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LEGAL FOCUS

committee subsequently determined the constitute unreasonable or oppressive court may apply a more flexible standard
appropriate penalty for each charge was conduct. The committee of the to volunteer committees but the member
expulsion. Sturt Pistol Club was a collection of must, at a minimum, be afforded
In determining Mr Kenny’s volunteers who made a procedural error proper notice, time to prepare and a
application for reinstatement the in bringing a hearing forward. The fair hearing. Further, a committee must
Magistrate found that, in bringing the error was found not to be an attempt comply with its rules/ constitution when
hearing of the charges forward without to ambush a member or achieve a dealing with a member. These rules
proper notice, Mr Kenny had been predetermined outcome, and ultimately may relate to the powers the committee
denied procedural fairness. While at first fairness was achieved when the member can exercise, the rights of a member,
instance this finding may seem to fail was provided with proper opportunity the procedure for making the decision
to account for Mr Kenny’s unequivocal to answer the charges before the voting at first instance and any subsequent
refusal to attend any hearing of the membership. appeal procedure. The rules may even be
charges, the fact remained that Mr critical to the operation of a committee’s
Kenny only received 15 minutes warning WHAT A VOLUNTEER resolution, as was the case with the
by telephone of a new hearing date COMMITTEE MIGHT Clare Association’s decision to grant a
which proceeded in his absence. This CONSIDER BEFORE MAKING A temporary membership.
could not be considered fair notice or DECISION TO EXPEL Given the real risk of a claim
opportunity to prepare. These cases turn on their facts for relief or litigation arising out of
Mr Kenny then decided to appeal and no exhaustive check-list can be decisions concerning a member, if
pursuant to the review provisions in the extracted from the reasons. What is clear a committee is unsure as to how to
Sturt Pistol Club’s constitution. This though is that the courts’ rightly regard proceed it might pay to obtain advice or
saw his charges and penalty determined expulsion as a serious step and will assistance either privately, from public
by the entire voting membership at an intervene if proper procedure has not advisory services, or from any parent or
appeal meeting which was convened been followed. umbrella association under which the
consistent with the process outlined Fairness is a central consideration. A club operates.
in the constitution. Mr Kenny made
submission to the voting members
present about the charges and penalty.
A vote was held with the overwhelming
majority voting against Mr Kenny’s
appeal and in favour of his expulsion.
It was found by the Magistrate, and
confirmed on Review before the District
Court of South Australia, that any
unfairness arising from the committee’s
initial determination was remedied by
a properly conducted appeal hearing.
The decision of Judge Davidson on
Review considers the authorities on
circumstances where a procedural error
can be remedied by a subsequent hearing.
Relevant to sporting associations is the
principle that, where a second hearing
is conducted by a body consisting of the
same members or a larger group, a fair
hearing is capable of curing the earlier
error. Understanding and complying
with the appeal provisions is therefore
not only important to ensure fairness on
appeal, but may also address any error
made by a committee at first instance.
Evident in this case is what Justice
Nicholson describes in Ridgway as
the notion of fairness as central
to determining what conduct will

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