On 23 June 2016, the NSW Supreme Court handed down an important judgment for the sports industry in Oei v The Australian Golf Club.1

Mr Oei was expelled from membership by The Australian Golf Club's board on the basis that he was guilty of "conduct unbecoming" by deliberately throwing his golf ball to a better lie, in breach of the Rules of Golf. Mr Oei sought to overturn his expulsion in the NSW Supreme Court.

In rejecting the appeal, the judge found that a deliberate flouting of the Rules of Golf would constitute conduct unbecoming and entitled the Club's board to expel the member under the disciplinary procedure in the Club's Constitution.

The case highlights the care that sports organisations must take in administering their disciplinary procedures, as the judge found Mr Oei was entitled to challenge the decision in Court.

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Mr Oei, a member of the Australian Golf Club, was seen by multiple members to allegedly handle his golf ball in breach of the Rules of Golf, by throwing it to a better lie rather than taking a drop in accordance with the Rules.

The allegations were put to him and he subsequently received a notice of disciplinary charge and hearing, alleging that he had engaged in conduct that was unbecoming of a member of the Club.

Under the disciplinary procedure in the Club's Constitution, the Board convened a disciplinary hearing. The Board found that Mr Oei had breached a number of the Rules concerning when balls at rest are moved and was therefore guilty of engaging in conduct unbecoming of a member of the Club. The Board subsequently terminated his membership of the Club.

Challenging the decision

The Court found that Mr Oei, as a member of the Club, had standing to challenge the decision of the Board due to the binding contractual relationship between the Club and himself formed by the Club Constitution.

Further, it was accepted that loss of membership of the Club would give rise to serious consequences, including loss of enjoyment of Club amenities, loss of part of the annual subscriptions already paid by the plaintiff, and damage to his reputation.

The Court recognised that Australian courts have discretionary power to intervene in the affairs of voluntary tribunals.

"Conduct unbecoming"

Mr Oei argued that conduct which is "unbecoming" should be taken to mean conduct that is scandalous or unlawful, as opposed to that which is otherwise trivial.

In reviewing the meaning of "unbecoming", the Court found that the term (as used in the Club Constitution) needed to be seen in the context of the game of golf and the Rules. A deliberate flouting of the Rules would "reasonably be in context regarded as conduct unbecoming".

Therefore, once it was determined that it was open for the Board to come to the view Mr Oei had deliberately flouted the Rules during a competition, the Court held such conduct "could hardly be described as trivial and… would comfortably conform with the description of 'unbecoming'."

Lessons for sports organisation

This case illustrates the risks that can occur if a sports organisation disciplines a member who later challenges the sanction in Court.

The administration and conduct of disciplinary proceedings under a sports organisation's rules and by-laws can be a complicated process, whether at a Club, State, or National level.

Disciplinary procedures used by sports organisations should incorporate procedural fairness, and must allow for the full range of sanctions intended to be imposed. The disciplinary procedures must be applied correctly, with departures from the mandated procedure likely to result in challenge.