Supreme Court of WA|1999-06-04|Before: Mr P, Astbury J, Kechnie J

Zusman v Royal Western Australian Bowling Association (Inc) [1999] WASC 86 (4 June 1999)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ZUSMAN -v- ROYAL WESTERN AUSTRALIAN BOWLING ASSOCIATION (INC) [1999] WASC 86

Interlocutory injunction - Incorporated body - Whether contract between members and body - Whether implied terms of fairness - Serious question to be tried - Domestic arrangements within sporting body - Balance of convenience

Castlemaine Tooheys Ltd v State of South Australia [1986] HCA 58; (1986) 161 CLR 148

Dickason v Edwards [1910] HCA 7; (1910) 10 CLR 243

Enderby Town Football Club Ltd v Football Association Ltd [1971] Ch 591

Finnegan v New Zealand Rugby Football Union Inc [1985] NZHC 102; [1985] 2 NZLR 159

Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234

Thorburn v All Nations Club (1975) 1 ACLR 127

2 The plaintiff is a keen bowler who in 1998 was selected to the State Lawn Bowling Squad. He was selected as a member of the team for approximately five occasions. In April 1999 the plaintiff was hoping for selection in the State team to play in the National Round Robin Series in Darwin commencing on 16 June 1999. He was not selected. The team has been chosen and will in due course compete on behalf of their State.

3 From what he has learned from one of the selectors, the plaintiff believes he has been treated unjustly; he wants a fair go. The Association says that he has been treated fairly and even if he has not, there is no obligation to be fair to the plaintiff or indeed to other members of the Association hopeful for selection.

4 So the plaintiff comes to this Court for an interlocutory injunction. He wants the Court to restrain the Association from proceeding in the National Round Robin Series. Many people will be affected, sponsorship will be threatened, the Association will incur loss. Is the plaintiff entitled to such an order? Is the plaintiff entitled to a fair go?

5 To answer these questions it will be necessary to examine the plaintiff's claims in the light of the settled principles as to the grant of interlocutory injunctions.

6 The plaintiff: The plaintiff is a company director. He has been a financial member of the Cockburn Bowling & Recreation Club Incorporated for 13 years. It appears, and I infer, that he pays a capitation fee to his club which is passed on to the defendant.

7 The defendant: The defendant is an incorporated body with a constitution and rules. I shall hereafter refer to it simply as the Association. The fact of incorporation is important. The defendant submitted in reliance on Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358 that the rules of the Association for the regulation of its affairs and the conduct of its affairs are regarded as of domestic concern. However, Cameron v Hogan concerned an unincorporated body. There is a long line of cases which hold that an incorporated body stands in a contractual relationship with its members. In Hickman v Kent or Romney Marsh Sheep Breeders' Association [1915] 1 Ch 881 Astbury J, after an extensive review of authority for and against the proposition concluded at 900:

"Articles regulating the rights and obligations of the members generally as such do create rights and obligations between them and the company respectively."

"General articles dealing with rights of members as such should be treated as a statutory agreement between them and the company as well as between themselves inter se."

8 In Nurses Memorial Centre of SA Inc v Beaumont [1987] 44 SASR 454 at 466 von Doussa J held that the Association being an incorporated body is a legal entity distinct from its members. Every person who is a member of the Association stands in a contractual relationship with it.

9 In Ryan v Kings Cross RSL Club Ltd [1972] 2 NSWLR 79 and McNab v The Auburn Soccer Sports Club Ltd [1975] 1 NSWLR 54 the New South Wales Court affirmed the principle; so also did the Supreme Court of the Australian Capital Territory in Dixon v the Australian Society of Accountants (1988) 95 FLR 231.

10 I turn to consider the constitution of the Association. The Association is composed of the bowling clubs existing in the State which are affiliated and those that may be affiliated. Membership is defined. It is defined under r 1B(xx) as follows:

"(xx) 'Member' - A male person from whom the Association, through his club, collects capitation fees, including any Junior person under the age of 18 years as at October 31st or a non active life member of a club."

11 It appears clear therefore that the plaintiff is a member of the Association.

12 The Association is governed under r 9 by a conference.

13 Members of the Association may be expelled or suspended by r 17. It is clear that the members referred to are the individual members of the Association.

14 Despite the lack of direct voting power, in my opinion the plaintiff is a contracted member of the Association, bound to it, and it to him, by contract. He owes obligations to it. In turn it, and its other members, owe obligations to him. The fact that the governance of the organisation is through the clubs, in my opinion, does not affect the position of his membership and the contractual arrangement.

15 The plaintiff contends that there is to be implied into the contract an obligation of fairness in the Association's selection processes. To examine this question, it is first necessary to look at the management structure and the selection committee.

16 The constitution provides for Executive membership and responsibilities by r 5. There are a number of office bearers and a number of directors who are responsible for different aspects of the work of the Association.

17 The powers of the Executive committee are set out in r 7B(i) as follows:

"The management of the Association shall be vested in an Executive comprising the President, Deputy President, Vice President, Treasurer and Directors as elected ..."

"(ii) The Executive shall be entrusted with the following powers and duties, in addition to any other powers conferred on it by these rules and subject to the right of the Conference to vary the same from time to time:-

(d) It shall deal with the correspondence of the Association.

(e) It shall transact the business and conduct the affairs of the Association: provided that if any matter arises which the Executive considers should be dealt with by the Council, it shall be referred to the Council.

(f) It shall arrange for the reception of all Interstate, International and Inter-Association parties.

(g) It shall have power to form sub-committees and co-opt thereto.

(h) It shall have power to recommend changes in the Constitution, Rules, By-Laws and Regulations of the Association.

(i) It shall receive and deal with the reports of all Committees and Sub-Committees.

(j) It shall approve the Association bowls programme.

(k) It shall ensure as far as practicable that the Constitution, Rules, By-Laws and Regulations are adhered to by all Clubs.

(l) It shall be responsible for the interpretation of these Rules, By-Laws and Regulations.

(m) By questionnaire of postal vote, canvass all affiliated clubs to assess proposed changes affecting any aspect of the management or playing of lawn bowls."

18 Committees are dealt with by r 9. Various committees are established and their methods of election are set out. The Association selectors are dealt with somewhat differently. That is set out in r 10 and reads as follows:

"Shall be elected in accordance with r 12A(vii). They shall work within the following guidelines:

A To be a Committee of three (3) whose duties shall be to arrange teams and/or sides to represent the Association;

B They will elect their own Chairman from any member of the Executive who may be among their numbers, otherwise the Executive will appoint one of its members as a nonvoting Chairman."

19 Their election, as I have said, is different from other committees. Unlike other nominees for committees, which are open to every capitated member of an affiliated club, Association selectors are nominated as follows:-

(a) Nominations for Association selectors are open to every member of an affiliated club, by his club, to the Executive who will appoint by ballot."

Rule 12 goes on to provide in relation to committees at 1C(iiv)(i):

"Selectors - At the close of nominations the names of the nominees will be made public. Members of the Executive who have been nominated for Selector will not be eligible to vote. With the President as the Returning Officer, the eligible members of the Executive will proceed to vote for three names in preferential order, but each vote will have the unit value of one. If there is an equality of votes for the final position the preferences of all candidates involved in the equality will be analysed at their face value of 1, 2, 3 and the candidate with the lowest number appointed. If equality still persists the President will exercise a casting vote."

20 This, as I say, is a different and arguably more rigorous method of selection of selectors.

The involvement of the Executive in the selection process

21 The Association argues that although the Executive has not participated in the actual selection of the players selected in the State team, the rules of the Association permit the Executive to be involved in the actual selection of the players if it so wishes. The Executive is not bound to accept the recommendations of the State Selection Committee but is entitled to and empowered pursuant to r 7B and r 10 to make alterations to the selected team and to give directions to the Selection Committee.

22 The Association further argues that pursuant to r 5A(i)(c) the President is an ex officio member of the selection committee and pursuant to r 12A(vii) and r 12B(viii) the Executive appoints the Selection Committee of which the Chairman must be a member of the Executive.

23 This is supported by the affidavit of Mr Collings who has been the Executive Officer of the Association for approximately 8 years. At par 10 and 11 he says:

"10 It is has generally been my experience while the executive officer of the Association that the Executive does not play any direct role in the actual selection of members of the State team or representative teams of the Association. However the Executive is involved in the developing of selection criteria, policy and guidelines. The role of the chairman of the committee who is a member of the executive, either as a voting or non-voting chairman is to ensure that the selection committee takes note of and follows policies and any directions issued by the Executive. For example, this year the Executive issued guidelines for the election of State selectors, for State selector's duties and selection criteria to be used for selecting representative sides. It is the responsibility of the chairman of the selection committee to ensure the guidelines and selection criteria are adhered to. Annexed hereto and marked with the letters 'AWCO1' is a copy of the Bowls WA State Selection policy statement.

11 The selection committee met on 28 April 1999 to select a side for the National Championships to be held in Darwin in June 1999. A side comprising 16 members was selected by the committee and forwarded to the Executive for its endorsement and approval. The Executive met on 3 May 1999 and formally endorsed the side selected by the selection committee."

24 I do not accept the Association's submission. In my opinion, and for good reason, the Association has treated the selection process differently from the balance of its organisation. There is no express power in the constitution for the Executive to make selections.

25 The express power by r 10A is given to the selectors. The intention of the Association as gleaned from its constitution is to leave the sole responsibility for selection in the hands of the selectors. The fact that the Chair is to be a member of the Executive, whether voting or non-voting, with reporting responsibilities does not detract from this proposition. It may be appropriate for the Executive to be kept informed as to the committee's work. This does not mean, however, that it can make decisions. The Selection Committee is not a subcommittee with delegated powers. It has a distinct constitutional role. The Executive is charged with the management of the Association and is given appropriate powers. Selection is not management.

26 The policy statement produced by the Executive confirms this interpretation:

The following guidelines / duties / selection criteria was approved by the Bowls WA Executive on 13 July 1998.

When considering the nominations for the position of the State Selectors, the Executive will consider each nominee against the following areas:

1. Personal attributes of respectability, good reputation, leadership skills, discretion and acceptance of commitment.

2. Relevant experience in selection at club or higher level.

You have been elected by the RWABA Executive, and you are expected to uphold the good image of Bowls in Western Australia, with dignity, and respect for the position and organisation. You are now required to sign a statement of confidentiality and standard of behaviour.

1. From the list of current State players, check the individual performances in the State Side and the various State Metropolitan and Country events.

2. Ensure that you are familiar with the performance of other possible state players in past season, including State Events, Australian Sides Series, Super League, metropolitan v Country, Country Week, Master events and prestigious carnivals.

3. Attend all Committee Meetings called by the Chairman

4. Attend all state trials and practice sessions which may be organised by your committee.

5. Assist the Chairman (if an elected Selector) and fellow selectors in selecting the best side from the players available.

6. Make no comment or supply information to individuals, clubs, organisation, press, radio, or television media regarding committee meeting discussion on selection or performance of the State Side.

DUTIES OF THE CHAIRMAN OF THE STATE SELECTORS COMMITTEE

1. Shall chair and convene all necessary committee meetings, keeping minutes of these meetings.

2. Ensure all state selectors have prior to meetings, the agenda, necessary documentation and information which will allow them to participate in the general discussion in the selection of the State Side

3. At least seven days prior to the first meeting give to the Selectors a report of last year's players, which he has received, from the RWABA Executive Officer.

4. At the completion of the Australian Sides Series, present a strictly confidential written report to the Executive Officer on the side's performance and image portrayed, paying particular attention to the individual bowling ability, consistency, temperament, behaviour, attitude, compatibility and team spirit.

5. At the completion of the state events and the pennant season, but prior to the election of the selectors, provide a list of players to the Executive Officer. This list should contain the names of the current state squad, which will detail their success in the recent Australian Sides Series and State events

One of the highest rewards any player can achieve is to be selected to represent their state, and the following guidelines will be used in selecting players:

1. Consideration will be given to bowling ability, technique, concentration, consistency, temperament, behaviour, ambition and team spirit.

2. Achievements at pennant level, State events, Metropolitan and Country events and Australian & International events, Masters events and prestigious carnivals.

3. Players personal image, compatibility as well as what he portrays as a member of a pennant side or state side.

4. When a player is selected to the State Side he is required to complete and sign the 'Availability for selection and indemnity form'."

27 In my opinion this document strongly suggests that the selection is entirely entrusted to the committee and not that that committee is simply recommending to the Executive a selection process.

28 The issue is whether there is to be implied into the agreement between the members and the Association a term that the selectors would act fairly. The nature of an implied term is discussed in many cases and in particular I make reference to Codelfa Construction v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337. In that case at 346 Mason J says:

"The implication of a term is to be compared, and at the same time contrasted, with rectification of the contract. In each case the problem is caused by a deficiency in the expression of the consensual agreement. A term which should have been included has been omitted. The difference is that with rectification the term which has been omitted and should have been included was actually agreed upon; with implication the term is one which it is presumed that the parties would have agreed upon had they turned their minds to it - it is not a term that they have actually agreed upon. Thus, in the case of the implied term the deficiency in the expression of the consensual agreement is caused by the failure of the parties to direct their minds to a particular eventuality and to make explicit provision for it. Rectification ensures that the contract gives effect to the parties' actual intention; the implication of a term is designed to give effect to the parties' presumed intention.

For obvious reasons the courts are slow to imply a term. In many cases, what the parties have actually agreed upon represents the totality of their willingness to agree; each may be prepared to take his chance in relation to an eventuality for which no provision is made. The more detailed and comprehensive the contract the less ground there is for supposing that the parties have failed to address their minds to the question at issue. And then there is the difficulty of identifying with any degree of certainty the term which the parties would have settled upon had they considered the question.

Accordingly, the courts have been at pains to emphasize that it is not enough that it is reasonable to imply a term; it must be necessary to do so to give business efficacy to the contract."

29 His Honour then cites a series of cases concluding with the oft quoted expression of McKinnon LJ in Shirlaw v Southern Foundries Ltd [1939] 2 KB 206 at 227 that prima facie that which in any contract is left to be implied need not be expressed is something so obvious that it goes without them saying.

30 In my opinion there is a serious question to be tried as to whether there is to be implied ad hoc into the contract between the plaintiff and the Association a condition that the selection process would be fair. Hughes Aircraft Systems International v Air Services Australia [1997] FCA 558; (1997) 146 ALR 1 is an example where the implication of a term of fairness was incorporated into the contract.

31 The Association argues that no such implication can arise. Members can choose not to join or to walk away from the Association. Alternatively, they can seek election and change from within.

32 That, with respect, misses the point. A term may be implied into a contract if it is so obvious that anybody if asked would have said in effect, "That goes without saying."

33 Selection for the State team is no doubt the desire of all competitive bowlers. If they were to be told that the selection process does not have to be fair and it may consider anything the selectors wish, including their own prejudices, I suspect that the response would be rude and resounding. In my view the plaintiff has established an arguable case that there is such a term of fairness to be implied.

34 That is not to say that fairness is to be equated with natural justice in the selection process. There are many reasons why this is so. The organisation is a voluntary one. Selection is necessarily an imprecise art which would depend on weighing of factors which the selectors with their experience will make. The courts cannot obtrude into this area to any great degree. However, a process may be unfair if irrelevant considerations are taken into account.

35 Mr Sardelic is or was a selector. I am unsure of the power of the Executive to dismiss him but do not need to consider that aspect further. He deposes as to what happened in an affidavit dated 24 May 1999:

"8. To select a side for the up-coming Darwin Series, the Selectors and Chairman met on Wednesday, 28 April 1999.

9. The side was to consist of four teams. Each team was to consist of a leader, second, third and skipper.

10. In order to select the side we arranged for Mal Dempsey to write all the names on a whiteboard.

11. It was then open for any of the selectors to put forward names which were then written on the whiteboard.

12. We decided to select all the leaders, followed by all the seconds and then the thirds and ultimately the skippers.

13. To the best of my recollection I suggested Mike Zusman be included as a leader.

14. Mal Dempsey commented that he did not believe Mike Zusman should be included in the side.

15. Rod Wishart responded by saying he thought Mike Zusman should be included in the side and agreed with me that he ought to be.

16. Accordingly, Mike Zusman's name was written on the whiteboard as one of the leaders.

17. Each of the leaders for the four teams had been chosen together with all of the seconds.

18. We then started to discuss who should be selected as the thirds and the skippers for each team.

20. Tony O'Meehan advised the selectors that as a result of some poor behaviour displayed by Marco Krajancic during the most recent series, he did not believe the Executive would accept Marco Krajancic as a member of the side.

21. At around that time Tony O'Meehan mentioned Mike Zusman's selection in the team and words to the effect that the Executive may not accept him being included in the side.

22. He went on to say words to the effect that if the Executive feels the selectors have been biased then the selectors could be sacked.

23. I said to Tony O'Meehan if the Executive wanted to interfere with the selection process then the selectors may as well walk out.

24. It was at that time that I demanded to speak to someone from the Executive and in particular the President, Vern McIntyre.

25. Tony O'Meehan explained that Vern McIntyre was not in the office at that time but he would see if he could contact him by telephone.

26. Tony O'Meehan went into another room and then came back and told me that Vern McIntyre was on the telephone and that I could go out and speak to him in the next room.

27. When I spoke to Vern McIntyre I asked whether the directions to Tony O'Meehan came from the Executive or from himself and he refused to either confirm or deny that the directions were made or who gave them.

28. When I returned to the room after my conversation with Vern McIntyre I was advised by one of either Tony O'Meehan, Mal Dempsey or Rod Wishart that instead of completing the selection of the thirds and the skippers there were simply to be sixteen players chosen. From that group of 16, 4 were to be chosen as skippers and the positions of the remaining 12 were to be determined at a later stage.

29. The eight or so players who were already on the whiteboard stayed for the list of sixteen players except for Mike Zusman's name which had been removed from the whiteboard and another name inserted in that position.

30. I queried with the other selectors why Mike Zusman's name had been removed form the list.

31. Rod Wishart responded with words to the effect 'I changed my mind'.

32. Marco Krajancic was not in the list of 16 players."

36 His account is confirmed to some extent by the plaintiff in his affidavit at par 41:

"41. I then telephoned Rod Wishart. We agreed that we were unhappy with the side. I suggested to Rod Wishart that if there were no outside influences, would he include Mike Zusman in his list of sixteen players and he responded that he would."

37 Because I do not consider that the Executive has any power over selection for the reasons outlined it follows that the statement about the Executive not being happy was an irrelevant and, in the circumstances, an unfair intervention which arguably has affected the outcome.

38 Should the court intervene? Courts have shown a reluctance to intervene in the affairs of voluntary bodies particularly in matters of internal procedures. A good example is provided by Re Maggacis [1994] 1 Qd R 59. In that case the applicant sought appointment by the respondent to a large sporting Association incorporated to its most senior coaching position. The position involved travelling and payment of some living and travelling expenses but no remuneration. Without breach of the rules its Executive committee did not accept a recommendation that he be appointed and instead appointed another person. A declaration was sought. At 65 and 66 Thomas J said:

"The observations of Glass JA in Maloney v The National Coursing Association, [1978] 1 NSWLR 161 at 171, concerning the nature of domestic tribunals are illustrative:

'Domestic tribunals are usually established in circumstances which are radically different. The members, generally speaking, have agreed to abide by a set of rules and the authority of a committee to enforce them, if necessary by expulsion. The committee members cannot, in the nature of things, divest themselves of the manifold predilections and prejudices resulting from past associations with members. Apprehension of bias could be generated in all kinds of ways. If it was a disqualifying consideration, the enforcement of the consensual rules would be largely unworkable'."

"Those tolerant remarks which were made in the context of a tribunal with quasi-judicial functions are of stronger application in the context of an appointment to a position where the function or process is closer to the managerial than it is to the judicial. I do not think that their force as general observations has been cut down by the later decision in Dale v New South Wales Trotting Club Limited (1978) 1 NSWLR 551. They are essentially a recognition of a practical difficulty and of the need for limits upon what may reasonably be expected from committees where the people who make the decisions are likely to know those who will be affected by the decisions. There are many honorary workers in associations throughout the country who render great service to their members and to the public through their activities, and it may be expecting too much of human nature to require that they will act according to the tenets of natural justice in every situation where some perceived benefit, such as a prestigious position, might be available to him or her."

40 On the other hand, in McKinnon v Grogan [1974] 1 NSWLR 295, Wootten J said at 299:

"Despite Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358 the courts frequently deal with disputes between individual members and social clubs, such as RSL Clubs. This seems to be both proper and desirable, and the courts should be willing to assist in resolving disputes in organisations, whatever their size, in which parties have deliberately adopted formal rules to govern their relations."

41 It seems to me that there are no prescriptive principles as to when it is or is not appropriate for a court to exercise its discretion to make a declaration or grant an injunction in a dispute within a voluntary organisation or social sporting club. In this case, because of what I apprehend to be a mistaken view held by the Executive as to its powers vis a vis the selectors, I have concluded that the court should lend its aid to the plaintiff.

42 Mr Collings in his affidavit sets out powerful arguments against the granting of the injunction sought:

"12. The Association booked accommodation approximately eight months ago in Darwin for the National Championships. Airfares were booked approximately one to two months ago. The Association has budgeted approximately $20,000.00 to cover the cost of sending the State side to the National Championships in Darwin.

13. I was involved in organising the National Championships when they were held in Perth in 1994. I have also attended various National Championships. The Association has forwarded to the organisers of the National Championships the names of the 16 players selected to represent Western Australia and the teams they have been nominated to play in. I believe by now the organisers of the Championships will have ordered programs to be printed and have arranged draws for the competition.

14. Also arrangements for such matters as catering and transport will have been put in place. Liaison officers have been appointed.

15. From the performances and results in the National Championships, teams are selected to represent Australia in international competitions. A Pacific Games competition is due to be held in approximately September or October of 1999. Players and teams to represent Australia at those championships will be selected on the basis of their performances and results from the National Championships in Darwin.

16. The State team is presently involved in training with the sides nominated from the selected players. If the Association is prevented from sending the selected side to the National Championships, I believe significant disruption will be caused to the training and preparation schedule of the team. I also believe that if we are unable to send the State team to the National Championships it will cause significant disruption to the programming and the draws. There is also the risk the Association will incur expenses with respect to the accommodation and air travel arrangements already in place."

43 Yet the plaintiff also has rights. He has established an arguable case that the selection process involving him miscarried.

44 He has an entitlement to be treated fairly. That means a fair review of his merits by the selectors in accordance with the policy to which I have referred. If following that process he were to be selected, then obviously that would result in some disruption. The disruption would, however, be due not to him but to the miscarriage of the process in April 1999.

45 I have given serious thought as to whether I can order the Association to have its selectors review the decision. I have come to the view that I cannot. Such an order would be in the nature of a mandatory injunction. It is not sought by the plaintiff on the present summons. There would be difficulties in enforcing it.

46 I am very reluctant to grant the injunction sought by the plaintiff at this stage. I would only do so as a last resort if there were no other way of protecting the plaintiff's interests. I therefore propose to adjourn this application to give the Association time to consider its position in the light of these reasons. If the Association grants the plaintiff a review by the selectors, then the balance of convenience would firmly tilt against the grant of an injunction.

48 I considered that there were powerful reasons set forth by the executive officer of the defendant against the granting of the injunction sought. On the other hand I noted that the plaintiff also has rights and has established an arguable case that the selection process miscarried and he had an entitlement to be treated fairly. That finding of mine was directly opposed to a submission on behalf of the defendant that there was no obligation by the defendant to treat the plaintiff or, by necessary implication, any of its members fairly.

49 I came to the view on Tuesday, 1 June, that I cannot order the association's to have selectors review the selection process, and said:

"I am very reluctant to grant the injunction sought by the plaintiff at this stage. I would only do so as a last resort if there were no other way of protecting the plaintiff's interests."

50 I then adjourned the application to give the defendant time to consider its position. On Wednesday, 2 June, the matter came back before me, at which time Mr Herron, who appeared for the association on instructions, advised me that the executive would meet in order to appoint a third selector so that the selection process could be reviewed in respect of the plaintiff.

51 Contrary to what the court was advised on Wednesday, Mr Herron informs me that the executive did in fact constitute but has resolved not to appoint a selector and has resolved not to take any further steps with respect to the plaintiff for the concerns which it expressed through counsel. As I remarked in argument, I consider those concerns to be essentially groundless. There is no admission by the defendant in its application of my judgment. Furthermore, I do not see that simply appointing a selector and asking the selection committee to go about their business in any way constitutes a direction to the selection committee as to who it may select. The executive already has given the selection committee general policy guidelines, a matter which I consider is entirely appropriate. There is considerable difference between giving general policy guidelines and interfering with the selection process.

52 It was put to me today that to select a fresh person to the selection panel would have difficulties because of the lack of familiarity with the selection process which has so far occurred. I must say that I consider that on the present very limited information before me there has been an element of high handedness on the part of the defendant in relation to the plaintiff's application. Nevertheless, the plaintiff asks for the order that I have set out and today puts as alternatives a narrow order directing the defendant to reconsider the plaintiff's application or a somewhat wider order halfway between the two to the effect that the selection should not proceed pending a reconsideration by a duly constituted committee of the entire team.

53 This is a matter involving a considerable question of weight. On the one hand there is the plaintiff whose rights have arguably been infringed. On the other hand I cannot ignore the fact that there are people who have been selected, arrangements been made and the like. I do not consider that either of the two alternatives sought by the plaintiff are satisfactory and I am not prepared to make orders accordingly. The reason I do not consider that the second is satisfactory is that it would involve a wholesale reconsideration of matters with a new member of the selection panel who may not be familiar with the form of all of the players who have been selected.

54 As I have remarked to counsel in the course of argument, I think there is a great danger in this litigation that both parties have become blinded to the essential fact that this is a dispute about a sport and, high as sport is in the national culture and important as bowling is to thousands of people, the prospect of lengthy litigation and substantial damages on either side is one that surely must give everyone pause. In my view, notwithstanding the plaintiff's claims, the balance of convenience does not favour granting any injunction. Therefore I will not do so.

Zusman v Royal Western Australian Bowling Association

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (147 paragraphs)

Zusman v Royal Western Australian Bowling Association (Inc) [1999] WASC 86 (4 June 1999)

Parties

Cases Cited (9)