This dispute is an appeal of a disciplinary process conducted by the Respondent (the Club). The Applicant is a member of the Club (the Applicant). The Applicant was subject to a disciplinary process, following allegations that the Applicant breached the Club’s code of conduct.
A disciplinary committee of the Club, being a panel of three, was convened (DS1) to consider the allegations against the Applicant, and having subsequently substantiated the allegations DS1 issued the Applicant with a sanction (Determination 1).
The Club then determined that it would withdraw Determination 1 due to the procedural fairness concerns.
The Club then re-convened the disciplinary committee, a second panel of three (DS2), which included one panel member from Determination 1. DS2 also substantiated the allegations and issued the Applicant with a sanction (the Determination 2).
This is an appeal of the Determination 2, which was referred to the National Sports Tribunal (NST) by agreement of the Applicant, the Club and the National Sporting Organisation.
The Parties also entered into an Arbitration Agreement which set out the grounds of appeal and scope of the arbitration.
The Applicant challenged the findings and sanction on several grounds, including that the disciplinary committee was functus officio and that the process denied the Applicant natural justice. The Club submitted that it was entitled to recommence the disciplinary process because the first process was affected by a material procedural defect, and that the original decision-maker was not functus officio.
Having considered the Parties submissions, Member Christie upheld the appeal and quashed Determination 2.
The full written reasons of this dispute will not be published. The following is an extract from Member Christie’s written reasons relating to his consideration of functus officio and the denial of natural justice as it relates to a common disciplinary committee member between the two processes:
“(b) Functus Officio
39. The Applicant contends that initiation of the second disciplinary process was not permitted because the Management Committee by that time had exhausted its power to undertake a disciplinary process against him. In particular, he says that once the Management Committee made and communicated Determination 1, imposed a sanction, and advised the Applicant of the available appeal rights, the Respondent had exercised its disciplinary power and became functus officio. According to the Respondent, the proper course was either to allow Determination 1 to stand and permit an appeal (which the Applicant had not declined) or, if it could not lawfully stand, rescind Determination 1 entirely. There was no power permitting the Management Committee to simply remake the decision through the second disciplinary process.
40. The Respondent contends that Determination 1 was not a final and binding arbitral award. Rather, it was “an internal disciplinary determination made under a Constitution which gives the Management Committee continuing responsibility” for, among other things, disciplinary matters involving members. Determination 1 was not reconsidered merely because the Respondent disliked the result or wished to impose a different outcome. Determination 1 was “withdrawn” after the Applicant’s solicitor requested disclosure of the evidentiary material, which caused the Respondent to realise that relevant adverse material had not been formally disclosed to the Applicant before the first determination. The Respondent “considered it better governance to correct the defect itself rather than continue to rely upon a decision it accepted was procedurally vulnerable”.
41. The Applicant says that procedural fairness concerns could, and indeed should, have been addressed through the appeal mechanism already established by the Respondent’s own rules. By withdrawing Determination 1 and commencing the second disciplinary process, the Applicant lost the benefit of the chance to appeal Determination 1 and was subjected to a second disciplinary proceeding resulting in a materially more severe sanction, despite a narrowing of allegations.
42. Both parties referred to the dissenting joint judgment of Jagot and Beech-Jones JJ in CBI Constructors Pty Ltd v Chevron Australia Pty Ltd [2024] HCA 28. The Applicant said that the joint judgment established that the principles of functus officio apply to decisions in which private, not just public, power is being exercised…. (The Respondent said that the joint judgment recognised that a conclusion that a particular exercise of power is complete and that no further power remains must be justified through a close examination of the circumstances and the nature of the relevant power. The Panel accepts the correctness of both these assertions. Beyond that, the Panel finds nothing in the High Court’s decision in CBI Constructors of assistance to the application of the principles of functus officio to the fact of this dispute. That case concerned an arbitration; the Respondent’s disciplinary proceeding was not an arbitration.
43. The principle of functus officio is not straight forward. Put in very simple terms, it provides that a decision-maker is not entitled to remake an earlier decision. There are, however, a number of exceptions to this principle – including, that the parties have consented to the remaking of the decision, that the decision-maker has an express power to remake the decision, and that the decision was affected by jurisdictional error, such that it can be said that there was no decision at all.
44. It is clear that the parties did not consent to the remaking of the decision through the second disciplinary process. The Applicant’s lawyer made a written submission to the Respondent on 4 March 2026, in which the Applicant expressly disputed that the Respondent could institute the second disciplinary process, and requested that it be rescinded.
45. The Respondent appeared to contend that it had an express power to “withdraw” Determination 1 and make Determination 2 by virtue of the Management Committee’s “continuing responsibility” under the Constitution for disciplinary matters. This responsibility made it desirable for the Management Committee to “correct the defect” of the first disciplinary process rather than “continue to rely upon a decision it accepted was procedurally vulnerable”.
46. The Panel accepts that the Management Committee has a continuing responsibility under the Respondent’s Constitution for disciplinary matters, but it does not accept that this continuing responsibility extends to re-determining a matter that has already been determined. Absent an express power conferred upon it to do so, the Management Committee cannot remake a decision which, as is the case here, has been ‘perfected’ (in the sense that there was both a mental process of reaching a conclusion and an objective manifestation of that conclusion: Pintarich v Deputy Commissioner of Taxation [2018] FCAFC 79 at [140]).
47. That leaves the issue of whether Determination 1 was so affected by error that it can be said it was no decision at all. As the High Court explained in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [5], where it is alleged that a decision is so affected by an error that there is in law no decision at all, there are two issues: was there an error; and, if so, was the error ‘jurisdictional’. According to the High Court, in most cases (which includes a case of denial of procedural fairness) an error will only be jurisdictional if the error was material to the decision that was made in fact (LPDT at [7]). An error will be material to a decision if there is a realistic possibility that the decision that was made in fact could (not would) have been different if the error had not occurred (LPDT at [7]).
48. The error in the making of Determination 1 was that relevant adverse material about the Applicant was considered by DS1 but had not been properly disclosed to the Applicant prior to DS1 making its determination. As the Respondent acknowledged, this was a breach of the requirement of procedural fairness. In the Panel’s view, there is a realistic possibility that Determination 1 could have been different if that breach had not occurred. Accordingly, the error was material, and therefore constituted jurisdictional error.
49. Given that Determination 1 was the subject of jurisdictional error, it was in law no decision at all. It follows that no decision had been made as a result of the first disciplinary process. It follows that the Management Committee was not functus officio when it instituted the second disciplinary process.
50. For these reasons, the Panel finds the Applicant has failed to establish that Determination 2 was invalid due to the Management Committee being functus officio.
…
(c) Presence of a common member on DS1 and DS2
74. The Applicant contended that there was a reasonable apprehension of bias by virtue of DS1 and DS2 having a common member. Because that member had been exposed to material which the Respondent later accepted should not form part of the fresh determination, when considered together with the [Responsible Officer’s] extensive involvement, a fair-minded observer could reasonably apprehend that the second process was not independent of the first or free from bias. According to the Applicant: “The contamination of the first process was carried through to the second process through the common committee member.” The contamination was that DS1 was “given other information (that the Applicant was not privy to) about [the Applicant] and a pattern of alleged behaviour ... [which was] the primary reason [the Respondent] chose to restart the process”.
75. The Respondent replied that it “accepts that the first process required correction because relevant adverse material, including victim-side material, had not been properly disclosed [to the Applicant] before the first outcome was issued”. The Respondent then “corrected that defect by withdrawing the first determination, providing the Disclosure Pack, narrowing the scope of the allegation, inviting a further response, and appointing a revised Disciplinary Subcommittee to determine the matter afresh”. The Disclosure Pack contained the adverse evidentiary material, and the Applicant provided written submissions on it through his lawyer. Thus, according to the Respondent: “The corrected process provided the Applicant with the case being considered, the material relied upon, and a meaningful opportunity to respond before the final determination was made.”
76. The Respondent also asserted that, during the second disciplinary process, the common member: (i) “provided background concerning the earlier process and why Rule [xx] of the [Rules] had not been used”; and (ii) “did not make the operative findings or recommendations”, as the two other members of DS2 were responsible for the findings and recommendations.
77. The Respondent did not explain why it felt it was necessary or desirable to have as a member of DS2 a person who had been a member of DS1. The presence of a common member is odd, given that this meant (as Respondent stated) the “[c]ontinuity of one member was matter requiring management”. All that the Respondent said on the matter was that the common member provided background concerning the earlier process and why Rule [xx] of the [Rules] had not been used.
78. It is of note that neither the 23 March 2026 email from the [Responsible Officer] to DS2 titled ‘Instructions and Context’ nor the ‘Terms of Reference and Instructions’ issued by the Management Committee to DS2 make mention of there being a member who was also a member of DS1, let alone how the presence of the common member was to be managed. The Initial DS2 Report stated under ‘Background’: “The bias of the representative that had been involved in the previous process was considered. It was determined that any findings or recommendations would be made by the other two DCS [sic] representatives to ensure due process.” This statement, with the typographical error corrected, was also in the Final DS2 Report. The Respondent contends that: “The common member’s presence does not, without evidence of an effect upon the two deciding members, establish that the final determination was biased or invalid.”
79. The Applicant faces a significant evidentiary difficulty in seeking to prove that the presence of the common member contaminated the consideration of DS2. Not surprisingly, given that the issue concerns what actually occurred when DS2 undertook its deliberations, the Applicant was not able to provide any evidence (documentary or otherwise) that supported its assertion. However, the failure of the Applicant to prove that the common member influenced the decision-making of the other two members is not fatal to the Applicant’s claim when, as is the case here, the claim is of apprehended rather than actual bias. As noted above, for a claim of apprehended bias to succeed the Applicant only need show that a fair-minded lay observer might reasonably apprehend that the decision-maker might not resolve the matter before them with a fair and unprejudiced, or impartial, mind.
80. The first disciplinary process was “imperfect” (to adopt the Respondent’s characterisation) due to the failure to disclose to the Applicant adverse material, which created “a material procedural fairness defect”. The Applicant asserts the first disciplinary process was “contaminated” by that failure and by reference to a pattern of alleged behaviour by the Applicant; an assertion which the Respondent did not deny.
81. The pattern of alleged behaviour referred to by the Applicant is presumably the material that was excluded from the second disciplinary process by the Respondent, which led to the “narrowing the scope of the allegation”. It therefore seems clear that the common member had been exposed in DS1 to material concerning the Applicant which the Respondent did not want considered by DS2. Yet, neither the instructions to, nor the terms of reference for, DS2 make any reference to there being a common member and how the presence of the common member was to be dealt with. While the Initial DS2 Report and the Final DS2 Report state that any findings or recommendations would be made by the two non-common members of DS2, they also expressly recognise “the bias of the representative that had been involved in the previous process”.
82. While the issue is not clear-cut, the Panel is of the view that the presence of the common member on DS2 does give rise to the likelihood that a fair-minded observer might reasonably apprehend that DS2 did not make its decision with a completely impartial mind. The common member had been exposed in the first disciplinary process to material and allegations that the Respondent later accepted should not have been considered, and yet subsequently “provided background concerning the earlier process” to members of DS2. This, occurring in circumstances where there was no express instructions provided to DS2 about how to manage the presence of the common member, would cause a fair-minded observer to apprehend that DS2 did not make its decision – and, in particular, its recommendation about the appropriate sanction for the Applicant’s behaviour – with a fair and unprejudiced mind.
83. For these reasons, the Panel finds that the second disciplinary process was conducted in a manner which amounts to a denial of natural justice, and accordingly determines that Determination 2 should be quashed.”