Bornecrantz v Queensland Bridge Association Incorporated [1999] QCA 182

1 99.182 COURT OF APPEAL McMURDO P THOMAS JA DERRINGTON J Appeal No 3562 of 1999 LEIV RUBEN ANDERS BORNECRANTZ Applicant and QUEENSLAND BRIDGE ASSOCIATION INCORPORATED Respondent BRISBANE ..DATE 24/05/99 JUDGMENT -- 1 of 15 -- 2 JUDGMENT THE PRESIDENT: This application is for leave to appeal from the judgment of Mr Justice Chesterman on 5 August 1998 refusing the applicant's application for judicial review. The applicant seeks a stay of those proceedings and also applies for leave to appeal from the costs order below. The applicant applied to Mr Justice Chesterman pursuant to part 5 of the Judicial Review Act 1991 for an order removing and/or quashing any judgment, order, conviction or other proceedings taken by the respondent in relation to the applicant by its committee at meetings held on 22 and/or 23 July 1998. No point has been taken as to whether or not this was a proper matter to be dealt with under the Judicial Review Act of 1991. The applicant, who represented himself here and below, is an enthusiastic and talented bridge player. The respondent is an incorporated association which has, as part of its constitutional objects, the promotion and advancement of card games, particularly duplicate contract bridge in Queensland. The respondent organises Red Master point tournaments. The respondent participated in a Red Master point tournament organised by the Moreton-Bribie Bridge Club Inc at Bribie Island on 27 and 28 June 1998. The applicant was not a member of the respondent -- 2 of 15 -- 3 JUDGMENT but entry to these tournaments was open to anyone holding an approved Australian Bridge Federation system card. The applicant's manner in which he recorded his written bids infringed the respondent's regulations. The applicant refused to write "NT" for no trump on his bidding sheet and instead wrote one "N" and a large "T" covering the entire bidding sheet. Mr Ward asked him to abide by the QBA regulations and the applicant wrote four more large Ts all over the bidding pad. The applicant indicated he did not have to follow Queensland regulations and Mr Ward cancelled the remainder of the five board match. The applicant and his partner withdrew to the bar to discuss the matter, and at the start of the next round the applicant continued to mark his bidding sheet contrary to QBA regulations. Mr Ward then cancelled the next four boards. At the start of the next match the applicant again declined to follow QBA regulations and he and his partner were disqualified by Mr Ward. The respondent's regulations at page 3 required that "Written Bidding" necessitated the use of "NT" for no trumps and not "N". The applicant claims that this regulation did not apply to Red Master Point events and that the appropriate applicable regulations were contained at pages 17 and 18 of the respondent's regulations. He -- 3 of 15 -- 4 JUDGMENT submitted these regulations applied to the exclusion of the earlier regulations at page 3. This submission is plainly incorrect. "Written Bidding" as referred to at pages 17 to 18 of the regulations clearly refers to the "Written Bidding" as detailed at page 3 of the regulations. One is not mutually exclusive of the other. The applicant has pointed to the Laws of Duplicate Contract Bridge and the ABF Master Point Scheme, sixth edition, January 1998, but has not demonstrated any conflict between the respondent's regulations and those rules. His Honour dealt with this argument below. His Honour found that the Moreton-Bribie tournament was convened: "on the express basis that it was a red master point congress approved by the respondent to which the respondent's rules applied. This is made clear from the evidence of the convener, Mr Davidson, and the tournament director, Mr Ward. It is confirmed by the entry form which the applicant himself exhibits to his material ... Mr Ward announced that the respondent's rules in their entirety were to play to the tournament and the applicant commenced to play on that basis. The applicant cannot now be heard to say that the convener might have arranged his tournament on that basis but some but not all the respondent's rules should apply." Mr Ward reported to the respondent on the incident. The respondent's regulations provided, inter alia, that the respondent: "has a standing Conduct and Ethics committee which will conduct hearings on reports of improper behaviour by players at a QBA event -- 4 of 15 -- 5 JUDGMENT or an event conducted under the aegis of the [respondent]. Players concerned will be invited to attend a meeting of the committee, accompanied if so desired by a friend or a lawyer, to hear the reports and respond to them. The committee will observe the principles of natural justice in all of its proceedings. It is empowered to reprimand, suspend or expel the player from all or some QBA events or event conducted under its aegis. Players will have the right to appeal to a full meeting of council against any such decisions." As a result, the respondent's secretary wrote to the applicant on 9 July 1998 in the following terms: "The Queensland Bridge Association has received a report re your alleged misconduct at the Moreton Bribie Congress Swiss Pairs Congress on Saturday, June 27 1998. A copy of the report is attached. A QBA ethics committee has been established to investigate the report. The committee will consist of Mr Keith McDonald, Mrs Clare Hyne and Mr Tony Jackman. They will be meeting at the Queensland Contract Bridge Club at 6 p.m. on Thursday, 23 July 1998. The committee requests you to attend this meeting, however it's not necessary or compulsory. If you cannot attend, please let me know. The committee will hear the case in your absence. If you are attending and intend to bring any legal support, please advise. Our legal advisers will be in attendance. Mr Pride will be attending the meeting as a witness. After hearing the evidence the committee, if you are found guilty, is empowered to reprimand, suspend or expel a player from all or some QBA events or events conducted under its aegis." The letter was sent by registered mail to the applicant care of Cards Bridge Centre, 156 Albion Road, Windsor, not the address of the applicant but the address of a facility run by a friend of the applicant, Mrs Butts. The respondent's secretary believed the letter would come to the -- 5 of 15 -- 6 JUDGMENT applicant's attention and knew that the applicant had left the address on the respondent's records but was not aware of the applicant's current address. That letter was returned unclaimed. In an affidavit the applicant stated: "On or about 9 July 1998 the respondent claims to have sent a registered letter to the applicant. The applicant remembers being handed a card at some time by his client, Ms Joan Butts. The card indicated that registered claims could be collected at the post office. The applicant, by deliberate policy, does not accept registered mail unless content is known. In this case there was no reason to believe that to collect a registered posted article addressed to the address of a client would be a benefit to the applicant." The respondent had an e-mail address for the applicant and transmitted the following e-mail to that electronic address: "Dear Mr Bornecrantz, please be advised that Mr Richard Ward, director of Moreton Bribie Swiss Pairs, will be attending the meeting on Thursday, 23 July 1998 as a witness. Kim Ellaway, Manager, QBA." The applicant admitted in cross-examination that he had received this e-mail. He did not attend the meeting which, in his absence, considered Mr Ward's report and determined that the applicant should not be eligible to enter any: "gold or red master point events (including the 1999 Gold Coast Congress and GNOT Qualifying Events) conducted under the auspices of the Queensland Bridge Association until 31 December 1999. Entries after 1 -- 6 of 15 -- 7 JUDGMENT January 2000 would be accepted only upon the applicant's prior written agreement to comply promptly with tournament regulations or any instructions given by tournament directors." The applicant submits that the conclusion and judgment of Mr Justice Chesterman on the laws pertaining to the requirements as to notice are contrary to established case law. His Honour found the applicant's conduct waived the notice requirement or alternatively that in the circumstances lack of notice did not deprive the applicant of the opportunity to be heard by the committee: this followed from the applicant's decision not to collect his registered mail and in ignoring his e-mail. The applicant, in my view, has failed to demonstrate any error on the part of the learned Judge in this respect that would justify the granting of leave. The applicant was notified of the respondent's determination by a letter date 29 July 1998 from the respondent's secretary, together with a brief report of the committee's proceedings and an advice that the applicant could appeal to a full meeting of the council. The applicant next submits that Mr Ward disqualified him from continuing to play in the tournament. There was, therefore, no power for the respondent to take further action against him. -- 7 of 15 -- 8 JUDGMENT His Honour dealt with this argument of the applicant and found that Mr Ward's action was purely administrative and that estoppel cannot arise from a mere administrative decision: see The Administration of Papua New Guinea v. Daera Guba (1973) 130 CLR 353 at 453. His Honour also found that there were different considerations for Mr Ward and for the committee in respect of the applicant's conduct: Mr Ward acted because the applicant was not playing in accordance with the rules; the committee's actions resulted from the failure of the applicant to follow Mr Ward's directions. The applicant claims that section 56 of the Judicial Review Act 1991 which provides that strict compliance with rules of Court are not required, was not observed and that Mr Justice Chesterman allowed the respondent to strike out paragraphs in the applicant's affidavits as argumentative. He submits that as he was representing himself he was not sufficiently aware of Court room procedure and was disadvantaged, especially as he did not know he had to tell the Judge which material he was relying upon, believing that anything that had been filed by him would be considered. -- 8 of 15 -- 9 JUDGMENT These matters are often a difficulty for an unrepresented litigant. This Court can ordinarily only act on the material before the Court below. In any case the applicant has not shown that any injustice has resulted from the conduct of the matter below. For example, he complains he was not permitted to call a Mrs Chadwick, but he has not demonstrated, on any properly admissible material before this Court, the relevance of her evidence or how it could have assisted his case. The applicant was given the opportunity to require for cross-examination any witnesses he considered relevant. It seems he was given some degree of latitude and he has not demonstrated that he was disadvantaged to any significant degree, even taking into account the provisions of section 56 of the Judicial Review Act 1991. The applicant next submits that His Honour erred in concluding that the respondent's decision has not shown any measurable impact on the applicant's ability to earn income. His Honour found the applicant's material below did not demonstrate that the respondent's decision had any measurable impact on the applicant's ability to earn income, and therefore there was nothing in the applicant's claim that the decision operated as an unreasonable unlawful restraint of trade. The material before His Honour appeared to support that finding. -- 9 of 15 -- 10 JUDGMENT The applicant next submitted orally that error occurred because His Honour at times referred to the respondent as a voluntary association when it was an incorporated association. A reading of the transcript demonstrates there is nothing in this point: His Honour appears to have interchanged the expressions on occasions. The applicant submits that "the conclusion and judgment of Chesterman J on the laws pertaining to the requirements as to notice are contrary to established case law". The applicant submits the primary Judge erred as to his findings on bias. The applicant claimed below that Mr McDonald was biased because he had chaired an earlier committee in 1997 which upheld a complaint against the applicant and that Mr McDonald in a conversation in July 1997 at the home of Mr Arkinstall chairman of the New South Wales Bridge Association and in the presence of Mr Belonagoff made remarks which indicated that whenever the opportunity arose the respondent should treat the applicant severely. His Honour recognised that there may be some proof of this conversation in an affidavit which was not included in the material before the learned Judge. -- 10 of 15 -- 11 JUDGMENT I have already mentioned the applicant's difficulties as to following procedure. Mr McDonald, however, was cross-examined on the point. His Honour accepted Mr McDonald's evidence that: "In the course of a broad-ranging conversation occupying several hours the applicant was discussed, but Mr McDonald said no more than the respondent had appropriate procedures to deal with complaints and that any complaint would be dealt with in the appropriate way. Mr McDonald expressly asserted that he had an open mind when chairing the committees and bore no animosity towards the applicant." This aspect of Mr McDonald's evidence was unchallenged by the applicant below. The applicant's material below also included a letter from Mrs Hyne dated 20 June 1997 in which she referred to law 74 of the Laws of Duplicate Contract Bridge 1997 which requires a player to maintain a courteous attitude at all times and to avoid any remark or action that might cause annoyance or embarrassment to another player or interfere with their enjoyment of the game. The letter concluded that should the applicant wish to play at the contract bridge club in future he would be under strict scrutiny and if any infringement takes place he would not be permitted to play. Mrs Hyne, however, swore an affidavit which was before His Honour in which she said that she acted "fairly and appropriately in my capacity as a member of the conduct and ethics committee -- 11 of 15 -- 12 JUDGMENT and I did not, nor have I ever acted, with any personal bias towards the applicant". Mrs Hyne was not cross-examined. No application was made below in respect of the third member of the committee. After listening carefully to all matters raised by the applicant, both orally and in his written submissions, I am not satisfied that his application for leave to appeal should be granted. The discretion to give leave to appeal under section 48(5) of the Judicial Review 1991 is unfettered. In this case the applicant has failed to demonstrate any reason, either on any individual point or collectively, as to why leave to appeal should be given: he has not demonstrated any significant error or injustice, nor that he has some real prospect of success on appeal if leave were given, nor any other good reason which would warrant the granting of leave. The applicant also asks for leave to appeal against the costs order below and submits that the learned Judge erred in ordering costs against him and failed to consider s.49 of the Judicial Review Act 1991. Section 49(4) of that Act reserves the general discretion in relation to a costs order of the Supreme Court. Whether or not section 253 Supreme -- 12 of 15 -- 13 JUDGMENT Court Acts 1991 has application here because of section 49(5) of the Judicial Review Act 1991, the applicant has not shown any reason to warrant the granting of leave to appeal from the costs order below. In any case an Appellate Court would not lightly interfere with the exercise of a Judge's discretion: see House v. The King (1936) 55 CLR 499 at 504 to 525. In my view the application for leave to appeal and the application for leave to appeal as to the costs order below should each be refused. THOMAS JA: As the President has mentioned, no point was taken in relation to the appropriateness or otherwise of bringing the original proceedings under the Judicial Review Act as distinct from under the general jurisdiction of the Court. Our decision on the present application for leave should therefore not be relied on as establishing the validity of the procedure that was followed below. It was conceded - indeed the motion before this Court is an application for leave - that leave to appeal is necessary, and I am prepared to proceed on that footing. Having heard the extensive oral arguments and having read the extensive written submissions, I am of the view that the judgment of Mr Justice Chesterman is not attended by -- 13 of 15 -- 14 JUDGMENT sufficient doubt to warrant the case being reconsidered by this Court. Many of the submissions have been dealt with in the reasons which have just been given by the President with which I generally agree. This case is one of a player who persisted in refusing to abide by the rules and who wishes to continue to challenge the hardly surprising disciplinary consequences of his having done so. I do not see any positive reason for the granting of leave and do not consider that injustice would result from its refusal. Accordingly I agree with the orders proposed by the President. DERRINGTON J: I agree. It would seem that the principal bases of the applicant's application relate to fundamental constitutional matters which, with respect, are misconceived. The applicant here has demonstrated that he is a very intelligent man and no doubt excels at bridge, but that does not mean that he necessarily understands the reasoning involved in legal construction for example. That is not meant to be in any way pejorative. On the contrary he presented his case as well as -- 14 of 15 -- 15 JUDGMENT might reasonably be expected subject to the fundamental errors in his submissions. He certainly might not be regarded as a litigant who is not reasonably capable of acquitting himself as a matter of self-representation, on the contrary. I have nothing to add save to say that I agree with the remarks and the proposed orders of the President and associate myself with the remarks of His Honour Justice Thomas. THE PRESIDENT: The order is the applications for leave to appeal are refused with costs. ----- -- 15 of 15 --