a finding of Mr Carmody’s guilt, a view had been formed that he had something for which he should have been remorseful. This was said to be evidenced by the Appeals Committee’s affidavit and oral evidence. Mr Hopkins argued that because the Appeals Committee considered Mr Carmody should have been remorseful demonstrated that they were biased decision-makers. If the Court was not satisfied this was a case of actual bias, then in the alternative the Court should find it was a case of apprehended bias, referring to Ebner and Kirby.

The Club submitted actual bias is required to be found on the Briginshaw standard for Mr Carmody to succeed: Hall v New South Wales Trotting Club [1977] NSWLR 378 at 396 (per Mahoney JA). Australian Workers Union v Bowen (No 2) (1948) 77 CLR 601 at 630 and Gleeson v New South Wales Harness Racing Authority (1990) 21 ALD 515 at 521 were submitted to be authority for the proposition that apprehended bias is not sufficient to invalidate a decision unless in the limited circumstance where the decision maker may be characterised as the prosecutor. As none of the members of the Appeals Committee could be characterised as prosecutors, actual bias is necessary to be shown. The authorities also demonstrate that harsh words or comments made to or about an accused during the hearing are not, as a matter of course, indicative of bias (Hall at 396).

Mr O’Neill also contended that Mr Carmody’s apparent lack of regret and remorse was relevant to both the charge and the penalty and, as such, could not be an indicator of bias.

This ground fails for three reasons.

The Court accepts Mr O’Neill’s submission set out [126] above. The Appeals Committee was confronted with diametrically opposed accounts of what had happened. It was part and parcel of Mr Carmody’s defence that he had not engaged in the conduct alleged and that therefore nothing occurred for which he should apologise or for which he should display remorse. It was therefore relevant to both stages of the Appeal Committee’s task and any acknowledgement of that contention by members of the Appeal Committee could not (without more) be evidence of bias, whether actual or apprehended. That is sufficient to dispose of this ground.

Furthermore, while I accept its tenor, I would not frame the proposition advanced in [125] without the qualification that generally apprehended bias is not sufficient to vitiate the decision of a domestic tribunal. The dispositive exposition of the principle is to be found in Maloney v National Coursing Association Ltd (1978) 1 NSWLR 161 at 170-171 where Glass JA (Hope and Hutley JJA agreeing) considered the authorities and concluded:

Article 10 of the association in that case was in similar terms to cl 11 of the Constitution. One of the circumstances giving rise to the necessary suspicion of bias (that is to say, a reasonable apprehension of bias) is whether the decisionmaker was also the prosecutor. The category of circumstances is not closed but is necessarily very fact specific. It would, however, not be lightly found given the circumstances which I have emphasised in the passage from Maloney in the preceding paragraph.

The applicability of the consideration identified by Glass JA is illustrated by this part of the submissions:

While it may be assumed that the members of the Appeals Committee “are actively engaged, involved and otherwise invested in the Club”, Mr Carmody has failed to prove any role or conduct of those members that would fall within the category of circumstances sufficient to prove a reasonable apprehension of bias on their part in the context of a domestic tribunal (or at all).

Third, the principles in relation to actual bias were set out in Collier v Country Women’s Association of New South Wales [2018] NSWCA 36 by Gleeson JA (referring to Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98):

There is no evidence (cogent or otherwise) of anything on the part of the members of the Appeal Committee that would represent even a starting point for a finding as serious as actual bias on their part. I repeat my conclusion set out in [11] above.

Ground 30 was:

It was submitted that Mr Carmody’s position of reserving the right to commence legal proceedings was a conventional one. However, the Appeals Committee:

As Mr Carmody was never appraised of these matters, he could not address the Appeals Committee on them. The oral evidence of Mr Harty was particularly relied upon, who said he considered Mr Carmody’s submissions to the Appeals Committee to be aggressive. The members of the Appeals Committee were again thereby submitted to have displayed “some level” of bias (Tcpt, 5 August 2025, p 133(46)).

The Club submitted that the ground failed as a matter of fact. Neither Ms Campbell nor Mr Collins gave evidence that they took into account Mr Carmody’s reservation of his rights. Neither was challenged on this point in cross-examination. Mr Hartry did not consider the reservation of rights in the way contended, but saw it as part of what he considered to be the aggressive tone of the submissions.

In reply, Mr Hopkins submitted this ground was not simply one of bias, but also a failure to afford Mr Carmody a chance to respond in breach of the requirements of natural justice.

In rejecting this ground, I will consider it both as an allegation of bias and a failure to afford procedural fairness in breach of the requirement to give Mr Carmody natural justice.

The submissions conclude:

The starting point is that the Court accepts Mr O’Neill’s submissions that the ground is not made out on the facts. There is no evidence from two of the Appeals Committee members that they took the reservation of rights into consideration at all and they were not cross-examined on the point. As for Mr Hartry, the Court has already accepted (see [80(4)] above) that the reservation of the right to sue the Club was not relevant to his decision to find the complaint against Mr Carmody proven.

Next, as I understand it, the allegation of bias springs from the alleged failure to afford procedural fairness: the members of the Appeals Committee demonstrated bias by not telling Mr Carmody that they were taking an adverse view of Mr Carmody’s reservation of rights. Paragraphs [144] to [146] below will proceed on the assumption (contrary to the evidence and the Court’s finding) that the members of the Appeals Committee in fact did so and did not tell Mr Carmody.

I do not accept that would be conduct sufficiently serious to warrant a finding of actual bias. Nor does is it fall within the limited circumstances that would support a reasonable apprehension of bias (see [130] above).

Nor would such conduct constitute a breach of procedural fairness. It was de minimis. On this hypothesis, the Appeals Committee were taking into account something that he had put into his submissions. While a lawyer might see it as an unremarkable and conventional reservation of rights, to non-lawyers it would undoubtedly appear threatening. On a fair reading, it was intimidating. However, Mr Carmody has not suggested how he was prejudiced or what he would have done had he been told “we take an adverse view of you because of your reservation of your right to sue the Club”. The fact of these proceedings fortifies the Court in its conclusion that he would not have replied to the effect “I withdraw that sentence. I would never do such a thing”.

Finally, insofar as such conduct might relate to the Appeals Committee’s decision on penalty, it is of no avail to Mr Carmody because the Court has found that the Appeals Committee had no obligation to give reasons as to its guilty finding or as to penalty (see [21] above).

Accordingly, this ground is not made out.

Ground 31 was:

This ground complains that Mr Carmody was not informed that the Club’s obligations to the effect of having to provide a safe workplace for employees were being considered by the Appeals Committee and therefore could not address it. This was submitted to demonstrate an extraneous or ulterior motive on the part of the members of the Appeals Committee.

The Club first submitted that the ground was not made out on the evidence. That evidence was that the members of the Appeals Committee had made their decision based on their acceptance of the witness statements in preference to Mr Carmody’s evidence, and that in their view Mr Carmody’s conduct evidenced in the witness statements was unbecoming for the purposes of the Constitution.

Furthermore, while the obligation to afford natural justice required Mr Carmody to be given notice of the charge and particulars, it did not create a requirement for the Appeals Committee to expose every thought they had on a matter, particularly when reasons are not required to be given. There was no obligation to inform Mr Carmody that they had in their minds (if it be the case) the duties of directors, the Club’s legal responsibilities, or the way that as directors of the Club the members of the Appeals Committee may think about their duties in the context of making their decision. The evidence of Ms Campbell was the Club had a duty to protect their employees in the workplace and as a director of the Club, those duties were in the back of her mind. There was also no evidence that the possibility Mr Carmody’s actions may have breached the Club’s workplace safety obligations was considered by the Appeals Committee to be indicative of those actions being more egregious.

Nor had Mr Carmody demonstrated how he had been prejudiced. Had he been told of an alleged concern that his conduct as evidenced by the witness statements raised a serious risk (my emphasis) for the Club under the workplace safety laws (presumably of prosecution by the relevant authority or suit by an employee) he had not shown how he might have assuaged that concern.

The Court accepts the Club’s submissions set out in [150] to [152] above.

Furthermore, the email sent to Mr Carmody on 4 January 2024 (see [34] above) included:

Mr Carmody was clearly on notice from the time he was first advised of the complaint that the Board considered his actions to raise workplace safety concerns. There was no legal requirement for the Appeals Committee specifically to identify to Mr Carmody that, as directors, such a concern was present in their minds.

This ground fails accordingly.

The orders of the Court are: