Why attempt by private club to oust couple was wrong

Appeal Court explains judgment grounds in case which could affect other private clubs

The Court of Appeal has explained why it made a key ruling allowing a couple to remain members of the Singapore Swimming Club after its management committee tried to oust them.

In a decision which could affect other clubs and organisations, it also suggested that the committee should have resigned to let a neutral panel hear the case to avoid bias.

The management committee wanted to remove veteran member Mike Sim, 70, and his wife as it believed his 2012 conviction for insider trading embarrassed the club.

He sought a judicial review of the decision and won in September 2013 when the High Court ruled the club had tripped up by failing to follow the correct procedure.

A new committee then took fresh steps to oust him a month later and Mr Sim challenged its decision on the grounds of breach of natural justice in the High Court, and lost last April. He appealed again.

In a hearing in November, a key issue was that the new committee comprised six members who had sent letters in July 2013 to support the previous committee's bid to remove him.

At issue was the law of necessity and whether the principle applies to private bodies like social clubs in the way it applies to statutory tribunals or public agencies. The court found it does not.

The apex court found in Mr Sim's favour and made clear the fact that there were not enough "untainted" committee members around was no reason to continue the case on grounds of necessity.

At issue was the law of necessity and whether the principle applies to private bodies like social clubs in the way it applies to statutory tribunals or public agencies. The court found it does not.

The principle applies to enable a decision-maker who is disqualified because of his bias to decide on a complaint or dispute where no else suitable is available or where a quorum - a minimum number of members - is needed.

All six members of the relevant management committee should have been disqualified "on the ground of prejudgment amounting to actual bias", the court said in judgment grounds released last week.

The apex court - comprising Chief Justice Sundaresh Menon, Judge of Appeal Andrew Phang and Senior Judge Chan Sek Keong - found the committee had already made up its mind when it met in October 2013 to suspend Mr Sim for his criminal conviction with a view to ceasing his membership within six months.

WongPartnership lawyer Chang Man Phing argued that the principle of necessity applied as without the six members there would be no quorum, because there was no one else available. Other committee members had to be dropped because of conflicts of interest .

Mr Sim's lawyer R S Bajwa countered that the principle did not apply as its purpose is to prevent a failure of justice, citing an English precedent. The court concurred.

It pointed out that private associations do not suffer the same constraints as statutory tribunals and ruled the principle of necessity is not applicable to social clubs and other private entities, like the Singapore Swimming Club.

"It is contrary to the rule of law if the principle would enable them to adopt disciplinary and other control rules that exempt them from having to observe the rules of natural justice," said SJ Chan. " The principle of necessity would then become a source of injustice rather than a bulwark against injustice."

The court, which awarded $30,000 in legal costs to Mr Sim, directed the case be referred to an assistant registrar to assess the damages payable to the couple for temporary loss of membership privileges and mental distress caused by the suspension.

A version of this article appeared in the print edition of The Straits Times on February 25, 2016, with the headline 'Why attempt by private club to oust couple was wrong'. Print Edition | Subscribe