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Colonial Cases

Brandt v. Shanghai Race Club, 1884

[club membership]

Brandt v. Shanghai Race Club

Supreme Court for China and Japan
Rennie CJ, November 1884
Source: North China Herald, 5 November 1884

LAW REPORTS.
IN H.B.M.'s SUPREME COURT FOR CHINA AND JAPAN.
Shanghai, 3rd November 1884
Before Sir Richard Temple Rennie, Chief Justice.
OSCAR BRANDT
v.
J. M. RINGER, A. MCLEOD, A. MYBURGH, W. HOWIE, J. J. KESWICK and J. S. FEARON.
   Mr. R. E. Wainewright appeared for the plaintiff, and Mr. A. Robinson for the defendants.
  The petition of the plaintiff was as follows:
- The plaintiff is a German subject residing in Shanghai and carrying on business here as a Bill and General Broker and Accountant.  The defendants are British subjects residing in Shanghai, and with the exception of the defendant Alexander Myburgh, are merchants.  The said last-mentioned defendant is a Barrister-at-law.
- The defendants, together with one Stephan C. Michaelson, who is a German subject and not under the jurisdiction of this honourable Court, are the Committee of management of an association at Shanghai known as the "Shanghai Race Club," and as such Committee have jurisdiction in certain cases over the members of the said Club.  The said Club is possessed of property both in land and chattels.
- The plaintiff was a member of the said Club from the month of March 1873 until the date of his expulsion hereinafter mentioned.  He had paid an entrance fee upon his admission to the said Club and had regularly paid an annual subscription to the said Club in accordance with the Rules thereof, including his subscription for the present year, and in common with the other members of he said Club he was entitled to an undivided share and interest in the property of the said club.
- The 4th day of October instant was the last day for entering ponies to run at the forthcoming Autumn Race Meeting of the said Club, and on the said day last mentioned the plaintiff sent to the said committee nominations for nine ponies, together with the proper amount of entrance fees.  On the following day the plaintiff received from the Secretary of he said Club a letter in the words and figures following, that is to say:
Shanghai, 4th October, 1884.
OSCAR BRANDT, Esq.
  Sir, - I am instructed by the Stewards of the Shanghai Race Club to inform you that by a resolution passed at their meeting held today you are excluded from the Club.
  The reasons that have induced the Stewards to take this action are based upon the terms of your agreement with Mr. Eca da Silva as set forth in your letter to him dated 15th January, 1884.
  I return herewith your entrance fees.
  I am Sir, &c., BARNES DALLAS.
Secretary, Shanghai Race Club.
  Since the receipt by him of the said letter the plaintiff has in accordance with the terms thereof been excluded from the said Club and deprived of the use and enjoyment of the property and premises of the said Club.
- Before the receipt by the plaintiff of the said letter no notice or intimation whatever that any complaint had been made or was about to be made against the conduct of the plaintiff, or that the Committee were going to consider the conduct of the plaintiff or any matter affecting him specially was or since had been given or offered to the plaintiff of being heard in his own defence.
- The plaintiff is informed and believe that the defendant J. J. Keswick was not present when the said letter of the 4th of October was ordered to be written and that he has since temporarily left Shanghai and that he has taken no part in the action of the said Committee against the plaintiff.
- The plaintiff has since the receipt by him of the said letter been informed by the said Committee that in excluding the plaintiff as aforesaid they acted in exercise of the powers conferred on them by the 4th of the rules of the said Club, the material part of which said rules is as follows, namely: "No person who shall have made default in payment of those     stakes, forfeits or bets, or who shall have been party at any time, anywhere, to any fraud or mal-practice connected with Horse Racing, shall be admitted a member of this Club.  And if any member should be hereafter discovered to have been or should be adjudged by them to be so, his membership shall thereupon at once cease and determine, and he shall thenceforward be excluded from the Club."
- The plaintiff alleges that the said Club have not "adjudged" him a defaulter or guilty of any fraud or malpractice within the meaning of the said Rule, and he alleges that as regards himself the said Committee have not made any adjudication within the meaning of he said rule and he denies that the Committee have proceeded upon a complain as required by the said rule.
- The plaintiff denies that he has been a defaulter or guilty of any fraud or mal-practice within the meaning of the said rule or otherwise.
- By reason of the premises the plaintiff has been and is greatly injured in his credit and reputation and has been deprived of large profits which he would otherwise have made from the sale of his ponies now in training and has been otherwise greatly injured, and the plaintiff claims by way of damages the sum of five thousand Shanghai Taels.
The plaintiff therefore prays:-
- That the defendants (other than the defendant J. J. Keswick) may be ordered to pay to the plaintiff the said sum of five thousand taels.
- That it may be declared by this Honourable Court that the resolution of the Committee of the said Club purporting to exclude the plaintiff from the said Club as null and void, and that he is still a member of the said Club and entitled to privilege of such membership.
- That the defendants may be ordered to restore the name of the plaintiff to the list of members of the said Club.
- That the defendants and their servants and the servants of the said Club may be restrained by injunction from interfering with the enjoyment by the plaintiff as a member of the Club of the use and benefit of the said Club and the property thereof.
- That the defendants, other than the defendant J. J. Keswick, may be ordered to pay to the plaintiff his costs of this suit.
- That the plaintiff may have such further or other relief as the nature of the case may require.
In answer to the petition, the defendants say as follows:-
- The defendants leave it to the plaintiff to prove his statement s concerning himself and his business contained in the first paragraph of the petition, and admit the correctness of the other statements in the first and second paragraphs.
- The defendants admit the correctness of the statements in the 3rd paragraph of the petition with this qualification, that is to say, they allege that the plaintiff was only entitled to an undivided share and interest in the property of the Shanghai Race Club subject to the Rules of the said Club, and that in the event of his ceasing to be a member of the said Club by expulsion or otherwise he retained no interest whatever in the property of the said Club.
- The defendants admit the correctness of the statements made in the 4th paragraph of the petition.
- In answer to the 5th paragraph of the petition the defendants say that before the receipt by the plaintiff of the letter excluding him from the Club as set forth in the 4th paragraph of the petition and not later than the 2nd day of October, 1884, a friendly warning was given to the plaintiff by the Secretary of the Shanghai Race Club that Mr. Eca da Silva intended to bring a complaint against the plaintiff before he Committee of the said Club, and on the morning of the 4th day of October, 1884, the said Secretary told he plaintiff he had received such complaint, it being addressed to the Stewards of the Shanghai Race Club.
  The defendants further say that in answer to the said 5th paragraph of the petition that the complaint of Mr. Eca da Silva was laid before and carefully considered by them in general meeting assembled in the afternoon of the 4TH day of October, 1884, and that in consequence of that complaint, and the evidence accompanying it, meaning by such "evidence" more particularly the terms of an agreement between the plaintiff and Mr. Eca da Silva dated 15th day of January, 1884, one of the defendants after perusing the aforesaid complaint and evidence wrote a letter to the Stewards of the said Club, formally complaining against the plaintiff and Mr. Eca da Silva and demanding that the conduct of both these members of the said Club should be investigated, which investigation took place at the meeting of the defendants on the 4th day of October, 1884, hereinbefore referred to  and after such investigation they instructed the Secretary to write to the plaintiff that they had decided to exclude him from the said Club for the reasons mentioned in the letter of the Secretary set forth in the 4th paragraph of the petition.
  The defendants further say in answer to the 5th paragraph of the said petition that the plaintiff had an opportunity of being heard in his own defence, because he did, in fact on the 5th day of October, 1884, reply to the said letter of the 4th day of October, 1884, but did not in such letter or otherwise according to the judgment of the defendants show any good reason why they should alter their previous decision, and the Secretary of the Club, by their instructions accordingly wrote to the plaintiff on the 6th day of October, 1884, to the effect that the defendants adhered to their previous decision to exclude the plaintiff from the said Race Club.
- The defendants admit the correctness of the statements made in the 6th and 7th paragraphs of the petition.
- The defendants deny the correctness of the statements made in the 8th paragraph of the petition.
- The defendants allege that in their judgment he plaintiff has been guilty of mal-practice within the meaning of the said 4th rule of the said Club in his dealings with Mr. Eca da Silva.
- Save as aforesaid the defendants deny all the allegations in the plaintiff's petition.
- The defendants further submit to this Honourable Court that looking to the matter of the jurisdiction of this Court as created by Her Majesty the Queen of Great Britain, the Court should not take cognizance of the plaintiff's petition for that the petition is against the defendants as the committee of management of the Shanghai Race Club, and that the said Club is composed of members belonging to various nationalities other than British, and they pray that the said petition nay be dismissed with costs.
Mr. Wainewright said - May it please your Lordship, this is a suit for relief for the expulsion of the plaintiff from the Shanghai Race Club, and the relief applied for is of two kinds - that is, the petition asks for a mandatory injunction to restore the plaintiff to the Cub, and that the Committee may be restrained from interfering with his enjoyment of the Club; and it also asks for damages.  
  It has been agreed between my learned friend and myself that we will deal with the case, with your Lordship's permission, in two halves.  In the first place we shall deal with the question of an injunction; and then, if your Lordship is of opinion that you can entertain the suit, the question of damages will be reserved for a future occasion.
  If your Lordship is of opinion that the expulsion of the plaintiff was improper under the circumstances, and that he is entitled to an injunction restoring him to the Club, and restraining the defendants from obstructing his use of the Club, then the question of damages should be dealt with separately and afterwards - at a future hearing. That will avoid the necessity of the plaintiff's going into a quantity of evidence which your Lordship's view of the law may render unnecessary.  It is my learned fiend's suggestion, and I have agreed to it. - Mr. Wainewright then read the paragraphs of the petition with the defendants' answer to each paragraph.
  His Lordship - What do you mean by the defendants being ordered to pay? Do you man personally, or out of the funds of the club?
  Mr. Wainewright said he sued them personally.
  His Lordship asked, would the defendants be liable personally, unless he proved bad faith and malice?
  Mr. Wainewright said he sued them personally; but he would take the money in either way - either from them personally or from the funds of the club.  However, they were not on a question of damages at present.  With regard to the question as to whether the Court had jurisdiction or not, as his learned friend had raised it in the answer he was bound to notice it; his learned Friend contended that the Court had no jurisdiction on the ground that the Club was composed of various nationalities other than British; but he was at a loss to know what Mr. Robinson's position was as to that.  The defendants were British subjects; they had done a wrongful act towards his client, and therefore his client came to the Court for redress.
  His Lordship - Personally?
  Mr. Wainewright - Well, it is difficult to distinguish the capacities in which they acted.
  His Lordship suggested that the Counsel should clear the ground by first dealing with the issues of law which rested on admitted facts.  After a lengthy discussion he formalised the two issues which he thought should be decided upon before any evidence was gone into as follows:-
1st. - Will the Court take jurisdiction over the defendants having regard to the fact that the acts complained of were committed by the defendants as members of the committee of management of a Club comprised of members of various nationalities?
2nd. - Whether the exclusion of the plaintiff from the Club by the Committee under their letter of the 4th October will hold good, having regard to the fact that the plaintiff had not previously been called upon for his defence?
  Mr. Wainewright then proceeded to deal with the first issue.  He said of the seven Committee men, six were under his Lordship's jurisdiction, and therefore, as they formed a majority of the committee, they certainly had the power to reinstate the plaintiff if they were ordered.
  His Lordship could not see that it made any difference whether they formed a majority or not.  His view of the case was this.  He thought it obvious that he could entertain suits against any British subjects in that Court and give judgment according to what he thought was right to be done.  It might be that the Court would make a decision which, owing to the different nationalities in the place there would be a difficulty in enforcing.  But while sitting in judgment on a case against a British subject he had nothing to do with that - he had to make a decree in accordance with what he thought right, and when the decree had to be enforced, then would be the time to consider any difficulties in the way of enforcing it. He did not think, subject to anything which Counsel might urge, that any consideration of possible difficulties in the way of enforcing a decree would restrain him from declaring hat that should be done which he considered right.  This was his view.
  Mr. Wainewright said it was perfectly clear that a Court in England would not refuse jurisdiction over a Club in London because some of the members were Frenchmen living in France.
  His Lordship thought the cases were not analogous, as in that case the Frenchmen might come to England, and they would then be under the jurisdiction of the Court; but here the foreign members of the Club could never come under the jurisdiction of this Court.  The difference was that here the jurisdiction was purely a personal jurisdiction; there was no territorial jurisdiction.  There might be cases in which it would be impossible for the Court to give effective redress; but he should be loath to say that he could not give redress in any way where a British subject had wronged another British subject or a foreigner.  If the Court could not give redress, who could?
  Mr. Wainewright said certainly.  It would be most inconvenient if his learned friend's contention were upheld because there was not a local body here which did not represent mixed nationalities.  After citing one or two cases which he thought were somewhat analogous, - though he admitted that he had been unable to find a case which was exactly analogous - he said he would not say any more on this point until he heard what his learned friend had to say because he really did not understand Mr. Robinson's position.  If that position were correct the directors of the Hongkew Wharf Company, the Electric Company, and all the other Companies of Shanghai could get rid of all their liabilities because they represented mixed bodies of shareholders.  The defendants were British subjects who committed a wrong towards his client, and he submitted that the Court had power to redress it.
  Mr. Robinson submitted that it would be extremely inconvenient if the Court attempted to exercise jurisdiction in such a case as this.  The Club consisted of 151 English members and 74 foreign members.  The Committee which represented this Club were supposed to act for all the foreign members as well as the English, and their conduct had to be judged by that standard.  The Club was governed by its own rules, and that was a convenient form of government.  The government of the Club by this Court would lead to great confusion.  Supposing that this Court granted the injunction prayed for, and supposing the committee resigned and a new committee were  elected, consisting, say, of three English, three Americans, and two Germans - any proportion you liked in which the English were in a minority - how could this Court enforce its decree for Mr. Brandt to be re-instated?
  His Lordship asked if the same argument might not be used with regard to partnerships.
  Mr. Robinson contended that partnerships were on a different footing from clubs.
  His Lordship - Your argument amounts to this - that in China and Japan and Turkey, and wherever extra-territorial laws prevail, the rules of associations of this kind are above all law.
  Mr. Robinson said the contract was between one member of the Clun and the other members.  The Shanghai Race Club was a body of men of various nationalities bound by their own riles - rules which could not be brought within the purview of this Court.  Supposing the committee had been foreign, a foreign Court might take an entirely different view of the case from the view of this Court, this was a conflict of position which he did not think ought to exist, and which could be avoided by adopting the tribunal foreseen by all who became members of the Club, the Committee, from whose decision he could appeal to the members themselves; then, if they agree with the Committee, there was an end of the matter.
  His Lordship - Then you put it above all law? The Shanghai Club, the Race Club, the Cricket Club, the Rackets Club, none of these institutions which we have are subject to any Court of Law?
  Mr. Robinson - I should think not, my Lord.  If your Lordship grants this injunction did it not come to this - that your Lordship would be directing seventy-four foreigners over whom you have not, and cannot possibly acquire, any jurisdiction, to admit to their Club a person whom they disapprove of.
  Mr. Wainewright said the matter had not been adjudicated upon by the Club, but the Committee.
  His Lordship said that did not appear on the pleadings, and he could not consider it at present.
  Mr. Robinson, in conclusion, repeated that if his Lordship made the decree applied for he would be directing seventy-four persons over whom he had not, and could not have, any jurisdiction to admit to their Club a person of whom they disapproved.
  Mr. Wainewright - Does your Lordship wish to hear me again?
  His Lordship - No., Mr. Wainewright.  It is, to my mind, beyond all measure clear that this Court is bound to redress against British subjects.  Seeing that this Court is the only Court that can have jurisdiction over the Shanghai Race club, this Court is bound to entertain a suit against those stewards by any person who feels himself aggrieved.  If I held the contrary, I should be holding that those stewards were totally irresponsible, because it is beyond al measure clear that if the Court has no jurisdiction over them no other Court has.  I cannot think that I should be right in holding that, or in holding that any British subjects who have done wrong are exempt from the jurisdiction of this Court.  It may be that numerous anomalies arise from extra-territorialism, but I apprehend that that is no reason why this Court should not go as far as it can in redressing injuries.
  I apprehend that in this case there can be no difficulty, if I am satisfied that he has been wrongfully excluded, in my making a decree upon the British stewards which would be binding on them, and which would give the plaintiff a very considerable and complete redress.  If it turns out afterwards that through there being foreigners in the Club there should be difficulties in my decree being carried out, I apprehend they must be dealt with as they rise.  In the meantime I have no doubt that if he makes out his case I shall be entitled to make a decree to give him sufficient redress; on that point I am clear.
  A long discussion then ensued as to whether or not the second issue formulated by his Lordship rested on facts admitted by both parties, and whether this issue should be dealt with at this stage or later.
  Mr. Robinson wished before dealing with this issue to produce evidence as to the circumstances in which the Committee expelled the plaintiff.  His Lordship, however, said it appeared to him to be clearly admitted in the answer that prior to his expulsion, the plaintiff had not been called upon to offer any defence; and he was strongly of opinion that it would save time if counsel now confined themselves to the broad legal issues as to whether a Club could in any circumstances expel a member for misconduct without calling upon him for a defence.  This course was at length agreed to.
  The Court ten adjourned for tiffin.
  On resuming in the afternoon,
  Mr. Robinson applied for leave to amend his answer by inserting the following words in the fourth paragraph:-
  "Before deciding on the exclusion of the plaintiff, the defendants present at the meeting of the committee on the 4th day of October hereinbefore referred to had before them what they considered sufficient materials for forming a sound judgment, and they decided that it was unnecessary to call for any explanation, and they acted in the bona fide exercise of their discretion for the benefit of the Club."
  His Lordship did not see the necessity for the amendment; but Mr. Wainewright offered no objection to it, and after some discussion it was allowed.
  Mr. Robinson then addressed himself to the question whether the committee had a right, on any grounds, to expel the plaintiff without calling on him to defend himself against the charge of mis-conduct brought against him.  He said the Shanghai Race Club was formed for the purpose of honest sport in horse-racing, and any conduct on the part of members which tended to the contrary was injurious to the social purposes of the club.  The modes in which these purposes were to be carried out were best decided by the members themselves, and they took the form of the Rules of the Club.  By those Rules the power of admitting persons to the Club and excluding members from the Club were vested not in the members but in the committee; but that, he took it, in no way detracted from the power of any member who should be so excluded from appealing to his fellow-members for redress in the case of any injury or grievance which he might fancy he had received from the Committee.  The petition did not say that the Committee had acted arbitrarily, or from any improper motive, but simply that they had not adjudged the plaintiff guilty of any malpractice; and the plaintiff alleged further that he had not committed any malpractice.
  The Committee, however, were of a different opinion, and if the plaintiff was not satisfied with their judgment, it seemed to him (Mr. Robinson) that he had ample redress under the 10th Rule of the Club by calling a meeting of the Club to decide whether they approved of the action of the Committee.  Whether he could not or would not do this Mr. Robinson could not tell, but as a fact there had been no such meeting called.  
  Then it was objected that he had been excluded without being offered the means of making a defence.  In justification of their action, the Stewards said they did not require to call him before them, because they had before them sufficient material to form a sound judgment with reference to the question of exclusion.
  His Lordship asked Mr. Robinson if he could give him any authority for the proposition that the Committee or governing body of a club or institution being satisfied of a member's misconduct was sufficient to justify them in excluding him without hearing him in his defence.
  Mr. Robinson cited the cases of Hopkinson v. The Marquis of Exeter (37 L.J. Chan., 173), and Lyttleton v. Blackburne (45 L.J. Chan., 219).  He said in support of the complaint against the plaintiff a letter was produced in his own handwriting.  That letter he would read to his Lordship.  It was dated the 15th January. 1884.
  Mr. Wainewright objected to the letter being read.
  His Lordship said they were at present simply on the legal question as to whether the Committee were not bound to call on the plaintiff to defend himself before expelling him.  The letter was dated months before the complaint was made against the plaintiff, and it could not therefore have been written in answer to the charge against him.
  After a long discussion, in which Mr. Robinson insisted somewhat warmly on his right to read the document, his Lordship declined to hear it read at this stage.
  Mr. Robinson said the letter virtually announced to a confession of malpractice.  By it the plaintiff was, as it were, convicted out of his own moth.
  His Lordship said that did not affect the question of giving the plaintiff an opportunity of defending himself in the least degree.  The letter might have been capable of some explanation.  Whether the evidence against him was strong or weak, as he understood it, according to English law they were equally bound to hear him in his defence.
  Mr. Robinson then enlarged on the cases he had cited, as showing that it was not necessary to call on the plaintiff for a defence before expelling him.
  His Lordship could not see that the cases bore out Mr. Robinson's contention.  In both cases the persons expelled had ample opportunities for defending themselves.  He pointed out that the word "adjudged" was actually used in the rules of the Shanghai Race Club; this implied a judicial investigation, and it could scarcely be considered a judicial investigation if the plaintiff as not allowed an opportunity of defending himself. His Lordship quoted from decisions by Sir George Jessop, late Master of the Rolls, in the case of Labouchere v. Lord Wharncliffe, and Fisher v. Keene in support of the contention that a member of a club accused of wrong-doing must be allowed a hearing before being expelled.
  Mr. Robinson then dealt with the cases of Labouchere v. Lord Wharnclife and Fisher v. Keene, contending that the decisions in those cases were not given on the grounds of the ecpelled members not having been granted a hearing, and that these cases ought not to be taken as authorities in this case.  If, however, his Lordship thought differently, it was no use his prolonging the argument.
  Mr. Wainewright said he also relied on the cases of Labouchere v. Lord Wharncliffe and Fisher v. Keene.  Of course there were many other cases which went to the same effect and laid down the same principle.  He would only refer, however, to the case of Wood & Wood, (L.R. 9 Ex., 190).  He did not propose to follow out all these cases, because his Lordship had already read some passages which seemed to him conclusive, but in the case of Wood & Wood, Chief Baron Kelly had said in reference to a similar body who had expelled a member, "They are bound in the exercise of their functions by the rule expressed in the maxim audi alterem partem - that no man shall be condemned to consequences resulting from alleged misconduct unheard and without having an opportunity of making his defence."
  His Lordship said that appeared to him to be so clearly the commonsense view of the matter that he could not understand anyone disputing it.  To make a Committee irresponsible by upholding its judgment when they had arrived at the judgment in an unjudicial and partial manner seemed to him to be out of the question.  It might be that in one case the evidence was strong and in another weak, but whether it was strong or weak it was equally the duty of the body exercising the power of expulsion to give the accused person an opportunity of defending himself.
  Mr. Wainewright said after that expression of opinion on his Lordship's part it would be quite superfluous for him to say any more.
  His Lordship - I feel so little doubt about this point that I do not think there would be any use in my deferring judgment or waiting to give my reasons at any length. I think these recent cases, decided by one of our strongest judges, show beyond all doubt that it is a fundamental principle of law at the present day that a Committee taking action with regard to the expulsion of a member of a Club are bound to communicate to him the fact of the charges being brought against him and to give him the fullest and most complete opportunity to show cause against his expulsion.  It is quite clear, as I said just now, that in one case the evidence may seem very strong and the Committee may really think they ought to act at once; and in another case they may feel that it is slight, and that there may be a doubt. But I think I should be wrong in allowing the Committee to believe that they were themselves to be the judge of what evidence is strong or weak.  Whether the case is strong or weak, they are equally to act on fixed principles.  
  Mr. Robinson has told us that in this case the ground of conviction was a letter written by the plaintiff himself; but it will be seen here in this very case of Labouchere v. Lord Wharnclife much the same thing appears, because there the ground of conviction was also a letter, because it was stated that at the Committee meeting at which the plaintiff in that suit was expelled, a letter which appeared over his signature in a paper called Truth was read.  There action was taken on letters of the plaintiff himself which were not only written, but published in his own name.  Now in this case it is asserted that there was a letter of the plaintiff which was the means of convicting the plaintiff of his offence - whatever it was.  But it appears that this letter was written several months previously - not written in any way with reference to the charge brought forward at the meeting of the Committee; and therefore I apprehend it really has no bearing on the case. Here the Committee have, to use the word of their own rule, to "adjudge" on the merits of the case.  They have to meet, and, acting as a judicial or quasi-judicial body, they have to entertain this charge brought forward against the plaintiff, and thy have certainly, I think, beyond a doubt, to give him an opportunity of appearing and defending himself against these charges and clearing himself if he can.
  It appears to me perfectly immaterial how clear or how conclusive the evidence may be.  The letter might be forged, or there might be reasons why I should be set aside.  It appears to me quite clear, so far as my knowledge of the law goes, and so far as I understand the decision of Sir George Jessop's, that the plaintiff has not been properly expelled, as he has not been given an opportunity of clearing himself of the charges against him.  I think it is clear on the pleadings that he is entitled to succeed technically - how far that may be limited substantially I cannot say, - and on the question of damages I can of course offer no opinion at this stage.  But that he is entitled to be re-instated in the Club I entertain no doubt.  With regard to damages I apprehend that it is necessary for me to go into the whole case, and I think I shall have to try the case instead of the committee.
  Mr. Wainewright - That is what I am extremely anxious your Lordship should do.
  Hs Lordship - I am quite clear, as I stated before, that, technically speaking, upon the pleadings he is entitled to be re-instated as a member.  I must take the pleading as conclusive.  Mr. Robinson has had ample time to amend them if he wished, and therefore I must take the facts admitted in the pleadings as admitted,
  Mr. Robinson - There is nothing to amend.
  His Lordship - No; I have no doubt the pleadings are correct, and upon them I have arrived at this conclusion.
  Mr. Robinson - Then I would make a suggestion.  The only remaining question of course is what damages the plaintiff is entitled to.  I would suggest that perhaps it would be better for me to apply for a jury to be summoned to assess the damages.
  Mr. Wainewright - Unless I am obliged to have a jury, I do not see any advantage in it.  So far as my experience goes, a jury is such an uncertain quantity ------
  His Lordship -I do not know even what he charges are, but the question is whether you had not better let the case rest where it is.
  Mr. Wainewright - My client is very anxious to have the whole case brought out.
  His Lordship - I should think myself that it is a very proper case indeed to have a jury to assist in.
  Mr. Wainwright - There is, in a case of this kind in a place like this, a great amount of prejudice on one side and the other; and for my part I should prefer that your Lordship or the Assistant judge should sit here and assess the damages.
  His Lordship - I should be inclined to take the assessment of the damages in the most summary way.
  Mr. Wainewright - It is not so much the amount of the damages which is the great object; but my client is very anxious to have the matter thoroughly investigated.
  Mr. Robinson - I apply for a jury.
  His Lordship - I suppose you are entitled to apply, but of course it is rather late now.  I do not think you are entitled to it as a right now. But I think it would be very convenient to have a jury.
  Mr. Wainewright - I think it would be very inconvenient.
  Mr. Robinson said he had not called for a jury because he did not know whether the case would ever reach the stag at which a jury should be required.
  His Lordship said Mr. Robinson might nevertheless have called for a jury to be summoned in case it was required.
  Mr. Robinson, after communicating with two or three of the defendants, who were present in Court, said - My clients are rather inclined to accept the suggestion that your Lordship and the Assistant Judge should assess the damages.
  His Lordship - Why the Assistant Judge?
  Mr. Robinson - Well, then, your Lordship only.
  Mr. Wainewright - I would suggest, my Lord, that the case should simply proceed in the way that my learned friend and I originally agreed.
  His Lordship - Then, as regards damages, it is agreed that we simply proceed?
  Mr. Wainewright - Yes, my Lord.
  The case was then adjourned till Tuesday, the 11th inst.
  Mr. Wainewright - In the meantime I get a declaration in the meaning of the 3rd, 4th and 5th paragraphs of the petition?
  His Lordship - I simply expressed my opinion; I make no decree until the case is finished.
  Mr. Wainewright - Quite so, my Lord, but you might grant an injunction.  However, I do not press for it.
  His Lordship - It could only be an interim injunction.
  Mr. Wainewright - I do not press for it, my Lord.
  The Court then rose.

 

Source: North China Herald, 12 November 1884

LAW REPORTS.
IN H.B.M.'s SUPREME COURT FOR CHINA AND JAPAN.
Shanghai, 11th November, 1884
Before Sir Richard Temple Rennie. Kt., Chief Justice.
OSCAR BRANDT
v.
J. M. RINGER, A. McLEOD, A. MYBURGH, W. HOWIE, J. J. KESWICK AND J. S. FEARON.
Mr. R. E. Wainewright appeared for the Plaintiff, and Mr. A. Robinson for the defendants.
  The case was resumed from the 3rd inst.
  Mr. Wainewright intimated that before going further with the case he wished to apply for leave to amend the petition by inserting a new paragraph.  He read the paragraph, which alleged that the action of the defendants in expelling the plaintiff from the Race Club was not bona fide, but was unreasonable, capricious, and the result of prejudice.
  His Lordship thought it was rather late to amend the petition.  Mr. Wainewright had had ample time to amend the petition out of Court.
  Mr. Wainwright said he had given Mr. Robinson notice of the amendment on the 8th inst.
  His Lordship said if Mr. Robinson objected to the amendment he should not allow it.
  Mr. Robinson said he could not agree to the amendment, because it introduced an important element which did not exist at all in the case as it originally stood.
  After some further argument his Lordship refused to allow the amendment.
  Mr. Wainewright apprehended that in spite of his Lordship's refusal to allow the amendment he was still entitled to question the bona fides, as the defendants had raised that issue in their answer.  They alleged that their action was bona fide; and he had a right therefore to question that statement on their part and to give evidence against it.  His authority for saying so was a case recently decided in this Court by his Honour the Assistant Judge, Taylor v. Bell, where the defendants had alleged bona fides in their answer, and his Lordship held that the plaintiff was therefore entitled to go into the question of bona fides.  With regard to the damages, which his client sought to recover, he took it that his case for damages rested chiefly on Lord Cairne's Act, 211 and 22 Vic., cap. 27.  Mr. Wainewright cited the cases pf Eastwood and Lever (33 L.J., Chan. 355) and Fritz and Hobson (14 L.J. Chan., 542), as showing that the plaintiff, having shown to the satisfaction of the court that the action of the defendant was wrongful, was entitled to damages if he could prove that the defendants had not had reasonable and probable cause for their action.
  Mr. Robinson understood that t defendants' action had been held to be not wrongful, but invalid.
  Mr. Wainewright said their action was invalid and therefore wrongful.
  His Lordship asked Mr. Wainewright if he could cite any cases where damages had been given against a Club Committee.
  Mr. Wainewright said he could not.
  His Lordship - Then I understand that if I give damages against the defendants, I shall be giving a judgment which has never been given before.
  Mr. Wainewright - I think you will be acting by analogy.  I think I can cite several cases in which damages have been given without any precedent for it.
  His Lordship - Oh. I dare say.  I think that is very likely.
  Mr. Wainewright cited the case of Bowen and Hall, Court of Appeal, Q.B.D., 333, and continued to argue that under Lord Cairne's Act the plaintiff was entitled to recover damages.
  Hs Lordship called Mr. Wainewright's attention to a passage in Baron Amphlett's summing up in the case of Wood and Wode, which appeared to his Lordship to show that damages could not be recovered against a club Committee.
  Mr. Wainewright said in that case the plaintiffs had been held not to have been expelled; but in the present case the plaintiff had been expelled and had suffered losses in consequence.
  His Lordship said he should hold in the present case that the plaintiff had not been expelled. The act of expulsion having been void by reason of the plaintiff not having had an opportunity of being heard.
  Mr. Wainewright - The expulsion of the plaintiff has been a matter of fact.
  His Lordship - No, pardon me.
  Mr. Wainewright - Yes, my Lord.  His ponies have been struck out of the entries.
  His Lordship -There was an attempt to expel him, which failed.
  Mr. Wainwright - Which was tolerably unsuccessful, as far as the act goes.
  His Lordship - Not at all. They have attempted to expel the defendant from the Club; but they have failed, because they omitted to give him an opportunity of being heard before the decree of expulsion was made against hm.  It is quite true that they may have subsequently taken very effective action to bar him from exercising his privileges as a member of the Club; but that does no prove that they excluded him.
  Mr. Wainewright - They struck his name out of the list of members and exhibited it struck out.  I can prove that, and they have prevented him from running his ponies.
  His Lordship - I do not doubt that.
  Mr. Wainewright said in any case the plaintiff had been deprived of his use and enjoyment of the Club; defendants had prevented him from running his ponies and had publicly gibbeted him as expelled.  The defendants had injured the plaintiff, and that was of itself a cause of action.
  Hs Lordship said not necessarily.
  Mr. Wainewright said it was a legal maxim that there was a remedy for everything.
  His Lordship said it was a maxim which was liable to be very much qualified.  He pointed out that damages had never been given where members had been expelled from a Club.
  M. Wainewright said in the cases of Wood v. Wode, Fisher v. Keene, and Labouchere v. Lord Wharncliffe only very small rights of property had for a short time been in jeopardy; but in the present case the plaintiff had suffered actual injury from the attempt to expel him.
  His Lordship said Mr. Labouchere was prevented from attending the weekly dinner at the Beefsteak Club and Major Fisher was not allowed to take his chop at the Army and Navy Club, and he probably had to pay eighteen-pence for his chop at a chop-house instead of nine-pence at the Club.
  Mr. Wainewright said in the present case the damage was very substantial.
  Hs Lordship did not see that he could make any difference between nine-pence and Tls. 5,000.  He a sked how he was to arrive at the damages; was he to put himself in the position of the Committee or the Club, and decide whether the plaintiff was in default or not?
  Mr. Wainewright submitted that his Lordship had a right to test the bona fides of the Committee and form an opinion as to whether they were justified or not.
  His Lordship considered that he could not put himself in the position of the Committee and judge whether he should, in their place, have expelled the plaintiff or not.  If he entertained the question of damages at all, all he could do would be to hear evidence as to what losses the plaintiff had actually suffered by reason of the attempt to expel him.  It seemed to him impossible that he could place himself in the position of six or seven gentlemen well acquainted with racing affairs and who understood how a Race Club had to be managed, and to judge whether or not the plaintiff ought to be expelled.  He would decline to go into the question of the grounds upon which the plaintiff was expelled unless Mr. Wainewright could give him authority for doing so.
  Mr. Wainewright said he could not give any direct authority on that point.
  His Lordship quoted the opinions of Sir George Jessel and other judges, and said it was clear to him that if the Committee had proceeded properly in this case and had taken precautions which were wise and proper he could not have interfered with their decision, whatever that decision might be.
  Mr. Wainewright contended his Lordship could, under certain circumstances.
  His Lordship said he might possibly interfere with their decision if malice or bad faith or fraud were imputed, but not otherwise.  Mr. Wainewright might have strengthened the case if the petition had contained the paragraph which he had proposed this morning to insert.
  Mr. Wainewright contended that he was entitled to raise the question of the bona fides of the defendants, because the defendants alleged bona fides in their answer.
  His Lordship considered that on the pleadings Mr. Wainewright could not go into bona fides.
  Mr. Wainewright said the Assistant Judge had decided in a similar case, in the course of the suit Taylor v. Bell, that he could do so.
  The Assistant Judge, who occupied a seat on the Bench, said he did not think the cases were identical.  In this case, they knew everything before filing the petition; but in the case of Taylor v. Bell after filing the petition they got an order for discovery and from that they claimed to have obtained a knowledge of want of bona fides.  They could not discover this until after they had instituted the suit, and therefore they could not allege mala fides in the petition.  He had therefore held that under circumstances was unnecessary to require the defendant to file a replication denying bona fides, and had allowed that question to be raised upon the answer.
  Mr. Wainwright contended that if the plaintiff had been heard, and had felt that the defendants had not acted bona fide he would be entitled to come to this Court for redress, and he apprehended that his Lordship would then have to test the question of bona fides and sit in judgment on the case.
  His Lordship said he would offer no opinion on that point.  If the plaintiff proved a lack of bona fides or malice, or fraud against the defendants he might be able to obtain damages; but in this case no such charges were made.  Unless Mr. Wainwright could cite any authorities directly in point, he should be very loth to say that the Committee of a Club, a body of unpaid gentlemen who gave their services voluntarily, were liable to a suit for damages from members.  It would be most inconvenient. The members of a Club, he apprehended, reposed a certain amount of confidence in their Committee; they entrusted the Committee with the power of expelling members under certain circumstances.  Of course this power must only be exercised in a regular and proper way, and in this case he had ruled that it had not been exercised in a regular and proper way, and therefore their attempt to expel failed.  But the members entrusted the Committee with this power of expulsion, and it would be very inconvenient if their action had to be referred to a Court of Law whenever a member was dissatisfied with it.  If the member could give proof, or even make a charge of malice or fraud, he might perhaps claim damages; but otherwise no.  
  After some further argument,
  His Lordship said he was inclined to think that Mr. Wainewright had made out no case for damages, but he should like to hear what Mr. Robinson had got to say.
  Mr. Robinson said he had very little to say except to repeat what had fallen from his Lordship.  He cited the cases of Fisher v. Keene, and Labouchere v. Lord Wharncliffe as strongly supporting the view which his Lordship had taken.
  Mr. Wainwright then said if his Lordship decided that he could not go into the merits of the case, so far as the action of the Committee went in expelling the plaintiff, at least it would be competent for his Lordship to consider what were the consequences of their act, because his claim for damages would be largely founded on that. The Committee, by refusing to enter the plaintiff's ponies, had enormously deteriorated their value.
  His Lordship referred to the case of Wood v. Wode, where damages were refused.  He said that in every case where a member was ejected from a Club he suffered some damage before he could be reinstated.  Major Fisher could not get his chop at the Club, and he was probably hurt in his feelings by being shut out from the billiard-room which he used to frequent.  Mr. Wainewright might succeed in showing that the plaintiff had lost heavily, but that would not prove the personal liability of the defendants.
  Mr. Wainewright contended that the Committee, as agents of the Club, were personally liable for any unlawful act which they might do.  They were not deputed by the members of the club to turn out people without giving them a hearing, and they were personally liable for not having acted according to law.
  His Lordship asked Mr. Wainewright if he could cite any case in which that principle was applied to the Committee of a Club. His Lordship had himself cited the case of Wood v. Wode which seemed to show the contrary, and he thought it was a waste of time to cite general principles not applicable to a Club Committee.
  Mr. Wainewright said if his Lordship thought that the ordinary principles did not apply to a Club Committee he had no more to say.
  His Lordship then said - Well, I feel no doubt whatever about this case.  I think that the plaintiff's case as shown by the petition - as it would be shown even if I had allowed the amendment today which I have disallowed - does not show any valid claim for damages against the defendants.  The defendants being the Committee of the Shanghai Race Club, authorised to act in regard to the expulsion of members in a certain way, have taken action which this Court had already held to be improper and irregular, by reason alone, so far as we know, of the plaintiff not having been given an opportunity of being heard in his defence.  Upon that, this Court has held that his expulsion is void and of no effect. And the court will accordingly decree that he be re-instated as a member of the Club and that he have the costs of the proceedings which were necessary to procure his reinstatement. But when this Court is asked to proceed further and award damages for the attempted expulsion of the plaintiff which has not been successful, I apprehend that in the absence of any authority - any distinct authority - which can be given or produced on behalf of the plaintiff, the case of Wood v. Wode is an amply sufficient authority to show that no such damages should be awarded.
  I have already read one passage, and there are several more, in the judgment of the then Baron Amphlett - who was subsequently Lord Amphlett - which appear to me to directly apply to this case.  Moreover, it seems so clear to me according to reason and justice that if I had not had that case I should have been inclined on my own responsibility to arrive at the same conclusion.  It appears to me that a very great inconvenience would arise from a Court of Law putting itself into the position of a Committee to decide what was, or was not, sufficient ground for the expulsion of a member, and if it did not, if a case like this were brought forward it would practically have to assess simply the damages which the plaintiff might have suffered.  I think that would be most inconvenient; and I think it would be most inconvenient that the Committee, a body of members entrusted by the members with the power of expulsion, were liable for damages in cases in which they had acted wholly with bona fides.  Here the Committee have been wrong, as I have already held; and that wrong which they have - involuntarily perhaps - committed, will be sufficiently redressed - the plaintiff will be put back into the position which he occupied in the Club.
  But when it comes to recovering damages for the unsuccessful attempt to expel the plaintiff I apprehend the Court has to look at the matter in a very different way.  Considering, how inconvenient it would be for them to investigate a matter of this sort, and considering what I take to be the very distinct dictum of Baron Amphlett in support of my view, I apprehend that my proper course is to disallow the claim for damages altogether.  There will therefore be a decree reinstating him in the Club in accordance with the terms of the petition.
  Mr. Wainewright said with regard to the costs, he hoped his Lordship was not going to divide the costs because he (Mr. Wainewright) had agreed with his learned friend to a division of the hearing.  This argument would in the natural course have taken place in the first stages of the case, and the two hearings ought, he contended, to be treated as one.
  After some argument his Lordship suggested that Counsel should come to some arrangement as to the costs of this day's hearing.  Mr. Robinson afterwards announced that it had been arranged that each party should pay his own costs for today.
  Hs Lordship then entered judgment for the plaintiff in accordance with the second, third and fourth prayers of the petition, and for the defendants as regards damages, with costs of the first day's hearing to the plaintiff.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School