Webb v Confederation of Australian Motor Sport Limited

See also Calvin v Carr [1979] 1 NSWLR 1 at 15, Zusman v Royal Western Australian Bowling Association (Inc) [1999] WASC 86, Re Maggacis [1994] 1 Qd R 59 at 67, Smith v South Australian Hockey Association Inc (1988) 48 SASR 263 at 264. This is so particularly where any internal processes have not been exhausted, Croatia Sydney Soccer Football Club Limited v Soccer Australia Ltd (unreported - Einstein J - 23 September 1997) at p 46. 20 In White v Kuzych [1951] AC 585 a member of a trade union who had agreed to be bound by the Rules thereof, one of which was that he would not become a party to any legal proceedings against the union until he had exhausted all remedies allowed to him by such Rules, was expelled from the union and commenced proceedings to set the expulsion aside, but the Privy Council held he was not entitled to maintain the proceedings because he had not exhausted his rights of appeal under the union Rules. In delivering the advice of the Board, Viscount Simon said at 601: "Their Lordships are therefore constrained to hold that the conclusion reached by the general committee was subject to appeal. And they must respectfully repudiate both the correctness and the relevance of the view that it would have been useless for the respondent to appeal because the federation would be sure to decide against him. They see no reason whey the federation, if called on to deal with the appeal, should be assumed to be incapable of giving its honest attention to a complaint of unfairness or of undue severity, and of endeavouring to arrive at the right final decision. At any rate, this is the appeal which the respondent was bound by his contract to pursue before he could issue his writ. He has not done so, and on this ground their Lordships will humbly advise His Majesty that the appeal must be allowed." 21 In a number of cases relied on by the plaintiff, although there was provision in the Rules for an appeal process, there was no requirement that such internal appeal processes first be exhausted, e.g. Daly v Gallagher [1925] St R Qd 1, Lee v Showmen's Guild of Great Britain [1952] 2 QB 329, Bonsor v Musicians' Union [1954] 1 Ch 479, and they are distinguishable from the present case. 22 In Leigh v National Union of Railwaymen [1970] 1 Ch 326 at 334, Goff J said: "The first (proposition) is that even where there is an express provision in the rules that the plaintiff must first exhaust his domestic remedies, the Court is not absolutely bound by that because its jurisdiction cannot be ousted, but the plaintiff will have to show cause why it should interfere with the contractual position. This is consonant with the rule in the case of a submission to arbitration where the Court always has a discretion whether to stay an action but cause must be shown why it should not. The second proposition is largely converse of the first, namely that in the absence of such a provision the Court can readily, or at all events more readily, grant relief without prior recourse to the domestic remedies, but may require the plaintiff to resort first to those remedies." 23 It can therefore be seen that not only will the courts generally hold parties to agreements between them to resolve their disputes outside the court system unless there is good reason to do otherwise, but it is also reluctant to interfere in the proceedings of domestic tribunals, particularly sporting tribunals, where there are persons with special expertise available to determine the dispute, subject once again to the overriding proviso that the courts will interfere if it is necessary to do justice between the parties. 24 In the present case, Rules by which the plaintiff has agreed to be bound do not seek to oust the jurisdiction of the Court but merely require, as a condition precedent to such proceedings, that the party seeking relief first exhausts his or her remedies in the domestic tribunals provided. 25 Notwithstanding these considerations, the plaintiff contends that the stay of proceedings should be refused because the remedies available in AMSAC are futile and illusory, and as the plaintiff must ultimately succeed, he should be permitted to pursue his remedies in the Court forthwith. 26 He submits that the charge as laid by the Stewards was invalid and ineffective because it failed to identify with precision the nature of the charge, was apparently amended without notice, and was in any event a charge not known under the NCR. He also submits that at the hearing before the Stewards he was denied natural justice because he was not given adequate notice of the hearing, was denied the opportunity to call witnesses he wished to call, and having determined guilt, the Stewards afforded him no opportunity to make submissions as to penalty. He claims he was also denied procedural fairness by the Stewards' failure to give reasons for their decision. 27 He further submits that the proceedings before NAT were vitiated by the continued invalidity of the charge itself and that he was denied procedural fairness by NAT in that the videotape of the subject competition race was shown in the hearing room before the hearing commenced (although it is not clear whether it is claimed that the members of NAT saw it), that the reasons of NAT for its decision were inadequate, and that such reasons as were given were perverse. For reasons which appear hereunder, it is not appropriate that I express any views on the validity or otherwise of these submissions. 28 Finally he submits that an appeal to AMSAC would be futile and illusory for the following reasons: 1. Any appeal is subject to leave to appeal, which is in the absolute discretion of the Chairman of AMSAC. 2. It is confined to the grounds specified in NCR 225: Appendix G, cl 10 and the form at p 15.18 of the manual (Ex. 1). 3. Accordingly, if the Chairman gives leave, AMSAC must proceed to determine the issues before it on the evidence taken in the tribunal below, yet there is no transcript of the evidence either before the Stewards or NAT. 4. The deficiencies before the Stewards cannot be overcome by remitting the matter back to them as AMSAC can only remit matters back to the Stewards where there was a hearing as to a protest (and here there was not) as distinct from a charge: Appendix G, cl 7(i)(a) and (vii), and 5. The deficiencies before NAT cannot be overcome by remitting the matter back to that body because the proceedings before it were confined to the narrow legal grounds set out in NCR 225 upon the evidence taken before the Stewards as to which there is no transcript. 29 I have referred above to some of the provisions of Appendix G dealing with AMSAC, and I was informed from the Bar Table that most, if not all, of the current members of AMSAC are qualified and/or practising lawyers. In the event of any error of law in their determination of the appeal, the plaintiff will still have the right to approach the Court: Lee v Showmen's Guild of Great Britain, supra at 342 per Denning LJ. 30 One of the plaintiff's main complaints seems to be that the NCR prevent any fresh evidence being led in NAT or AMSAC; and that he is restricted to the evidence led before the Stewards. However, there is a degree of ambiguity in the various Rules and other provisions, and the fact is that in NAT, the plaintiff was allowed to adduce fresh evidence, namely that of Mr Newton, apparently without any argument or dispute, suggesting that it may be the general practice in such tribunals. If the plaintiff has been allowed to adduce fresh evidence before NAT, and have it taken into consideration, I fail to see how he can then complain that his right of appeal to NAT was illusory and futile because that body had no power to receive fresh evidence. It is not known at this stage whether he will be permitted to adduce fresh evidence (if he wishes) in AMSAC. 31 In my view AMSAC has ample power to deal with all of the objections and grounds of complaint sought to be relied on by the plaintiff and is competent to do so. In particular it is open to AMSAC to decide on the validity of the charge as framed, whether the plaintiff was denied procedural fairness at the Stewards' inquiry or on the appeal to NAT, and it appears that it has power to receive fresh evidence as to the merits of the matters complained of. 32 Even if it does not receive fresh evidence it has power to determine whether the decision was against the weight of evidence, and I assume for present purposes that in this regard it must take into account the evidence given by Mr Newton before NAT. In this regard I was informed from the Bar Table that although there is no transcript of the evidence before NAT there are notes of such evidence. 33 If AMSAC finds that there has been a breach of the Rules or of the law relating to domestic tribunals, or that on the evidence a breach of NCR 183(x) has not been made out, it may waive the penalty (NCR 231) and amend the results of the race (Appendix G, cl 13(xi)). Having regard to the nature of the appeal I consider that AMSAC would also have implied power to set aside the Stewards' finding and the endorsement on the applicant's licence. In these circumstances it cannot be said that the right of appeal to AMSAC is futile or illusory. 34 Another ground on which it was submitted that the right was futile or illusory was that any right of appeal was subject to leave to appeal being obtained from the Chairman in his absolute discretion. This creates no problem for the plaintiff because NCR 57 does not require the plaintiff to have an appeal heard by AMSAC before commencing any proceedings, but only that he first exhaust all remedies allowed by the Constitution and the NCR; so that if the plaintiff applied to the Chairman for leave to appeal and such leave was refused, the plaintiff would have exhausted all his remedies and there would no longer be any restrictions to him proceeding in the Court for relief. 35 There is another reason, in my view, why the stay should be granted. NCR 57 not only contains an agreement not to become a party to any proceedings against CAMS etc until all remedies under the Constitution and NCR of CAMS have been exhausted, but expressly provides that it may be pleaded as an absolute bar to proceedings against CAMS. Accordingly it would appear that if the stay were not granted the defendant would still be able to plead NCR 57 as a complete answer to the plaintiff's claim, no matter what defects in the proceedings of the Stewards or of NAT were established: cf White v Kuzych, above. 36 These proceedings brought by the plaintiff are based on his contractual rights as a member of an affiliate of CAMS. His only rights are those which arise under the Constitution and the NCR. His cause of action is therefore in contract, and AMSAC as the other party to the contract is entitled to rely on any other terms of the contract, one of which is NCR 57. 37 For these reasons I make the orders sought in paragraph 1 of the Notice of Motion and I order the plaintiff to pay the defendant's costs of the Motion. **********

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Cases Cited (7)

Cited By (1)