Campagnolo v Benalla and District Football League Inc
[2009] VSC 228
•11 June 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 5329 of 2009
| KEN CAMPAGNOLO | Appellant |
| V | |
| BENALLA AND DISTRICT FOOTBALL LEAGUE INC | Respondent |
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JUDGE: | HANSEN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 April 2009 | |
DATE OF JUDGMENT: | 11 June 2009 | |
CASE MAY BE CITED AS: | Campagnolo v Benalla and District Football League Inc | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 228 | |
JUDGMENT APPEALED FROM: | Orders of Daly AsJ made 3 April 2009 on application for leave to appeal from Victorian Civil and Administrative Tribunal (Senior Member Megay) [2009] VCAT 97 | |
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PRACTICE AND PROCEDURE – VCAT – Discrimination complaint – Struck out as not arguable – Application for leave to appeal from VCAT – Leave refused by Associate Judge – Appeal – No prima facie case – Equal Opportunity Act 1995.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms F I O’Brien SC and Ms S Aufgang | Disability Discrimination Legal Service Inc |
| For the Respondent | Mr T O Jacobs | Middletons |
HIS HONOUR:
This is an appeal from the order of an Associate Judge made on 3 April 2009 whereby the appellant’s application for leave to appeal from orders made by a senior member of the Victorian Civil and Administrative Tribunal (“the Tribunal”) was dismissed with costs.
The order of the Tribunal, made on 9 February 2009 on the respondent’s application under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (“the Act”), was that the appellant’s complaint against the Benalla and District Football League Inc (“the League” or “the respondent”) in proceeding A169/2008 be struck out[1]. The complaint, which the appellant had lodged with the Victorian Equal Opportunity and Human Rights Commission (“the Commission”) on 17 April 2008, alleged discrimination on the basis of sexual orientation. The League, which is the respondent to the present appeal, conducts a competition in which the Bonnie Doon Football Club Inc (“Bonnie Doon” or “the Club”) participates as a member of the League.
[1]Campagnolo v Bonnie Doon Football Club Inc [2009] VCAT 97.
The appellant also (on 17 April 2008) lodged a complaint against Bonnie Doon arising out of the same circumstances; that complaint was not the subject of an application under s 75 and remains pending in the Tribunal.
Section 75 of the Act provides that:
“(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion—
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)is otherwise an abuse of process.
(2) …
(3) ...
(4) An order under subsection (1) or (2) may be made on the application of a party or on the Tribunal's own initiative.
(5) For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.”
The application for leave to appeal to this Court was made pursuant to s 148(1) of the Act which provides that a party may appeal to the Supreme Court on a question of law from an order of the Tribunal if the Court gives leave to appeal. The order of the Associate Judge was made on the return of a summons seeking leave to appeal, pursuant to O 4, r 4.08(1) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008. Rules 4.09(1) and (2) provide that:
“4.09 Hearing of application
(1)On the hearing of the summons the Associate Judge may grant or refuse leave to appeal.
(2)Without limiting paragraph (1), the Associate Judge may refuse leave to appeal if satisfied—
(a)that the applicant does not have a prima facie case on appeal; or
(b)that to refuse leave would impose no substantial injustice.”
The appeal from the Associate Judge is by rehearing de novo. Notwithstanding, it can be helpful to have the reasons of the Associate Judge; however that may be, the reasons were not transcribed and I was not provided with a record of them. Nevertheless it is apparent on the argument before me that leave to appeal is opposed on the basis that there is not a prime facie case on appeal. Generally as to the approach to the grant of leave to appeal, see Secretary to the Department of Premier & Cabinet v Hulls[2]. The respondent did not rely on the “no substantial injustice” ground in r 4.09(2)(b). If the respondent had relied on that ground, in the circumstances I would have been inclined to think, if there were a prima facie case on which to appeal, that the appropriate course would have been to grant leave to appeal.
[2][1999] 3 VR 331 at [16].
In the complaint against Bonnie Doon the appellant alleged, in summary:
(a)The appellant had been the sports trainer at Bonnie Doon since 2001 and had acted as trainer in 678 games with that Club and Mansfield Football Club.
(b)Bonnie Doon is a member of the League.
(c)The appellant was a bisexual man whose status as such had been known to Bonnie Doon, its players and President since 1997. His sexual orientation had never been an issue.
(d)In February 2007 the appellant’s status as a bisexual man became a matter of public interest following a complaint of discrimination on the basis of sexual orientation and sexual harassment which he made against the Department of Sustainability and Environment.
(e)On 10 April 2007 Bonnie Doon’s President said to the appellant that he and Bonnie Doon were worried about what parents of young players would think of a bisexual man being the sports trainer, and that while it was alright for him to be around the Club his services were no longer required and his position as sports trainer was terminated. In this way Bonnie Doon directly discriminated against the appellant.
(f)On 22 April 2007 Bonnie Doon’s Senior Coach spoke to the appellant, referred to an article concerning a matter to be published in the Herald Sun and threatened to harm him. The appellant believed that the Senior Coach was aware that the Herald Sun article would contain information that Bonnie Doon had acted in a way that constituted a contravention of the Equal Opportunity Act 1995 as well as statements by the appellant complaining of this behaviour. As such the appellant believed that the Senior Coach victimised him because of his complaint.
(g)Bonnie Doon was vicariously liable for the actions of the Senior Coach on the basis that it did not take reasonable precautions to prevent the contravention of the Equal Opportunity Act.
In the complaint against the respondent the appellant alleged, in summary:
(a)The respondent failed to intervene or provide necessary advice or assistance to the appellant in his situation, despite having the capacity and authority to do so, and as it would have done if he had raised issues of racial discrimination or if as a trainer he had been assaulted by a spectator at a match.
(b)The President/Secretary of the respondent knew the appellant and had been interviewed by the media about the appellant’s situation. He knew of the appellant’s sexual orientation and had publicly admitted it was common knowledge locally. The appellant did not approach the President/Secretary but assumed he would contact him about the matter as the representative of the respondent. But no-one from the respondent contacted him. The appellant assumed from this that the respondent agreed with the decision made by Bonnie Doon and its President.
(c)The respondent is vicariously liable for the actions of its employees and agents, constituting discrimination and victimisation, on the basis that it did not take reasonable precautions to prevent contravention of the Equal Opportunity Act.
The respondent’s s 75 application, dated 20 October 2008, relied on the grounds in paras (a) and (b) of s 75(1).
On 20 October 2008 a Deputy President of the Tribunal ordered that:
(a)The appellant provide particulars of his complaint against the respondent.
(b)The respondent file and serve submissions in support of its application and all the material on which it intended to rely in support of the application.
(c)The appellant file and serve submissions in reply and all the material on which he intended to rely.
(d)The strike out application be heard on 30 January 2009.
Pursuant to these directions the respondent filed and served a written submission dated 14 November 2008 and an affidavit of the general manager of the respondent sworn on 14 November 2008. I note that the deponent of this affidavit is the person referred to in the appellant’s complaint as being the President/Secretary of the respondent. In his affidavit he deposed as follows:
(a)As general manager he was responsible for the general operations of the League, including administration and the draw and organisation of matches played by the clubs in the League. The League organises the home and away and finals matches played by the clubs.
(b)The League has five clubs, including Bonnie Doon.
(c)The League is an incorporated association; he exhibited its Rules and Regulations.
(d)Bonnie Doon is also an incorporated association. It is a separate entity responsible for organising its own coaches, players, finances, administration and other staff.
(e)Bonnie Doon does not have general authority to act on behalf of the League. In respect to Bonnie Doon’s conduct alleged by the appellant, Bonnie Doon did not have specific authority to act on behalf of the League.
The strike out application was duly heard on 30 January 2009 before Senior Member Megay. The hearing was transcribed. The appellant represented himself. The respondent was represented by counsel. In addition to the above submission and affidavit of the respondent, the appellant had filed a bundle of documents comprising media articles and other documents pertaining to the appellant; the bundle was produced to me as an exhibit to the respondent’s affidavit. No witness was called to give evidence at the hearing which was conducted by counsel and the appellant addressing submissions to the Senior Member who at the conclusion of argument reserved her decision.
On 9 February 2009 the Senior Member published her reasons for decision. Concluding that the complaint was “entirely misconceived and manifestly hopeless”[3] she ordered that the complaint against the respondent is struck out.
[3]Reasons at [38].
On 10 March 2009 the originating motion seeking leave to appeal was filed along with an affidavit sworn in support by the principal solicitor of the Disability Discrimination Legal Service Inc acting on behalf of the appellant. The affidavit exhibited a draft notice of appeal which set out a series of 12 questions purportedly as questions of law on which it was desired to appeal. I need not set them out as before me counsel for the appellant relied on four questions of law set out in an amended notice of appeal. The amended notice has been placed on the file duly initialled by me. The questions are:
(a)Is the respondent League a “governing body” within the meaning of s 60 of the Equal Opportunity Act?
(b)Did the respondent League discriminate against the appellant in omitting to exercise its powers in para 22 of its Rules and Regulations within the meaning of s 11(b) and s 65 of the Equal Opportunity Act?
(c)Was the Tribunal confined to s 109 of the Equal Opportunity Act in exercising a power to strike out a complaint under that Act?
(d)Was the Tribunal bound to satisfy itself that the whole of the case the appellant wished to put was before it prior to striking out the complaint?
It is convenient now to refer to relevant provisions of the Equal Opportunity Act. Part 3 of the Act contains a number of provisions which identify when discrimination is prohibited: relevantly ss 42, 60 and 65. Part 6 contains provisions prohibiting other conduct and concerning vicarious liability for discrimination: relevantly ss 96, 97, 98 and 102. Finally, there is s 109 in Part 7 – Complaints and their Resolution.
Before referring to these provisions it is important to note the earlier provisions in Part 2 (comprising ss 6-12) which give meaning to the concept of discrimination. Section 6 relevantly provides that:
“6 Attributes
The following are the attributes on the basis of which discrimination is prohibited in the areas of activity set out in Part 3—
…
(l)sexual orientation;”
“Sexual orientation” is defined in s 4(1) to include “bisexuality”. Section 7 provides that:
“7 Meaning of discrimination
(1)Discrimination means direct or indirect discrimination on the basis of an attribute.”
Then follow s 8 (direct discrimination) and s 9 (indirect discrimination) which relevantly provide that:
“8 Direct discrimination
(1)Direct discrimination occurs if a person treats, or proposes to treat, someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances.
(2)In determining whether a person directly discriminates it is irrelevant—
(a)whether or not that person is aware of the discrimination or considers the treatment less favourable;
(b)whether or not the attribute is the only or dominant reason for the treatment, as long as it is a substantial reason.
9 Indirect discrimination
(1)Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice—
(a)that someone with an attribute does not or cannot comply with; and
(b)that a higher proportion of people without that attribute, or with a different attribute, do or can comply with; and
(c)that is not reasonable.
(2)Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including—
(a)the consequences of failing to comply with the requirement, condition or practice;
(b)the cost of alternative requirements, conditions or practices;
(c)the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice.”
Section 10 provides that in determining whether a person discriminates, the person’s motive is irrelevant.
Section 11 provides that:
“11 Discrimination by acting with others and by not acting
It is irrelevant whether discrimination occurs by a person—
(a)acting alone or in association with any other person;
(b)doing an act or omitting to do an act.”
It is in this context that ss 42, 60 and 65 provide as follows:
“42 Discrimination in the provision of goods and services
(1)A person must not discriminate against another person—
(a)by refusing to provide goods or services to the other person;
(b)in the terms on which goods or services are provided to the other person;
(c)by subjecting the other person to any other detriment in connection with the provision of goods or services to him or her.
(2)Subsection (1) applies whether or not the goods or services are provided for payment.
60 Discrimination against club members
A club, or a member of the committee of management or other governing body of a club, must not discriminate against a member of the club—
(a)by refusing, or failing to accept, the member's application for a different category or type of membership;
(b)by denying or limiting access to any benefit provided by the club;
(c)by varying the terms of membership;
(d)by depriving the member of membership;
(e)by subjecting the member to any other detriment.”
Section 65 is concerned with discrimination in sport and provides that:
“65 Discrimination in sport
A person must not discriminate against another person—
(a)by refusing or failing to select the other person in a sporting team;
(b)by excluding the other person from participating in a sporting activity.”
Referring then to Part 6 of the Act, s 96 provides that “A person must not victimise another person”. Section 97(1) states that a person victimises another person if:
“… the person subjects or threatens to subject the other person to any detriment because the other person, or a person associated with the other person—
(a)has made a complaint against any person;”
Section 98 deals with a person authorising or assisting discrimination. It provides that:
“98 Prohibition of authorising or assisting discrimination
A person must not request, instruct, induce, encourage, authorise or assist another person to contravene a provision of Part 3, 5 or 6.”
Vicarious liability is provided for in s 102 as follows:
“102 Vicarious liability of employers and principals
If a person in the course of employment or while acting as an agent—
(a)contravenes a provision of Part 3, 5 or 6; or
(b)engages in any conduct that would, if engaged in by the person's employer or principal, contravene a provision of Part 3, 5 or 6—
both the person and the employer or principal must be taken to have contravened the provision, and a complaint about the contravention may be lodged against either or both of them.”
Finally, s 109 makes provision for a respondent to a complaint to apply to the Tribunal to strike out the complaint. The appellant relies on this provision so I set it out:
“109 Respondent may apply to Tribunal to strike out complaint or any part of complaint
(1)A respondent may apply in writing to the Tribunal to have a complaint or any part of it struck out on the grounds that it is frivolous, vexatious, misconceived or lacking in substance.
(2)The application may be made at any time—
(a)before the respondent has been given a notice to attend under section 114(2)(a) or has otherwise been notified by the Commission or the Chief Conciliator of a date for conciliation; or
(b)after the conciliation has been completed but before the complaint has been referred to the Tribunal.”
I now refer to the Tribunal’s reasons for striking out the complaint against the respondent.
At the outset, the Senior Member identified the complaint against the League (and Bonnie Doon) as being discrimination on the basis of sexual orientation in the area of the provision of goods and services, and victimisation[4]. She noted that the Commission had declined to entertain the complaint against the League and had referred the matter to the Tribunal[5]. The Commission had also referred the complaint against Bonnie Doon to the Tribunal and the two complaints were consolidated by order of the Tribunal on 25 July 2008.
[4]Reasons at [3] and [4].
[5]Reasons at [5].
Referring then to the League’s application to strike out under s 75, the Senior Member stated that the League’s contention was that the complaint “is misconceived and lacking in substance”. She stated that in such an application the Tribunal was particularly guided by the decisions in State Electricity Commission of Victoria v Rabel[6] and Re Norman and Australian Red Cross Society[7].
[6][1998] 1 VR 102.
[7](1998) 14 VAR 243.
Proceeding on, the Senior Member referred to a folder of documents the appellant had filed with the Tribunal and stated that nothing in them particularly addressed the issues beyond that contained in the original complaint[8]. This folder of documents is the bundle of documents produced to me by way of an exhibit to the respondent’s affidavit.
[8]Reasons at [9].
The Senior Member stated that as best as she understood the case, for the complaint against the League to succeed the appellant must show a breach of s 42, s 60, s 96, s 98 or s 102 of the Equal Opportunity Act. She then proceeded to discuss each in turn.
As to s 42, sub-s (1)(c) was the only relevant provision. The appellant maintained that he received services from the League, namely the provision by the League of a free entry pass to club games and finals where he acts as a trainer, and that the League pays for his travel to games. This did not assist him because, assuming that the League did thus provide services, there was no evidence of any discrimination in relation to either of those services[9].
[9]Reasons at [18].
Then, to succeed under s 60 the appellant would have to demonstrate that the League is a “club” and that he was a member of that “club”[10]. On the first point, the Senior Member concluded that the League was a “club” within the meaning of that expression as defined in s 4(1)[11]. On the second point, the Senior Member considered the League’s Rules and Regulations which did not deal with the matter of membership, and the Model Rules in Schedule 5 of the Associations Incorporation Regulations 1998 which the League had apparently not departed from. The Model Rules provided that an application for membership be in writing, lodged with the secretary, be approved by the committee and an annual subscription paid, as to which matters the appellant advanced no evidence; the Senior Member noted that she had provided the appellant with a copy of the Associations Incorporation Legislation and Regulations. The Senior Member concluded that there was “absolutely no evidence before the Tribunal which would possibly give rise to a finding that he [the appellant] was a member of the League. The members are clearly the constituent football clubs”[12].
[10]Reasons at [20].
[11]Reasons at [21].
[12]Reasons at [23]-[26].
The Senior Member then considered the appellant’s complaint of victimisation and concluded that this claim must fail for several reasons[13]. First, the conduct of the Senior Coach had no connection with the League. Secondly, in April 2007 the appellant had not yet made a complaint, and he did not do so for approximately a further twelve months. Hence there could not be victimisation within s 97. Thirdly, even if the appellant had then intended to allege a contravention by the Senior Coach, and the Senior Coach thought that was the case (although that did not appear to be so), the Senior Coach’s role was with Bonnie Doon. On the evidence the Senior Coach had no role with the League.
[13]Reasons at [27]-[29].
The next question was whether the League had vicarious liability pursuant to s 102. There was no such liability. The appellant was not an employee of the League and the uncontested evidence of the League’s general manager was that neither the appellant nor Bonnie Doon was an agent of the League at any time. There was no evidence that either acted in that capacity and no indication that any such evidence would be forthcoming. Even if the appellant were able to establish agency (which seemed impossible) the appellant would need to show that the League’s failure to come to his aid and support him constituted a breach for which the League would be liable[14].
[14]Reasons at [32].
Finally, the Senior Member considered the prohibition on authorising or assisting discrimination in s 98. Here the complaint was that the League failed to act. Following Walgama v Toyota Motor Corporation Australia Ltd[15], where it was held that mere inaction cannot constitute a breach of s 98, a claim by the appellant against the League under s 98 would certainly fail[16].
[15][2007] VCAT 1318.
[16]Reasons at [35].
In concluding her reasons the Senior Member noted the following. The appellant had not demonstrated that he had any further evidence to put before the Tribunal that might “assist with his assertions of agency, employment, membership etc”[17]. It was a difficult task for the Tribunal to strike out an application brought by an unrepresented litigant, but in this instance the appellant’s action against Bonnie Doon was “the only avenue that has any remote likelihood of success assuming the facts asserted by him turn out to be proved”[18]. As concerns the action against the League, the Senior Member was satisfied that it “lacks even a scintilla of credibility”. She had attempted to formulate his action under the available sections of the Act but none could be borne out on the evidence. Hence the action was “entirely misconceived and manifestly hopeless”[19].
[17]Reasons at [36].
[18]Reasons at [37].
[19]Reasons at [38].
I turn now to the resolution of the present appeal. I bear in mind that the question with which I am concerned is whether leave to appeal should be granted or refused. Often, of course, this question will be left over to the hearing of the appeal itself, but in this case the respondent has successfully invited the associate judge to refuse leave under the summary power to do so and I must determine the appeal from that decision.
As the appeal is a hearing de novo, I am in the same position as the associate judge and must consider afresh the respondent’s application that leave be refused. Counsel addressed their submissions on the four questions of law in the amended notice of appeal. I will deal with each in turn, although in the order in which they were argued by the appellant’s counsel. If I grant leave on the basis of any of the four questions of law in the amended notice of appeal the proceeding will continue and be heard and determined by a judge in due course. I was not invited by counsel to treat the hearing before me as the hearing of the appeal.
The first question argued was whether the Tribunal erred in determining the application under s 75 of the Act as distinct from s 109 of the Equal Opportunity Act. Counsel for the appellant so submitted, contending that the power of the Tribunal to strike out lay in s 109 and not s 75. The submission ran along these lines. The Tribunal is confined to s 109 in exercising a power to strike out a complaint under the Equal Opportunity Act. This is so as s 109 is narrower in its application than s 75, and the power under s 109 can only be exercised at an interlocutory stage. The hearing of the s 75 application occurred at an interlocutory stage. The Act had not impliedly repealed s 109, the two sections being able to be read together on the suggested basis that s 109 applied only to interlocutory hearings. The Tribunal was only asked to exercise power under s 75 but it was not open to it to do so. Thus the decision should be set aside as made without power.
In my view there is no substance in this submission. That is by reason of the terms of s 109(2) and the fact that the application was made after the complaint had been referred to the Tribunal. On that transfer occurring, s 109(1) ceased to be applicable and s 75 became the operative provision. Thus understood, there is no inconsistency between the provisions. See Re Norman & Australian Red Cross Society[20]; Tomasevic v State of Victoria[21].
[20](1998) 14 VAR 243.
[21][2005] VSC 402.
The second question argued was whether the Tribunal was bound to satisfy itself that the whole of the case the appellant wished to put was before it prior to striking out the complaint. The concern that underlies this point is that a strike out order has the effect of determining the subject proceeding thereby precluding and depriving the complainant of the opportunity to present his or her case, by such oral and documentary evidence as he or she may wish, at a hearing conducted in the ordinary way. It was emphasised, and it is obvious, that the summary power to strike out should not be exercised if the Tribunal does not have all of the material the complainant would wish to rely upon to establish the subject complaint. Of course the position has to be considered in each case, and in the light of the issue for determination, the ambit of evidence and any evidentiary concessions made by the complainant, and any assumptions as to the case that are properly able to be made. In essence, when the Tribunal is invited to strike out a proceeding under s 75 it is required, first and foremost, to consider whether the complainant’s case is not arguable. Uppermost in this consideration will be the extent to which the case turns upon disputed questions of fact. If the case involves disputed questions of fact and the resolution of issues of credit and reliability of witnesses, and findings as to what actually occurred in the light of the evidence, save in the most particular circumstances it will not usually be appropriate to exercise the power to strike out. Nevertheless, when appropriate, the power can and should be exercised to terminate a hopeless claim. See State Electricity Commission of Victoria v Rabel[22]; Bendigo Bank Limited v Csizmadia-Estok[23].
[22][1998] 1 VR 102 at 119.
[23][2007] VSC 112 at [16]-[17].
Counsel for the appellant submitted that it was apparent the appellant would in all likelihood have led evidence in addition to the documentary materials. She submitted that it was at least arguable that there is potential for evidence beyond the documentary form that was before the Tribunal. It was submitted that the Tribunal had presupposed a certain unfavourable position as to the state of the evidence that the appellant was likely to lead to make out his claim. Counsel submitted that the order of 20 October 2008 requiring the appellant to file the material on which he intended to rely appeared to bind him at an interlocutory hearing to present evidence as in a full scale hearing. The appellant did not give evidence but plainly wished to do so.
Counsel for the respondent submitted that the transcript disclosed that the appellant had ample opportunity to say all that he wished to say and to place before the Tribunal such materials as he wished. I agree and do not consider that the process was subverted against the interest of the appellant.
In considering the appellant’s submission several factors are to be borne in mind. First, for the purpose of the strike out application the facts stated in the complaint were to be accepted as correct. Indeed, the League did not challenge the passages in the complaint concerning the statements and actions of Bonnie Doon’s President and Senior Coach. Secondly, the nature of the complaint against the League. Thirdly, the complaint did not specify which provision or provisions of the Equal Opportunity Act were relied on, and the Tribunal did not require him to do so. Appropriately, in his submissions before the Tribunal counsel for the League canvassed the provisions of the Equal Opportunity Act that he considered the appellant could rely upon to establish discrimination, and in its decision the Tribunal ruled in turn on the application of those provisions. Fourthly, counsel and the appellant addressed submissions to the Tribunal. Before me both counsel sought assistance from the transcript, and thus I now refer to it.
In his submissions to the Tribunal the respondent’s counsel stated that the Tribunal could assume for the purpose of the application that the factual allegations were true, in particular that the alleged events in April 2007 on the part of Bonnie Doon took place and that the League did not intervene on behalf of the appellant. In the course of these submissions, however, he referred to the passage in the complaint where it is stated that the President/Secretary of the League had given media interviews; I refer to this at [8](b) above. Counsel said that “for the record” that was denied. It had been denied in response to the complaint, but, counsel said, it mattered not whether that interview took place. Counsel for the appellant said that this was an instance of a fact in dispute. It is evident, however, that the Senior Member considered the matter on the basis that all facts alleged were correct. I do the same.
Another question of fact raised by the appellant, and (as I understand it) relied on by his counsel as an issue of fact, but disputed before the Tribunal, was whether the appellant was a member of the League. The appellant raised this at the Tribunal hearing, for the first time. In contending that he was a member of the League the appellant relied on the annual passes the League had provided him over the years. He produced a number of them in his documents. They described themselves typically, as Official Pass To All Grounds bearing the name of the League and the year or season and were provided to him by the League for his work as a sports trainer. The pass allowed the appellant free access to all home and away games. A separate pass would be issued for finals games. Such entry would cost other persons about $10 a game. It also permitted the appellant to enter some functions as a League guest. It is to be noted that one of the passes bore the name of the League and the words “Official Pass To All Grounds – Club Trainer”, which the respondent’s counsel said stated the obvious, that the appellant was a trainer for the Club, as distinct from the League. The appellant also stated, for the first time, that he worked for all clubs in the League. He said that when necessary he acting as trainer for players in teams other than Bonnie Doon.
The appellant added (most pertinently in relation to the question of s 42) that the League provided him with food occasionally, transport to venues, band-aids and equipment. There seemed to be no issue as to this.
On the question whether the appellant was a member of the League, there was debate before the Tribunal as to the effect of the League’s Rules and Regulations in this respect; I referred to conclusions of the Senior Member on this at [32] above.
In my view none of these matters whether considered singly or in combination precluded the Tribunal from proceeding to strike out the complaint.
In the first place, even assuming the correctness of the statements in the complaint concerning the President of the League’s knowledge of the appellant’s sexual orientation and the admission in the interview, there is still no arguable basis for the complaint.
Then, on the matter of membership, in my view there is not an arguable or prima facie case that the appellant was a member of the League. This appears on a consideration of what was before the Tribunal. I agree, with respect, with the Senior Member’s analysis and conclusions on this aspect. I would add that reference in the League’s Rules and Regulations to trainers makes plain that trainers are employed by the Club; see clause 33. It is also to be noted that clause 16(f) provides for the League to issue to each competing Club four passes for trainers, and clause 16(e) provides for passes to be issued to recognised guests of the League. Further, clause 8 requires each Club, prior to a game, to submit a team sheet listing the names of all players, the coach, official runners, water carriers and the official trainers of the team.
Also, there is the matter of the process of becoming a member of the League, and the complete absence of any statement by the appellant in regard to him applying to be a member of the League or of any matter at all in that respect. Perusal of the Rules and Regulations renders it plain that it is rather the participating clubs that are members of the League; and they are represented at the League by their delegates.
Considering these matters it is seen that the appellant’s contention that he was a member of the League was an assertion made without any cogent basis. Moreover, the situation is one which no amount of evidence would change. It is based on the corporate nature of the League and its Rules and Regulations, the Model Rules, and the separate corporate existence and role of Bonnie Doon, being unchallenged matters. If the matter of membership were still a relevant issue in the sense of an arguable question of law, and if I considered the evidence relied on by the League was uncertain or subject to shifting sands in some material respect or that there was a basis on which the appellant could establish at trial that he was a member of the League, different considerations would apply on the issue. But I do not consider that is the case. I agree with the Senior Member.
Moreover, it is to be noted that the questions of law argued before me did not include that the appellant was a member of the League. This is significant because the questions of law set out in the original draft notice of appeal that was before the Associate Judge raised the question whether the Tribunal erred in concluding that the appellant was not a member of the League. Such questions were omitted from the amended notice of appeal argued before me. In other words, the point was abandoned, and correctly so in my view. Thus, although I have referred to it by reason of the appellant’s second question of law, it is no longer an issue.
This abandonment was confirmed by counsel’s submissions. The tenor and content of the appellant’s submissions before me was that the appellant was a member of Bonnie Doon of which club the League was a governing body.
That brings me to the third question argued which was whether the League is a “governing body” of Bonnie Doon within the meaning of s 60. The expression “governing body” is not defined in the Equal Opportunity Act. The appellant’s submission, made by reference to the Oxford Dictionary, is that the word govern should be understood in the sense of having the ability to control, influence, regulate or determine another person’s actions; to guide, direct, lead; and to hold sway, have or be the predominating or decisive influence. Counsel then pointed to provisions of the League’s Rules and Regulations which control the clubs, namely clause 19 (players not to make public appearances without consent of club), clause 20 (staff of club, coach, player neglect or refuse to attend League Tribunal or League meeting), clause 21 (player expelled, suspended or disqualified not to act in any capacity with a club), and clause 22 (club, player or official guilty of conduct unbecoming). It was submitted that when Bonnie Doon’s President excluded the appellant from acting as a trainer, the League was a governing body of the Club and consequently had a primary liability under s 60.
I reject the appellant’s submission. Section 60 addresses the “committee of management or other governing body of” Bonnie Doon, in the sense of the committee or board that has the management of that club. It is a wide expression but doubtless used advisedly having regard to the varying nature of clubs and their manner of internal organisation. The fact that the League’s Rules and Regulations make provision of the type referred to does not render the League, as a separate corporate entity, the governing body of Bonnie Doon. As expressed, the appellant’s submission is that the League was “a” governing body, not “the” governing body. I consider, on the natural meaning of the words used, that s 60 is addressing the committee or other body that governs the subject club. In addition, I do not consider that any provision in the League’s Rules and Regulations could properly be said to place it in the position of being “the” or “a” committee or body that governed Bonnie Doon. In my view those provisions are to be understood as relating to and being for the purpose of the better conduct of the competition conducted by the League as distinct from the administration of the business and affairs of a club in the competition.
The fourth question argued is whether the League discriminated against the appellant in omitting to exercise its powers in clause 22 of its Rules and Regulations within the meaning of s 11(b) and s 65(b) of the Equal Opportunity Act. Clause 22 relates to unbecoming conduct, and provides that:
“(a) The league, Club, player or umpire who alleges that a Club, player or an official of a Club has been guilty of conduct which is unbecoming to a Club, player or an official of a Club or which is likely to bring the game of football into disrepute may lodge with the League a notice in writing setting out particulars of the allegation.
A notice under this paragraph must be lodged with the league within five (5) days after the date of the act or omission to which it relates unless the League agrees to extend this period. An extension agreed to by the League may be for such period and subject to such conditions as the League thinks fit.”
The balance of clause 22 goes on to provide for an allegation to be referred to an Investigation Officer for investigation as he sees fit, and who if after investigation “is of the opinion that the Club, player or official in question may have been guilty of conduct unbecoming to a Club, player or an official of the Club or is likely to bring the game of football into disrepute and that the allegation ought to be dealt with the League Tribunal as hereinafter provided he may lodge with the Board a notice in writing setting out details of the allegation”. (sub-cl (c)).
There is then set out a process for a hearing by the League Tribunal which, if of the opinion that “the Club, player or official in question has been guilty of conduct which in the opinion of the League Tribunal is unbecoming to a Club, player or official of a Club or which is likely to bring the game of football into disrepute, may make such orders and give such directions in the matter as it thinks fit. Without limiting the generality of the foregoing the League Tribunal may:
(i)impose a fine of such amount as it thinks fit on the Club, player or official in question; or
(ii)may disqualify the player or official in question for such period as it thinks fit”. (sub-cl (f)).
Finally, the “decision of the League Tribunal in respect of any allegation brought before it … shall be final and binding on all parties”. (sub-cl (g))
For present purposes it may be assumed, and I do assume, that as a sports trainer with Bonnie Doon, the appellant was an official of that Club.
Counsel for the appellant submitted that the failure of the League “to act” under clause 22, knowing that Bonnie Doon had excluded the appellant from participating as a trainer on the basis of his sexuality, constituted the “continuation” of the appellant’s exclusion from participating as a sports trainer. Section 11(b) and s 65(b) were thus satisfied. It was submitted that the League treated the appellant less favourably by omitting to bring charges of conduct unbecoming against the President and/or Bonnie Doon. The omission was less favourable treatment than the League would have given to a person without the appellant’s sexual orientation were that other person in the same circumstances namely subject to exclusion from participating as a trainer by conduct unbecoming.
In my opinion the appellant’s submission does not raise an arguable question of law. One commences with the fact that the League did not terminate the appellant’s role as a sports trainer; that was done by Bonnie Doon. To overcome this difficulty the appellant relies on the omission of the League to activate the unbecoming conduct procedure in clause 22. As to that, of course, it is not to be overlooked that the appellant deliberately did not complain to the League. He stated in his complaint that he assumed the President of the League would contact him, but for his own part he did not ask the League to do anything.
The appellant’s argument amounts to this, that the League itself, no complaint having been made to it but the President of the League being aware of the appellant’s sexual orientation and in the light of the publicity, should have lodged with itself a notice alleging “conduct unbecoming” against Bonnie Doon and/or its President.
In my view the submission is altogether too far fetched, as the respondent’s counsel described it, and speculative. The simple fact is that the League did not do (or omit to do) any act that excluded the appellant from participating as a sports trainer with Bonnie Doon, or otherwise discriminated against the appellant on the basis of his sexual orientation. In any event, if the League had acted under clause 22(a) the consequence would merely have been to trigger the process of investigation. That process would have been undertaken by an “Investigation Officer” who “may investigate the allegation as he sees fit”, and who after investigation “may lodge with the Board a notice in writing setting out details of the allegation”. In my view the Board must be the Board of the League. That results in a hearing of a charge before the League Tribunal which itself decides whether conduct is established that “is unbecoming to a Club, player or official of a club” and may give such directions as it thinks fit. Assuming that such a direction may include a direction to re-engage an official, such as the appellant as a sports trainer, it does not follow that the League itself can be regarded as able to produce that result by the mere step of taking the initial step under clause 22(a). It is evident that following such initiating action by the League, it is entirely speculative as to what would happen at the subsequent steps in the process.
For like reasons, the submission that in not taking an initiating step under clause 22(a) the League treated the appellant less favourably than it would another person without the appellant’s sexual orientation cannot succeed.
For these reasons, in my view, the inaction of the League under clause 22(a) cannot amount to satisfaction of s 65(b).
The appeal will be dismissed with costs.
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