Victorian Civil and Administrative Tribunal|2003-07-25|Before: Stuart Morris J

Smith v Football Victoria Ltd [2003] VCAT 936 (25 July 2003)

Anti-Discrimination; Application for Interim Orders; human rights; exclusion of females above 12 years of age from participating in Australian football competitions; application of ss 6, 7, 8, 64, 65, 66, Equal Opportunity Act 1995; application of general principles applying to interlocutory relief under s 123, Victorian Civil and Administrative Act 1998.

APPLICANTS: Susan Smith (on behalf of Emily Stayner)

Medium Neutral Citation [2003] VCAT 936

For Applicants: Ms Felicity Hampel SC and Ms Jennifer Firkin of counsel

Note: These written reasons consist of a revised transcription of reasons given orally at the conclusion of the hearing.

1 It used to be somewhat of a tradition that as the football finals approached the Practice Court of the Supreme Court became inundated with what became known as "football cases". Typically a star AFL player would seek an injunction to stay the operation of a tribunal decision where the player might have been suspended for striking or kicking or the like. The establishment of the AFL Appeals Tribunal, chaired by Mr O'Callaghan QC, seems to have eliminated football cases from the Supreme Court; but now we have three "football cases", with the finals looming, before the tribunal. These cases do bear some similarities to the famous cases of yesteryear involving Williams or Dunkley or Foschini, but there is a difference. Those cases were about pushing or striking or money. These cases are about a more fundamental value. These cases are about human rights; and, in particular, whether three able bodied teenagers can be excluded from playing football, just because they are girls.

2 It is apparent that this is an issue upon which many members of society will hold different opinions. But the decision which must be made today cannot be based upon my opinion as to whether it is right or wrong that 15 year old girls play football with boys. Rather, it must be based upon the law and the application of legal principles.

3 The present applications do not seek any final decisions. Today's cases are not about determining whether a rule preventing teenage girls from playing football with boys is unlawful. That issue will need to be determined, probably after the end of the football season, in a deliberative fashion, after hearing detailed evidence and comprehensive submissions and after giving the tribunal time to carefully consider that evidence and those submissions. Rather today's case is about what would be fair and just as a holding position pending the final determination of the matter.

4 These applications arise from complaints that have been made to the Equal Opportunity Commission by three girls. The first complainant is Helen Taylor who is currently 14 years of age. She plays for the Oakleigh Dragons Junior Football Club and has played for that club for five years. She has played for a total of 57 games. She has told the tribunal that she frequently plays in the key position of ruck. The second complainant is Penny Cula-Reid. She is 15 years of age. She plays for the Murrumbeena Junior Football Club and has played at total of 137 games over nine years. She plays on the wing and in the forward line. The third complainant is Emily Stanyer. She is 15 years of age. She has played 83 games with the Hampton Rovers Amateur Football Club and has been playing for about ten years. She plays in the position of full-back. Each of the girls is the only girl in her team, which is otherwise made up of boys. Each girl commenced the current season in the belief that she was entitled to play and played with the team oblivious to any rule that might have excluded her from playing.

5 Apparently in late May 2003 an officer with the Moorabbin Saints Junior Football League had a meeting with representatives of Football Victoria and, in the course of discussing Football Victoria's risk management strategy, was reminded of a Football Victoria rule relating to female participation in football. As a result of that reminder officers of the league checked its register of players and discovered that three girls, being the three complainants, who were all over the age of 12 years, were registered as players and played regularly. The outcome of this discovery was that each girl was told in early June this year that she could no longer play. Although the application is now made in late July the delay is explained by reason of the fact that it took some time for the girls to obtain legal assistance in order to be advised of their rights, pursue a complaint with the Equal Opportunity Commission and then to pursue it further before this tribunal.

6 The rule in question apparently has been in place for some years and is entitled The Female Participation Regulation. The rule basically states that females aged under 12 years of age cannot be excluded from participating in Australian football competitions conducted by Football Victoria member bodies; but that as girls aged 12 years and over can be excluded, they will be excluded, save for the option of seeking Football Victoria board approval to allow girls who reach 12 years of age during a given playing season to complete playing for the remainder of that season only. The title of the rule was criticised by counsel for the complainants, but it is unnecessary for me to comment at this stage as to whether that criticism was justified.

7 Traditionally, courts and tribunals have approached the question of interlocutory injunctions, or interim injunctions, by considering first, whether there is a serious question to be tried; and, second, considering what, if any, interlocutory relief would be appropriate having regard to the balance of convenience. Sometimes these two tests are merged into one, namely what orders should be made so as to minimise the risk of injustice. This combined test still involves consideration of the strength of a complainant's case, but does so in the context of all the circumstances concerning the grant of interlocutory relief. Of course, even using the combined test, if the strength of the claim is extremely weak, then, notwithstanding very strong factors otherwise pointing in favour of the grant of an injunction, it would not be appropriate to grant relief.

8 There was some discussion during argument as to the powers available to the tribunal to grant an interlocutory injunction. There is a power in section 131 of the Equal Opportunity Act 1995. This power is a power that pre-dates the establishment of the Victorian Civil and Administrative Tribunal. The power is supported by criteria to which the tribunal must have regard, including a criterion as to whether or not the complainant has established a prima facie case with respect to the complaint. Importantly section 131(6), which was added at the time of the enactment of this tribunal, states that nothing in section 131 affects or takes away from the tribunal's power under section 123 of the Victorian Civil and Administrative Tribunal Act 1998 to make orders of an interim nature. In my view section 123 provides a better basis for the making of any order, should one be appropriate, not merely because it adopts language that is more traditionally used in relation to interlocutory relief, and hence one can call in aid general principles that have been developed by the courts and tribunals over the years, but also because it is not subject to section 131(4) which would limit the operation of any interim order for 28 days, unless it was extended by the tribunal. If an injunction is to be granted in this case the appropriate time for an injunction is not 28 days; rather it is until the case is heard and determined. Common sense would dictate that that time would be in the order of six weeks to three months from now; that is after the end of the football season, but well before the start of next football season.

9 Mr Niall, who appeared for the football associations, acknowledged that the principles upon which section 131 of the Equal Opportunity Act are based are fundamentally the same as the general principles that apply in relation to interlocutory relief generally.

10 I return now to some of the principles that are important in considering whether or not to grant interlocutory relief. In my opinion the most helpful guide in this regard is that given by Lord Justice Hoffman in Films Rover International Limited v Cannon Film Sales Limited (1987) 1 WLR 670, at 680, where His Lordship said, and I quote,

The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the Court may make the 'wrong' decision in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial. A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been 'wrong' in the sense I have described.

That particular passage was adopted by the Court of Appeal of the Supreme Court in Optus Networks Pty Ltd v City of Boroondara [1997] 2 VR 318 at page 335.

11 In this case the possibility of injustice could arise in two situations. The first is if the girls are prevented from playing for the balance of the season and then they succeed in establishing the case that they have been unlawfully discriminated against. In such a situation the girls would have won their case, but would have been denied the fruits of their victory, at least in relation to this season. In particular, they would have been denied the fruits of playing during an exciting and thrilling time of the year - the finals. On the other hand, injustice could arise if the girls are allowed to play for the balance of the season and then fail in their attempt to have the rule, preventing teenage girls from playing with boys, held as unlawful discrimination. In this instance the football associations could claim that they have been forced to allow girls to play notwithstanding that they have lawfully adopted a rule preventing girls from playing. Where does the balance lie? Which possible injustice would be a greater injustice in all the circumstances?

12 Stating the question this way the answer is obvious, unless it can be shown that the complainants' case is hopeless. This is because if the girls are right in their claim that they have been unlawfully discriminated against, then they would suffer a substantial injustice if they are prevented from playing out the season, particularly playing in the finals. Football careers are often short, but the memories of finals appearances, especially finals victories, remain with one for life. There is a famous football expression which applies here. It is this. "You are a long time retired." On the other hand, if the girls are permitted to play out the season and the football associations ultimately show that they are acting lawfully in preventing teenage girls from playing, the extent of any injustice could only be described as minimal.

13 The striking thing about this case is that each of the three girls are veterans of junior football and, more importantly, have regularly played for their clubs during the first half of the football season. Footballers, even, no doubt, teenage female footballers, naturally think of their participation in the game in terms of seasons. "Are you playing this season?" "I think I'll give it away after the end of next season." This is the sort of talk that commonly occurs in football circles. Another football expression which is often used to describe an unfair decision is that "I was cut off at the knees mid-season". In the present context, it does seem to me that the making of the decision preventing these girls from finishing the season is unfair.

14 Because today's decision is only about the appropriate holding position, pending the determination of the proceedings, it is undesirable to make any detailed comment on the submissions made by counsel as to the substantive issue of whether or not section 66(1) of the Equal Opportunity Act permits teenage girls to be excluded from participating in junior football. On the material before me it does appear that there is a substantial case which could lead to an ultimate conclusion that a football association may exclude teenage girls from participating in Australian football. But it cannot be said that the material before me today demonstrates that such a case is so watertight or overwhelming that the girls' complaints that they have been unlawfully discriminated against is hopeless or is unlikely to proceed.

15 There are several matters which are relevant. First, there is strong authority that it is the respondent that bears the onus of demonstrating that the exception in section 66(1) applies. In Re Hall and Victorian Amateur Football Association (1999) 15 VAR 183, at 185, a division of the tribunal chaired by my predecessor, Justice Kellam, stated:

It is common ground that the onus of proving that s 80(1) applies to the respondent's conduct in this case is on the respondent (see also Explanatory Memorandum to cl 12 of the Equal Opportunity Bill 1995 (Vic); Ellis v Mount Scopus Memorial College (1996) EOC 92-824; Colyer v State of Victoria [1998] 3 VR 759; (1997) 12 VAR 175).

16 Further, there is authority that the meaning of section 66(1) is that it only permits the exclusion of one sex from a competitive sporting activity where the relative strength, stamina or physique of each sex is relevant: see Robertson v Australian Ice Hockey Federation (Anti-Discrimination Tribunal, unreported, per P McKenzie, decision dated 26.3.98). I do not propose to comment as to whether or not that interpretation of section 66 is correct. However it is obvious, by reason of the fact that an experienced member of the tribunal has formed that view, that that proposition is at least arguable.

17 Further, although section 66(1) might be thought to be expressed in plain language, it is nonetheless a provision that invites argument.

18 Thus, I am inclined to the view that the complainants' case, although not strong, certainly can be regarded as a prima facie case in the circumstances.

19 But, ultimately, the consideration which leads me to conclude that the girls should be able to play out the season is that there are very strong considerations in terms of balance of convenience that point in that direction.

20 Wisdom and experience suggests that no more should be said about the likely ultimate outcome. Much will depend upon more detailed evidence than has been available today, the testing of that evidence, the submissions of the parties and full consideration of the issues.

21 In the circumstances I propose to order that Football Victoria Limited and the Moorabbin Saints Junior Football League be restrained from preventing Helen Taylor, Penny Cula-Reid and Emily Stanyer from participating in competition until a final determination is made in each proceeding. I will not require any of the applicants, who are parents of the three girls, to give an undertaking as to damages. I am conscious of the general practice that such an undertaking is required as a necessary condition of obtaining an interlocutory or interim injunction: see Optus Networks Pty Ltd v City of Boroondara. But, as that case demonstrates, the general practice does admit exceptional circumstances. The present circumstances are exceptional, having regard to the nature of the interim relief being granted, the comparative circumstances of the parties and the nature of the issues involved, which are essentially concerned with human rights and not money or property. I have taken the fact that no undertakings as to damages are to be given into account in determining where the balance of convenience lies. I am satisfied that, notwithstanding that no undertaking as to damages is being required or given, the appropriate holding position is to allow the girls to play out the season.

22 It is appropriate that the final hearing of these matters occurs after the completion of the football season when the parties have time to devote to this important question, free of the frenzy of finals football. I will hear the parties as to the appropriate time for the final hearing. I also propose to make directions to facilitate the orderly final hearing of the proceeding and, in case the complainants do not persist with the proceedings, I will give liberty to apply.

Opportunity Act 1995

Victorian Civil and Administrative Act 1998

Smith v Football Victoria Ltd [2003] VCAT 936

At a glance

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Judgment (31 paragraphs)

Smith v Football Victoria Ltd [2003] VCAT 936 (25 July 2003)

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Legislation Cited (2)