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

AVELLINO v ALL AUSTRALIA NETBALL ASSOCIATION LTD
[2003] SASC 281
Civil

PERRY J. Ms Avellino has asked the Court to order that the All Australian Netball Association be restrained from preventing her from playing for the Adelaide Thunderbirds in what remains of the 2003 Commonwealth Bank trophy competition.
She argues that the national association has wrongly ruled that she is ineligible to play for the Thunderbirds on the ground that she is not a resident of South Australia within the meaning of the rules of the competition.
Last Friday, 15 August 2003, I made an order restraining the national association from preventing her from playing in the Thunderbirds team, which that night played in Canberra. That was a temporary or interim order intended to carry over only to this week when I would have an opportunity to hear more extended argument as to the difficult questions involved.
Yesterday I heard counsel for the parties present more detailed arguments. What must be made clear is that these arguments were still directed to the question whether an interlocutory injunction, which is the legal term for a restraining order made pending the trial of an action, should be ordered. There has been no opportunity at this stage to embark on a full-scale trial of the action, which would involve hearing oral evidence from the witnesses and making a final ruling.
In those circumstances, the task for the Court is to determine whether there is a serious question to be tried, and whether the balance of convenience favours the making of the order sought.
The answer to those questions must be made in the context of all of the relevant circumstances as disclosed by the affidavit evidence. No evidence has yet been given in the witness box. There has been no trial of the action. A final decision cannot yet be given.
Ms Avellino puts her case forward on several grounds. She argues that she is in fact a resident of South Australia and has been during the qualifying period. Separately, she contends that the rules imposing a residential requirement are invalid.
The rules of the national association provide that a player who wishes to play in one of the State or Territory teams must satisfy a residential requirement, in terms that the player be a resident of the home State or Territory of the team for four weeks (or a shorter period which may be approved for that purpose by the eligibility committee of the national association) before the commencement of the annual competition. In this case, that period was shortened on the application of Ms Avellino or the Thunderbirds on an intimation by Ms Avellino that she would take up residency in this State in April 2003.
Although she did come to South Australia then, and contends that she has been a resident since then within the meaning of the rules, the national association disputes that this was so.
Eventually the eligibility committee of the national association considered the matter, and on 23 May 2003 notified the South Australian association that Ms Avellino was ineligible to play, as the committee was not satisfied that she was a resident of South Australia within the meaning of the rules.
On 21 July 2003 Ms Avellino instituted proceedings in this Court which sought orders which effectively reversed that decision, by claiming an order that the national association be restrained from preventing her from playing.
A large number of affidavits have been filed, and I have had lengthy argument from legal counsel on both sides.
This is one of those cases where the ruling on the application for an interlocutory injunction will effectively determine the ultimate outcome of the case. If Ms Avellino fails in this application, it is doubtful whether there would be an opportunity to bring the matter on for trial before the national netball season comes to an end.
The first element in the legal test applicable to an application for an injunction of this kind is whether there is a serious question to be tried. But in a case such as this, while that remains the first element of the test, an order granting the injunction could only properly be granted if the evidence established a clear case in favour of Ms Avellino.
This is so, as unless the Court could be reasonably sure that she will ultimately succeed in her action, it would be unwise to accede to the application.
The reasons for this are obvious.
If she was to be permitted to play in the one remaining minor round game, and in the finals if the Thunderbirds were successful in qualifying for the finals, a very difficult situation could arise later, when her case ultimately came to trial, if it was found either that the residential requirements were not met, or that the attack on the validity of those requirements failed.
In those circumstances, if they should arise, the outcome of the competition would be thrown into uncertainty. Conceivably, a team may have ostensibly won but with the assistance of a player ultimately found to have been ineligible to play.
Against that background, I have carefully assessed the evidence put before me and the arguments put on both sides. I stress that since the interim order which I gave, made last Friday, I have been given much further evidence and much more extended arguments.
Obviously no party is likely to be fully satisfied with the outcome. Either Ms Avellino will be disappointed if she cannot play, or the national association and its constituent members will be upset if she is permitted to play, with the unresolved possibility that she may ultimately be ruled to have been ineligible.
At the end of the day, after carefully considering the arguments on both sides, I have reached the conclusion that it would not right to allow her to play.
My reasons for reaching that conclusion may be summarised in this way.
(a)Her case that she has been a resident of South Australia since 8 April 2003 has not been established clearly enough for me to entertain sufficient confidence in her ability to sustain the legal arguments associated with that question to justify the making of the order sought.
(b)Her case against the validity of the regulations which have been laid down by the national association, while arguable, is not so strong as to justify the order sought.
(c)Even if on those two questions there is within the meaning of the relevant legal tests a serious question to be tried, the balance of convenience does not support the order sought. That is for the reasons which I have already explained, more particularly, the embarrassment to the competition if she played in the team but was ultimately held to be ineligible to do so.
(d)I have also taken into account that there were appeal rights within the national association which gave to Ms Avellino an opportunity, if she had chosen to follow that course, to bring an appeal in accordance with the rules of the national body. Courts are reluctant to interfere with the affairs of sporting bodies in circumstances in which the internal processes, which in this case include an appeal process, have not first been exhausted.
The formal order is that the application for an interlocutory injunction is dismissed.
I will hear counsel as to any other orders which they may wish to be made in light of my ruling.

[2003] SASC 281

20 August 2003