De Belin v Australian Rugby League Commission Limited

PERRY J: 1 INTRODUCTION [1] 1.1 Overview of the issues [1] 1.2 Summary of conclusions [15] 2 WITNESSES [16] 2.1 Overview [16] 2.2 Principal witnesses called by Mr de Belin [23] 2.2.1 Mr Timothy Lythe, COO, RLPA [23] 2.2.2 Mr Stephen Gillis, Player Management Agent [24] 2.3 The respondents' principal witnesses [26] 2.3.1 Mr Todd Greenberg, CEO, NRL [26] 2.3.2 Mr Andrew Abdo, Chief Commercial Officer, NRL [29] 2.3.3 Mr Bart Campbell, Chairman, Melbourne Storm [31] 2.3.4 Mr Kevin Alavy, Managing Director, Futures [33] 3 THE ARLC, NRL, RLPA AND THE NRL COMPETITION [38] 4 THE CONTRACTUAL REGIME BETWEEN THE ARLC, THE NRL, THE CLUBS AND THE PLAYERS [45] 4.1 Key documents comprising the contractual matrix [45] 4.2 The Club Licence Agreement [49] 4.3 The Playing Contract [55] 4.4 The NRL Player Registration Application [60] 4.5 The Collective Bargaining Agreement between the RLPA and the NRL [64] 4.6 The NRL Rules and their place in the contractual matrix [68] 4.6.1 Overview of the NRL Rules [68] 4.6.2 The stated application of the NRL Rules as amended from time to time [79] 4.6.3 What is the status of the Rules within the contractual matrix between the ARLC, the NRL, the clubs and the players? [86] 4.7 Key concepts emerging from the contractual matrix [97] 5 EVENTS LEADING TO THE MAKING OF THE NEW RULE [103] 5.1 Preliminary [103] 5.2 Revenue growth in the NRL Competition [104] 5.3 The relationship between the values for which the NRL stands, its reputation and its financial interests [112] 5.4 The problem of sexual and domestic violence against women within the NRL and the "summer from hell" [127] 5.5 The charge laid against Mr de Belin on 13 December 2018 and subsequent reporting of detailed allegations comprising the basis of the charge on 12 February 2019 [137] 5.6 Reaction of fans [147] 5.7 Reaction of NRL Competition sponsors and broadcasters [155] 5.8 Impacts reported by the NRL clubs [160] 5.9 Escalating concerns within the ARLC [172] 5.10 Preparation of the recommendation for the Board of the ARLC and the RLPA's position as communicated on 21 February 2019 [181] 5.11 The meeting on 27 February 2019 suggesting that Mr de Belin stand down voluntarily [189] 5.12 Adoption of the new policy by the Board of Directors of the ARLC [193] 5.13 The press conference on 28 February 2019 announcing the ARLC's new policy [195] 5.14 Responses to the new policy [199] 5.15 Further consultation by the ARLC and the NRL with the RLPA following the announcement of the new policy [201] 5.16 The amendment to the NRL Rules to insert rule 22A [205] 6 ALLEGED RESTRAINT OF TRADE [208] 6.1 Relevant principles [208] 6.2 The reasonableness of the restraint imposed by the new rule [226] 6.2.1 Approach to the issue in light of the relevant principles [226] 6.2.2 The effect of the new rule on Mr de Belin and the impact of the severity of the restraint on his interests in approaching the reasonableness issue [228] 6.2.3 What are the legitimate objects of the ARLC and the NRL sought to be protected by the restraint imposed by the new rule? [238] 6.2.4 What is the degree of danger to the interests of the ARLC and NRL established by the evidence? [245] 6.2.4.1 Did the respondents' evidence about the dangers facing the ARLC and NRL rise above hearsay and speculation? [245] 6.2.4.2 The evidence establishes a clear and present danger to the legitimate interests of the ARLC and the NRL [257] 6.2.5 Is the restraint imposed by rule 22A upon Mr de Belin no more than is reasonably necessary or adequate to protect the legitimate interests of the ARLC and the NRL? [268] 6.2.5.1 The issues [268] 6.2.5.2 The decisions in Hughes and the World Series Cricket Case distinguished [271] 6.2.5.3 Additional aspects of the new rule relevant to an assessment of its reasonableness [285] 6.3 Would it be contrary to public policy to enforce the new rule on the grounds that the RLPA had not consented or been adequately consulted? [305] 6.4 Conclusion on restraint of trade [308] 7 THE CLAIM OF TORTIOUS INTERFERENCE WITH THE PLAYING CONTRACT [309] 7.1 The claim [309] 7.2 Relevant principles [312] 7.3 The claim of tortious interference must be dismissed [316] 8 ALLEGED MISLEADING OR DECEPTIVE CONDUCT CONTRARY TO S 18 OF THE ACL [328] 8.1 Relevant principles [328] 8.2 The issues [330] 8.3 The difficulties in identifying the precise representations said to contravene s 18 of the ACL [341] 8.4 Are the alleged conduct representations established? [352] 8.5 Is the alleged suspension representation established? [366] 8.6 Has the applicant established that he suffered loss or damage if the misleading or deceptive representations were made? [372] 8.7 Should the grant of declaratory relief be refused in any event? [378] 9 ALLEGED UNCONSCIONABLE CONDUCT CONTRARY TO S 21 OF THE ACL [382] 9.1 Relevant principles [382] 9.2 A threshold issue: does s 21 of the ACL apply? [388] 9.3 Is there any evidence of loss or damage? [392] 9.4 Did the respondents engage in unconscionable conduct in any event? [393] 10 CONCLUSION [405]

1.1 Overview of the issues 1 The first respondent, the Australian Rugby League Commission Limited (ARLC), is the controlling body and administrator of the game of rugby league football in Australia. The ARLC is responsible for the overall strategic direction of the game of rugby league in Australia and for ensuring that the game is fostered and properly funded at all levels. In particular, it offers an established system for rugby league competitions known as the NRL Competition which is the national (and international to the extent of New Zealand) elite men's rugby league competition in Australia. The NRL Competition is operated and managed by the second respondent, the National Rugby League Limited (NRL), a wholly controlled subsidiary of the ARLC. The ARLC and the NRL are companies limited by guarantee and are not-for-profit entities. 2 St George Illawarra Rugby League Football Club Pty Ltd (St George Illawarra) is one of the clubs licensed by the NRL to participate in the NRL Competition. The applicant, Mr Jack de Belin, is a professional rugby league player who is contracted by St George Illawarra to play rugby league in the NRL Competition. Since 2016 he has played for New South Wales Country in the annual City vs Country rugby league matches and for NSW in the State of Origin rugby league games. He turned 28 years of age in March 2019 and is in the second season of a three year contract with St George Illawarra. He will be 29 when his playing contract with St George Illawarra comes to an end. 3 Mr de Belin was charged on 13 December 2018 with one count of aggravated sexual assault in company of a 19 year old woman which allegedly took place on 9 December 2018 in New South Wales (the charge). He has pleaded not guilty to the charge and continues to maintain his innocence. The allegations against Mr de Belin have received extensive media coverage across Australia. It is important to emphasise at the outset that the question of Mr de Belin's innocence or guilt does not arise in this proceeding and nothing in these reasons should be taken as addressing or commenting upon that question. Mr de Belin's guilt or innocence will be tried in due course in another court, and in the meantime he is entitled to the presumption of innocence as the respondents accept. 4 When Mr de Belin was charged, the practice of the NRL was to permit players charged with criminal offences to continue to play in the NRL Competition pending the determination of the player's guilt or innocence by a court. Subsequently, however, at a meeting on 28 February 2019, the Commission resolved unanimously to adopt a policy that players facing serious criminal charges no longer be permitted to continue to participate in the NRL Competition pending the determination of the charge (the new policy). In recommending this change to the Board of the Commission, Mr Todd Greenberg, the Chief Executive Officer (CEO) of the NRL, took into account a range of considerations including his assessment that if Mr de Belin and any other player facing a similarly serious criminal charge were permitted to play, this would be likely to cause significant damage to the reputation of the NRL Competition and the game of rugby league generally, and financial damage. The new policy was implemented by an amendment to the NRL Rules made on 11 March 2019 by the Board of the NRL to insert rule 22A (the new rule) three days before the 2019 season commenced (exhibit R6 at p. 11). 5 The new rule provides that where a player is charged with a "Serious Criminal Offence", being defined as an offence punishable by a maximum penalty of 11 years' imprisonment or more, the player will automatically be subject to a "No-Fault Stand Down Condition" on full pay until the relevant criminal offence has been determined by the court or withdrawn. In the case of players charged with a criminal offence carrying a lesser maximum penalty, a discretion is conferred on the CEO or Chief Operating Officer (COO) of the NRL to impose a no-fault stand down condition. In either case, for so long as a player is subject to the no-fault stand down condition, the player is precluded by rule 22A from participating in the NRL Competition and other competitions including the Representative Competitions, but is permitted to continue to train with his club's training squad and is entitled to be paid the remuneration to which he is entitled under his Playing Contract. 6 These proceedings were instituted on 6 March 2019 after the announcement by the ARLC of the new policy. Following the making of the new rule and receipt on that day of a notice from the CEO of the NRL advising Mr de Belin that he had been stood down under the new rule, Mr de Belin filed an amended originating application and amended statement of claim (ASOC) on 20 March 2019. 7 The trial was set down for an expedited hearing and heard over four hearing days with extended sitting hours commencing on 15 April 2019. Over 3000 pages of evidence was filed with the bulk of the evidence being filed by the respondents who bore the onus of establishing the reasonableness of the restraint of trade, as I later explain. 8 Mr de Belin's claims may be summarised as follows: (1) The new rule is an unlawful restraint of trade (ASOC [29]-[39]). (2) The imposition of the new rule constitutes a tortious interference with the Playing Contract between Mr de Belin and St George Illawarra (ASOC [40]-[41]). (3) The respondents engaged in misleading and/or deceptive conduct in contravention of s 18 of the Australian Consumer Law (the ACL), being Schedule 2 to the Competition and Consumer Act 2010 (Cth) (the CCA) (ASOC [15]-[24]). (4) The respondents have engaged in unconscionable conduct in relation to Mr de Belin in connection with the supply or possible supply of services by the respondents to the applicant and vice versa contrary to s 21 of the ACL (ASOC [25]-[28]). 9 I note that in closing address, Mr de Belin did not press an allegation of a lack of good faith by the respondents which had been pleaded as an aspect of the alleged unconscionable conduct (T478.33-35). 10 Among other things, by his prayer for relief Mr de Belin seeks declarations of the alleged contraventions of the ACL under s 21 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) and a declaration that the new rule is void under s 22 of the FCA Act, together with injunctive relief to restrain the respondents from relying upon the new rule as it applies to him. Mr de Belin also seeks damages, including for damage to his reputation and for hurt feelings and anxiety. A claim for exemplary damages was abandoned in closing submissions. Further, a claim for aggravated damages was not pressed insofar as damages were sought for anxiety and stress (T411.1-16). 11 The central challenge by Mr de Belin is to the new rule itself. Importantly, it is accepted by the respondents that the new rule imposes a restraint of trade, being a restraint relevantly upon Mr de Belin's ability to pursue his career as a professional rugby league player in Australia. The question therefore is whether that restraint is lawful. This requires an assessment of whether the new rule is objectively reasonable in the relevant circumstances, including in the context of the contractual arrangements between the parties. If those contractual arrangements expressly contemplate and provide for the imposition of the restraint of trade on Mr de Belin's capacity to play, then the respondents also contend that the new rule could not logically constitute a wrongful interference with the contractual arrangements between the parties. 12 Furthermore, as the respondents submit, the allegation of unconscionability is pleaded in the ASOC so as to be, in effect, "parasitic" upon Mr de Belin succeeding in his other claims (Respondents' Closing Submissions dated 18 April 2019 (RCS) at [69]). Specifically, Mr de Belin pleads that the respondents engaged in unconscionable conduct within the meaning of s 21 of the ACL by reason among other things of the respondents' alleged misleading and deceptive conduct and conduct in restraint of trade: see ASOC at 25,(e),(l) and [25A]. 13 Finally, the breaches of s 18 of the ACL relate to alleged conduct which preceded the making of the new rule on 11 March 2019. Mr de Belin alleges that, prior to that date, the respondents falsely represented that: (1) they had suspended or stood down Mr de Belin from participating in the NRL Competition pending the determination of his criminal charges; and (2) they had formed the view that Mr de Belin was guilty of the alleged offence, and had engaged in conduct warranting his immediate suspension as a player for the Club in breach of the NRL Code of Conduct, and that had brought the game of rugby league into disrepute. 14 While the question of the quantification of any damages was to be heard in the second stage of the trial depending upon the outcome of the first, the applicant accepted that damages for misleading and deceptive conduct "would not be vast" (T397.44).

1.2 Summary of conclusions 15 For the reasons set out below, the challenge to the new rule as an unlawful restraint of trade is dismissed. The new rule, as it purported to apply in the circumstances of this case, was reasonably necessary to protect the legitimate interests of the ARLC and the NRL, notwithstanding the seriousness of the restraint imposed upon Mr de Belin. The claims of unlawful interference with Mr de Belin's Playing Contract and of breaches of ss 18 and 21 of the ACL are also dismissed.

2.1 Overview 16 In support of his application, Mr de Belin relied upon the following affidavits: (1) Mr Robert John Tassell, solicitor, sworn on 8 March 2019 and 19 March 2019 (Tassell 1 and 2 respectively); (2) Mr Timothy Lythe, COO, Rugby League Players Association (the RLPA), sworn on 8 March 2019 (Lythe); and (3) Mr Stephen Joseph Gillis, Player Management Agent, sworn on 19 March 2019 (Gillis). 17 I note that Mr de Belin did not give evidence. Mr Lythe and Mr Gillis were cross-examined and gave clear and credible evidence. None of the applicant's witnesses' credibility was in issue. 18 The respondents relied upon the following evidence: (1) the affidavit of Mr Todd Greenberg, CEO of the NRL, sworn on 2 April 2019 (Greenberg); (2) the two affidavits of Mr Andrew Stephen Abdo, Chief Commercial Officer, NRL, sworn on 2 April 2019 (with the second affidavit and its exhibit being the subject of a confidentiality order) and a third affidavit sworn on 3 April 2019 (Abdo 1, 2 and 3 respectively); (3) the affidavit of Mr Bart Taylor Colin Campbell, Chairman of the Melbourne Storm Rugby League Football Club, sworn on 1 April 2019 (Campbell); and (4) the affidavit of Mr Kevin Alavy, Global Managing Director of Futures Sport and Entertainment, affirmed (see T363) on 2 April 2019 (Alavy). 19 The respondents' affidavit evidence was the subject of extensive objections by the applicant. As a result of rulings on a number of categories of evidence, the parties were able to agree upon those passages in the respondents' witnesses' affidavits which should be redacted or read subject to orders limiting the uses to which the evidence could be put pursuant to s 136 of the Evidence Act 1995 (Cth) (Evidence Act). In particular, some evidence was admitted for non-hearsay purposes only pursuant to s 136 of the Evidence Act, that is, as evidence of the fact that the words alleged were uttered but not as to the truth of the words uttered (the s 136 non-hearsay limitation). I note that not all evidence of a hearsay kind was subject to this limitation including some of the evidence as to what sponsors and others were alleged to have said. 20 While the applicant's written submissions relied upon in closing submitted that "much of the Respondents' evidence is inadmissible" (applicant's outline of submissions dated 18 April 2019 (AOS) at [54.1]), I note that these written submissions were identical to those relied upon in opening before the rulings were made, save for the insertion of references to the transcript and evidence. In these circumstances, I consider that the applicant must be taken as not having pressed his remaining objections to the admissibility of material which were not specifically ruled upon or the subject of agreement. This accords with the approach adopted by senior counsel for the applicant, Mr Einfeld QC, in closing address who confined his submissions to the quality of the respondents' evidence (see T478.43-479.29). 21 All of the respondents' lay and expert witnesses were cross-examined. The applicant's counsel correctly in my view accepted that all of the witnesses gave their evidence frankly and honestly, albeit that core opinions expressed by the respondents' expert, Mr Alavy, were not admissible as I later explain. 22 No challenge was made to the integrity or credit of any of the remaining witnesses of fact who were unshaken in cross-examination, including Mr Greenberg who was cross-examined vigorously for six hours over two days. However, as intimated above, the applicant did challenge the sufficiency of their evidence to establish the propositions upon which the respondents relied in their defence, contending that much of the respondents' evidence consisted of hearsay reports of what others may or may not have been thinking about Rugby League and its participants and/or was speculative (T478.40-46).

2.2.1 Mr Timothy Lythe, COO, RLPA 23 Mr Lythe is the COO of the RLPA. He initially joined the RLPA as General Counsel in April 2016 after leaving the Australian Cricketers' Association where he had been Legal Counsel since November 2014. The RLPA is the collective representative body for professional rugby league players participating in the NRL Competition and related competitions. It represents them on matters affecting their employment and protects and promotes their welfare and interests.

2.2.2 Mr Stephen Gillis, Player Management Agent 24 Mr Gillis is a principal and director of Gillis Schifcofske Sports Management Pty Ltd (GSSM). Mr de Belin has retained GSSM as his manager since 26 November 2016. Mr Gillis has worked closely with Mr de Belin since that time in managing and promoting his NRL playing career. Mr Gillis has over 25 years' experience in managing the careers of rugby league players, the focus of his management since 1994 having been rugby league players, although his clients and GSSM's clients also include rugby union players. At any one point in time, he manages approximately 40 NRL players (T75.7) and over his 25 years in the business, would have negotiated hundreds of player contracts (T75.15). He explained that management of the careers of rugby league players playing at the NRL level involved contract negotiations between the player and clubs, sourcing and negotiating contracts with sponsors for the players, and player welfare. 25 As I later explain, Mr Gillis was present at a meeting between Mr de Belin and Mr Greenberg, on 27 February 2019 at which Mr Greenberg suggested that Mr de Belin may voluntarily stand down from playing in the NRL Competition pending the determination of the criminal charge against him. The meeting featured in a number of Mr de Belin's claims including as an aspect of the allegedly unconscionable conduct engaged in by the respondents.

2.3.1 Mr Todd Greenberg, CEO, NRL 26 Mr Greenberg has held the position of CEO of the NRL since March 2016. Before then, he had held the position of Head of Football from mid-2013. Mr Greenberg has worked in sports management for his entire professional life, having also held positions with Cricket NSW and the NRL Club known as the Canterbury Bankstown Bulldogs, as well as holding the position of General Manager of the ANZ Stadium between 2001 and 2008. 27 In his current role as CEO, Mr Greenberg is responsible for (Greenberg at [11]): (1) the management of the NRL's executive team across all areas of the game; (2) providing strategic and operational leadership of the game of rugby league from the "grass-roots" to the elite competitions; and (3) developing for approval by the Board, and then implementing, the game's strategic and operational plans for the fostering, development, and growth of the game. 28 As CEO, Mr Greenberg considers that a significant part of his role is directed towards ensuring the continued success and growth of the NRL Competition.

2.3.2 Mr Andrew Abdo, Chief Commercial Officer, NRL 29 Mr Abdo is a chartered accountant by profession and has held the position of Chief Commercial Officer (CCO) of the NRL for 3 years. Over the course of his 5 years with the NRL he has also held the positions of Head of Commercial and Strategy and Operations Manager. Mr Abdo's role and responsibilities as CCO include: (1) responsibility for generating and maintaining all revenue for the game including sponsorships, major events, retail, and marketing the Telstra Premiership (which is how the NRL Competition is branded) and other NRL brands and sub-brands; (2) managing the NRL's existing broadcast partnerships; (3) government relations and investment; (4) strategy on placement and management of major events; and (5) working with NRL clubs on growth of their commercial revenue programs. 30 Mr Abdo also explained that his role as CCO is "in generating new business through liaising with corporate and government stakeholders, managing existing contractual obligations (including measuring and delivering return on investment) and protecting the brand and reputation of all our investors through their association with the game" (Abdo 1 at [25]). In addition, his role includes increasing the number of people interested in rugby league both in Australia and abroad through product innovation and brand positioning and marketing (Abdo 1 at [26]).

2.3.3 Mr Bart Campbell, Chairman, Melbourne Storm 31 Mr Campbell has held the position of Chairman of the Melbourne Storm Rugby League Football Club since May 2013 when he acquired the Club from its previous owner, News Limited, and is one of its major shareholders. 32 Mr Campbell has 24 years' involvement in sports marketing and management initially as a lawyer before starting a sports management agency in London in 1998. That agency was integrated into a sports and entertainment marketing company called "Essentially" of which he became CEO in 2006. That company was acquired by Chime Communications Plc and absorbed into its subsidiary, CSM Sports and Entertainment, a sports marketing company of which he was the Group Chief Operating Officer from 2009 to 2013. During that period it had 700 staff and operated in 13 countries, providing sports marketing services to a large number of national and international federations. In 2011 he founded the TLA sports marketing agency, a sports marketing and athlete management business working in Major League sports in the United States with a focus on Major League Baseball. TLA's main offices are in London, New York and Melbourne. He completed work with TLA in 2018 (Campbell at [2]-[4]).

2.3.4 Mr Kevin Alavy, Managing Director, Futures 33 Mr Alavy holds a Bachelor of Economics with first class Honours from the University of Warwick and worked as an econometrician from October 2000 until May 2002 when he founded the business known as Futures Sport and Entertainment (Futures). Futures provides sports business evaluation and consulting services for customers in a number of countries, including Australia where Mr Alavy is located. Their customers include the NRL, as well as Football Federation Australia, Cricket Australia, broadcasters and sports clubs. Mr Alavy explained that in association with his colleagues (presumably at Futures) he provides advice and data analytics research into issues regarding sports, including the Australian broadcast landscape, crowd attendance analysis, sponsorship measurement, brand health tracking via a methodology described as Net Promoter Score benchmarking, and player marketability. 34 Mr Alavy disclosed his existing connection with the NRL in his affidavit, stating that he had nonetheless endeavoured to set out his independent and balanced views on the questions which he was asked to address by the respondents (Alavy at [15]). He also stated that he had read the Expert Evidence Practice Note, including the Harmonised Expert Witness Code of Conduct which is annexure A to the Practice Note, and stated that he agreed to be bound by it (Alavy at [3]). 35 Expert opinion evidence is admissible under s 79(1) of the Evidence Act where the person has specialised knowledge based on the person's training, study or experience where the opinion of that person is wholly or substantially based upon that knowledge. These requirements are mandatory: Harrington-Smith v Western Australia (No 2) [2003] FCA 893; (2003) 130 FCR 424 at [19] (Lindgren J). 36 The applicants did not suggest that Mr Alavy was not qualified to express opinions based on his specialised knowledge. Nonetheless, they objected to large segments of his evidence. In particular, objections by the applicant to Mr Alavy's evidence to the extent that it was based upon the so-called Net Promoter Score (NPS) methodology were upheld at trial primarily on the basis that the question posed to members of the public in the surveys from which the Net Promoter Score was derived, namely, "On a 0-10 scale, to what extent would you recommend being a fan of [Rugby League] to friends and family?" (exhibit R6 at p. 549), could not on any view assist in the resolution of the issues in the case. In any event, the opinion expressed by Mr Alavy as to the supposed correlation between the charge against Mr de Belin, on the one hand, and a fall in the Net Promoter Score results, on the other hand, was entirely speculative in the absence of any evidence as to the factors underlying the answers to that question by interviewees. That ruling led to agreement between the parties as to those portions of Mr Alavy's affidavit evidence which were redacted or could be relied upon only for a limited purpose pursuant to s 136 of the Evidence Act. As to the latter, it followed from the exclusion of Mr Alavy's evidence about the NPS as inadmissible that evidence given by other witnesses who relied upon the NPS was subject to a limitation such that it could not be used as evidence establishing the correctness of the results of the surveys or the inferences which could be drawn from them for the purposes of this case (the s 136 survey evidence limitation). 37 The applicant also took issue more generally with the weight which could be attributed to Mr Alavy's evidence in closing address. In the end result, while I accept that Mr Alavy was in a position to give evidence as to the nature of the NRL and Related Competitions, any threats to the rugby league in Australia, and the nature of the economic forces at work (see below at [246]), I found the evidence of the respondents' other principal witnesses on these matters to be more compelling.

3. THE ARLC, NRL, RLPA AND THE NRL COMPETITION 38 The ARLC is the governing body of rugby league in Australia, setting the overall strategic direction for the game and assuming responsibility for funding, growing and fostering the game at all levels ([Greenberg at [6]; Abdo 1 at [4]). The objects of the ARLC are set out in its Constitution and include relevantly to: (a) be the single controlling body and administrator of the Game; (b) foster, develop, extend and provide adequate funding for the Game from the junior to elite levels and generally to act in the best interests of the Game; … (d) organise and conduct all State of Origin and Australian representative Games, …; (e) organise and conduct the NRL Competition; (f) foster the NRL Competition; … (h) promote and encourage either directly or indirectly the physical, cultural and intellectual welfare of young people in the community and in particular, the rugby league community; and (i) promote and encourage either directly or indirectly sport and recreation, particularly rugby league football, in the interests of the social welfare of young persons. (exhibit R2 at p. 5) As is apparent, the ARLC's objects emphasise the welfare of, and engagement with, young people in the community. These are particularly important for reasons I later explain. 39 The Queensland Rugby League and New South Wales Rugby League are members of the ARLC and are responsible for the overall management of semi-professional, amateur and junior rugby league in their states. There are also rugby league bodies in the other states and territories which are affiliated with the ARLC and are responsible for the conduct of rugby league in their respective states and territories (Abdo 1 at [7]). 40 The NRL Competition presently comprises 16 teams, with 9 from Sydney including St George Illawarra, and one team from each of Melbourne (the Melbourne Storm), Newcastle, Brisbane, North Queensland, the Gold Coast, New Zealand and Canberra. The competition is played over 25 regular season rounds, followed by a four week finals series. The 2019 season commenced on 14 March 2019 with the Grand Final on 6 October 2019. In addition the State of Origin competition between teams representing New South Wales and Queensland will be played over 3 games in June and July 2019 (Abdo 1 at [11]-[12]). 41 The objective recognised in the ARLC Constitution of conducting and fostering the NRL Competition as the elite level of the sport impacts directly upon the ARLC's capacity to achieve its other objectives. As most of the revenue generated by the ARLC derives from its ownership of the NRL Competition, the ARLC's capacity to adequately fund all levels of the game and to develop and grow the game depends upon the financial success of the NRL Competition (Greenberg at [14] et seq). As I later explain, in determining the reasonableness of the new rule, one of the contested issues between the parties concerns the financial impact, real and potential, upon the game if Mr de Belin and others against whom similarly serious criminal charges may be laid are permitted to continue to play pending the determination of such charges. 42 The NRL administers the NRL Rules which govern the conduct of the clubs, players and other participants in the NRL and Related Competitions (see rule 6, NRL Rules). Since 2012, an independent board was introduced to manage the ARLC and the NRL. The boards of directors of both entities are identical (Abdo 1 at [6]). Mr Peter Beattie is the current Chairman of the ARLC and a director of the NRL. 43 The RLPA represents: (1) male rugby league players who are contracted to play for an NRL Club in the men's NRL Competition; and (2) female rugby league players who are contracted to play for an NRL Club in the women's NRLW Competition. 44 Each of the sixteen NRL clubs have between 33 and 36 male players contracted in each season. There are therefore approximately 576 male members of the RLPA from time to time including Mr de Belin. There are four NRL clubs in the women's NRL competition, such that there are approximately 88 female members from time to time. In addition, the RLPA represents players contracted to play for the Clubs who participate in either of the State Cup competitions administered by the New South Wales Rugby League and Queensland Rugby League respectively, with those players being associate members of the RLPA. Past player membership is also maintained for players who have previously held a playing contract in the NRL and NRLW competitions.

4. THE CONTRACTUAL REGIME BETWEEN THE ARLC, THE NRL, THE CLUBS AND THE PLAYERS

4.1 Key documents comprising the contractual matrix 45 There are several interlocking contractual documents governing the relationships between players registered to play in the NRL Competition including Mr de Belin, the clubs licensed to participate in the NRL Competition including St George Illawarra, and the NRL. As these documents form an essential part of the context against which the issues raised in this case fall to be determined, it is necessary to consider them in some detail. 46 The parties were agreed that the matrix of relevant contractual documents is as follows: (1) The NRL Club Licence Agreement made between the NRL and St George Illawarra in 2011 (exhibit A5 at p. 11); (2) the NRL Playing Contract made between St George Illawarra and Mr de Belin in 2017 (the Playing Contract) (exhibit A5 at p. 47); (3) the NRL Rules consolidated as at 5 March 2018 which applied at the date that the new rule was purportedly made (exhibit A5 at p. 136); (4) the NRL Rules consolidated as at 11 March 2019, i.e., as purportedly amended so as to incorporate the new rule (exhibit R6 at p. 11); and (5) the Collective Bargaining Agreement dated 25 October 2017 which was adopted by a letter from the NRL to the ARLC dated 1 November 2017 (exhibit A5 at p. 107). 47 In addition, the respondents contended that the NRL Player Registration Application dated 13 February 2017 and completed by Mr de Belin (exhibit A5 at p. 95) in which he applied for registration by the NRL as a player in the NRL Competition constituted a binding contract (as to which see below at [63]). 48 As I later explain, the NRL Playing Contract and Remuneration Rules (Schedule 6 to the NRL Rules) (PCR Rules) require a club to enter into a Club Licence Agreement before it is permitted to participate in the NRL Competition and Related Competitions. Equally, a player must be registered under the NRL Rules and hold a Playing Contract with a club in order to participate in these competitions. As I also explain later, the Club Licence Agreements and the Playing Contracts comprise the means by which the NRL, the clubs and the players are bound by the Rules.

4.2 The Club Licence Agreement 49 Any club wishing to participate in the NRL Competition must enter into an NRL Club Licence Agreement with the NRL in accordance with the NRL Rules: see rule 7, NRL Rules and cl 22, PCR Rules; Abdo 1 at pp. 3-4. A copy of the Club Licence Agreement between the NRL and St George Illawarra dated 1 December 2011 (the Club Licence Agreement) was tendered as part of exhibit A5 at p. 11 (exhibit A5 comprises the annexures to Tassell 1). While the Club Licence Agreement states that it has an expiry date of 31 October 2018, it was not suggested that the terms of that agreement were no longer in force. Rather, as earlier mentioned, the parties were agreed that it constitutes a relevant contractual document for the purposes of this litigation: AOS at [3] and RCS at [65]; see also Abdo 1 at 15 and (b). As such, it is not in dispute that at all relevant times, the Club Licence Agreement accurately reflects the contractual relationship between the NRL and St George Illawarra, as do the other such agreements between the NRL and other clubs. Nor was it in dispute that the terms of all club licence agreements are relevantly the same. 50 Leaving aside the relationship between this agreement and the NRL Rules which I address separately, four points of particular relevance emerge from a consideration of the Club Licence Agreement. 51 First, by cl 2 of the Club Licence Agreement, the NRL grants the club a licence to participate in the NRL Competition on the terms and conditions contained in the agreement: see also cl 8(a). The intention stated in cl 3.1 is that "[t]he NRL Competition will be a first grade, national (and international to the extent of New Zealand) competition." In furtherance of this intention, cl 9.1 imposes an obligation upon the club to participate in the NRL Competition with its best NRL Team, including as many of the top 25 players as possible. The Club is also required to make available its players for selection and participation in all Representative Matches: cl 6.1. These include the State of Origin match and representative and international rugby league matches representing Australia: see the definition of "Representative Match" in cl 1.1. 52 Secondly, the Club Licence Agreements between the NRL clubs and NRL acknowledge that the ARLC has the exclusive right to exploit the intellectual property rights in the NRL Competition, including the broadcasting, marketing, and sponsorship and naming rights (see e.g. cl 4 of the Club Licence Agreement). The ARLC also has the exclusive use of the field of play for signage at all matches in the NRL Competition, and the right to all ticketing and other revenue from the matches in the NRL Finals series, including the NRL Grand Final: Abdo 3 at [4]. However, under the Club Licence Agreements, the clubs are entitled to receive income distributions from the NRL Competition including a funding grant, a share of revenue generated by the NRL from centralised merchandising and marketing activities, and prize money (see e.g. cl 8 of the Club Licence Agreement; Abdo 3 at [6]). In addition, a limited number of revenue rights are reserved to the clubs under the Club Licence Agreements. These include limited rights to exploit certain intellectual property ("Licence Property" and "Player Property") and the rights to ticketing revenue at matches played at its home ground in the regular season: Abdo 3 at [5]. "Licence Property" is all intellectual property created by, owned or licensed by or to the ARLC and in turn to the NRL, as well as all intellectual property created by, owned or licensed by or to the Club: cl 1.1. 53 Thirdly, in the context of this litigation the concept of "Player Property" is significant for reasons I later explain. It is defined in the Club Licence Agreement to mean "the name, photograph, likeness, image, reputation and identity of a Player" (cl 1.1). Under the Club Licence Agreement, the club grants the NRL an exclusive world-wide, royalty-free licence to use, and licence the use of, Licence Property and all Player Property for the term of the Agreement, including by the exercise of broadcasting rights, sponsorship and naming rights, and the right to sub-licence those rights to the ARLC (cl 14.2). In turn, the club is required to procure, as terms of each player's Playing Contract, the grant of a licence from each player to use and licence the use of his Player Property on terms which authorise the NRL to further sub-license the use of Player Property to the ARLC (cl 14.3(a)). The value of the Player Property is protected by cl 14.3(b) whereby the parties agree that a player must not without written approval endorse products or services that conflict with the club's sponsors, NRL sponsors, or sponsors of a representative match. 54 Fourthly, while the ARLC retains 20% of gross revenue derived from the exploitation of "Marketing Rights" (defined in cl 1.1 as "all rights to exploit the Property and Player Property by any means, including merchandising in any medium, and concession income for the Final Series"), the remaining 80% is paid to the NRL to be applied in accordance with cl 16.3. That clause in turn provides for the distribution of a percentage of revenue from the sale of merchandise incorporating the Player Property of one player only, to that player, and which relates predominantly to one NRL club or its team, to that NRL club. Otherwise, the remaining revenue is distributed equally among the clubs participating in the NRL Competition.

4.3 The Playing Contract 55 Mr de Belin entered into an NRL Playing Contract with St George Illawarra for the purposes of participating in the NRL Competition, Representative Competitions (if selected) and the Related Competitions (cl 1.1, Playing Contract) (exhibit A5 at p. 48). While the Playing Contract is dated 13 February 2017, it was time-stamped 9 March 2017 and commenced on 1 November 2017. The Playing Contract is expressed to terminate on 31 October 2020 subject to the parties agreeing in writing to a longer term or an earlier termination in accordance with the contract (cl 2.1, Playing Contract). 56 First, in compliance with St George Illawarra's obligation under cl 12.1 of the Club Licence Agreement, the Playing Contract incorporates all of the standard terms contained in the NRL Playing Contract required by the PCR Rules and no other terms: see the acknowledgement signed by the club representative and Mr de Belin annexed to the Playing Contract (exhibit A5 at p. 80). Further, by cl 18.2(d) of the Playing Contract, Mr de Belin agreed that, if he is to maintain his registration with the NRL as a player, the Playing Contract, if varied, must at all times be varied in accordance with the PCR Rules. 57 Secondly, under cl 3.1 of the Playing Contract, Mr de Belin agreed to: (a) whenever and wherever reasonably required, and to the best of his ability and skill, play the Game for the Club in the NRL Competition … the Representative Competitions (if so selected) and the Related Competitions; … (k) at all times, act in the best interests of the Club and the NRL; … 58 By cl 3.6 of the Playing Contract, St George Illawarra contracted to use its best endeavours to provide Mr de Belin an opportunity to train for and play the game either with a team in the NRL Competition or another team with which the club is affiliated, subject to Mr de Belin being physically and mentally able to perform to the level reasonably required of a professional rugby league player with his level of skill and experience. 59 Finally, by cl 3.3, Mr de Belin granted to the club a licence to use, and to licence the use of, his Player Property in line with the obligation imposed upon the club by cl 14.3(a) of the Club Licence Agreement: see above at [53].

4.4 The NRL Player Registration Application 60 Under cl 3.1(h) of his Playing Contract, Mr de Belin was also required to "complete, agree to and comply with the terms of the NRL Player Registration Application". In compliance with this obligation, Mr de Belin applied to be registered by the NRL as a player in the NRL Competition with St George Illawarra on 13 February 2017 for the seasons covered by his Playing Contract. In the Player Registration Application Mr de Belin agreed that he was bound by the NRL Rules as amended from time to time (cl 2(a)). 61 Importantly, by cl 5 of his Application, Mr de Belin also acknowledged that: (a) The NRL Competition and the National Youth Competition are the subject of significant public, commercial and media interest and its success depends on continuing and developing the interest that those groups have in associating with the NRL Competition, the National Youth Competition, the Clubs and the NRL Players; (b) As a Player my conduct both on and off the field will be the subject of significant media and public scrutiny; and (c) It is a fundamental requirement of my registration and my NRL Playing Contract that I maintain at all times a reputation for high standards of personal conduct, including a reputation for respect for women and children, the responsible consumption of any alcohol that I drink and for lawful and good behaviour generally. A copy of the completed and signed application was attached to Mr de Belin's Playing Contract. 62 In this regard, I note that one of the matters to which the Salary Cap Auditor must have regard in deciding whether to register a person as a player in the NRL Competition is "whether the person is a fit and proper person to be registered as a Player" (cl 44(1) and (2), PCR Rules). 63 Finally, irrespective of the Application's status, it is plain from cl 14(2) of the NRL Rules that registration does not create an employer/employee or principal/agent relationship between the NRL and a player. That does not, of course, mean that registration did not create a contractual relationship between Mr de Belin and the NRL. In this regard, Mr de Belin asserted that the NRL Player Registration Application did not give rise to a contract between Mr de Belin and the NRL. However, no submissions were made in support of that proposition and, with respect, it would seem to ignore the terms of cl 2 (set out at [95] below) which evidences the existence of an offer and acceptance for consideration and an apparent intention by both parties to be bound by the terms in the Application for registration. Ultimately, however, neither party submitted that the question of whether the registration form was contractual in nature was material to the issues in the case (T416.36, 451.45). In this regard, Mr de Belin had agreed to comply with the NRL Rules in his Playing Contract which in turn required him to agree to the terms of the Player Registration Application. As such, his agreement to those terms is a part of his contractual obligations with the Club.

4.5 The Collective Bargaining Agreement between the RLPA and the NRL 64 The fourth contractual document of significance is the Collective Bargaining Agreement dated 25 October 2017 (the CBA) which was adopted by a letter from the NRL to the ARLC dated 1 November 2017 (exhibit A5 at p. 107). I note that the document is described as a "Term Sheet" comprising the terms and conditions of a Collective Bargaining Agreement, and makes reference to a "draft CBA of 31 March 2017" which was not before the Court. As all the parties referred to this document as the CBA, I will adopt the same approach. While Mr Einfeld noted in closing submissions that the CBA suffered from "apparent deficiencies" having regard to the principles in Masters v Cameron (1954) 91 CLR 353, both parties relied upon the CBA and the issue was unnecessary to decide in this case (T430.29; RCS at [87]; AOS at pp. 9 and 16). 65 The CBA is expressed to operate from 1 November 2017 until 31 October 2022 (or 31 October 2023 until a new CBA is concluded) and binds the Australian clubs and players, as well as the NRL and RLPA (exhibit A5 at pp. 108-109). The preamble states that the terms and conditions of the CBA "will be set out in more detail in a long form CBA to be executed by the parties as soon as practicable and which will accurately reflect the terms and conditions contained in this legally binding Term Sheet" (exhibit A5 at p. 108). 66 By virtue of rule 7 of the NRL Rules and the PCR Rules, each club participating in the NRL Competition is subject to a salary cap, being the maximum amount that the club is permitted to pay its players as a whole. This amount is set by agreement between the NRL and the RLPA in the CBA. The amount of the base salary cap agreed between the NRL and RLPA for the top 30 players in each Club for the 2018 season is $9.1m and for the 2019 season, $9.3m (Abdo 3 at [13]-[15]; exhibit A5 at p. 133). The purpose of the salary cap was explained by Mr Greenberg as twofold: "(1), for the competitiveness of the competition and, (2), to ensure clubs don't go broke … trying to win a competition" (T293.11-19). 67 That accords with the discussion of the history of the salary cap in the reasons of Hill J at first instance in Adamson v New South Wales Rugby League Limited (1991) 27 FCR 535 (Adamson (FCA)) at 542-544 (adopted by Wilcox J on appeal in Adamson v New South Wales Rugby League Limited (1991) 31 FCR 242; (1991) 103 ALR 319 (Adamson (FCAFC)) at 254-255). In particular at 543, Hill J explained that: The specific problem which gave rise to the recommendation of a salary cap was that some clubs had overspent on salaries to players in order that these clubs might remain competitive. As a result, clubs required additional finances, either from outside sources or from the League. Further, the poorer clubs could not remain competitive as they could not meet the demands of players and accordingly risked losing the services of their players to other and richer clubs.

4.6 The NRL Rules and their place in the contractual matrix

4.6.1 Overview of the NRL Rules 68 The NRL Rules are administered by the Board of Directors of the NRL and the CEO under rule 6(1), and are intended relevantly "to regulate the conduct of Clubs, Game Participants, Match Officials, Players and Accredited Agents in order to organise, manage and administer the NRL Competition and the Related Competitions" (rule 6(2)). Under rule 7(2), the various Schedules to the NRL Rules are part of the Rules including the NRL Code of Conduct, the NRL Judiciary Code of Procedure, the NRL Appeals Committee Procedural Rules and the PCR Rules (Schedules 1, 4, 5 and 6 respectively). Further, rules 23 to 31A inclusive provide that every Club and every person bound by the Rules shall comply in all respects with the rules in the Schedules. 69 The NRL Rules themselves impose overarching obligations upon all of the various participants in the NRL Competition and provide for enforcement of those obligations, with the detailed obligations being set out in the various Schedules. 70 First, the NRL Rules require that, in order to participate in the NRL or Related Competitions, a Club must comply with the requirements of cl 22 of the PCR Rules, namely: (1) be a party to a current Club Agreement within the meaning of the NRL Rules; and (2) ensure that its officials and its players have complied with, and continue to comply with, the NRL Rules. 71 Equally, any person who participates or wishes to participate as a player in the NRL or Related Competitions must comply relevantly with the requirements of cl 23A of the PCR Rules, namely: (1) have attained 18 years of age; (2) have completed, agreed to the terms of, and executed an NRL Player Registration Application; (3) be a party to a current NRL Playing Contract; (4) be currently registered as a player within the meaning of PCR Rules, cl 38; and (5) ensure that he has complied with, and continues to comply with, the provisions of the NRL Rules. 72 Equivalent obligations to register and comply with the NRL Rules are imposed upon every coach and trainer of a team in the NRL and related competitions (rules 17 and 18, NRL Rules), as well as every club official and other game participants if required (rules 19 and 20, NRL Rules). 73 Relevantly, the NRL Playing Contract must be in the form provided for by cl 28 of the PCR Rules, which regulates Playing Contracts. The detailed objects of these and the other measures set out in the PCR Rules are contained in cl 2 of those Rules and include: (1) Respond to the need to provide, so far as practicable, a fair and even Rugby League competition; (2) Protect the interests of Players who participate, or may participate, in the NRL Competition … and the Related Competitions; (3) Regulate the conduct of Clubs and the persons bound by these Rules in certain respects in order to ensure that: (a) The Clubs each compete on equal terms for the services of Players … (b) The Grants made by the NRL to the Clubs are appropriated or expended by the Clubs prudently; (c) The financial viability of each Club, so far as practicable, is protected; ... (e) The playing strengths of Teams competing in the NRL Competition … are relatively even; … (g) The stronger Clubs are prevented from obtaining the services of an unfair proportion of the better Players and thereby dominating the NRL Competition …; (h) A balance is struck between the financial viability of Clubs and fair payment for Players so as to enable the Players to earn a living from Rugby League as their primary source of income; … (18) Ensure that Rugby League is able to fairly compete with other sports and other forms of entertainment. 74 The establishment, monitoring, and enforcement of the Salary Cap is described in cl 26 of the PCR Rules as being of "paramount importance" to the attainment of the objects in cl 2. The PCR Rules are also intended to encourage clubs to develop rugby league at all levels, including junior and school levels, and to promote other activities that enhance the profile of the NRL and Related Competitions (cl 2(3)(i), (k) and 2(11)(i), (k)). 75 Secondly, specific standards of conduct for clubs, participants and players are contained in the NRL Code of Conduct in Schedule 1 to the Rules (Code of Conduct) which applies to all clubs, players, "Game Participants" and match officials (cl 7, Code of Conduct). The objects of the Code of Conduct are identified in cl 2 and include to: (1) Protect and enhance the best interests, image and welfare of the NRL, the NRL Competition, the Related Competitions, the Representative Competitions, the Other Competitions, the Clubs and the Game by regulating the conduct of Clubs, Game Participants and Players; … (exhibit A5 at p. 180) 76 Thus persons and entities bound by the Code are prohibited from engaging in conduct (including on social media) which is detrimental to, brings into disrepute, or is prejudicial to, "the best interests, image or welfare" of the ARLC, the NRL, the NRL and related and representative competitions, the clubs, or the game: see cll 12 and 32(1), Code of Conduct; see also cl 14(1) prohibiting conduct which impairs public confidence in these entities, competitions or the Game, and cl 31 prohibiting adverse public comment. Conversely, cl 13 imposes a positive obligation upon those bound by the Code to do all things reasonably necessary to promote "the best interests, image or welfare" of these entities, competitions or the game. The Code also facilitates the competitive nature of the game and competitions in requiring every player in every match to play on his merits and to the best of his ability under cl 29. 77 Thirdly, with respect to breaches of the NRL Rules including the Schedules or Guidelines, a contravention of the Rules is sufficiently proved if the evidence supports the conclusion, on the balance of probabilities, that the contravention occurred (rule 8(7)). However, a contravention is proved only if the evidence supports the conclusion, on the balance of probabilities, that the player knowingly committed the act constituting the contravention or was otherwise involved as an accessory to the contravention (rule 8(5)(a)-(c)). The NRL Rules also provide for penalties for breaches including the imposition of fines, the suspension or cancellation of a player's registration and NRL Playing Contract, the deduction of competition points, and the exclusion of a team from participating in part of the NRL or related competitions (rule 9). In addition, the NRL Rules require notice to be given, and the person or Club affected afforded an opportunity to respond, where the COO or CEO forms the opinion that a breach of the Rules has occurred and proposes to impose a penalty (rule 10(1) and (2)). The Rules further establish a process for the review by the NRL Appeals Committee of decisions to impose a penalty (rule 10(4) and (5)). The new rule however exists outside these mechanisms and involves no finding of any breach. It applies automatically upon a player being charged with a criminal offence which is punishable by a maximum penalty of 11 years imprisonment or more: see further below. 78 Fourthly, the Rules provide for the cancellation and suspension of registration for breaches of the Rules or for engaging in conduct detrimental to the interests of the NRL, a Club or the NRL or Related Competitions: rule 22(1)(2).

4.6.2 The stated application of the NRL Rules as amended from time to time 79 In furtherance of the intention stated in rule 6(2), rule 5 of the NRL Rules provides that the Rules apply to: (1) all clubs which are party to a current Club Agreement with the NRL to participate in the NRL Competition and/or related competitions; (2) all players registered by the NRL to play in the NRL Competition and/or related competitions pursuant to the PCR Rules; (3) all "Game Participants" being a person other than a "Player" (as defined) such as club officials, employees and volunteers; and (4) all match officials. 80 Rule 7, in turn, relevantly provides that "[a]ll Clubs and all persons bound by these Rules shall at all times comply with the provisions of" the NRL Rules and the Schedules to the Rules. 81 Thus, rule 2(1) provides that the Board of Directors of the NRL may amend the provisions of the Rules "from time to time in such manner as the Board thinks fit, provided that any such amendments are notified in accordance with sub-Rule (2), in which event any such amendment will have immediate effect." Sub-rule (2) requires a notice amending the Rules to be in writing, refer to rule 2, specify the date on which the Board resolved to make the amendment, set out the precise terms of the amendment, be signed relevantly by the CEO, and be published on the NRL website or otherwise as the CEO in her or his absolute discretion considers appropriate. Sub-rule (3) provides that: To remove any doubt, merely because these Rules (including the Schedules and Guidelines to these Rules) are amended in some respect or respects, however substantial, does not mean that all Clubs and persons bound by these Rules: (a) Are no longer bound by them; or (b) Only bound to the extent that these Rules have not been amended; because, provided any amendment is made in accordance with sub-Rule (2), all Clubs and persons bound by these Rules are bound to the Rules as they are amended from time to time. (emphasis added) 82 Thus, when read with rule 2(1), the effect of sub-rule (3) is to ensure that all clubs and persons bound by the NRL Rules are bound by those Rules as amended from time to time with immediate effect upon compliance with sub-rule (2), and are so bound irrespective of how substantial the amendment is. It is clear that the only express requirements for the making of a valid amendment under the Rules are those specified in rule 2(2). This does not, however, mean that, properly construed, the scope of the power to amend the NRL Rules is unfettered and can be exercised arbitrarily. In particular, it cannot save the validity of a restraint if it is not established that the restraint is reasonable: see further below at [208] as to the principles governing restraint of trade. 83 While the power to amend, withdraw and replace the NRL Rules in cl 9.9(b) of the Club Licence Agreement confers what is described as an absolute discretion upon the NRL, the CBA provides that the NRL "cannot make changes to [the] NRL Rules that are inconsistent with either the CBA or the NRL Contracts" (exhibit A5 at p. 109). The CBA also provides that: RLPA consultation rights - to be simplified to provide for a 14 day or lesser consultation period (lesser as reasonably determined by the NRL in the relevant circs) and to expressly include: • NRL Rules … (exhibit A5 at pp.109-110) 84 Both of these caveats were relied on by Mr de Belin in support of his claims that the new rule constituted an unlawful restraint of trade and/or an unlawful interference with his Playing Contract, as I later explain. 85 Finally, under rule 2(4), the obligation lies upon the clubs to alert each of their players of the making and terms of any amendment to the Rules, whenever an amendment is made.

4.6.3 What is the status of the Rules within the contractual matrix between the ARLC, the NRL, the clubs and the players? 86 Notwithstanding their terms, the NRL Rules are not binding of their own force. Rather, the NRL Rules as amended from time to time are binding upon the clubs and the players under the contracts into which they entered with the NRL in order to participate in the NRL Competition. Thus the obligation upon the parties to comply with the NRL Rules as amended from time to time is a common and necessary thread running through the documents in the contractual matrix. 87 First, by virtue of cl 9.9(a) of the Club Licence Agreement, the NRL Rules are a schedule to, and (unless the contrary intention appears) form part of, the Club Licence Agreement itself. Clause 9.8 of the Club Licence Agreement makes express what would otherwise be implicit in cl 9.9(a), by imposing an obligation upon the Club to comply with the NRL Rules, together with an obligation on the Club to ensure that the players comply with the NRL Rules in the following terms: (a) The Club acknowledges the importance of, and agrees that it is bound by, the Rules for the successful implementation of the System, and must: (i) comply with the Rules and with any lawful determinations made by any tribunal established by or in accordance with the Rules; and (ii) ensure that its Players, officers and employees comply, at all times … with the Rules and with any lawful determinations made by any tribunal established by or in accordance with the Rules. 88 The "Rules" in turn are defined in the Club Licence Agreement to mean "the rules governing the operation of the System, the NRL Competition … made and amended by NRL from time to time, including any schedules to those rules" (emphasis added). Consistently with this, cl 24 provides that the Club Licence Agreement may be varied or amended only by agreement in writing by both parties "except that the Rules may be varied by NRL from time to time" (emphasis added). 89 Clause 9.9 of the Club Licence Agreement deals with the power to make and amend the NRL Rules, providing that: (b) The Rules may be varied, withdrawn or replaced by NRL from time to time in its absolute discretion. 90 That power is limited by cl 9.9(c) which provides that "[i]n the event of any inconsistency between the Rules and any other provision of this Agreement, the other provisions of this Agreement prevail." 91 Secondly, in line with the stated application of the Rules to all players, cl 12.1 of the Club Licence Agreement requires the Club to "ensure that it has in place, and maintains in force, a contract, in a form that complies with the Rules, with each player in its NRL … Team" and that any variations to, or amendments of, a Playing Contract be submitted by the Club to the NRL for approval. Furthermore, under cl 12.2, the Club acknowledged that a player who is not registered with the NRL in accordance with the Rules is not eligible to be selected for, or to play or attempt to play, in its NRL team. 92 Thirdly, in compliance with cll 9.8 and 12.1 of the Club Licence Agreement, cl 3.1 of Mr de Belin's Playing Contract imposes an obligation upon him to comply with the NRL Rules as amended from time to time. Under that clause, Mr de Belin expressly agreed to: (a) whenever and wherever reasonably required, and to the best of his ability and skill, play the Game for the Club in the NRL Competition … the Representative Competitions (if so selected) and the Related Competitions; … (g) be bound by, and comply with, the provisions of: (i) the constitution and rules of the Club; and (ii) the NRL Rules, so far as those provisions relate to the Player … as amended from time to time, and whether those amendments are effected before or after this Agreement is entered into; (h) complete, agree to and comply with the terms of the NRL Player Registration Application; … (k) at all times, act in the best interests of the Club and the NRL; … 93 The phrase "NRL Rules" is defined in cl 29.1 so as to pick up the meaning given to that expression by the NRL Rules (see rule 3(1), NRL Rules). As such, by virtue of cl 3.1(g)(ii) and the definition in any event of the NRL Rules, Mr de Belin agreed in his Playing Contract with St George Illawarra to be bound by the NRL Rules as made and amended by the NRL from time to time: see also cl 29.2(e) providing that, absent a contrary intention, a reference to a document or agreement including the Playing Contract "includes a reference to that document or agreement as novated, altered or replaced from time to time". 94 I note in this respect that in cl 18.2(a)-(c) of his Playing Contract, Mr de Belin acknowledged that he had had a reasonable opportunity to read the NRL Rules and that he been advised to seek legal advice before entering into the Playing Contract. 95 Fourthly, by cl 2 of the NRL Player Registration Application, Mr de Belin agreed that: In signing this Application for registration, and in return for the NRL agreeing to consider my application for registration as a Player in the NRL Competition … I agree: (a) To comply with, and be bound by, the NRL Rules … as amended from time to time, and whether those amendments are effected before or after this date; … (emphasis added) 96 Again, under cl 1 of the Application, the phrase "NRL Rules" bears the meaning given by the NRL Rules.

4.7 Key concepts emerging from the contractual matrix 97 A number of key concepts emerge from the contractual scheme summarised above. 98 First, at the heart of the contractual matrix governing the NRL Competition is the premise that all of the participants - the ARLC, NRL, clubs, players, club officials, coaches and trainers - are bound by the same set of rules as amended from time to time. The reasons for this are obvious. The NRL is a game and a team sport. Further, in the complex world of an elite national (and international to the extent of New Zealand) sport like the NRL generating hundreds of millions of dollars in revenue each year, creating a "level playing field" and thereby ensuring the continued competitiveness of the sport has led to a highly regulated system. This includes, for example, ensuring consistency in the licensing arrangements with the clubs and in the terms of Playing Contracts, and by the imposition of the salary cap. Particular players or clubs may be subject to the application of particular provisions of the Rules from time to time. For example, an individual may be registered as a player subject to conditions which do not apply to other players (cl 44A, PCR Rules). However, that possibility is a consequence of the binding nature of the Rules on all relevant participants and, as such, does not detract from the proposition that all participants in the game operate under the same Rules. 99 Secondly, the fact that provision is made for the Rules to be amended and that amendments are immediately binding upon all of the relevant participants once notice is given in accordance with rule 2(2) of the NRL Rules, reflects the evolving nature of the game. By way of example, amendments may occur potentially in response to such matters as player incidents, safety concerns, changing community values, and threats to the competitiveness of the game. 100 The third key concept evident from the contractual framework is Player Property. Players are not merely employees under their Playing Contracts, but each player name, photograph, likeness, image, reputation and identity is licensed intellectual property in accordance with the Playing Contracts and Club Licence Agreements. The underlying premise is that Player Property is marketable, and can earn revenue for the NRL as well as the player and club. It follows that players are both employees and what might be described, without intending any disrespect, as "live advertising space". 101 The reference to "reputation" in this context is important as it suggests, in line with other evidence to which I later refer, that the reputation of players may impact the reputation of the sport and therefore upon attendance and viewership, and as a consequence ultimately upon the attractiveness of the game to sponsors and broadcasters. An example is the sale of space for the logos of sponsors on the jerseys which form part of the team apparel that players are required to wear at training, at matches and in all public appearances as a player (see cl 3.1(i), Playing Contract). In this regard, reputation is not limited to a player's on-field reputation. As NRL players expressly acknowledge in the Registration Application form, as a player, their conduct on and off the field will be the subject of significant media and public scrutiny, and it is a fundamental requirement of their registration and Playing Contract that they maintain a reputation for high standards of personal conduct. 102 Bearing in mind, therefore, the extent to which players wearing the apparel are in the media, the compelling evidence of several witnesses was that sponsors and potential sponsors were seeking positive associations between their logos and the players and clubs that they supported. Equally compelling was the evidence that sponsors were highly sensitive to the potential impact on their brand of negative associations between their logo and players or the game: see further below at [119]. These factors in turn are highly relevant in the context of determining the reasonableness of the restraint imposed by the new rule.

5.1 Preliminary 103 Save where I have identified any significant issues in dispute, the evidence which I set out below was essentially non-contentious.

5.2 Revenue growth in the NRL Competition 104 The major sources of NRL revenue in 2018 raised by the ARLC were: (1) broadcast revenue derived from free to air television, subscription television, radio and digital streaming rights, totalling approximately $363m; and (2) commercial revenue totalling approximately $160m derived from sponsorship and wagering (approximately $79 million), digital revenue (approximately $24 million), major event revenue such as ticketing (approximately $46 million), and licensing and retail revenue (approximately $11 million). (Abdo 1 at [16]; see also NRL Annual Report 2018 at p. 171 (exhibit R6 at p. 534)) 105 The growth in the NRL Competition which these figures represent was illustrated in the respondents' submissions by comparing the position today with that in 1990 shortly before the decision in Adamson (FCAFC) (discussed later below) (RCS at [18]). In 1990, the League received approximately $20 million in revenue from its trading activities, of which it distributed approximately $8.5 million to the clubs (Adamson (FCAFC) at 283 (Gummow J)). By 2018 the total revenue from the NRL Competition was approximately $500 million, of which a grant of $12.6m was made to each club that participated in the NRL Competition, with total distributions to the clubs of approximately $223 million (Greenberg at [23]; Abdo 3 at [9]). 106 Mr Abdo explained that as between the clubs, revenue varies between approximately $20m to $45m including the grant received by each club from the NRL, with St George Illawarra receiving approximately $26m (Abdo 3 at [11]). As such, it is apparent that the clubs are dependent upon grants from the NRL under their Club Licence Agreements to fund contract payments to players. 107 In turn, the growth in the distribution of revenue to the clubs, coupled with increases in the salary cap, has led to a significant increase in the contract payments received by players under their playing contracts. As to the latter, while a salary cap restricting the maximum total payments that a club could pay to its top 25 contracted players of $4.4 million was imposed in 2012, the salary cap representing the maximum total payments that each club can pay to its top 30 contracted players for the 2019 NRL season is $9.3 million (Greenberg at [26]-[28]). In terms of individual salaries paid to players, the growth in the salary cap has meant that there are a small number of NRL players whose annual contract payments are now greater than $1m, and a significant number whose annual contract payments exceed $500,000 including Mr de Belin (Greenberg at [28]). 108 This growth in revenue is important from the perspective of the continued success of the sport, given among other things the highly competitive nature of the Australian market for professional sporting competitions. Thus one of the objects of the PCR Rules is to ensure that rugby league is able to fairly compete with other sports and other forms of entertainment (cl 2(18)). In this regard, the NRL Competition competes in the same domestic market as the Australian Football League (AFL), Super Rugby, the A-League Competition and Test Match and 20/20 cricket in seeking to attract broadcasters, spectators, viewers, and sponsors (Greenberg at [29]). While Mr Abdo conceded that cricket domestically was essentially a summer sport while rugby league is a winter sport, he pointed out that this was changing with both seasons being long and overlapping to some extent (T315). He also agreed that all sports in Australia are competing for the attention of audiences in the highly competitive Australian market (Abdo 1 at [18]), due to the growth of online platforms providing entertainment in the market such as Netflix and Stan (T316.28), . 109 As Mr Greenberg and Mr Abdo emphasised, the financial success of the NRL Competition depends upon the Competition being attractive to spectators, television viewers and commercial sponsors, given that its popularity among these groups determines the revenue generated from ticket and merchandise sales, sponsorship and the sale of broadcasting rights. Furthermore, in order to attract and retain players in the NRL Competition, the NRL clubs must be able to offer attractive financial terms to professional footballers. 110 Generating interest in participation in the game at the junior and amateur level, both in the contact form of the game and non-contact tag and touch versions, is also vital to the long-term success of the game, as is recognised for example in the PCR Rules (see above at [74]). As Mr Greenberg also explained: 20. … First, some of the junior participants will develop to become NRL players. Junior footballers in Australia have a number of football codes that compete for their participation and the future success of the Competition depends on it continuing to be able to attract talented footballers. 21. Secondly, players that participate in the game at the junior or amateur level develop a strong connection to the game of rugby league and are thus likely to become long term fans and attend NRL matches or watch them as television viewers. 111 It follows from these considerations, as the respondents submit, that from a general perspective the interests of the players and the respondents are not in opposition to each other. The respondents do not seek to profit from the players' labours in order to further the financial interests of private shareholders or investors. Rather, they seek to ensure that the game continues to grow and to be attractive from "grass-roots" football to the elite level and to earn significant revenue for the benefit of the game and, in particular, for those players participating at the elite level in terms of income and opportunities. This commonality of interests is reflected among other things in the CBA in providing that the players and RLPA will commit to measures that strengthen the ability of the NRL and clubs to drive increased revenues they may share in, and in the commitment of the NRL and RLPA to discussing how all stakeholders can work together to grow the size of the rugby league industry and explore ways in which players can grow the commercial strength of the game (exhibit A5 at p. 125).

5.3 The relationship between the values for which the NRL stands, its reputation and its financial interests 112 Mr Abdo explained that the vision of the ARLC is to bring people together for the best sports and entertainment experience. He identified its core beliefs as: being inclusive, positive, united and disciplined. Its belief of being inclusive is to ensure that all persons, no matter what their culture, gender, sexuality and social background are respected and feel welcome in rugby league. (Abdo 1 at [5]) 113 This approach can be seen to promote the objects of the ARLC in its Constitution including the promotion of the cultural welfare of young people in the community and in particular the rugby league community, and the promotion and encouragement of sport and recreation, particularly rugby league football, in the interests of the social welfare of young people. This approach also promotes the core values published on the NRL website and in its strategic plan (exhibit R6 at pp. 4-5), and reflect community values of cultural inclusiveness, equality and respect. 114 The evidence clearly established in my view that the capacity of the NRL Competition and its clubs and players to embody and promote these values, and to be perceived as doing so, potentially impacts the reputation of the NRL, its revenue sources and therefore upon the ability of the NRL and ARLC to grow and develop the game. 115 First, NRL players expressly acknowledge in their Player Registration Applications that the success of the NRL Competition depends on continuing and developing the interest that the public, commercial parties and media have in associating with the NRL Competition, the clubs and NRL players. They also acknowledge the fundamental requirement for players to maintain a reputation for high standards of personal conduct including a reputation for respect for women and children. 116 Secondly, Mr Greenberg explained that: … the amount of broadcast revenue that free to air broadcasters are willing to offer for the rights to matches in the NRL Competition will in my experience generally be determined by its assessment of the likely ratings that will be achieved and the advertising and program sponsor revenue that it can generate. For subscription television the revenue is determined by the number of subscribers who will take the service because the NRL is on it. Broadcast revenue is therefore determined by the assessment that broadcasters make of the popularity of the NRL Competition amongst viewers and television advertisers. (Greenberg at [38]-[39]) 117 That evidence accords with the fact that free to air broadcasters reliant upon attracting advertisements during air-time, and subscription television services being streaming services for which viewers pay a fee, are commercial enterprises seeking to profit from their respective investments. As Mr Abdo explained: The fee that a free to air television broadcaster is willing to pay for the broadcast rights to matches in the NRL Competition is largely determined by the assessment that the broadcaster makes as to the viewer ratings that it is likely to achieve in its broadcasts of the NRL Competition and the advertising revenue that it is able to generate from those broadcasts. In addition to advertising revenue broadcasters also create value through sponsorship integration into the broadcast and through the "halo effect" which is the ability to cross promote that programming during peak rugby league viewership periods. Subscription television is not as reliant on advertising as free to air television. The fee that a subscription television provider will pay for the subscription rights to matches in the NRL Competition is determined by the effect that offering live coverage of matches in the NRL Competition will have on the number of consumers subscribing to its service. (Abdo 1 at [19]-[20]) 118 In this regard, Mr Abdo explained that the income derived from broadcasters is negotiated periodically and, once negotiated, is fixed by the formal legal contract in place between the NRL and the broadcasters (T313.33-44). The current broadcasting rights for Rugby League in Australia were fixed some years ago and extend to 2022 (T313.46-314.15). 119 Equally and unsurprisingly given that companies sponsoring and paying for advertising associated with elite high profile sports such as NRL and AFL are driven by profit and seek to increase sales of their goods and services through their sponsorship and advertising, Mr Greenberg explained that in his experience the revenue generated from sponsorship and advertising by the NRL is determined by the perception that sponsors and advertisers have of the NRL Competition. As he explained, sponsors are therefore looking for the association with the NRL Competition to reflect positively on their brand (Greenberg at [41]). Plainly, as Mr Greenberg explained, the reputation of the clubs and the players participating in the NRL Competition will strongly influence that perception (Greenberg at [42]). This is particularly so because of the powerful visual associations between the players and sponsors. For example, Telstra as the naming rights sponsor of the NRL has its integrated logo for the NRL Competition which incorporates the Telstra logo displayed on the jersey of every NRL player (Abdo 1 at [45]; exhibit R6 at p. 1872). That logo is also displayed on the field of all NRL games being visible to spectators at the grounds and viewers of each broadcast (Abdo 1 at [46]; exhibit A6 at pp. 1877-1896). The logos of the NRL's other sponsors are also displayed on the playing field and side line signage for each match (Abdo 1 at [47]; exhibit A6 at pp. 1877-1896). 120 Similarly, Mr Abdo explained in his first affidavit that: 21. The revenue that the NRL generates from sponsorship and advertising is in my opinion strongly influenced by the perception that the sponsors and advertisers have of the NRL Competition. While at one time commercial sponsors largely only sought brand exposure in their sponsorship decisions, they now in my experience are more targeted in their investment decisions. They are now looking for the association and affiliation between the sport and their brand to be one that reflects positively on their products and services, thereby driving sales. Increasingly their customers require them to be associated with a sport brand that aligns to what their customers perceive as their own core values and beliefs. 22. The requirement for positive association that the sponsors of the NRL competition have is not just with the Competition broadly but also with the clubs and the players that participate in the NRL Competition. In a professional team sport like the NRL Competition, the clubs and the players are the performers that generate the excitement and human interest and the perceptions that the viewers and spectators have of them is a big influence of the perception that they have of the NRL Competition. 23. The focus that sponsors now have on seeking positive associations between their brand and values with those of the sport that they are sponsoring means that they are very sensitive to any negative perceptions that arise in relation to the sport generally and to players in particular, where those matters influence the way in which the sport is regarded by the general public and their customers in particular. 24. This focus that sponsors now have on positive affiliations also in my opinion will influence the revenue that the NRL Competition is able to derive from free to air and subscription broadcasters. If the advertisers and sponsors of the broadcast, who often are not sponsors of the NRL Competition directly, do not have a positive view of the NRL Competition, this will reduce the revenue that the broadcaster derives from commercialising the broadcast and ultimately the amount that it would be willing [to] pay for the broadcast rights. 121 Thus, in line with Mr Greenberg's evidence, Mr Abdo explained that sponsors sponsor the NRL Competition to obtain positive associations for their products or services with the competition and that: One valuable right that major sponsors are granted is to prominently display their names and/or logos at grounds at which games are played (in the form of signage) or on the players' uniforms (i.e. their jerseys and shorts). The association between the sponsor in the game, club or player is displayed not only to those physically attending the game but also, and far more valuably, to the much larger audience watching the game on broadcast. A typical NRL season match will have an audience of over 1 million viewers on a free to air broadcast slot (being a game televised both on free to air television and subscription television). The cumulative audience throughout the season is over 100 million viewers as stated in the 2018 NRL Annual Report [exhibit R6 at p. 534] … Images from these broadcasts are subsequently reproduced in, among other things, news reports. The players who feature in the broadcasts are therefore directly associated during the match, to both live spectators and television viewers, with the names and logos of the sponsors. The association will not be a positive one where the player featured is subject to a serious criminal charge. (Abdo 1 at [57]-[58]) 122 None of this is to deny that the reputation of the NRL can be impacted upon by many other factors including the quality of the game, the competitiveness of the teams, the skill and athleticism of its players, entertainment value and the quality of refereeing, as well as player conduct "good and bad" (T268.26-43 (Greenberg)). However, Mr Greenberg agreed in cross-examination that the reputation of the NRL Competition is of great significance to the NRL itself and its revenues (T268.22-24). He also explained that revenue had increased threefold since 2012 and that sponsor interest had been "very strong" with "double-digit growth over the last three years" (T268.7-20 and 276.21-39). 123 I also do not accept the submission by the applicant's counsel that conduct "causing disruption" on-field, such as abusing referees or smashing sporting equipment, may not diminish attendances or viewing but be regarded as adding to the entertainment (T484.15-30). While counsel noted that he was not suggesting any direct parallel between such behaviour and the facts of this case, the submission does not address the evidence as to the impact of allegations of violent behaviour towards women and is not supported by any evidence. I also note that conduct of that kind would contravene the Code of Conduct: see e.g. cll 12 and 25 of the Code of Conduct proscribing conduct detrimental to the image of the sport and harassment of match officials. Irrespective therefore of whether or not such incidents might attract some viewers, behaviour of that kind is contrary to the NRL Rules and the values which they embody. The NRL does not, in other words, seek to attract viewers by those means. 124 Consistently with the correlation between these values and the financial interests of the NRL, one significant area of growth on which the NRL is currently focused concerns the number of female spectators, television viewers and participants (Greenberg at [33]; Abdo 1 at [75]). Growing female participation is a key priority of the NRL strategic plan. As such, the respondents are seeking to increase its female television audience, with women currently constituting only 36% of the NRL Competition's television audience, as opposed for example to the corresponding figure of 39% in AFL (Abdo 1 at [75]). Further, in 2018, the NRL introduced a women's premiership competition and a stand-alone State of Origin match. While the number of female participants in the contact form of the game is still low, it increased by 29% in 2018 and the respondents wish to see it continue to grow. However, Mr Greenberg's early estimates were that the current figure (175,000) for male and female participants in the contact game "will be very flat - won't have growth in it in 2019" (T216.46-217.10). There are also over 300,000 registered female participants of the NRL touch (non-contact) form of the game out of a total of about 600,000 participants (Greenberg at [36]; T217.12 (Greenberg)). 125 Furthermore, Mr Greenberg explained that increasing female support of the game is important for the long term future of the game as, in his view, mothers play a significant role in determining what sports their children play and are more likely to involve their children in sports of which they are fans (Greenberg at [35]). 126 In short, as the respondents submitted: 14. In fostering and growing the game, the ALRC [sic] wants the game to reflect the diversity of Australian society, to uphold its values, and to ensure that all persons, no matter what their culture, gender, sexuality and social background are respected and feel welcome in rugby league. 15. These values are particularly important where the players inevitably become role models for many younger fans or participants in the game. It is important that the values that fans, and parents of fans, associate with players of the game accord with the values of the ALRC. 16. Both intrinsically and practically, therefore, the ALRC wants the game to be attractive to, and to respect, women.

5.4 The problem of sexual and domestic violence against women within the NRL and the "summer from hell" 127 Mr Greenberg agreed in cross-examination with media reports that there had been approximately 66 scandals in the NRL from 2015 and that in approximately 11 of the 21 allegations of assault made against an NRL player over this period, the alleged victim was a woman (T296.6-296.31; exhibit A10; see also exhibit A11). The evidence clearly establishes the respondents' serious concerns arising from the frequency of these scandals and especially those involving allegations of disrespectful behaviour towards, and violence against, women. Such behaviour does not accord with the values of the game, the nature of the competition which it seeks to promote, or the financial or other interests of the game. 128 Damaging allegations that are made against a player are therefore likely to have implications for the reputation of his Club and the NRL Competition by association, which may necessitate action by the NRL in order to address that damage. As Mr Greenberg, for example, explained: Player misbehaviour or allegations of such behaviour in my experience potentially impacts in two ways on the reputation of the NRL Competition as it is perceived by spectators, television viewers and commercial sponsors. First, it damages the reputation of the player. This in turn leads to the reputations of his Club and the NRL Competition being damaged by his association with them as the player at the time of the relevant event was held out as their representative. Secondly, spectators, television viewers and commercial sponsors expect that the NRL will take action in respect of the player in such a manner that the reputation of the NRL Competition is restored by the denouncement of the conduct or alleged conduct that comes from the action. If the NRL does not take action with respect to the player that meets their expectations, this will damage the reputation of the NRL Competition amongst each of them as they will consider that the NRL has not sufficiently dissociated itself from the players conduct or alleged conduct. (Greenberg at [43]-[45]) 129 Mr Abdo also agreed in cross-examination that publicity about any player charged with criminal conduct is unhelpful to the reputation of rugby league especially if it involves violence against women, and that its impact is affected by the way in which it is reported (T322.20-30). 130 The NRL has sought to address the issue of disrespectful and violent behaviour towards women and the risks which it poses to the reputation of the NRL Competition by investing in its Player Wellbeing and Education program. Specifically, under the CBA the NRL has committed to provide funding of up to $4.7 million per year towards wellbeing and education initiatives, with minimum funding of $17.5 million over the 5 years from 2018 to 2022 (Greenberg at [53]). The Player Wellbeing and Education program is directed towards educating the players among other things about their obligations under the Code of Conduct and their responsibilities both on and off the field, including on the subject of respectful relationships with women (Greenberg at [51]-[54]). As to the latter, players are provided with education programs at each stage of their career on subjects such as making available intimate videos and photographs without consent, a sex and ethical framework, and sexual assault in a group sex environment including a discussion about the inability to provide consent with a number of men present (see also exhibit R2 at pp. 41-45). The NRL also, with expert partners, conducts its own education program, "Voice against Violence" (Greenberg at [76]). 131 In what was described by the media among other things as the "Summer from Hell" (exhibit A5 at p. 211), it was not in dispute that there were a series of allegations and charges made against NRL players for physically or sexually assaulting or disrespecting women following the conclusion of the 2018 NRL Season in September 2018 (see the summary in exhibit A11). These garnered extensive media publicity. In addition to the charges laid against Mr de Belin on 13 December 2018 of aggravated sexual assault in company of a 19 year old woman, these included: (1) reports that Ben Barba, a player from the North Queensland Cowboys NRL Club, assaulted his partner; (2) charges of domestic violence and assault occasioning actual bodily harm against Dylan Walker of the Manly Sea Eagles NRL Club; (3) charges of recording and distributing intimate images of women without their consent against Tyrone May of the Penrith Panthers NRL Club; (4) charges of aggravated sexual assault against Jarryd Hayne, a former high-profile player for the Parramatta Eels NRL Club (who played with the Club in the 2018 Season but is now without a contract); (5) a plea of guilty by Scott Bolton, a player for the North Queensland Cowboys NRL Club, to common assault in relation to an incident with a woman at a bar; and (6) charges of aggravated indecent assault against Zane Musgrove, a player for the South Sydney Rabbitohs NRL Club, and Liam Coleman, a player for the Penrith Panthers NRL Club. (Greenberg affidavit at [57]-[58]; exhibits A10 and A11; Abdo 1 at [31].) 132 It cannot be doubted that these alleged incidents and the extensive media attention surrounding them significantly escalated the respondents' concerns about the reputation of the clubs and the NRL Competition, and about the financial and other implications for the NRL Competition and rugby league in Australia generally. This was reflected in the media release regarding the ARLC's final meeting for 2018 made on 18 December 2018 which began by stating that: Leading discussions was a briefing on recent reports of assault and violence against women. The Commission, together with the NRL, reiterated that the game will continue to take a strong stance to combat violence against women. The Commission agreed as a priority, to ensure that appropriate action is being taken across the game to deal with recent instances of violence against women. Chairman Peter Beattie said an audit would be undertaken of the steps currently taken by club leaders to combat violence against women to ensure they are adequate. A report will be provided to the Commission in the New Year. Mr Beattie said Commissioner Professor Megan Davis will also lead an audit of the current education and wellbeing programs focussed on the prevention of violence against women, provided by the NRL, clubs and community partners. (exhibit R2 at pp. 589-590) 133 Similarly on 18 January 2019, Mr Greenberg wrote to the CEOs of the clubs to arrange a conference call in order to address "[t]he player behaviour issues we've seen over the last few months", which he described as having "undermined our collective efforts to improve the game's reputation over the last several years" (exhibit R2 at p. 592). He further emphasised that: This is a very important issue and I expect each of you to make yourself available for 15 minutes to be part of the call and to ensure your team captain joins you. I seek your support to ensure we have the leaders across the game as part of this call. It is important that we address this issue together. 134 At the teleconference on 21 January 2019 Mr Greenberg told the CEOs and captains that it was imperative that they ensure that all their players were reminded of their obligations and the need to behave in such a way that there were no further incidents (Greenberg at [87]). He also said words to the effect that: The onus of responsibility for player behaviour does not rest solely with the NRL - it is incumbent on each of you as leaders of each of your clubs both on and off the field to ensure all players understand and acknowledge their obligations to the game. (ibid) 135 During that conversation, a number of the game's most senior players stated that they endorsed Mr Greenberg's key messages. For example, Cameron Smith, captain of the Melbourne Storm, General President of the RLPA and the game's "most capped" individual player, said words to the effect "we are not upholding our end of the genuine partnership and I will be reminding all of the Melbourne Storm players of the need for their behaviour to be exemplary" (Greenberg at [88]). Matt Scott, Greg Inglis and Paul Gallen, the captains of the North Queensland Cowboys, South Sydney Rabbitohs and Cronulla Sharks respectively, also stated that they endorsed Mr Greenberg's comments (ibid). 136 As to impacts on the game of such violence, Mr Greenberg accepted that there had been a trend of increasing support for the game in terms of the number of fans over the last few years but that it fluctuates from time to time (T276.21-33). It can also readily be accepted, as Mr Greenberg did in cross-examination, that other factors may lead to disenchantment among members of the community with the NRL such as major sponsorship by a wagering company given the concern in the community generally about gambling (T285.25-289.7). The frequency of video replays slowing the game down might cause a degree of dissatisfaction with some viewers perhaps to the point where they may watch something else, even though attendances and viewer numbers over 2018 increased (T278.39-280.36), or that disappointment with referee errors might "turn some fans … off the game" (T281.25-33). It may also be accepted, for example, that the reported long-term effects of concussion on former rugby league players in the media may have some effect upon decisions by mothers in 2019 choosing which sport their children will play, albeit that Mr Greenberg did not consider that it would have a significant impact (T282.20-284.7). However, there was no evidence to suggest that the impact of factors such as these are potentially damaging to the image of the game to the same extent as serious allegations and charges of violence and disrespect toward women, particularly those extensively reported following the 2018 season. The relevant point for present purposes is that the evidence clearly established that such allegations, charges and proven behaviour were highly damaging to the NRL Competition in the various respects which I have identified and further explain below.

5.5 The charge laid against Mr de Belin on 13 December 2018 and subsequent reporting of detailed allegations comprising the basis of the charge on 12 February 2019 137 Mr de Belin was charged on 13 December 2018 with aggravated sexual assault in company of a young woman in contravention of s 61J of the Crimes Act 1900 (NSW). The parties accept that the charge against Mr de Belin is of a most serious nature. Nor was there any challenge to Mr Greenberg's evidence that, if the allegations were proven, he would cancel Mr de Belin's registration as an NRL player given the NRL's condemnation of violence against women and the need to protect the integrity, brand and reputation of the game and the NRL Competition (Greenberg at [67]). In this regard, however, as I emphasised at the outset, Mr de Belin has pleaded not guilty to the charge and is entitled to the presumption of innocence. I also reiterate that nothing in these reasons (or in the parties' submissions) should be interpreted in any way as expressing a view upon Mr de Belin's guilt or innocence. 138 The charging of Mr de Belin attracted extensive negative reporting throughout Australia and New Zealand, as was illustrated by many examples of newspaper articles in evidence. The analysis of traditional and social media coverage and posts referring to Mr de Belin prepared by Isentia at the request of the NRL (exhibit R6 at p. 1762) identified a total of 27,858 reports and posts that mentioned Mr de Belin between the date when he was charged and 6 March 2019. Internet coverage comprised 36.5% (10,155 reports) of the total volume, followed by television (8,522 reports, 30.6%), radio (7,213 reports or 25.9%) and press (672 reports or 2.4%). There were 1296 social media posts, most of which originated on Twitter. These figures spiked significantly on 12 February 2019 when Mr de Belin was required to attend the Wollongong Local Court in relation to his criminal charge. 139 Newspaper reports about the Court appearance setting out in detail the allegations made by the complainant were published, for example, in the Sydney Morning Herald and Daily Telegraph on 13 February 2019 (Exhibit R6 at pp. 1774 and 1781). Similar reports of that Court appearance were published in newspapers across Australia and New Zealand, many of which remain available online (Abdo 1 at [35]-[37]; exhibit R6 at pp. 1785-1868). A video of the 9 News television report on 12 February 2019 of the appearance also described further details of the alleged attack which emerged apparently at the hearing and were described by the news reporter as "shocking" (exhibit R4). 140 While, as the applicant's senior counsel submitted, some details of the alleged attack had been published in the media before Mr de Belin's attendance on 12 February 2019, as counsel also accepted, those articles and posts had limited details (see e.g. the reports dated 14 December 2018, exhibit R6 at pp. 560, 565, 574 and 588; see also T486.1-19). As a consequence of the Court appearance, the allegations made by the complainant which emerged in the media were far more detailed and understandably described by Mr Abdo as "of the most serious kind" (Abdo 1 at [39]). They were accurately summarised by Mr Abdo (at [38]) as follows: (a) she met Mr de Belin and another man at a nightclub in Wollongong on the evening of December 8; (b) she accompanied Mr de Belin and the other man when they decided to leave one nightclub and go to another; (c) on the way they went to a unit owned by Mr de Belin's cousin, who was not home allegedly to enable Mr de Belin and his male companion to charge their mobile phone; (d) she used the bathroom when they got inside, however as she was finishing, Mr de Belin walked in, naked. She walked out and Mr de Belin had a shower; (e) Mr de Belin came out of the ensuite naked and grabbed hold of her and forcibly removed her shirt; (f) she put her hands over her breasts, at which time both Mr de Belin and the other man said "show us your tits"; (g) Mr de Belin then grabbed her by the legs, took her shorts and underwear off and threw them on the floor; (h) Mr de Belin moved himself between her legs, lent down and put his right hand around her throat and his right forearm pinned the upper left side off [sic] her body; (i) Mr de Belin then began raping her, while the other man watched on, without speaking; (j) when she next saw the other man he was removing his clothes, at which time Mr de Belin said to him "come have a go"; (k) the pair then engaged in the joint rape of the woman, at one stage swapping positions between them, before the other man and [sic] went to have a shower; (l) Mr de Belin continued to rape her, at times putting his hand around her throat, making it hard for her to breathe; and (m) she subsequently went to Wollongong Hospital where she was seen to have injuries to her legs, neck, lower abdomen and shoulder. 141 Other details included in some reports the following day included that Mr de Belin is 188cm tall , weighs 106kg and "allegedly pinned the size 6, 51kg woman down" (see e.g. Courier Mail, Brisbane, Daily Telegraph, Sydney, and Illawarra Mercury, Wollongong, exhibit R6 at pp. 907, 923 and 929 respectively). While some headlines that day were to the effect that Mr de Belin had pleaded guilty or was in court to face the charge (see e.g. exhibit R6 at 930, 938, 939, 940, 946), other headlines included "Come on, have a go" (Illawarra Mercury), "NRL backs de Belin bail decision despite stand against female violence: torn apart" (Daily Telegraph Sport), "NRL star in court over teen rape claim - teen in horror claim: shocking allegations emerge in league star de Belin's rape case" (Daily Telegraph) and "NRL star in court over gang rape allegations" (Sydney Morning Herald) (exhibit R6 at pp. 915, 918, 922 and 943 respectively). Many reports also stated that following the change in his bail conditions on 13 February, Mr de Belin was cleared to fulfil his training and playing commitments (e.g. exhibit R6 at pp. 907 and 927). 142 While Mr Greenberg was aware through an internal briefing that Mr de Belin was due to attend the Wollongong Local Court on 12 February 2019, he became aware of what took place during the attendance when he saw footage and reports of it on Channel 9 news. As Mr Greenberg explained, part of that news report included reference to police documents which were reported as containing what Mr Greenberg described as "very specific details of very confronting and graphic allegations" (Greenberg at [62]). Mr Greenberg explained his response upon hearing those allegations as follows: The allegations made by the complainant as reported, which the Police have regarded as sufficiently credible to justify charging Mr de Belin, are extremely serious. I was extremely concerned at the reputational damage which would be done to the game and to the NRL Competition from the media reports with our sponsors, broadcasters and fans. In the past 12 months the NRL has undertaken a significant amount of work in relation to women in rugby league including the introduction of the elite competition NRLW and is seeking to make the game more attractive for women to participate in and attend. I was extremely concerned at the effect that these allegations would have on the female audience which we were trying so hard to retain and attract. (Greenberg at [64]) 143 Further, in cross-examination Mr Abdo agreed that he had not in his time seen a player who had been charged with an offence like that alleged against Mr de Belin (T324.14) or seen a charge receive this amount of publicity (T323.20). 144 Mr Abdo's and Mr Greenberg's evidence that the widespread public dissemination of these allegations caused substantial damage to Mr de Belin's reputation, particularly in relation to the treatment of women, was not challenged (Abdo 1 at [40]; Greenberg at [65]). It was Mr Greenberg's view that while Mr de Belin had pleaded not guilty to the charge (and was entitled to the presumption of innocence), "the reality in my view is that many members of the public would be likely to conclude that he had not been charged without cause and that the police who laid the charges reasonably believed he had engaged in conduct that warranted him being charged with that offence" (Greenberg at [65]). 145 One consequence was that the NRL decided against offering Mr de Belin a contract to be included in the NRL Player Marketing Fund (Fund). Before these allegations were disseminated, Mr de Belin had been selected by the NRL to be included in the Fund. Mr Abdo, who was part of the selection process, explained that that Fund contracts the top 32 most marketable players in the NRL to help promote the game and achieve commercial outcomes for the game and its partners. However, upon becoming aware of the allegations and reading the media reports in respect of Mr de Belin and in line with Mr Abdo's recommendation, the NRL decided to no longer offer him a contract because of the potential damage these allegations had on both Mr de Belin's reputation and the damage to the reputation of the NRL should he be publicly held out as one of its chosen representatives (Greenberg at [66]; see also Abdo 1 at [40]). Their evidence on this issue was not challenged. 146 I accept Mr Greenberg's evidence that the number of criminal charges brought against players (including Mr de Belin) was a matter of serious concern to him, given his responsibility as CEO of the NRL to protect the integrity and reputation of the NRL Competition and the game of rugby league generally (Greenberg at [67]). I also accept Mr Greenberg's evidence that he considered the number of allegations of violence made against players following the 2018 NRL season to be embarrassing and damaging for the NRL Competition. This was especially so given its partnerships with community organisations such as the non-governmental organisations White Ribbon, Our Watch and Full Stop Foundation, in connection with their programs which seek to prevent violence against women and children (Greenberg at [76]-[77]). White Ribbon Australia raised concerns with the NRL and on 19 December 2018, shortly after the charge against Mr de Belin was laid, issued a press release expressing its concern, stating that: White Ribbon Australia is concerned about the recent trend of allegations of abuse against multiple NRL players, and believe that the alleged behaviour is unacceptable. The disconnect between the NRL's expectations of players, and clubs' responses to allegations of violence needs addressing. We welcome and support the NRL's upcoming review of all related policies in early 2019, to ensure that the way they address allegations of violence is improved, consistent, and sends a strong message of zero tolerance. We will be providing advice to the NRL during this review to ensure that they meet best practice guidelines when fostering a zero tolerance approach to violence against women. We look forward to seeing the action that will be taken as a result of this review, and expect that it will lead to greater consistency and accountability when addressing unhealthy or violent attitudes and behaviours. White Ribbon Australia has a zero tolerance approach to violence against women and expects all sporting clubs and associations model the change needed in all communities to stop this violence. We believe that a primary prevention approach is needed to stop the violence before it starts. (Greenberg at [78]; exhibit R2 at p. 587)

5.6 Reaction of fans 147 The majority of the NRL's commercial revenue is derived from uncontracted revenue sources, being revenue derived from sources other than the long-term contracts entered into by the NRL with government or corporate partners. Mr Abdo explained that this revenue depends largely on transactions with fans or corporate entities based on decisions made on an ongoing basis which in his experience are strongly influenced by how the sport is portrayed in the media and by how the brand is perceived (Abdo 1 at [27]). 148 Prior to the announcement of the new policy, the NRL received a significant number of unsolicited emails from members of the public commenting, sometimes in colourful terms, upon the position taken by the NRL with respect to Mr de Belin or players generally charged with serious offences being permitted to continue to play. A large number of these communications were annexed to Mr Greenberg's affidavit (exhibit R2), with those behind tab 6 (pp. 57-155) either referring to Mr de Belin by name or to the question of whether the NRL should have a stand down provision for players facing serious criminal charges, and those behind tab 7 (pp. 156-585) relating to general player behaviour (Greenberg at [72]-[73]; T308.38-44). 149 Mr Greenberg was cross-examined at some length on the process by which those emails were collated (T209.38-214.45). The gist of his evidence, which I accept, is that he had requested his senior executive in customer relations to collate emails providing fan feedback sent to the NRL website over the previous month or two. Further, the emails contained in exhibit R2 were those which related to player behaviour or the proposed introduction of the new policy while emails on other topics were not included because Mr Greenberg did not consider them to be relevant. I also accept that in doing so, he sought to provide a balanced and representative sample of the views expressed by members of the public on the subject (T214.38-45). 150 Prior to the announcement of the new policy on 28 February 2019, the emails which mentioned Mr de Belin were overwhelmingly in favour of standing down players charged with offences of the seriousness alleged against Mr de Belin pending the determination of those charges (see, eg, exhibit R2 at pp. 57-101). Many of these, while acknowledging the presumption of innocence, expressed their strong disappointment in a player in Mr de Belin's circumstances being permitted to continue to play and be an ambassador for the NRL, and asserted their intention no longer to support the game as a result (see e.g. exhibit R2 at pp. 64-65, 69, 74 and 75). Following the announcement of the new policy, communications behind tab 6 from the public were more mixed as to whether or not players should be stood down prior to the determination of their charges (exhibit R2 at pp. 118-154). The emails behind tab 7 also provide mixed views, again often colourfully expressed, but are less relevant to the issues in dispute. That said, it is clear that the charges provoked strong responses from the NRL and that, while the issue was a polarising one, there were fans who were at risk of being alienated if Mr de Belin or others charged with similarly serious offences of a sexual nature against women were permitted to play pending the determination of the charges. 151 Mr Abdo also pointed to concerns arising from a decline in wholesale merchandise royalty sales. By way of example, sales of team jerseys were down by 8.7% for the first quarter of 2019 as opposed to the previous year's first quarter and those of St George Illawarra by 18% despite the Dragons having finished in the top 8 in 2018 (Abdo 1 at [77]). Mr Abdo was cross-examined on this evidence (T351.21-354.47). He confirmed that he checked the figures at [77] of his affidavit and had looked at the detail of the report from which those figures were produced. While he accepted that he had not personally checked the data and that they had been produced by an underlying system, he also took steps to check that the figures reported as having been obtained from St George Illawarra were correct by requesting the information that was provided, reviewing it and telephoning Jamie Barrington, the CFO of St George Illawarra. I accept his evidence that the proposition put to him in cross-examination that merchandise sales were in fact "up against budget for the quarter to the end of March 2019" was based upon a misreading of the figures (T354.27). Specifically, in answer to the question of why he would not agree with the proposition (and omitting counsel's simple acknowledgement of the answers being given), Mr Abdo said: [Mr Abdo] There's two types of transactions happening here. One is external transactions--- … ---special sales of jerseys. … ---And the other is transferred between departments. … ---And if you look at external sales to customers, which is Kogarah shop, internet sales, match day sales, any events. Sorry, those - those three I mentioned, those are all down against the budget. … ---And what's up is internal group sales. … That's quite significant here, which is a transfer across to the sponsorship department, which is provided merchandise to sponsors. [Mr Einfeld] You mean charged at cost?---[Mr Abdo] Yes. Yes. (T354.30-47) 152 That being the case, while I accept that many factors may have been at play as Mr Abdo properly accepted, it was not unreasonable for him to infer that sales by St George Illawarra in particular may have been affected by the negative media coverage surrounding Mr de Belin (Abdo 1 at [77]) or at least to have been concerned that there was a real risk that this was impacting on those sales. 153 I also accept Mr Greenberg's emphatic and credible evidence that women who participate in the contact and non-contact forms of the game may choose not to play because of the conduct of a small number of men playing at the elite level (T216.1-19). As Mr Greenberg explained in re-examination: I have multiple examples, but to share with just one, I'm the father of a daughter who plays regularly in touch football, and a number of her and her friends have made decisions that they've shared with me about the conduct of players and the reasons they will no longer participate in the sport. That's a casual conversation I've had with many people over the last few months. (T310.18-25) 154 Finally, I accept Mr Abdo's evidence as to the use made by the NRL of reports prepared by Futures using the NPS in drawing inferences about matters potentially impacting on the popularity of the NRL Competition among fans and plotting trends (Abdo 1 at [28]-[30]). However, as earlier explained, this evidence is subject to a s 136 survey evidence limitation (see above at [36]). Nor can any weight be given to the evidence of Mr Alavy as to survey results said to depict a drop in February 2019 in rugby league fans who consider that player behaviour is better than 10 years ago (Alavy at [44] and p. 101 (annexure 13)). For example, there is no evidence as to the parameters of the survey, the methodology applied, or how the group surveyed were selected; nor was the raw data on the basis of which the alleged decline was plotted in evidence and able to be tested. Furthermore, Mr Alavy conceded in cross-examination that the interviewees were not asked what behaviour they had in mind at the time that they answered the questions (T369.6-9). In short, the basis for the opinions reached by Mr Alavy and in particular the inference that the allegations against Mr de Belin contributed to the decline, was not disclosed.

5.7 Reaction of NRL Competition sponsors and broadcasters 155 The respondents' evidence as to the negative impact that the charge against Mr de Belin and subsequent media reporting has had on the perception held by existing and potential sponsors of the NRL Competition is credible and compelling notwithstanding that no existing sponsor withdrew or cancelled its contract with the NRL (confidential T334.30; see Abdo 1 at [70] and Greenberg at [108]-[109]). This is supported by the powerful visual associations between players and sponsors to which I earlier referred (at [119] above) and the seriousness of the allegations against Mr de Belin, particularly as reported after his Court appearance on 12 February 2019. 156 Even before the reports of Mr de Belin's Court appearance, sponsors were expressing concerns about player behaviour to the NRL. For example, at a specially convened meeting in September 2018, serious concerns were expressed by senior executives of a sponsor to Mr Abdo about brand and reputation risk for the sponsor if sponsorship were renewed (Abdo 2 (Confidential) at [4]-[5]; see also at [7] and Confidential Exhibit R7). Concerns were also expressed by representatives of sponsors at an end of season summit hosted by the NRL for its major corporate sponsors on 22 November 2018. Mr Abdo said that while the session was meant to be a general Q&A for Mr Greenberg, the COO of the NRL, and him, "all [of] the questions centred around player behaviour" (T345.33; Abdo 1 at [51]). Representatives of sponsors expressed a concern that rugby league had a greater incidence of charges involving women and domestic violence, and expressed the view that the game should take stronger steps to protect the sponsors' brands (Abdo 1 at [51]). This included a suggestion made by one representative that the code enforce a simple zero tolerance policy (Abdo 1 at [52]). Mr Greenberg said that representatives of several sponsors said words to the effect that given the number of charges involving women and domestic violence that the NRL appeared to have, the NRL needed to stand down players from playing while such charges were before the courts (Greenberg at [82]). I note, as earlier explained, that this evidence was subject to a s 136 non-hearsay limitation (see above at [19]). 157 Following the media coverage after Mr de Belin's Court attendance, Mr Greenberg received a number of calls from representatives of major sponsors and broadcasters asking what the NRL was proposing to do to protect the reputations of the NRL and its partners, given the nature and seriousness of the allegations made against Mr de Belin and other NRL players (Greenberg at [91]). Mr Greenberg's initial response was to say words to the effect that "under existing NRL policies the players will be sanctioned once their guilt or innocence was determined by the relevant Court, but in the interim they will be permitted to continue to participate in the NRL Competition." However the sponsors and broadcasters continued to express serious concerns to the NRL. For example, senior executives of News Limited, the owner of the subscription television broadcaster of the NRL Competition, and a senior executive of the free to air broadcaster of the NRL Competition, Nine Entertainment Ltd, said to Mr Greenberg during face-to-face meetings and telephone conversations words to the effect that they were concerned that the charge against Mr de Belin would have a negative effect on the upcoming season's ratings and would significantly dilute their future broadcast values (Greenberg at [94]). Moreover, Telstra, the NRL's major and naming rights sponsor, stated that it was concerned about the damage done to its brand while the charges were being reported on, and expressed the view on 27 February 2019 that the NRL should automatically stand down any player facing criminal charges from participation in the NRL Competition (Abdo 2 (Confidential) at [8]-[9] (as submitted in RCS at [44(1)])). In a telling piece of evidence, on 20 February 2019 Mr Greenberg received an email from Mark Fitzgibbon, the CEO of NIB which is one of the principal sponsors of the NSW State of Origin Team (Greenberg at [104]). Mr Fitzgibbon attached what he described as a photograph of Mr de Belin in the previous day's "Tele" wearing his team jersey with the "NIB" logo prominently displayed. In his email, Mr Fitzgibbon essentially communicated his view that the photograph illustrated that the brand risk to NIB as a major sponsor was no longer acceptable and Mr de Belin should be stood down pending the outcome of the charges (exhibit R2 at pp. 609 and 609A). I note that this evidence was not ultimately the subject of any objection and was admitted therefore for all purposes. 158 On 15 February 2019, Youi, one of the NRL's major sponsors, made the following public comment regarding the issue of NRL player behaviour which was reported in a Daily Telegraph article dated 17 February 2019 (exhibit R6 at p. 1910): Youi does not condone any form of violence and takes the issue of player conduct very seriously. The incidents we have witnessed recently have been unacceptable, and we have been actively engaging in discussions with the NRL on their response. Players should be held to account for their actions, and we expect the NRL will address these issues and rebuild the values we support. (Abdo 1 at [55]) 159 Furthermore, in the period following the charge against Mr de Belin, potential grass roots sponsorship in the sum of $7.5m was lost, with the reason stated being current reputation issues with the NRL (Abdo 1 at [70]; Abdo (Confidential) at [16]). Added to this, in the first quarter of 2019, four other significant sponsorship deals totalling $2.6m per year were lost with the reason stated by the sponsors being the number and nature of player indiscretions currently taking place (Abdo 1 at [70]; Abdo (Confidential) at [17]). The risks facing the ARLC were further illustrated by the fact that the NRL has six partnership agreements ending in 2019 or requiring renewal, totalling in excess of $8m, with Mr Abdo expressing the view that renewal of the agreements would have been very difficult in the present circumstances if the NRL had not addressed sponsor concerns by implementing the stand down policy (Abdo 1 at [70]). He expressed the view that "the impact of the recent serious player behaviour incidents remains top of mind for any corporate sponsorship executive considering an investment in an association with our game. I cannot have a conversation with a current or prospective sponsor without this matter being raised" (Abdo 1 at [71]).

5.8 Impacts reported by the NRL clubs 160 Representatives from some NRL clubs were reporting to Mr Abdo that they were struggling to sell key sponsorship properties and that they considered this to be a likely consequence of the reporting of player misconduct issues including the reporting of the charge against Mr de Belin (Abdo 1 at [60]). For example, at a board meeting of the South Sydney Rabbitohs Rugby League Club Ltd attended by Mr Abdo and Mr Blake Solly, the CEO of the Club, Mr Abdo recalled Mr Solly saying words to the effect that "the club has lost several potential sponsors for 2019 amidst the troubling offseason and number of player indiscretions. Those who have walked away are likely to have walked away for good. Furthermore target corporate sponsors are not even taking our calls or willing to have a conversation" (Abdo 1 at [60(a)]). In cross-examination, Mr Abdo acknowledged that a prominent member of the South Sydney Rabbitohs had been accused of sending inappropriate texts (sexting) by telephone and that Mr Abdo had discussed with Mr Solly the fact that his club might be having difficulties obtaining sponsors because some of its own players had been involved in serious misconduct (T349.27-41). However Mr Abdo said that Mr Solly's "feedback to [Mr Abdo] in front of his board was that in order to obtain a new sponsor - was virtually impossible for the club, given that we were potentially going to be having players take the field having been charged with serious crimes" (T349.33-37). 161 Mr Abdo also said that in late January 2019, he received a phone call from the then CEO of the Cronulla Sharks, Mr Barry Russell, who said to him words to the effect that: (1) "we have lost all our major sponsors on our jersey for 2019 due to the negative sentiment towards our game caused by NRL players" and (2) requesting permission for the Sharks "to place on their jerseys the name or logo of a charity partner associated with preventing domestic violence against women in Australia so as to make a statement that violence against women is not what the game stands for" (Abdo 1 at 60). 162 Mr Abdo conceded in cross examination that he had not discussed with Mr Russell the fact that the chairman of the Cronulla Sharks "had had a drug involvement attracting significant publicity only a year or so earlier" (T349.45). He also accepted in cross-examination that the fact that the Club had been severely penalised for its involvement in salary cap breaches going to the issue of the club's integrity might be a factor, and that the involvement of two of its players in a scandal for using obscene and profane language on a podcast did not help (T350.1-16). However, he said that his evidence had been based upon a direct conversation with the CEO of the Sharks who specifically requested dispensation to put a charity partner who would send a message with respect to partners that violence against women was not tolerated by the Club (T350.18-27). 163 In this regard, while I accept the accuracy of Mr Abdo's recollections of these conversations, it must be borne in mind that Mr Abdo did not personally approach any Club sponsors and therefore did not have the benefit of confirming these views directly with those sponsors (T349.15). Nor did any of those Club sponsors or entities apparently approached for potential club sponsorship give evidence. 164 The evidence of Mr Campbell, Chairman of the Melbourne Storm, as to the impact of the criminal charges against NRL players following the end of the 2018 season was particularly compelling. 165 The Melbourne Storm has been a consistent finals representative in the NRL Competition and played in the last three Grand Finals. Mr Campbell explained that its success and position as the only team in Victoria in the NRL competition led to it having the second most fans in the NRL (in excess of 1 million) and being the most watched team in the NRL last season with over 19 million cumulative viewers on free to air and subscription television (Campbell at [5]-[6]). 166 Crown Resorts was the major sponsor of the Melbourne Storm from 2011 to 2018 when it announced that it would be retreating from the sponsorship market of which the Melbourne Storm was one property (Campbell at [8]; T377.30-32). Mr Campbell denied that he must have been (initially) concerned at the prospect of losing such a valued sponsor, explaining that he was "[n]ot concerned because the club was travelling well and therefore the opportunity for a replacement was strong. The Melbourne Storm is the second most watched sporting team in Victoria behind Collingwood [an AFL team]" (T377.42-46). 167 In the third quarter of 2018, the Melbourne Storm commenced the process of obtaining a new major sponsor for the 2019 season onwards. Mr Campbell explained that while he was concerned about the impact of the negative publicity in the media on the reputation of the NRL Competition, his initial view was that the series of criminal charges against current and former NRL players for alleged conduct involving sexual or physical assault of women was not having a significant effect on the commercial activities of the Storm. This was because there was less coverage in Victoria where the media focused more on the AFL, the dominant code in that State (Campbell at [10]). 168 I accept Mr Campbell's evidence that the process of looking for a sponsor before Mr de Belin was charged on 13 December had not proved difficult (T378.23) and that in the period between June and December 2018, there were a number of potential corporate sponsors who expressed interest in sponsoring the Storm at a value equal to, or greater than, the amount of sponsorship which the Storm had been receiving from Crown Resorts (T379.29-42). In this regard, I also accept his evidence that the Melbourne Storm's previous salary cap offences a decade earlier had not impacted materially on the process despite the personal opinions expressed in recent times by the Storm's club captain and senior club executive: Well, in the six years I've been involved with the club, sponsorship has increased by 73 per cent; crowds have increased by 70 per cent; membership has increased by 75 per cent; and our TV viewership has gone from 11 million to 19 million. So I think it's misleading to suggest that a recent conversation that was topical in the context of the salary cap issues at Cronulla has in any way dented the commercial program at the club. The commercial program at the club is robust. It has been growing for a long period of time, and we've had great success commercially. The recent issues have halted that success. (T380.41-381.2) 169 However, the position changed in January/February 2019 following further incidents of accusations of misconduct by NRL players involving violence or disrespectful behaviour against women which were again subject to widespread media reporting (Campbell at [11]-[12]). As Mr Campbell explained: I think the reality is the process itself was designed to conclude early in the new year and our process became fraught because in the January/February window we had four companies we had been talking to who said that the risk of being associated with the NRL was too great for those companies. They chose not to be. (T378.23-27) 170 In turn by mid-February the Storm was in advanced sponsorship negotiations with two companies to become its major sponsor but had not yet been able to reach a satisfactory agreement whereby either company would match the amount paid by the Storm's major sponsor in the previous season, or pay the increase sought (Campbell at [12]). The end result was a less than satisfactory situation for the Melbourne Storm, with Mr Campbell explaining that: And then as we moved forward we got down to two companies in mid-February where the position we found ourselves were commercially compromised and partially by reputation, partially by time, and we ended up being forced into a situation where we either took an offer of $500,000 below market value times four years or $500,000 below market value for one year and then - and were at risk to replace that sponsor looking forward. (T378.32-37) 171 As Mr Campbell explained in his evidence: The series of player criminal charges that had occurred in the 2018-2019 off season was, in my experience of 24 years working in the business of sport, the worst off season of any professional sport of which I am aware for player criminal charges and misconduct. The fact that the Storm, the second most popular and the most watched NRL team, had been unable to secure a major sponsor on market terms, coupled with the repetitive negative responses that the Storm was receiving about the NRL in general, indicated to me that significant damage had been done by these issues to the reputation of the NRL Competition and its participants. The Storm ultimately entered in[to] a contract with a major sponsor for the 2019 season in an amount that was 40% less than that which the Storm received from its major sponsor in 2018. The contract was also for a single year. (Campbell at [14])

5.9 Escalating concerns within the ARLC 172 From early February 2019 to the end of that month, Mr Greenberg regularly reported to Peter Beattie and other members of the ARLC Board the feedback he received from sponsors, broadcasters, clubs and senior NRL executives as to the damage which they said player misconduct was causing the NRL Competition and views expressed by them that to address this, players subject to serious criminal charges like that faced by Mr de Belin should not be permitted to play in the NRL Competition while their charges were outstanding (Greenberg at [109]). 173 On 13 February 2019, Mr Campbell sent an email to the chairs of all NRL clubs asking that a newspaper report of the same date carrying the headline "NRL warned of sponsor exodus over scandals" be put on the agenda for the ARLC Annual General Meeting, stating among other things that "[a]s a game we need to do something. Standing around while Rome burns is not good enough" (Campbell at [20] and annexure BC1; Greenberg at [97] and exhibit R2 at p. 593). Mr Campbell explained that he sent this email: because of my concern about the cumulative damage that has been done over the off-season to the reputation of the NRL Competition by charges against players and poor player behaviour and because I considered that a number of the other Clubs whose sponsorship properties … were not up for renewal did not yet fully understand the extent to which player behaviour issue [sic] had damaged the reputation of the NRL Competition and the commercial value of the sponsorship properties of the Clubs. I was concerned that if this issue was not addressed, the cumulative financial damage that would be caused in 12 months' time, when a number of these sponsorship properties were up for renewal, together with increasing risk to broadcast values would put the financial future of the game in jeopardy. The game operates a full distribution model and does not have the means to readily absorb financial shocks to the system. (Campbell at [21]) 174 The following day, Mr Campbell sent an email to Mr Greenberg asking him to put up a series of proposals to the clubs to support on the Friday, including: 1. Urgent decisive action needed now. The game is becoming a laughing stock. Worse actually because it's not funny. It's a car crash. 2. Any player before the courts for a criminal matter be stood down on pay pending resolution, with a suspended fine. Blanket rule. (Campbell at [22] and annexure BC2) 175 In a further email ten minutes later, Mr Campbell urged Mr Greenberg to be decisive stating among other things that "[t]he game needs to stand for something. At the moment we look like and [sic] enablers of violence/sexual or otherwise against women and it stinks" (exhibit R2 at p. 597). 176 On 15 February 2019, Mr Greenberg chaired a meeting of the CEOs of the NRL clubs in Melbourne at which significant time was allocated in the agenda for discussion of the topic "Player Behaviour and Culture" (Greenberg at [98]; exhibit R2 at p. 600). Mr Greenberg and Mr Campbell met the following day in order to discuss Mr Campbell's concerns given that he had not been able to attend the meeting (Greenberg at [99]). 177 On 15 February 2019, Mr Abdo sent an email to the NRL's major sponsors in which he referred to a number of high-profile behavioural issues in recent months involving NRL players and referred to the sponsors possibly having been approached by the Daily Telegraph for comment on their position on such matters (Abdo 1 at [53]). In the email, Mr Abdo stated that: I wanted to reassure you that - as a game - we are determined to ensure that the values and integrity of Rugby League is protected, along with the integrity and reputation of all of our corporate partners. We have been very clear in recent public statements that we will be stronger than we have ever been on issues of player behaviour. As you may be aware, Todd raised player behaviour with our players through the Club Captains during a recent phone hook-up. The subject will also be a key discussion point today during a meeting of the Club CEOs. Player behaviour has been and continues to be a strong focus for us. If players are found guilty of some of the offences they stand accused [sic], then they will not be welcome in the game. A number of matters remain the subject of ongoing investigations by the Integrity Unit. The results of those matters will be relayed in due course. I can be no clearer than to say that in instances where there is clear evidence of violence towards women, players will not be welcome in the game. Where clear evidence is available, we are able to act swiftly. In some of the other cases before the courts, we will wait for the criminal proceedings to conclude, without interference. Rest assured the Integrity Unit, and all of us at the NRL, have upholding the reputation of the game, as well as the brand and association of our partners and supporters, as our number one priority. (exhibit R6 at p. 1908) 178 A copy of an email from the Daily Telegraph dated 14 February 2019 to one of the NRL's sponsors is at exhibit R6, p. 1913 (Abdo 1 at [55]). 179 In cross-examination, Mr Abdo accepted that he had been alarmed at the press contacting the NRL's sponsors to get their comment on its procedures because they sponsor the NRL to drive positive alignment and association with the game, and not to be questioned about negative aspects of it (T345.47-346.7). He explained that it was his job to have regular communication with sponsors by email and telephone, and that this was not the first time he circulated a letter to the group of sponsors about player behaviour (T346.20-26). He explained that his concern was not about what sponsors might have said to the press, but that sponsors were being asked questions by the press as well as his concern about how the press were reporting rugby league over this period (T346.36-41). Mr Abdo eschewed the proposition that he was seeking to "dampen down … adverse press publicity about the NRL's perceived inactivity" as it was put in cross-examination, and said that he was just describing what the NRL's policy was and reminding the sponsors of it being a priority for the NRL (T347.26-31). As soon as sponsors conveyed their concerns to Mr Abdo he reported them to Mr Greenberg and other NRL senior executives, and was subsequently asked to report them directly to Mr Beattie and the ARLC Commissioners, which he did (Abdo 1 at [56]). 180 On 17 February 2019, Mr Campbell wrote again to Mr Greenberg by email pressing for a change to the current policy and expressing the view that it is wrong to ask the clubs to self-determine policy. His email further stated: Clubs view life through a prism of their own self-interest. This is right. The ARLC and NRL are tasked with a whole of game view. Do you really think that we are winning in the public's eye with the current policy? As far as I am aware the AFL has had one rape/domestic violence or sexual assault claim against its players in the last few years. We are well in double digits. The harm by waiting is amplified by the volume. Matters that bring the game into disrepute and/or create extreme amounts of negative publicity until resolved will not stop without a change of policy. If we as a game are seen as not listening to the fans who pay our wages, especially when seen as misrepresenting the interests of women, good luck ever growing participation numbers in kids or women's League. Sorry to bang on about this - but I am wholly convinced that not enough people in the game grasp the moral and financial precipice the game is standing on now. This provides a platform for change. Take it. If you don't we can all move the deck chairs around as the Titanic goes down. (exhibit R2 at p. 601)

5.10 Preparation of the recommendation for the Board of the ARLC and the RLPA's position as communicated on 21 February 2019 181 On or about 18 February 2019, Peter Beattie asked that Mr Greenberg with other members of the NRL management, prepare a recommendation for the Board to consider at its meeting on 28 February as to whether the NRL should change its existing policy that an NRL player charged with a serious criminal offence be permitted to continue to play in the NRL Competition pending the determination of the charge (Greenberg at [110]). Mr Greenberg informed Mr Abdo that the Board was considering the change in policy. He also asked Mr Abdo to prepare for him a report summarising the feedback received by the NRL from its current and potential commercial partners in relation to the player behaviour issues, as well as a summary of the impact that it had had on the NRL's commercial arrangements with those partners (Abdo 1 at [62]). 182 On the same day Mr Beattie wrote an email to all Club and State Chairs and CEOs and, after referring to the upcoming AGM, stated that: You would be aware from media reports that a number of sponsors (Youi), broadcasters (ch 9), fans and some Club Chairs have expressed concern over player behaviour and our current disciplinary policy. The ARLC and NRL cannot sit on their hands. In light of recent events, we are reviewing the game's current disciplinary policy. (exhibit R2 at p. 604) 183 In the email, Mr Beattie indicated that the intention was to listen to all stakeholders, and to make an informed decision based on legal advice, the disciplinary practices of other sports, feedback from the game, and any relevant information that Commissioner Professor Megan Davis, with expertise in the area, wanted to circulate for consideration. 184 Subsequently on 20 February 2019 Mr Beattie sent an email to all Club and State Chairs and CEOs requesting their views on a proposed change to the game's policies, save where they had already communicated their views to Mr Greenberg (Greenberg at [102]; exhibit R2 at p. 606). As explained below, all but one of the clubs supported the introduction of the no-fault policy. The responses included an email from Mr Dennis Watt, Chairman of the Gold Coast Titans, to Mr Beattie dated 20 February 2019 supporting an automatic stand down for those charged with serious criminal offences, especially those involving women. Among other things, Mr Watt expressed the view that "NRL players are expected to be welcomed into schools and playgrounds as part of our community mission. And through the medium of our broadcasters they are 'invited' into millions of homes each year. Those invitations need to be withdrawn for charged players" (ibid). 185 The RLPA was among the stakeholders consulted about the review of the ARLC/NRL policy regarding the suspension of players pending the determination of criminal charges. By a letter dated 21 February 2019 to Mr Greenberg, the RLPA provided its response (exhibit R2 at p. 669). The RLPA argued that the current policy should continue to be applied and that players should not be suspended by the NRL or their club pending the outcome of criminal proceedings given the impact that it would have on the player involved and the fact that it was to be applied retrospectively to players charged before the rule comes into effect. The RLPA also submitted that it would be inconsistent with the presumption of innocence and the right to a fair trial on the assumption (which did not eventuate) that the ARLC/NRL would only impose a suspension on the basis of its assessment of whether the conduct alleged had occurred. The RLPA also expressed the view that since any change to the policy could materially impact on the employment of a player, the ARLC/NRL would be required to reach agreement on that change with the RLPA. 186 Mr Abdo provided a report entitled "Negative Incident Impact Summary - Commercial (to 27 February 2019)" (the Negative Impact Report) to Mr Greenberg by email on 27 February 2019, together with a summary of research conducted by Futures as to its assessment of the impact that the behaviour was having on fan support for the NRL Competition (Abdo 1 at [63]; Confidential exhibit R3). 187 The Negative Impact Report was one important consideration, among others, which Mr Greenberg took into account before making the recommendation to the Board (T204.15-19 (Greenberg)). Mr Greenberg was assisted in preparing his recommendation for the ARLC Board by a small group from the NRL's Integrity Unit (T221.8). In preparing recommendations, he gave consideration to the adverse impact that being stood down for a year or two pending the determination of criminal charges may have on a player's playing career (T241.7-19). 188 Mr Greenberg was also asked by Mr Beattie to look at the rules of other sporting codes in preparing the recommendation, namely, the American National Basketball Association and National Football League, the AFL, and the Football Federation of Australia. This was undertaken in order for the NRL to consider other codes and whether they afford an opportunity to improve the NRL's rules and processes in line with a common objective which the NRL seeks across a range of measures, i.e., to ensure rugby league's "best practice" (T218.8-38 (Greenberg)). In cross-examination Mr Greenberg accepted that the new rule did not have a parallel in any of these codes which included features such as a finding of misconduct before imposing a suspension, a discretionary power to suspend, and/or a right to review, and that he did not inform the Board that it lacked a parallel (T219.40-226.25). However, Mr Greenberg said that ultimately the intention was for the NRL to write its own rule (T219.35-37). By this, I understand Mr Greenberg to mean that it was not intended that the NRL would slavishly follow the rules of other sports but rather, after considering the approaches taken in other codes, would fashion a rule best suited to the NRL's circumstances.

5.11 The meeting on 27 February 2019 suggesting that Mr de Belin stand down voluntarily 189 On 27 February 2019 Mr Greenberg met with Mr de Belin. The CEO of St George Illawarra, Mr Brian Johnston, was also present. Mr Johnston was not called by the applicant to give evidence. 190 Mr Greenberg denied telling Mr de Belin that he should stand down voluntarily at the meeting and instead said that he suggested to Mr de Belin that: he could do this in another way … He could take the narrative by standing down himself, if he chose … So in other words instead of the commission enforcing this rule upon him the following day, if the board were to approve it, he had the opportunity to actually take the onus of responsibility on himself. (T239.40-240.09). 191 He advised Mr de Belin that there were three possibilities: that the ARLC would not endorse the new rule on 28 February; the ARLC would change the rule on 28 February, which was likely; or Mr de Belin could take the onus of responsibility on himself (T240.12-31). While he had not spoken to Mr de Belin in advance of the meeting, Mr Greenberg had prepared a document (exhibit A9) in advance of the meeting which he considered may assist Mr de Belin in the event that he agreed to stand aside voluntarily, explaining that: I was hopeful, from my discussions with Mr de Belin on that day, that he would see merit in making the decision himself and, if that was his position, that I could assist him in the narrative publicly on how he would like to position himself if he were to make that decision. It was clear from our discussions that that was not his position. (T242.19-23) 192 Mr de Belin did not agree to step down voluntarily.

5.12 Adoption of the new policy by the Board of Directors of the ARLC 193 The ARLC Board met on 28 February 2019. The extract from the minutes of the meeting (exhibit R2 at p. 610) records the following matters: (1) In response to questions by the directors, the management confirmed that it was their assessment that allowing players charged with a serious criminal offence to play in the NRL Competition would cause significant reputational damage. (2) The Chair informed the directors that he had spoken to the game's media partners who had raised significant concerns that the off-field incidents which resulted in players being charged with serious criminal offences would have a detrimental impact on the value of the game. The Chair spoke to the Negative Impact Report that identified "the significant financial and brand damage to the game and the consequential lost opportunity likely to be suffered if the game does nothing or is seen to have been apathetic about players being charged with serious criminal offences". (3) The directors discussed society's heightened expectations of the game's response to players being charged with serious criminal offences, particularly violence involving women or children, including the expectations and views of fans, commercial partners and community partners. Their assessment of these expectations, particularly those of women supporters and participants, was that players facing serious criminal charges should not be able to continue to play and be representatives of the NRL Competition. (4) The letter from the RLPA dated 21 February 2019 outlining its position on the proposed policy change was tabled, considered and discussed, and the directors noted that the Chair and CEO had met with the RLPA to discuss its position. (5) The Chair had also spoken to the Chairs of each NRL club and advised that 15 of the 16 clubs supported the introduction of the provisional no-fault stand down policy. (6) The Chair reported that along with the NRL CEO, he met with the CEO and Chair of St George Illawarra which did not support the introduction of the new policy which it understood would be likely to exclude Mr de Belin from playing until the conclusion of his criminal trial. (7) The NRL CEO had met with Mr de Belin. The directors noted that Mr de Belin has entered a plea of not guilty to the charge and indicated that he does not wish to stand down from playing while he awaits trial. (8) The directors discussed the importance of ensuring that any policy change protects the player's right to the presumption of innocence, must be clearly framed and explained as a "no-fault" stand down, and stressed that the NRL must not interfere in or prejudge any matter before a court. (9) The potential player welfare implications of implementing the new policy were also discussed, as well as the importance of ensuring clarity regarding the activities which a player may continue to undertake with their Club during a provisional no-fault stand down. The directors agreed it was appropriate for a player the subject of a no-fault stand down to continue to be paid their salary, to train with their club, and to have access to wellbeing and education support as required. (10) The directors debated the types of serious criminal charges which should attract an automatic no-fault provisional stand down under a new policy. It was acknowledged that the breadth of potential charges are so wide that the CEO requires discretion where a player is charged with a serious criminal offence which does not meet the criteria for automatic stand down but is nonetheless very serious, particularly where the offence involves women or children. 194 After adjourning for the directors to attend the 2018 AGM, the meeting of the directors reopened. The minutes record that, having satisfied themselves of the matters outlined above, the Chair indicated that the unanimous consensus of the meeting was in support of the no-fault stand down policy for the reasons discussed and the directors resolved to adopt the policy which was set out in detail in the minutes (exhibit R2 at p. 612). Among other things, the minutes note that management was to prepare a draft rule to implement the policy for consideration by the Board. It was also noted that the addition of the new rule would not change the existing club disciplinary process as set out in the NRL Rules. Mr Abdo then joined the meeting and the minutes record that he reported that the NRL's key partners had been approached directly by journalists seeking their views on recent off-field incidents and that this had caused instability in the long-standing partner base. He is recorded as saying that there is a substantial portion of existing sponsorship revenue which is up for renewal over the coming year. The minutes also record that he explained the impact on prospective partners and sponsors and described the recent withdrawal from discussions by a prospective partner which had been in discussions with the NRL for the past 8 months about a significant sponsorship arrangement.

5.13 The press conference on 28 February 2019 announcing the ARLC's new policy 195 After the ARLC meeting on 28 February 2019, Mr Beattie and Mr Greenberg held a press conference (T268.45 (Greenberg)) which was widely publicised and its contents widely disseminated (T269.2). At the press conference, Mr Greenberg stated that the charge against Mr De Belin "is in the serious indictable offence category and he will be stood down under the new no-fault policy" adopted on that day (exhibit R5 at 8:18; see also T269.7-27). 196 Immediately before the press conference, Mr Abdo sent an email to all major parties with a description of the policy change. The email explained that the policy would have the effect of placing Mr de Belin on a no-fault stand down before the commencement of the NRL season such that he will not be permitted to play in the NRL until his court case is finalised (Abdo 1 at [66]; exhibit R6 at p. 1914). 197 A media release was also issued by the NRL on 28 February 2019 stating that the effect of the policy change on players facing serious criminal charges is that Mr de Belin will be placed on a no-fault stand down prior to the commencement of the NRL season. The media release also stated that: "I stress that the NRL is making no judgement on the guilt or innocence of the player," Mr Greenberg said. "That is not our role. That is the job of the courts - and it will remain so.["] "But we have to be in a position to take action when allegations are so serious that it would damage the reputation of the game if that player was allowed to take the field.["] "And that is what we have done in this case." (exhibit R2 at pp. 614-615) 198 In addition, the NRL website published on 28 February 2019 the announcement by the ARLC of the "no-fault stand down policy" for players facing serious charges (exhibit R5 at p. 219). The website reported that: ARL Commission chairman Peter Beattie and NRL CEO Todd Greenberg have announced there has been unanimous agreement from the Commission that there will be a "no-fault stand down" for players who are charged with serious criminal offences. Beattie and Greenberg addressed the media at Rugby League Central to announce the outcome of Thursday morning's annual general meeting. Greenberg said Dragons forward Jack de Belin, who is facing sexual assault allegations, would be the first player stood down under the new policy and the CEO stressed it was not a judgement on his guilt or innocence. De Belin has pleaded not guilty to the charges. "He'll be stood down under the no fault policy. He cannot play until the completion of that case," Greenberg said. "This policy ensures he doesn't play but he can be around the team, be at training during the week and most importantly can take the services of that club via the welfare and services available to him. We think it's important for the club and player to have the opportunity to continue in the environment." The chairman said the ARL was setting a benchmark for all players to protect rugby league. "We've spent a considerable amount of time working on what's in the best interests of rugby league," Beattie said. "I want to make it clear this is no fault, we're making no judgement whatsoever, in relation to any player charged with any offence. What we're doing is setting a benchmark and standard for the game of rugby league.["] "We do have a responsibility of player welfare and we want to have a clear partnership with all clubs. They'll be able to train with the team." Beattie said the criminal offences that apply to this rule are serious offences with a maximum jail term of 11 years or more. …

5.14 Responses to the new policy 199 Following the announcement, White Ribbon issued a media release on 1 March 2019 commending the decision of the ARLC stating that it shows the NRL's "commitment to zero tolerance for any kind of abuse, disrespect and violence against women" and observing that "NRL players are widely admired by their loyal fans from all walks of life and with that comes a responsibility to lead by example by demonstrating equality and respect on and off the field" (exhibit R2 at p. 663). Similarly, at the season launch of the NRL Competition on 7 March 2019, Mr Jeremy Nicholas, Marketing Executive and Chief Brand Officer of Telstra congratulated the NRL during his speech "on their strong stance, reflecting community standards and moving closer to the values that Telstra upholds" (Abdo 1 at [68]; exhibit R6 at p. 1916). Other sponsors commended the NRL on its firm stance (Abdo (Confidential) at [12] and Confidential Exhibit R7, annexures 3 and 7). 200 The CEO of Our Watch, an organisation established to change attitudes in relation to violence against women and their children, also expressed her support for the new policy in an email to the NRL on 28 February 2019, stating that: I have been watching this matter closely and think your leadership on this has been courageous. This is such a tricky issue, I feel like you have come up with a proposal that is fair and serves to make a clear statement to all. This type of action could only have been led by one of our leading codes, and I hope it serves as a catalyst for other sports in the country. (exhibit R2 at p. 664)

5.15 Further consultation by the ARLC and the NRL with the RLPA following the announcement of the new policy 201 On Saturday 9 March 2019, Mr Nick Weeks, the COO of the NRL, sent a letter by email to Mr Prendergast of the RLPA regarding the amendment to the NRL rules to introduce the no-fault stand down rule (exhibit R2 at p. 672). In that letter, Mr Weeks stated under the heading "Consultation" that: The concept of a no-fault stand down has been the subject of significant discussion between the NRL and the RLPA in recent weeks, including at the NRL Chief Executive Officers' meeting in Melbourne on 15 February which was attended by Mr Tim Lythe, and the meeting between the NRL Chief Executive Officer and NRL Chief Operating Officer, yourself and Mr Lythe on 26 February at Rugby League Central where you expressed the RLPA's opposition to the proposed policy. The NRL has also received and considered the RLPA's letter dated 21 February which set out the Association's opposition to the introduction of the proposed policy, and proposing an alternate approach under which a Player may have the discretion to stand himself down. This letter and its content was also considered by the ARLC during its meeting on 28 February. The NRL has also had reference to the RLPA's Statement published on its website on 28 February, which states that whilst the RLPA has been consulted concerning the proposed policy change, it did not agree to that change. That Statement also set out the RLPA's position that it considers that any such policy change must be agreed with the RLPA. 202 The letter concluded with respect to the draft rule that: As the NRL has previously stated, it does not consider that the introduction of a rule giving effect to the ARLC's policy requires the consent of the RLPA. Although the NRL considers that it has conducted sufficient consultation with RLPA to understand its views on and opposition to the ARLC's policy, we consider it important to allow the RLPA to make further comment on the form of the draft Rule which is proposed to give effect to that policy. A copy of the proposed Rule is attached to this letter. It is provided to RLPA as part of the consultative process and strictly on the basis that is kept confidential and not distributed beyond RLPA personnel whose input is required on the RLPA's response. 203 The letter gave the RLPA until midday on Monday, 11 March 2019 to make any further comments in relation to the draft rule. 204 A detailed response was given by a letter sent by email from Mr Prendergast to Mr Weeks on Monday, 11 March 2019 (exhibit R2 at p. 679). In that letter, the RLPA reiterated its opposition to the draft rule. Mr Weeks also expressed the view that the discussions which had taken place in which the RLPA had been involved fell short of what the RLPA would regard as a meaningful consultation. In this regard, Mr Weeks expressed the view that the timeframe within which any further comments on the draft rule were to be provided was unreasonable given that the letter of 9 March 2019 was received only at 11.02am on that day. Mr Weeks invited the ARLC and NRL to engage in "a genuine and meaningful process to discuss a potential change to this Rule".

5.16 The amendment to the NRL Rules to insert rule 22A 205 Pursuant to a resolution of the Board made on 11 March 2019 and passed unanimously, the NRL Rules were replaced by the amended NRL Rules inserting the new rule 22A and making consequential amendments. 206 The Notice of Amendment advising of the new rule was provided to all players, club officials and game participants under cover of a memorandum dated 11 March 2019 by Mr Greenberg in his capacity as CEO of the NRL (exhibit R2 at p. 620). The Notice of Amendment also advised that the amendments to the Rules are "effective immediately" as provided for by rule 2 of the NRL Rules. It was not in issue that the Notice of Amendment complied with the requirements of rule 2(2) of the NRL Rules: see above at [81]. On the same day by a letter sent by email to St George Illawarra, the NRL advised Mr de Belin that he was subject to a mandatory no-fault stand down condition pursuant to rule 22A of the NRL Rules (exhibit R2 at p. 661). 207 In line with the terms of the new rule, it was common ground that the notice was not given on the basis of any assessment having been made about whether Mr de Belin had engaged in the conduct the subject of the charge and that the Commission and the NRL had no evidence of any such conduct (see T233.7-24 (Greenberg)). As such, it was accepted that the NRL did not, at any time, have before it any evidence on the basis of which it could have stood Mr de Belin down on the ground that he had engaged in conduct detrimental or prejudicial to the interests of the NRL Competition contrary to cll 12 and 14 of the Code of Conduct or otherwise in breach of the Code (T239.9-239.36 (Greenberg); see also the tweet published by Mr Beattie at exhibit A5 at p. 266).

6.1 Relevant principles 208 The relevant legal principles governing restraint of trade were not in issue. 209 The starting point is the classic statement by Lord Macnaghten in Nordenfelt v Maxim Nordenfelt Guns and Ammunition Company Ltd [1894] AC 535 (Nordenfelt) at 565 that: The public have an interest in every person's carrying on his trade freely: so has the individual. All interference with individual liberty of action in trading, and all restraints of trade of themselves, if there is nothing more, are contrary to public policy, and therefore void. That is the general rule. But there are exceptions: restraint of trade and interference with individual liberty of action may be justified by the special circumstances of a particular case. It is a sufficient justification, and indeed it is the only justification, if the restriction is reasonable - reasonable, that is, in reference to the interests of the parties concerned and reasonable in reference to the interests of the public, so framed and so guarded as to afford adequate protection to the party in whose favour it is imposed, while at the same time it is in no way injurious to the public. 210 The statement has been endorsed by the High Court as also representing the law in Australia: Buckley v Tutty (1971) 125 CLR 353 (Tutty) at 376 (the Court); Queensland Co-operative Milling Association v Pamag Pty Limited (1973) 133 CLR 260 (Pamag) at 267-268 (Walsh J); see Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Ltd (1973) 133 CLR 288 (Amoco) at 305-306 (Walsh J) and 315 (Gibbs J); Maggbury Pty Limited v Hafele Australia Pty Limited [2001] HCA 70; (2001) 210 CLR 181 at [69] (Kirby J). As Gleeson CJ, Gummow, Kirby and Hayne JJ held in Peters (WA) Limited v Petersville Limited [2001] HCA 45; (2001) 205 CLR 126 at [37]: … at least since Nordenfelt, the common law in this field has fixed the appropriate balance between the competing claims and policies generally in favour of striking down restraints unless they can be justified. In this way, and by "a clear rule", there was removed the tendency … "of placing the public policy of securing an ample freedom of contract and enforcing obligations assumed in its exercise in opposition to the public policy of preserving freedom of trade from unreasonable contractual restriction." (citations omitted) 211 That being so, the relevant principles were helpfully summarised in McHugh v Australian Jockey Club Ltd [2014] FCAFC 45; (2014) 314 ALR 20 at [4] (Perram J (Griffiths and White JJ agreeing)) as follows: (a) at common law all interferences with individual liberty of action in trading and all restraints of trade themselves, if there is nothing more, are contrary to public policy and therefore void: Nordenfelt v Maxim Nordenfelt Guns and Ammunition Company Ltd [1894] AC 535 at 565 per Lord Macnaghten; (b) such a restraint will nevertheless be valid if: (i) it affords no more protection than is reasonably necessary to protect the interests of the party in whose favour it is imposed: Nordenfelt at 565; Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Pty Ltd (1973) 133 CLR 288 at 315-316 per Gibbs J; and (ii) it is reasonable having regard to the interests of the public: Nordenfelt at 565; Amoco at 315; (c) reasonableness in those contexts is to be judged at the date the restraint was first imposed: Adamson v New South Wales Rugby League Ltd (1991) 31 FCR 242 at 285-286 per Gummow J; Sheppard J agreeing at 245; (d) the onus of showing that the restraint is no more than reasonably necessary to protect the interests of the party having the benefit of the restraint is on that party: Esso Petroleum Co Ltd v Harper's Garage (Stourport) Ltd [1968] AC 269 at 319 per Lord Hodson; Herbert Morris Ltd v Saxelby [1916] 1 AC 688, 700, 707-708 per Lord Atkinson and Lord Parker. There are judgments of individual Justices of the High Court to similar effect: see Lindner v Murdock's Garage (1950) 83 CLR 628 at 646 per McTiernan J and 653 per Kitto J; Amoco at 317 per Gibbs J; (e) the onus of showing that a contract in restraint of trade is injurious to the public lies on the party making that allegation: Herbert Morris at 700, 707-708; Esso Petroleum at 319; (f) what is to be proved in both cases are facts, but the question of whether those facts make good the proposition that the restraint is reasonable is a question of law: Esso Petroleum at 319; Amoco at 317; (g) in assessing what is reasonable the Court may take into account future probabilities that could have been foreseen: Adamson at 285-286; and (h) in assessing what is reasonable, facts occurring after the restraint's inception may, but need not, throw light on circumstances existing at the relevant date: Amoco at 318. 212 Secondly, Lord Macnaghten's classic statement concerned cases where the persons affected by the restraint were limited to the contracting parties. It is true that Mr de Belin is bound by the NRL Rules as amended from time to time under his Playing Contract with St George Illawarra and that he acknowledged that he was bound by them in his application for registration, as I have earlier held. However, as Wilcox J held in Adamson (FCAFC) at 265 by analogy, "… it seems to be artificial to treat each player as a party to the agreement embodied in the internal draft rules. Those rules were made by the League, with the concurrence of its constituent clubs, and not by the players." 213 The point is not, in any event, material in the context of an alleged unlawful restraint of trade, as the parties agreed. Thus in Tutty at 375, the High Court held that it was not necessary for a player and the League to show a contractual relationship in order to engage the common law rules regarding restraint of trade. Rather, the Court held that "the doctrine of the common law that invalidates restraints of trade is not limited to contractual provisions. There is both ancient and modern authority for the proposition that the rules as to restraint of trade apply to all restraints, howsoever imposed, and whether voluntary or involuntary": see also e.g. Adamson (FCAFC) at 289 (Gummow J); Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10 (Hughes) at 50 (Toohey J); Beetson v Humphreys (unreported, Supreme Court of New South Wales, David Hunt J, 30 April 1980) at 3; and see also Grieg v Insole [1978] 1 WLR 302 (the World Series Cricket case) at 346-347 (Slade J). 214 Thirdly, the respondents rightly accepted that subject to the question of its validity, the new rule imposed a restraint of trade upon Mr de Belin. Pending the determination of his criminal charge, it precluded him as a registered professional rugby league footballer contracted to play in the NRL and Related Competitions under a Playing Contract with St George Illawarra from doing so. The fact that he was stood down on full pay and permitted to continue to train with his Club under the new rule does not deprive the rule of its character as a restraint of trade. 215 Fourthly, that being so, the issue between the parties focused primarily upon whether the restraint imposed by the new rule is reasonably related to the objects of the ARLC and the NRL and affords "no more than adequate protection to their interests": Adamson at 265 (Wilcox J) and 289 (Gummow J); see also Nordenfelt at 565; Amoco at 315-316 (Gibbs J). Reasonableness for this purpose "must be tested, not by reference to what the parties have actually done or intend to do, but what the restraint entitles or requires the parties to do": Adamson (FCAFC) at 360 (Gummow J) (citing with approval Watson v Prager [1991] 3 All ER 487 at 507-508); see also Informax International Pty Ltd v Clarius Group Ltd [2012] FCAFC 165; (2012) 207 FCR 298 (Informax) at [91] (the Court) (citing Woolworths Ltd v Olson [2004] NSWCA 372 (Woolworths) at [40] with approval). In addition, the applicant alleged that it would be against public policy to permit the new rule to operate in circumstances where, in his submission, the NRL had not complied with the obligation under the CBA to obtain the RLPA's consent or to adequately consult the RLPA (AOS at [53]). 216 In the fifth place, it was not in issue that s 4(1) of the Restraints of Trade Act 1976 (NSW) (Restraints of Trade Act) applied because the Playing Contract and other components of the contractual regime are governed by the laws of New South Wales: see cl 28.1 of the Playing Contract; see also cl 27 of the Club Licence Agreement. The Restraints of Trade Act came into effect on 13 December 1976. Section 4(1) provides that: A restraint of trade is valid to the extent to which it is not against public policy, whether it is in severable terms or not. 217 "Public policy" in turn is defined in s 2(1) of the Act to mean "public policy in respect of restraint of trade". 218 In Orton v Melman [1981] 1 NSWLR 583 (Orton), McLelland J held (at 586-587) that s 4(1) was in terms ambiguous. That ambiguity was resolved, in his view, when regard was had to the state of the law as understood when s 4(1) was enacted and the mischief or defect which it was intended to address. That mischief was apparent, in his Honour's view, from a consideration of the Report of the Law Reform Commission on Covenants in Restraint of Trade (LRC 9) which preceded the enactment of the Restraints of Trade Act at [12], namely, that: … in determining the validity of a restraint, the courts were bound to consider all possible breaches within its terms (after any permissible severance) and determine whether public policy was infringed by the restraint of all such breaches, rather than by the actual or threatened breaches proved in the particular case; or as stated succinctly in [LRC 9] (par 12): "The Court does not consider the actual breach, it considers imaginary breaches." (emphasis added) 219 On this basis, McLelland J held at 588 that: In applying s 4(1) the court should consider the circumstances of the particular case before it and determine the validity of the restraint to the extent it purports to operate in those circumstances, and it is unnecessary to consider its purported operation in other conceivable sets of circumstances … In my opinion the enactment of s 4(1) has succeeded in requiring attention to be concentrated on "the actual breach" rather than "imaginary breaches" for the purpose of determining validity of a restraint. 220 The correctness of this construction was confirmed by the NSW Court of Appeal in Woolworths which, in turn, was followed by the Full Court of the Federal Court in Informax at [92]. As the Court in Woolworths held with reference to Orton: 44 These principles have been endorsed in later decisions, including cases in this Court (see Heydon, op cit, at p235, Kone Elevators, Rouen v Ryan [2001] NSWCA 230, Industrial Rollformers Pty Ltd & Anor v Ingersoll-Rand (Australia) Ltd [2001] NSWCA 111). In Industrial Rollformers Giles JA (with whom Priestley and Meagher JJA agreed) said (at [165]): The operation of s 4(1) of the Act is now relatively well settled. It does not permit the Court to remake the contract or a covenant in it, and although sometimes it is said that it allows the covenant to be read down or redrafted that is really an inaccurate description. The provision looks to the postulated breach, and permits the Court to enforce a covenant otherwise invalid as against public policy if the restraint in the covenant so far as it applies to the postulated breach is not contrary to public policy. The Court is given the capacity to enforce a reasonable restraint of trade falling within the expressed restraint although the expressed restraint is too widely stated. It is sufficient to refer to Kone Elevators Pty Ltd v McNay (1997) ATPR 41-564 at 43,833 and the cases there cited, which include Orton v Melman. 45 Section 4(1) allows the court to ignore the fact that the restraint goes beyond what is reasonable, provided the restraint can be enforced to an extent that is reasonable. The subsection permits the court to enforce a covenant whose provision is overextensive as regards area, time or extent. Discussion about the provision's use in relation to an overly broad description of the restrained conduct may be found in Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317 at 337-8 (per Kirby P). 221 Sixthly, the kind of evidence admissible to establish the facts said to justify the restraint of trade was considered in Adamson (FCAFC). In that case, the Court held that the rules introducing an internal draft system by the then NSW Rugby League Ltd which bound the participating clubs in the NSW Premiership Competition were void as a restraint of trade. Relevantly, Gummow J held at 286 that: In deciding whether there are special circumstances justifying a restraint of trade, the court should be wary of placing weight upon "improbable and extravagant contingencies as indicating the restraint to be unreasonable": see Haynes v Doman [1899] 2 Ch 13 at 26. Evidence from persons in the trade or occupation in question is admissible to inform the court of the nature of that trade or occupation, what is customary in it, and of any particular dangers requiring precautions, but evidence from persons in the trade or occupation stating their views of the reasonableness of the restraint is inadmissible. This is because it is directed to the ultimate question, which is one of law … In this situation, evidence was admissible from persons associated with rugby league competition football as to the nature of that activity, any threats to the continued success of the game, and as to the nature of the economic forces at work. But much of the evidence went beyond this and involved speculation as to the effects of the future operation of the internal draft [being the rule imposing the restraint of trade], with a view to persuading the court as to the reasonableness or otherwise of the restraint. That evidence was inadmissible. 222 In the seventh place, I agree with the applicant's submission that in assessing whether the new rule is reasonable, it is relevant to take into account the interests of, or matters affecting, the player whether or not he is regarded as a third party. No issue was taken in this respect by the respondents. As, for example, Sheppard J held in Adamson (FCAFC) at 247: The ultimate question is whether the restraint is unreasonable. If one does not make a judgment about how it is likely to affect the players whose ability to earn their living is or may be restricted by it, one will not have the complete picture. The restraint, as I have said, affects the clubs, but they are parties to it. It also has drastic consequences for the players who are not. Unless one examines the consequences or potential consequences upon the players, one will not be able to make an adequate or satisfactory judgemnt on the question whether the persons who have imposed the restraint have established that it goes no further than is reasonably necessary to protect their legitimate interests. An important part of the mosaic will be absent. (See Wilcox J at 266 to the same effect.) 223 Gummow J in turn held that: The restraint in such cases strikes at the essential interest of each player in being free to play with the club of his choice. Therefore (and this vindicates the interests of the players) it is void, unless shown to provide no more than adequate protection to the interests of the sporting bodies. That enquiry may, as in this present case, require the court to have regard to the special character of the area in which the restraint operates, and thus "to the special interests of those concerned with the organisation of professional football" (an expression used by Wilberforce J in Eastham v Newcastle United Football Club Ltd [[1964] Ch 413] (at 432). In so doing, the court, perhaps inevitably, will have to consider aspects of the position of players because what is put forward as constituting those "special interests" of the organisers will include contentions as to why their dealings with players, pursuant to the combination, have to take, or should take, a particular form. But that is not to undertake a "balancing" exercise with a comparative evaluation of the weight of the interests of organisers and players. It is to test the justification attempted by those in adverse interest, in the litigation, to the players. (Adamson (FCAFC) at 289-290). 224 While, therefore, it may be said there is a difference of emphasis between Gummow J's reasoning on this issue and that of Sheppard and Wilcox JJ (as alluded to by Sheppard J in Adamson (FCAFC) at 246-247), I do not consider that any such difference is material for the purposes of the present case and no submission was made to that effect. In particular, I do not read any of the three judgments as endorsing an approach whereby the reasonableness of the restraint was considered simply as a "balancing" exercise between the competing interests of the NRL and the clubs and those of the player. To adopt such an approach would be impermissibly to lighten the respondents' burden, as Gummow J held in Adamson (FCAFC) at 290 and 296. 225 Finally, there was rightly no challenge to the motives of those involved in preparing, recommending and adopting the rules. I accept that they were genuinely concerned with promoting the best interests of the NRL Competition and the game at all levels. However, the issues are not resolved by sincerity and motive (see Adamson (FCAFC) at 248 (Sheppard J) and 281 (Wilcox J)). The test is an objective one.

6.2 The reasonableness of the restraint imposed by the new rule

6.2.1 Approach to the issue in light of the relevant principles 226 It follows from s 4(1) of the Restraints of Trade Act, therefore, that the question for the Court concerns the reasonableness when the new rule was made of restraining Mr de Belin from continuing to play in the NRL and Related Competitions pending the determination of the criminal charge of aggravated sexual assault in company against him. 227 In order to answer this question, it is necessary: (1) to consider the effect of the new rule upon Mr de Belin; (2) to identify the legitimate objects which the new rule was intended to serve; (3) to ascertain the nature, degree and immediacy of the dangers to the game when the new rule was imposed, being the circumstances relied upon by the respondents to justify the new rule; and (4) to determine as a matter of law whether, at the time when it was imposed, the new rule went no higher than to adequately protect the legitimate objects against those dangers having regard to the effect of the new rule on Mr de Belin.

6.2.2 The effect of the new rule on Mr de Belin and the impact of the severity of the restraint on his interests in approaching the reasonableness issue 228 The burden upon the respondents in discharging the onus of proving special circumstances justifying the restraint is heightened in the present case given three factors in particular. (1) The restraint imposed upon Mr de Belin "strikes at the essential interest of [the] player" in being able to play in the NRL Competition and in being able to be selected for representative and related competitions (adopting the words of Gummow J in Adamson (FCAFC) at 289). As such, it deprives Mr de Belin until his criminal charge is resolved of being able to play and compete in the national elite level of the game. The seriousness of the restraint is emphasised by the observation in Adamson (FCAFC) at 267 by Wilcox J (quoting the trial judge) that, as an employment contract is fundamentally a personal agreement, "short of restraining a player from playing altogether there could seldom be a greater restraint upon trade than restricting an employee's freedom from choosing his employer" (emphasis added): see also Gummow J at 284. As Wilcox J also observed in Adamson (FCAFC) at 266, "[t]he more onerous the restraint, the more difficult it is for the person seeking to enforce the restraint to satisfy a court that it was, in all of the circumstances, no more than was reasonably necessary for the protection of his or her interests." (2) Irrespective of whether completion of the application for registration and acceptance of the application by registering Mr de Belin created a contract between Mr de Belin and the NRL, this is not a case where the restraint was arrived at by bargaining, let alone hard bargaining, between the NRL and ARLC which received the benefit of the restraint and Mr de Belin who received the burden: cf Amoco at 294 (Menzies J). The restraint was imposed upon Mr de Belin involuntarily notwithstanding his general agreement in the Playing Contract to be bound by the NRL Rules as amended from time to time. (3) The new rule applies automatically until the charge against Mr de Belin is withdrawn or determined by a court by virtue of rule 22A. No opportunity is afforded to Mr de Belin under the new rule to be heard as to whether he should be stood down and he has no right to appeal the application of the no-fault stand down condition or to have it reviewed by virtue of rule 22A(16). 229 The first factor identified above carries particular weight given the limited window of time in which a player may play professionally at the elite national level of the game. At the hearing, there was some discussion between the parties as to the state of the relevant laws governing committal proceedings in New South Wales and how long it may take for Mr de Belin's charge to be determined. The parties were provided with an extract of the NSW Judicial Commission Local Court Bench Book - Committal Proceedings (from 30 April 2018) at [32-000], and the applicant tendered as exhibit A13 a copy of "Local Court Practice Note Comm 2" under cover of a Notice of Listing addressed to Mr de Belin dated 17 April 2019. Despite changes to the criminal justice system which were intended to reduce delays in indictable cases being finalised in the District Court, the respondents accepted that Mr de Belin could miss one or even two NRL seasons before his criminal charge is determined (RCS at [77(3)]; AOS at [52]; see also T461.2-7, 490.40-47 and 396.24-397.27). It was common ground that an NRL player's career at this level is relatively short, with few players remaining in the NRL Competition past their mid-30s. In this regard, the respondents referred without objection in their submissions in opening (and closing) to five players still playing in the NRL Competition in this age-group (RCS at 77). Mr de Belin, of course, has played for St George Illawarra since 2011 and recently turned 29 years of age. I also accept as a general proposition Mr Gillis' evidence that it is important for elite rugby league players to continue to play in order to maintain their skills, their profile and reputation, and their career trajectory (Gillis at [14]) and Mr Greenberg's evidence that if a player does not play for a year or two, this may adversely affect his playing career (T241.7-19). 230 Furthermore, it was common ground that Mr de Belin was not permitted by his Playing Contract to play football for any other code outside the NRL Competition (ASOC at 38; RCS at 124). That said, there is no suggestion that Mr de Belin would choose to do so and that, if he did so choose, his club would prevent him from doing so, as the respondents submit. Nor could he play overseas in any event as he had surrendered his passport as a result of the charge against him. 231 These potential impacts upon Mr de Belin's career are ameliorated to some degree because the new rule does not preclude him or any other player in the same position from continuing to train with his club or to have access to welfare and education support. Nor does the rule impose any restriction upon Mr de Belin's capacity to negotiate contracts with his current or other clubs in contrast, for example, with the restraints of trade held to be void in Adamson (FCAFC) and Tutty. 232 Further, about four or five years ago Mr Gillis successfully negotiated a contract for a player who returned to rugby league following the determination of a criminal charge against him, despite the player having been stood down by his club for about two years pending the determination of that charge (T76.5-23). Mr Gillis also accepted that there were cases where players with long-term injuries nonetheless resumed their careers even though he thought that very few players would be able to come back after an injury of 18-24 months (T80.6-30). Nonetheless, the evidence does not suggest that Mr de Belin will be unable in the future to negotiate a renewal with St George Illawarra or a Playing Contract with another club in the event that he is ultimately acquitted, despite being stood down in the interim, or that it has been established on the balance of probabilities that the value of any renewal or contract which he may negotiate in the future will be significantly impacted upon by reason of his being stood down. 233 In this regard, I give no weight to Mr Lythe's evidence in his affidavit at [13] as to the likely impacts on a player of Mr de Belin's age and experience of being unable to play for one or two years. Mr Lythe accepted that he had no official involvement professionally with rugby league before April 2016, had never negotiated a playing contract, had never come across a situation where a player had been unable to play for a period of one or two years or been charged with aggravated sexual assault, and that his opinions were speculation for which there was no basis (T55.7-57.26). However, his evidence accepting that the existence of serious criminal charges "hanging over the head of player, thus jeopardising his ability to play in the future" would be "a significant factor" decreasing the value of any playing contract that the player was able to secure was plainly correct (T57.46-58.2). 234 It follows for these reasons that the evidence falls well short, in my view, of establishing the applicant's submission that if his criminal charge does not conclude until next year, the restraint imposed by the respondents' new rule "will have the effect of ending or substantially impairing his career and ability to earn money under a future playing contract in the NRL or elsewhere" (AOS at [52]). 235 Furthermore, under the new rule, a player continues to receive his full salary under his Playing Contract. In Mr de Belin's case, his salary under his Playing Contract with St George Illawarra for the 2019 season is $545,000 (exhibit A5 at p. 84). There is no evidence that Mr de Belin has suffered any financial loss as a result of being stood down under the new rule. For example, it was the seriousness of his criminal charge that led the NRL to decide to remove Mr de Belin from the NRL Player Marketing Fund (see above at [145]). Equally, as the respondents submit, it is common sense that a prospective personal sponsor is likely to be far more concerned with the seriousness of an outstanding criminal charge than the fact that the player has been stood down (RCS at 77; see also T57.46-58.2 (Lythe)). Consistently with this, Mr de Belin's manager, Mr Gillis, accepted that it would be pointless to seek to negotiate any renewal of Mr de Belin's contract or to negotiate with another Club pending the determination of the criminal charge against Mr de Belin (T77.12) and that he had not in fact sought so do so (T75.40-47). As such, the evidence strongly suggests that it is not the effect of the new rule which effectively precludes Mr de Belin from seeking a renewal of his contract or a contract with another club pending the resolution of the charge against him, but rather the fact of the outstanding charge. As Mr Greenberg explained, "[t]here's no doubt that a player that [sic] is not playing or facing such serious allegations, his value will reduce", as will his capacity to negotiate future contracts and attract personal sponsors (T241.26-31). 236 Moreover and related to the last point, Mr de Belin alleges that he would have been available to be selected for representative teams including the State of Origin throughout 2019 and 2020 but for his purported suspension under the new rule (ASOC at [34]). It was not contentious that in 2018, Mr de Belin played for the NSW State of Origin side in all three games. Nor was there any challenge to Mr Gillis' evidence that Mr de Belin has the playing ability to qualify for selection again for New South Wales in the State of Origin in 2019 or that, if he was selected, he could expect to be paid a Club bonus, together with NSW Rugby League payments of $90,000 or more (Gillis at 9 and [10]). However, as the respondents submit, there are no guarantees that Mr de Belin or another player facing such a serious criminal charge of a sexual and violent nature would have played in these games in any event, even if he had not been stood down (RCS at [77(5)]). In particular, no evidence was led as to the position which his Club, or the NSW Rugby League which is responsible for choosing the NSW State of Origin team, would have taken as a consequence of Mr de Belin's charge if the new rule had not applied to him. 237 Finally, I agree with the respondents' submission that the new rule does not "directly and peremptorily prevent the Club and de Belin from performing the obligations owed to one another under the Playing Contract" (RCS at 77; AOS at [9], [51]). For the reasons earlier given, the obligations owed under the Playing Contract are owed only to the extent permitted by the NRL Rules.

6.2.3 What are the legitimate objects of the ARLC and the NRL sought to be protected by the restraint imposed by the new rule? 238 Having identified the impacts of the new rule upon Mr de Belin's interests, it is necessary then to identify the legitimate interests of the ARLC and the NRL to which the restraint imposed by the new rule are said to relate, before the "adequacy" of the new rule to protect those interests can be assessed: Tutty at 377; Hughes at 51 (Toohey J). As Gummow J posed the question in Adamson (FCAFC) at 294, "What is it for which and what is it against which, protection is required?" 239 In this regard, I note that the legitimate interests of the party receiving the benefit of the restraint have typically been defined in the authorities at a high level of generality. Stephen J in Pamag at 277-278 illustrated the point by reference to previous authority in the following passage: In [Esso Petroleum Co Ltd v Harper's Garage (Stourport) Ltd [1968] AC 269] the maintenance of a stable system of distribution, the preservation of secure outlets, Esso's interest in selling petrol at the covenantor's site, these were regarded as interests justifying lawful protection by a restraining covenant. In Peters American Delicacy Co Ltd v Patricia's Chocolates and Candies Pty Ltd, the interests which might be protected were variously described. Latham CJ referred to "the protection of the plaintiff's trade"; Rich J cited a passage from a judgment of Wrottesley LJ referring to the protection of the covenantee's business, Dixon J treated price maintenance of the supplier's goods as not illegitimate and Williams J referred both to the protection of the covenantee's business and to it being "the goodwill of that business which they are entitled to take reasonable measures to protect". In Buckley v Tutty this Court treated a football league and its member clubs as having as a legitimate object the ensuring that competing teams were strong and well matched and, as ancillary to that, that there existed a degree of stability in membership of teams, to be preserved by restraints upon transfers of players from one club to another. (citations omitted) 240 Similarly, in Adamson (FCA), the primary judge identified three relevant legitimate interests of the League and clubs which internal draft rules for the selection of players by clubs was intended to protect, the legitimacy of which was not challenged on appeal, namely: First, there was the desirability of a strong and competitive Competition in which the clubs were as evenly matched as possible. Secondly, the clubs competing in the Competition should be financially viable. Thirdly, it was desirable (though one might have thought not necessarily compatible with the first objective) that individual clubs retain the players presently engaged by them, and that, in particular, rich clubs should not "plunder" the weaker clubs of their good players. (Adamson (FCAFC) at 295 (Gummow J)) 241 The object of the new rule is apparent from rule 22A(1)-(3) which state by way of an explanation for the new rule that: (1) Each Player has acknowledged in his NRL Player Registration Application that: (a) the NRL Competition is the subject of significant public, commercial and media interest and the success of the NRL Competition depends on it continuing and developing the interest that those groups have in associating with the NRL Competition, the Clubs and the Players; (b) as a Player his conduct both on and off the field is the subject of significant media and public scrutiny; and (c) it is a fundamental requirement of registration and of the NRL Playing Contract that he maintains at all times a reputation for high standards of personal conduct, including a reputation for respect for women and children, the responsible consumption of any alcohol and for lawful and good behaviour generally. (2) When a Player is charged with a Serious Criminal Offence; (a) It is open to members of the public, media and the commercial partners of the NRL, the NRL Competition, the Representative Competitions, the Related Competitions, the Other Competitions and the Clubs to form the view that the Player has engaged in conduct that the police who laid the charge reasonably believe warrants the charging of that offence; and (b) For that reason, the continued participation of the Player in the NRL Competition, the Representative Competitions, the Related Competitions or the Other Competitions while the change remains unresolved would: (i) Be detrimental to; (ii) Bring into disrepute; (iii) Be inconsistent with; (iv) Be contrary to; and/or (v) Be prejudicial to, the best interests, image and welfare of the NRL, the NRL Competition, the Representative Competitions, the Related Competitions and the Other Competitions or is likely to impair public confidence in them. 242 That statement of purpose in turn is underpinned by a number of legitimate objects of the ARLC and the NRL which may be expressed as follows: (1) to foster, develop, extend and provide adequate funding for Rugby League from the junior to the elite levels and, as an aspect of this, to ensure the financial viability of the clubs; (2) to promote and encourage the playing of rugby league football by young persons and children; (3) to foster the NRL Competition, as the elite national (and international to the extent of New Zealand's participation) level of the game, and to ensure that it is a strong and competitive competition including as against other national elite sports; (4) to protect and enhance the image and reputation of the NRL, related, representative and other competitions, and of the clubs and the game of rugby league; and (5) to promote the game as inclusive and, in particular, as respectful, attractive and welcoming to female fans and players. 243 These objects are drawn in particular from the objects of the ARLC set out in its Constitution, the terms acknowledged by all NRL players including Mr de Belin in cl 5 of the Player Registration Application under the NRL Rules, the objects set out in cl 2 of the PCR Rules, and cll 2, 12, 13, 14 and 32 of the Code of Conduct, as well as the values published by the NRL and included in its strategic plan. 244 While it is important to draw out the different strands, I acknowledge that the objects set out above overlap to a significant degree. Even though the fulfilment of one object assists in fulfilling other objects, the different strands are usefully drawn out (as illustrated e.g. at [113]-[126] above).

6.2.4 What is the degree of danger to the interests of the ARLC and NRL established by the evidence?

6.2.4.1 Did the respondents' evidence about the dangers facing the ARLC and NRL rise above hearsay and speculation? 245 The reasonableness of the protection given to these objects by the new rule "must be assessed in the light of the degree of danger, clear and present, remote or conjectural, which was presented to those interests" when the new rule was made on 11 March 2019 and applied automatically and immediately to Mr de Belin (Adamson (FCAFC) at 295 (Gummow J)). 246 In discharging this onus, the respondents submitted that the evidence of Mr Greenberg, Mr Abdo and Mr Campbell was admissible as it went to the nature of the NRL Competition, threats to the continued success of the competition and the game, and the nature of the economic forces at work: Adamson (FCAFC) at 286 (Gummow J). Given their association with the ARLC, NRL and NRL Competition, I agree that their evidence on these matters is admissible and that it was to these matters that their evidence was directed. 247 The applicant, however, submitted that the respondents' evidence fell well short of discharging the onus upon them to establish a degree of danger to those interests so as to justify the restraint imposed by rule 22A. While this was clearly a major plank of the applicant's case, the applicant's closing submissions on this issue were, with respect, made at a very generalised level. The applicant's argument appeared to be directed primarily at the evidence of sponsor and broadcaster concerns as to the number and nature of alleged player incidents following the 2018 season and the charge against Mr de Belin, and was to the effect that that evidence was unreliable and speculative. As Mr Einfeld QC for the applicant submitted: … the respondents' case on reasonable necessity is one which, without impugning the integrity of the witnesses for a moment, is nevertheless built very largely on hearsay and speculation. Hearsay which your Honour has admitted into evidence under the various rules or for the various limited purposes, but hearsay nonetheless. And in our submission, the court will look with caution at evidence which has been admitted on that basis because we don't have for the most part, with the exception of Mr Abdo, to whose conversations Mr Greenberg in turn referred, we don't have any of the other witnesses here available to be cross-examined on what it is said they said … I'm talking about broadcast[ers'] responses, some of those who one might think might have been brought to attest to the matters upon communications with whom reliance is now placed. This is not a Jones v Dunkel submission or anything of that kind. It's just an address on the quality of the evidence. And before your Honour would consider simply just accepting all that Mr Abdo has said or for that matter Mr Greenberg about what he has been told by people or what members of the public have said to him and that needs to be taken with a very large degree of suspicion, not because for a moment Mr Greenberg is deliberately accommodating what was said to his own cause, but because, as one knows from human experience, one's recollection does not serve one so well that they can recall conversations over a period of time with a variety of people and purport to say that they were all in exactly the same terms and the like. So in a case in which the respondents accept the onus of proof on this issue, one would have expected to see a degree of acuity in ensuring that where evidence of the kind upon which reliance is placed is necessary to the proof of their defence, it would be in a form that would enable it to be tested to withstand the submission which we make that it should be regarded through the prism that it is not the best testable form of evidence that could have been given. (T478.43-479.27) 248 A number of important propositions emerge from this submission. 249 First, the Court is not invited to draw any adverse inferences under the rule in Jones v Dunkel (1959) 101 CLR 298 (Jones v Dunkel) by reason of the respondents' failure to call any representatives of sponsors, potential sponsors or broadcasters. The rule in Jones v Dunkel is based on common sense, namely, that an unexplained failure by a party to call a witness may, in appropriate circumstances, support an inference that the evidence of that witness would not have assisted that party's case: Jones v Dunkel at 308 (Kitto J), 312 (Menzies J) and 320-321 (Windeyer J). Relevantly, however, while the rule in Jones v Dunkel may make certain evidence or the inferences which may be drawn from the evidence more probable, it cannot fill gaps in the evidence, or convert conjecture and suspicion into inference: Jones v Dunkel at 312 (Menzies J); Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 at [53] (Gleeson CJ and McHugh J). 250 Secondly, the applicant expressly disavowed any submission that any of the respondents' witnesses gave their evidence otherwise than honestly (see also above at [22]). 251 Thirdly, the nub of the applicant's submission turns, therefore, on the natural fallibility of human memory to recall conversations over a period of time with different people and the unlikelihood that such conversations over a period of time would be "all in exactly the same terms". In turn, the applicant contends that he is disadvantaged because he is unable to test the reliability of the evidence as to what was said by sponsors, potential sponsors and broadcasters in conversations with Mr Abdo and Mr Greenberg because no representatives of these entities were called by the respondents. As such, the applicant submits that the evidence from Mr Greenberg and Mr Abdo on these issues should be "taken with a very large degree of suspicion". 252 It cannot be doubted that human memory of the content of conversations is fallible. As, for example, McLelland CJ in Eq said in Watson v Foxman (1995) 49 NSWLR 315 at 319: … human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. 253 To similar effect, Katzmann J stated in Arnautovic v Cvitanovic [2011] FCA 809; (2011) 199 FCR 1 at [73] that: In the absence of notes it is, generally speaking, impossible to accurately recall the terms of any conversation six months after it took place. Human memory is notoriously unreliable. As Spigelman CJ recently observed ("Truth and the Law", The 2011 Sir Maurice Byers Lecture, 26 May 2011): Witnesses can, without any dissimulation or propensity to lie, confidently assert the truth of conversations, observations and events which did not happen. The plasticity of memory impedes the truth finding process. This is not an uncommon phenomenon … 254 However, as those passages also stress, various factors will impact upon the degree of fallibility including, in particular, the passage of time. 255 In the context of this case, I do not consider that the evidence of conversations between sponsors, broadcasters and potential sponsors, on the one hand, and Mr Abdo and Mr Greenberg, on the other hand, should be treated with the suspicion urged for by the applicant for several reasons. (1) This is not a case where the precise words used by the sponsors, broadcasters and potential sponsors is critical such as in a misrepresentation case, or in a case where the terms of an oral contract are in issue. The important point concerns the effect of what was conveyed by the representatives of those entities. (2) There is no reason to doubt the accuracy of the respondents' witnesses' recollections of the gist or effect of their conversations with the representatives of the entities. This is particularly so given that the conversations in question: (a) primarily took place between December 2018 and 11 March 2019, while the witnesses swore or affirmed their affidavits at the beginning of April 2019; and (b) concerned matters of considerable importance to Mr Greenberg and Mr Abdo which were directly relevant to their respective roles in the NRL and were in fact taken seriously by them. These witnesses were also impressive, consistent and clear in their oral evidence which was given only a few weeks later on 16-17 April 2019. To the extent that the applicant intended like submissions to be made with respect to any part of Mr Campbell's evidence, these observations would apply with equal force. (3) The statements by representatives of potential sponsors in a number of cases were accompanied by action by potential sponsors pulling out of advanced negotiations and were given by way of an explanation for that observed conduct (see e.g. [159] above). There is no reason to doubt that the explanation was given by those representatives or to infer that it did not accurately reflect the reason for that action by the potential sponsor as understood by that representative. (4) Again, there is no reason to doubt that Mr Greenberg accurately recalled conversations with broadcasters about their concerns as to the negative impact of the charge against Mr de Belin on ratings or Telstra's view as to the action that the NRL should take against players facing serious criminal charges (see above at [157]). These and other similar statements would have been matters of great concern to him in his role as CEO of the NRL which he plainly took very seriously. (5) Similar sentiments were expressed by some sponsors in correspondence in evidence before the Court such the CEO of NIB or statements published in the media, such as, for example, in the case of the public comment by Youi (see [157] and [158] respectively above). Again no reason is proffered by the applicant as to why such statements should not be taken as accurately reflecting the position of these entities or as to why Mr Greenberg or Mr Abdo should not have taken them as doing so. (6) The evidence as to why sponsors and potential sponsors were highly sensitive to the risk of negative associations between their brand and players' misconduct or alleged misconduct, particularly that involving sexual offences or violence against women, was compelling. The evidence as to why broadcasters would express concerns of the kind reported was equally compelling. Given the nature and seriousness of the charge against Mr de Belin and the extensive media coverage of that charge and other charges and allegations against other players, it is not surprising that sponsors and potential sponsors were seriously concerned about the damage to their brands if Mr de Belin and other players charged with serious offences of a similar nature were permitted to play. 256 Turning to the applicant's second proposition that a "large proportion of [the respondents'] evidence, if not the vast majority, falls into the realm of speculation", it is certainly true that the so-called survey evidence is speculative in nature, as I have earlier held. However, insofar as the submission was otherwise developed, it was largely premised upon acceptance of the proposition that the evidence of conversations with sponsors, potential sponsors and broadcasters could not be safely relied upon to establish that the charge against Mr de Belin alone, or the allegations against other NRL players in that fateful summer more generally, posed a danger which might justify the restraint. As such, that submission must fail with the premise having been rejected.

6.2.4.2 The evidence establishes a clear and present danger to the legitimate interests of the ARLC and the NRL 257 Contrary to the applicant's submissions, in my view, the respondents have therefore discharged their onus of establishing a clear and present danger to the legitimate interests of the respondents. 258 First, the respondents rightly submit that, while mindful of the presumption of innocence, an ordinary reasonable member of the public is likely to conclude from the fact that Mr de Belin has been charged with a serious offence that he is a person suspected by the police of having committed the offence and that the police have reasonable cause for laying the charge against him (see also NRL Rules, rule 22A(2)(a)). Mr Greenberg's evidence to this effect was not challenged (Greenberg at [65] (quoted at [144] above)). By analogy in Mirror Newspapers Limited v Harrison (1982) 149 CLR 293 (Mirror Newspapers) which concerned a defamation claim, Mason J held that the ordinary reasonable reader of a newspaper report stating that a person had been arrested and charged, or will be charged, with a criminal offence would infer that the police suspected the person of having committed the offence and had reasonable cause for doing so (at 301-302; Wilson J agreeing at 303). While the remaining two members of the Court considered that it was unnecessary to decide this question, as the applicant pointed out, equally they did not disagree: see Mirror Newspapers at 295 (Gibbs CJ) and 303-304 (Brennan J). Further, it is a matter of common sense that the more serious the charges and underlying allegations, the greater the damage likely to the person's reputation. Not surprisingly, therefore, damage to reputation flowing from the laying of charges also underlies the tort of malicious prosecution. As noted in Fleming's Law of Torts (10th ed, 2011) at [27.10]: … it needs no emphasis that the launching of scandalous charges is apt to expose the accused to serious injury, involving the accused's honour and self-respect as well as reputation and credit in the community. 259 In any event, even if there were any doubt about the issue, the inference that an ordinary reasonable member of the public would form this view became irresistible once detailed and graphic allegations of the charge emerged when Mr de Belin attended court on 12 February 2019 and were extensively reported in the media. For example, the Channel 9 news report that evening stated that "[p]olice say their case is strong and if convicted he will go to jail" and that it was alleged that the victim "later underwent a rape test at hospital and was observed to have injuries to her legs, neck, lower abdomen and shoulder" (exhibit R4): see also e.g. the reports in the Courier Mail, Brisbane, and the Daily Telegraph, Sydney, on 13 February 2019 (exhibit R6 at pp. 907 and 923 respectively). 260 It follows that while he is presumed innocent, Mr de Belin is nonetheless clearly associated with an act of serious sexual violence against a woman as a result of the charge and that a reasonable person may think that there is a reasonable and probable basis for the charge and, therefore, a risk that he is guilty. As the respondents submit, that association is "anathema to the values that the NRL seeks to uphold, and the interests of its sponsors and other commercial partners" (RCS at [81]). 261 Secondly, I accept Mr Abdo's evidence that the seriousness of the charge against Mr de Belin, and the extent of negative reporting which it attracted, were unprecedented (at [143] above). That evidence was uncontradicted. The impact of that damage on the reputation of the NRL Competition, the clubs and the game was amplified when viewed in the context of the "Summer from Hell" during which, as I have held, a series of highly damaging allegations and charges against NRL players for physically or sexually assaulting women or treating them disrespectfully drew extensive media coverage - an off-season described by Mr Campbell as "the worst off season of any professional sport of which I am aware for player criminal charges and misconduct" (Campbell at [14]). The media attention surrounding the post-2018 season conduct alleged against NRL players including Mr de Belin, as well as the controversy in the media surrounding the NRL's then policy of permitting players charged with serious offences to continue to play, is apparent from a consideration of the voluminous media reports contained in exhibit R6 spanning the period 14 December 2018 to 7 March 2019. 262 Thirdly, as the evidence of media reporting of these events illustrated, and as acknowledged in rule 22A, NRL players are public figures constantly under scrutiny in the media and in the public eye because of their participation in, and association with, the NRL Competition. While their skill as players is important to the game, they are also in effect the face of the NRL Competition and the game. As such, they perform a vital ambassadorial role for the NRL Competition, the clubs and the game and are role models for young people who represent the future of the Competition and the game. They are therefore required to act according to standards of conduct both on and off the field under their Playing Contracts and the Rules. Moreover, players' names, image, reputation and identity (so-called "Player Property") are licensed to their clubs and in turn, by the clubs to the NRL creating a revenue stream which is distributed back to the clubs and in certain circumstances directly to the player and a specific club. These are important considerations to bear in mind in considering the question of potential damage to the NRL Competition and the game where the reputation of a player has been damaged. 263 Fourthly, given these matters and viewing the evidence as a whole, in my view the evidence of an immediate and significant danger to the legitimate interests of the respondents, NRL Competition and rugby league generally if Mr de Belin were permitted to play in the 2019 season while the charge was pending, was compelling. Indeed, the evidence establishes that the reputation of the NRL Competition was already tarnished by the allegations and charges against Mr de Belin and other players during the summer off-season, and financial impacts had already been felt by the NRL and some clubs. (1) The nature of the charges against Mr de Belin and those of a sexual and violent nature laid against other players in that period were antithetical to the values of inclusiveness and respect, including the priority given to growing the number of female participants and fans, and preventing violence and disrespect towards women. These are values which the respondents were concerned to promote including, as I have said, through the NRL's association with organisations such as White Ribbon, through education programs for players, and through the establishment of the women's premiership competition and stand-alone State of Origin match. (2) Not surprisingly given that conduct of the kind alleged seriously offends community values, there was ample evidence on the basis of which to infer that there was a real risk of alienating members of the public who were fans if Mr de Belin and others against whom similarly serious charges had been laid were permitted to play. That evidence included emails from members of the public to the NRL and the significant drop in sales in team jerseys by St George Illawarra for the first quarter of 2019 compared to the previous year. It is also reasonable to infer that permitting Mr de Belin and others subject to similar charges to continue to play may deter women from choosing to play rugby league and mothers (and equally, I would infer, fathers) from deciding that their children should play rugby league, as Mr Greenberg and Mr Abdo feared. (3) There was a significant escalation in concerns being raised with the NRL by broadcasters and sponsors following Mr de Belin's court attendance on 12 February 2019. Broadcasters expressed concerns about the risk of a negative impact on ratings as a result of the charges and therefore upon broadcast values. Furthermore, there was evidence that significant financial damage was being caused even before the start of the 2019 season. Potential sponsorship deals with the NRL at an advanced stage were lost, with the reason given being the number and nature of player indiscretions and current reputational issues with the NRL. NRL clubs were reporting similar difficulties in losing sponsors and potential sponsorships. In short, the message repeatedly conveyed to the NRL was that the brand risk for many sponsors and potential sponsors was unacceptable if players charged with such serious offences against women were permitted to play. That brand risk is most vividly illustrated by the negative association which would be generated if an NRL player charged with serious sexual offences were to take the field with his uniform emblazoned with the name or logo of the sponsor and his image then broadcast, typically to over 1 million viewers every game, and reproduced on numerous occasions in print and online. (4) The financial risks facing the NRL Competition were further evident from the fact that the NRL has six partnership agreements ending in 2019 or requiring renewal, totalling in excess of $8m while the sponsorship prospectus of a number of clubs would be up for renewal in 12 months' time. (5) All of these factors, in turn, posed a danger to rugby league from the most junior to the elite levels because the revenue raised from the NRL Competition through sponsorship, broadcasting fees etc. is the major source of funding for the clubs and all of their activities under the contractual arrangements between the NRL, clubs and players. 264 Furthermore, the number of alleged incidents following the 2018 season and the seriousness of the concerns which they raised made it apparent that a perceived or apparent failure by the respondents to take greater action was itself likely to affect the reputation of the NRL, the NRL Competition and the game of rugby league, if it had not already (RCS at [31]). As the respondents submitted, there was therefore a need for the NRL to ensure that it was seen to publicly dissociate itself completely from conduct such as that alleged against Mr de Belin. Consistently with this, Mr Greenberg accepted that the perception that the NRL was addressing the problem of player behaviour was one of the major considerations in introducing the new rule (T217.40-218.6). In explaining why he accepted the proposition that how the NRL would be perceived as addressing the problem of player behaviour was a major consideration, Mr Greenberg linked the matter back to the reputation and financial stability of the Competition and the game, saying: Well, perception goes to brand and reputation of the sport, which ultimately translates to the revenue base and the revenue model which we're looking to protect. Rugby league is a big business. $500 million of revenue will be generated this year alone, which then is a distribution model which goes back out primarily to the stakeholders, including the NRL players, of which there are approximately 500 contracted players, so brand and reputation and protection of the brand and reputation is paramount in our decision-making. (T309.39-45; see also Greenberg at [43]-[45] (quoted at [128] above]) 265 It follows from these matters that I accept that the ARLC and the NRL needed to take steps, and to be seen to take steps, urgently and before the commencement of the 2019 season in order to repair and prevent further damage to the image and reputation of the NRL Competition and to public confidence in it. The NRL Competition at this time was described by Mr Greenberg somewhat colourfully, but with considerable force, as "a complete train-wreck" (T295.43). 266 For all of these reasons, this case stands in contrast to the facts in Adamson (FCAFC). In that case, the Full Court held that the rules introducing an internal draft system by the then NSW Rugby League Ltd which bound the participating clubs in the NSW Premiership Competition were void as a restraint of trade. Under the internal draft system, players wishing to change clubs at the end of their contracts had to submit the terms and conditions on which they were prepared to play rugby league to all of the clubs. The clubs then had the right to select any player in a set order of precedence, with the team that finished last in the previous season having the first choice of a player, the team finishing second being entitled to the next choice, and so forth. The purpose of the internal draft rule was to supplement, as a temporary and allegedly necessary expedient, a salary cap system protecting the financial viability of the game and competitiveness of the clubs (at 272-273 (Wilcox J) (Sheppard J agreeing at 249)). 267 In holding the internal draft rules void as a restraint of trade, Wilcox J (with whom Sheppard J relevantly agreed at 249) held that the evidence had failed to establish that the financial viability of the clubs, or even the competitiveness of the game, would be imperilled absent the internal draft rule (at 271-274 (Wilcox J)). Indeed, his Honour held that the evidence was that Rugby League had prospered and expanded under the salary cap system without the internal draft rule (at 273). Nor, his Honour found, was there evidence that the other justification put forward of "mid-season poaching" and consequential team instability was currently a problem in the competition and, if it was, that it could not have been readily addressed by other less restrictive means (at 274-275). Similarly, Gummow J referred to the evidence indicating that the League was prospering when the internal draft was adopted in 1990 and that its fortunes, and therefore those of the clubs to which it made substantial and increasing distributions, were improving from year to year. His Honour therefore found that "[a]ny danger to the legitimate interests identified by the primary judge appears not to have been immediate or significant. Of course, things might change, but they might change even more for the better" (at 295 (emphasis added)). Accordingly, his Honour found that there was no evidence of any problems as to financial stability in a system which imposed salary caps without an internal draft (at 296 (Sheppard J agreeing at 249)).

6.2.5 Is the restraint imposed by rule 22A upon Mr de Belin no more than is reasonably necessary or adequate to protect the legitimate interests of the ARLC and the NRL?

6.2.5.1 The issues 268 The respondents submitted that rule 22A of the NRL Rules did no more than was reasonably necessary or adequate to protect the legitimate interests of the ARLC and the NRL. There was no option, in their submission, but to stand down Mr de Belin immediately and before the commencement of the 2019 season and to make it clear that others charged with similarly serious offences would not be permitted to play pending the determination of their charges. For those charged with lesser (but still potentially very serious and damaging offences), the application of the no-fault stand down rule was discretionary, albeit that the latter aspect of rule 22A is not directly in issue in this proceeding. 269 Mr Einfeld QC for Mr de Belin submitted that the evidence failed to demonstrate that the new rule was reasonably necessary or adequate to protect the legitimate interests of the ARLC and the NRL. In addition to emphasising the impact of the new rule upon Mr de Belin, Mr Einfeld QC placed particular weight upon the following features of the new rule: (1) its automatic application to Mr de Belin without any hearing; (2) the allegedly indefinite nature of the stand down; (3) its allegedly retrospective operation; and (4) the lack of any right to be heard before being required to stand down and/or the lack of any right of review. 270 As I have already explained, I accept the seriousness of the restraint imposed upon Mr de Belin by rule 22A and as a consequence the heightened burden upon the respondents to demonstrate special circumstances justifying the new rule. Nonetheless, for the reasons explained below, I do not accept the applicant's submission that rule 22A exceeds that which was reasonably necessary to protect the legitimate interests of the ARLC and NRL when it was made. In my view, no measure short of a rule precluding Mr de Belin, and others charged in the future with offences of a similar nature and seriousness, from taking the field was likely to address the respondents' legitimate interests following the widespread dissemination of the detailed allegations against Mr de Belin after 12 February 2019 in the context of the "Summer from Hell". The evidence demonstrates that the previous policy whereby the NRL had permitted players to continue to play pending the determination of their charges and explained this to the public, sponsors and broadcasters had failed to address the image and reputational damage in the face of such shocking allegations and their unprecedented media attention.

6.2.5.2 The decisions in Hughes and the World Series Cricket Case distinguished 271 A fundamental plank of the applicant's case was that the four features outlined above were also features of the rule held to be an unlawful restraint of trade by Toohey J in Hughes. In the applicant's submission, that case was not relevantly distinguishable and the same result must follow with respect to rule 22A. 272 In Hughes, by reason of an amendment to the rules made by the Cricket Council, the applicant, a professional cricketer, had been automatically disqualified from playing club cricket as a result of his decision to play in South Africa which was then suffering under apartheid. This in turn had the likely consequence that the player would not be selected for shield or, therefore, test, cricket and as a result impacted upon the player's capacity to earn money from playing cricket (at 51). 273 Toohey J found that the phrase "automatically disqualified" in the amended rule suggested that the rule operated by its own force and effect without any formal finding by the Cricket Council and that it had been treated by the Cricket Council as operating in that way (ibid). Furthermore, under the amended rules, the automatic disqualification from club cricket remained in place until the player was reinstated by the Cricket Council. As such, Toohey J held that the disqualification "is indefinite in its duration" (ibid). 274 His Honour then turned to consider whether the respondents had established the defence that the restraint was reasonable in the circumstances, having as its purpose "the control and regulation of cricket in Western Australia" (ibid). His Honour found that they had not for the following reasons: The broad proposition that the Cricket Council has a responsibility for the orderly playing of cricket in Western Australia may readily be accepted. But is that purpose served by a provision that a player who plays in an unrecognised match, without the necessary consent, is disqualified? Is it reasonable that his fate turn on such an uncertain expression as "a match recognised by the Australian Cricket Board or the Association"? Is it reasonable that he be disqualified for an indefinite time? Is it reasonable that the rule operate to impose an automatic disqualification without giving the player an opportunity to be heard? Is it reasonable that there be no right of appeal from a refusal of the Cricket Council to give its consent or from a disqualification itself? Is it reasonable that a player be precluded from playing overseas by an automatic disqualification provision? Is it reasonable that the rule operate retrospectively so that a player who contracted to play in an unrecognised match without the required consent before 4 November 1986, when no automatic disqualification existed, is nevertheless automatically disqualified by reason of the amendment? (Hughes at 51-52) 275 In particular his Honour found that it was relevant that, insofar as the applicant was concerned, the amendment had a retrospective operation. Thus, while the applicant had not (yet) played a match in South Africa, he had contracted to play before the amendment was made and this was known to the respondents when the amendment was introduced (Hughes at 52). 276 The totality of those considerations led Toohey J to conclude that the automatic disqualification amendment went beyond a restraint reasonably related to the objects of the Cricket Council and those who comprise its membership, and that it was therefore void. His Honour found that consideration to be reinforced by reference to the public interest which lies in having every opportunity to see first-class cricketers in action (ibid). 277 There is some similarity between rule 22A and the rule considered in Hughes, given in particular that rule 22A also operates automatically and that it was known when rule 22A was made that the new rule would mean that Mr de Belin was excluded from playing in the 2019 season and possibly all or part of the 2020 season. Nonetheless, on closer analysis, it is apparent that rule 22A differs in a number of significant respects. 278 First, unlike the player in Hughes, Mr de Belin has been stood down on his full salary under his Playing Contract of $545,000 for the 2019 season, and is permitted under rule 22A to continue to train with his club (exhibit A5 at p. 84). As such, Mr de Belin has not been deprived of his income. As earlier found, there is no evidence that Mr de Belin has suffered any financial loss by reason of the automatic stand down, as distinct from any loss which he may have suffered from the damage to his reputation by reason of the charge and associated publicity. Furthermore, nothing in rule 22A would prevent Mr de Belin or a player in his position from negotiating contracts with St George Illawarra or other clubs (cf the position in Adamson and Tutty). 279 Secondly, the period in Hughes was indefinite in the sense that there was nothing to suggest when, if ever, the player would be reinstated by the Cricket Council. Under rule 22A of the NRL Rules, however, the stand down operates only for so long as the criminal charge has not been determined. As such, the new rule applies for a finite, defined period of time which is no greater than that required to protect the legitimate interests of the NRL, even though the precise date on which the criminal charge will be determined cannot at this point in time be known (see further below at [286]). There is, in other words, a rational connection between the reason for the stand down (i.e. the pending criminal charge) and the period for which the stand down applies (i.e. the date on which the criminal charge is determined). No such rational connection existed between the indefinite period for which a player could be disqualified in Hughes, on the one hand, and the reason for the disqualification being the (retrospective) breach, on the other hand. 280 Thirdly, in Hughes, the effect of the amendment to the rule was to disqualify a player for a breach of a rule which did not exist at the time that the breach occurred. The player had signed his contract to play in South Africa at a time when this was not a breach of the rules. He had no knowledge that this would cause him to be suspended. The subsequent amendment therefore could not have had any deterrent effect insofar as it applied to him. 281 The critical difference here is that there has been no determination at all of any misconduct or breach of the rules (or the criminal law) in the case of Mr de Belin. Nor could there be under rule 22A. The existence of a sufficiently serious charge is the factum which automatically engages the rule. The very purpose of rule 22A is, therefore, to avoid the NRL making any such determination while the charge remains before the courts. Furthermore, if the offence charged did take place, there is no question that the conduct engaged in was unlawful at all times and on that hypothesis, a player could not be heard to say that he would have acted any differently if rule 22A had been in place when the alleged offence occurred. It therefore follows that because rule 22A is engaged simply by virtue of the existence of a sufficiently serious charge irrespective of when the charge was laid, the rule lays down a principle which does not discriminate unfairly between players. 282 This explanation for why rule 22A, properly understood, does not operate retrospectively in a relevantly adverse way is supported by the reasoning in the World Series Cricket Case. In that case, the International Cricket Conference (ICC) changed its rules pursuant to a resolution passed on 26 July 1977 so as to effectively disqualify players from playing in official international Test cricket for an indefinite period of time if they played in any cricket match organised by World Series Cricket. The Test and County Cricket Board (TCCB) proposed to make a similar rule disqualifying such players from playing in English County Cricket for at least several years. Slade J relevantly held that absent any restraint, World Series Cricket presented long (but not short) term serious threats to all Test-playing countries because: (1) other players might thereafter have joined World Series Cricket; (2) the World Series Cricket may extend its programme beyond the projected three years; and (3) other promoters might follow Mr Packer's example in setting up a rival cricket series (at 352). However, his Honour held that the restraint exceeded that which was reasonably necessary to address these threats by reason of its retrospective application: These three threats, however, could have been adequately met by merely imposing a prospective disqualification from Test cricket on all players who should thereafter contract with or play for World Series Cricket or other unapproved private promoters. I do not say that a merely prospective ban of this nature would necessarily have been valid. However, being narrower than the ban, both prospective and retrospective, which was in fact imposed, it would clearly have been more easy to justify. In general terms I see the force of the proposition that official Test-players should not for the future be permitted to make themselves available to official Test cricket and to privately promoted international cricket in turn and from time to time, as and when they please. There would, I think, have been much to be said for the reasonableness and thus for the validity of a resolution, passed on July 26, 1977, of which the effect had been merely to inform cricketers in clear terms that any of them who thereafter contracted with and elected to play cricket for a private promoter, such as World Series Cricket, could not subsequently expect to be engaged to play in official Test Matches by any of the cricketing authorities of the Test-playing countries. (ibid (emphasis in the original)) 283 In reaching that view, his Honour pointed to evidence, among other things, that sought to justify the extended retrospective basis of the ICC ban on the ground that it was intended to penalise those who had already signed and afford an example to those who might consider signing in the future (at 353). Furthermore, in the context of that case, Slade J considered that there were "an overwhelming number of factors" pointing against introducing a ban in retrospective form (at 354). These included not only the serious and unjust consequences for the player who had signed up to World Series Cricket before the new rule, and the lost opportunity to the public of watching these talented cricketers play in many official Test matches, but also that the absence of such players from official Test matches caused by a rigid ban was likely to result in a reduction in gate receipts (ibid). 284 By contrast, the driving reason for rule 22A was the immediate and significant danger to the NRL Competition and ultimately the game at all levels if players facing serious criminal charges were permitted to play in the NRL Competition pending the determination of those charges. In this regard, as I have earlier found, the charge against Mr de Belin was unprecedented in its seriousness and in the amount of publicity which it had received. The charge occurred during a period in which an unprecedented number of serious criminal charges against players, including those involving allegations of violence and disrespect towards women, were drawing extensive negative media attention. As Mr Greenberg explained, there was an urgency in ensuring that the new rule was in place before the start of the 2019 season "[b]ased on the numerous issues we were dealing with in relation to player conduct" and in particular, in order to ensure that Mr de Belin did not take his place on the field (T203.43-204.7). Furthermore, Mr Greenberg said the previous practice of permitting players to continue to play "had been in circumstances where serious criminal charges were not common and there was generally not more than one player at a time facing such a charge" whereas "the public exposure of and commentary upon the allegations since the end of the 2018 season is of a different scale" (Greenberg at [68]). It follows that I do not accept the applicant's submission that the evidence did not establish a need for "haste" in the introduction of the new rule following the court appearance in February (T427.45 and 487.45-488.6). That submission, with respect, misapprehends the significant escalation in the situation following the detailed exposure of the allegations against Mr de Belin at the Court appearance on 12 February 2019 and the imperative to act, and to be seen to act, in response.

6.2.5.3 Additional aspects of the new rule relevant to an assessment of its reasonableness 285 The following aspects of the new rule are also relevant to an assessment of its reasonableness. 286 First, as a result of the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW) which commenced on 30 April 2018, it can reasonably be anticipated that any delay in finalising Mr de Belin's criminal charge before the District Court will be relatively shorter than under the previous procedures. Under the amendments, the magistrate is no longer required to make a decision about the sufficiency of the evidence before committal for trial; rather, the prosecutor must certify that the evidence available is capable of establishing the elements of each offence the subject of the proceedings (see s 66(2), Criminal Procedure Act 1986 (NSW); see also NSW Judicial Commission, Local Court Bench Book - Committal Proceedings (from 30 April 2018) at [32-000]-[32-040]). Furthermore, following committal, the District Court's ideal time standards for the commencement of a criminal trial is, relevantly, 100% of sexual assault trials within 8 months of committal (District Court of NSW Annual Review 2017 at p. 15 (exhibit R1, tab 3)). Nonetheless, as I have earlier held, there was ultimately no issue between the parties that the precise time that it may take for Mr de Belin's charge to be determined is presently unknown and it is possible that he may miss one or two seasons while he is stood down. 287 Secondly, the fact that the DPP has instituted legal proceedings in respect of a very serious crime against Mr de Belin carries with it, as the respondents contend, the irresistible inference that the prosecution believes that the case is one founded upon evidence reasonably considered to be reliable and admissible. As such, it provides a rational and reasonable factum for attracting the operation of an automatic rule where such serious and damaging charges are laid, as recognised in rule 22A(2). 288 Thus in New South Wales, the decision to lay charges of the type laid against Mr de Belin is vested in the Director of Public Prosecutions (DPP) which is an independent professional service for the prosecution of serious criminal offences. The performance of the DPP's functions must be carried out in compliance with the Prosecution Guidelines of the Office of the DPP (ODPP Guidelines) made under s 13 of the Director of Public Prosecutions Act 1986 (NSW). Further, the ODPP and Crown Prosecutors must carry out their duties in compliance with the Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors (IAP Standards) promulgated by the International Association of Prosecutors reproduced in Appendix A to the Guidelines (ODPP Guidelines at p. 4). Among other things, in deciding whether to prosecute, the ODPP Guidelines explain that: The question whether or not the public interest requires that a matter be prosecuted is resolved by determining: (1) whether or not the admissible evidence available is capable of establishing each element of the offence; (2) whether or not it can be said that there is no reasonable prospect of conviction by a reasonable jury (or other tribunal of fact) properly instructed as to the law; and if not (3) whether or not discretionary factors nevertheless dictate that the matter should not proceed in the public interest. (ODPP Guidelines at p. 8) 289 In assessing these matters, the prosecutor must make an independent, objective, and impartial decision having regard to all relevant circumstances whether they are to the advantage or disadvantage of the suspect (ODPP Guidelines at p. 9; IAP Standards at 1,(f),[2] and [3]). The IAP Standards in turn require prosecutors, in the institution of criminal proceedings, to "proceed only when a case is well-founded upon evidence reasonably believed to be reliable and admissible" and equally "not [to] continue with a prosecution in the absence of such evidence" (at 4.2; see also 1 imposing the duty to "at all times exercise the highest standards of integrity and care"). 290 Furthermore, as the respondents submit, the police and the prosecuting authorities can obtain evidence through the use of coercive and compulsive powers. In a sexual assault case, for example, the police and/or prosecutor will have the benefit of obtaining statements from the alleged victim and any witnesses, as well as having access to medical and other forensic testing. As such, as the respondents submit, it is inevitable that any investigation by the NRL of the alleged conduct which is the subject of the charge in order to determine whether there has been a breach of the NRL Code of Conduct would necessarily be far less complete, unreliable, inexpert, and more prone to error and injustice. 291 Moreover, where criminal proceedings are not yet finalised, there would be a real danger of contempt of court if the NRL were to embark on an investigation into whether the Code of Conduct had been breached and make a determination in a hearing on whether conduct also the subject of the criminal charge had been proved. The questioning of a person charged with a criminal offence about matters relevant to that charge creates a real risk of interference with the course of justice even if carried out in private (Hammond v Commonwealth (1982) 152 CLR 188 at 198 (Gibbs CJ (with whom Mason and Murphy JJ agreed)), 202 (Brennan J) and 206 (Deane J)). As the respondents point out, any such investigation may also prejudice a fair trial given that any finding of a breach of the Code would inevitably receive very wide publicity. As explained in J R S Forbes, Justice in Tribunals (4th ed, 2014) at [12.37]: … there is a danger of contempt of court if a tribunal hearing is likely to receive such wide publicity that prospective jurors may be prejudiced, or a party will come under pressure to make admissions, or be prevented from giving vital evidence for fear of damaging a case in court. Hammond v Commonwealth [(1982) 152 CLR 188] is an example. A Royal Commission was investigating criminal conduct in the export meat industry and by Hammond in particular. He was arrested and charged within a month of the inquiry's opening, but the Commissioner proposed to examine him at once. The court intervened, but instead of ordering the inquiry to adjourn, it directed the Commissioner to postpone Hammond's appearance until the criminal proceedings were completed. 292 In this regard, it would make no difference whether any finding by the NRL were ultimately of guilt or innocence (in the context of alleged breach of the Code of Conduct). It is well-established that statements as to innocence may equally constitute a contempt in the face of a jury trial: Director of Public Prosecutions (Cth) v Wran (1987) 7 NSWLR 616, 626-627 (the Court). Thus, the applicant's submission that a player should be entitled to a hearing before being stood down, and/or by way of review after being stood down, because he may wish to make submissions and lead evidence seeking to exonerate himself based, for example, upon a complete alibi (T426.11-29), must be rejected. An accused person is precluded from adducing evidence in support of an alibi without leave of the court unless notice has been given in accordance with s 150 of the Criminal Procedure Act 1986 (NSW). More fundamentally, the submission overlooks the fact that a determination of innocence may equally interfere with the course of justice. 293 I note however that the applicant's submission on this issue receives some support from the decision of the Canadian Supreme Court in Industrial Alliance Life Insurance Company v Cabiakman [2004] 3 SCR 195 (Cabiakman) which concerned the power of an employer to stand down an employee pending the resolution of criminal charges against him. In that context, the Court considered that an employer was under an obligation to allow an employee to explain the situation if the employee wishes to make representations and provide her or his version of the facts (at [68]). However, those observations did not address a situation such as the present where the highly publicised and formal nature of a determination by the NRL of a breach or otherwise of the Code of Conduct posed a real risk of a contempt of court. Furthermore, and importantly, the Playing Contract bears a dual (but related) character as a licensing agreement for the name, image, and reputation of a player, as well as a contract of employment. If a player has come to be associated, through the laying of sufficiently serious charges, with conduct that is an anathema to the competition in which he has been employed to participate, the negative impact on his reputation can be damaging to the interests of the licensee and sub-licensee of his Player Property if he is permitted to continue to play. Indeed, in this case, damage was occurring even before the commencement of the 2019 season by reason of the seriousness of the allegations against Mr de Belin. 294 Thirdly, there was considerable focus in the submissions of both parties upon whether there were any precedents for the new rule in other sporting codes and more generally. In particular, the applicant pointed to the absence of any equivalent rule in the AFL Rules and the Football Federation Australia Code of Conduct (exhibit R1, tab 2 and 4 respectively) and the lack of any direct precedent otherwise for a no-fault stand down rule that operates automatically in any of the other sporting codes in evidence. Nonetheless, some sporting codes in the United States make express provision following an exercise of discretion for players to be stood down without a hearing on full pay pending the determination of an investigation as follows. (1) Under the Collective Bargaining Agreement of the National Basketball Association (NBA) dated 19 January 2017, provision is made for investigations by the NBA into alleged violations of the Joint NBA/National Basketball Players Association (NBPA) Policy on Domestic Violence, Sexual Assault, and Child Abuse (NBA/NBPA Policy) (exhibit R1, tab 1 at p. F6). The NBA is required to give prompt notice to the NBPA and the player of the commencement of any such investigation and to notify the NBPA when it has concluded its investigation and report whether it believes that a violation of the NBA/NBPA Policy has occurred (ibid). While an investigation is pending, the Commissioner may at any time place the player on administrative leave with pay for a reasonable period of time where a balancing of all relevant factors clearly establishes that it is reasonable to do so in all of the circumstances (NBA/NBPA Policy at p. F7). Factors to be taken into account include the nature and severity of the allegation, whether the allegations are supported by credible information, the status of any criminal investigation and/or prosecution including whether any arrests have been made, and the risk of reputational damage to the NBA and/or the player's team (ibid). Whilst on administrative leave, the player is ineligible to play in any of his team's games but will continue to receive his salary and other welfare benefits. The player and his team may also request that the player be allowed to participate in non-public practices, workouts, or other team activities with the consent of the NBA. (2) There is also a discretion under the National Football League's Personal Conduct Policy to place a player on the "Commissioner Exempt List" where relevantly the player is formally charged with a crime of violence including having engaged in a sexual assault by force (exhibit R1, tab 5 at p. 4). A player who is placed on the Commissioner Exempt List may not practise or attend games but with the club's permission may be present at the club's facility on a reasonable basis for meetings, individual workouts, therapy and rehabilitation and other non-football activities (at p. 5). 295 While presumably in these cases, as in the case of NRL players, players are employed by their respective clubs and not by the overarching governing entity, such provisions implicitly recognise that the interests of the competition and the sport may be damaged if a player subject to serious charges or under investigation is permitted to continue to play. The same concern no doubt in large part underlies the right of an employer at common law in Australia to suspend an employee on full pay for a limited period pending the conclusion of an investigation into allegations of misconduct: Downe v Sydney West Area Health Service (No 2) [2008] NSWSC 159; (2008) 71 NSWLR 633 at [414] and [422] (Rothman J); Waddell v mathematics.com.au Pty Ltd [2013] NSWSC 142 at [106] (Rothman J); Avenia v Railway & Transport Health Fund Ltd [2017] FCA 859; (2017) 272 IR 151 at [164]-[165] and [174] (Lee J); see also A Stewart, Stewart's Guide to Employment Law (6th ed, 2018) at [12.18]. 296 The power of an employer to suspend an employee on full pay for administrative reasons because of acts with which the employee has been charged was confirmed by the Canadian Supreme Court in Cabiakman, provided that certain conditions were met. In that case, the respondent was employed by an insurance company and his responsibilities included training and supervising the branch's sales staff, selling investment products and advising customers about transfers of securities and cash. He was stood down without pay pending the determination of criminal charges for an attempt to extort money from his securities broker of which he was ultimately acquitted some two years later. In the judgment delivered for the Court by LeBel and Fish JJ, their Honours pointed to a number of factors by way of example which were relevant to determining whether an employer was justified in temporarily suspending an employee against whom all charges had been laid. These related essentially to legitimate business interests and the employer's good faith: 65. For example, the court may consider the following factors: whether there is a sufficient connection between the act with which the employee is charged and the kind of employment the employee holds; the actual nature of the charges; whether there are reasonable grounds for believing that maintaining the employment relationship, even temporarily, would be prejudicial to the business or to the employer's reputation; and whether there are immediate and significant adverse effects that cannot practically be counteracted by other measures (such as assigning the employee to another position). It might also be determined whether the purpose of the suspension was to protect the image of the service that the employer is responsible for managing, taking the following factors, inter alia, into account: harm to the employer's reputation, the need to protect the public … 297 In so holding, the Court emphasised that: 68. It should be noted that preventative action taken by an employer in good faith to protect its reputation, its customers or the image of the service it manages or the product it sells does not jeopardize the presumption of innocence in favour of an employee against whom criminal charges have been laid. … 298 The Court further held that generally an employer will not be required to make its own enquiries either of the employee or the competent public authorities to ensure that the charges are well-founded (at [68]). 299 I do not regard the lack of a discretion, whether coupled with a right to make submissions or not, in the circumstances of the present case to trespass beyond that which was reasonably necessary. The kinds of factors identified for example in the NBA/NBPA Policy as bearing upon the exercise of discretion are plainly relevant and material considerations. However, these were effectively taken into account at the anterior stage of formulating rule 22A in providing for an automatic stand down only for offences for which a maximum penalty of 11 years or more is prescribed and otherwise adopting a discretionary approach. In any event, by reason of s 4 of the Restraints of Trade Act, ultimately the question is whether the automatic stand down in the circumstances of this case was reasonably necessary in order to protect and repair the reputation of the NRL Competition and the game. In circumstances where that reputation was plainly already damaged and in danger of further significant and immediate financial and other damage if Mr de Belin and others charged with similar offences were to play, taking this strong position and sending a clear message with respect to offences of such a serious, sexual and violent nature against women was, in my view, reasonably necessary. 300 Fourthly, it was not in issue that the new rule was intended to apply to Mr de Belin without affording him any opportunity to be heard. Mr Greenberg knew this when he made the recommendation to the Board on 28 February 2019 (T202.30-47). Mr Greenberg also did not recommend to the Board any alternative form of new rule which would afford Mr de Belin and others in the same position an opportunity to be heard even though, prior to the new rule, players had been afforded an opportunity to be heard before any suspension took effect since 1908 when competitive rugby league commenced in Australia (T203.1-25). In this regard, however, it must be borne in mind that any suspension under the NRL Rules immediately before the new rule required the COO or CEO to make a finding of a breach of the Rules. There was at that time no express mechanism in the Rules for standing down or suspending a player absent any such finding. 301 The applicant submitted that the High Court has held that a person whose contract is being interfered with or whose rights are being affected is entitled to be heard, relying upon the decisions in Jarratt v Commissioner of Police [2005] HCA 50; (2005) 224 CLR 44 and Annetts v McCann (1990) 170 CLR 596 (T484.37-485.8). Specifically, the applicant submitted that while he was still on full pay, "(a) he wasn't allowed to ply his trade, and (b) … he's losing the opportunity to represent his state … [I]n those circumstances, common procedural fairness dictates he has a right to be listened to" (T485.22-27). The applicant also relied upon the decision in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 (Ainsworth) for the proposition that a person whose reputation is likely to be affected has a right to be heard. However, each of those decisions stand for the proposition that where Parliament confers a power to destroy, defeat or prejudice a person's rights or interests, it is taken to intend that the power be exercised in accordance with the rules of procedural fairness absent words of clear and plain intention. Those decisions have nothing to say about whether a term should be implied into a contract. Furthermore, with respect to the reliance upon Ainsworth, there was no proof of any likely damage to Mr de Belin's reputation by reason of him being stood down automatically under rule 22A. The only damage to his reputation established on the evidence was by reason of the seriousness of the charge against him - a result which is not surprising. 302 In any event, senior counsel for Mr de Belin suggested as an alternative to an automatic stand down that the NRL could have adopted a less draconian rule which permitted a player the opportunity to lead evidence and make submissions about matters other than the alleged conduct the subject of the charge before a decision was made to stand down the player and/or by way of review after standing the player down. That being so, the applicant argued the present rule had not been shown to be reasonably necessary to protect the legitimate interests of the NRL. 303 However, the only examples which the applicant's counsel could point to were the possibility of a player being heard on the financial and emotional impact upon him (T10.45-11.3 and T394.5). These were concerns that were already addressed by the new rule in ensuring that players subject to the no-fault stand down condition continued to be paid their full salary, and were permitted to train with their club and to have access to welfare and education support. No other interest was able to be identified by Mr de Belin which might need to be taken into account, let alone another consideration which would be so compelling as might outweigh the real and substantial danger in permitting a person in Mr de Belin's position to play: see also above at [263]. 304 The applicant also relied upon a number of additional aspects in support of his contention that the new rule went beyond what was reasonably necessary which can be shortly dealt with as follows. (1) The applicant relied upon the lack of any evidence that player behaviour would be curbed by the new rule. Mr Greenberg accepted that there was no evidence that the new rule would curb player behaviour, including at the time that he made his recommendation to the Board (T202.17-25). However, his concern was to curb the effect that poor player behaviour (or alleged player misbehaviour) might be having on the game (T202.15; see also at T203.29-33). While the line of cross-examination pursued at T202.14-25 appeared to assume that the two propositions were inconsistent with each other, they are plainly distinct and separate propositions. (2) Mr de Belin contends that rule 22A is inconsistent with his Playing Contract. However, for the reasons I have earlier explained, by the Playing Contract Mr de Belin agreed to be bound by the NRL Rules as amended from time to time. He also acknowledged this in his signed Player Registration Application form annexed to his Playing Contract. Rule 2(3) in turn reiterates that all relevant participants in the NRL Competition, including players, are bound by the NRL Rules as amended from time to time irrespective of how substantial the change may be.

6.3 Would it be contrary to public policy to enforce the new rule on the grounds that the RLPA had not consented or been adequately consulted? 305 Mr de Belin also submits that there was no proper consultation with the RLPA before the new rule was adopted, contrary to the CBA (ASOC at 38). He submitted that as a result, it would be against public policy to permit the new rule to operate (AOS at [53]). In support of this proposition, the applicant refers to Mr Lythe's affidavit at [3]-[5]. In those paragraphs of his affidavit, Mr Lythe, the COO of the RLPA, simply describes the role of the RLPA as the collective representative body for professional rugby league players and says nothing about the consultation undertaken between the NRL and RLPA. 306 In this regard, the evidence establishes that the NRL and ARLC consulted with the RLPA before the adoption of the new policy and thereafter, including in affording the RLPA an opportunity to comment on the terms of the draft rule intended to give effect to the new policy albeit on a very short turnaround: see above at [185] and [201]-[204]. Furthermore, while the RLPA complained in correspondence with Mr Greenberg about the extent of consultation, no evidence was led from Mr Lythe as to any complaints about the consultation process despite the applicant calling him as a witness. In those circumstances, I accept the respondents' submission that it should be inferred that Mr Lythe's evidence would not have assisted Mr de Belin's case as to alleged deficiencies in the consultation process and that the Court may more safely infer from the other evidence that there was adequate or proper consultation with the RLPA (Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419 (Handley JA)). As Hodgson JA (with whose reasons Beazley JA agreed) explained in Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572: 14. … in deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision … 15. In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so … 307 It follows that the applicant has not established the factual basis on which he alleges that the new rule is contrary to public policy in this respect.

6.4 Conclusion on restraint of trade 308 It follows for these reasons that when it was made, rule 22A restraining Mr de Belin from continuing to play in the NRL and Related Competitions pending the determination by the courts of the criminal charge of aggravated sexual assault in company against him was reasonably necessary or adequate for the protection of the legitimate interests of the ARLC and NRL, and that the enforcement of that rule is not otherwise against public policy.

7. THE CLAIM OF TORTIOUS INTERFERENCE WITH THE PLAYING CONTRACT

7.1 The claim 309 Mr de Belin pleads that there has been a tortious interference with the Playing Contract between Mr de Belin and St George Illawarra and seeks declaratory relief, including that the new rule is invalid and of no effect on this ground, together with damages: Amended Originating Application at [1A], [9] and [14]. The relevant pleadings in the ASOC are as follows: 40. By reason of the conduct of the respondents set out in paragraphs 25, 29 and 30, 30A and 30B above, the respondents have engaged in tortious interference with the Player Contract in circumstances where at all material times the respondents were aware: (a) of the existence and terms of the Player Contract; (b) that the Player Contract required [St George Illawarra] to employ de Belin to play rugby league for it in the NRL Competition; (c) that the Player Contract required de Belin to play rugby league for [St George Illawarra] in the NRL Competition; (d) that [Rule 22A] or any suspension of de Belin pursuant to it (or otherwise) would interfere with the rights and obligations of [St George Illawarra] and de Belin [under the Playing Contract between them]. 40A. The conduct of the respondents referred to in the preceding paragraph was and is an intentional and/or a direct interference with the Player Contract. 41. The conduct of the respondents referred to in paragraphs 40 and 40A has or will cause the applicant loss and/or damage. 310 Paragraphs 25, 29, 30, 30A and 30B in turn set out allegations in support of the alleged unconscionable conduct and restraint of trade. Paragraph 25 which pleads the factors on which the unconscionability claim is based in turn picks up and incorporates the pleadings as to the alleged misleading or deceptive representations. 311 While no point was taken by the respondents, the pleadings plainly fail to comply with the rules as to pleading. Among other deficiencies, they fail to comply with r 16.02(1)(a) of the Federal Court Rules 2011 (Cth) (FCR) in that they plead a range of allegations in a rolled up and confusing manner, leaving the respondents and the Court to guess what the material allegations are and how they are said to satisfy the elements of the cause of action.

7.2 Relevant principles 312 As the Full Court held in Daebo Shipping Company Ltd v The Ship Go Star [2012] FCAFC 156; (2012) 207 FCR 220 (Daebo Shipping) at [88] on which the applicant relied, the tort of interference in contractual relations is comprised of the following elements, each of which must be established: (1) there must be a contract between the plaintiff (or applicant) and third party; (2) the defendant (or respondent) must know that such a contract exists; (3) the defendant must know that if the third party does, or fails to do, a particular act, that conduct of the third party would be a breach of the contract; (4) the defendant must intend to induce or procure the third party to breach the contract by doing or failing to do that particular act; (5) the breach must cause loss or damage to the plaintiff. 313 The Court also emphasised that "[t]he gravamen of the tort is the defendant's intention to induce or procure the breach in the knowledge that such a breach will interfere with the plaintiff's contractual rights": at [89]; see also Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26 (Allstate) at 42-43 (Lindgren J (with whose reasons Lockhart and Tamberlin JJ agreed)). Importantly, the reference to intention in this context is to the "'actual' or 'subjective' state of mind of the alleged tortfeasor" (Allstate at 43). Thus, for example, in allowing the appeal in Daebo Shipping, the Court held that the conduct of the owners of a ship in urging the sub-charterer not to pay hire in the performance of its sub-charterparty with the appellant, was not justifiable as the lawful assertion of a claim to a lien. Rather, the Court held that it was intended to procure or induce the sub-charterer to withhold payment to the appellant in breach of the sub-charter: Daebo Shipping at [91] and [106]. 314 It is, however, a defence if the act inducing the breach of a contract is justified by an existing superior legal right. As Jordan CJ in Independent Oil Industries Ltd v Shell Co of Australia Ltd (1937) 37 SR (NSW) 394 said at 415 (in a passage approved by the High Court in Zhu v Treasurer (NSW) [2004] HCA 56; (2004) 218 CLR 530 (Zhu) at 587): "an act which would in itself be wrongful as infringing some legal right of another person may be justified if shown to be no more than reasonably necessary for the protection of some actually existing superior legal right in the doer of the act": see also Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307 at [23] (Gleeson CJ); and Eden Construction Pty Ltd v New South Wales (No 2) [2007] FCA 689 at [439] (Graham J). 315 In this regard, the superior legal right must be a right in real or personal property or a right or duty found in statute but such superiority is not established by priority between merely contractual rights (Zhu at [144]). While the respondents relied upon the defence of justification, they did not address this aspect of the defence. In any event, for the reasons I explain, it was ultimately unnecessary to decide whether the defence of justification was established.

7.3 The claim of tortious interference must be dismissed 316 The first and second elements set out in Daebo Shipping are plainly established. However, I agree with the respondents that Mr de Belin has failed to establish the remaining elements of the cause of action. 317 First, for the reasons earlier given, Mr de Belin has failed to establish any loss or damage as a result of the making of the no-fault automatic stand down condition: see above at [231]-[236]. Applying Jones v Dunkel (explained at [249] above), I draw this conclusion with greater confidence given that it was open to Mr de Belin to give evidence himself on the topic but for reasons which are not explained by the evidence, he did not do so. 318 Secondly, the applicant did not identify in the pleadings or otherwise those persons who are alleged to have had the subjective intention of inducing or procuring the interference in the Playing Contract. The question of whether it was Mr Greenberg, the members of the Board of directors of the ARLC who voted in favour of the resolution adopting the new rule, and/or the Chairs of those clubs who expressed their agreement with the proposed new rule, is left entirely unanswered. Not surprisingly, the applicant also therefore failed to state particulars of the facts upon which he relies to establish the requisite state of mind, contrary to FCR r 16.43. 319 Thirdly, it was never suggested to Mr Greenberg in cross-examination that his intention as CEO of the NRL in recommending the new policy to the Board was to procure a breach of the Playing Contract between Mr de Belin and St George Illawarra; nor that his subjective intentions were otherwise than to act according to what he perceived was necessary to protect the NRL Competition pursuant to the power which he believed was conferred on the ARLC to amend the Rules. To the contrary, the applicant accepted that his evidence was given honestly and frankly. The challenge was rather to the sufficiency of his evidence and the evidence of the other witnesses for the respondents to establish that there was a clear and present danger to the legitimate interests of the ARLC and the NRL and that rule 22A of the NRL Rules was reasonably necessary or adequate to protect those interests. 320 Furthermore and consistently with this, there is nothing which could constitute a knowing interference in or inducement to breach the Playing Contract. As I have earlier held, Mr de Belin in the Playing Contract agreed to comply with the NRL Rules as amended from time to time, as did St George Illawarra in the Playing Contract and in the Club Licence Agreement with the NRL. Furthermore, whether or not it constitutes a separate agreement between Mr de Belin and the NRL, Mr de Belin also agreed under his Playing Contract to agree to and comply with the terms of the Player Registration Application, by which he in turn agreed that he was bound by the Rules as amended from time to time. By definition then, as the respondents submit, "a change in the NRL Rules is not a breach of, or interference with, the [applicant's] Playing Contract or any other contractual arrangement the [applicant] is party to. Rather, it is simply the working out of the process expressly provided for and contemplated by that contract. Mr de Belin has no right or obligation to play in matches in the NRL Competition without being subject to the NRL Rules" as amended from time to time (RCS at [128]). 321 The applicant however submitted that adopting this construction would effectively give the NRL "carte blanche to amend the rules at whim in whatever way it felt appropriate to do" (T390.18). In particular, he submitted that it cannot be correct to say that a party to a contract, let alone a third party, could make an amendment to the contract which went to the heart of the contract, being the obligation and entitlement of Mr de Belin to play in the NRL Competition and the obligation upon St George Illawarra to provide that opportunity (T390.25-33). In support of this submission, the applicant relied upon a passage in the reasons of North J in Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889; (2000) 177 ALR 193 (Riverwood) at [152]. That case concerned a written contract providing relevantly that "[y]ou agree to abide by all Company Policies and Practices currently in place, any alterations made to them, and any new ones introduced". The employer, Riverwood, placed policies in a looseleaf manual. Subsequently, Riverwood inserted a redundancy policy into the manual but after rendering the employee redundant, refused to make a payment to him pursuant to the redundancy policy. By majority (North and Mansfield JJ (Lindgren J in dissent)), the Full Court held that the expression "abide by" in the policy's clause imposed an obligation upon the employer to make redundancy payments to the employee in accordance with the redundancy policy. In this regard, North J considered at 214 that while there was such an obligation (at [108]): 111. … the purported agreement to abide by alterations or additions to the policies and practices of Riverwood did not create a legally binding obligation on Mr McCormick to accept any unilateral alteration or addition. A purported agreement which leaves the content of the agreement entirely at the discretion of one party is not contractual in nature. Any alteration or addition to the company policies and practices could only achieve binding contractual effect if there was separate agreement to such alterations or additions, either by way of variation of the existing agreement or by way of entering into a new agreement. (emphasis added) 322 Mansfield J approached the issue from the perspective of the implied constraints upon the contractual power conferred upon Riverwood to amend its policies in the following passage on which the applicant also relied: 152. Nor do I consider that the fact that it was contemplated by the policy clause in the letter that the appellant might change its policies from time to time, or introduce new policies, signifies that it did not intend to be contractually bound to the respondent to comply with its policies from time to time. Its power to change its policies, or to introduce new policies, from time to time would be constrained by an implied term that it would act with due regard for the purposes of the contract of employment: eg Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 at 63, 137-8; … so it could not act capriciously, and arguably could not act unfairly towards the respondent: cf Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 at 61 … It might also be a power which, by implication, must be exercised reasonably having regard to the nature of the contract and the entitlements which exist under it: Renard Constructions (M E) Pty Ltd v Minister for Public Works (1992) 28 NSWLR 234 at 279-80 per Handley JA. There is no issue as to the extent of any such implied constraints on the exercise of that power in this matter. Byrne v Australian Airlines Ltd (1995) 185 CLR 410 … does not, in my view, point to any different conclusion in the particular facts of this appeal. It concerned the question whether a clause in an industrial award was by virtue of that character to be implied into a contract of employment: see per McHugh and Gummow JJ at CLR 446. National Coal Board v Galley [1958] 1 All ER 91 provides an example where the terms of a contract of employment included terms incorporated by reference to a "national agreement" which it was contemplated might be altered or substituted over the period of employment. 323 The short point is neither of these passages addresses the issue in the present case. Neither St George Illawarra nor Mr de Belin have the capacity to amend the NRL Rules under the Playing Contract. Rather, they have agreed that their contract is to be regulated by the NRL Rules as amended from time to time by the ARLC. As such, the question of whether a power vested in one or other party to the Playing Contract is subject to implied contractual limitations, which was the issue in Riverwood, does not arise. The case is more akin to that in National Coal Board v Galley [1958] 1 WLR 16; 1 All ER 91 (Galley) which was distinguished by Mansfield J in Riverwood. In Galley, the Court found that, by the defendant's personal contract of service, the parties had agreed that the contract would be regulated by a national agreement for the time being in force: Galley at 23. 324 Further, the passage cited above from North J's reasons in Riverwood does not stand for the proposition that "an agreement to abide by one party's additional policies and practices was not legally binding upon the other party, absent independent consideration therefor [sic], as it left the obligations of the parties to be determined at the discretion of the first party only", contrary to the applicant's submissions (Applicant's Responsive Note re Riverwood v McCormick dated 24 April 2019 (Applicant's Riverwood submission) at [2]). This submission by the applicant appeared to raise a new issue apparently challenging the new rule on a ground which was not pleaded. By an email to my chambers on the same day, the respondents objected to [2] of the Applicant's Riverwood submission on the basis that the submission was not responsive to the respondents' submissions, contrary to the leave granted. In my view, the submission fell outside leave granted which was intended to provide the parties with the opportunity only to address the question of what was meant by "fair" in the passage from Riverwood which was quoted in oral submissions. Moreover, the submission formed no part of the applicant's pleaded case, and the issue was sought to be raised in submissions filed after judgment was reserved. 325 In any event, I agree with the respondents that this broad proposition is not consistent with Riverwood. Rather, as Master Newnes held in Boase v Seven Network (Operations) Ltd [2005] WASC 269 with respect to the passage on which the applicant relies from the reasons of North J: 16. I do not, however, understand his Honour to mean that any contract containing a term permitting one party to vary the contractual entitlements or obligations of the other does not have binding contractual effect. It is, for example, common for loan contracts to contain provisions enabling the lender to vary the rate of interest payable by the borrower: see, for instance, Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494. I understand his Honour to be referring to a provision which leaves the terms of the agreement entirely at the discretion of one party, rather than one where, within the scope of the contract of employment, the employer may alter or adopt policies. 326 Nor do the passages cited by the applicant from Ansett Transport Industries (Operations) Pty Limited v Commonwealth (1977) 139 CLR 54 at 61 (Barwick CJ) and 102 (Aickin J) "affirm" the proposition for which the applicant contended. Rather, their Honours there held that it was fundamental to the agreements in question that the common objective between the parties (that only two airline operators should operate on interstate trunk airline routes) be maintained and therefore that one party would not do any act which would destroy or diminish that situation. Similarly, in Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 at 137, Dawson J simply affirmed the proposition that "neither party to an agreement may do anything to impede performance of the agreement or to injure the right of the other party to receive the proposed benefit". 327 Finally, insofar as the applicant submits that the ARLC's power to amend the NRL Rules must be exercised rationally and not in a capricious way or so as to subvert the purpose of the Rules or the Playing Contract, it cannot be said that the new rule infringed any such limitation: see generally J W Carter, Contract Law in Australia (7th ed, 2018) at [2-17]. Rule 22A(1) states that the rule is based upon the same factual premises as those acknowledged by Mr de Belin when he completed the Player Registration Application annexed to his Playing Contract, as did all other NRL players. These factual premises expressly recognised among other things the link between a player's reputation, on the one hand, and the reputation of the NRL Competition, on the other hand, as well as the link between these matters and the success of the Competition. These in turn correspond with the legitimate interests of the ARLC and the NRL. Given, as I have held, that these factual premises were established by the evidence and that the restraint imposed by rule 22A went no further than to protect the legitimate interests of the ARLC and the NRL, any argument that the new rule was capricious, irrational or subverts the purposes of the Rules or the Playing Contract, cannot succeed.

8. ALLEGED MISLEADING OR DECEPTIVE CONDUCT CONTRARY TO S 18 OF THE ACL

8.1 Relevant principles 328 It is necessary next to consider the applicant's claim that the respondents engaged in misleading or deceptive conduct contrary to s 18 of the ACL. Section 18(1) of the ACL provides that: "A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive." 329 The relevant principles are well established and were not in issue. These were recently summarised in Australian Competition and Consumer Commission v Oticon Australia Pty Limited [2018] FCA 1826 on which the applicant relied as follows: 28. First, it was properly not in issue that representations may constitute "conduct" for the purposes of s 18 of the ACL: see e.g. Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 (Global Sportsman) at 87-88 (the Court); and Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited [2014] FCA 634; (2014) 317 ALR 73 (holding relevantly that s 18 had been breached by false or misleading representations about par-baked bread). 29. Secondly, conduct is "likely" to mislead or deceive for the purposes of (now) s 18 if there is "a 'real or not remote chance or possibility regardless of whether it is less or more than fifty per cent'": Global Sportsman at 87 (the Court) (citations omitted); see also in relation to s 9 of the Fair Trading Act 1999 (Vic) which is in the same terms as s 18, Noone (Director of Consumer Affairs Victoria) v Operation Smile (Australia) Inc [2012] VSCA 91; (2012) 38 VR 569 at [60] (Nettle JA) (Warren CJ and Cavanough AJA agreeing relevantly at [33]). There is however no requirement to establish that significant members of the public have been misled: .au Domain Administration Ltd v Domain Names Australia Pty Ltd [2004] FCA 424; (2004) 207 ALR 521 (.au Domain) at [25] (Finkelstein J). Furthermore, it is not necessary to show that the consumers may have been misled into actually purchasing the product. It suffices if consumers are "enticed into 'the marketing web' by an erroneous belief engendered by an advertiser, even if the consumer may come to appreciate the true position before a transaction is concluded": Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 (TPG Internet) at [50] (French CJ, Crennan, Bell and Keane JJ) … 31. Fourthly, the question of whether representations are misleading or deceptive or likely to mislead or deceive is a question of fact: Australian Competition and Consumer Commission v Telstra Corporation Ltd [2004] FCA 987; (2004) 208 ALR 459 at [49] (Gyles J). The question of whether conduct is misleading or deceptive (or likely to be so) is objective and "… is concerned with the effect or likely effect of conduct upon the minds of those by reference to whom the question of whether the conduct is or is likely to be misleading or deceptive falls to be tested": Global Sportsman at 87 (the Court). Similarly as French CJ explained in Campbell v Backoffıce Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 at [25], and as was subsequently endorsed in TPG Internet at [49], the characterisation of conduct as misleading or deceptive or as likely to mislead or deceive "generally requires consideration of whether the impugned conduct viewed as a whole has a tendency to lead a person into error". 32. Finally, the question of whether the representation or conduct had a tendency to lead a consumer into error can meaningfully be addressed only once the class of persons likely to be affected and their relevant attributes have been identified. As Gibbs CJ held in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199: … consideration must be given to the class of consumers likely to be affected by the conduct. Although it is true, as has often been said, that ordinarily a class of consumers may include the inexperienced as well as the experienced, and the gullible as well as the astute, the section must in my opinion by [sic] regarded as contemplating the effect of the conduct on reasonable members of the class. The heavy burdens which the section creates cannot have been intended to be imposed for the benefit of persons who fail to take reasonable care of their own interests. What is reasonable will [of] course depend on all the circumstances. See also CPA Australia Ltd v Dunn [2007] FCA 1966 at [27] (Weinberg J); Australian Competition and Consumer Commission v Turi Foods Pty Ltd (No 4) [2013] FCA 665 at [75] (Tracey J); .au Domain at [15] (Finkelstein J); and Campomar Sociedad Limitada v Nike International Ltd [2000] HCA 12; (2000) 202 CLR 45 at [103] (the Court). (emphasis in original)

8.2 The issues 330 In essence Mr de Belin contends that before the new rule was adopted on 11 March 2019, the respondents made various public misleading and/or deceptive statements contrary to s 18 of the ACL. These fall into two categories. 331 First, Mr de Belin alleges that between 17 December 2018 and 27 February 2019, the respondents made representations to the Australian public that they had formed the view that Mr de Belin was guilty of the offence with which he had been charged and/or had engaged in conduct that breached the NRL Code of Conduct or brought the game into disrepute (the "conduct representations"). The particulars of the conduct representations in the ASOC are as follows: Press releases, social media, on www.nrl.com, in television, radio and newspaper interviews by Peter Beattie and Todd Greenberg published in every State and Territory of Australia. As set out in Schedule A annexed hereto. (ASOC at [15]) 332 These representations were said to be misleading and/or deceptive and likely to mislead and/or deceive because: (1) Mr de Belin has pleaded not guilty to the alleged charge and is and was entitled to the presumption of innocence; (2) neither the ARLC nor the NRL was in possession of any material to enable them (or either of them) to determine that Mr de Belin was guilty of the alleged offence; (3) neither the ARLC nor the NRL was in possession of any material to enable them (or either of them) to determine that Mr de Belin had engaged in conduct that was in breach of the NRL Code of Conduct; (4) neither the ARLC nor the NRL had formed the view that Mr de Belin had engaged in conduct that breached the NRL Code of Conduct or warranted his suspension; and (5) neither the ARLC nor the NRL had formed the view that Mr de Belin had engaged in conduct that brought the game of rugby league into disrepute. (ASOC at [17]) 333 With respect to the fifth proposition above, the applicant explained that the representations should be considered in the context of the NRL Rules and Code of Conduct and in particular: Clauses 12 and 14 of the Code prohibit conduct by a player which is detrimental to or brings into disrepute or is prejudicial to or impairs public confidence in the NRL Competition or the game of Rugby League. Thus, comments by senior executives of the Commission and NRL to the effect that de Belin's conduct and behaviour were bringing the game into disrepute and could not be tolerated could only be properly made if the Respondents had reached a conclusion that de Belin had engaged in some such misconduct or misbehaviour. (AOS at [19]; emphasis in the original) 334 As such, ultimately the fifth proposition was that Mr de Belin had engaged in conduct that brought the game of rugby league into disrepute in breach of the NRL Code of Conduct. This proposition is effectively a particular of the fourth proposition. 335 The second category of alleged misleading or deceptive statements fall within the period between the announcement of the new policy and the making of the new rule (the "suspension representation"). Specifically, the applicant pleads that: From about 28 February 2019 and continuing to 10 March 2019, the ARLC and/or the NRL represented to the Australian public, including the Club, selectors for representative rugby league positions and sponsors that the ARLC and/or NRL had suspended and/or stood down and/or banned de Belin from participating in the NRL Competition (the "Suspension Representation"). Particulars (a) The Suspension Representation was made in press releases, social media, and on www.nrl.com, and in television, radio and newspaper interviews by Peter Beattie and Todd Greenberg published in every State and Territory of Australia. (b) The Suspension Representation was repeated by the respondents after they admitted by their solicitors on 1 March 2019 that de Belin had no [sic] in fact been suspended. (c) The Suspension Representation was repeated by the respondents after the service of these proceedings on 6 March 2019. (d) As set out in Schedule B annexed hereto. (ASOC at [19]) 336 As Mr de Belin had not been suspended and/or stood down from participating in the NRL Competition at this time, the applicant contended that the suspension representation was misleading and/or deceptive (ASOC at [21]). 337 As I shortly explain, identifying the precise statements that were said to be misleading or deceptive posed difficulties by reason of the manner in which the applicant presented his case. However, the following matters were not in issue: (1) notwithstanding that it was initially denied, ultimately the respondents did not make any submissions to the effect that the statements were not made in trade or commerce (ASOC [16] and [20]; cf defence at [16]-[20]) and, as such, this aspect of the defence was not pressed; (2) those statements which were admitted and particularised were made by way of public statements; and (3) conduct directed to the public at large must be judged by its effect on ordinary or reasonable members of the public (AOS at [17]); it was not suggested that there was any particular class of members of the public against whom the question of whether the statements would be misleading and/or deceptive fell to be considered. 338 Furthermore, as the respondents submitted, the applicant appears to accept that the respondents never expressly stated the matters said to constitute the conduct representations but rather the representations were said to arise by implication. The respondents also admitted that if the conduct representations were actually made, they "would have been misleading" because "[t]he respondents had not formed the view that Mr de Belin was guilty of the charges against him or had breached the Code of Conduct or had brought the game into disrepute" (RCS at [147]). No such admission was made by the respondents with respect to the suspension representation (RCS at [155]). 339 The principal issues with respect to the alleged contravention of s 18 of the ACL therefore concerned: (1) whether any of the statements relied upon to establish the conduct representations are sufficient to establish that a reasonable reader of the statements would have attributed to them the meaning for which Mr de Belin contends; (2) whether, considered together, the statements amounted to a course of conduct that was misleading and deceptive (including whether that proposition is sound as a matter of law); (3) whether the statements relied upon by the applicant as making the suspension representation would be read by a reasonable reader as having said that Mr de Belin had been stood down at the time they were made, as opposed to saying that he would be stood down; (4) whether in circumstances where a decision had been made as at 28 February 2019 that Mr de Belin would not play in any matches in the 2019 season, the statements relied upon in support of the suspension representation were misleading and/or deceptive; (5) whether Mr de Belin has proved that he suffered any loss because of the alleged conduct which is recoverable under ss 236 or 237 of the ACL; and (6) whether the grant of declaratory relief should be denied on the ground that there would be no utility in the grant of such relief. 340 For the reasons given below, in my view the respondents' submissions on each of these issues should be accepted and the claim for damages and declaratory relief for beaches of s 18 of the ACL must be dismissed.

8.3 The difficulties in identifying the precise representations said to contravene s 18 of the ACL 341 Schedules A and B to the ASOC are tables identifying the documents in which the alleged representations were made. The schedules do not, however, identify the particular passages in each document which are said to contain the alleged representations. 342 This defect was partially remedied by exhibit A14, comprising two letters. In the first of those letters, dated 20 March 2019, the respondents requested particulars of certain paragraphs of the ASOC. The second letter is the applicant's response dated 25 March 2019. Annexed to that letter were two schedules A and B which the applicant said "reproduced Schedule A [and B] to the ASOC as a schedule to this letter and replaced the 'reference' column with a column identifying the passages" (exhibit A14 at p. 3). I note that the schedules to that letter provided specific passages for some but not all of the items in the schedules to the ASOC and were therefore not exact "reproductions". 343 In closing submissions, Mr Einfeld QC for the applicant said: We've identified in the statement of claim - and in those particulars that we handed up [exhibit A14] - that the easiest place to pick [the representations] up or the effect of them is actually in the notice to admit facts document that we provided … It's exhibit A3. It doesn't set out the text and, as I've said, … we've identified in our written outline where each of the representations are to be found in the evidence. We've given your Honour a summary of them in the - those particulars [exhibit A14] document we've provided. This [exhibit A3] recites the effect of them but it does so in a usefully collated passage and they're the ones which we assert. (T401.5-15; emphasis added) 344 A fair reading of this submission is that exhibit A3, being the Notice to Admit, recites the effect of the summary of representations in exhibit A14, and that exhibit A3 contains the representations which the applicant "asserts" or "presses". 345 I note that contrary to the submission that the representations are easily picked up in the Notice to Admit, that document sets out some but not all of the representations referred to in the ASOC and its accompanying schedules. Further, the Applicant's written outline addresses only a limited number of specific representations and otherwise provides bundled up references to the evidence in footnotes to broad propositions. Those footnote references in turn do not identify specific representations but refer only to pages or paragraphs. Thus, as the respondents submit, "[t]he actual statements said to have been made are not addressed in the AOS, which unhelpfully rolls Mr de Belin's allegations up into generalized assertions not tied to particular documents. The Court plainly cannot consider Mr de Belin's allegations when presented in that way" (RCS at [149]). For example, the applicant submitted in his outline that: From the time de Belin was charged in December 2018 until 27 February last, the Respondents made public statements which (read separately or together) represented their position that de Belin had been involved in violence and in behaviour which had brought Rugby League into disrepute, that he had committed an offence, and that he had behaved badly and poorly, such that his conduct would not be "swept under the carpet" but be sanctioned (inter alia) by suspension. (AOS at [18]) 346 That paragraph was followed by a single footnote 22 which simply stated: "T/s 236/33-237/26; Ex A 5 pp 210, 211, 214, 216-7; Ex A6 pp 11, 13, 23-24; Ex A3 paras 3, 4, 6-10". Footnote 22 did not tie the individual alleged representations to the references to evidence. Nor do the footnotes appear to pick up all of the representations alleged in the Notice to Admit. It follows that there was no developed argument in the written submissions about specific representations and the footnotes were inadequate to assist the Court in identifying the alleged contravening representations. 347 The applicant's counsel in oral submissions provided no pathway through the differing descriptions of where the representations in question were to be found. Indeed, in closing submissions, counsel for the applicant identified a further representation that was not included in the Notice to Admit, being a statement made on the NRL website titled "De Belin Proclaims Innocence after Being Stood Down" (exhibit A5 at p. 231) (T404.11-16). 348 There were thus no fewer than five different sources of information allegedly identifying the representations said by the applicant to contravene s 18 of the ACL, namely: the ASOC, the request for particulars (exhibit A14), the Notice to Admit (exhibit A3), the AOS and the applicant's closing submissions. 349 The presentation of this part of the applicant's case was, with respect, unsatisfactory, and the pleadings, deficient. The pleadings manifestly failed to identify the issues and to state the material facts on which the applicant relied so as to give the respondents fair notice of the case to be made against them at trial (cf FCR rule 16.02(2); Banque Commerciale SA (en liq) v Akhil Holdings Limited (1990) 169 CLR 279 at 286 (Mason CJ and Gaudron J); Priest v New South Wales [2006] NSWSC 12 at [34]-[36] (Johnson J)). Yet, in line with the seriousness of an allegation of misleading or deceptive conduct, it is incumbent on a party who pleads misrepresentation to state in the pleading with particularity the particulars of the facts on which the party relies: FCR rule 16.42; Australian Parking and Revenue Control Pty Ltd v Reino International Pty Ltd [2016] FCA 744 at 19; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1998) 42 IPR 1 at 3 (Foster J). It should not be left to the respondents or the Court to make out the applicant's case by endeavouring to surmise, as best can be done, the representations complained of. 350 In those circumstances, the best that can be made of the confusing manner in which this aspect of the case was presented is as follows. The applicants should be held to the pleadings as particularised, subject to the following caveats: (1) Certain particularised passages initially identified as containing misleading or deceptive representations were ultimately not pressed by the applicant. For example, senior counsel for the applicant said in respect of [1] of the Notice to Admit that "I'm going to put that one aside for now because it's disputed and I don't want to take time on trying to persuade your Honour that your Honour should accept our version rather than the dispute" (T401.16-18). In the absence of any oral or written submissions that explain why the Court should accept the applicant's version of the facts where they are denied by the respondents, the alleged representations in paragraphs [1], [5], [11], [12], [13] and [16] of the Notice to Admit must be taken not to have been pressed. (2) So-called particulars which failed to identify the terms of the representations but instead referred only to a document or page, have also been taken not to have been pressed. The precise words said to convey the misleading and deceptive meaning are clearly material in the face of an allegation of representations contravening s 18 of the ACL: cf FCR rule 16.42. (3) The representations dealt with below do not correspond exactly to the list of representations identified by the respondents in their written submissions, which were filed before the parties made their oral submissions in closing: see RCS at [151], [157]. That is because in identifying which statements were ultimately pressed, it was necessary for the Court to take into account what was also said by the parties in closing submissions. 351 Finally, it is important to emphasise at the outset that in most cases, the applicant relies upon media reports of statements attributed to the ARLC or Mr Beattie which are quoted in the body of an article written by a journalist. With respect to these statements, neither the applicant nor the respondents have led any evidence seeking to cast a different complexion on the statements by placing them in the context of other things allegedly said by a representative of the ARLC or Mr Beattie at the same time. As such, first, the question of whether the statements convey any of the misleading and/or deceptive meanings alleged by the applicant must be considered simply by reference to the terms of the statements quoted in the reports, subject to considering the applicant's alternative argument as to the effect of the quoted statements if read together. Secondly, any misleading impression which may be conveyed by virtue of anything said or implied by the author of the media report, including by reason of the author juxtaposing a number of separate quotes, cannot be taken into account so as to taint the quoted statements and render them misleading and/or deceptive. The respondents cannot be held liable for the way in which a journalist presents the reported statements.

8.4 Are the alleged conduct representations established? 352 Adopting the approach which I have outlined, the alleged conduct representations are set out below. It is convenient to address each of the alleged representations seriatim before considering the applicant's submission as to their alleged cumulative effect. 353 The first three alleged conduct representations raise similar issues and can conveniently be dealt with together. 354 The first alleged conduct representation is made in an article entitled "Crackdown" published in the Illawarra Mercury on 16 February 2019 (exhibit A5 at p. 210; Notice to Admit [2] and [3]), namely: "The ARLC is strongly opposed to anyone in Rugby League being involved in violence of any kind, especially domestic violence and any behaviour which brings the game into disrepute," the statement read. "The ARLC has instructed the NRL to take the strongest possible action against any player engaged in such behaviour - from serious fines, to suspensions and de-registration." 355 The second alleged conduct representation is contained in the article entitled "Summer from hell 'costing NRL millions'" published in the Canberra Times on 18 February 2019 (exhibit A5 at p. 211, Notice to Admit [4]) and attributes to Mr Beattie the statement that: "'We need to get to a point where - as a matter of principle - we know what we would do with a particular player after they commit a particular offence'". 356 Thirdly, in an article entitled "ARLC chairman Peter Beattie threatens life bans for NRL bad boys" published in the Sydney Morning Herald on 17 February 2019 (exhibit A6 at p. 11; Notice to Admit [6] and [7]), Mr Beattie is quoted as saying the following: "The ARLC sets policy," Beattie said in a statement. "The NRL implements it. The ARLC is strongly opposed to anyone in rugby league being involved in violence of any kind, especially domestic violence and any behaviour which brings the game into disrepute.["] "The ARLC has instructed the NRL to take the strongest possible action against any player engaged in such behaviour - from serious fines, to suspensions and deregistration." 357 I note that the respondents admitted that the statements in the last of these articles which were attributed to Mr Beattie were in fact made by him but they disputed the date on which they were made as being 15 February 2019, not 17 February. That difference is not material to the issues here. 358 Importantly, in none of these three reports is Mr de Belin named. Nor, expressly or by implication, do the ARLC or Mr Beattie convey any view in the quoted statements about whether or not Mr de Belin is guilty of any offence or has engaged in conduct breaching the NRL's Code of Conduct. As such, I do not consider that there is a real chance that an ordinary member of the public acting reasonably would draw such an inference from the quoted statements. The conduct representations are not established by any of these reported statements. 359 The fourth and fifth reported statements relied on for the conduct representation are also conveniently dealt with together. 360 The fourth article is entitled "'I'd Stand Myself Down': NRL Chair Peter Beattie's Shock De Belin Admission", was published on the Ten Daily website on 19 February 2019 (exhibit A5 at p. 214; Notice to Admit [8], [9] and [10]) and sets out the following statements by Mr Beattie: "If I was in a position like this, I would stand myself down," the former Queensland Premier said in an exclusive interview with 10 news First's Michael Cain. "If I was involved in a matter like this - which I wouldn't be - but if I was, I would stand down." … "We'll make certain that any offences involving women, any issues involving violence are just simply unacceptable for rugby league," Beattie said. "You'll hear more about it after the 28th, but there will be a clear decisive position going forward because frankly, we've had enough of this bad behaviour.["] 361 The fifth article entitled "Can someone please pass Peter Beattie a glass of 'shut the hell up?'" was published in the Sydney Morning Herald on 21 February 2019 (exhibit A6 at p. 13; exhibit A14 schedule A). It also quotes Mr Beattie as saying that, "If I was chairman of the NRL, which I am, and I was involved in a matter like this, which I wouldn't be, but if I was, I would stand down". 362 Again neither of these statements refer to any particular player. Nor do I consider that there is more than a remote chance that an ordinary member of the public acting reasonably would infer from the quoted statements that Mr Beattie considered that Mr de Belin is guilty of any offence or has breached the Code of Conduct. At its highest, I consider that the statement by Mr Beattie that he "would stand down" would be read by a member of the public with knowledge of the pending allegations against NRL players as simply that Mr Beattie would have stood down pending the determination of the criminal charges if he were charged with similarly serious offences, as he considered in effect that that was the "honourable" course of action, thereby putting in his view the best interests of the game first. The correctness of that construction, in the case of the fourth article, is supported by the fact that immediately before the quoted statement, the author expressed the view that "NRL Chair Peter Beattie on Tuesday made it clear that he falls into the camp that believes players should stand down until serious matters have been dealt with by the courts." 363 Further and in any event, even if the implication were conveyed by the quoted statement in the fourth article that Mr de Belin had engaged in "bad behaviour", that is not the pleaded misleading and deceptive conduct case, as the respondents submit. In this regard, I also note that the applicant submits that the public statements represented the respondents' position "that [Mr] de Belin had been involved in violence … and that he had behaved badly and poorly, such that his conduct would not be 'swept under the carpet' but be sanctioned (inter alia) by suspension" (AOS at [18]). This submission misstates the conduct representations as pleaded by the applicant and it would be unfair to the respondents to allow him to depart from his pleaded case in these respects. 364 The applicant also submitted that the making of these statements constituted a course of conduct on the basis of which the various statements, taken together, would convey the conduct representations to the ordinary member of the public acting reasonably. As authority for this proposition, the applicant cited Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199 (Gibbs CJ) and Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60; (2004) 218 CLR 592 at [39] (Gleeson CJ, Hayne and Heydon JJ) (T408.34-409.14). However, as the respondents submit, those cases stand for the distinct proposition that the Court must consider the entire course of conduct of, relevantly, the maker of representations that are said to be misleading or deceptive. With respect, the applicant's submission, relying as it does upon the disparate and selective reporting of statements by the ARLC and Mr Beattie in different media on different days, is not supported by these decisions and is untenable. Nor, even if it were hypothesised that the ordinary member of the public acting reasonably were to read these reported statements together (and presumably no others which might give a different impression), do I consider that there is more than a remote chance that the person would infer the conduct representations. Furthermore, if the applicant's submission were correct, then presumably it would also be necessary to have regard to all of the accurate statements that were reported and to their capacity to correct or negate any erroneous impression conveyed by the statements on which the applicant relied. 365 Finally, I note that the applicant also asserts that the respondents made various statements on 28 February 2019 which were misleading and deceptive on the ground that he had not been found to have engaged in any wrongful conduct (see AOS at [22]-[23]). However, the applicant does not plead any case relating to the conduct representations after 27 February 2019, as the applicant's outline of submissions also confirms at [25]. No application was made to amend the ASOC to include such allegations and as the respondents submit, the allegations must therefore be disregarded.

8.5 Is the alleged suspension representation established? 366 The suspension representation relates to the two week period between 28 February 2019 and 10 March 2019. It will be recalled that on the first of these dates, the ARLC resolved to adopt a no-fault stand down policy in respect of charges such as those to which Mr de Belin is subject and that the policy would be implemented via an amendment to the NRL Rules to be formally adopted before the start of the 2019 season on 14 March 2019. That occurred on 11 March 2019. 367 The alleged statements in which the suspension representation is said to be found are as follows. (1) First, the suspension representation was said to be conveyed by statements by Mr Greenberg in an article entitled "ARLC announces 'no-fault stand down policy' for players facing serious charges" published on NRL.com on 28 February 2019 (exhibit A5 at p. 220 third and fourth paragraphs; exhibit A14 schedule B): Greenberg said Dragons forward Jack de Belin, who is facing sexual assault allegations, would be the first player stood down under the new policy and the CEO stressed it was not a judgement on his guilt or innocence. De Belin has pleaded not guilty to the charges. "He'll be stood down under the no fault policy. He cannot play until the completion of that case," Greenberg said. (emphasis added) (2) Secondly, the suspension representation was said to be conveyed in an article by a senior reporter for the NRL.com, Brad Walter, entitled "Walker set to be first test case for discretionary stand down policy" published on NRL.com on 28 February 2019 (exhibit A5 at pp. 273 and 275; Notice to Admit [17] and [18]), namely: While St George lllawarra lock Jack de Belin was banned from playing after the ARL Commission introduced a mandatory 'no-fault stand down policy' for players facing charges which carry a maximum jail term of 11 years or more in NSW under the state's crime code. … "Frankly, one or two of these events we would have stuck with the process but we ended up with a tsunami," he said [referring to Mr Beattie]. "We had to intervene and do something. We got to a point where, frankly, we had to change the rules. We actually thought the old system worked but they just kept coming so it clearly didn't work." (emphasis added) While the respondents admitted [17] and [18] of the Notice to Admit, they disputed the words "stuck with" and "intervene". (3) The third alleged statement in which the suspension representation is said to arise is found in the transcript of Mr Greenberg speaking at the press conference held by the respondents on 28 February 2019 (exhibit A6 at pp. 7-8; Notice to Admit [14] and [15]), namely: I can advise today that a charge against Jack de Belin is in the serious indictable offence category and he'll be stood down under the new no fault policy. Again, I stress the NRL makes no judgment on that case. That's for the Courts to determine. The player can train and remain involved with his Club but he cannot play until the completion of that case. (4) The fourth statement said to convey the suspension representation appears in an article apparently titled "De Belin banned by NRL but matter not over" published by the Australian Associated Press on 28 February 2019 (exhibit A6 at p. 33; exhibit A14 schedule B), namely: "De Belin was banned on Thursday, under new policies ushered in by the game's chairman Peter Beattie, who claimed the NRL now had the power to fix the game's broken culture." (5) The fifth statement relied upon by the applicant in this regard appears in an article entitled "De Belin proclaims innocence after being stood down" published on NRL.com on 28 February 2019 (exhibit A5 at p. 231-2; exhibit A14 schedule B): Dragons forward Jack de Belin has proclaimed his innocence in the wake of the NRL banning him from playing following Thursday's announcement of the "no-fault stand down policy". … NRL CEO Todd Greenberg earlier in the day announced de Belin as the first player to be banned from playing under the new "no fault stand down policy". "He'll be stood down under the no fault policy. He cannot play until the completion of that case," Greenberg said. (6) The next article relied upon by the applicant in this context is entitled "Peter Beattie denies league abandoned Jack de Belin" and appears to have been published on the website, Sports Radio (exhibit A5 at p. 234; exhibit A14 schedule B). The statement said to give rise to the suspension representation is that "The former Queensland Premier fronted a press conference yesterday alongside NRL CEO Todd Greenberg, where it was announced de Belin would be stood down while he answers alleged sexual assault allegations" (emphasis added). (7) The applicant also relied upon an extract from an Isentia "Daily Briefing" prepared for the NRL and dated 1 March 2019 (exhibit A5 at p. 235; exhibit A14 schedule B), namely: Rugby league's goalposts were shifted forever yesterday when the NRL rewrote the rule book on off-field behaviour. Jack de Belin became the first player dealt with under the "no fault stand-down policy["], stopping the St George Illawarra forward from playing until after his sexual assault case is dealt with in court. Jack de Belin has declared his innocence after becoming the first player stood down under the NRL's new hardline stance on player behaviour, a decision the St George Illawarra star is posed to challenge in the Supreme Court. On a dramatic day at Rugby League Central, the Australian Rugby League Commission announced players charged with serious crimes would be stood down until their court cases were finalised. As ARL Commission chairman Peter Beattie and chief executive Todd Greenberg announced that Jack de Belin wouldn't play this season - and possibly the next - to protect the image of the game, Dragons players were in Mudgee on a school visit. Dragons coach Paul McGregor and his coaching staff were in the team hotel huddled around a TV and watching the live feed of the media conference from the rugby league museum at NRL headquarters. (emphasis added) (8) The applicant also relied upon the following statement in an article entitled "NRL could cut salary cap if player behaviour doesn't improve" published on NRL.com on 6 March 2019 (exhibit A5 at p. 280; exhibit A14 schedule B): "As reported by NRL.com last week, St George Illawarra granted Jack de Belin some time away to deal with the impact of the NRL standing him down as he faces sexual assault charges." (9) Finally, the applicant contends that the following statements by Mr Beattie in an interview of Mr Beattie with Leigh Sales of the ABC's 7.30 Program gave rise to the suspension representation (exhibit A5 at p. 282; Notice to Admit [19]): Three players have been stood down. Leigh, this behaviour is totally unacceptable. We are sending a very clear message to the game that we won't tolerate it as administrators, we will not tolerate any offence against women, children or violence of any kind. … And the proof of that is the fact that three players have already been stood down. 368 I do not consider that any of these statements are misleading or deceptive. 369 In the case of the fourth statement relied upon by the applicant, the statement is made by the author of the article who does not purport to quote the words used by Mr Beattie but rather to state what the author considered was the gist of what Mr Beattie had said. As such, the statement is not attributable to the respondents, as they submit. 370 Furthermore, the first, third, fifth and sixth statements are expressed in the future tense (e.g. Mr de Belin "would be" stood down) and are therefore completely accurate. Moreover, in the transcript of the press conference in which the third statement appears, Mr Greenberg is also recorded as having said that "[a]s Peter [Beattie] also indicated where a player is charged with a serious indictable offence they will automatically be stood down" and that "we have to take a leadership position to protect our game and that is what we will do with this policy in place" (emphasis added). These reinforce the message that the policy had yet to come into force and the statements were about what would happen in the future when it did. 371 Finally, as the respondents submit, as at 28 February 2019 when the new policy was announced, it was clear that Mr de Belin would not play in any matches in the new season and, "[l]ooked at practically, rather than semantically, at this point the respondents had decided that Mr de Belin would not play any games in the new season, albeit that the rule technically giving effect to this was not adopted until 11 March 2019" (RCS at [155]). As such, the respondents submitted that the references to Mr de Belin being stood down or banned during this period were not misleading but described the claim as "angels dancing on the head of a pin" (ibid). In this regard, I accept the applicant's submission that it is the "dominant message" which is crucial in this case (AOS at [16]; see by analogy Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 at [45] (French CJ, Crennan, Bell and Keane JJ); Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited [2014] FCA 634; (2014) 317 ALR 73 at [42] (Allsop CJ)). That being so, the dominant message conveyed by the second, fourth, seventh, eighth and ninth statements to the ordinary reasonable member of the public was that a decision had been made that Mr de Belin would not play in the 2019 season while his charge was before the courts. I therefore agree with the respondents that the factually inaccurate use of the present, instead of the future, tense in these reported statements did not render the representations misleading or deceptive for the purposes of s 18 of the ACL. Put another way, even though such statements were technically inaccurate, they did not in fact convey a meaning which was false: see by analogy Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 88.

8.6 Has the applicant established that he suffered loss or damage if the misleading or deceptive representations were made? 372 Even if, contrary to the findings which I have made, the applicant established that the alleged conduct and/or suspension representations were misleading and deceptive, he would not be entitled to damages in the absence of establishing any loss. He has failed to do so for the following reasons. 373 Where a person suffers loss or damage "because of" the conduct of another person and that conduct contravened relevantly s 18 of the ACL, the amount of the loss or damage may be recovered by the claimant under s 236. In addition, under s 237, the Court may, on the application of a person who suffered or is likely to suffer loss or damage "because of the conduct of another person" that was engaged in a contravention of relevantly s 18, make an order to compensate the injured person in whole or in part for the loss or damage. In both cases, as the phrase "because of" makes clear, there must be a causal connection between the misleading or deceptive conduct and the loss or damage: see by analogy Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 at [102] (Gummow, Hayne, Heydon and Kiefel JJ). In this inquiry, common law concepts of causation as articulated in March v E & M H Stramare Pty Limited (1991) 171 CLR 506 (March) at 518-519 apply, subject to the terms and objects of the CCA: Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 (Henville) at [18] (Gleeson CJ), [61] (Gaudron J), [96] (McHugh J), [153] (Gummow J (agreeing with McHugh and Hayne JJ's reasons)), and [158] (Hayne J). As such, the question of whether the act is legally causative is resolved by determining whether it "materially contributed" to the loss or injury suffered, taking a practical and common-sense approach: Henville at [60] (Gaudron J), [95]-[97] and [106] (McHugh J); Wardley Australia Limited v Western Australia (1992) 175 CLR 514 at 525 (Mason CJ, Dawson, Gaudron and McHugh JJ). 374 In this regard, as Kiefel J (as her Honour then was) held in Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALJR 870 (RTA v Royal): 143. It remains a requirement of the law that a plaintiff proves that a defendant's conduct materially caused the injury. Nothing said in Betts [v Whittingslowe (1945) 71 CLR 637] detracts from that requirement, which forms the basis for the restatement of the test of causation in March. … 144. The present state of authority does not accept the possibility of risk of injury as sufficient to prove causation. It requires that the risk eventuate. Kitto J in Jones v Dunkel said that one "does not pass from the realm of conjecture into the realm of inference" unless the facts enable a positive finding as to the existence of a specific state of affairs. (citations omitted) 375 The applicant alleges that the conduct and suspension representations have caused and will cause "irreparable damage" to his reputation, and have caused and will cause him hurt and stress and financial loss (ASOC at p. 10). Applying the principles summarised above, the onus lies upon Mr de Belin to prove the loss and damage alleged and that the representations materially contributed to that loss and damage being suffered. 376 As the respondents submit, ss 236 and 237 are not concerned to "mirror" the law of defamation but are more analogous to the common law causes of action in deceit and negligent misstatement (see e.g. Henville at [19] (Gleeson CJ)). As such, by analogy, the Full Court in RAIA Insurance Brokers Limited v FAI General Insurance Co Limited (RAIA) doubted the appropriateness of awarding damages under s 82 of the then Trade Practices Act 1974 (Cth) merely to "vindicate" a person's reputation in the sense of "clear[ing]" the person's name from an imputation, rather than ordering corrective advertising under a different provision: (1990) 41 FCR 164 at 179 and 180-181 (Beaumont and Spender JJ (with whose reasons Davies J generally agreed at 165)). 377 In any event, there is no evidence establishing that Mr de Belin's reputation has been harmed as a result of the alleged conduct or suspension representations as opposed to the inevitable harm to his reputation caused by the fact that it is widely known and reported in the media that he has been charged with aggravated sexual assault in company. A fortiori there is no evidence of any financial loss flowing from such harm. Nor is there any evidence aside from hearsay statements that the applicant has suffered hurt and stress as a result of the conduct and suspension representations, even assuming that damages could be awarded for hurt and stress under these provisions. In this regard, Mr de Belin has chosen not to give any evidence on his behalf which may support such claims. Nor did the applicant elaborate upon the basis of his claims for damages for contravention of s 18 in the AOS. However, as Kiefel J held in RTA v Royal, the mere risk of loss or damage does not suffice to discharge the onus on the applicant to prove actual loss or damage, whether by way of a lost opportunity or otherwise. In these circumstances, quite apart from the other difficulties with the claims based upon the alleged conduct and suspension representations, the claim for damages must fail.

8.7 Should the grant of declaratory relief be refused in any event? 378 Finally, Mr de Belin submits that even if he has suffered no loss, the Court should make a declaration that the respondents have engaged in misleading or deceptive conduct or conduct likely to mislead and/or deceive within the meaning of s 18 of the ACL (Amended Originating Application at [3]; AOS at [63]). 379 The Court undoubtedly has power to make a declaration that the ACL has been contravened under s 21 of the FCA Act: see e.g. by analogy RAIA at 176-177 (Beaumont and Spender JJ). However, even if the Court were to find that there was a contravention of s 18 of the ACL, the respondents contend that the Court should not, in the exercise of discretion, make a declaration because it would be devoid of utility. 380 The Court has a wide discretion under s 21 of the FCA Act. The discretionary power to grant declaratory relief "is neither possible or desirable to fetter … by laying down rules as to the manner of its exercise": Ainsworth at 581-582 (Mason CJ, Dawson, Toohey and Gaudron JJ (quoting Gibbs J in Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421 at 437 with approval)). Ordinarily, as the respondents submit, declaratory relief will be refused if the declaration would serve no legitimate purpose or lacks utility: Ainsworth at 582; Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited [2000] HCA 11; (2000) 200 CLR 591 at [52] (Gaudron J). In other words, there must be a practical purpose in making the declaration: S & V Nominees Pty Ltd (in liq) v Rabobank Australia Limited (No 2) [2011] FCA 1039 at [6]. This is not to deny that in particular cases, a declaration that a respondent contravened the Act "might have a salutary effect in a particular case so that the public interest would give to the declaration a practical effect", as Hill J for example observed in Mikaelian v Commonwealth Scientific and Industrial Research Organisation [1999] FCA 610; (1999) 163 ALR 172 at [87]. However, other considerations which may indicate that a declaration lacks practical effect include cases where there is no reason to suspect that the offending conduct may be repeated or where the conduct did not result in any damage to the applicant (ibid). 381 In the present case, I agree with the respondents' submission that even if the respondents contravened s 18 of the ACL in any of the respects alleged, declaratory relief should be refused as it would lack utility. First, the conduct did not result in any loss or damage to Mr de Belin. Secondly, there is nothing to suggest that the allegedly offending conduct would be repeated. Thirdly, even if the conduct representations were made, there were numerous other statements in the media at the time and subsequently, including by the respondents, making it clear that the respondents had not formed a view as to whether Mr de Belin had engaged in the conduct with which he was charged or had breached the Code of Conduct. Equally, even if the suspension representation was found to have been made, once the policy was announced, Mr de Belin was plainly going to be stood down pending the determination of his criminal charge by the courts and he was in fact stood down shortly thereafter when the new rule was made. In the fourth place, there is no evidence to suggest that any person, including any sponsor or fan, may have acted to their detriment in reliance on the conduct or suspension representations. This is not a case, for example, where the evidence suggests that members of the public or of a particular class might have been induced by the representation to enter into a particular transaction. For these reasons, I would in any event have refused to make the declaration sought.

9. ALLEGED UNCONSCIONABLE CONDUCT CONTRARY TO S 21 OF THE ACL

9.1 Relevant principles 382 Finally, Mr de Belin contends that the respondents have engaged in unconscionable conduct within the meaning of s 21 of the ACL, as informed by the factors set out in s 22 of the ACL. 383 Section 21(1) provides that: (1) A person must not, in trade or commerce, in connection with: (a) the supply or possible supply of goods or services to a person; or (b) the acquisition or possible acquisition of goods or services from a person; engage in conduct that is, in all the circumstances, unconscionable. 384 Section 21(4)(a) and (b) make it clear that the section is not limited to the common law relating to unconscionable conduct and is capable of applying to a system of conduct or pattern of behaviour. Furthermore, s 21(4)(c) provides that: (c) in considering whether conduct to which a contract relates is unconscionable, a court's consideration of the contract may include consideration of: (i) the terms of the contract; and (ii) the manner in which and the extent to which the contract is carried out; and is not limited to consideration of the circumstances relating to formation of the contract. 385 Section 22(1) relevantly provides: (1) Without limiting the matters to which the court may have regard for the purpose of determining whether a person (the supplier) has contravened section 21 in connection with the supply or possible supply of goods or services to a person (the customer), the court may have regard to: (a) the relative strengths of the bargaining positions of the supplier and the customer; and (b) whether, as a result of conduct engaged in by the supplier, the customer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and (c) whether the customer was able to understand any documents relating to the supply or possible supply of the goods or services; and (d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the customer or a person acting on behalf of the customer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and (e) the amount for which, and the circumstances under which, the customer could have acquired identical or equivalent goods or services from a person other than the supplier; and (f) the extent to which the supplier's conduct towards the customer was consistent with the supplier's conduct in similar transactions between the supplier and other like customers; and (g) the requirements of any applicable industry code; and (h) the requirements of any other industry code, if the customer acted on the reasonable belief that the supplier would comply with that code; and (i) the extent to which the supplier unreasonably failed to disclose to the customer: (i) any intended conduct of the supplier that might affect the interests of the customer; and (ii) any risks to the customer arising from the supplier's intended conduct (being risks that the supplier should have foreseen would not be apparent to the customer); and (j) if there is a contract between the supplier and the customer for the supply of the goods or services: (i) the extent to which the supplier was willing to negotiate the terms and conditions of the contract with the customer; and (ii) the terms and conditions of the contract; and (iii) the conduct of the supplier and the customer in complying with the terms and conditions of the contract; and (iv) any conduct that the supplier or the customer engaged in, in connection with their commercial relationship, after they entered into the contract; and (k) without limiting paragraph (j), whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the customer for the supply of the goods or services; and (l) the extent to which the supplier and the customer acted in good faith. 386 Section 22(2) dealing with the matters to which the Court may have regard in determining whether the person acquiring goods or services has contravened s 21, is to similar effect. 387 The relevant principles were not in issue and were helpfully explained by Beach J in Australian Competition and Consumer Commission v Medibank Private Limited [2018] FCAFC 235 (Medibank) at [233]-[255] (with whose reasons Perram and Murphy JJ relevantly agreed). Those principles may be summarised as follows: (1) The standard of unconscionable conduct "is a statutory standard rather than an equitable standard … Further, both the lens 'in all the circumstances' (s 21(1)) and the non-exhaustive list of matters to which the Court may have regard (s 22(1) in this case) indicate that neither the boundaries nor content of the equitable doctrine are defining or limiting features. Nevertheless, the statutory construct may include aspects of the equitable construct" (Medibank at [233]). (2) The evaluation of the conduct in all the circumstances requires close consideration of the facts (Medibank at [234]). (3) Assessing whether conduct in all the circumstances is to be characterised as unconscionable involves an evaluative judgment (Medibank at [236]). (4) The use of labels such as "moral obloquy" or "a high level of moral obloquy" are "a gloss on the statutory text" (Medibank at [240]). As Allsop CJ explained in Paciocco v Australia and New Zealand Banking Group Ltd [2015] FCAFC 50; (2015) 236 FCR 199 (Paciocco (FCAFC)): 262. … The task involved is not the choice of synonyms; rather, it is to identify and apply the values and norms that Parliament must be taken to have considered relevant to the assessment of unconscionability: being the values and norms from the text and structure of the Act, and from the context of the provision. Parliament has given some guidance to its proper application (and to its meaning) by identifying in s 12CC certain non-exhaustive factors that may be taken into account by a court in deciding whether conduct was unconscionable. Given the value-laden character of the word, it is necessary to ascertain and organise the relevant values and norms by reference to which the meaning of the word is to be ascertained, and by reference to which the application of the section is to be undertaken (the two tasks being distinct). It must, however, be emphasised at the outset that the values and norms that are relevant are those that Parliament has considered, or must be taken to have considered, as relevant. (5) Rather, "[a]t most, the statutory concept of unconscionable may accommodate a flavour of moral obloquy, but it is to divert the relevant normative inquiry to specifically seek to identify its existence or to clothe the relevant conduct with such a conclusory label" (Medibank at [241]). (6) As Allsop CJ also explained in Paciocco (FCAFC) in relation to cognate provisions of the Australian Securities and Investments Commission Act 2001 (Cth) (at [285] to [296]): (a) fairness and equality are values and conceptions underpinning s 22(1)(a), (b), (d) to (f) and (i) to (k); more particularly, s 22(1)(a), (j)(i) and (k) recognise asymmetry of power; (b) a lack of understanding or ignorance of a party is the conception underpinning s 22(1)(c); (c) the risk and worth of the bargain are the conceptions underpinning s 22(1)(e) and (i); a broader and related although not explicit concept is the question of asymmetry of information; and (d) good faith and fair dealing are values and conceptions underpinning s 22(1)(l). (Medibank at [244]). (7) While honesty and fairness in dealing with consumers is relevant, "… it would be wrong to say that unfair conduct in and of itself amounts to unconscionable conduct. But establishing unfair conduct may be a step along the way to showing unconscionable conduct. It would also be wrong to say that because hardship is or may be caused to a consumer by conduct, such an actual or likely consequence in and of itself establishes that the conduct was unconscionable. But again, establishing actual or likely hardship may be a step along the way to showing unconscionable conduct, although it is not necessarily required" (Medibank at [246]). (8) Equally, "… it is not necessary to show that a person is under a disadvantage or that any particular person has been disadvantaged by conduct (s 21(4)(b)). But in any event, a person is not treated as being in a position of substantial disadvantage merely because there is an inequality of bargaining power" (Medibank at [251]). (9) The focus is not upon actual intention or constructive knowledge. Rather, "… statutory unconscionability … is a broader concept requiring an 'objective value judgment on behaviour' … But the subjective state of mind of the alleged contravener whether actual or constructive is relevant to the broader sense" (Medibank at [247]). (10) Industry practice is a relevant consideration, including where formalised in an industry or other code (cf s 22(1)(g) and (h)). "But acting consistently or otherwise with industry practice has broader relevance to the unconscionability question as Keane J explained in Paciocco (HC) [[2016] HCA 28; (2016) 258 CLR 525] at [290]: The appellants seek to stigmatise as unconscionable or unfair or unjust an activity in the marketplace in which nothing materially distinguishes the situation and conduct of either Mr Paciocco or ANZ from any of the other participants in that activity. It may be said that ANZ and its competitors have dealt "unconscionably" or "unfairly" or "unjustly" with all of their customers in that, in a careless or partisan use of language, all banks may be said to do so as a matter of course. But to argue that conduct by one participant in a market, which is an unremarkable example of conduct engaged in by all participants in that market, is unconscionable, or unjust or unfair, in breach of the statutory norms, without any suggestion that the market itself is unlawfully skewed, is something of a stretch …" (Medibank at [248]). (11) It is necessary to consider each of the factors set out in the non-exhaustive list of matters in s 22 if relevant: "The word 'may' in s 22(1) is conditional rather than permissive" (Medibank at [252]). (12) Finally, "… the conduct which attracts the operation of the statutory provision is assumed to be of sufficient seriousness such as to potentially warrant the imposition of a pecuniary penalty. That perspective is not irrelevant to the construction and application of ss 21 and 22(1)" (Medibank at [254]).

9.2 A threshold issue: does s 21 of the ACL apply? 388 It was not in dispute that s 21 of the ACL applies only where a person is acting in connection with the supply or acquisition of goods or services to or from a person and, as such, applies to "contracts for services" but not "contracts of service" (see the definition of "services" in s 2, ACL). 389 The respondents submitted that s 21 of the ACL does not apply because the Playing Contracts were contracts of employment and therefore were "contracts of service" only: Adamson (FCAFC) at 258-262 (Wilcox J). In this regard, the definition of "services" in s 2, ACL excludes the performance of work under a contract of service: see Adamson v West Perth Football Club (1979) 27 ALR 475 at 505-506 (Northrop J). I note however that there was no suggestion that the fact that the Playing Contracts included provision for the licensing of Player Property meant that the Playing Contracts were at least to this extent a contract for the provision of services. While the point was not argued, it is arguable that these provisions are simply an incident of the contract of employment whereby the players put their skills and performance at the disposal of the club, and therefore that the whole Playing Contract is still properly characterised as a "contract of service": see by analogy Adamson (FCAFC) at 261-262. 390 The applicant also argued that even if the Playing Contract is a contract of service, there may still be services provided by the NRL to Mr de Belin which would fall within the statutory definition of "services" (T416.11-31). This submission relies on the fact that the definition extends to services provided otherwise than under a contract: Adamson (FCAFC) at 262 (Wilcox J); see also Trade Practices Commission v Legion Cabs (Trading) Co-operative Society Ltd (1978) 35 FLR 372 at 380-381 (Franki J). 391 In circumstances where neither issue was the subject of detailed argument it is preferable to leave these issues for another day, when the claim must fail in any event for the reasons I explain below.

9.3 Is there any evidence of loss or damage? 392 As the applicant has not led any evidence in support of his claim for damages by reason of the alleged unconscionable conduct, the claim for damages on this ground must fail. However, as the applicant also seeks declaratory relief, it is still necessary to consider whether there was any breach of s 21.

9.4 Did the respondents engage in unconscionable conduct in any event? 393 The claim that the respondents engaged in unconscionable conduct is dependent to a significant degree upon the applicant succeeding in his claims that the new rule imposed an unlawful restraint of trade and that the respondents had engaged in misleading or deceptive conduct and interfered with the Playing Contract: see ASOC at 25,(e),(f),(l) and (m) and AOS at [32]-[41]. As the applicant summarised in his outline of submissions at [41]: (a) the Respondents conduct a professional rugby league monopoly in Australia such that they have been able to implement the New Rule without any negotiation with the player; (b) the amendment to the Playing Contract is not reasonably necessary to protect the Respondents' commercial interests and are contrary to public policy; (c) the Respondents have conducted a continuing public campaign involving misleading and deceptive conduct and sought to put pressure upon de Belin to have him stood down, despite having no existing legal basis to do so; (d) the New Rule would unilaterally and automatically ban de Belin without a hearing or appeal and would do so retrospectively, in that it would operate upon a contract which had long since been finalised and executed; (e) the New Rule would be implemented contrary to the terms and intent of the CBA; (I note that I have omitted the reference in this summary to the allegation of a lack of good faith because this was abandoned at the hearing. Equally and for the same reason I take the applicant not to have pressed the allegation that the conduct and suspension representations were "arrogant [and] knowingly inaccurate" (in AOS at [32.2]) insofar as that was intended to imply a lack of good faith or deliberate falsity.) 394 It follows therefore from the dismissal of the claims of misleading and deceptive conduct that the applicant has not established the misrepresentations upon which he also seeks to rely in support of his unconscionable conduct claim (AOS at [32.1], [32.2], and [35] (alleging they were part of the "unfair tactics" employed by the respondents)). Similarly, as the unlawful restraint of trade claim was dismissed, the applicant has failed to establish that the new rule is not reasonably necessary for the protection of the respondents' legitimate interests as a factor in support of his claim of unconscionable conduct (AOS at [34], [32.3.1]). Furthermore, the findings already made in the context of considering the restraint of trade claim with respect to the alleged retrospective and indefinite effects of the new rule equally answer the applicant's reliance upon these alleged features of the new rule as unfair and unreasonable in the context of the unconscionability claim (AOS at [32.3.2]). The submission at AOS at [32.3.2] that the new rule was unfair and unreasonable because it prevented Mr de Belin from performing his obligations under the Playing Contract also ignores the fact that he agreed under the Playing Contract to be bound by the NRL Rules as amended from time to time and cannot stand in light of my finding that the restraint imposed upon him was reasonably necessary to the legitimate interests of the ARLC and the NRL. 395 It falls then to deal with the remaining facts which underpin the applicant's unconscionability claim. 396 First, the applicant submits that the fact that no opportunity was afforded to Mr de Belin to negotiate or be heard before the ban was imposed was unfair and unreasonable (AOS at [32.3.5] and [33]). This submission, with respect, overlooks the fact that there is a CBA in place between the NRL and the RLPA, being the collective representative body for professional rugby league players that represents them on matters affecting their employment, and of which Mr de Belin is a member. The new rule was also inserted into the NRL Rules through an amendment which applies immediately to all players and not only to Mr de Belin. Further, there was consultation with the RLPA and its views were taken into account. In this regard, the letter of 21 February 2019 from Mr Prendergast, CEO of the RLPA, to Mr Greenberg discusses in detail the impact of any change in the policy to "suspend" a player pending the resolution of their criminal charges upon players in Mr de Belin's position (exhibit R2 at p. 669). Furthermore, as I have earlier found, the applicant failed to establish that the RLPA was not properly consulted in accordance with the CBA between the NRL and the RLPA before the new rule was adopted (cf AOS at [32.3.4]). It follows that the applicant has not established that the lack of direct consultation or negotiation with him was unfair and unreasonable. 397 Secondly, the suggestion that Mr de Belin's interests were disregarded (AOS at [33]) is not borne out by the evidence. In forming his recommendation for the Board, one significant matter which Mr Greenberg considered carefully was the effect that a stand down rule would have on a player who was ultimately found to be not guilty of the charge that he faced. As he said, "[e]ven if the player was paid during the time he was stood down I recognised that it had potential to impact on his career and that he may end up losing one or, even two, seasons of his career. This would be a significant period given the limited life span of the career of an NRL player" (Greenberg at 113; see also T241.7-19 (Greenberg)). The minutes of the meeting of the ARLC Board on 28 February 2019 also record that, before the resolution was passed adopting the new policy, matters discussed by the directors included: (1) the RLPA's position including as outlined in its letter dated 21 February 2019 (exhibit R2 at p. 669); (2) the potential player welfare implications of the implementation of the recommended new policy, including the attitude of Mr de Belin's club; (3) the need for players who were stood down to be permitted to train with their club and have access to wellbeing and education support, as well as be paid their salary; and (4) the need to ensure that any new policy or rule is clearly framed and explained as a "no-fault" stand down. (exhibit R2 at p. 610-611) 398 Thirdly, no evidence was led as to any matters which the applicant would have wished to put to the Board or anyone else in the event that he had been given a right to make submissions before being stood down or if given a right of review. There was therefore no evidence that he would have made any submissions beyond those made by the RLPA, which specifically referred to Mr de Belin as an example of why he and other players in a similar position should not be stood down (exhibit R2 at p. 669). 399 Fourthly, the applicant also submits that "[u]ndue pressure was exerted upon and unfair tactics used" against him at the meeting between on 27 February 2019 (AOS at [35]). Specifically, the applicant alleges that Mr Greenberg informed Mr de Belin that if he did not voluntarily stand down, he would be stood down by the ARLC the following day in circumstances when Mr Greenberg knew or ought to have known that neither respondent had the power to suspend Mr de Belin the following day (ASOC at 25; AOS at [35]). 400 I note that Mr Gillis was also present at this meeting, as was Mr Johnston, the CEO of St George Illawarra (T310.27 (Greenberg); T448.19-27 (Mr Sullivan QC)). As St George Illawarra opposed the introduction of the new policy and Mr Johnston had advised Mr Beattie and Mr Greenberg that the Club would not stand Mr de Belin down while he awaits trial (as reported to the meeting of the ARLC Board on 28 February 2019 (exhibit R2 at p. 611)), it can be inferred that Mr Johnston was supportive of Mr de Belin personally and of his position at the meeting on 27 February. That inference can more confidently be drawn given that Mr Johnston was not called by Mr de Belin, and that Mr de Belin did not himself give evidence. As Mr Gillis is Mr de Belin's manager and has worked closely with him in managing and promoting his playing career since late November 2016, it can also be inferred that Mr Gillis was supportive of Mr de Belin personally and of his position at the meeting even though his evidence did not touch on what happened at the meeting. 401 Mr Greenberg's account of what happened at the meeting is therefore the only account of the meeting in evidence and I accept it as accurate. Specifically, Mr Greenberg said that: [Mr Einfeld] On the day before the commission met, you had a meeting with Mr de Belin yourself; isn't that right?--- [Mr Greenberg] Yes. That's correct. At that meeting, you told Mr de Belin that he should stand down voluntarily?---That's incorrect. Is it?---Yes. What's incorrect about it?---I suggested to him that he could do this in another way. Do what in another way?---He could take the narrative by standing down himself, if he chose --- Sorry. Take the narrative. What do you mean?---So in other words instead of the commission enforcing this rule upon him the following day, if the board were to approve it, he had the opportunity to actually take the onus of responsibility on himself. Do you mean by that that you told him that there were two possibilities: one was he stand voluntarily and the other was that he be stood down pursuant to the introduction of a new rule?---No. I think there was three possibilities at that point. Yes?---One was that the commission wouldn't endorse the new rule on the 28th. Two would - that the commission would change the rule on the 28th and I told him that was likely. And (3) was if he wanted to, he could take the onus of responsibility on himself. Right. So does it come down to this: that you told him that the probability was that there would be a new rule introduced, which would have the effect of standing him down automatically, or he could stand down himself?---Yes. Is that the position? Right. And you told him that it was a probability that the new rule would be introduced, which would have the effect of automatically standing him down. That's what you just told us?---I said to him in - in - in my view, the rule was likely to be approved by the commission the following day. Right. So it was likely, you told him - or the effect of what you told him was that it was likely he would be stood down the next day. Alternatively, he could, in effect, take that course for himself?---Correct. Right. In the corporate world, you would perhaps accept the analogy either resign or you will be sacked; do you agree?---No. No. Well, what's the difference?---The corporate world and the professional sporting world are very, very different. No. But to use the language of the corporate world: you resign or you will be sacked. To use the language of the professional footballer: You can stand yourself down voluntarily or it's likely you will be stood down?---Yes. So sacked is not a word that I think describes the - the outcome of what was going to happen on the 28th. Is that right?---Yes. You don't think that it's an effective sacking for a footballer to be stood down from performing his obligations under his playing contract with his club, for a period that you're quite unable to define?---No, I don't. Don't you. Very well?---I think when he's fully paid, it doesn't constitute a sacking. I see. And do you not accept that if a player doesn't play for a year or two, that that might have some impact upon his playing career?---I do accept that. (T239.40-241.8) 402 There is nothing that evidence, in my opinion, which suggests that Mr de Belin was being placed under undue pressure or taken advantage of. Furthermore, as the respondents submit, the submission that Mr de Belin was taken advantage of at the meeting makes little sense when Mr de Belin in fact rejected Mr Greenberg's suggestion to step down of his own accord. 403 The applicant also contends that the relevant industry code for the purposes of s 22(1)(h) of the ACL until 11 March 2019 was the unamended NRL Rules and Code of Conduct which provided only for suspension after a finding of misconduct was made, in the course of which a player was afforded an opportunity to be heard (AOS at [37]). However, that overlooks the fact that under the contractual matrix governing the NRL Competition, all relevant participants including the players also agreed to be bound by the NRL Rules as amended from time to time, albeit that the power to amend was not unlimited as I have found. Indeed, it might be observed that this aspect of the NRL Rules is consistent more broadly with industry practice, as a consideration of similar amendments by the peak entities to the governing rules of national and international sports in the case law in the restraint of trade context suggests. 404 It follows for these reasons that the applicant has failed to establish the factual premises upon which he alleges that the respondents breached s 21 of the ACL. This is not to deny that Mr de Belin may personally feel strongly that the new rule is unfair. However, that is not the test under s 21.

10. CONCLUSION 405 It follows for these reasons that the application must be dismissed with costs. I certify that the preceding four hundred and five (405) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.