Applicant v National Sporting Organisation - [2024] NST NST-E24-216406

Case number: NST-E24-216406

Case Title: Applicant v National Sporting Organisation

Determination

National Sports Tribunal

General Division

sitting in the following composition:

Panel Member Chris Ronalds AO SC

in the arbitration between

Applicant (Applicant)

Represented by a legal representative

And

National Sporting Organisation (Respondent)

Represented by a legal representative

PARTIES

Applicant (the Applicant) is a long time member of the National Sporting Organisation (NSO, the Respondent) and is also a member of the State Organisation (SO).
The Applicant has been described as:
For more than 20 years, he has been involved (on an unpaid basis) with both teaching and managing the operations of Sport 1 at a club, State and National level. He has held significant positions including, for example, being a member of the Sport 1 Board between 2012 and 2023 and being its chairperson between 2021 and 2023. During his appointment, the Applicant developed technical and safety guidelines for the Sport 1 community of the NSO and the SO, a state affiliate of the NSO.[1]
[1] Paragraph 9, Applicant’s Submissions.
The Respondent is a National Sporting Organisation recognised by the Australian Sports Commission and is the internationally recognised, governing body for Sport 1, Sport 2, Sport 3 and Sport 4 in Australia. Members of the Respondent compete locally, state, nationally and internationally and are eligible to attend international Sport 1, Sport 3 and Sport 4 seminars and grading exams. The Sport 1, Sport 3 and Sport 4 grading qualifications of NSO members are recognised internationally.

INTRODUCTION

By letter dated 15 November 2023, sent by email at 7.30 am, the Respondent advised the Applicant that their correspondence of 14 November 2023 “provided notification of a number of complaints to you regarding your alleged conduct”. Further:
The Allegations within those Complaints have already been provided to you. The alleged conduct, if found to be substantiated, may amount to a breach of the NSO Member Protection Policy and the NSO Code of Conduct.
Please be mindful that no determination has been made about whether you have breached the Policy or not. The Complaints Process is designed to be impartial and consider all relevant information about the Complaint, Provisional Action is intended to mitigate risk and is not a punitive action.
The letter indicates that “the NSO has determined, on the basis of Independent Decision Maker’s assessment, that Provisional Action is required while the Complaint is being investigated” (Provisional Action Letter). Eight specific actions were set out, including that “Membership of NSO suspended until the outcome is made in any further complaint” (sic). The other actions included bans on attending specified meetings, training sessions, seminars, gradings or events.
An act of Provisional Action is based on clause 7.4 of the NSO Complaints, Disputes and Discipline Policy (CDDP), specifically clause 7.4(a), which provides:
Where an allegation suggests a risk of harm to a Participant which justifies imposing Provisional Action, the NSO will determine whether any Provisional Action will be taken to mitigate any…

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.

Continue reading Applicant v National Sporting Organisation

Details

AGLC: Applicant v National Sporting Organisation [2024] NST NST-E24-216406
Case: [2024] NST NST-E24-216406
Decision Date: 26 June 2024

CaseChat Overview and Summary

The case between the Applicant and the National Sporting Organisation (NSO) was brought before the National Sports Tribunal (NST) to review the validity of Provisional Action imposed on the Applicant. The Applicant, a long-standing member and former chairperson of the Sport 1 Board, was suspended from the NSO and barred from attending various events and meetings pending an investigation into complaints against him. The Tribunal was tasked with deciding whether the Provisional Action was proportionate to the perceived risk of harm, in accordance with clause 7.4(d) of the NSO Complaints, Disputes and Discipline Policy (CDDP). The Applicant argued that the Provisional Action was grossly disproportionate, manifestly unfair, and contrary to law, claiming six flaws in the NSO's decision-making process. The NSO, on the other hand, argued that the Tribunal's scope was limited to determining the proportionality of the Provisional Action and not the broader procedural fairness or bias.

The Tribunal found that the Provisional Action was invalid and of no effect from the date of the Determination. Firstly, the notification of the Provisional Action did not specify the risk of harm, which is necessary to justify such action. The lack of clarity deprived the Applicant of procedural fairness and his right to a meaningful review under clause 7.4(d). Secondly, the significant delay in finalising the complaint and conducting an investigation rendered the Provisional Action disproportionate. The Provisional Action was intended as an interim measure, yet it continued for over seven months without any substantial action by the NSO. The Tribunal concluded that the delay was unreasonable and unjustified, making the Provisional Action no longer necessary for its intended purpose. Consequently, the Tribunal determined that the Provisional Action imposed on 15 November 2023 is invalid and of no effect from the date of this Determination, 26 June 2024.

Orders