Applicant v National Sporting Organisation - [2023] NST E23-75631

Case number: NST-E23-75631
Case Title: Applicant v National Sporting Organisation
Determination
National Sports Tribunal
General Division
sitting in the following composition:
Panel Member   Mr Robert Heath KC
in the arbitration between
The Applicant  Applicant
Represented by Patrick Knowles of Senior Counsel, instructed by Anthony O’Reilly, Solicitor
– and –
National Sporting Organisation  Respondent
Represented by Ivan Griscti of Counsel
1.This determination is in ten parts, namely:

Section Heading Page no.

I Introduction and parties 2

II Background 4

III Appointment of the Arbitral Tribunal 12

IV Procedural history 13

V The nature and scope of the Tribunal’s review 15

VI The applicable rules and some relevant principles 17

VII The issues raised by the parties in the proceeding 20

VIII Witnesses and tendency evidence 21

IX Determination of the substantive issues 26

A.     Issue 1 26

B.     Issue 2 51

C.     Issue 3 72

D.     Issue 4 84

E.     Issue 5 84

X Disposition 84

I Introduction and parties
2.This arbitration is subject to the National Sports Tribunal Act 2019 (Cth) (‘the NST Act’). It concerns a disciplinary dispute arising from two complaints against a member of the National Sporting Organisation (NSO) and it has been conducted in the General Division of the National Sports Tribunal (‘NST’ or ‘Tribunal’). The complainant is and was at all material times a minor. In order to protect the complainant, in the balance of these reasons, the Tribunal has referred to her as “AB”.[1]
[1]The Tribunal shall also use acronyms to refer to other minors. The relevant minors and corresponding acronyms are set out in Annexure A of this determination. This Annexure is confidential to the parties and the NST.
3.The Applicant is the Applicant (‘the Applicant’ or ‘the Applicant’). In the sport of the Applicant, the Applicant is a nationally accredited coach; and he is a member of a State and/or Territory Association, an affiliate of the Respondent (‘the Association’). For many years, he has earned his livelihood in the sport; and he continues to earn his livelihood in the sport.[2] He is represented in this arbitration by: (1) Mr Anthony (Tony) O’Reilly of Kandos Scanlan, solicitors; and (2) Mr Patrick Knowles of Senior Counsel.
[2]In May 2020, on an Association website, he was described as “Assistant National Coach, XXXX”. This website is accessible via xxxx xxxx.
4.The Respondent is a public company limited by guarantee; it is responsible for administering the affairs of the sport of xxxxxxx in Australia; and it is the sole Australian member of the International Governing Body of the sport (‘IGB’). The IGB is recognised as the sole sporting body with authority to make and enforce regulations for the encouragement and control of the sport of xxxxxxx; and the IGB recognises the Respondent as the sole body for the control of xxxxxxx in Australia. The Respondent is represented in this arbitration by Mr Ivan Griscti of counsel.
5.The Application arises…

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 [2023] NST E23-75631
Case: [2023] NST E23-75631
Decision Date: 7 August 2023

CaseChat Overview and Summary

The case concerns an arbitration between the Applicant, a nationally accredited coach and member of a State and/or Territory Association, and the National Sporting Organisation (NSO), the respondent. The Applicant is challenging the decisions made by the NSO's Member Protection Policy Committee (MPP Committee) in relation to two complaints made against him. The NSO is represented by Ivan Griscti of counsel, while the Applicant is represented by Patrick Knowles of Senior Counsel, instructed by Anthony O'Reilly, Solicitor. The arbitration is subject to the National Sports Tribunal Act 2019 (Cth) and has been conducted in the General Division of the National Sports Tribunal (NST).

The primary legal issues the court was required to decide in this case include:

1. Whether the MPP Committee was justified in rejecting the findings of the independent investigator (SIA) in relation to the First complaint.
2. Whether each of the Original Decisions was the correct or preferable decision.
3. If the Tribunal found that the evidence substantiated any complaint, what sanction should the Tribunal impose, if any.

The court assessed the credibility of witnesses, particularly AB, the Applicant, XT, and Witness C. AB was considered an unsatisfactory and unreliable witness due to inconsistencies in her account and some untrue statements. The Applicant, on the other hand, was deemed a reliable and truthful witness. The court also evaluated the tendency evidence provided by the parties, exercising caution in considering the prejudicial effect of such evidence.

In its determination, the court dismissed the First complaint in its entirety and declared that the Applicant did not touch AB as alleged, and that this complaint was unsubstantiated within the meaning of the MPP. The court also declared that the Applicant did not contravene the MPP or the two codes of conduct as alleged in relation to Complaint 3 and Complaint 4. The court further declared that these complaints were unsubstantiated within the meaning of the MPP.

In conclusion, the court dismissed the First complaint and made declarations regarding the unsubstantiated nature of the complaints. The court directed the parties to inform the NST Registry by 21 August 2023 whether the Tribunal is required to hear and determine the Amendment application and the Document production application.

Orders