Re The Rangers Football Club Ltd

Case No.HCMP 78/1970

Court

High Court CFI

Date07 Jul 1970

Judge—

Case Document

100%Judiciary

HCMP000078/1970

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

MISCELLANEOUS PROCEEDINGS NO. 78 OF 1970

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	In the matter of an application by the Rangers Football Club Limited for an Order of Certiorari and for an Order of Prohibition
	and
	In the matter of a decision dated the 31st day of March 1970 made by the Appeals Board of the Hong Kong Football Association Limited pursuant to an appeal lodged by the Acting Secretary of the Hong Kong Fire Services Sports and Welfare Club on 16th March 1970

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Coram: Full Court (Scholes, Ag. C.J., Blair-Kerr, Ag. S.P.J. and Mills-Owens, J.)

Date of Judgment: 7 July 1970

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JUDGMENT

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1. On 10th March 1970, at a meeting of the Council of the Hongkong Football Association Ltd., (hereinafter referred to as "the Association") it was proposed on behalf of the present applicant, the Rangers Football Club Ltd., which is a Full Member of the Association, that

"the first division league be increased to a fourteen-team league with effect from the commencement of the 1970/71 season."

This proposal was approved by the Council by a majority of 12 votes to 3. The applicant's representative then made a second proposal viz.:-

"that the fourteen-league team consist of the twelve clubs currently playing in the first division, allowing automatic reinstatement of the two clubs relegated at the end of this season from the first division, and the two clubs promoted from the second division league."

This proposal was approved by the Council by a majority of 13 votes to nil.

2. On 16th March 1970, another member of the Association namely the Hongkong Fire Services Sports and Welfare Club, wrote to the secretary of the Association giving notice "of appeal" against the second of the above two decisions made by the Council viz. To re-instate in the first division the two clubs due to be relegated to the second division at the conclusion of the 1969/70 season.

3. On 31st March 1970, the President of the Association, one Vice-president and another purported Vice-president met as an "Appeals Board" and ruled that

"..... the appeal of the Hongkong Fire Services Sports and Welfare Club is technically correct and must be upheld ......"

4. On 26th June 1970, the applicant moved this Court for:

	(a)	an order of certiorari to quash the decision of the Appeals Board; and
	(b)	an order of prohibition to prevent the Appeals Board from hearing or re-hearing any appeal from the decision of the Council which was made on 10th March 1970.

5. On 2nd July we granted the orders sought, indicating that we would give our reasons later. We now proceed to do so.

6. The Association is a company limited by guarantee. Its objects are enumerated in the Memorandum of Association and they all appear to be the promotion of the game of association football. Generally speaking, the Articles appear to follow the usual pattern. Under article 24, the affairs of the Association are governed by the Council; and by article 41 the Council is given power

"..... to make Rules as to all matters of business duties, management, regulation or otherwise which may be deemed necessary by the Council so far as not already expressly provided for by these articles."

7. Pursuant thereto, in 1967 the Council made certain Rules (hereinafter referred to as "the Association Rules") which, according to rule 2(a), "must be read in conjunction with and are subject to and dependent upon the Articles of Association".

8. Rule 35 of the Association Rules reads:-

"The Council is authorised to make such Rules, Regulations and bye-laws with reference to Competitions and Officials of Games, as it may deem expedient."

Pursuant to Association rule 35, the Council has made "Rules of the Hongkong Football League" (hereinafter referred to as "the League Rules"). The League Rules are expressed as made under and subject to the Association Rules.

9. Rules 3 and 6(a)(i) of the League Rules read:-

"	3.	The League shall be divided into divisions ....... each division ...... to be limited in principle to a maximum of fourteen teams; ..........................
	6(a)(i)	The two clubs, whose participating teams in the first division of the league stand at the last two positions in the league table at the completion of the league competition, shall be automatically relegated in the following season to the second division."

10. During the season 1969/70 the first division consisted of twelve clubs; and it was consistent with rule 3 of the League Rules that the Council approved the increase in number from twelve to fourteen. The "Appeals Board" were not asked to, and did not, interfere with that decision. What the Board said was that the Council's decision regarding the re-instatement of the two clubs due to be relegated to the second division at the end of the present season was a breach of League rule 6(a)(i).

11. The relief sought by the applicant is based upon a number of grounds; but, in our view, it is only necessary to deal with one of them. Briefly, the applicant's point is that the Articles do not authorise the creation of an appellate body between the Council and the Association in general meeting capable of over-ruling decisions of the Council, and that in so far as rule 29 of the Association Rules purports to give to the "Appeals Board" jurisdiction to hear appeals from and to reverse decisions of the Council it is in conflict with, and is ultra vires, the Articles - in particular articles 24(a), 47 and 48.

12. Article 24(a) reads:-

"24(a)

The affairs of the Association shall be governed by the Council, who may do all such acts and exercise all such powers of the Association as may be required to give effect to the objects as described in the Memorandum of Association and which are not by statute or by these articles required to be done or exercised by the Association in General Meeting."

13. Article 25 deals with the composition of the Council; and states that the President and three Vice-presidents of the Association are members of the Council.

14. Articles 32, 33, 40, 47 and 48 read:-

"	32.	The Council shall adopt and act upon the Rules so far as the same are not inconsistent with these Articles.
	33.	The Council may delegate any of their powers to Committees or Commissions comprising either members of the Council or other persons or comprising members of the Council with other persons.
	40.	No act, matter or thing, within the power of the Association in General Meeting, done by the Council or done by any Committee or Commission and adopted by the Council, which shall afterwards receive the express consent of the Association in General Meeting, shall be afterwards impeached on any ground whatever.
	47.	The Council shall make due provision for settling differences and disputes and may adopt the appointment of, or may appoint all or any persons or person for any such office or purpose, and may make rules and regulations as to all proceedings in reference to the matters aforesaid and as to enforcing any awards or decisions.
	48.	All members of the Association .................. shall submit and refer all differences and questions coming within the provisions of the Laws of the Game, or the Rules of the Association to the decision of the Council who may determine the same or may appoint committees or commissions or other persons for the purpose of hearing and determining the same, and the fact of membership as aforesaid shall constitute an agreement to refer all such differences and questions in accordance with the Rules of the Association, and shall be enforceable as an agreement under the Arbitration Ordinance."

15. Articles 47 and 48 appear as a section of the Articles under the heading "Board of Appeal - Reference to Arbitration".

16. Rule 5(f) of the Association Rules reads:-

"Resolutions and decisions of the Council shall be binding upon ...................... all Members thereof until they are rescinded or varied:-

(i)	by the vote of two thirds majority of Councillors present and voting in a subsequent Council Meeting, with the proposed rescission or variation expressly placed on the agenda.
(ii)	by the vote of a majority of Full Members present and voting at a General Meeting".

Rule 29(a), reads:-

29(a).

Appeals from the decisions of the Council which includes Committee or Commission or from the decisions of affiliated Associations or Clubs may be made to the Appeals Board of this Association and the Appeals Board shall decide in what manner and by whom such appeals shall be heard ..........."

17. The submission made on behalf of the applicant that the Articles make no provision for "appeals" from the decisions of the Council is, in our view, well-founded. Article 24(a) states in the clearest possible language that the affairs of the Association shall be governed by the Council. Its decisions may, of course, be reversed in the manner prescribed by rule 5(f), a provision which we should have expected to see inserted as a proviso to article 24(a) rather than as a rule. Be that as it may, looking at the Articles and the Rules as a whole, the so-called Appeals Board cannot be said to be anything more than a "Committee" of the Council to whom the Council may, under articles 33 and 48 delegate any of its powers. No doubt the Council could have delegated its powers to the Appeals Board to deal with the matter which came before it on 10th March. The fact remains that it did not choose to do so. It decided the matter itself; and only the vote of a majority of members at a subsequent General Meeting or a two-thirds majority at a subsequent Council Meeting could have upset the Council's decision of the 10th March.

18. On general principles, if a body having power to entrust its authority in any matter to a delegate, whether a specific delegate or otherwise, chooses to deal with the matter itself, the matter is thus concluded, and in the case of a specific delegate it follows that he can then have no authority in the matter; delegation does not imply a denudation of power and authority (see Huth v. Clarke (1890) 25 Q.B.D.391).

19. The present case is stronger in that there has been no effective delegation in respect of the Council's governing powers in respect of the League. The Appeals Board was not represented before us; but we assume that the Board purported to be entitled to hear appeals from decisions of the Council by virtue of rule 29(a) of the Association Rules. We would assume also that it would have been argued on behalf of the Board that, as the Association Rules were made by the Council, the Council thereby delegated to the Board its governing powers in respect of the League to the extent of investing the Board with power to hear appeals from decisions of the Council - consistently with articles 33, 47 and 48.

20. In our view the fact that some members might vote against a motion in a matter concerning the governing of the affairs of the Association, and be defeated on a vote, cannot be said to give rise to a dispute, difference or question such as is envisaged by articles 47 and 48; nor in the context does rule 29(a) of the Association Rules purport to empower the Board to hear appeals from decisions of the Council in any matter concerning the governing of the affairs of the Association. It would indeed be an extraordinary position if motions duly carried by the Council in the sphere of government of its affairs could be overruled by the Appeals Board; that would amount to abdication by the Council of its functions and cannot possibly be right. Under article 24(b) the Council are the directors of the Association within the meaning of the Companies Ordinance and thus are unable to fetter or restrict their powers as such. Rule 29(a) of the Association Rules must be read so as to allow of due effect being given to rule 5(f) of the same Rules. Rule 29(a) - also rule 28(b) - must be read as confined to such disputes and differences as are contemplated by articles 47 and 48, such disputes and differences not including decisions formally made by the Council in matters of government of the affairs of the Association.

21. Reference was made to the fact that only three of the four members of the Appeals Board sat to hear the "appeal", when no provision was made for a quorum. We would refer to Re Liverpool Household Stores Association (1890) 59 L.J. Ch. 616 at 624 and generally to para. 600 of 6 Halsburys Laws. But there is no need for us to make any decision in this respect having regard to our finding that it was ultra vires the Appeals Board to overrule the decision of the Council in the matter in question.

	(A.D. Scholes)
	President.

	(W.A. Blair-Kerr)
	Appeal Judge.

	(R.H. Mills-Owens)
	Appeal Judge.

Representation:

Jackson-Lipkin (J.S. & M.) for Appellant.

Oral judgment reduced into writing & handed down.