The Singapore Law Gazette

How to Avoid Getting “Clubbed” to Death: A Survival Guide

The activities of clubs span the gamut of human experience. It is therefore unsurprising that they are often embroiled in disputes. This article examines the appropriate legal avenues and grounds for challenging the decisions of clubs. It suggests that since “club cases” and judicial review share a common concern for supervising a dominant party’s abuse of power involving decisions with wide-reaching implications and relationships that are not strictly commercial, the same grounds of review should apply.
 
Hell hath no fury like a club member scorned. This scorn pours out into a lot of litigation. This is not surprising since the activities of clubs span the entire gamut of human experience from school alumni associations to political parties, and everything in between, including clan associations, chambers of commerce, self-regulating professional bodies and country clubs. As a shorthand, I will collectively refer to these diverse entities as “clubs”.

The paradigm “club case” involves an aggrieved member challenging his or her expulsion or suspension by a club. In such cases, there would be an underlying contract between the club and the aggrieved member. However, penumbral cases may include instances without a contractual nexus such as when an aggrieved individual challenges the refusal of a club (eg, a professional body) from granting him admission or a license. In both paradigm and penumbral case, acting for or against a club carries its own unique pitfalls and this article will address two of them, namely:

• The appropriate legal avenues to challenge the decisions of clubs – should the aggrieved party resort to an application for judicial review (which is ordinarily reserved for challenges to the decisions of public bodies, or private bodies exercising public/governmental functions) or is he or she confined to a private law claim (say, in contract for breach of the terms of membership)?
• The grounds for reviewing the decisions of clubs – are clubs subject to other implied obligations beyond the rules of natural justice?

What are the Appropriate Legal Avenues to Challenge the Decisions of Clubs?

An aggrieved party who gets the first question wrong risks being “clubbed” to death because of the significant procedural differences between an application for judicial review and a claim in private law.

First, an aggrieved party will need to obtain leave of Court before commencing judicial review proceedings. An application for leave is not necessary before commencing a private law claim.

Second, an application for leave to commence judicial review proceedings where a quashing order is sought must be filed within three months of the impugned decision.¹ See Order 53 rule 1(6) of the Rules of Court (Cap 322, Section 80, 2014 Rev Ed). In contrast, a claim for breach of contract must ordinarily be brought within six years of the breach.² See section 6 of the Limitation Act (Cap 163, 1996 Rev Ed).

Third, an aggrieved party will ordinarily need to exhaust all alternative private law remedies (eg, commencing an action for breach of contract) before commencing an application for judicial review.

There are also substantive complications in the case law. In particular, whether proceedings should be properly characterised as an application for judicial review or a claim for breach of contract, and, arising from this, the applicable grounds or standards of review.

Thus, in Haron bin Mundir v Singapore Amateur Athletic Association (Haron bin Mundir),³ Haron bin Mundir v Singapore Amateur Athletic Association [1991] 2 SLR(R) 494 (Haron bin Mundir). an athlete brought proceedings in the High Court to challenge the decision of the disciplinary subcommittee of the Singapore Amateur Athletic Association (SAAA) to suspend him from all forms of track and field activities in and outside Singapore for 18 months. Judicial Commissioner G P Selvam held that the athlete’s claim should be properly characterised as one for breach of contract, the rules of natural justice being “implied into every contract express or implied which contemplates a hearing affecting the rights and livelihood of persons. The rules are so implied as a matter of law and public policy.”⁴ Ibid at [22]. Selvam JC’s characterisation of the claim as one in contract was not controverted on appeal.⁵ See Singapore Amateur Athletics Association v Haron bin Mundir [1993] 3 SLR(R) 40.

However, in Kanesananthan A v Singapore Ceylon Tamils’ Association (Kanesananthan),⁶ Kanesananthan A v Singapore Ceylon Tamils’ Association [2003] 3 SLR(R) 539 (Kanesananthan). the High Court characterised Haron bin Mundir as “a judgment made in the context of a judicial review of an administrative tribunal”.⁷ Ibid at [7].

Subsequently in The Stansfield Group Pte Ltd (trading as Stansfield College) and another v Consumers’ Association of Singapore and another (Stansfield College),⁸ The Stansfield Group Pte Ltd (trading as Stansfield College) and another v Consumers’ Association of Singapore and another [2011] 4 SLR 130 (Stansfield College). the High Court applied Selvam JC’s dicta in Haron bin Mundir in a claim for breach of contract. In Stansfield College, a group of private schools brought claims against their insurer and the Consumer Association of Singapore (CASE), the administrator of an accreditation scheme for private schools, for the wrongful suspension of their membership and the unavailability of the insurance facilities.

While the claim did not succeed, Stansfield College represents a significant convergence of judicial review/administrative law principles in private law claims – a point that will be examined in detail below. In this regard, Prakash J further held that there was an implied term that CASE was to “exercise its rights in a reasonable manner” and “not capriciously”. Even if this term did not pass the officious bystander test, “administrative law principles should be imported” since the contractual relationship between CASE and the private schools was not “strictly commercial”.⁹ Ibid at [132].

The Court of Appeal adopted a similar contract-based analysis in Kay Swee Pin v Singapore Island Country Club (Kay Swee Pin) but this time in an application for judicial review.¹⁰ Kay Swee Pin v Singapore Island Country Club [2008] 2 SLR(R) 80 (Kay Swee Pin) at [2] and [44]. The aggrieved member challenged the decision by the general committee of a country club to suspend her on the grounds that the decision breached the rules of natural justice.¹¹ Ibid at [5]. The Court held that the committee’s decision, being in the nature of a decision by a disciplinary body, was subject to a “duty to act fairly” as “expulsion, suspension or other punishment or the casting of a stigma may be involved”.¹² Ibid at [6]. The application for judicial review was granted with the suspension order declared invalid.¹³ Ibid at [82] to [83].

More recently in Khong Kin Hoong Lawrence v Singapore Polo Club,¹⁴ Khong Kin Hoong Lawrence v Singapore Polo Club [2014] 3 SLR 241. in a claim for breach of contract, the High Court held that the rules of natural justice were implied in the terms of the contract between the club and the aggrieved member as embodied in the club’s constitution as they are “universal rules that govern the conduct of human behaviour”.¹⁵ Ibid at [23]. Accordingly, a finding by five members of the club’s disciplinary committee that the aggrieved member had acted in a manner prejudicial to the interests of the club, was tainted by apparent bias. In its analysis, the High Court applied Kay Swee Pin which, as mentioned above, is a judicial review case.

This review of the case law demonstrates the uncertainty as to whether an impugned decision that is rooted in an underlying contract between the aggrieved member and a club should be properly challenged by way of judicial review or a claim for breach of contract. The way in which parties plead their cases and the growing convergence of judicial review principles in private law claims only adds to the complexity.

However, it is submitted that it is largely inappropriate for aggrieved members in such “club cases” to bring applications for judicial review.

First, as a matter of principle, judicial review is reserved for challenges to the decisions of public bodies, or private bodies exercising public/governmental functions.¹⁶ See Yeap Wai Kong v Singapore Exchange Securities Trading Ltd [2012] 3 SLR 565 (Yeap Wai Kong). While the Court of Appeal has acknowledged that membership of a country club may be “highly sought after for its social cachet”,¹⁷ Kay Swee Pin at [4]. this is not the same as saying that they are “interwoven into a system of governmental regulation”.¹⁸ Yeap Wai Kong at [15]. The latter, according to the High Court in Yeap Wai Kong v Singapore Exchange Securities Trading Ltd (Yeap Wai Kong),¹⁹ [2012] 3 SLR 565. is one of the key factors in determining whether a private body exercises public functions and is therefore subject to judicial review. As a corollary, this also explains why the Courts have been wary of attempts by aggrieved individuals to frame their claims in judicial review for the sole purpose of circumventing the lack of contractual nexus.²⁰ See, for example, R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 1 WLR 909; UDL Marine (Singapore) Pte Ltd v Jurong Town Corporation [2011] 3 SLR 94; and Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR(R) 133.

Put simply, as far as “club cases” are concerned, judicial review should not be done to death since there are other, more appropriate private law alternatives. Of course, it would be a different matter if the club is, say, the de facto regulator in a particular field. As Professors Elliot and Varuhas explain:²¹ Mark Elliot and Jason Varuhas, Administrative Law: Text and Materials (Oxford University Press, 2017) at p 140.

“The question is always whether the function in question is sufficiently public or governmental. Where the relationship between the claimant and the defendant is largely or exclusively contractual, this is indicative that the matter belongs in the private realm – but this is without prejudice to the possibility that certain contractual relationships may arise in relation to the performance of public functions … This does not, however, mean that the existence of contractual power and the question whether the function is a governmental or public one are wholly independent considerations: the fact that a relationship is rooted in contract may affect the courts’ preparedness to characterise the function as a public or governmental one in the first place.” [Emphasis added]

Second, the case law can be reconciled. There is a compelling argument that had Haron bin Mundir been decided post-Yeap Wai Kong, the High Court may well have found that the suspension issued by the SAAA was amenable to judicial review. It is telling in this regard that Selvam JC prefaced his judgment with the observation that the SAAA was a “private body fulfilling public functions”.²² Haron bin Mundir at [1]. This perhaps explains why the subsequent High Court decision in Kanesananthan characterised Haron bin Mundir as “a judgment made in the context of a judicial review of an administrative tribunal”.²³ Kanesananthan at [7].

Similarly, the difficulty in drawing the precise boundary between judicial review and private law in “club cases” perhaps also explains why Prakash J imported administrative law grounds of review in Stansfield College since CASE was effectively acting as a de facto regulator with the power to adversely affect the livelihood of its members.

As for Kanesananthan and Kay Swee Pin (ie, the two “club cases” formulated as potential/actual judicial review applications), it is important to remember that the amenability to judicial review of the respective club’s decision appears not to have arisen and therefore neither of these decisions stand for the proposition that “club cases” should ipso facto be characterised a judicial review cases.

Third, and in any event, one would be hard-pressed to see any procedural advantage to frame a “club case” as an application for judicial review instead of a claim in contract. As mentioned above, the latter does not require leave of Court and affords a far longer limitation period. In fact, the reliefs of a declaration and injunction (available in a contract claim) can be more effective, if not more effective than a quashing order (available in an application for judicial review). Further, and as we shall examine below, it appears that private law “clubs cases” and applications for judicial review are subject to same grounds of review.

But what if the impugned decision by the club is not rooted in contract, as alluded to earlier? Take the example of a club hell-bent on denying an individual membership because of the colour of his or her hair. Or even a child denied entry to a school because neither of his or her parents is an alumni? Would the aggrieved party be left without recourse? Not necessarily.

First, the Courts have been known to deploy the creative tools at their disposal to (re)frame the claim as one in contract in order to do justice. That appears to have been the case in Haron bin Mundir. Grounding the SAAA’s suspension in contract was not a straightforward matter since the athlete was not a member of the SAAA. Organisationally, the SAAA was an association of several sports clubs of which the athlete was a member of one such club, the Flash Athletic Club. Individual athletes cannot be members of the SAAA. Notwithstanding this hurdle to privity and the fact that the pleadings admittedly “did not spell out the cause of action for breach of contract in the traditional way”,²⁴ Haron bin Mundir at [22]. the High Court found that there was an implied contract between the athlete and the SAAA which “came into being when the [athlete] accepted the [SAAA’s] offer to go to Japan for training. The contract was confirmed when the [SAAA] pursuant to their power under r 13 of their constitution exercised the disciplinary powers over the [athlete] and [he] submitted to such jurisdiction. The contract may also be implied on the basis that Flash Athletic Club was the [athlete’s] agent.”²⁵ Haron bin Mundir at [21]. Pursuant to this (re)formulation of the claim, the Court granted leave for the Statement of Claim to be amended at trial so as to include a clear allegation of an implied term that any hearing or inquiry should be conducted fairly and in compliance with the rules of natural justice.²⁶ Singapore Amateur Athletics Association v Haron bin Mundir [1994] 1 SLR 47 (Court of Appeal) at [60].

Second, even in the absence of a contractual relationship, the principles in Nagle v Feilden (Nagle)²⁷ Nagle v Feilden [1966] 2 QB 633 (Nagle). empower the Courts to use their supervisory jurisdiction to do justice, specifically where the right to work is concerned. Nagle has been cited by the Court of Appeal in Man Financial (S) Pte Ltd v Wong Bark Chuan David for the broader proposition that: “[j]ust as the courts will intervene to protect [a man’s] rights of property, they will also intervene to protect his right to work.”²⁸ Man Financial (S) Pte Ltd v Wong Bark Chuan David [2008] 1 SLR(R) 663 at [46].

In Nagle, the plaintiff (Ms Nagle), had trained racehorses for many years. She brought proceedings against the stewards of the Jockey Club, a self-elected body that controlled horse racing in Great Britain, seeking a declaration that the practice of the stewards in refusing a trainer’s license to any woman was void as against public policy, as well as an injunction ordering the stewards to grant her a licence. The action was initially struck out at first instance as disclosing no reasonable cause of action since the statement of claim did not disclose a contractual relationship between Ms Nagle and the Jockey Club.

However, this was reversed by the English Court of Appeal – the fact that there was no contractual relationship between Ms Nagle and the Jockey Club was not the end of the matter given the “monopolistic”²⁹ Nagle at pp 649, 650 and 654. power of the Jockey Club. As Lord Denning held:³⁰ Ibid at p 646.

“We live in days when many trading or professional associations operate “closed shops.” No person can work at his trade or profession except by their permission. They can deprive him of his livelihood. When a man is wrongly rejected or ousted by one of these associations, has he no remedy? I think he may well have, even though he can show no contract. The courts have power to grant him a declaration that his rejection and ouster was invalid and an injunction requiring the association to rectify their error. He may not be able to get damages unless he can show a contract or a tort. But he may get a declaration and injunction.” [Emphasis in bold and bold underline added]

Nagle is now settled jurisprudence in England and “has perhaps assumed an even greater importance since the courts came to adopt the restrictive approach towards the application of judicial review”: see Bradley v The Jockey Club (Bradley).³¹ Bradley v The Jockey Club [2014] EWCA 2164 (Bradley) at [34].

Applying Nagle, Richard J in Bradley considered the review function of the Court in a non-contractual context as an instantiation of its supervisory jurisdiction to prevent abuses of power. It is therefore subject to the same grounds of review as an application for judicial review,³² Ibid at [37] and [41]. which is another instantiation of the Court’s supervisory jurisdiction:

“That brings me to the nature of the court’s supervisory jurisdiction over such a decision. The most important point, as it seems to me, is that it is supervisory. The function of the court is not to take the primary decision but to ensure that the primary decision-maker has operated within lawful limits.It is a review function, very similar to that of the court on judicial review. Indeed, given the difficulties that sometimes arise in drawing the precise boundary between the two, I would consider it surprising and unsatisfactory if a private law claim in relation to the decision of a domestic body required the court to adopt a materially different approach from a judicial review claim in relation to the decision of a public body. In each case the essential concern should be with the lawfulness of the decision taken: whether the procedure was fair, whether there was any error of law, whether any exercise of judgment or discretion fell within the limits open to the decision-maker, and so forth.

…

The supervisory role of the court should not involve any higher or more intensive standard of review when dealing with a non-contractual than a contractual claim.”

[Emphasis in bold and bold underline added]

On appeal, the Court of Appeal commended the High Court’s judgment as being of the “highest quality”.³³ Bradley v The Jockey Club [2005] EWCA Civ 1056 at [2]. Significantly, Bradley and the decisions following it have yet to be considered by the Singapore Courts.³⁴ See, for example, Fallon v Horseracing Regulatory Authority [2006] EWHC 2030 (QB); and Mckeown v British Horseracing Authority [2010] EWHC 508 (QB).

Third, in the Singapore context, Article 12 of the Constitution of the Republic of Singapore (Constitution) could complement the principles in Nagle and may provide a separate ground of review or even cause of action for challenging, say, the discrimination by a professional association against a Singapore citizen on the ground of “religion, race, decent or place of birthin … the establishing or carrying on of any trade, business, profession, vocation or employment” would be another instantiation of the Court’s supervisory jurisdiction.

But what if the decision of the club in question does not impinge upon the aggrieved party’s right to work so as to exclude the application of the principles in Nagle and/or Article 12 of the Constitution?

In the absence of wide-ranging equality legislation found in other jurisdictions, it would appear that there is no readily apparent avenue for recourse. Yet a common law extension of the principles in Nagle would not be inconceivable or even undesirable.

As a matter of precedent, Professor Timothy Endicott suggests the evolution may have already begun. He suggests that the case of Mullins v McFarlane “moved the law beyond the common law right to work, at least tentatively”³⁵ Timothy Endicott, Administrative Law (Oxford University Press, 2015) at p 614. since the Court’s power to grant declaratory relief is “unrestricted”.³⁶ Mullins v McFarlane [2006] EWHC 986 at [39].

As a matter of principle, it seems intuitively unsatisfactory that clubs (other than professional associations) are entitled to capriciously deny membership with impunity. One would be hard pressed to argue that certain clubs should be exempt from the duty to act fairly – a duty which lies at the heart of Nagle, and more-broadly, the Court’s supervisory role “to examine the exerciseof discretionary power” and to ensure that “all power has legal limits”.³⁷ Chng Suan Tze v Ministry of Home Affairs [1988] 2 SLR(R) 525 at [86].

This reasoning applies a fortiori in Singapore where clubs occupy a unique economic and historical position in society. Membership can carry cultural significance (as is the case with clan associations) and may even facilitate social mobility (as is the case with certain private clubs and associations). The Court of Appeal has even acknowledged that membership of a country club may be “highly sought after for its social cachet” and “regarded as a symbol of social success by many”.³⁸ Kay Swee Pin at [4]. The same could equally be said of membership of other kinds of clubs like school alumni associations. In the hypothetical mentioned above where a child is denied entry to a school because neither of his or her parents is an alumni of the school (or for that matter, if either parent is an alumni but not admitted to an alumni association), Article 16 of the Constitution prohibits against discrimination against any citizen of Singapore on the grounds only of, inter alia, “descent”,³⁹ This will depend on whether “descent” refers to a notion of inherited status which includes, eg, social origin. “in the administration of any education institution maintained by a public authority, and, in particular, the admission of pupils or students” may arguably provide a ground of review, cause of action or, if a contract can be implied, a constraint as to how the contractual discretion is to be exercised.

Historically, the metamorphoses of various social/cultural clubs in Singapore have mirrored the development of this nation-state from a colonial outpost to an integrated, multicultural society. In a speech delivered at the National Day Celebrations held at the Indian Association on 24 August 1968, then Prime Minister Lee Kuan Yew had this to say:⁴⁰ See “Transcript of Speech by the Prime Minister, Mr Lee Kuan Yew, at the National Day Celebrations held at the Indian Association on 24^th August, 1968” <http://www.nas.gov.sg/archivesonline/data/pdfdoc/lky19680824.pdf> (last accessed 11 June 2018).

“It is no use building this thriving, humming economy just to hand it over to somebody else. I don’t believe in that. We are building this for our progeny.

Over the years, without again any decree, new forms of social organisation will emerge. Like the Singapore Cricket Club or the Tanglin Club, the names and facade may remain the same, but the content will have changed because political, economic and social conditions have altered. We shall have the Indian Association, the Hakka or Hokkien Huay Kuans. But they are adapting to changed conditions. The functions they performed before, sustaining in mutual aid and succour people from the same village or district in India or China, in a situation where government was minimal and in the hands of an alien authority, new functions have to be discharged in a situation where the government is dependent on popular will.

I was very happy to learn that you have 200 associate members, non-Indians. I do not think we ought to force the pace of change. But we ought to be conscious of the fact that if at the end of this century whoever is in charge finds as members of the Indian Association are more concerned about events in India than in Singapore, then we – you and I – would not have done our job. We know what that job is. It will be best achieved if we use the carrot and never the stick.

In the years to come those who succeed you, as those who succeed me in office, should find this a more and more a homogenous community. Nobody demands that we should all look like one another. Nobody demands that we should all be put in the melting pot and churned up into one uniform mass. But we ought to be thinking the same thoughts about our common interests in the progress and prosperity of Singapore.”

[Emphasis added]

Therefore, the Singapore experience is that the governance of clubs has been tempered by wider, progressive imperatives as society evolves.

What are the Grounds for Reviewing Decisions of Clubs?

A further question concerns the appropriate grounds of review: are club decisions subject only to the rules of natural justice?⁴¹ See, for example, Kay Swee Pin at [2] It is submitted that there are sound reasons why the other traditional GCHQ grounds of judicial review, namely, illegality and irrationality, should equally apply.⁴² See Council of Civil Service Unions v Council for the Civil Service [1983] UKHL 9.

First, insofar as the decision of the club is amenable to judicial review (eg, a professional body that is the de facto regulator), the three GCHQ grounds of review should already apply.⁴³ Chai Chwan v Singapore Medical Council [2009] SGHC 115 at [26].

Second, even where a “club case” falls within the realm of private law as either a contractual or non-contractual claim, it may be incongruous for different grounds for review to apply vis-à-vis applications for judicial review since in all these cases the Court is exercising the same supervisory jurisdiction.⁴⁴ See also paragraph 28 (above).

Third, having uniform grounds of review is consistent with the ongoing convergence of public law principles in private law. The leading case in this area is the UK Supreme Court decision in Braganza v BP Shipping Limited and another (Braganza) where Baroness Hale observed that:⁴⁵ Braganza v BP Shipping Limited and another [2015] 1 WLR 1661 at [28].

“There are signs, therefore, that the contractual implied term [to exercise a contractual discretion reasonably] is drawing closer and closer to the principles applicable in judicial review.”

In that case, a widow of a deceased seaman challenged the finding of his employer that he had committed suicide while at sea. Under the terms of the employment contract, death in service compensation was not payable if “in the opinion of the Company or its insurers, the death, accidental injury or illness resulted from amongst other things, the Officer’s wilful act, default or misconduct” [Emphasis added].⁴⁶ Ibid at [1].

Their Lordships unanimously agreed that the employer in determining the cause of death was subject to an implied term to reach its decision:⁴⁷ Ibid at [30], [53] and [103]. (a) in a manner that took into account the right matters in reaching the decision; and (b) without violating the Wednesbury principle (ie, that even though the right things have been taken into account, the result is so outrageous that no reasonable decision-maker could have reached it).⁴⁸ Ibid at [24]. This tracks the GCHQ grounds of illegality and irrationality, respectively.

For the employer’s investigative team, the devil was in the details. On the facts, they had failed to direct themselves to the need for cogent evidence commensurate with the seriousness of a finding of suicide and had failed to take into account a relevant factor, namely, the real possibility of accidental death.

That said, Baroness Hale emphasised that “whatever term may be implied will depend upon the terms and the context of the particular contract involved” since it “may very well be that the same high standards of decision-making ought not to be expected of most contractual decision-makers as are expected of the modern state”.⁴⁹ Ibid at [30]–[31]. By the same token, Lord Hodge considered that, unlike pure commercial contracts, it would be appropriate to imply such terms in “relational contracts” like employment contracts where there is an implied duty of trust and confidence between employer and employee.⁵⁰ Ibid at [54] and [61].

The case for convergence is particularly compelling insofar as private law “club cases” and applications for judicial review are both concerned with: (a) regulation of the abuse of power by a dominant party; (b) decisions which can have wide-reaching implications on those affected including their livelihoods; and (c) relationships which are not strictly commercial in nature. Given the mutual trust and confidence between certain clubs and their members, the terms of membership should similarly be characterised as a “relational contract” and therefore subject to the “Braganza duties”.⁵¹ Cf David Foxton QC sitting as a Deputy Judge of the High Court held that “[w]here, for example, a commercial contract gives one party a right to terminate in certain circumstances, it will not ordinarily be appropriate to subject the exercise of that right to obligations of procedural or substantive fairness akin to the public law duties which apply to the decisions of the executive”: Monk v Largo [2016] EWHC 1837 at [54]. See also David Foxton, “A Good Faith Goodbye? Good Faith Obligations and Contractual Termination Rights” [2017] LMCLQ 360; David Foxton QC, “Controlling Contractual Discretions” (delivered on 9 January 2018 to the Attorney-General’s Chambers Singapore) <https://101r4q2bpyqyt92eg41tusmj-wpengine.netdna-ssl.com/wp-content/uploads/2018/01/Controlling-contractual-discretions.pdf> (last accessed 11 June 2018). This echoes Prakash J’s holding in Stansfield College that administrative law principles should be implied into parties’ contractual relationship since it was not “strictly commercial” in nature.⁵² Stansfield College at [132].

Fourth, this is not to say that the uniform grounds of review should be applied indiscriminately without reference to context. In this regard, the Court of Appeal’s decision in Sim Yong Teng and another v Singapore Swimming Club demonstrates it does not necessarily follow that a lower standard of scrutiny ought to apply for private bodies as opposed to public bodies.⁵³ Sim Yong Teng and another v Singapore Swimming Club [2015] 3 SLR 541.

There, the Court had to determine whether the principle of necessity (a component of the rules of natural justice) applied to private bodies (as contrasted to public bodies). The principle enables a decision­maker, whether an individual or a tribunal, who is subject to disqualification on account of bias, to decide a complaint or dispute where: (a) no other person or tribunal competent to decide the matter is available; or (b) a quorum cannot be formed without his participation.⁵⁴ Ibid at [65].

The Court held that the principle does not apply to private entities as its rationale “is to enable statutory tribunals and judicial bodies to hear matters in which they may have a personal or institutional interest, as not do so would frustrate the operation of the statutory provision with consequent public or private detriment and undermine public confidence in the administration of justice”.⁵⁵ Ibid at [85]. That rationale did not apply for private bodies where the principle of necessity would only be invoked “for the advancement or protection of … private interests”.⁵⁶ Ibid at [86]–[87]. Unlike statutory tribunals, private associations can change their rules to ensure that the disciplinary hearings are conducted in a way that complies with rules of natural justice or find alternative means to cure the apparent bias.⁵⁷ Ibid at [89]–[90].

Accordingly, the Courts still retains the discretion to calibrate the standard of scrutiny according to the particular facts of the case even when applying the uniform grounds of review across all “club cases”.

Conclusion

This article has attempted to provide a rough and ready survival guide on how to navigate the various conundrums in “club cases” and so avoid getting “clubbed” to death.

For aggrieved parties, they face a choice between: (a) judicial review where the impugned decision of the club/association involves the exercise of a public function; (b) a claim in contract where the impugned decision is rooted in a contract between the club/association and the aggrieved party; and (c) in the absence of a contractual relationship, a declaration and injunction pursuant to the principles in Nagle or even Article 12 or perhaps Article 16 of the Constitution. It is important for aggrieved parties to pick wisely owing to the significant differences in procedure and available remedies. That said, there is much to be said in favour of the administrative law grounds of review applying in all these categories of cases subject to the Court exercising its discretion to calibrate the standard of scrutiny according to the particular facts of the case.

For clubs, as a matter of regulatory risk management, it would be prudent for them review and, where necessary, revise their investigative and decision-making processes. This is to ensure that they withstand scrutiny in the event of a challenge by way of a private law claim, or an application for judicial review. If hell hath no fury like a club member scorned, then one better prepared for the fallout.