Adamson, B.R. v West Perth Football Club Inc & Ors [1979] FCA 122

Federal Court of Australia|1979-11-26|Before: Northrop J

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG No. 18 of 1978 GENERAL DIVISION

WEST PERTH FOOTBALL CLUB INCORPORATED, WESTERN AUSTRALIAN

NATIONAL FOOTBALL LEAGUE INCORPORATED and SOUTH AUSTRALIAN

Common law doctrine of restraint of trade - Jurisdiction

of Federal Court - implied incidental jurisdiction; associated matters jurisdiction; jurisdiction pursuant to section 22, Federal Court of Australia Act.

Trade Practices Act 1974 ss. 45, 80 and 86. Federal Court of Australia Act 1976 ss. 5,19,21,22,23 and 32.

The Constitution ss.51(xxxix); 75,76,77(i), (ii). Judiciary Act 1903 ss. 2,30(a),33 and 40A, Acts Interpretation Act 1901 s.15A.

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG No. 18 of 1978 GENERAL DIVISION

WEST PERTH FOOTBALL CLUB INCORPORATED, WESTERN AUSTRALIAN NATIONAL FOOTBALL LEAGUE INCORPORATED and SOUTH AUSTRALIAN FOOTBALL LEAGUE INCORPORATED

Respondents ORDER. . JUDGE MAKING ORDER: Northrop J. DATE OF ORDER: 26 November 1979. WHERE MADE: ° Melbourne.

Declares that the rules and regulations of respondents, the Western Australian National Football League, Incorporated, West Perth Football Club, Incorporated, and the South Australian National Football League, Incorporated, insofar as they reguire the applicant, Brian Ronald Adamson, to obtain a clearance from the West Perth Football Club in order to be entitled to apply for a permit to play football with Norwood Football Club, Incorporated, are of no effect as being in restraint

Declares that the rules and regulations of the respondent the South Australian National League, Incorporated, insofar as they require the applicant, Brian Ronald Adamson, to obtain a permit in order to play football with Norwood Football Club, Incorporated, are of no effect as being in restraint of trade.

Declares that the rules and regulations of the respondent

the South Australian National Football League, Incorporated, insofar as they render Norwood Football Club, Incorporated, liable to a penalty in the event it includes the applicant Brian Ronald Adamson as a member of a team in a football match organised by that League are of no effect as being in restraint of

Orders that the respondents pay the applicant's costs including all costs reserved.

Orders that all parties have liberty to apply to the Court as they may be advised,

eeIN THE FEDERAL COURT OF AUSTRALIA ' VICTORIA DISTRICT REGISTRY VG No. 18 of 1978 I GENERAL DIVISION - BETWEEN: BRIAN RONALD ADAMSON Applicant and WEST PERTH FOOTBALL CLUB INCORPORATED, WESTERN AUSTRALIAN NATIONAL FOOTBALL LEAGUE INCORPORATED and SOUTH AUSTRALIAN FOOTBALL LEAGUE INCORPORATED Respondents NORTHROP J. REASONS FOR JUDGMENT 26 November, 1979.

On 19 May 1978 Brian Ronald Adamson, hereinafter called "the applicant", obtained in Melbourne an order in the Federal Court of Australia calling upon the respondents Western Australian National Football League (Incorporated), hereinafter called the "Western Australian League", West Perth Football Club (Incorporated), hereinafter called "West Perth", and the South Australian National Football 1 League (Incorporated), hereinafter called "the South Australian League", to show cause before the Court at Perth on 14 June 1978 why injunctions should not be made restraining t them from engaging in conduct specified in the order. The applicant was and 1s a professional player of the code of football known as Australian rules football and had played

as a member of the West Perth team in the football

competition organised by the Western Australian League.

He desired to move to Adelaide and to play football as

a member of the team of Norwood Football Club (Incorporated), hereinafter called "Norwood", inthe football competition organised by the South Australian League. The applicant

was unable to obtain the necessary clearance and permit to play for Norwood and if Norwood had included him in its team, Norwood would have been in danger of losing any premiership points which otherwise it would have received if it had

won the match in which the applicant had participated.

The applicant sought the injunctions pursuant to s.80

Trade Practices Act, 1974, as amended, hereinafter called

"the Act" and/or common law or equity. The substantive

basis for the claim pursuant to the Act was that the

respondents were trading corporations engaging in conduct

that constituted a contravention of s.45 of the Act. 'The substantive basis of the claim pursuant to common law or

equity was that certain rules and regulations of the respondents which were binding upon the applicant and the respondent imposed upon the applicant a restraint of trade which was unreasonable and unjustified, see Buckley v. Tutty (1971) 125 C.L.R. 353.

On 6 June 1978, the Chief Justice of the High Court of Australia, on the application of the Western Australian League and West Perth, granted an order nisi calling upon the Judges of the Federal Court anu the applicant to show cause why they should not be prohibited from proceeding with the hearing of the application for the injunctions. The order nisi included an order ;:

"That until the disposal of the order nisi all proceedings in the matter in the Federal. Court of Australza be stayed." As a result, the Federal Court adjourned the hearing of the

The High Court, at Sydney, heard argument on the order nisi for prohibition on 14 and 15 June 1978. The issues raised in those proceedings related to whether the

Federal Court had jurisdiction to hear and determine the

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matter pending in the Federal Court. The substantive question argued was whether the respondents or any of them or any of the associated football leagues, the National Football League of Australia hereinafter called "the National League", or the Victorian Football League, were trading corporations within the meaning of the Act and within s. 51

At the conclusion of the hearing of the proceedings before it, the High Court reserved its decision but lifted the order staying the proceedings pending in the Federal Court. On 21, 22 and 23 June 1978 at Perth, the Federal Court heard applications for interim injunctions pursuant to s.80 of the Act. In the course of that hearing it became apparent that they involved matters arising under the Constitution or involving its interpretation and the Federal Court directed that notice of the cause specifying the nature of those matters be given to the Attorneys-General of the Commonwealth and of the States of Western Australia, South Australia and Victoria, see $.78B Judiciary Act 1903, as amended, but under s.78B(5) the Court proceeded to hear and determine the application

for the granting of urgent relief of an interlocutory nature. One of the matters specified in the notices involved the nature and extent of the jurisdiction conferred by s.32 Federal Court of Australia Act 1976, as amended. Sub-section

"32.(1) To the extent that the Constitution pemmits, jurisdiction 1s conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked."

At the conclusion of the hearing the Court refused to grant interlocutory relief and adjourned the further hearing sine die. In giving its reasons for judgment, the Court, in relation to the

jurisdiction conferred by s.32(1) Federal Court of Australia Act

and insofar as the applicant sought relief pursuant to common

"This question is a matter of utmost importance both to the Commonwealth and to the various

States. It raises the question in a very stark form of the extent of the power of

jurisdiction to Federal Courts, jurisdiction which 1n the nomml course would go to the State Courts - the common law courts. Having regard to the constitutional problems involved and the absence of any submissions from the State Attormeys-General and the Commonwealth Attorey~-General, I cannot form the required degree of satisfaction to exercise the jurisdiction in that associated jurisdictim."

On 30 June 1978, at Sydney, a Full Court of the Federal Court of Australia allowed an appeal against the order refusing interlocutory relief but based its decision on facts and arguments not put before the Court constituted by a single Judge, see Adamson v. West Australian National Football League (Inc.) (1978) 20 A.L.R. 191.

On 27 February 1979 the High Court discharged the order nisi for the writ of prohibition holding that the respondents were trading corporations within the meaning of the Constitution and the Act and that the Federal Court had jurisdiction to hear and determine the application before it insofar as the application was made pursuant to the Act,

R. v. Judges of the Federal Court of Australia and Adamson ex parte West Australian National Football League (Inc.) (1979) 23 A.L.R. 439.

The matter came on for hearing before the Federal Court at Adelaide on 7 May 1979, when a number of procedural matters were debated. In the result, the further hearing of the Matter was adjourned to 23 May 1979 and the applicant was directed to give notice to the Attorneys~General of the Commonwealth and of the States of Western Australia, South Australia and Victoria of the tume and place when the matter would be heard, reminding them of the notices already given under s.78B Judiciary Act and giving notice of a further matter being the nature of the jurisdiction, if any, conferred upon the Federal Court by s.22 Federal Court of Australia Act.

On the resumed hearing at Adelaide on 23 May 1979, \

senior counsel appeared for the Attorney-General of the Commonwealth to intervene pursuant to the Judiciary Act

in order "to argue for the widest possible interpretation of s.32 of the Federal Court of Australia Act, and in addition to argue that the Federal Court, once it is properly seised of an application can deal with the application for an injunction pursuant to common law principle quite apart from 8.32 Federal Court of Australia Act." Insofar as it may

have been necessary the Court granted leave to the Attorney- General of the Commonwealth to intervene. No Attorney-General

of a State appeared pursuant to the notices given. The hearing proceeded at Adelaide on 23, 24 and 25 May 1979 and at Melbourne

on 28 and 29 May 1979 and at the conclusion of the hearing, the Court reserved its decision.

Each of the respondents is a corporation under s.45(1) of the Act, R. v. Judges of the Federal Court of Australia

ex parte West Australian National Football League (Inc.), supra.

The nature of a club and of a league is illustrated by a passage from the judgment of Stephen J. at pp. 459-60 :

"The basic unit in organized football is the club. A group of clubs make up a league or association within which they conform to a common code of rules and compete amongst themselves. 'The prosecutor West Perth Football Club (Inc), is such a basic unit and is a member of a highly developed State-wide league, the Western Australian National Football League (Inc), the second prosecutor. The league is in tum a member of a national body, the National Football League, of which the league's counterpart in South Australia, the

South Australian National Football League (Inc), is also a menber.

The activities of the West Perth Club exhibit many features of what some deplore as the commercialization of sport, features which have been described in other judgments. It is no doubt the

fate of sporting clubs whose teams engage in competition with other clubs that, as their competitive encounters attract increasing public interest, so too will their need for revenue increase 1£ they are to continue successfully to engage in

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gompetition with rival clubs, seeking and retaining skilled players and providing facilities for increasing numbers of members and accommodation for other spectators at matches.

As a club's popularity grows and with it its needs for fumds, so too does its ability to obtain those funds. Instead of having to rely largely on membership fees, its gate receipts increase and other profitable avenues open up. ...

The objects of the West Perth Football Club as expressed in its rules are in themselves entirely consistent with what would be expected of a sporting club ...

Its principal activity consists of all that is involved in fielding club teams in the series of matches whichigo to make up the annual competitions organized by the league. It is directly from this activity that it derives almost half its income since it receives a large share of the gate takings and other receipts which the league derives from matches played by the club's teams. Its membership fees provide another third of its income, the balance coming fron profit on bar trading, catering and the like and from the sale at a profit of club badges, ties and souvenirs.

These income producing activities are no doubt in the nature of trade and in one sense it can be of little significance that the spectacles which

the club promotes involve teams of footballers. The staging of sporting spectacles may quite

well provide that activity from which a trading corporation derives its income, However the

fact that it is Australia's most popular spectator sport, football, which is in question is, in another sense, of great importance. It explains why 1t is that the club has thousands of fee paying members who yet derive no profits from

whole complex of ardently supported clubs, of State leagues and of national associations exist and thrive, those responsible for their promotion being content to find their reward in the satisfaction of their enthusiasm for football."

The national League is a company incorporated pursuant to the law of the State of Victoria. Under its Articles of Association, the various State leagues including the Western Australian League and the South Australian League

are affiliated bodies and each affiliated body is entitled to

nominate one person as its representative for membership of the National League. One of the main objects of the National League is

"3. (b) to promote, advance, cultivate foster and control the Australian Game of Football."

The powers of the National League include the following

"18. (b) Subject to Article 47 of these Articles of Association to frame and at any time to alter or revise the laws governing the game ...

(e) to frame and at any time to alter or revise regulations covering the tems and conditions of the application for and the granting or refusing of clearances of players transferring from a Club in one State to a Club in another State or from a Club of one affiliated body to a Club of another affiliated body in the same State and providing for penalties for breach or attempted breach of such regulations by affiliated bodies, clubs or players."

Article 47 provides the method by which the laws of the

The laws of the game made by the National League include the following :

of the National Football League of Australia Limited for the time being 1n force shall apply

to and be binding upon all Leagues, Associations and Bodies represented on or affiliated with the National Football League of Australia or affiliated with an Affiliated Body of the NFL and all persons who play in or with such Leagues, Associations and Bodies shall obtain a permit to play in accordance with the prescribed rules of any of the particular Leagues, Associations or Bodies. If a person shall play for a Club In a match played in a competition under the control or direction of a League, Association or Body represented on or affiliated with the National Football League of Australia Limited, or affiliated with an Affiliated Body of

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a permit to play with that Club, the Club for whom such person so played shall be deemed to have lost such match whatever the score."

The National League has made what are called the Interstate Clearance and Permit Regulations and by reason of Law 34 of the laws of the game those Regulations are binding on, among others, the Western Australian League and the South Australian League and upon all persons who play in or with those __ leagues or with constituent clubs of those leagues including players who play in club games. Thus the rules and regulations

Under the Clearance and Permit Regulations, a player ef an affiliated body, including a club of the Western Australian League, must obtain a clearance from that affiliated body, in the present case the Western Australian League, before being eligible to apply for a permit to play with another affiliated body, including a club of the South Australian League, in another State or with another affiliated body in the same State. A clearance is not required if a player has not played competition football during a period of 3 years prior to seeking a transfer from one State to another but even then must receive permission from a committee of the National League before he is eligible to play in his own State. When a player wishing to transfer from one State to another has been refused the necessary clearance twice within a specified period, he may apply to an Appeals Board which is constituted by the regulations. The Appeals Board has power to grant or refuse a clearance and in reaching its decision is required to consider and take into account all relevant circumstances

The affairs of the Western Australian League are regulated by rules. Members of that league are the Australian Football Clubs admitted to it. West Perth is a member of the Western Australian League, Included among the objects of that league are the following :

"4, (a) To promote, control manage and encourage football matches and competitions in and out of the State of Western Australia.

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(b) vo define the territories allocated to a Club and from time to time to alter such territories

(c) To determine the terms and conditions upon which persons may play football for Clubs or upon which Clubs may take part in matches.

(a) To arrange matches with other Leagues and to select and control all representative

League teams."

The Western Australian League submits to and is bound by the constitution and rules of the National League and its rules contain provisions relating to the qualification of players and related matters. It is not necessary to make a detailed reference to those rules, it is sufficient to say that under ' them a person is not allowed to play football as a member of a team of a club wnless he has been granted a permit by the Permit Committee which is constituted by the rules and which is empowered to grant or refuse a permit to any player and t to hear and determine applications relating to clearances. Subject to qualifications not presently relevant, a person who has resided in the district allotted by the league to a club for 30 days is residentially bound to that club and is entitled to a permit to play football with that club. Once a person becomes residentially bound to a club, in the absence of a clearance, he is not eligible to be granted a permit to play for any other club wntil he has resided outside the district of that club for 2 years and has become residentially bound to the new club by residence in the district allotted to that club and has so resided for 30 days. A person not residentially bound to a club is eligible for a permit to Play with any club provided that if he has played anywhere in Australia outside Western Australia he has complied with the Interstate Clearance and Permit Regulations of the National League and the rules of the Western Australian League. A register is kept of players to whom permits have been granted. If a player desires to play with a club other than the club for which he has been granted a permit he must first obtain a clearance from the Permit Committee, The Interstate Clearance and Permit Regulations apply to all interstate clearances

but a clearance interstate shall not be granted unless ;

"86 ... the Permit Committee is satisfied that the application is approved by the Player's Club or the Club to which the person is residentially bound as the case

may be and a majority of all the other Clubs then members of the League."

Provision is made for appeals by a player refused a clearance. The appeal 1s heard by an Appeals Board constituted by the rules and in considering the appeal, the Appeals Board is reguired to consider and take into account all relevant circumstances including a number of specified matters. The rules provide for the affiliation of other associations conducting

football games and the rules apply to those associations.

The affairs of West Perth are regulated by rules. One of its objects is to foster the Australian National Game of Football and to provide facilities for the playing of the game. It is affiliated to and is a member of the Western Australian

The South Australian League is for all practical purposes a mirror image of the Western Australian League, but operates in the State of South Australia. Its affairs are regulated by rules and its objects include the following :

"(1) '% promte, control, manage and encourage the Australian Game of Football (hereinafter in these Rules referred to as 'football').

(2) % promote, control, manage and encourage Teague football Matches and competitions between League Clubs as hereinafter in these Rules defined.

(7) to arrange and control the time, place and conditions under which all matches arranged or promoted by the League shall be played."

The South Australian League is constituted by 10 named clubs, one of which is Norwood. The rules constitute a Permit Committee with powers similar to the Permit Committee constituted under the rules of the Western Australian League. The South Australian League is affiliated with the National League. The rules regulate the registration of players and the granting of

permits and clearances. For present purposes it is sufficient

ll. to say that the provisions of the rules are similar to the

provisions of the equivalent rules of the Western Australian League except the residential qualification 1s 3 years and a player must be registered with the South Australian League ; and in the absence of obtaining a clearance, reside within the district of another club for a period of 3 years before being

eligible for a permit with that other club and cannot play

football with a club during that 3 year period. The Clearance

and Permit Regulations of the National League and the laws of

the game of football passed by the National League are

incorporated in and form part of the rules of the South Australian League. The rules make 1t an offence for a club to play in its

team a person not registered as a player member of that club and

is liable to the loss of premiership points gained by the team

in which that person plays and/or a fine of not more than $200.00. Under its rules, the South Australian League stages a program of matches played by its member clubs and, subject to some qualifications, is entitled to the receipt of the proceeds of the matches so

arranged. The rules make provision for the revenue of the South Australian League and its application. Part of the net income of the League is distributed among the member clubs. Likewise, the rules : provide for the affiliations of other associations conducting football

Norwood is a corporate body and its affairs are regulated by rules. One of its objects is to promote, practise, encourage and foster the Australian National Game of Football and is an associated club of the South Australian League and subject to the rules and by-laws of that League.

In May 1978 the applicant was 25 years of age. In the year 1957 his family had moved from Albany to Perth and as a result of living in the areas they did, the applicant became - - residentially bound to the Perth Football Club, a member of the Western Australian League. In 1973 the applicant played in one football match with the reserves team for that club and in 1975 he was granted a clearance from the Perth Football Club and obtained a permit to be a player for West Perth, During the years 1975, 1976 and 1977 he played a total of 69 games with West Perth. He showed considerable ability as a footballer and received payment ;

from West Perth for his services as a footballer for that club. He became what is known as a "professional footballer" and says that he is carrying on the trade, business or occupation of a professional footballer. For the 1977 football season he received $90.00 from West Perth for each game he played for that club. At the end of that season he entered into negotiations with Norwood and as a result entered into an agreement in writing dated 13 April 1978 to play football for Norwood for the years 1978, 1979 and 1980. It is not necessary to refer to the terms of that agreement save to say that he was to receive payment for the services he provided as a player. Before entering into that agreement he was told by the Committee of Management of West Perth that he would never be granted a clearance to play for Norwood.

In the early part of the year 1978, negotiations took Place between the applicant and West Perth relating to the applicant remaining in Western Australia and playing for West Perth during the football season of that year, but no agreement was reached and no contract was entered into covering the whole of the 1978 football season. The applicant played 2 matches with West Perth and in April 1978 he and his wife moved to Adelaide where they took up residence and each obtained employment.

The applicant is a professional footballer and after Moving to Adelazrde the applicant, on two separate occasions, sought a clearance under the rules 7f the Western Australian League to enable him to apply for a permit from the South Australian League to play for Norwood. On each occasion his application for a clearance was refused by the Permits Committee of the Western Australian League. He did not appeal against those refusals. He did not play competitive football until after the interim order made by the Full Court of the Federal Court of Australia on 30 June, 1978. Thereafter he played for Norwood in the football competition organised by the South Australian League.

I accept the evidence that it is not uncommon for a club in a football League seeking the services of a football Player who is registered as a player with a club in another

football League to make a monetary offer to that other club

as consideration for that other club consenting to a clearance

for that player to enable him to obtain a permit to play with the first club. The consideration may include a transfer of a player as well as the payment of money. The payment of ' money is commonly referred to as a "transfer fee" and can range from as low as $4000.00 up to $100,000.00. The player ' receives no part of that money. In addition a club seeking a player may make attractive offers to him. Apart from payments made for services rendered as a player, either on an annual Salary or on a match basis, a club may make arrangements for the player to obtain other lucrative employment, a place of residence and a potential to earn additional money by way of advertising activities. I accept the evidence that the effective professional life of a footballer is limited and that a period of 3 years during which he is not able to play competition matches in a football league can affect adversely his skills as a football player. Likewise during that period he is excluded from engaging in his trade, business or occupation as a footballer for a significant period of his professional life thereby depriving him of his ability to receive payment for his services as a footballer.

. Clubs which are successful in their football competition attract larger numbers of members to the club, larger numbers of spectators at matches at which they play and receive a greater financial return. In South Australia, the club playing on its home ground receives 60% of the net gate receipts and the away from home club receives 40% of the net gate receipts which are computed after payment of ground manager's fees and other league
charges. The return to clubs is different in other State leagues. In addition a club is entitled to sell home match tickets to its supporters prior to the commencement of the football season and the club retains the whole of the proceeds from the sale of those tickets. As a club improves in its position in a competition, normally it attracts larger spectator attendances. Likewise, its takings from other activities such as advertising, sponsoring and prize moneys increase as the spectator attendances increase. The clubs which win most of their matches generally attract the most spectators. There is a tendency for certain clubs to be high on the competition ladder regularly each season while correspondingly other clubs tend to remain on the lower part of

14, that ladder. In order to win matches, a club must have the best players it can afford and evenness within its team. In order to achieve this, clubs continually try to improve the quality of the players and evenness within the team by training and encouraging players bound to them by residence or permit and attracting players from other clubs, including clubs in other State leagues, by offers to those players and by the offer of transfer fees, including a mutual transfer of players, to other clubs.

Before considering the evidence further it is desirable to state the basis upon which the claims are made. Primarily, the applicant relies upon s.45 of the Act, the relevant provisions

(a) make a contract or arrangement, or arrive at an understanding, if -

(i) the proposed contract, arrangement ° or understanding contains an exclusionary provision; or

: (ii) a provision of the proposed contract, arrangement or understanding has the
purpose, or would have or be likely to have the effect, of substantially
lessening competition; or

(b), give effect to a provision of a contract, arrangement or understanding, whether the contract or arrangement was made, or the understanding was arrived at, before or after the commencement of this section, if that provision -

(ii) has the purpose, or has or is likely to have the effect, of substantially lessening competition.

(3) For the purposes of this section and section 458, 'competzrtion', in relation to a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding, means competition in any market in which a corporation that is a party to the contract, arrangement or understanding or would be a party to the proposed contract, arrangement or understanding, or any body corporate

related to such a corporation, supplies or acquires, or 1s likely to supply or acquire, yoods or services or would, bul

. for the provision, supply or acquire, or be likely to supply or acquire, goods or services."

In s.4{(1) of the Act, the phrase "give effect to" has the following extended meaning -

"in relation to a provision of a contract, arrangement or understanding, includes do an act or thing in pursuance of or in accordance with or enforce or purport to enforce". Although reliance was placed on the whole of s.45(2) of the Act, 1n substance the case was based on s.45(2) (b) (ii). The applicant claimed that the respondents, insofar as they complied with those provisions of the rules and regulations of the National League, the Rules of the Western Australian League, the Rules of the South Australian League and the law

of the game which prevented the applicant from playing football for Norwood in matches conducted by the South Australian League, hereinafter called "the clearance and permit provisions", were giving effect to a provision of a contract arrangement or understanding which has the purpose or has or is likely to have the effect of substantially lessening competition, the word "competition" having the meaning contained in s.45(3). In support of this claim, the applicant sought to establish by evidence, the existence of one or more of three markets and these can be stated shortly as follows :

The market in and around Adelaide in which the clubs compete for spectators to attend 5 Australian rules football matches, hereinafter called "the spectator market". ' This market it was claimed, was limted to those spectators interested in Australian Rules Football.

The market throughout Australia in which football clubs buy and sell the right to the transfer of football players from one club to another, hereinafter called "the club to club market."

clubs compete with each other to attract professional footballers to provide their services to the club, hereinafter called the "club to footballer market." Further or alternatively, the applicant claimed that the clearance and permit provisions, to the extent they restrained him from playing football other than with Perth, are unreasonable in restraint of trade and therefore could not be enforced against him or Norwood. In support of this claim reliance was placed on what was said by Barwick C.J. in Ex parte Western Australian

National Football League (Inc,), supra, at p,454 :-

"Of course, football of any code may be a sport, as distinct from a trade, when played solely for its own sake as a pastime upon an amateur footing. But what the club and the league conduct is far removed from any such concept of sport. 'The players are professionals employed for wages in the playing of the code. This court decided in Buckley v. Tutty (1971) 125 C.L.R. 353; that such a player was an employee of the club for which he played.

those in the rules of the prosecutors which restrain a player from playing elsewhere

than with the club with which he is registered without a clearance are void as a restraint

of trade : see Wilberforce J. 1n Eastham v. Newcastle United Football Club Ltd. [1964]

Ch. 413; Blackler v. New Zealand Rugby Football League 1 "Ginc.) [1968] N.Z.L.R. 547; also Buckley v. , Tutty. But in those cases the restraint of trade was found in the limitation on the freedom of the playei- to take employment, not of

in trade or trading. However, the code of football in the New Zealand case required the players to be amateurs : yet the restraint was void,"

The further or alternative claim is based upon the common law doctrine of restraint of trade and is a claim which would normally come before a State court exercising State jurisdiction. The claim therefor raises the question of whether the Federal Court has jurisdiction to hear and determine the claim of the applicant insofar as it is based on a breach of the common '

Under s.71 of the Constitution, the judicial power of

the Commonwealth is vested in the High Court of Australia "and in such other federal courts as the Parliament creates and in such courts as it invests with Federal jurisdiction". Sections 75 to 77 of the Constitution which relate to the original and conferred jurisdiction of the High Court and

the jurisdiction of other federal courts, are set out in full

(i) Arising under any treaty: (ii) Affecting consuls or other representatives of other coumtries:

(iii) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party:

{iv) Between States, or between residents of different States, or between a State and a resident of another State: (v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth:

The Parliament may make laws conferring original jurisdiction on the High Court in any

. matter - : ~ (i) Arising under this Constitution, or

involving its interpretation: (ii) Arising under any laws made by the Parliament:

(iii) Of Admiralty and maritime jurisdiction: (iv) Relating to the same subject-matter claimed under the laws of different Stal>os.

With respect to any of the matters mentioned in the last two sections the Parliament my make laws -~

(i) Defining the jurisdiction of any federal court other than the High Court:

(ii) Defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States:

(iii) Investing any court of a State with federal jurisdiction."

The word "matter" is not defined in the Constitution. The

relevant provisions of s.51]1(xxx1x) are set out :-

"51. The Parliament shali, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to :-

&xxix Matters incidental to the execution of any power vested by this Constitution ... in the Federal Judicature ..."

In the exercise of the powers conferred upon it, Parliament has constituted the Federal Court of Australia, s.5 Federal Court of Australia Act 1976. The Federal Court is a superior court of record and is a court of law and equity. Part III of the Federal Court of Australia Act is headed "Jurisdiction of the Court" and Division 1 of that Part is headed "Original Jurisdiction". Section 19({1), being within Part III Division 1, is as follows :-

"19. (1) 'The Court has such original jurisdiction as is vested in it by laws made by the Parliament, being jurisdiction in respect of matters arising under laws made by the Parliament."

This jurisdiction comes clearly within s.77(i) and s.76 (ii)

It is desirable to quote three other sections appearing in Part III, Division I of the Federal Court of Australia Act.

"21. (1) 'The Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed,

(2) A suit is not open t® objection on' the ground that a declaratory order only is sought.

The Court shall, in every matter before the Court, grant, either absolutely or on such temms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him in the matter, so that, as far as possible, all matters 1n controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.

The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate."

Section 32 of the Federal Court of Australia Act 1s contained within Part III, Division 3 of that Act. That Division is

"32. (1) To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court 1s invoked.

(2) The jurisdiction conferred by sub- section (1) extends to jurisdiction to hear and determine an appeal from a judgment of a court so far as it relates to a matter that is associated with a matter in respect of which an appeal from that judgment, or another judgment of that court, is brought."

The Trade Practices Act is a law made by the Parliament. Part VI of the Act is headed "Enforcement and Remedies" and under s.80, being within Part VI, the Federal Court has jurisdiction to grant injunctions, see definition of "Court" in s.4 of the Act. Section 86, also within Part VI, is as follows :

"86. Jurisdiction is conferred on the Court to hear and determine actions, prosecutions and other proceedings under this Part and that jurisdiction is exclusive of the jurisdiction of any other court, other than the jurisdiction of the High Court under section 75 of the Constitution."

As was said earlier, the applicant has brought these proceedings seeking injunctions under s.80 of the Act restraining the respondents from engaging in conduct that constitutes a contravention of s.45 of the Act being a provision within Part IV of the Act. The High Court has held that the Federal Court of Australia has jurisdiction to hear and determine that claim. ,

Counsel for the applicant, supported by Counsel for the Attorney-General of the Commonwealth, has contended that the Federal Court has jurisdiction to hear and determine the claim insofar as it is based on the common law doctrine while

counsel for the resp6éndents has denied the existence of that

jurisdiction. 1t becomes necessary, therefore, for the

Court to determine whether it has jurisdiction to hear and determine the claim by the applicant insofar as it is based on the common law doctrine of restraint of trade.

It was contended that the Court had jurisdiction under any one of the three following heads namely :

Jurisdiction arising from the incidental power implied from the jurisdiction granted pursuant to the Constitution, s.19 and s.22 Federal Court of Australia Act and the Trade Practices Act.

Jurisdiction conferred by s.32(1) of the Federal Court of Australia Act.

Jurisdiction conferred by s.22 of the Federal Court of Australia Act.

Professor Lane in The Australian Federal System with United States Analogues, the Law Book Co. Ltd., 1972, ina chapter entitled"ss.75,76 - High Court's Original Jurisdiction Generally" at pp.453-462 discusses under the sub-heading "Pendent jurisdiction" a number of cases in which the High Court

has exercised original jurisdiction over matters which, on their face, appear to be outside the original jurisdiction of the

High Court. The expression "pendent jurisdiction" is used

in the literature of the jurisprudence of the United States

of America to describe the judicial implied incidental power under which a federal court when exercising jurisdiction over

a federal matter, exercises jurisdiction over a pendent State matter. His conclusion is stated at p. 453 :

"Pendent jurisdiction arises when a party seeks to protect some right which he alleges has been violated; that violation gives rise to a cause of action for which the courts provide relief. When asking for this relief the party proposes several grounds which would entitle him to the relief. So long

as one of these grounds attracts the High Court's original jurisdiction, the Court will then proceed to the merits, that is, the Court may grant the relief asked for - if necessary on a ground other than that which attracted jurisdiction. But the jurisdictional

substantially the same facts or involve substantially the same elements."

At a glance

Court

Decision date

Before

Source

Judgment (435 paragraphs)

Cited By (1)