Micklethwait v Essendon District Football League Inc [2003] VSC 363

5. It is now clearly established by authority that the courts will not interfere with the decision of a domestic tribunal unless they are satisfied that the domestic tribunal has clearly made a wrong decision, and I refer to Australian Football League v Carlton Football Club, referred to in the course of the argument before me and reported at [1998] 2 VR 546. At p.50 of that decision, Tadgell, J.A., who was presiding, said:

"Statutes aside, the courts have been disposed to interfere in a limited way with decisions of private or domestic tribunals in order to protect private rights that might have been adjudged to deserve protection, including rights in property."

"If it is a decision that is seen not to be made in good faith, or to be the product of bias or other dishonesty, or not to be made in accordance with the principles of natural justice, the courts will upset it, and the basis for doing so in these several circumstances has been variously expressed."

"It remains the law, for example, that if a domestic tribunal was designed to enquire into facts, there must be due enquiry. The tribunal must do the job it was designed to do and not merely go through the motions of it. A court may well step in if it can be seen that the whole thing is a farce, hence it has been said that the courts will interfere if the conclusion reached by the tribunal is plainly absurd or unreasonable, or that no reasonable man could come to the conclusion, or that no reasonable man could honestly arrive at it, or that the conclusion was reached in disregard of one of the fundamental principles of natural justice."

13. In the present case, although it is said that the decision was reached in breach of principles of natural justice, it is not submitted that the tribunal's decision was made other than in good faith or that it was the product of dishonesty. Counsel for the plaintiff in the course of his submissions at one stage suggested that there may have been some bias on the part of the investigator, but that was faintly submitted. It is not suggested that the conclusion was plainly absurd or unreasonable, or that no reasonable man could honestly have arrived at such a decision.

16. However, the plaintiff puts his case in other ways. First, he submits that the tribunal acted beyond power. Secondly, he submits, as I have already indicated, that there was a denial of natural justice in relation to the hearing conducted by the tribunal.

19. Insofar as the first discrete submission is concerned, the evidence is clear that the plaintiff was charged after an official of an opposing team laid the charge and after an investigating officer, a Mr McKay, prepared a report which was put before the Tribunal. A copy of the rules of the association which was provided by the association to the plaintiff's player advocate some days after the tribunal hearing did not refer to any power to conduct such a hearing of a charge laid under such circumstances. However, subsequent investigations have revealed that on 5 March 2003 the members of the association, which I might say included the West Coburg Club through its proxy, agreed to amendments to the rules which gave clear power to the association to adopt the procedure adopted in this case. However, Mr Burns of counsel relies upon the fact that the defendant is an association incorporated under the Act, and there is evidence before me, although of a hearsay nature but not resisted by the defendant, that the amended rules were not registered with the Registrar of Incorporated Associations as required by s.22 of the Act. Mr Burns thus relies upon s.22(2) of that Act, which states that an alteration of the rules of an incorporated association does not take effect unless and until it is approved by the Registrar. Thus, he says, on the basis that the amendment of the rules does not appear to have been approved by the Registrar, the procedure adopted by the tribunal was ultra vires and beyond power. If this was the fact, the plaintiff would have at least an arguable case.

22. However, Mr Nolan, who appears for the defendant, submits that there is a complete answer to that submission in that s.17 of the Act, which is headed "Ultra vires transactions", provides that no act of an incorporated association is invalid by reason only of the fact that the association is without capacity or power to do the act. He relies upon sub-s.(2) of s.17, which provides that any such lack of capacity or power may be asserted or relied upon only in proceedings against the incorporated association by a member of the incorporated association. He submits that the rules of the defendant association make it clear that the plaintiff was not such a member and therefore he asserts that the plaintiff is unable to rely upon the fact that the rules were not approved by the Registrar pursuant to s.22 of the Act. Regrettably, partly by reason of the delay since the decision of the tribunal of the association was handed down on Tuesday of last week, and partly by reason of this matter coming on late today in a busy Practice Court list, this issue has not been capable of further exploration. Notwithstanding his submissions, however, Mr Nolan does concede that the question of whether the rules are beyond power is at least a triable issue. It appears to me, in the urgent circumstances before the court, that that is a proper concession, and I proceed on that basis, although for my own part I have considerable doubt as to whether the argument advanced by Mr Burns is likely to succeed in the long term.

25. The second discrete issue upon which Mr Burns relies is a complaint that the plaintiff has been denied natural justice. In the course of his submissions he advanced several matters upon which he placed reliance in support of his contention. First, he contended that, having regard to the timing of the tribunal hearing which was on a Tuesday, and the manner in which the investigation and the tribunal hearing was conducted, the plaintiff was deprived of the opportunity of having a fair investigation and a fair hearing. He submits that there was a denial of natural justice in that witnesses were available, and indicated as being available to the investigator, and were not interviewed and/or called by the investigator. The affidavit material before me makes it clear that there is an issue of contested fact as to this matter, but, that said, that is a matter upon which the plaintiff relies. The plaintiff through his counsel asserts that he was not provided with full and proper particulars of the allegations made against him. Rather, the particulars are contained in a broad statement, in the document with which he was provided the day before the hearing. The document stated that he had struck another player. Mr Burns further submits that his client was denied natural justice by reason of not being advised or informed that he could, independent of the investigation, call witnesses in his defence.

28. In my view the complaints made by the plaintiff to the effect that he was denied natural justice, or procedural fairness for that matter, have little merit. Clearly he was entitled to the procedural fairness of being heard by an unbiased tribunal. There is no evidence, in my view, before me that he was not provided with an unbiased tribunal. Clearly he had a right to have notice of the charges. Obviously the notice that he was given did not comply with the rules for particularisation of a criminal proceeding, but in the context of a football tribunal, clearly he was given some notice by the discussion had with the investigator the week before the hearing and he was given notice of the nature of what was to be alleged against him by notice from the association to his club which was provided to him the day before the hearing. He had a right to be given the opportunity to answer the charges as a matter of procedural fairness, and there is no argument that he was not given that right, although there is a complaint to the effect that little time was accorded to him and that he was not advised of his right to call witnesses.

31. It is submitted by Mr Nolan of counsel that the fact that the plaintiff was informed of the charge and that he was entitled to at least some time to prepare his defence, and the fact that he was entitled to representation by the player advocate, Mr Cole, who has sworn an affidavit on his behalf, the fact that he was present when the charge was read out, the fact that he had the opportunity to plead not guilty to the charge and was entitled to and did ask questions of witnesses, and the fact that he was entitled to make submissions to the tribunal, are clear demonstrations that he was accorded procedural fairness in the course of the hearing.

34. Insofar as the plaintiff makes complaint about not being informed that he could call witnesses, I consider that complaint to be of little substance or merit. It might well be, as it appears, that the investigator did not advise him of this right, but the plaintiff was represented by a player advocate, and in my view that is not a matter without significance. The player, through his advocate, could have raised this matter with the Tribunal and no doubt he would have been advised of his rights had he done so, but he did not do so. There is no suggestion before me that there in fact was a witness who could be nominated, nor is there any evidence before me as to what such a witness might have said had such witness been called. Finally in relation to this matter, I have some doubt as to whether, even if the plaintiff had no understanding of his right to call witnesses, it can be said that the player's advocate was under the same misapprehension, notwithstanding what he said in his affidavit.

37. Insofar as the complaint about time to prepare his defence is concerned, it appears to me that there is little to be advanced in the plaintiff's favour in relation to this matter. The rules make it clear that under usual circumstances when a report arises out of a match, the charge will be laid on a Saturday or Sunday and the tribunal will proceed to hear the matter on the following Tuesday night. In this case the investigation process took place the week before the tribunal hearing and the club was informed on the Sunday before the hearing and formal notice was provided to the plaintiff on the Monday for a hearing on Tuesday night. Taking into account the limited nature of the enquiry to be made by the tribunal, it does not appear to me that there was insufficient time for the plaintiff to prepare his case. In any event the plaintiff was represented by a player advocate and there is no suggestion made to me that any application was made to the tribunal to adjourn the hearing. Rather, what occurred was that the hearing before the tribunal took place and then the plaintiff made his complaint after the result.

40. There is an assertion in the pleadings, and to some degree it was advanced before me, that the investigation by Mr McKay was not as thorough as it might have been, particularly, as I understand it, in relation to the investigation of other witnesses. As I said, there is a factual dispute about this. I have read the report which was provided by Mr McKay to the tribunal and, frankly, it appears to me that it is a model of fairness. A reading of that report reveals that he advanced arguments in favour of the plaintiff. In any event, it was a matter for the tribunal to consider that report and then make a decision on the evidence before it.

43. As I said, the role of the court in relation to domestic tribunal matters is somewhat circumscribed by reason of authority. That said, however, and as conceded by Mr Nolan, there is a triable issue in this case, and I turn to the issue of balance of convenience.

46. Clearly, if an order is not granted in his favour, the plaintiff suffers not only inconvenience but severe personal disappointment, and I sympathise with him in relation to that. It is of course always a matter of great disappointment to players in football and other sports who are suspended by their domestic tribunals at a time proximate to finals. In the case of the plaintiff, although there is little material before me about the personal effect on him if he is deprived of being able to play in the grand final, no doubt, by reason of his age of 31, the possibility that he might play in further finals in the future is more remote than it might otherwise be. So the plaintiff's desire to play in the grand final tomorrow is a matter of no little significance. Nevertheless, it appears to me in all of the circumstances, and particularly where this is amateur sport, in the plaintiff's circumstances, the issue of inconvenience is a particularly personal one to him, although no doubt his side will suffer if he is not there. The observations of Fullagar J in the cases of Manlio v Mutimer and Ors[1] and Beach J in Haines v Couzins[2] are relevant to the matter before me. It seems to me that, in terms of balance of convenience, the convenience does not fall the plaintiff's way. I do not consider that a real need has been shown of the kind which would justify the interference of the Supreme Court in a matter such as that before it. Of some relevance in this regard is the fact that the plaintiff participated in the tribunal process of the association but now seeks to overturn the decision being dissatisfied with the result.

49. Accordingly, and in addition weighing into the balance the discretionary factor of the delay which has taken place since mid-last week, and even allowing for the explanation given from the Bar table that the plaintiff does not have the financial support of his club in this application, it appears to me that the appropriate order is that the application be dismissed.

52. The plaintiff submits that the costs of this application should be reserved to the final hearing of the matter on the basis that Mr Nolan has conceded that there is a triable issue. Furthermore, it is submitted on the basis that to a substantial degree the fact that he was provided with a copy of the rules of the association which did not contain reference to the amendments of 5 March 2003 which authorised the process of investigation and laying of charges adopted by the tribunal led him to believe there was a strong basis to his claim that the tribunal acted without power. Mr Nolan of Counsel submits that the costs of this application should be paid by the plaintiff who at all times, he submits, taking into account the state of the authorities in relation to domestic tribunal decisions was likely to lose the application on the balance of convenience issues irrespective of any other issue. I have considered both submissions and consider that a proper exercise of my discretion is that costs should follow the event in all the circumstances. The plaintiff has failed to demonstrate that he should have injunctive relief. Even though the failure of the defendant to provide a set of up to date rules of the association may have, to some extent, encouraged the plaintiff to make this application he nevertheless took his chances in bringing the application and should accept responsibility for its costs.

[2] [2000] VSC 345