Emil Ford Lawyers

Bias - Are your decision makers impartial?

Click here to subscribe to Not-for-Profit Law NotesIn April 2015, a rider/trainer was not permitted to compete in an equestrian event at the Sydney Royal Easter Show. He had been disqualified from competition as a result of him unknowingly competing on a horse which had been doped (by the horse’s owner) at a prior event. His appeal against the disqualification to the Supreme Court raised two important issues which relate to voluntary tribunals:

  1. Reasonableness – we examined this issue in an earlier article. Read the article Voluntary Tribunals – what’s reasonable?; and
  2. Bias – Are your decision maker’s impartial?

The facts

Mr Christie is a professional horse trainer, rider and instructor. During the 150th Wagga Wagga Show, he rode the horse Royalwood Black Swan to victory in one of the Show’s most prestigious races. In attendance was Mr Capp, a director of the Agricultural Societies Council of NSW (ASC). The ASC is a not for profit organisation which aims to provide support services to member show societies such as the Wagga Wagga Show Society Inc, which was responsible for the Wagga Wagga Show.

Mr Capp selected the horse for a random drug test following the event. Unknown to Mr Christie, Ms Cullen, the horse’s owner, had given the horse two substances that had the effect of increasing its performance. Both substances were on the ASC’s banned list. After the horse’s positive drug test, Mr Christie and Ms Cullen were required to attend a hearing with Mr Capp and other directors of the ASC. Here, under the ASC rules, both were found guilty of permitting a horse to which a prohibited substance has been administered to compete. Ms Cullen was fined $500, disqualified from competition for 12 months and forfeited any prizes won by Royalwood Black Swan at the Wagga Wagga Show. Mr Christie was suspended from riding for 12 months.

A successful challenge

Mr Christie challenged this decision and sought to have the suspension set aside. He was successful at the first hearing on the basis that apprehended bias on the part of Mr Capp vitiated the decision of the ASC. Mr Christie argued that because Mr Capp personally undertook or furthered every step in the process from selecting the horse at the show through to chairing the disciplinary committee, there was apprehended bias (but not actual bias) on the part of Mr Capp. In other words, Mr Christie pointed out that Mr Capp had an interest in the matter that could have prevented a neutral evaluation of the case.

The Appeal

However, on appeal, the Court decided differently. For a finding of apprehended bias to be successful, the Court must be convinced that a fair-minded observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide. In this case, the question that had to be asked of a hypothetical fair-minded observer was whether Mr Capp’s position as an ASC director was likely to put him in a position where he could no longer exercise the degree of neutrality required to make an impartial decision at the hearing.

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"In this case, the question that had to be asked of a hypothetical fair-minded observer was whether Mr Capp ... could no longer exercise the degree of neutrality required to make an impartial decision ..."

Although Mr Capp was heavily involved in the matter, he did not undertake or oversee investigations as to whether the relevant conduct had occurred. Nor did he have to decide whether the outcome of those investigations and the character of the conduct justified the bringing of charges. Rather, his role was mainly “administrative and ministerial”. Because of this, the Court said that the primary judge had erred and allowed the ASC’s appeal.

This case is a reminder to not-for-profits and their board members that all decisions should be made in accordance with their rules or Constitution, and appropriate care should be taken to ensure that there is no risk of a fair-minded observer concluding that actual or apprehended bias is present. Not -for-profit board members should be especially wary not to actively take on a role similar to a prosecutor or fact-finder if they find themselves in a similar situation to the ASC.

If you would like to talk to someone about how your not-for-profit organisation and its board members can best avoid suggestions of bias in its decision-making processes, please contact , or .

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