Oei v The Australian Golf Club

The Plaintiff in these proceedings Dr Bing Michael Oei, following a disciplinary hearing on 28 January 2016, was found guilty of ‘conduct unbecoming of a member’ by the Board of Directors (‘the Board’) of the Australian Golf Club Limited (the Defendant) (‘the Club’). The ‘unbecoming conduct’ in question related to allegations that the Plaintiff on two occasions had breached the Rules of Golf (as prescribed by the Royal and Ancient Golf Club of St Andrews) (‘the Rules’) during club competitions. On 5 March 2016, the Board passed a resolution to expel the Plaintiff from the Club.

The Plaintiff seeks declaratory relief on one (or several) of multiple grounds. These include a declaration to the effect that:

In addition to the aforementioned declaratory relief, the Plaintiff also seeks an order setting aside the relevant finding, expulsion and termination.

The Plaintiff also seeks a permanent injunction restraining the Defendant from giving effect to any finding, expulsion and termination, and from denying or restricting the Plaintiff’s access and enjoyment of any privileges of membership of the Club.

In the alternative, the Plaintiff seeks damages in lieu of an injunction, as well as indemnity costs.

The Defendant submitted that the Plaintiff’s claim should be dismissed. It maintained that the Plaintiff’s actions did indeed amount to ‘conduct unbecoming’ due to the particular breach of the Rules, thereby warranting his expulsion.

The Defendant also submitted that determining what in fact occurred on the relevant occasions was a matter for the Board. It was entitled to come to its own assessment of the facts and characterise the conduct, and in particular its own opinion of the seriousness of what had occurred.

The Plaintiff, Dr Bing Michael Oei, practises as a sports physician with an MBBS from the University of Adelaide. He is a fellow of the Australian College of Physical Medicine and has been practising medicine for some 41 years. Currently, he runs a practice specialising in musculoskeletal disorders and ‘golf injuries’ at Mosman, with an additional clinic at Darlinghurst. He became a member of the defendant golf Club on 27 April 2007, at which time states that he paid a joining fee of approximately $20,000.00 plus approximately $4,000.00 for his first year subscription. On or about 6 August 2015 he claims to have paid the Club the sum of $3,508.90 for his 2015-2016 half yearly membership subscription and monthly incidentals.

The Defendant is a golf club located at Rosebery in NSW. It was duly incorporated as a voluntary association of its members for the purpose of playing golf. Subclauses 4(a) and (b) of its Constitution state its purpose as being ‘to promote the game of golf in accordance with the Royal and Ancient Golf Club of St Andrews’, and to provide a golf course maintained for the use of its members. By-Law 20 of the Australian Golf Club By-Laws (‘the By-Laws’) states that the Club takes the playing of golf seriously and members have high expectations of each other.

The current Secretary and Chief Executive Officer of the Club is Mr Robert Selley, who has held the position for the past six years. In his affidavit dated 14 April 2016, he states that on 11 November 2015 at about 5:00pm, he had a conversation about the Plaintiff with a member of the Club named Mr Stuart Cox. At this time, Mr Selley asserts that Mr Cox made a statement to the effect that:

Mr Selley claims to have approached the Plaintiff at approximately 5:30pm on the same day and said to him:

Mr Selley alleges that he approached another member at approximately 5:40pm on the same day, Mr Noel Darnell, who was Mr Cox’s playing partner at the time in question. By way of response to Mr Selley’s question about what he witnessed of the incident, he stated:

At about 6:15pm on 11 November 2015, Mr Selley claims that the Plaintiff telephoned him and said during the course of the conversation:

On 17 November 2015, Mr Selley wrote a letter to the Plaintiff which sought a formal written response from him in reply to the allegations made. In the letter Mr Selley outlined his understanding of what the Plaintiff told him in discussion on 14 November 2015, and highlighted that these facts were in conflict with those stated by the other member.

By way of response, the Plaintiff sent a fax to Mr Selley dated 7 December 2015 in which he stated that he ‘at no stage recalled touching the ball as alleged’.

On 8 December 2015, Mr Selley sent an email to a Mr Darnell, with a copy of the Plaintiff’s fax dated 7 December 2015 attached, asking him to provide his version of the events. Mr Darnell replied with an email which stated that he was playing behind the Plaintiff on the day in question and that he witnessed the situation. He alleged that the Plaintiff’s ball was ‘right of the fairway bunker on the 9th hole either in the tussock grass or the rough between the bunker and the tussocks. It was not in the bunker!’. He further asserts that he ‘saw Michael stoop down and appear to handle the ball, and then proceed to play his shot which ultimately ended up in the water. He subsequently picked up and presumably did not score on the hole’.

On 15 December 2015, Mr Selley wrote to the Plaintiff and indicated that such allegations ‘are not made or taken lightly’ and that the Board would be dealing with it in ‘the appropriate manner’. The Plaintiff was informed again that as his version of events conflicted with those of other witnesses he was requested to attend a meeting with representatives of the Board on 7 January 2016 ‘in an effort to establish what actually occurred and to consider if any further action is required.’

Mr Selley alleges that the Plaintiff telephoned him at approximately 11:30am on 23 December 2015 and during the course of the conversation said:

On 7 January 2016, Mr Selley held a meeting with two directors of the Defendant (Mr Jim Tait and Mr Paul O’Neill) and the Plaintiff. At the meeting, Mr Selley claims that Mr Tait said to the Plaintiff words to the effect that:

The Plaintiff in his affidavit dated 29 March 2016 alleges that on or about 12 January 2016 he received a letter from the Club which enclosed a “Notice of Disciplinary Charge and Hearing”. The charge outlined in the letter alleged he had engaged in ‘conduct that is unbecoming (of a member) of the Club’ (‘the Charge’).

A cover letter signed by Mr Selley in his capacity as Chief Executive Officer (annexed to Mr Selley’s affidavit) indicated that:

The cover letter also stated that ‘[a]s the most recent allegation is now the second incident of a similar nature in a short space of time, the Board has determined that both now be dealt with.’ The Plaintiff was also informed in the letter that pursuant to cl 42(f) of the Constitution, the Board had determined that he be immediately suspended from all privileges of membership until the Board met on 28 January 2016.

Clause 42 of the Constitution provides the Club’s disciplinary process. Subclause 42(a) states that if the Board is of the opinion that a member is guilty of any conduct considered to be unbecoming or prejudicial to the interests of the Club, the Board may suspend privileges or expel such a member. Subclause 42(e) describes the purpose of a disciplinary hearing as being ‘to determine the facts concerning the complaint based on the evidence presented at the hearing’.

The ‘particulars of conduct’ outlined in the charge alleged:

Rule 18 of the Rules is entitled ‘Ball at Rest Moved’. It states at 18-2 that:

Rule 28 is concerned with balls that are unplayable. It states:

Rule 20-2 is concerned with the practice of dropping and redropping. It states:

In his affidavit the Plaintiff claims to have played golf at the Club, on average, about twice a week for the past five or more years, during which time he has had numerous occasions to pick up his golf ball for one reason or another. He claims that as at 12 January 2016, he had no recollection of any particular occasion back in July 2015 when he ‘took a drop’. Conversely, he had a clear recollection that he never failed to take a penalty on any occasion on which he touched his ball and became liable to a penalty under the Rules when he was playing in a competition at the Club (as opposed to a practice round).

The Plaintiff asserts that he is not a very good golfer, and that he ended up in the woodchips more often than most players. His ‘Proposal for Membership’ form indicates that although he joined the Club in 2007, he started playing golf in 2002 and had lessons with a professional from about that time (CB 56).

In the Notice of Disciplinary Charge and Hearing sent to the Plaintiff dated 12 January 2016, his attention was drawn to By-Laws 101, 20 and 802, the latter of which states that termination of membership is the ultimate sanction for breach of the Rules (albeit normally reserved for an ‘extremely serious breach’). He was also supplied with a copy of eyewitness accounts purporting to set out the factual circumstances supporting the particulars of the charge.

On 28 January 2016, the Plaintiff attended the disciplinary hearing which was convened before the entire Board. An agreed transcript was prepared. It will be necessary to make detailed reference to aspects of it in due course.

At the conclusion of the hearing, the Plaintiff was advised that he was found guilty of the matters as charged. He was then asked whether he wanted to make any submissions on penalty. The Plaintiff suggested a reprimand on the basis he promised to abide by the Rules in the future. The Board retired and upon resumption informed him it had decided to terminate his membership. He was given the opportunity to resign but he refused. On 5 March 2016, the Plaintiff’s membership was terminated by the Board.

The Plaintiff claims that his standing in these proceedings arises out of a binding contractual relationship between the Club and himself, formed by the Constitution of the Incorporated Club. He also claims that the loss of membership at the Club would give rise to serious consequences, including loss of enjoyment of club amenities, loss of part of his annual subscription and damage to his reputation. The Club does not contest that he has the requisite standing. There is no doubt that he does have standing to bring proceedings to challenge his expulsion. In Mitchell v Royal NSW Canine Council Limited (2001) 52 NSWLR 242 at 246 [34], Ipp AJA (with whom Mason P and Stein JA agreed) stated that:

The Plaintiff concedes that the question of fairness will depend on the rights of the person affected and the particular tribunal, including the context of its existence and duties, and the relevant legal framework. Here, the Plaintiff contends that he was denied fairness on two primary grounds.

First, the Plaintiff invokes the ‘Wednesbury Principle’ in submitting that ‘acting according to law, and properly informed, no reasonable tribunal could have concluded guilt as charged’.

Secondly, it is claimed that the Club’s breach of its obligation to afford that Plaintiff procedural fairness was not trivial or immaterial, and that such denial of natural justice deprived him of the possibility of a successful outcome thereby warranting a declaration that the decision is a nullity in accordance with Samad v District Court of New South Wales (2002) 209 CLR 140 at [44].

In Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229-30, Lord Greene MR (with whom Somervell LJ and Singleton LJ agreed) famously stated:

There is no doubt that the Wednesbury principle applies to decisions of domestic tribunals. Indeed, as Kunc J has recently pointed out in Christie v Agricultural Societies Council of NSW Ltd [2015] NSWSC 1118 at [38], the principle that a court will interfere in the decision of a domestic tribunal where no reasonable person could have reached the relevant decision or no reasonable person could have honestly reached the relevant decision was long ago enunciated by the High Court in Dickason v Edwards (1910) 10 CLR 243.

As Kunc J observed at [38]:

The Plaintiff accepts that he is not entitled to a merits review of the decision made by the Board (T2-3). Again, that is entirely consistent with views expressed in Dickason v Edwards. See also the decision of the Victorian Court of Appeal in Australian Football League v Carlton Football Club Limited [1998] 2 VR 546 at 549 per Tadgell JA.

A tribunal will very often however have specialised knowledge and experience which it is fully expected to deploy. A tribunal can therefore act upon that knowledge and indeed upon hearsay if satisfied it is credible and a proper opportunity is afforded to the person concerned to deal with any such matters: Australian Workers’ Union v Bowen (No 2) (1948) 77 CLR 601 at 628 per Dixon J. In Australian Football League v Carlton Football Club Limited [1998] 2 VR 546, Tadgell JA remarked (at 557-8) that:

In the same case, Hayne JA remarked (at 569) that:

It is a common feature of proceedings before tribunals that the strict rules of evidence do not apply. Subclause 42(g) of its Constitution so states here. That will generally free the tribunal from legal forms and technicalities such as to provide it with significant flexibility in any procedure it may adopt.

At common law as well it has been held that the rules of evidence do not generally bind tribunals (Maclean v Workers Union [1929] 1 Ch 602 at [621]; TA Miller Ltd v Minister for Housing and Local Government [1968] 1 WLR 992 at [955]; R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; Australian Football League v Carlton Football Club Limited [1998] 2 VR 546).

The Plaintiff’s affidavit evidence was in many respects inconsistent with things he told representatives of the Defendant at various points in time and statements made in correspondence. This is not a merits review and such inconsistency is not to the point from the Court’s point of view. It however was identified as an issue that the Board rightly in my view confronted the Plaintiff with at the hearing on 28 January 2016.

However, for example, in relation to the allegations surrounding the events of 11 November 2015, the Plaintiff says that he denied at the time and continues to do so in his affidavit that he ever moved the ball in the bunker. The problem for the Plaintiff was at no time was it alleged he moved his ball in the bunker.

He then asserted in his affidavit that the sequence of the events was his first shot on the 9th hole ended up in the fairway bunker and his second shot went into the wall of the bunker and bounded out leaving him with what he considered to be an unplayable lie on the grassy bank just outside the rim of the bunker. He then asserted he took a drop and a penalty as he says he was entitled under Rule 28. This of course is to be contrasted with his conversations with Mr Selley when he denied touching his ball at all which he confirmed in his fax to Mr Selley of 7 December 2015.

He further asserted that he dropped his ball about one club length to his right and did not improve his lie. On his fourth shot however he hooked the ball into the lake and abandoned the hole. The latter statement is not controversial.

When cross examined the Plaintiff conceded that either in July or November 2015, he understood precisely what was required of him to effect a drop in accordance with the Rules (T11-12). This obviously had a significant impact on the Board at the hearing when contrasted with what in fact he was alleged to have done.

The first proposition put by the Plaintiff is that there is no allegation of dishonesty or cheating in the charge of ‘conduct unbecoming’ and that there should have been such an allegation. I will return to this aspect of the matter.

The Plaintiff also submits that the only breach alleged is that on two occasions the Plaintiff breached Rule 18. It is further said that there is no allegation that when the Plaintiff ‘took a drop’ he did so in a manner which contravened the rule which governs the correct procedure for dropping his ball (Rule 20-2) or that he dropped his ball from the wrong place (Rule 20-7). The core of the charge as particularised, the Plaintiff submits, is simply moving his golf ball on two occasions.

It seems to me that putting the argument that way entirely misconceives the charge and misses important detail in the particulars of the charge. The first particular alleges that on 25 July 2015, the Plaintiff ‘picked up and threw his golf ball approximately 3 metres’. The second particular alleges that on 11 November, the Plaintiff ‘moved his golf ball by hand approximately 1 metre’. In both cases it was alleged that the Plaintiff did so to secure a playing advantage.

Rule 28, which is applicable if the player deems his ball unplayable, requires apart from suffering a penalty of one stroke that the player ‘drop the ball within two club lengths of the spot where the ball lay’. The Defendant was in the particulars of the charge asserting quite clearly that what the Plaintiff did on these two occasions did not amount to a ‘drop’ within the Rules. Importantly Rule 20-2 provides that when executing a ‘drop’ the player ‘must stand erect, hold the ball at shoulder height and arms-length and drop it’. Therefore independently of whether a player may deem his ‘ball unplayable’ for a drop to be executed it must also be done in accordance with the rules. It is plain and obvious on the face of the charge that what was being alleged against the Plaintiff if proven would not permit his conduct being characterised as having executed a drop on either occasion. The charge in my view was clear and unambiguous.

A further misconception is evident in the Plaintiff’s submission that Rule 18 had no application because what the Plaintiff did somehow or other fell within the exception stated clearly in Rule 18-2. The Plaintiff submits that Rule 18 expressly recognises and permits a player to touch and move his ball where that is allowed elsewhere under the Rules. The misconception exposed by this proposition is that there is no exception in the Rules which would permit a player to throw his ball underarm 3 metres or move it by hand except for example in the event that he was executing a ‘drop’, as prescribed by Rule 20-2.

The Plaintiff further appears to submit that a breach of Rule 18 must necessarily involve an allegation such as dishonesty or cheating. I do not accept that proposition. In my view a breach of Rule 18 might, but on the other hand might not, involve a player acting dishonestly or indeed cheating. It is theoretically possible that a player might lift or move his ball in ignorance of the Rules. If the Club came to the view that the person moved the ball due to ignorance of the Rules that would be one thing. A player may of course deliberately in full knowledge of the Rules move a ball to secure an advantage. Both however infringe the Rules. In any event the charge need not expressly allege dishonesty or cheating. The charge here certainly asserted the Plaintiff acted deliberately, but a failure to employ epithets such as dishonesty or cheating would not render the charge bad.

The Plaintiff then submits that the evidence led by the Defendant through Mr Selley at the disciplinary hearing convened on 28 January 2016 was consistent only with the Plaintiff having deemed his ball unplayable and electing to take a drop under Rule 28(c). I do not accept that as a correct proposition.

In relation to the incident in July 2015 the Defendant had before it on 28 January 2016 an assertion by an eyewitness Mr Grant Booth (which it is accepted had been supplied to the Plaintiff on 12 January 2016). The Plaintiff complains in his submissions that the document was unsigned, undated, redacted and the person remained anonymous during the hearing. However, no particular disadvantage or indeed any was pointed to by the Plaintiff by reason of the form in which the evidence was provided to him. There is no suggestion that the particular identity of the person was of any moment and the Plaintiff on his own evidence does not appear to have made any attempt to identify precisely who the person was. However, what the Plaintiff knew unequivocally from having read the statement was that the person was purporting to indicate that he witnessed the Plaintiff pick up his ball from some woodchips and ‘underarm throw it about 3 meters [sic] onto the grass next to the 17th tee box’. In his submissions the Plaintiff asserts that that evidence was ‘perfectly consistent with Dr Oei having deemed his lie in the woodchips unplayable’. It is submitted that in the absence of any charge of dishonesty and in the absence of any suggestion that he had not taken a correct drop the Plaintiff should have been exonerated by reason of Rule 28(c).

I have already expressed the view that it is not necessary for the purposes of an alleged breach of Rule 18 that the conduct be characterised as either dishonest and/or amounting to cheating. What the Defendant did allege however in the charge was that the Plaintiff had moved his ball in an attempt to improve his lie and/or his line of sight contrary to Rule 18.

It seems to me it was open to the Board to form the view that the account given by the eyewitness if accepted, was entirely inconsistent with the Plaintiff in any sense at all attempting to take a drop. It was open on the eyewitness account that the Plaintiff concluded his ball was not placed in an advantageous position. Rule 28 permits a player to ‘deem’ his ball unplayable as to which he is the ‘sole judge’. This on any view gives the player a significant degree of latitude. But if the deeming process occurs, apart from the penalty of one stroke, the player then has a number of further options available. Here the Plaintiff asserts he was taking advantage of Rule 28(c) which permitted him to ‘drop’ the ball within two club lengths of the spot but not nearer the hole. Under no circumstances does that rule as I have already said permit the player to throw the ball. The Board was entitled to proceed on the basis that the Plaintiff understood this rule, and what his options were if he deemed the ball unplayable. It had an eyewitness account asserting that the Plaintiff had thrown his ball 3 metres underarm. That was entirely inconsistent with him taking a drop. The Plaintiff did not it seems to me in any sense seriously contest that factual assertion at the Board hearing.

At the Board hearing, when initially asked about his attitude to the ‘charges’ the Plaintiff asserted that he was a relatively new golfer having only started learning the rules and playing since 2007 (CB 15). On that basis the Plaintiff asserted that that should lead to him being seen as ‘inexperienced’. He denied any suggestion that he had done anything in a dishonest fashion. But when pressed further as to what his attitude to the charges was, his response was that he may have erred in throwing the ball rather than dropping it (CB 16). He purported to call in aid Rule 28 and asserted that he was taking a ‘relief’. He was pressed as to whether he pleaded guilty to the first particular to which he clearly it seems to me indicated that he was (CB 16).

The Board was entitled reasonably to proceed upon the basis that in relation to the first particular of the charge the Plaintiff was not in the position to deny that he had thrown the ball underarm three metres as alleged. On one view, at no time did he ever suggest he had attempted to take a drop as it is strictly understood. Further he did not assert at the hearing that he did not understand what was involved in a drop. Indeed his response at the very end of the disciplinary hearing shows he knew exactly what was required.

When he gave evidence before the Court he acknowledged that he understood the difference between throwing a ball underarm and a drop at the time he was in the hearing before the Board (T11). The Board was entitled to proceed upon the basis he well understood the difference. It was therefore open in my view to the Board to conclude and determine accordingly that in July 2015 when faced with a disadvantageous lie and even assuming he deemed his ball unplayable, he deliberately decided instead to throw his ball underarm some three metres on the basis that that would provide him with an advantage by improving his lie. They were entitled reasonably in the circumstances to reject his assertions to the contrary.

Alternatively and more seriously the Board was in my opinion entitled reasonably to come to the view that he did not go through any process of deeming his ball unplayable. Indeed they could reasonably have concluded he never gave it a thought, but just immediately resorted to an underarm throw. They were reasonably entitled in my view to come to that view because, knowing the difference between a drop and an underarm throw and aware of his obligations under Rule 28, he apparently made no bona fide attempt at a drop, but immediately resorted to an expedient.

In relation to the incident said to have occurred on 11 November 2015, the Plaintiff submits that the eyewitness account of the club captain Mr Cox (presented as unsigned, undated and redacted and anonymous) was also consistent with the Plaintiff having deemed his lie to have been unplayable.

The Defendant submits that the evidence however of Mr Cox included the assertion amongst other things that the Plaintiff ‘appeared to place his ball to the right’. It was further stated that the ball had been moved about an arms length to the right. Another account of the same incident was to the effect that the person ‘saw Michael stoop down and appear to handle the ball…’. The Plaintiff however submits that again there was no suggestion of cheating or dishonesty or a suggestion that he did not make his drop correctly. It is uncontroversial on this hole that the Plaintiff’s ball ended up in the water and he did not score the hole.

The Plaintiff submits that he could not be in breach of Rule 18 because what he did was permitted by Rule 28 and his conduct on no view could be said to be ‘unbecoming’. At the hearing on 28 January 2016, he said he was initially not sure whether his second shot was still in the bunker due to a mental blank (CB 18). Having read the allegations however he was then able to tell the Board that his second shot went into the rough just above the bunker and he regarded the ball as unplayable, so he chose to take a drop and move it within an arms-length to the right (CB 18). He stated unequivocally that when he did move the ball he was well aware of Rule 28 and that he was taking a drop (CB 18). The Plaintiff knew what he was to do physically if he was executing a drop. He did not seriously deny the accounts given as to what he was seen doing which were quite inconsistent with him attempting to execute a drop. He was seen by the Club’s captain who would be intimately familiar with the particular physical stance to be adopted by a player attempting to execute a drop. This was corroborated by a second eyewitness. As noted by the Defendant in its submissions, those versions do not even remotely describe a person attempting to execute a drop. One version had the plaintiff bending down and the other had him stooping down. The Board was entitled to reject the Plaintiff’s account and find reasonably that he deliberately flouted the Rules again to place himself in a more advantageous position. Again for similar reasons the Board could reasonably reject that he had deemed his ball unplayable pursuant to Rule 28 at all.

I should add that in my view, it was not for the Defendant to assert that he had attempted but failed to take a drop correctly. The Defendant was perfectly entitled to formulate the second particular in the way that it did. It was for the Plaintiff then to assert a positive defence by seeking to invoke Rules 28 and 20 which he did. By the time he got to the hearing he certainly expressly invoked Rule 28. But his inability to contest the particular factual assertions left open a real question of whether he was bona fide attempting to take a drop on either occasion. That was a live issue it seems to me for determination by the Board.

However it is clear from the transcript of the hearing that certain members present believed at least they were listening to the Plaintiffs’ assertion that on the second occasion he was taking a drop, for the first time (CB 18). When the plaintiff was pressed on why he had not made it clear prior to the hearing that he was taking a drop he ventured a number of explanations. He was asked whether his playing companions had been informed that he taken a drop. The Plaintiff made the following positive assertion (CB 19):

It was put to the Plaintiff expressly that on the very day the incident had occurred he was asked what had happened and gave a different story shortly after he had in fact played the hole.

When asked again whether he had told the other three players he was with he responded that he thought that he might have spoken to ‘Athol’ (CB 20). When pressed further he indicated that he had not asked any of the persons he was playing with to give evidence. The Plaintiff then proceeded to say that he was not sure whether they had seen all the things that had occurred (CB 20).

The Plaintiff was then asked whether he wanted to call any witnesses or question any person. The Plaintiff clearly elected not to call any witness himself. The Board then decided to call Mr Cox, one of the eyewitnesses into the hearing room.

Prior to that occurring, it was put to the Plaintiff that he was ‘probably guilty’ of the first charge and he was asked effectively how often in taking a drop did he throw a ball (CB 22). He responded by indicating that it was not very often but because he found himself on the day in the woodchips and because he was concerned about holding the players up and out of frustration he may have thrown the ball knowing that he would not score anyway. That concession seems to me to be an acceptance by the Plaintiff of the accuracy of the account of the eyewitness (CB 22).

Mr Cox joined the hearing and the Plaintiff asked Mr Cox some questions. It was put to Mr Cox that the Plaintiff had said that he took a drop of an unplayable lie near the bunker. Mr Cox responded that he had seen the Plaintiff move the ball without appearing to have notified anybody that he was in fact asking for a drop (CB 23). The Plaintiff insisted that he had not dropped the ball closer to the hole in any event.

The Plaintiff was given a further opportunity to indicate whether he wanted to call any witnesses or ask any further question to which he answered in the negative.

Importantly in conclusion he was asked the following question by Mr Hunter (CB 24):

It is reasonable I consider to infer that Mr Hunter postured so as to effect the physical stance assumed by a player executing a drop pursuant to Rule 20-2.

Leaving aside whether for the first time or not, that the Plaintiff was asserting that in relation to the November incident he had deemed his ball unplayable and executed a drop from shoulder height, the Board as I have already observed had two eyewitness accounts which were quite contrary to that assertion. Indeed when the matter was first raised with the Plaintiff he had failed to indicate that he had dropped the ball from shoulder height and appeared to concede as has allegedly been witnessed that he simply moved the ball an arms-length to the right. He knew the difference between moving the ball and a drop on 28 January and yet it was not until he was asked the express question towards the conclusion of hearing that he indicated quite precisely what he had done was a ‘shoulder’ height drop. It would be fully expected as I have already said that Mr Cox and the other eyewitness would, if they had observed the Plaintiff execute a drop, have said so. They too like the Plaintiff would be expected to know the difference between a drop in accordance with the Rules and simply moving the ball as alleged.

The Board was therefore confronted with conflicting factual accounts. The Board was well able to make its own mind up as to which of those versions was more credible and which they accepted. Whilst it is accepted by the Defendant that there is no rule requiring a player to notify any other person that he has deemed his ball unplayable and hence proposes to execute a drop (T51), it must be said that it would normally be obvious if that person were playing with others and that was occurring. What was critical here though was a conflict between two very starkly different accounts. The Plaintiff at one point of the hearing asserting unequivocally that he had deemed his ball unplayable and taken a drop precisely in accordance with the Rules. The eyewitness accounts on the other side however denied that as a possibility. It was the Plaintiff attempting to call in aid some form of corroboration by asserting that he had told ‘them’ when he caught up to his playing companions what he had done. Somewhat remarkably however he then conceded that he had not asked anyone to come along to be a witness for him so as to corroborate his story.

In the circumstances the Board was entitled reasonably to be highly suspicious of the fact that he had indeed told anyone as he was unable or unwilling to produce anyone to support him.

It seems to me that on the basis of the accounts the Board had of what occurred on 11 November it was reasonably entitled to form the view that the Plaintiff had deliberately breached the Rules and accordingly reject any suggestion by him that he was intending to execute a drop consistent with the Rules, or for that matter had in truth deemed his ball unplayable as alleged.

In his written submissions the Plaintiff raises a number of quite specific arguments with which I now propose to deal.

First it is submitted that under cl 42(a) of the Constitution, the Board may only discipline a member for conduct ‘unbecoming’ which must be construed as conduct of a ‘scandalous or unlawful’ variety. Clause 42 of the Constitution allows for the expulsion of a member if his or her conduct is considered to be ‘unbecoming’. The term is not defined in the Constitution or in the Rules.

The Defendant submits the term should not be given a narrow meaning and should be construed in context. It submits that the ordinary meaning of ‘unbecoming’ encompasses ‘not becoming; not appropriate; unsuited … improper; unseemly … unattractive/inappropriate’, citing the Macquarie Dictionary (6th ed). The Oxford Dictionary of English (2nd ed) similarly provides that ‘unbecoming’ merely means not fitting or appropriate (p 1914). The Defendant submits that the playing of a game of golf, indeed in a tournament, in disregard of the Rules is capable of amounting to ‘conduct unbecoming’. The Defendant also submits that the phrase ‘fit and proper’, is a similar notion likewise to be viewed in context. For example, in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 388, Toohey and Gaudron JJ stated that:

I do not regard the Plaintiff’s construction of ‘unbecoming’ as a tenable proposition. The term ‘unbecoming’ obviously has to be seen here in the context of the game of golf and the Rules. Whether the conduct could be so described will turn precisely upon what the conduct is and to what extent it might be said to be for example, trivial, unintentional or intentional. Conduct might require no more than an explanation as opposed to expulsion. It seems to me that a deliberate flouting of the Rules would reasonably be in context regarded as conduct unbecoming. As a matter of language or construction there is no warrant for the narrow construction proposed by the Plaintiff.

The second proposition advanced is that By-Law 802, when taken in conjunction with By-Law 803, on a proper construction leads to the proposition that the Board had no jurisdiction to proceed to terminate the Plaintiff’s membership absent legal advice prior to any decision on penalty. It was accepted the Board did not obtain legal advice prior to deciding to terminate the Plaintiff’s membership.

However, at the hearing of this matter Senior Counsel for the Plaintiff indicated that he did not press the way in which the matter had been articulated in written submissions. Rather, By-Law 803 was to be seen only as a powerful indicator of what the Board should arguably do. In the ultimate it was put simply that it was a matter which the Board may or may not in their discretion choose to take into account prior to expelling the member (T54).

This part of the Plaintiff’s submission was therefore no longer pressed as a matter of jurisdiction but rather a matter for the discretion of the Board. Senior Counsel did not make any attempt at all although it was uncontroversial that the Board had not obtained legal advice before it expelled the Plaintiff to suggest in any way that the Board’s discretion had miscarried by reason of its failure to do so. In my view therefore that matter can be put to one side.

Thirdly the Plaintiff submits that he was denied procedural fairness by reason of the way in which the disciplinary hearing was conducted on 28 January. The particulars under this heading are as follows ( I have adopted the lettering from the Plaintiff’s submissions):

In addition to the above particulars relating to procedural fairness, the Plaintiff also submits that on the basis of the charge and the evidence before the Board the decision was so unreasonable that no disciplinary tribunal acting reasonably could so find. In addition it is submitted that to expel the Plaintiff from the Club on the basis of the charges and the evidence was also a decision so unreasonable that no reasonable tribunal could have so found.

In my view these propositions are likewise without any substance. As is plain from what I have already said it was open on the evidence before it for the Board to determine that on the two occasions the Plaintiff deliberately moved his ball in a manner contrary to the Rules so as to gain a playing advantage.

In my opinion, I consider not only was it reasonable for the Board to so find, but having done so to regard his breaches as deliberate and serious and amounting to conduct unbecoming sufficient to warrant expulsion.

In my view the Plaintiff has not exposed any legitimate basis to have this Court interfere with the Board’s finding on 28 January, and his ultimate expulsion from the Defendant.

I would invite the parties to prepare short minutes to reflect these reasons and I will hear the parties on costs if necessary.