HENDERSON v BLENHEIM WORKINGMEN’S CLUB AND LITERARY INSTITUTE [2019] NZHC 2081

HENDERSON v BLENHEIM WORKINGMEN'S CLUB AND LITERARY INSTITUTE [2019] NZHC 2081[22 August 2019]IN THE HIGH COURT OF NEW ZEALANDBLENHEIM REGISTRYI TE KŌTI MATUA O AOTEAROATE WAIHARAKEKE ROHECIV-2018-406-037[2019] NZHC 2081UNDER the Judicial Review Procedure Act 2016IN THE MATTER OF judicial review of the exercise of a statutorypower of decisionBETWEEN ROBERT JAMES HENDERSONApplicantAND BLENHEIM WORKINGMEN'S CLUBAND LITERARY INSTITUTERespondentHearing: 5 August 2019Counsel: S F Gaines for applicantB A Fletcher and J S Marshall for respondentJudgment: 22 August 2019RESERVED JUDGMENT OF DOBSON JContentsIntroduction [1]The Club [4]Mr Henderson [7]The complaint [10]Process dealing with the complaint [18]The rules [41]Interpretation of the rules [44]Adequacy of process [61]Relief [75]Costs [82]Introduction[1] This judicial review challenges the lawfulness of decisions by the respondent(the Club) to suspend the membership of the applicant (Mr Henderson), and then toexpel him from the Club.[2] Mr Henderson pleaded that the Club misapplied the provisions in its rules indetermining those which should apply to regulate the disciplinary process against him.Alternatively and separately, he pleaded that there were numerous deficiencies in thesteps taken, when measured against the appropriate rules of natural justice that shouldhave been complied with, when he was suspended and then expelled.[3] The Club's response was that it correctly interpreted the provisions in its rulesthat applied, and that the procedures it adopted, when viewed overall in light of thecontext, constituted adequate compliance with the obligations of natural justice.The Club[4] In 2000, the Blenheim Workingmen's Club and the Marlborough Club merged,and they were subsequently joined by the Marlborough Returned Servicemen'sAssociation Incorporated. The combined entity operates as Clubs of Marlborough,under a permanent charter originally granted to the Blenheim Workingmen's Club in1889. The Club has approximately 6,000 financial members and is administered bythe Club's management committee (CMC).[5] The current version of the rules of the Club is not dated. The rules stipulate:The registered name of the Club shall be the "Blenheim Workingmen's Cluband Literary Institute". The generic name of the Club shall be Clubs ofMarlborough working under the Charter of the Blenheim Working Men'sClub.[6] Various sectional interests within the Club, relevantly the pool section and thesnooker section, operate with a measure of autonomy, but subject to the overallsuperintendence by the CMC.Mr Henderson[7] Mr Henderson returned to Blenheim in 2010 after living away from the regionfor 34 years. Over that time, he was involved in organising pool and snooker activities,including competitions, in various contexts.[8] On his return to Blenheim, Mr Henderson became a member of the Club andhas involved himself in organising activities in its pool and snooker sections. Heclaims to have stimulated additional activities in those sections of the Club, resultingin increased participation in various events. He was twice nominated as sectionadministrator of the year, winning that accolade within the Club in 2016.[9] Mr Henderson has also been involved in organising pool competitions outsideof the Club and has arranged super league pool competitions, with tournaments beingheld at the Club's premises. He has undertaken a range of fund-raising activities byseeking sponsorship for tournaments, both for Club activities and for cue sportactivities outside the Club.The complaint[10] On 3 May 2018, Mr Roger Mitchell, the owner of a Blenheim motor lodge,called at the Club to raise a concern. In 2017, he had paid $250 for advertising for hisbusiness that was to be displayed in the Club. He complained that he could not seeany sign promoting his business and the receptionist with whom he spoke told himthat, if that was the case, it amounted to fraud.[11] Mr Lee Davis, the chief executive officer of the Club, was advised of thecomplaint by the receptionist. In the following days, Mr Davis had a telephoneconversation, then a meeting, with Mr Mitchell. Mr Mitchell provided Mr Davis witha copy of the invoice for $250 dated 5 October 2017 from Cue Power PromotionsIncorporated, which he had paid by direct credit to a bank account for thatorganisation. He believed he was supporting the Club and possibly its pool andsnooker sections, and that the signage would be erected above the table lights in thecue sports area of the Club.[12] Mr Davis made an enquiry of the president of the snooker section as to whetherthe arrangement was with the snooker section. The secretary of that section respondedby email, advising that the invoice for sponsorship related to signage over the pooltables and not snooker. That email was copied to the president of the snooker sectionand to Mr Henderson. The same evening, Mr Davis received an email from thepresident of the snooker section, who advised him:Spoken with Bob [Mr Henderson] and can confirm relates to superleaguepool. Bob has the signage ready to go but states needs to lower the lights tofit 2 signs per table. He states will speak to the plaintive [sic].[13] In a report to the CMC dated 26 June 2018, Mr Davis described the nextdevelopment:The next Morning Bob rang me. He said that he had just been down to seeRoger [Mr Mitchell] and had shown him the sign and told him the story abouthaving to adjust the chains on the lights to enable two signs to be fitted pertable. Bob assured me that it was a simple process, which was work currentlyin action and that Roger was satisfied with his response.[14] Mr Davis also told the CMC that Mr Mitchell confirmed dialogue withMr Henderson, who had assured Mr Mitchell that his sign had been on display in thesports lounge all the time. However, Mr Mitchell had called at the Club several timessince that dialogue and had been unable to find his sign on display.[15] Mr Davis's report stated that he had searched the New Zealand IncorporatedSocieties Register and could find no record of any organisation called Cue PowerPromotions Incorporated, the entity named on the invoice which Mr Mitchell had paid.[16] Mr Davis's report to the CMC concluded:These funds have not been raised on behalf of our Pool Section with themonies banked going into what looks like a personal account and permissionhas not been granted for a non-Club Section in particular to use the Clubsname and facilities to raise funds outside of the Club by offering to providelong term in-house advertising.[17] On the same day as Mr Davis's report to the CMC, it met and resolved: that the President request a meeting with Bob Henderson and the fullCommittee to explain the relationship and standing that Cue PowerPromotions Incorporated has with the Clubs of Marlborough.Process dealing with the complaint[18] The day after the CMC's resolution, the president of the Club, Mr GordonHerkt, wrote to Mr Henderson:At our monthly meeting of the Committee the advertising in the Sports Loungewas discussed and as a result you have been requested to attend a meeting ofthe Committee in the Boardroom 10 July at 5.30pm[19] Two days later, on 29 June 2018, Mr Henderson responded to Mr Herkt. Heexpressed surprise that he should be asked to answer questions about advertising,implied criticism of those administering the Club for not supporting sports loungeactivities and stated that he had a lot of work to do in organising forthcomingtournaments. He ended the letter stating:Before I attend any meeting I would like in writing the matters you want toquestion me on and then I can bring the appropriate people to the meeting toanswer your questions if we can. Could you please outline in writing yourquestions you would like answered.[20] At the president's request, on 6 July 2018 Mr Davis responded toMr Henderson's 29 June 2018 letter, clarifying that the 27 June 2018 letter had beenwritten at the request of the CMC and had been addressed to Mr Henderson in hiscapacity as president of the Club's snooker section. The letter continued:The reasons for your reluctance to attend the meeting of the ClubsManagement Committee have been noted and will be tabled and addressed bythe Management Committee at its meeting on Tuesday to determine theoptions available to it.In the circumstances your attendance at the meeting will not be required.[21] The minutes of the CMC meeting of 10 July 2018 record a resolution in respectof Mr Henderson in the following terms: that Pursuant to Rule 11.1(c) of the Clubs Rules, the Committee, havingconsidered various matters concerning his conduct relating to signage andsponsorship in the Clubs Sports Lounge together with making patently falsestatements in his capacity as President of the Clubs Snooker Section whencorresponding with the Clubs Executive Committee and CEO concerning thelack of support for the NZ Masters Snooker Competition held at the Club overEaster weekend, suspends Robert Henderson's membership at the Club,effective midnight 10 July 2018, until such time as the Committee has furtherinvestigated all matters relating to his misrepresentations, inducements anduse of documents to entities concerning signage and sponsorship and thereceipt and accounting of monies received for signs and sponsorship and othermonies purporting to be for the benefit of the Club and or its Adjuncts and issatisfied that the relevant matters have been resolved and or remedied. Duringhis suspension, Mr. Henderson is totally excluded from the Club's premisesand Club activities until the relevant matters have been dealt with by theCommittee.[22] As well as Mr Henderson's conduct in relation to the signage, the resolutionrefers to a second matter that was relied on by the CMC in suspending Mr Henderson'smembership. The CMC considered Mr Henderson was responsible for a letter ofcomplaint to the CMC about the lack of support for a tournament that the snookersection of the Club had held there, and CMC members were offended that the letter ofcomplaint included statements they considered to be patently false.[23] The same meeting of the CMC moved that Mr Davis as CEO should furtherinvestigate the sponsorship arrangements in the sports lounge, arrange separatemeetings with both the pool and snooker sections and that a sub-committee of theparent body was to discuss the financial arrangements associated with the advertising.[24] Advice of Mr Henderson's immediate suspension was conveyed in a letterdated 11 July 2018, quoting the resolution from [21] above. That letter was handed toMr Henderson by Mr Davis on 11 July 2018.[25] On 13 July 2018, Mr Henderson gave notice that he wished to appeal hissuspension, citing rule 27 of the Club's rules. He recorded that the queries in his letterof 29 June 2018 had not been answered,1 and that the letter of complaint in relation tothe tournament had been written collectively by the snooker section of the Club andnot constructed by individuals.[26] On 19 July 2018, the president wrote to Mr Henderson requesting hisattendance at a meeting of a sub-committee that had been appointed by the Club toinvestigate his involvement in the sale of advertising for the sports lounge. The dateindicated was 30 July 2018 at 9.00 am.1 Mr Henderson's 13 July 2018 letter incorrectly referred to the earlier one as being dated 27 July2018.[27] Mr Henderson responded the following day, 20 July 2018. He objected thatthe Club had not followed correct procedures, and recorded that if relevant informationhad been supplied he would have had no problem attending the meeting. He requestedthat the meeting be scheduled earlier "so the whole situation can be resolved quickly".Mr Henderson's letter also sought information about who was on the sub-committee,who had carried out the preliminary investigation and as to the nature of complaints.He also sought access to the information that had been collected.[28] On 23 July 2018, Mr Davis responded to Mr Henderson's 13 and 20 Julyletters. He advised that there was no right to appeal the suspension because it had notbeen ordered by a judicial committee of the Club. As to reasons for suspension,Mr Davis cited the complaint from the local business sponsor about solicitingsponsorship for signs that had not appeared and for which the Club had not receivedmoney. The CMC considered this was conduct that brought the Club into disrepute.He referred to the suspension as facilitating an orderly investigation into the allegedconduct, and suggested such an investigation "may have been avoided if you hadattended the committee meeting on 10 July". Notably, there was no repetition of thereasons that appeared in the resolution passed at the 10 July 2018 meeting, attributingresponsibility to Mr Henderson for patently false statements made when the snookersection corresponded with the Club.[29] The procedures adopted by the Club were guided by advice from its vicepresident, Mr Jason Clouston, a retired barrister and solicitor. He completed anaffidavit in the proceeding explaining his approach to the application of the Club'srules, including his interpretation of them as affording grounds for appointment of asub-committee to consider a complaint made by a non-member. Mr Clouston'sanalysis distinguishes the circumstances of complaints made by members, for whichcases the rules provide that a judicial committee is to be appointed, with consequencesincluding a right of appeal.[30] Mr Henderson attended the meeting on 30 July 2018 with Mr Gaines as hissolicitor, and his brother, Graham Henderson, as a support person. In an affidavit insupport of the application, Graham Henderson describes how the meeting was delayedfor some five minutes after all of the committee who they had been told would attendwere present, it having been noted that Mr Henderson was attending with a lawyer.Mr Clouston then arrived. On Graham Henderson's recollection, before the presidentopened the meeting, Mr Clouston pointed successively at him and then at Mr Gainesand said words to the effect that "you and you, have no right to be at this meeting andyou will not be saying anything – alright". Graham Henderson describesMr Clouston's behaviour as very rude. Mr Henderson's own affidavit describesMr Clouston's actions as rude and aggressive. After exchanges about theinterpretation of the Club rules, Mr Henderson deposes that the rest of the meetingwas "difficult".[31] Mr Clouston's affidavit describes his involvement in the 30 July 2018 meetingin apparent contrast to Mr Henderson. He acknowledges his introductory challenge,describing it as being "in what I regarded as a light-hearted way". Mr Cloustonannexed a short note he made the same day as his record of the meeting, whichincludes an introductory statement:Did a [M] – whack around the chops to unsettle; worked a treat.2[32] I asked Mr Fletcher if it was fair to interpret this part of Mr Clouston's note asa reference to his using an aggressive and unexpected tactic at the outset of the meetingto unsettle the party to whom it was addressed. Mr Fletcher accepted that was a fairinference to draw.[33] Reflecting on all the affidavit evidence about the meeting, it is not possible toaccept that Mr Clouston's opening salvo was a "light-hearted" one.[34] All of the members of the sub-committee representing the Club at the 30 July2018 meeting who have completed affidavits attribute to Mr Gaines anacknowledgement along the lines that Mr Henderson was a liar, and that Mr Gaineshad to check the truth of matters with others. Both Messrs Henderson in theiraffidavits in reply deny that such a statement was made by Mr Gaines. Both make thepoint that had there been any such statement, it would necessarily have resulted interminating the instructions to Mr Gaines. No explanation is offered as to any2 Mr Clouston's note specified the name of a well-known legal practitioner. That practitioner'sidentity is not relevant to the narrative.statement that Mr Gaines might have made, intending to convey something else butwhich could have been misconstrued. Mr Gaines having elected to continue asMr Henderson's counsel, it was inappropriate to hear from him on the point.[35] On 3 August 2018, Mr Gaines wrote a lengthy letter to the president of theClub protesting at inadequacies in the procedure that had been adopted. He describednumerous respects in which Mr Henderson had been prejudiced by the absence ofparticulars of the complaint and alleged non-compliance by the Club with therequirements of its rules.[36] Two and a half weeks later, on 21 August 2018, the Club responded in a lettersigned by the president. Although the letter stated that the Club had not sought legaladvice, it is apparent from the terms of at least some of its content that the letter hadbeen drafted with the assistance of someone with legal qualifications. In summary,that letter:• strongly defended the procedure that had been adopted and treatedMr Gaines' narrative of what had transpired at the 30 July 2018 meeting as"disingenuous deceptive and self-serving";• defended the procedure of appointing a sub-committee and the adequacyof the opportunity that had been afforded to Mr Henderson;• advised that sub-committee members treat the purported acknowledgementby Mr Gaines that no reliance could be placed on the truth of whatMr Henderson said as a sufficient admission that Mr Henderson'sdeceptive conduct had brought the Club into disrepute, but no attempt wasmade to relate any such acknowledgement to alleged falsehoods about anyparticular aspect of the conduct concerning the Club;• included a passage warning, "in the interests of fairness", that there wereother matters the CMC would take into account when it met to considercontinuing Mr Henderson's suspension or his expulsion from the Club;• referred to a Christchurch Press article reporting that Mr Henderson hadserved a prison sentence for misappropriating $250,000 from theCanterbury Pool Association, and asserted that Mr Henderson had notdisclosed, as required in the membership form, that he had served a prisonsentence;• characterised Mr Henderson's authorship of the April 2018 letter on behalfof the Club's snooker section complaining at lack of support as deceitfuland fraudulent;• rejected as false Mr Henderson's claims that the sign for Mr Mitchell'smotel business had always been located in the Club's sports lounge,waiting to be hung once certain electrical work had been completed;• detailed a number of unsuccessful searches for the sign and that a closed-circuit surveillance system had recorded an identified individual bringingthe sign into the sports lounge early on 28 July 2018;• disputed Mr Henderson's reason for not having hung the sign where heclaimed that he was waiting for further electrical work to be done so as tobetter fit the sign above the lights on the pool tables whereas, after the issuehad arisen, the sign had been erected without any additional electrical workbeing done; and• recorded that a search had revealed no incorporated society named CuePower Promotions Limited or Cue Power Promotions Inc, the name usedin the invoices Mr Henderson had issued.[37] The letter also recorded the analysis of the bank statements that had beenprovided by Mr Henderson for the Cue Power Promotions entity where amountscharged to sponsors and paid into that account appeared consistently to have been paidout forthwith to Mr Henderson personally. In circumstances where the Club allegedhe had only raised the sponsorship funds on representations that the money was forthe benefit of the Club, payment out of those funds to himself allegedly precluded hisclaiming that the funds were raised for the Club.[38] The list of matters did not purport to be exhaustive. They were those that wereidentified "to date". Nor did the letter provide any procedure for response orsuggestion for a meeting to afford an opportunity for Mr Henderson to respond.[39] Mr Gaines did respond to the letter on 28 August 2018, concluding with anacknowledgement that the Club's CMC was meeting that evening and requesting thatall correspondence be addressed for Mr Gaines' attention. Mr Gaines refutednumerous factual matters in the Club's 21 August 2018 letter and objected that, to theextent new matters were raised, the Club had to provide Mr Henderson with aprocedure to respond to the allegations made.[40] The CMC met that evening, 28 August 2018. The minutes record a motionthat, having heard recommendations of the sub-committee appointed to investigate the"Bob Henderson allegations", the committee expel Mr Henderson. The motion wascarried unanimously. In submissions, Mr Gaines made the point that there is noevidence that his letter of 28 August 2018 was indeed considered by either the sub-committee or the CMC before the expulsion decision was made. As an instance ofthat, his letter had requested that all correspondence be addressed to him, whereas thefollowing day advice of Mr Henderson's expulsion was sent directly to Mr Hendersonin the letter from Mr Davis. In an undated circular apparently published on4 September 2018, the CMC publicised the expulsion of Mr Henderson, citing as thereason his having procured the payment of sponsorship monies for signage that hadnot been authorised by the Club. Thereafter, further correspondence ensued, and thepresent proceeding was commenced on 16 October 2018.The rules[41] The rules provide separately for immediate suspension, and for expulsion andsuspension. Rules 10.1 and 10.2 provide grounds for immediate suspension and theprocedure that is to be adopted. That is not relevant in the present case except to theextent that, after defined employees have summarily suspended a member, theprocedure for a judicial committee to consider the suspension relies on the rules in themore general expulsion and suspension provisions (rule 11).[42] The relevant parts of rule 11 are:11. EXPULSION AND SUSPENSION11.1 Grounds for expulsion or suspension: A Member shall be liable tobe expelled or suspended from the Club if he or she:(a) breaches these Rules;(b) is convicted of:(i) bookmaking; or,(ii) a Crime (as defined in the Crimes Act 1961) for whicha penalty is imposed; or,(iii) an offence which, in the opinion of the Committee, islikely to prejudice any charter or licence held by theClub;(c) in the opinion of the Committee, brings the Club intodisrepute; or,(d) is found by the Committee to have committed any of the actsset out in Rule 10.1.11.2 Procedure for expulsion or suspension:(a) Any Member may notify the Committee if he or she believesa Member may be liable to expulsion or suspension pursuantto Rule 11.1.(b) Within three (3) working days of receipt of such notice, or ofa Member being immediately suspended pursuant to Rule 10,the President or in his absence the Vice President, inaccordance with Rule 11.2(c) shall appoint a JudicialCommittee and set a date for that Committee to consider thenotice or suspension.(c) The Judicial Committee shall comprise of the President orVice President and four (4) other Members from theCommittee.(d) Such a Meeting shall be held within two (2) weeks of receiptof the notice, or of the suspension.(e) The Judicial Committee must give the Member concerned atleast seven (7) days' written notice of that Meeting, informinghim or her of:(i) the nature of the complaint; and(ii) how the complaint will be heard;(iii) his or her right to appear and be heard at that Meeting;and(iv) the process of the Meeting.(f) After the Member concerned has had the opportunity to beheard and if the complaint is found to be proven, the JudicialCommittee may elect to:(i) expel him or her; or(ii) suspend him or her for a determined period, or until aparticular event.(g) Any Member expelled or suspended shall have the right toappeal under Rule 27.(h) Any expulsion or suspension shall be advised to theCommittee and entered in the Minutes of the Committee,together with the name of the Member concerned.(i) Notes of the Disciplinary Meeting shall be kept until theperiod of Appeal has expired. If no Appeal is lodged the notesmay be destroyed.11.5 Any Member expelled from the Club shall not be eligible for re-election to membership unless a period of at least twelve (12) monthshas passed since the date of expulsion, and a sixty six percent (66%)majority of Committee Members then in office vote in favour of suchre-election.[43] The position of the CMC as provided for in the rules is also relevant:13. COMMITTEE OF MANAGEMENT13.1 Committee Members: The general business, management andcontrol of the Club shall be vested in and conducted by a Committeecomprising:(a) a President;(b) a Vice-President;(c) Three Trustees(d) a Treasurer;(e) Seven Committee persons(f) Two Members appointed by the Marlborough ReturnedServices Association (Inc).(g) And the Immediate Past President (if any) who shall holdoffice for a period of one year only, in an ex officio rolewithout voting power.13.13 Powers: The Committee shall, subject to any limitations imposed bythese Rules, have the power to:(a) exercise all the powers and authorities of the Club;(b) do such other acts and things as it deems necessary orexpedient for carrying on the business of the Club;(c) form standing or ad hoc committees for the purpose ofexercising its duties, authorities or powers;(d) delegate its duties, powers and authorities to the ChiefExecutive Officer or to a committee formed under clause13.13(c); and(e) co-opt any person to assist with its functions.13.14 Duties: Committee Members shall at all times:(a) render every assistance to the President, Vice-President andstaff of the Club to maintain order and to prevent infringementof the Rules, Regulations or By-Laws or the terms of anycharter or licence which may from time to time be granted tothe Club;(b) in the execution of their duties, exercise fiduciaryresponsibility and act in the best interests of the Members.27. BOARD OF APPEAL27.1 A Board of Appeal consisting of five (5) Members shall be elected ateach Annual General Meeting. Committee Members shall not beeligible for membership of the Board of Appeal.27.2 The Board of Appeal shall hear and decide any appeal lodged by aMember or Members against any decision of the Judicial Committeeentailing suspension or expulsion in accordance with the following:(a) Any member being suspended or expelled who wishes toappeal must give notice in writing to the Chief ExecutiveOfficer within seven (7) days of the date of such suspensionor expulsion, stating the grounds for appealing.(b) Within forty-eight (48) hours of receiving such notice, theChief Executive Officer shall convene a Meeting of the Boardof Appeal.(c) The Board of Appeal shall re-hear the case but shall not admitfresh evidence, except where an application has been made tothe Committee for a re-hearing and has been refused.27.3 The decision of the Board of Appeal shall be final.28. DISPUTES28.1 Except as otherwise provided in these Rules, every dispute in relationto these Rules between a Member or persons claiming through aMember and the Club or a Committee Member shall be decided bythe Judicial Committee and the decision shall be binding andconclusive on all parties without appeal.Interpretation of the rules[44] The Club's rationale for the procedure it adopted is that the procedure forsuspension or expulsion in r 11.2 did not apply in this case because the process wasnot initiated by a member notifying the CMC of a belief that another member may beliable for suspension or expulsion pursuant to r 11.1. In the absence of a complaintfrom a member, the Club contends it was proper for the CMC to exercise powers underr 13.13 to form an ad hoc committee for the purpose of exercising the powers ofsuspension or expulsion.[45] For the Club, Mr Fletcher acknowledged that the consequence of applying therules in this way meant that Mr Henderson did not have the advantage of theprocedures specified in r 11.2(b) to (i), including the right to appeal from an adversedecision (provided for in r 11.2(g) and subsequent r 27). Mr Fletcher submitted thatthe Club did not have any ability under the rules to appoint a judicial committee, butcould exercise the power in r 11.1 to expel or suspend a member, inter alia, if thecommittee formed the opinion that conduct had brought the Club into disrepute underr 11.1(c).[46] Mr Fletcher submitted that the rules operated as a contract between individualmembers and the Club, that the Club was constrained to act in accordance with therules and that members dealt with the Club subject to the rights and obligations in therules, having to live with the consequences of that.[47] The consequence of this approach is that where a member is faced with acomplaint advanced by another member which, if upheld, might lead to expulsion orsuspension, the member in jeopardy has the protection of the procedures specified inr 11.2. In contrast, if the Club accepts a complaint from a non-member, then(presumably subject to some overriding implied obligation of fairness) the Club canelect to deal with the steps up to making a decision on expulsion as it sees fit, and themember in jeopardy has none of the protections in r 11.2. Mr Fletcher did not concedethat this outcome revealed any inadequacy or gap in the terms of the Club's rules.[48] For Mr Henderson, Mr Gaines' primary argument was that the provisions ofr 11.1 to 11.6 are the only provisions that can apply to any initiative to expel or suspenda member (except for the narrower circumstances for immediate suspension underr 10). If the circumstances of the concerns about Mr Henderson's conduct could notbe brought within r 11, then the Club could not exercise powers to expel or suspendhim and the process the Club purported to adopt was ultra vires its rules. On thisapproach, the powers in r 13.13 could not be used to form an ad hoc committeebecause those powers were subject to limitations imposed by the rules and the relevantlimitation was the requirement for all initiatives to expel or suspend a member beingundertaken pursuant to the powers in r 11.[49] In oral argument, I took Mr Gaines to acknowledge that his interpretationwould not have left the Club powerless to deal with its concerns about Mr Henderson'sconduct. Mr Gaines suggested that the reference to "Member" in r 11.2(a) could beinterpreted in context to extend to a non-member where such person had a relevantinterest in complaining about a member's conduct. That is an artificial and forcedapproach which would be unlikely to prevail if challenged.[50] Mr Gaines also submitted that, given the compelling interest for all concernedto have the provisions of r 11 regulate the process, the Club might reasonably haverecognised the gap in r 11.2(a) and invited Mr Henderson to concur that the complaintfrom Mr Mitchell was to be treated as if made by a member to enable the appropriateprocedure to apply. Predictably, Mr Gaines indicated that Mr Henderson wouldreadily have agreed to that.[51] A further alternative would have been for the chief executive, as recipient ofthe complaint, to invite a member (for example one of the committee who wouldthereafter not be able to deliberate on it) to adopt Mr Mitchell's concerns so as toqualify as a member complainant.[52] There are deficiencies in the evidence as to how the procedure came to beadopted. It is explained only in Mr Clouston's affidavit, sworn many months after theevents. There is no contemporaneous written record of advice to the Club as to theprocedural options open to it. Nor is there a resolution recording reliance on r 13.13to appoint an ad hoc committee, or a written acknowledgement of the reasons why theprocedures in r 11 were not to be adopted or adapted. None of the communications toMr Henderson advised of a decision not to follow the provisions in r 11.[53] Further, it is not explicitly clear when responsibility for considering the matterpassed from the CMC to an ad hoc committee. The Club's letter of 6 July 2018uninviting Mr Henderson to the 10 July 2018 meeting made it clear that the matterwas being dealt with by the CMC. The decision to suspend was made unanimouslyby the CMC, as confirmed in the letter to Mr Henderson of 11 July 2018.[54] The formal terms of the 10 July 2018 resolution to suspend Mr Hendersoncontemplated that further investigation would be undertaken by the CMC.3 Theminutes of that same meeting do record the appointment of a sub-committee to discussthe financial arrangements associated with advertising arrangements in the sportslounge, but that task bears no relationship to a disciplinary inquiry intoMr Henderson's conduct.[55] The president's request for Mr Henderson to attend the 30 July 2018 meetingdescribes it as a meeting of "a Sub-Committee appointed by the Clubs of MarlboroughCommittee to investigate your involvement in the sale of advertising for the SportsLounge".[56] Mr Davis explains in his affidavit a process of further investigation by a sub-committee which appears to have been managed by him. Mr Davis deposes that it had3 Quoted at [21] above.originally been intended that Mr Henderson be invited to a further meeting at whichthe CMC would consider the sub-committee's views on possible expulsion. However,he, along with the president and vice president, considered that Mr Henderson'sperformance at the 10 July 2018 meeting had been characterised by so many untruthsthat they considered it "neither prudent nor reasonable that the Clubs' [sic]Management Committee be subjected to another such performance". Accordingly, theCMC considered an oral report from the sub-committee at its 28 August 2018 meeting,unanimously resolving to expel Mr Henderson. The minutes of that meeting provideno detail of the matters discussed.[57] I find there was a relevant deficiency in the Club's rules. I do not accept thatthose responsible for drafting such rules would have distinguished between complaintsmade by members, and those made by non-members. In the latter circumstance, themember who was the subject of the complaint was vulnerable to an ad hoc procedureby a non-specified body not obliged to adopt the conventional procedure that wouldapply if the complainant was a fellow member.[58] I consider it highly doubtful that the powers of the CMC under r 13.13 couldbe used to form the ad hoc committee on terms permitting the procedure that wasadopted. It is not necessary to make a finite determination on this. However, areasonable reading of the scope of r 13.13 in the context of all of the rules suggeststhat the limitations imposed by other rules would include a limit on the CMC's powerto form an ad hoc committee for disciplinary purposes that did not adhere to the basicrequirements of fairness that would always apply under r 11.2 if the complainant was,as the drafters of the rules contemplated, another member.[59] In the circumstances confronting the CMC, the minimum standard required indischarging the Club's obligations to the prejudiced member was to adopt a procedureby analogy with that provided for in r 11.2. There were significant deficiencies ofprocess up until the decision to expel and also a denial of the right of appeal which,by analogy, ought to have been afforded.[60] Before considering the appropriate remedy for an expulsion that has occurredinconsistently with the rules of the Club, and in the event that I have erred ininterpreting the relevant rules as I have, it is appropriate to review the substance ofMr Henderson's complaints about the deficiencies in the process adopted, relative tothe appropriate measure of obligations of natural justice.Adequacy of process[61] Of a larger number of pleaded criticisms of the process, Mr Hendersonadvanced argument on the alleged failures by the Club to notify him of the case he hadto meet, to provide particulars and to give him an adequate hearing.[62] Dealing first with the 10 July 2018 decision to suspend Mr Henderson'smembership, the president's letter of 27 June 2018 gave no warning thatMr Henderson might be vulnerable to suspension or other adverse consequences. Hewas simply asked to attend a meeting to discuss advertising in the sports lounge.Mr Henderson requested provision of details of the questions to be asked prior to themeeting, on the basis that he would then bring the appropriate people to address thequestions. The chief executive's reply treated the terms of Mr Henderson's request asevincing "reluctance to attend the meeting" and, in apparent reliance on that perceivedreluctance, advised that his attendance at the meeting "will not be required".[63] The result is that Mr Henderson was suspended from membership at a meetingfrom which he had been uninvited, without having the terms of any charge orcomplaint about his conduct as a member being put to him. The procedural rules forexpulsion or suspension in r 11.2 of the Club's rules are, at the least, a reasonableproxy for the standard of procedural fairness Mr Henderson was entitled to expect,irrespective of whether that was the rule that ought explicitly to have applied. Noneof the four elements of the procedure set out in r 11.2(e) were complied with.Accordingly, the suspension decision was made in breach of standards that oughtreasonably to have applied.[64] A theme in the Club's defence of its conduct is that Mr Henderson knew fullwell what the CMC wanted to talk to him about, so it was unnecessary to provide himwith either the terms of a complaint, the identity of a complainant, or the process thatwould follow up to the point of a decision adverse to him on suspension or expulsion.[65] Shortly after Mr Mitchell had made his complaint to the Club, Mr Hendersonhad been in touch with him and gave his explanation as to why the signage had not yetbeen displayed. The Club appears to attribute sufficient knowledge to Mr Hendersonof what its concerns were because he had provided Mr Mitchell with an explanationabout the delay in displaying the signage shortly after Mr Mitchell raised his concernswith the Club. That assumption that Mr Henderson must have known what thecomplaint was does not excuse the lack of a timely warning identifying the nature ofthe complaint, confirming that it was Mr Mitchell's complaint and specifying toMr Henderson in advance what the process and likely consequences were.[66] In submissions defending the judicial review, it was asserted thatMr Henderson appeared reluctant to front up and explain his conduct, and that hechose not to attend the informal meeting on 10 July 2018. There is no reasonable basisfor either assertion. The statement in Mr Davis's 6 July 2018 letter thatMr Henderson's attendance was not required certainly did not present him with aninvitation that he had chosen not to accept.[67] Mr Fletcher also submitted that if this aspect involved a breach of therequirements of natural justice, it was technical and had only a temporary effect forwhich any remedy would now not be useful. During the hearing, I invited counsel toreflect on the characterisation of suspension from a voluntary organisation in John vRees, which involved the legality of suspension of a member of a political party.4Megarry J observed that in relation to the rules of natural justice, no distinction is madebetween suspension and expulsion:5 in essence suspension is merely expulsion pro tanto. Each is penal, andeach deprives the member concerned of the enjoyment of his rights ofmembership or office. Accordingly, in my judgment the rules of naturaljustice prima facie apply to any process of suspension in the same way thatthey apply to expulsion.[68] Mr Fletcher responded to this reference by seeking to distinguish suspensionfrom a political party as having graver consequences. I do not agree that there is amaterial distinction. In the present context, Mr Henderson was immediately excluded4 John v Rees [1970] Ch 345; [1969] 2 All ER 274.5 At 305.from the premises and his reputation with all those in the Club and familiar with itwould be tarnished by the implication of a wrong-doing sufficient to warrant hissuspension.[69] The suspension was said to be in order to facilitate further investigation, butno material distinction can be drawn between the nature and scope of steps takenbefore 11 July 2018 and those taken thereafter, which might suggest the Club wouldbe impeded in such investigation by Mr Henderson's continued presence as a member.[70] The 11 July 2018 advice to Mr Henderson of grounds for his suspension citedtwo reasons. First, his making patently false statements in correspondence with theClub and, secondly, his misrepresentations, inducements and use of documents toentities concerning signage and sponsorship, and the receipt and accounting of moniesreceived for them. Thereafter, without formulating a charge, on 19 July 2018 the Clubpresident requested Mr Henderson's attendance at a meeting on 30 July 2018.Mr Henderson sought clarification in advance of that meeting as to the personnel ofthe sub-committee, who had carried out the preliminary investigation, the nature ofthe complaint, and who the complaint had come from. He also requested access to theinformation that had been collected.[71] Mr Davis responded to two letters from Mr Henderson, including that one, on23 July 2018. He described the nature of the complaint without identifying thecomplainant. Soliciting sponsorship by having signage made for the sports loungewhich had never appeared but for which money had been paid was treated as sufficientfor the committee to determine that the complaint and the surrounding circumstanceswere on the face of it conduct by Mr Henderson that brought the Club into disrepute.The email purported to add an additional reason for suspension, as follows:To facilitate an orderly investigation by the Committee into the allegedconduct, that may have been avoided if you had attended the CommitteeMeeting on the 10th of July.[72] The implicit criticism of Mr Henderson for not appearing at the meeting, whenhe had in essence been firmly uninvited, is extraordinary. On the terms of Mr Davis's23 July 2018 email, non-attendance was a factor held against Mr Henderson indeciding to suspend his membership.[73] On 21 August 2018, the Club added additional matters that it indicated wouldform part of its deliberations on whether Mr Henderson was to be expelled from theClub. On Mr Henderson's behalf, Mr Gaines wrote in reply to that on 28 August 2019emphasising that the Club must provide Mr Henderson with a procedure to respond tothe allegations. No invitation was extended and the expulsion decision was made onthe recommendation of a sub-committee at the CMC's meeting that evening.[74] On the affidavit evidence, I find that a primary reason why Mr Henderson wasnot offered the opportunity to answer the expanded allegations was the perceiveddeficiencies in his performance (and that of his solicitor) at the meeting on 30 July2018. Given the range of additional matters on which there were contested issues offact, I am satisfied that it breached any basic obligations of natural justice to proceedwith the expulsion decision without affording Mr Henderson an opportunity to beheard.Relief[75] Mr Henderson sought declarations that on various grounds the decisions tosuspend and expel him were void, and that his membership rights were thereforereinstated.[76] Mr Gaines accepted that Mr Henderson could not seek relief that precluded theClub from undertaking a reconsideration of his membership, provided that it did so incompliance with the Club's rules and the obligations to respect the extent to which therules of natural justice are appropriately applied.[77] Grounds are made out for quashing the challenged decisions.[78] In the event that I determined that grounds for review were made out, Icanvassed with counsel during the hearing the appropriate scope of relief. Theaffidavits completed, in particular those by the president and vice president, containan exceptional level of vitriol about Mr Henderson. Their thorough denigration of himmeans that any repeat disciplinary process over which they exerted control would bechallenged on grounds of demonstrated bias and potentially pre-determination.[79] Given that the disciplinary process is primarily contractual, it is beyond thescope of the present proceedings to provide specific directions to the Club that wouldmandatorily require it to adopt a specific procedure to the extent that the appropriateprocedure deviated from the Club's rules, as correctly applied.[80] However, all involved ought to share a commitment to reach a finaldetermination on the issue as expeditiously as possible. To achieve that, if the Clubwishes to pursue the matter, then it would be prudent to adapt the procedures forsuspension and expulsion in r 11 of its rules, and to recognise, given the history of theprevious determination of the issue, that the president and vice president ought toexempt themselves from any sub-committee formed to deal with the matter. At leasta majority of those nominated to deal with it would desirably be members who did notparticipate in the sub-committee that reported to the CMC in August 2018. Further, itwould be prudent for the Club to invite an appropriately qualified outsider, such as alegal practitioner with no connection to either side, to act as chair of the deliberativecommittee.[81] It will be a matter for the Club and its advisers, but a failure to adopt aprocedure reflecting these concerns is likely to leave the Club vulnerable to furtherchallenge by way of application for judicial review.Costs[82] Mr Henderson is entitled to costs on the judicial review. If costs are unable tobe agreed between counsel, I will receive memoranda (limited to six pages in length):• on behalf of Mr Henderson within 20 working days of delivery of thisjudgment; and• on behalf of the Club within 15 working days of service of thememorandum on behalf of Mr Henderson.Dobson JSolicitors:Lundons Law, Blenheim for applicantGascoigne Wicks, Blenheim for respondent