N332(L)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

BETWEEN:

MICHAEL WATONGAS, PRESIDENT AND A MEMBER OF EASTS RUGBY LEAGUE CLUB
APPLICANT

AND:

SAM KADIRA, PRESIDENT OF THE LAE RUGBY LEAGUE ASSOCIATION
FIRST RESPONDENT

AND:

LUKE KAKAI, CHAIRMAN OF THE JUDICIARY PANEL OF THE LAE RUGBY ASSOCIATION
SECOND RESPONDENT

Lae & Waigani: Bredmeyer J
12 November 1981; 27 November 1981

REASONS FOR DECISION

BREDMEYER J: Easts Lae Rugby Legue Club is affiliated to the Lae Rugby League Association which is in turn affiliated to the Northern Zone Rugby Football League, which is in turn a member of the Papua New Guinea Rugby Football League.

On 15th June 1981 the Lae Association fined the Easts Club K350.00 and on 14th July 1981 suspended the club from the Association. By a notice of motion dated 19th August 1981 the President of the Easts Club seeks declarations that each punishment was invalid and void. On 15th October the case came on for preliminary hearing before Mr. Justice Kapi. The respondents undertook that the General Committee of the Lae Association would hear an appeal by the applicant club against those two decisions. The appeal was heard on 21st October 1981. The General Committee upheld the decisions of the Judiciary Panel but added a rider "that players be free to move around" which I take to mean that players of the suspended Easts Club were free to join and play for other clubs during the two year period of suspension.

There was no appearance of the first respondent before me. The second respondent appeared before me but said he did not wish to address the court. I was satisfied that proper notice had been given to both respondents and that it was in order for me to hear the case ex parte. During the course of the hearing the applicant sought to amend the originating summons claiming a declaration that the decision of the General Committee of the Lae Rugby League Association made on the 21st October 1981 was invalid and void. An affidavit in support of that amendment sworn on 5th November 1981 was filed in court. That amendment and affidavit introduced a new issue into the case which on the documents hitherto filed had been confined to the validity of decisions of the Judiciary Panel given on 15th June and 14th July. In a ruling dated 12th November 1981, I directed that a copy of that affidavit and of my ruling be served on the respondents and that they be given seven days to file an answering affidavit, if they wished to do so. The applicant served copies as directed and no answering affidavits have been filed.

I consider that the common law of England should apply to the dispute, Constitution Schedule 2.2. That common law is not inconsistent with a constitutional law or statute or inappropriate to the circumstances of the country, nor inconsistent with any native custom. The court has power to make declarations, Constitution s.155(4), and is required to give particular attention to the development of a system of principles of natural justice and of administrative law specifically designed for Papua New Guinea, Constitution s.60. The common law is clear that clubs can only expel a member - and I would extend this to suspend a member - if the rules provide a power to do so and if the expulsion or suspension is done in strict conformity with those rules: Vol. 6, Halsbury’s Laws of England, 4th ed., para. 238. Such bodies must also observe the principles of natural justice: de Smith, Judicial Review of Administrative Action, 4th ed., p. 160. Clubs and club members are entitled to seek and get assistance from the courts to enforce their rights. See for example: Enderby Town Football Club Ltd. v. Football Association Ltd. and McKinnon v. Grogan.

I consider that this dispute is to be determined by the Standing Orders and Rules of the Lae Rugby League Association and none other. I consider that the other Constitutions and Rules put before the court by affidavit by the then counsel for the respondent do not apply to this dispute. I do not consider that the Constitution, Standing Orders or By Laws of the Papua New Guinea Rugby Football League apply to this dispute. Clause 19 of that Constitution gives the League power to punish certain kinds of misconduct. By that clause the League can disqualify, fine, suspend etc. a zone or affiliated body but that power is limited to complaints made to it by certain designated bodies. It has no application to the decisions which the applicant is challenging before me, for those decisions were not made by the Papua New Guinea Rugby Football League. The Papua New Guinea Rugby Football League has by resolution passed at a meeting held on 23rd February 1980 purported to establish Minimum Judiciary Penalties for Misconduct. That resolution was passed at an ordinary meeting of the League, it was not an amendment to the Constitution. It cannot expand the powers of the league given by its Constitution. I consider that the resolution does no more than show the kind of penalties the League will impose when a complaint of misconduct is referred to it for adjudication under clause 19 and as guideline for Zones and Associations to follow. As I have said, the misconduct involved in the present case was not referred to the Papua New Guinea Rugby Football League; it was referred to and punished by the Lae Rugby League Association.

Likewise, I do not regard the Constitution of Northern Zone Rugby Football League as being applicable to this dispute. Clauses 25 & 30 of that Constitution give power to a Judiciary Committee to punish misconduct but only when it occurs in a representative match or trial match. There is no evidence that the present dispute arose in such a match or that the Northern Zone Judiciary Committee considered it.

I repeat that the printed rules relevant to the dispute are those of the Lae Rugby League Association, Annexure ‘A’ to the affidavit of Michael Watongas dated 10th August 1981. The relevant Clauses are 8 & 7(d). The powers of the Judiciary Panel are set out in clause 8 which reads as follows:

"8. JUDICIARY PANEL - of three. The Panel shall have the following duties and functions:

a. 	The investigation and determination of charges or reports alleging misconduct on the part of the player, officer or member of a Club or affiliated body including:

i. 	Insubordination or using abusive language or striking or obstructing a referee or officer in the execution of his duty before, during or after a match.

ii 	Inciting a player to commit or persist in committing an act of insubordination or to strike or obstruct a referee or officer in the execution of his duty before, during or after a match.

iii 	Fighting or striking a player or in indulging in foul play during the course of a match.

iv 	Any act for which a player has been ordered from the field during the course of a match.

b.

i 	The Judiciary shall deal with all matters relating to discipline brought before it by the General Committee or by the Secretary upon receipt of a report from a referee having control of a match, or upon an allegation made in writing to the Secretary by an officer of the League or an officer or member or player of any affiliated club.

ii 	The report must state the charge and define particulars thereof.

iii 	Reports must be in the hands of the Secretary not later than 5 pm on the Monday following the fixture.

c.

i 	The Panel shall be guided by the principles of natural justice and good conscience and shall, from the evidence or weight of evidence placed before it and the reliance to be placed thereon, determine its verdict.

ii 	The Panel may suspend any player, officer or person for such period as it thinks fit or may impose temporary or permanent disqualification which shall continue unless and until revoked, altered or reduced by the General Committee.

An appeal lies from the Judiciary Panel to the General Committee of the Lae Rugby League. The right of appeal is contained in clause 7(d) which reads as follows:

"7. INTERPRETATION

(a) ...

(b) ...

(c) ...

(d) The affairs of the Lae Rugby League shall be managed and controlled by the General Committee and except as is expressly provided by these Rules, all other Committees shall report to the General Committee which may accept, reject or amend any report or any recommendation therein contained with the exception of the Judiciary Panel’s decisions."

However, it will hear and determine appeals, protests and disputes against the findings of the Judiciary Panel".

I consider the latter words give a right of appeal from the Judiciary Panel to the General Committee. The power to hear and determine an appeal implies, I think, the power to confirm or dismiss the appeal, to amend the decision or substitute another decision or to refer the case back to the Judiciary Panel for rehearing. I consider that its powers to punish for misconduct are the same as the Judiciary Panel; no more and no less.

I turn now to the interpretation of clause 8. The Judiciary Panel’s powers are given by clause 8; its charter and its powers are confined to that. There is no power in clause 8 to fine anyone. The Panel’s decision on 15th June 1981 to fine the club K350.00 is outside of its powers and hence is void and of no effect. As I have said above, clause 7(d) gives the General Committee no greater powers than the Judiciary Panel. Hence its decision of 21st October 1981, on appeal upholding the fine imposed by Judiciary Panel, is also void and of no effect.

Mr Sevua argued that clause 8(c)(ii) gives no power to the Judiciary Panel to suspend an unincorporated club, like the Easts Rugby League Club, for misconduct. Under that subclause it can suspend "any player, officer or person". I consider "person" there means member of a club, see the words "player, officer or member of Club" in clause 8(a). I consider that I should interpret the words used in the singular to include the plural. Thus clause 8(c)(ii) allows the Panel to suspend "players, officers or members" of the club. It follows, I think, that the Judiciary Panel can suspend all the players, officers and members of a club. The Judiciary Panel should have used that terminology "all the players, officers and members of the Easts Rugby League Club" but I do not regard its reference to the suspending of the Easts Rugby League club as beyond the power of clause 8. I would interpret the reference to mean all the players, officers and members of the club. It is not as if the club is a different legal entity from the members of it (using that term here and hereinafter to include the officers and players). The club is simply a collection of members: see Vol. 6, Halsbury’s Laws of England, 4th ed., para. 205. The legal position would differ if the Easts Club was incorporated. Then it would have a separate legal existence from its members and a suspension of the club would be different from a suspension of all the members.

The powers of the Judiciary Panel are given in clause 8. By subclause 8(b), it must receive a report from the referee having control of a match or of a written allegation made to the Secretary. The report must state the charge and define the particulars thereof. By subclause 8(c)(i) the Judiciary Panel "shall be guided by the principles of natural justice", etc. Those principles have been laid down by the Courts in a number of cases. They include the following:

(1) 	details of the charges must be given to the person charged;

(2) 	he must be given notice of the hearing;

(3) 	he must be allowed to speak at the hearing, call witnesses, question other witnesses who give evidence before it and address arguments to the tribunal.

It is clear from the uncontradicted affidavit of Mr Watongas sworn on the 10th August 1981 that the Judiciary Panel did not comply with clause 8 and the principles of natural justice referred to therein in giving its decisions on 15th June and 14th July. The Easts Club was not informed of the nature and content of the charges and was not given an opportunity to be heard. Those two decisions are therefore invalid. As I mentioned above, the decision of 15th June is invalid for the additional reason that clause 8 confers no power on the Judicial Panel to impose a fine.

I turn now to the hearing of the appeal by the General Committee on 21st October 1981. Was it conducted in accordance with the Standing Orders and Rules of the Lae Rugby League Association and the principles of natural justice? It is clear that some of the principles were correctly observed. Easts Club was notified of the hearing - indeed the notification was given in court by Mr Justice Kapi - the club appeared at the hearing and two lawyers, Mr Sevua and Mr Henao, the two counsel who appeared before me, also appeared before the committee and addressed it. However despite the fact that the lawyers were present and in a position to guide the Committee on the correct procedure, as well as to argue the case for the Easts Club, I regret to say the hearing was conducted in the wrong way. My knowledge of what happened at the hearing comes from the applicant’s uncontradicted affidavit sworn on 5th November 1981. The Judiciary Panel’s decisions of 15th June and 14th July were invalid for the reasons I have given. The General Committee should have declared those decisions invalid. Clause 7(d) does not stipulate the Committee’s powers in detail but I imply from the power "to hear and determine" appeals etc., the power to refer the charges back to the Judiciary Panel to be heard properly or to hear the charges itself. The charges were not referred back to the Judiciary Panel for rehearing. For the committee to have heard the charges itself, it should have heard them afresh in accordance with the principles of natural justice. I consider that those principles meant:

1. 	handing the club the copy of the referee’s report or the written allegations containing the charges and the particulars made under clause 8(b);

2. 	asking the club if it admits or denies the charges;

3. 	if the club denies, then hearing witnesses called against and for the club; and

4. 	at the conclusion of evidence hearing arguments for the club on the evidence.

In summary the General Committee should have conducted a hearing in a fair way going to the substance of the charges. Instead it held a brief hearing not going to the substance of the charges. The General Committee saw its task as simply to uphold or reject the Judiciary Panel’s decisions, and by a resolution the committee "upheld the decision by the Judiciary that the Easts Club be suspended for two years but that players be free to move around". I therefore find that the General Committee’s appeal decision of 21st October 1981 was invalid.

I will make the following declarations:

1. 	That the decisions of the Judiciary Panel of the Lae Rugby League Association of 15th June 1981 and 14th July 1981 affecting Easts Rugby League Club are invalid.

2. 	That the decision of the General Committee of the Lae Rugby League Association of 21st October 1981 affecting the Easts Rugby League Club is invalid.

What happens now? The fine is invalid and, if paid, must be refunded. The Easts Club is not suspended; it remains a member of the Association. I consider that, as there has never been a properly conducted hearing by the Judiciary Panel or the General Committee of the charges against the members of the club, it is open for the Association to bring fresh charges against the club if it wishes to do so. If it does bring fresh charges, I earnestly recommend that it seek legal assistance so that it does not, through ignorance, conduct another abortive hearing.

The applicant seeks costs of his disbursements only. I therefore order that the First Respondent pay K50 costs to the Applicant.

Solicitor for Applicant: J.S. Sevua
Counsel: M. Sevua and L. Henao
No representation for the respondents.