Avellino v All Australia Netball Association Ltd No. Scciv-03-912

AVELLINO v ALL AUSTRALIA NETBALL ASSOCIATION LTD
[2004] SASC 56
Civil
BLEBY J:
The parties

The plaintiff is a professional netball player. For some years she has played for various teams at the highest National competition level in Australia. This application concerns her ability to play for one of those teams based in South Australia.
The defendant is the governing body of National netball in Australia and is responsible for organising the National netball competition. It is a company limited by guarantee, trading under the name of “Netball Australia”. It is a not-for-profit organisation with its headquarters in New South Wales. Its principal objects are:
“(a) …………..
(b)to encourage, promote, control and manage the game of netball in Australia and be the supreme governing body of netball in Australia.
(c)To promote and encourage international netball and the conduct of international competition as an affiliated member of the International Federation of Netball Associations …..
(d)………
(e)………
(f)to promote competition matches between Member Organisations and to institute, regulate and control all championship competition between those Member Organisations.
(g)To select and manage netball teams to represent Australia in international matches inside and outside Australia.”
The income of the defendant from various sources is applied towards the promotion of its objects. The defendant is run by a small group of full time professional staff and a full time National Executive Director, Ms Pam Smith.
The members of the defendant are a number of State “member organisations”, each of which controls netball in its particular State. The member organisations are bound by the defendant’s Articles of Association, which grant them voting and attendance rights at the meetings of the defendant, and set out generally their other rights and responsibilities. There is only one member organisation in each State, its role being generally to oversee and administer competitive netball within that State. The member organisation in South Australia is known as the South Australian Netball Association (“SANA”). The competitions overseen by the member organisations vary from State to State, although generally there are various regional associations beneath the member organisation, and those associations organise netball at a regional level. More will be said later in these reasons about the structure of netball competitions in each State and nationally.
The defendant administers and promotes a number of National netball competitions in Australia, the most significant of which is now known as the Commonwealth Bank Trophy Competition (the “CBT Competition”). Its role in that regard includes the formation and enforcement of the rules of the Competition, and the funding of the various teams in that Competition. The defendant also has a role to encourage and assist the member organisations to create a competitive structure for young netball players. It has a mandate to develop programs and policies for the development of netball at all levels.
The defendant also has a role in the conduct of international competitions, being an affiliated member of the International Federation of Netball Associations, and is generally committed to the promotion and encouragement of international netball. In its mission statement adopted by the Board of the defendant in 1996 the objective of the defendant is said to be:
“To create a profitable National Netball League which is the flagship of AANA [the defendant] with players and teams that are competitive at an international level while providing affordable, family entertainment at local venues and through the medium of television.”
Intrastate netball competitions
The structure of intrastate competitions varies from State to State. The lowest level of competition in each State is at a regional level. Local clubs compete in competitions generally organised and administered by a regional association, which is in turn a member of the State member organisation. Regional associations may also field representative teams which compete against each other.
The highest level of competition in each State is generally known as the State League. In New South Wales the highest level of regional Association representative teams compete in the State League. In South Australia, various club teams compete in the State League. Unlike regional Association teams, these club teams represent no particular region, and are based in Metropolitan Adelaide. These clubs field teams at various age groups or levels of competition, the highest being the State League. Two of these club teams are known as Garville and Contax.
Interstate netball competitions
Prior to 1997, the major interstate netball competition in Australia was known as the “Super League”. That competition was variously sponsored by Mobil and ESSO, and immediately prior to 1997, was known as the “Mobil Super League”. The Super League was comprised mostly of the top teams which competed in each of the State League competitions. The exceptions were the teams participating from Perth and Brisbane. Hybrid teams from Perth and Brisbane were created, consisting of players from various existing clubs within those States, because the existing club teams from Perth and Brisbane were not perceived as being strong enough to compete with teams from the other States, namely South Australia, Victoria and New South Wales.
In South Australia, prior to 1994, the team that won the South Australian State League competition for a particular season could then compete in the Super League competition for the next season as the only South Australian team. From 1994 the Super League competition allowed the highest ranking two teams from South Australia to compete, and from then onwards, the competition comprised two existing club teams from South Australia, two existing club teams from New South Wales, two existing club teams from Victoria, and one hybrid team from each of Western Australia and Queensland. The competition was run over approximately eight weeks prior to the State League season, overlapping with the start of the State League Competition.
There is another interstate competition known as the National Championships. The Championships are held in October of each year over a period of about two weeks. They involve competition between State representative teams, and a player is eligible to play for the State in which they were born. That competition is also organised by the defendant. There are various levels of competition at the National Championships, the highest being the open level, and then descending by age group, for example under 21s, under 19s, under 17s and so on.
The Commonwealth Bank Trophy Competition
In 1997, the Mobil Super League was replaced by the CBT Competition. As the name suggests, the Competition is sponsored by the Commonwealth Bank. The CBT Competition was unique at its inception in that, rather than draw on existing State club teams, as the Super League had, eight completely new teams were created for the CBT Competition. In the preceding years, the teams from South Australia, New South Wales and Victoria had dominated the Super League competition, and it was therefore decided initially that these States should field two teams, and that the final two teams would be from the next two strongest States.
In 1997 the eight teams that took part in the CBT Competition were the Adelaide Thunderbirds, the Adelaide Ravens, the Sydney Swifts, the Sydney Sandpipers, the Melbourne Pheonix, the Melbourne Kestrels, the Queensland Firebirds and the Perth Orioles. In 2002 the Adelaide Ravens were removed from the competition and replaced with a team from the Australian Institute of Sport (“AIS”), which is based in Canberra. The Sydney Sandpipers team will withdraw from the 2004 season for financial reasons. The defendant has called for, and has received, expressions of interest for a replacement New South Wales team.
While the CBT Competition is organised and overseen by the defendant, the teams themselves are the responsibility of each member organisation. The member organisation organises the selection and nomination of the team or teams within its State, and it is the member organisation which handles all communications with the defendant on behalf of the teams. It was intended at the inception of the competition that the member organisations of the States with two teams in the Competition would ensure that those two teams would be evenly resourced so that the teams themselves would be evenly matched. The Board of the defendant specifically requested that a strong team not be put in the competition at the expense of a second team, so that the competition between players for positions in those teams would be fair.
The roles, responsibilities and entitlements of the member organisations with respect to the CBT Competition are set out in the Deed of Participation entered into annually by each member organisation with the defendant.
The defendant controls and also subsidises the CBT Competition. Its income is derived from sponsorship, membership fees, government grants and gate takings. This income is used by the defendant to provide a fixed grant to the teams that take part in the CBT Competition. The defendant also bears the costs associated with the finals series, being the costs of travel, accommodation and meals of teams and officials. It is also responsible for the marketing and promotion of the CBT Competition.
The CBT Competition is governed by Regulations which were established by the defendant, and which it may add to, amend or revise from time to time. Those Regulations are incorporated into the Deed of Participation with each member organisation.
Selection and eligibility of players
As outlined above, each member organisation is responsible for the nomination of players. That must be done by 1 November of the year preceding the relevant year for which the team is being entered: Section B, Reg 1.3 CBT Competition Regulations. A team must be entered with a minimum of ten and a maximum of sixteen team members. Remaining team members, to make up a maximum of sixteen players, must be confirmed by 30 November.
Player eligibility for the CBT Competition is governed by Section B, Reg 2 of the Regulations. Regulation 2.1 provides that a player must be a member of a member organisation and have paid the the defendant’s registration fee. Rule 2.5 requires the players to sign a waiver and a player registration form and requires the member organisation to confirm receipt of a signed player contract. There is no contract between the player and the defendant, although the Deed of Participation between the defendant and the member organisation requires the player contract with the member organisation to be in a form agreed by the defendant and the member organisation.
Central to this case is Section B, Regulation 2.2. It provides:
“Unless otherwise approved by Netball Australia, a Player must be a resident of the home State/Territory of the Member Organisation for which she is to play for four (4) weeks prior to the commencement of the Competition through to the completion of the Competition.”
In Section A of the Regulations “resident” is defined as follows:
“Resident means a person who resides in a State/Territory and includes a person whose domicile is in that State/Territory, unless the Eligibility Committee is satisfied that her permanent place of abode is outside that State.”
In addition to the residence requirement, the Regulations also require in Reg 2.7 that a player cannot be registered under more than one team or play under more than one team in a season.
There are some exceptions to the eligibility requirements, and the Eligibility Committee provided for in the Regulations can waive an eligibility requirement if it considers the application to involve special circumstances (Reg 4.4). Regulation 4.3 provides:
“If the Eligibility Committee is of the reasonable opinion that either a Team or a Player is not eligible in accordance with the provisions of these Regulations then subject to Regulation 4.5, that Team or that Player will be deemed to be ineligible.”
Thus, while the Regulations prescribe the eligibility requirements, they also allow for some degree of “reasonable opinion” in their interpretation by the Eligibility Committee.
There is a right of appeal from a decision of the Eligibility Committee: Section B, Reg 5. Section R of the Regulations sets out the appeals process. The Introduction to that Section provides:
“There shall be a forum for all Players, Appointees and Officials who have an unusually strong cause to appeal on grounds of denial of natural justice against selection, performance or alleged misconduct.
All such appeals must be submitted to the Board of Directors within fourteen (14) days of receiving written notice of the decision. The Board of Directors may either respond to the appeal or refer it to the Appeals Committee for Arbitration.”
The Appeals Committee is appointed by the Board of Directors of the defendant, (Section R, Reg 1.2) and that Committee has the power to hear and determine appeals from decisions of the Commonwealth Bank Trophy Competition Disciplinary Committee, Regulations Committee and Eligibility Committee: Section R, Regulation 1.2. There are no other provisions dealing with the appeals process from the decisions of the Eligibility Committee.
International competition
Australian representative teams also participate, with the assistance of the defendant, in various levels of international netball competition. The most prominent form of international competition, in which Australia competes, is the World Championship Competition, which is a competition run by the International Federation of Netball Associations. These are held about every four years.
There are also tri-national test series, and, since 2002, netball has been played in the Commonwealth Games.
Professionalism
With the inception of the CBT Competition, it was hoped by the Board of the defendant that the competition would develop to such a level that the players could be full-time paid professionals. Whilst players in the CBT Competition are generally paid, the sport is not yet profitable enough to allow players to commit to the sport on a full time basis. The one exception is Ms Kathryn Harby-Williams, the captain of the Thunderbirds, who, according to a number of witnesses, is a professional player in the sense of earning a full-time living from the sport.
Every player on the Thunderbirds player list for 2003 was under contract with the Adelaide Thunderbirds and SANA and was paid. The payment is comprised of a sign-up fee of between $500 and $1,000 and a fee per game, the amount of which differs depending on the level and standing of the player.
In addition to the money earned by playing the game, players in the CBT Competition have the opportunity to earn income making public speaking appearances and conducting coaching clinics run by various regional Associations. The more experienced players are also engaged and paid to give motivational speeches and make public appearances. There is indeed an expectation that the CBT Competition players will undertake these activities. However, one’s popularity for these activities clearly depends on being in the CTB Competition team and maintaining a high public profile in that role.
The CBT Competition is televised by the ABC television network, which broadcasts a delayed telecast of two games per week. Gate takings also provide revenue to the member organisation during minor rounds and to the defendant for finals.
The defendant, individual teams, and individual players also have the capacity to earn income from sponsorship. The defendant has a number of major commercial sponsors. Each individual team in the competition is also permitted to have sponsors. The defendant attempts to assist individual teams in finding sponsors, although they are also encouraged to find their own. Individual players may also have sponsors.
Ms Angrove gave evidence of the time spent by netballers at the CBT Competition level in training. The Thunderbirds players train every day. The programme includes swimming, walking, bike riding, weight training, sprint training and at least two court sessions a week, in addition to matches. However, most of the players also have either full-time employment or study commitments.
Whilst netball players do not enjoy the level of payments that apply in some other sporting codes in Australia, the sport is undoubtedly being promoted as a professional and popular spectator sport. The more accomplished players at CBT Competition level are able to earn significant benefits through match fees and other activities and sponsorships related to their playing abilities.
The plaintiff
The plaintiff is currently 32 years of age. She grew up in Sydney, and has been playing netball since the age of six. She played for her school and in various local teams within associations affiliated with the New South Wales Netball Association, the member organisation for New South Wales. She played for the Karangi Association representative team in the New South Wales State League Competition, as well as representing New South Wales in under-age and open State teams at the National championships.
In 1988 the plaintiff was awarded a scholarship to the Australian Institute of Sport in Canberra. She resided and played netball in Canberra for three years from 1989 to 1991. Whilst playing for the Australian Institute of Sport team she would travel to Sydney to play in the New South Wales State League competition, and she also travelled overseas to play in international tournaments with that team. In 1990 and 1991 she played in the AIS team in the Super League competition. In 1990 she also played in the Australian under 21’s team. While playing at the AIS the plaintiff also worked at the Australian Sports Commission at the Institute of Sport in the personnel section and then in their information centre. During this time she also undertook a TAFE course.
In 1992, when her scholarship had ended, the plaintiff was approached by the Garville Netball Club in Adelaide to play for that team. She accepted that offer and moved to South Australia. She played for Garville in both the State League competition and the Super League competition until 1996. She was paid a small amount for each game, and she was paid to conduct coaching clinics, to make public appearances and to coach two school netball teams.
In 1994 and 1995 the plaintiff was selected for the Australian Open team. She represented Australia in the winning team at the 1995 World Championships in Birmingham. She also represented South Australia at the National Championships.
At the end of the netball season in 1996, the plaintiff moved back to New South Wales. She was aware that the CBT Competition would be commencing in 1997, and she wanted to play for a New South Wales team. In 1997 and 1998 she played in the CBT Competition for the Sydney Sandpipers. She was paid both a signing on fee and match payments, and she supplemented her income by conducting a number of coaching clinics and making a number of other public appearances.
At the end of the 1998 season, the plaintiff accepted an offer from the coach of the Melbourne Phoenix to move to Melbourne and play for that team in the CBT Competition in 1999. At that time the plaintiff was working as a sports tour co-ordinator for a travel company and was able to transfer her position to Melbourne. She received a considerable increase in payments when she transferred to the Melbourne Phoenix, as well as relocation costs and the opportunity to undertake a number of coaching clinics.
Following changes to the coaches for both the Phoenix and the Sandpipers teams, the plaintiff returned to Sydney to play for the Sandpipers in the 2000, 2001 and 2002. During this time the plaintiff obtained a job in the sales and marketing department of the Sydney SuperDome as a corporate suite and sales co-ordinator. She would train with the Sandpipers four nights a week and then play on Friday nights or occasionally Saturday mornings. Thursday nights would often be spent travelling interstate. She also continued to conduct coaching clinics and make public appearances for a fee. The plaintiff was vice-captain of the Sandpipers in 2001 and co-captain in 2002.

In 2002 the plaintiff had a number of injuries, the most significant of which were a calf strain and a groin injury. She did not miss any games that season, but her training was restricted.
At the end of the 2002 season, the plaintiff applied to play for the Sandpipers again for 2003. She was not selected.
She approached the coach of the other Sydney Team, the Sydney Swifts, and was not accepted. She entered herself in the Sydney draft. That is, a draft from which both Sydney teams can select players if they wish. Neither team selected her in the draft.
The plaintiff then approached the coaches of the Queensland Firebirds and the Melbourne Kestrels. She told both coaches that she was not prepared to give up her job at the SuperDome in Sydney and therefore wished to reside in Sydney and commute to the relevant city in order to play. Both coaches indicated that the team could not afford to fly the plaintiff to and from Sydney every week.
Engagement by the Thunderbirds
The plaintiff’s absence from the published New South Wales team lists was noted by Ms Angrove, the coach of the Thunderbirds. In due course the plaintiff was approached by the Thunderbirds to play for them in 2003. The plaintiff wanted to retain her job in Sydney. Negotiations took place, and it was agreed that she would commute to Adelaide for limited training sessions and any required match play.
The Thunderbirds agreed to pay the costs of the plaintiff’s travel between Sydney and Adelaide for the purpose of training and playing with the Thunderbirds, a sign on fee of $1,000, and match payments of $300 per game. There were 14 games scheduled for the 2003 season plus finals. The club would also provide uniforms and tracksuits. The letter of offer contained the following paragraph:
“We understand you want to continue to live in Sydney and to continue your current employment at the Sydney SuperDome. We are happy to work with you and involve you in our program on this basis, subject to any approval I suspect we may need from (the defendant) hierarchy on these arrangements.”
A registration form for the plaintiff to play with the Thunderbirds in the 2003 season was lodged with the defendant. On 13 January 2003, the general manager of SANA wrote to Ms Pam Smith, the National Executive Director of the defendant, seeking a ruling of the Eligibility Committee allowing the plaintiff to play for the Thunderbirds whilst continuing her employment with the SuperDome in Sydney. The letter requested a flexible arrangement whereby the plaintiff would live in Sydney and commute to Adelaide to play netball.
In a letter dated 7 February 2003 Ms Smith advised the General Manager of SANA, Mr Greg Humphreys, that the Eligibility Committee did not consider that any special circumstances applied in the plaintiff’s case and that they had therefore refused to relax the residency requirement. That letter stated that “[i]f Natalie is to play for the Thunderbirds for 2003 she will be required to reside in South Australia as defined with the regulations.” Further negotiations took place between the plaintiff and SANA and the plaintiff and her employer. Eventually it was agreed that she would work in Sydney on Mondays, Tuesdays and Wednesdays, and reside in Adelaide for the other days of the week. This meant staying two nights in Sydney and five nights in Adelaide per week.
SANA did not make a formal request to the defendant in the terms that had been agreed. The view was taken that this complied with the residency requirement. On learning of the arrangements, however, Ms Smith sent an email on 17 February 2003 to the various member organisations asserting that it was not possible for a player to be employed “outside” the member organisation for which she was playing, I will refer later to the terms of that email.
Further discussion resulted in a waiver by the Eligibility Committee of the four week pre-season residence requirement, and the plaintiff arrived in South Australia on 8 April 2003. She had reached agreement with her employer that she would take leave from her employment until early to mid May, and that she would then begin working three days a week, being Mondays, Tuesdays and Wednesdays, and on weekends when required. She had arranged to stay with a friend in Adelaide and would be paying $75 a week in rent. When in Sydney she had planned to stay at her parents’ house. With the assistance of the Thunderbirds, the plaintiff also began looking for employment in Adelaide to supplement her income from the SuperDome. She was offered and accepted a job as a sales representative for Koala Publishing, a company owned by a friend’s uncle. That job involved selling greeting cards on commission. The plaintiff changed her details on the electoral roll and bank details and other billing addresses to reflect her new address in Adelaide.
The plaintiff commenced training with the Thunderbirds on 9 April 2003, and she attended all team meetings and functions. She entered into a player contract with SANA on 23 April 2003. However, save when permitted by an interlocutory order of this Court, the plaintiff did not play in any competition matches for the Thunderbirds. This was because the Thunderbirds were advised by the defendant that points would be taken away from the Thunderbirds if the plaintiff was played, as she did not fulfil the residence qualification.
The defendant’s ruling
At SANA’s request, the matter was further considered by the Eligibility Committee, which ruled that the plaintiff was not eligible to play for the Thunderbirds. In its reasons the Committee placed some importance on the fact that the plaintiff did not arrive in South Australia and arrange her affairs here until after 7 April 2003, a point since abandoned by the defendant, but it was also satisfied that the plaintiff’s permanent place of abode was outside South Australia. The letter from the defendant dated 23 May 2003 relevantly read:
“While the Eligibility Committee accepts that Ms Avellino has taken steps in an effort to establish residency in South Australia, the Eligibility Committee is satisfied that her permanent place of abode is in New South Wales. This is for the following reasons:
(i)Ms Avellino has identified 44 Green Meadows Crescent, Toongabbie as being her permanent address in New South Wales prior to moving to South Australia. This is also the address previously used by Ms Avellino:
(A) to participate in the Competition:
(B) for the purposes of the electoral roll;
(C) for the purposes of her telephone account.
(ii)It is apparent that Ms Avellino will be returning to that address at least 2 nights per week and possibly more for family commitments.
(iii)Ms Avellino continues with permanent employment in Sydney which requires her to spend 2 nights and 3 working days in Sydney.
(iv)The permanent employment identified in South Australia requires Ms Avellino to work up to 4 days per week. No minimum requirement is specified.”
I have no doubt that the plaintiff would have been selected to play for the Thunderbirds throughout the 2003 season but for the decision of the Eligibility Committee and the threat of the team losing points in the CTB Competition if she did play. Instead, the plaintiff played for Garville in the State League. She played 15 out of 19 games with that club for the season and earned $50 per match. I accept that her opportunities to conduct coaching clinics and make public appearances have been limited in 2003 because her status as an Australian or a National league player is an important factor in being chosen to perform these duties.
The plaintiff continued to reside in Adelaide some nights per week, claiming it was her home. Between 1 June and 2 July 2003, the plaintiff spent more time in Sydney than in Adelaide, largely due to her father’s illness. However, even if the plaintiff had continued her intended plan of residence she would not have been selected to play for the Thunderbirds because of the threats of loss of points to the team. At that stage she had little incentive or reason to want to maintain that residency pattern. During that period, with the permission of SANA, she played some games in the New South Wales State League.
The plaintiff’s application
The plaintiff alleged that she had established residency within Reg 2.2 of Section B of the CBT Competition Regulations. It was pleaded that she had established residency by moving to South Australia, transferring her financial commitments to South Australia, changing her electoral roll address, obtaining employment in South Australia, and because of the fact that she had no interstate residence apart form her parents’ residence. In that regard a declaration was sought that the plaintiff had established residency in accordance with the Regulations. A declaration was also sought that the defendant erred in finding that the plaintiff did not comply with the Regulations and that the plaintiff was eligible, from 8 April 2003 to the commencement of the trial, to play for the Thunderbirds in the CBT Competition.
Second, the plaintiff claimed that Regulation 2.2 and Regulation 4 of Section B of the CBT Competition Regulations constitutes a restraint of trade. She sought a declaration that those particular regulations “are void and invalid restraint of trade” (sic).
Third, the plaintiff claimed that the defendant is estopped from relying on Regulation 2.2, from denying that the plaintiff has met the residency requirement, or from denying that special circumstances applied within the meaning of Regulation 4.4. The plaintiff further pleaded that it was unconscionable for the defendant to deny that the plaintiff fell within the residency requirement. In that regard, the plaintiff sought a declaration that the defendant is estopped from denying the plaintiff’s application to the Eligibility Committee dated 7 May 2003.
Finally, the plaintiff alleged that Regulations 2.2 and 4 are in breach of s 92 of the Australian Constitution. A declaration to that effect was sought.
An injunction was also sought to prevent the defendant from prohibiting the plaintiff to play for the remainder of the 2003 season, and the plaintiff claimed damages.
The trial
The trial of the action was expedited with a view, if possible, to a decision being given before the end of the 2003 netball season. After some five sitting days the trial was completed on 4 September 2003. On 5 September I made a declaration that Reg 2.2 of Section B of the CTB Trophy Competition Regulations was void as being in restraint of trade and that the plaintiff was not, by virtue of that Regulation, ineligible to play netball in the Thunderbirds team for the duration of the competition in 2003. I ordered that the question of damages and costs be reserved for further consideration. I indicated that I would publish reasons in due course. These are those reasons.
The plaintiff’s eligibility to play based on her residence
I accept the submissions of Mr McNamara QC, counsel for the defendant, that the Court has no power to entertain this part of the plaintiff’s claim or to make the declarations sought.
If the plaintiff is to succeed on this claim, it can only be upon the footing that she has an enforceable contractual right. She does not suggest that she has any claim in tort. There is no question of any breach of trust which would justify the Court’s intervention: Wylde v Attorney-General (1948) 78 CLR 224. There is no suggestion of the defendant having failed to comply with any relevant statutory duty. She must therefore be able to establish a contractual right to play for the Thunderbirds team, enforceable in a Court of law against the defendant. Furthermore, she must be able to establish that Regulation 2.2 of the defendant’s CBT Competition Regulations is a term of that contract and that the defendant is in breach of that Regulation.
The defendant is a voluntary association. The plaintiff is not a member. Nevertheless, I am prepared to assume that she has rights akin to that of membership by virtue of her membership of a club which in turn is a member of SANA, which is a member of the defendant or is bound to it by the Deed of Participation. I am prepared to assume that, along with all other competition players, the rules promulgated by the defendant form part of the consensual compact with all other players and organisations which participate in the CBT competition.
A Court will only interfere in the affairs of a voluntary association, such as the defendant is, where the Court can characterise the consensual compact as a contract or as a compact intended to confer legal rights and to impose legal liabilities on the parties: Macqueen v Frackelton (1909) 8 CLR 673: Scandrett v Dowling (1992) 27 NSWLR 483. The rationale for the rule is reflected in the joint judgment of Rich, Dixon, Evatt and McTiernan JJ in Cameron v Hogan (1934) 51 CLR 358 at 370-371:
“There are, … reasons which justify the statement that, at common law as well as in equity, no actionable breach of contract was committed by an unauthorized resolution expelling a member of a voluntary association, or by the failure on the part of its officers to observe the rules regulating its affairs, unless the members enjoyed under them some civil right of a proprietary nature. As a generalization it expresses the result produced by the application of a number of independent legal principles: it is not in itself the enunciation or explanation of a rule or rules of the common law. One reason which must contribute in a great degree to produce the result is the general character of the voluntary associations which are likely to be formed without property and without giving to their members any civil right of a proprietary nature. They are for the most part bodies of persons who have combined to further some common end or interest, which is social, sporting, political, scientific, religious, artistic or humanitarian in character, or otherwise stands apart from private gain and material advantage. Such associations are established upon a consensual basis, but, unless there were some clear positive indication that the members contemplated the creation of legal relations inter se, the rules adopted for their governance would not be treated as amounting to an enforceable contract.”
There may be some justification for the view that the principle has diminishing relevance to the rules of a sporting body with revenues equivalent to those of a substantial business and which is responsible for the administration for a sport which generates the expenditure of millions of dollars, and where players are paid salaries or fess well beyond those of many company executives and professional people. That trend was recognised, at least by Mahoney JA in Scandrett v Dowling (supra) at 504-505.
It is not necessary, for present purposes, to decide whether the rules of the defendant are intended to confer legal rights and to impose legal liabilities on parties said to be bound by them. If they do not, there is still the exception recognised in Cameron v Hogan (supra) that a Court will enforce the rules if their breach interferes with “some civil right of a proprietary nature” of the plaintiff.
Whether the rules of the defendant do constitute an enforceable contract or whether the plaintiff relies on the exception stated in Cameron v Hogan, the rules confer no relevant civil right of a proprietary nature which would confer a cause of action on the plaintiff against the defendant. A right to play netball professionally may be within that category of rights that will be protected by the Court against actions that are void as being in restraint of trade or otherwise contrary to public policy: Nagle v Feilden [1966] 2 QB 633. However, it is not a contractual right conferred by the consensual compact or interfered with by any alleged breach of the consensual compact committed by officers of the defendant. The plaintiff had no enforceable legal right against the defendant such as would confer on her a right to sue for damages. There was no legal right of the plaintiff to play netball or any correlative obligation on the part of the defendant to engage her. She could not sue for damages for any breach of contract.
However, merely because she has no right to damages does not mean that she would not be entitled to a declaration: J N Taylor Holdings Ltd v Bond (1993) 59 SASR 432. Nevertheless, there must be in existence some existing right in order for the Court to make a declaration of right. On that basis, the plaintiff cannot be entitled to the declarations that she seeks.
However, if I am wrong, and the relevant rules of the defendant do amount to an enforceable contract between the plaintiff and the defendant, or if the plaintiff’s right to work playing professional netball is in the nature of a proprietary right within the exceptions stated in Cameron v Hogan, that does not mean that the plaintiff can enlist the aid of this Court to enforce that right. One of the relevant terms of the contract is Regulation 4.3, conferring on the Eligibility Committee the right to determine a person’s eligibility in accordance with the provisions of the Regulations. It can declare a person ineligible if it is “of the reasonable opinion” that the player is not eligible in accordance with the Regulations. To assume that a person does have a contractual right under the rules does not mean that the Court can become a court of appeal from (in this case) the Eligibility Committee. As Cox J said in Shepherd v SA Amateur Football League Inc (1986) 44 SASR 579 at 583:
“The starting point is the law’s general policy of not interfering in the internal affairs of a voluntary association, including a tribunal set up by the association to deal with disciplinary matters. The plaintiff must be taken to have accepted the authority of the League’s Tribunal in this respect. The law was expressed by Dixon J in Australian Workers’ Union v Bowen (No 2) (1948) 77 CLR 601 at 628 thus:
‘It is important to keep steadily in mind that we are dealing with a domestic forum acting under rules resting upon a consensual basis. It is a tribunal that has no rules of evidence and can inform itself in any way it chooses. Members may act upon their own knowledge and upon hearsay if they are satisfied of the truth of what they so learn and if they give the member with whom they are dealing a proper opportunity of answering the charge and defending himself. The tests applied to juries’ verdicts, namely, whether there was evidence enabling a reasonable man to find an affirmative or whether upon the evidence a finding was unreasonable, have no place in the examination of the validity of such a domestic tribunal’s decisions. But the tribunal is bound to act honestly, that is to say it must have an honest opinion that what the member before it did amounted to misconduct and its decision must be given in the interests, real or supposed, of the body it represents and not for an ulterior or extraneous motive.’
So it is for the plaintiff to prove, if he can, some relevant, invalidating error in the Tribunal’s constitution or procedure or decision.”
It does not matter whether, in all the circumstances, I would have reached the same conclusion as the Eligibility Committee in determining whether the plaintiff was eligible to play in the CBT competition. The Eligibility Committee obviously formed the opinion that she was not. There is no suggestion in the evidence that the committee did not act honestly or reasonably in forming its opinion. There is no suggestion of some ulterior or extraneous motive beyond the interests as it perceived them of the defendant and the CBT competition. There was no relevant invalidating error in the committee’s constitutional procedure.
Accordingly, for these reasons, the plaintiff is not entitled to a declaration that she had established residency in accordance with the Regulations or that the defendant erred in finding that the plaintiff did not comply with the Regulations.
Estoppel

I turn next to the plaintiff’s third claim based on estoppel. In order to succeed on this ground, the plaintiff must rely on a representation or promise made by or on behalf of the defendant that she would be regarded as being eligible to play if she adopted the type of arrangements which she in fact undertook as from 8 April 2003.
There was no such representation or promise. Ms Smith, on behalf of the defendant, in the email of 17 February 2003 to which I have referred and which was sent to persons which included officials of SANA who had been making representations on behalf of the plaintiff, made it quite clear what the defendant’s attitude was. The email read in part:
“However, under the current regulations it is NOT possible for a player to be employed outside of the MO for which she is to play under an arrangement whereby she has the flexibility to travel to her competing MO for training during the weeks leading up to games in that MO, even if this combines promotional work for the employer both in the competing MO and other cities.
Any deliberate breach of this regulation will find the offending team being appropriately penalised, most likely with a loss of any competition points.”
The only concession made by the defendant was a relaxation of the requirement that the plaintiff be resident in South Australia for a period of four weeks prior to commencement of the competition. That was advised by Ms Smith in an email to Mr Humphries of SANA on 11 March 2003. After advising Mr Humphries of that decision of the Eligibility Committee, Ms Smith continued:
“I think it is important that I advise you, that it is being stated that Natalie’s ‘residency’ in South Australia is somewhat of a “Claytons’ exercise i.e., she will change her address on the electoral role, will have a residence but for all intent and purposes she will continue with her employer and will do work for them – i.e. not be taking a leave of absence.
The purpose of this email is to alert you to the claims that are being made and to remind you of the content of my email of 17th February. Should these claims become formalised we will have no option but to take appropriate action to investigate and deal with the situation as appropriate.”
Of the many communications between SANA, on behalf of the plaintiff, and the defendant, there was never any concession or representation that the plaintiff, by doing what she did, would comply with the residency requirements of the Regulations. The only waiver given was that relating to the four weeks pre-competition requirement.
As there was no relevant representation or promise, it is not necessary to consider whether the other elements of estoppel were made out.
Section 92, Constitution
The claim that Regulations 2.2 and 4 are in breach of s 92 of the Constitution can also be dealt with briefly.
In its historic decision bringing to an end the previous uncertainties surrounding the application of s 92 of the Constitution, the High Court in Cole v Whitfield (1988) 165 CLR 360 at 385-392 surveyed the history and evolution of what became s 92 of the Constitution and its evident purpose. At 391 the Court said:
“The purpose of the section is clear enough: to create a free trade area throughout the Commonwealth and to deny to Commonwealth and States alike a power to prevent or obstruct the free movement of people, goods and communications across State boundaries.”
The purpose of the section was to ensure an area of free trade “in which legislative or executive discrimination against interstate trade and commerce should be prohibited” (at 393). The section does not confer a private right to damages, nor has it ever purported to interfere with contractual rights to which no government entity is a party. Accordingly, there is no substance in this claim.
Restraint of trade
Whether a restraint of trade will be struck down does not depend on the restraint being embodied in a contract. It may be found in the rules of an organisation such as that of the defendant: Buckley v Tutty (1971) 125 CLR 353.
Whether there is a relevant restraint
The first point to determine is whether Rule 2.2 of Section B of the CBT Competition Regulations constitutes a relevant restraint. It purports to prevent a netball player from playing for a CBT Competition team unless the player is a resident of the State or Territory of the member organisation for which she is to play. Unless otherwise approved by the defendant, she must be so resident for four weeks prior to the commencement of the competition through to its completion.
As the evidence in this case demonstrates, it is possible to play netball at CBT Competition level for a team based in one State while being resident in another. That is due in part to the national nature of the relevant competition, to the relative ease of travel between centres where the competition is played and to the willingness of a team or coach not to require attendance of the player in question at all training or practice sessions. A residential requirement of this nature therefore constitutes a practical restriction on the ability of a person to play for a team of a member organisation not based in the State of the player’s residence.
In the case of the plaintiff, whose circumstances may well be repeated in other cases, the restraint imposed by Regulation 2.2 operates in three ways. First, as a netball player resident in New South Wales, if she is not selected to play for one of the two New South Wales netball teams in the CBT Competition, she is prevented from earning income by way of sign-on fee and match payments at a competition level for which she is qualified, unless she takes up residence in another State or Territory. Secondly, by being so deprived, she is also deprived of the opportunity to earn coaching and endorsement fees from other bodies at a level which is not available to a netball player in Australia unless she is a member of a CBT Competition team.
Thirdly, if, not being selected for a New South Wales CBT Competition team, she wishes to exploit her abilities with a team from another State, she is effectively required to terminate her other employment in New South Wales and thus be deprived of the ability to earn an income in her chosen field of civilian employment. In the plaintiff’s case, this was somewhat specialised employment as corporate suite and sales coordinator for the Sydney SuperDome, being employment specific to the State in which she resided. She was required to reduce substantially her income from that source if she worked there only part-time or to lose it entirely if that employment effectively prevented her from becoming a resident of South Australia. The alternative employment she found in South Australia did not match her income from employment at the Sydney SuperDome. The effect on the plaintiff is perhaps greater than might be the case for most, and the alleged restraint should not be judged by its particular effect on an individual. Even so, the residence requirement operates only for the duration of the competition season and four weeks before. For a person who complies with the regulation for that period alone, the chance of obtaining secure employment at the level enjoyed in the “home” State is not great. In that sense, the restriction adds a further practical disincentive to play for a team in other than one’s “home” State.
There are other economic disincentives, which by virtue of Rule 2.2, may well tip the balance against an appropriately skilled player permanently resident in one State being able to play for a team based in another State or Territory. That option may involve other costs, such as selling a home, buying or renting a new one, removal expenses, sacrificing a spouse’s income and interruptions to a chosen career or course of education of the player or members of her family.
The Regulations do contain what may be ameliorating provisions by the dispensing power of the Eligibility Committee contained in Regulation 4.4, if the application “involve(s) special circumstances”. There is also a right of appeal against a decision of the Eligibility Committee to the Board of the defendant. However, the regulations give no guidance as to what will constitute “special circumstances”. The plaintiff’s circumstances in this case were apparently insufficient for the Eligibility Committee to justify an exemption to the plaintiff from the regulations for the 2003 season.
The common law rule regarding restraint of trade is stated in the well-known judgment of Lord MacNaghten in Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535 at 565:
“The true view at the present time I think, is this: the public have an interest in every person’s carrying on his trade freely; so has the individual. All interference with individual liberty of action in trading, and all restraints of trade of themselves, if there is nothing more, are contrary to public policy, and therefore void. That is the general rule. But there are exceptions: restraints of trade and interference with individual liberty of action may be justified by the special circumstances of a particular case. It is a sufficient justification, and indeed it is the only justification, if the restriction is reasonable -- reasonable, that is, in reference to the interests of the parties concerned, and reasonable in reference to the interests of the public, so framed and so guarded as to afford adequate protection to the party in whose favour it is imposed, while at the same time it is in no way injurious to the public.”
See also Adamson v NSW Rugby League Ltd (1991) 31 FCR 242 at 265.
I defer for the moment consideration of whether the restriction in this case is reasonable, but as was held in Adamson (Wilcox J at 267; Gummow J at 284), there will be a relevant restraint if a professional player is prevented from playing for the club of his or her choice. In the context which I have described, Regulation 2.2 constitutes such a restraint.
Whether the restraint is a restraint of trade
The next question is whether the restraint constitutes a restraint of trade. The doctrine clearly applies to restraints on contracts of employment, including contracts of employment for sporting bodies which may only be part-time: Buckley v Tutty (supra) at 371 - 372. It is not essential that a player derive her entire or even a substantial part of her income from playing netball. In Hughes v WA Cricket Association Inc (1986) 19 FCR 10 Toohey J said at 49:
“It is not essential that the sports person derive his or her entire income from practising the sport. Many of the cases have concerned footballers who played for reward but who were gainfully employed in other occupations as well. It is not to the point that many, if not most, of those playing the sport in question do so as amateurs, so long as the person whose rights or interests are said to have been affected is a professional.”
It is not necessary to decide whether the plaintiff was an employee of the club for which she played. I have before me the contract which she entered into with SANA whereby she agreed to play for the Adelaide Thunderbirds. The important thing is that it contains a number of covenants conferring rights and imposing obligations on both parties, including particulars of the plaintiff’s remuneration or its method of calculation. There is an acknowledgment that, as a player for the Thunderbirds, the player will seek and obtain opportunities to “market” herself through sponsorship, advertising, promotion and marketing. The player also has certain obligations to assist and cooperate with requirements of the team sponsors and SANA to maximise their promotional benefits.
In my opinion, for the purposes of the notion of restraint of trade, the applicant is a professional netball player even though her income from playing netball and associated activities may be less than that derived from other civilian employment. In the year ending 30^th June 2002 the gross income which she derived from playing fees, coaching and promotional activities, as disclosed in her tax return for that year, was $6,441.00. The remuneration received from her employment at the Sydney SuperDome was $38,438.00.
It was submitted that, so far as concerns each individual player, any trade is de minimis and that the relationship between the player and the club is not predominantly commercial. I disagree. There are commercial obligations imposed on both parties. The remuneration from playing netball will vary from one player to another, but an important beneficial adjunct to playing for a CBT Competition team is the ability to “market” oneself and derive further income from sponsorship, promotion, coaching, representation and the like. The evidence suggests that the captain of the Thunderbirds team for 2003 was able to work full-time and to derive sufficient income from her netball and associated activities as not to be required to supplement her income from other sources. Whilst netball and related activities did not provide the main source of income for the plaintiff, I am satisfied that it was sufficiently significant for her to be regarded as a professional netball player.
As evidence of not being engaged in trade, the defendant points to an Australian Taxation Office form signed by the plaintiff on 18 July 2001 entitled “Statement by a supplier. Reason for not quoting an Australian Business Number (ABN) to an enterprise”. In that form, supplied to an unnamed recipient of her services, although I am prepared to assume for present purposes that it was the proprietor of the team for which she was then playing, she states that the supply of her services is made “in the course of an activity that is a private recreational pursuit or hobby”.
Several points must be made about that form. In the first place, it was signed in July 2001. I have no evidence as to what the plaintiff’s earnings were at that time. Secondly, no such form has been produced in relation to her earnings, or potential earnings in 2003. Thirdly, the only purpose of the form would appear to be to prevent the deduction by the recipient of her services of penal rates of taxation in the absence of provision of an Australian Business Number. In the fourth place, the evidentiary weight to be given to the form in support of the assertion that the plaintiff was not engaged in trade is somewhat diminished when there is also evidence that on 23 July 2001 the Australian Taxation Office issued the plaintiff with an Australian Business Number, effective as from 2 July 2001, the plaintiff being described in the Australian Business Register as a “sole trader”. The only reason she would need to have registered was because of her netball and associated activities.
In all the circumstances I am satisfied that the restraint was a restraint of trade to which the common law doctrine applies and that the plaintiff has a sufficient interest to obtain a declaration of the invalidity of the restraint. The restraint must therefore be held to be void unless the defendant is able to establish that the restraint is reasonable in the sense described by Lord MacNaghten in Nordenfelt.
Whether the restraint is reasonable
Wilcox J, in Adamson (at 266), referred to the notion of “reasonableness” of a restraint as involving “a balancing of competing considerations”. However, it is something more than that. Wilcox J himself went on to say (at 266):
“… The more onerous the restraint, the more difficult it is for the person seeking to enforce the restraint to satisfy a court that it was, in all of the circumstances, no more than was reasonably necessary for the protection of his or her interests.”
His Honour was saying, as did Sheppard J at 247, that the protection of the interests of the person imposing the restraint cannot be viewed in isolation. One must also examine the consequences or potential consequences upon the person subject to the restriction.
Gummow J expressed it this way (Adamson at 289 - 290):
“The High Court [in Buckley v Tutty] did not state the ultimate question as being whether, in some broader sense, the restraint was unreasonable. The restraint in such cases strikes at the essential interest of each player in being free to play with the club of his choice. Therefore (and this vindicates the interests of the players) it is void, unless shown to provide no more than adequate protection to the interests of the sporting bodies. That inquiry may, as in this present case, require the court to have regard to the special character of the area in which the restraint operates, and thus ‘to the special interests of those concerned with the organisation of professional football’ (an expression used by Wilberforce J in Eastham v Newcastle United Football Club Ltd … . In so doing, the court perhaps inevitably, will have to consider aspects of the position of players because what is put forward as constituting those ‘special interests’ of the organisers will include contentions as to why their dealings with players, pursuant to the combination, have to take, or should take, a particular form. But that is not to undertake a ‘balancing’ exercise with a comparative evaluation of the weight of the interests of organisers and players. It is to test the justification attempted by those in adverse interest, in the litigation, to the players.
… What [the defendant] had to show was that the restraint was reasonably related to the objects of the League or the clubs, and that the restraint afforded no more than adequate protection to the interests of the League and the clubs. Otherwise it would be void.”
See also Wickham v Canberra District Rugby League Football Club Ltd (1988) ATPR 641 - 644 at 41, 398, Miles CJ
There is one other aspect of reasonableness which requires comment. It is best illustrated by what Wilcox J said in Adamson at 281:
“I do not doubt that those who framed the internal draft rules did so carefully and from the best of motives. Nor do I doubt that those people would feel themselves to be genuinely concerned with the welfare of the players. As is obvious from the evidence in this case, most of the people who are presently concerned with the administration of the League and its constituent clubs have given many years of devoted service to Rugby league. But this case cannot be decided by reference to sincerity and motive. As is conceded, the internal draft rules impose a significant restraint upon the employment opportunities of those players who are affected by them. If that restraint is enforceable, it can only be because it does no more than reasonably protect the interests of the respondents, having regard to its effect upon the players. If it does not, it would be impermissible to decide the matter by reference to the motives, sincerity or integrity of those who imposed the restraint. Nor is it permissible to give the respondents the benefit of any doubt. The onus of justifying the restraint lies on the respondents, not the appellants. If the court is left uncertain as to justification, it must find for the appellants.”
Wilcox J was there speaking of the New South Wales Rugby League Ltd and the internal draft rules in question in that case. However, his comments apply with equal force to those concerned in the administration of netball in Australia. I have no doubt about the genuine concerns for the sport of netball held by those responsible for the administration of the sport in Australia or about their sincerity and integrity in writing the CBT Competition Regulations.
The onus on the defendant in a case like this is sometimes a difficult one. There is often available evidence of the restrictive effect the rule in question has on the access of suitably qualified players to effective participation in the sport. I have already referred to the effect of the residency rule in this case on access of persons to the CBT Competition. However, as in this case, there is often very little evidence as to how the restrictive rule advances or protects the legitimate interests of those administering the sport. A suitable warning was sounded by Gummow J in Adamson at 286:
“In deciding whether there are special circumstances justifying a restraint of trade, the court should be wary of placing weight upon ‘improbable and extravagant contingencies as indicating the restraint to be unreasonable’: see Haynes v Doman [1899] 2 Ch 13 at 26. Evidence from persons in the trade or occupation in question is admissible to inform the court of the nature of that trade or occupation, what is customary in it, and of any particular dangers requiring precautions, but evidence from persons in the trade or occupation stating their views of the reasonableness of the restraint is inadmissible. This is because it is directed to the ultimate question, which is one of law: …
In this situation, evidence was admissible from persons associated with rugby league competition football as to the nature of that activity, any threats to the continued success of the game, and as to the nature of the economic forces at work.” (References omitted)

One must therefore be wary of opinions and predictions expressed by those who might have a personal interest in defending or invalidating the relevant rule. Apart from any direct evidence which might be available as to the effect of certain provisions, the question is very much one of examining the nature of the sport, how it is organised, the principal threats to its continued success and the nature of the economic forces at work. It will then be a matter of inference from those facts as to the likely effect of retaining or removing the relevant rule. However, as the defendant bears the onus of establishing the reasonableness of the rule, it will need to discharge that onus either by acceptable evidence as to the probable effects of the rule or of its removal or by satisfying the court that the necessary inferences should be drawn.
With those principles in mind I turn to consider the reasonableness of the restraint imposed by Regulation 2.2. In particular I remind myself that what the defendant must show is that the restraint is reasonably related to the objects of the defendant or of its constituents and that the restraint affords no more than adequate protection to the interests of the defendant and its constituents: Adamson, Gummow J at 290.
I have already recited the principal objects of the defendant stated in its Memorandum of Association. Some of the more obvious ways in which those objects are promoted would appear to be the provision of facilities for the training of players and the playing of competition netball, the provision of facilities for the enjoyment of players and spectators, the organising of competitions and the promotion and marketing of the sport among players and spectators. I accept that the organising of competitions and the promotion of the sport by that means also requires, as a subsidiary objective, ensuring as far as possible the competitiveness of teams so that there is an even competition. It also requires the continued financial viability of clubs who provide the teams and the encouragement and training of junior players.
I can also rely as evidence of objectives of the organisation regarding the CBT Competition, on a review of those objectives of the CBT conducted by the board of directors of the defendant in August 2000. Those objectives were stated to include:
·    Produce an ongoing, strong, dynamic national competition aimed at improving player standards.
·    Increase public profile and awareness of the sport to maintain/increase participation.
·    Increase sponsorship and marketing opportunities to generate revenue.
Under the first of such objectives included in “Discussion Points” were “National” (by which I infer the need for a national competition), “Ultimate aim is to include all MO’s” and, significantly, “All players have access”. Given the restrictions I have identified based on the application of Regulation 2.2, the regulation would appear to be inconsistent with one of the significant strategies designed to implement that first objective. In that respect, it cannot be said that the rule advances the interests of the defendant and its constituents. Indeed, if anything, the present rule would appear to restrict some players worthy of selection in the CBT Competition from being selected.
Ms Taylor was called to give evidence for the defendant. She has a long experience in the administration of netball at State and national levels. She has been on the board of the defendant since 1980 and has been its President since 1995. She has presided over some of the major changes that have occurred in the administration of competitions at the national level. She identified the main reason for holding a residency requirement as a “development tool” for the game. She explained that by saying:
“… We felt for a club, for it to be a club team or a club-based nature of a competition it needed to develop some loyalties and some community involvement in the competition, so that the local people who were going to be supporting the teams had some means of connecting to the team and having, I suppose, the local hero-type opportunities for the younger netballers and just supporters to be able to follow. If you don’t have a connection with the State or the location, it’s hard to develop those loyalties and community involvement.”
It is questionable whether that type of personal loyalty is generated by a residence requirement or merely by membership of and playing for the team in question. Perhaps more significant, however, is the possible short duration of the residence requirement itself, being a requirement that the player reside only for the duration for one season plus four weeks before its commencement. While it is a significant restriction on the player’s ability to play netball in some circumstances, such a requirement is unlikely to achieve the type of loyalty referred to by Ms Taylor any more than the obligation imposed by Regulation 2.7 that a player cannot play under more than one team in a season. That regulation is not under challenge.
It might be different if the CBT competition was a true interstate competition. One could sympathise in such a case with the need to develop some form of tribal loyalty based on State or Territory loyalty of both players and supporters. However, this is not an interstate competition of that nature. It comprises up to eight of the best teams available in Australia, with the States in which the sport enjoys greatest popularity fielding more than one team competing against each other. There is no question of State loyalty, and the participating teams are not territorially-based, even in their own State.
It is also argued by the defendant that the restriction is narrow in its operation. It applies only to the CBT Competition. It does not restrict the playing of netball at other levels. That is true, but the restriction must be examined against the practical reality that the present stage of development of netball in Australia is such that, whilst players at some other levels might be able to attract small monetary payments, the only level at which a player has any prospect of earning a reasonable sum from netball and its associated activities is as a player in the CBT Competition.
It is also said that the larger and wealthier clubs from larger cities, without Regulation 2.2, could exploit their position of advantage from a larger population base and their greater income-generating ability. There is nothing in the evidence to suggest that will or might occur. Indeed, the evidence in this case suggests that the absence of the rule might work to the advantage of a team from a smaller State being able to exploit the talents of a player at CBT Competition level who is excess to the requirements of the team or teams in the more populous State.
It was also argued that there was no evidence that Regulation 2.2 has been disadvantageous to any club, to teams or to players as a whole. There are two responses to that suggestion. In the first place, it is not a relevant question. The question is whether what has found to be in restraint of trade is reasonable in the interests of the defendant and its constituents. In the second place, there is no evidence that Regulation 2.2 has been instrumental or beneficial in obtaining what I have identified as the goals and legitimate aspirations of the defendant and its constituents. What can be concluded from the evidence is that fundamental to the success of the sport is the need for continued and extended commercial sponsorship, the maintenance and growth of spectator levels, continued extensive media coverage and the generation of the interest and aspirations of young players. However, I am not persuaded that the presence of Regulation 2.2 has enhanced those factors or that it will continue to do so.
Finally, Regulation 2.2 is relied on to ensure proper participation in training sessions and coaching clinics promoted by the team of which the player is a member. No-one would doubt that for any elite netball player or player of any other sport, training is an ongoing necessity. To the extent that a requirement to train and to train with a team in a team sport creates a restraint, it would, almost without exception, be reasonable in the legitimate interests of the team in question. However, a residence requirement is not a requirement to train. In the case of the plaintiff, and it may well be the case for other elite players, the Thunderbirds team and its coach did not see the necessity for the plaintiff to train continuously with the team, and arrangements were made for an alternative training regime. If a more rigorous training regime were to be necessary, there could be no complaint if that were a team-imposed requirement. Much the same can be said about requirements that members of the team engage in coaching clinics. It may be in the legitimate interests of the team to impose a minimum coaching requirement in the contract. It does not need a residence requirement to ensure that.
In all the circumstances I am not satisfied that the residence requirement of Regulation 2.2 is reasonable by reference to the interests of the defendant and its constituents. As the restraint is not reasonable to protect the legitimate interests of the defendant and its constituents, the question whether the plaintiff can show the restraint is in some other way contrary to the public interest does not arise: D & A Newman Pty Ltd v Barossa Cooperative Winery Ltd (1981) 28 SASR 501 at 515, 528 - 529.
Conclusion
The plaintiff relied heavily on the decision of the Supreme Court of Victoria in Nobes v Australian Cricket Board (Unreported, 16 December 1991, Marks J) as being decisive of the result in this case. I disagree. That case concerned the rules of the Sheffield Shield interstate cricket competition which contained a similar State residence qualification before playing for a State team. The rule was declared to be invalid as being in restraint of trade. However, that case merely involved the application of similar principles to the facts of that case, both as to whether there was a relevant restraint of trade and as to whether, in the circumstances, the restraint was reasonable. It is not authority for the proposition that a State residence qualification for a national sporting code will necessarily be invalid. As in that case, it is the factual circumstances of this case which give rise to the invalidity in accordance with the requirements of the common law.
It is for these reasons that I made the declaration that Regulation 2.2 of section B of the CBT Trophy Competition Regulations was void and that the plaintiff was not, by virtue of that Regulation, ineligible to play netball for the Thunderbird netball team for the duration of the Competition in 2003.

[2004] SASC 56

26 February 2004