Case Update: Sim Yong Teng and another v Singapore Swimming Club [2016] SGCA 10 – SGCA rules on breach of natural justice due to bias and prejudgment by management committee of a private association

Case Update: Sim Yong Teng and another v Singapore Swimming Club [2016] SGCA 10

Significance: Singapore Court of Appeal allowed the appeal and held that the trial judge should have disqualified all six members of a management committee from hearing a complaint against the appellant on the ground that they had prejudged the complaint against him, and that the administrative law principle of necessity had no application in the circumstances of the case. The Court opined that, as a matter of law, the principle of necessity is not applicable to private associations such as the respondent club but only to public bodies. Private associations may always change their rules if necessary without having to breach the rules of natural justice in any disciplinary proceedings against any of their members.

The rules of natural justice include the rule against bias. This means both actual bias and apparent bias, especially bias that amounts to a predetermination of the relevant matter to be decided: [45].

The rule against prejudgment prohibits the reaching of a final, conclusive decision before being made aware of all relevant evidence and arguments which the parties wish to put before the arbiter. While the rule may in some way overlap with the audi alteram partem principle (as a result of a failure to give parties an actual opportunity to be heard), the primary objection against prejudgment is “the surrender by a decision-making body of its judgment”: [51].

The appearance of bias and predetermination are distinct concepts. Predetermination consists in ‘the surrender by a decision-making body of its judgment’, for instance, by failing to apply his mind properly to the task at hand or by adopting an over-rigid policy. The decision is unlawful but not because it may appear biased (although in many cases it will). On the other hand, a decision-maker may apply his mind properly to the matter for decision and make a decision that is exemplary save that, because of some prior involvement or connection with the matter, the fair minded observer would apprehend bias. The decision is once more unlawful but for a completely different reason. Only in rare cases will the distinction between these two concepts be significant, citing Christopher F Forsyth, Wade & Forsyth: Administrative Law (Oxford University Press, 11th Ed, 2014) (“Wade & Forsyth”) (at p 394): [51].

Prejudgment vs Predisposition

Prejudgment is different from predisposition.distinction has been drawn between a legitimate predisposition towards a particular outcome (for example, as a result of a manifesto commitment by the ruling party or some other policy statement) and an illegitimate predetermination of the outcome (for example, because of a decision already reached or a determination to reach a particular decision). The former is consistent with a preparedness to consider and weigh relevant factors in reaching the final decision; the latter involves a mind that is closed to the consideration and weighing of relevant factors: [53].

Prejudgment vs Provisional Judgment

Prejudgment, which takes the form of a premature conclusive determination, is also different from a provisional decision. By definition, one is not final and subject to change, while the other is final: [54].

On the facts, the Court held that certain statements in the MC’s letters evidence prejudgment of the complaint against the appellant, and that any reasonable, fair minded and fully informed observer looking at the circumstances of the case would have formed the view that there was prejudgment by the members of the MC amounting to apparent bias: [64].

Admin Law Principle of Necessity

The principle of necessity applies to enable a decision-maker, 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. The principle was applied by the courts to statutory tribunals to ensure that they were not disabled from performing their statutory functions. The rule is an implicit expression of the principle that the rules of natural justice may be excluded explicitly by statute: [65].

The Court observed that it was not aware of any other commonwealth jurisdiction that has applied the principle of necessity to bodies exercising of non-statutory functions. In our view, this is so for good reasons. The purpose of the principle 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. As for administrative bodies, the principle of necessity preserves the public confidence in the performance of statutory functions: [85].

The logic of not applying the principle of necessity to non-statutory bodies is sound. To apply it in such circumstances would be to prefer an intolerable risk of failure of justice. Far from avoiding a failure of justice, there will be a complete failure of justice; and the raison d’être for the application of the principle will then be lost. In short, the rules of natural justice must prevail over contractual rights when exercised unjustly or seen to be exercised unjustly: [87]

In a case where prejudgment amounts to actual bias, ie, where the mind is closed at the hearing, the principle of necessity should not be applicable, since to apply it in such circumstances would merely give lip service to the principle as it would result in the decision-maker making a manifestly unjust decision. Such a hearing would be an empty procedural formality: [88].

Private associations may always change their rules if necessary without having to breach the rules of natural justice in any disciplinary proceedings against any of their members. In contrast, statutory rules, if applicable, are intended to be applied even in situations where apparent bias may be present. The principle of necessity is born out of the necessity to give effect to the statutory scheme, and not to frustrate it: [89].

Statutory tribunals, and even the judiciary as an institution, can suffer from institutional bias or the personal bias of the statutorily appointed adjudicator, but private associations do not suffer the same constraints. They can amend their constitutions or rules and can also use alternative means, such as to appoint other members, to remove the appearance of bias: [90].

The strongest justification for holding that the principle of necessity is not applicable to private entities is that 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. The principle of necessity would then become a source of injustice, rather than a bulwark against injustice. The law should not allow contractual rights to prevail over the principles of natural justice by resorting to the principle of necessity: [93].

On the facts, the Court held that the trial judge should have declined to invoke the principle of necessity in the circumstances of this case. He should have disqualified all the six members of the MC on the ground of prejudgment amounting to actual bias or apparent bias. The decision-making process adopted by the club was not desirable and should have been avoided. The reason why courts disqualify a decision-maker from deciding a matter by reason of apparent bias is that notwithstanding his assurances that he has an open mind, no one can read his mind, and that bias is very often unconscious: [96].

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