Applicant v National Sporting Body - [2024] NST NST-E24-400771

Case number: NST-E24-400771

Case Title: Applicant v National Sporting Body

Determination

National Sports Tribunal

General Division

sitting in the following composition:

Member Mr Anthony Lo Surdo SC

in the arbitration between

Applicant (Applicant)

Represented by Legal Representative

And

National Sporting Body (Respondent)

Represented by National Sporting Body Integrity Staff

PARTIES

The Applicant (the Applicant) is a long-term volunteer in the sport, both as an official, board member and club member.
The Respondent (the National Sporting Body) is the national sporting body for the sport.
At the time of the Complaint, the Applicant was a member of the National Sporting Body and bound by the rules, regulations and policies of the National Sporting Body.

INTRODUCTION

Below is a summary of the relevant facts and allegations based on the parties’ written submissions and evidence. Additional facts and allegations found in the parties’ written submissions and evidence may be set out, where relevant, in connection with the legal discussion that follows.
While the Sole Arbitrator has considered all the facts, allegations, legal arguments, and evidence submitted by the parties in the present proceedings, the Sole Arbitrator refers in his Award only to the submissions and evidence considered necessary to explain the reasoning.
On 8 July 2024, the National Sporting Body received an email from State Police indicating that certain “behaviour” by the Applicant which was witnessed by two persons was not “appropriate”, was the subject of a police investigation and recommending that the National Sporting Body take “Provisional Action” against the Applicant, presumably pending the determination of the police investigation.
Immediately following the receipt of the email from State Police, the National Sporting Body notified the Applicant in writing that it had received information alleging a breach of policies in the National Integrity Framework, that information concerning these allegations would be provided to the Applicant in due course and that it had determined provisionally to suspend the Applicant’s membership and duties as an official under clause 7.4 of the National Sporting Body Complaints, Disputes and Discipline Policy (CDDP) whilst the allegations were being assessed.
On 30 July 2024, State Police notified the National Sporting Body that on 29 July 2024 police issued the Applicant with a “stalking caution”, that when served with the caution, the Applicant “…recalled the incident at the [Sports Centre] however was not of the belief that his behaviour was inappropriate…”, was upset, apologetic and removed his Facebook friend request to a complainant in the presence of the police.
Consequently, on 30 July 2024, the National Sporting Body wrote to the Applicant noting that he had been served with a stalking caution, indicating that it would not be investigating the matter but that it considered his conduct to constitute a breach of the Safeguarding Children and Young People Policy (Policy) and the National Sporting Body Code of Conduct (Code). The National Sporting Body also proposed a date and time for an interview to enable the Applicant an opportunity “to comment on these…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NST NST-E24-400771
Decision Date: 27 November 2024

CaseChat Overview and Summary

In the case of Applicant v National Sporting Body, the Applicant, a long-term volunteer in the sport, challenged the decision of the National Sporting Body to suspend him and propose a sanction. The Applicant argued that he was denied procedural fairness, particularly the opportunity to respond to specific allegations and the disclosure of certain facts prior to the decision being made. The National Sporting Body countered that it had provided the Applicant with an opportunity to respond and that the proceedings were limited to the proposed sanction.

The court examined the principles of procedural fairness, which include the requirement to notify a person of the charge or allegation, provide particulars of the allegations, and allow an opportunity to respond. The court found that the National Sporting Body failed to disclose important facts and circumstances that influenced its decision, resulting in a denial of procedural fairness. This failure deprived the decision of any validity, and the court set aside the Breach Notice issued by the National Sporting Body. As a result, the issue of the proportionality of the proposed sanction did not arise.

The court's determination was based on the failure of the National Sporting Body to adhere to the principles of procedural fairness, which led to a jurisdictional error. The decision was set aside, and no further orders were made regarding the sanction.

Orders