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Carter v NSW Netball Association

Carter v NSW Netball Association

Case [2004] NSWSC 737 17 August 2004

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CITATION: Carter v NSW Netball Association [2004] NSWSC 737

HEARING DATE(S): 14 July and 12 August, 2004

JUDGMENT DATE:
17 August 2004

JURISDICTION:
Equity

JUDGMENT OF: Palmer J

DECISION: Decision of Defendant's Disciplinary Committee set aside.

CATCHWORDS: NATURAL JUSTICE - PROCEDURAL FAIRNESS - VOLUNTARY ASSOCIATIONS - Plaintiff a voluntary coach in local sporting body - complaint of child abuse made against her by persons motivated by ill will - complaint tainted by deception - Defendant's disciplinary tribunal bans Plaintiff as member - decision founded on manifest denial of procedural fairness - decision contrary to provisions of Articles and By-Laws - Defendant notifies Commission for Children and Young Persons that Plaintiff has been subject to disciplinary proceedings relating to child abuse - Plaintiff suffers severe emotional illness as consequence - whether Plaintiff's complaint justiciable - discretionary considerations. - CHILD ABUSE - what constitutes - whether notice under s.39(1) Commission for Children and Young Persons Act should have been given - lack of clear and authoritative legislative guidelines for voluntary domestic tribunals as to conduct of relevant disciplinary proceedings which may result in notification of child abuse - lack of supervisory procedure under the Act or Regulations - need for legislative review.

LEGISLATION CITED: - Commission for Children and Young People Act 1998 (NSW) - s.33, Part 7, s.35, s.36, s.39
- Corporations Act 2001 (Cth) - s.140
- Ombudsman Act 1974 (NSW) - Part 3A, s.25B, s.25E
- Ombudsman Regulations 1999 (NSW) - Clause 5

CASES CITED: - Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
- Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546
- Cameron v Hogan (1934) 51 CLR 358
- Gamilaroi Boomerangs Sports Aboriginal Corporation v Members of New England Group 19 [1999] NSWSC 495
- Hedges v Australasian Conference Association Ltd [2003] NSWSC 1107
- Lee v Showmen's Guild of Great Britain [1952] 1 QB 329
- Lo-Line Electric Motors Ltd, Re [1988] Ch 477
- McNab v Auburn Soccer Sports Club Ltd [1975] 1 NSWLR 54
- Mitchell v Royal New South Wales Canine Council Ltd (2001) 52 NSWLR 242
- R v Pharmacy Board of Victoria; Ex parte Broberg [1983] 1 VR 211
- Scandrett v Dowling (1992) 27 NSWLR 483
- White v Ryde Municipal Council [1977] 2 NSWLR 909
- Wilcox v Kogarah Golf Club Ltd (1995) 14 ACLC 421

PARTIES :
Sandra Viola Carter - Plaintiff
The New South Wales Netball Association - Defendant

FILE NUMBER(S): SC 1679/04

COUNSEL: J.E. Armfield - Plaintiff
R.E. Montgomery, J. Watson - Defendant

SOLICITORS: Coode & Corry - Plaintiff
Sparke Helmore - Defendant

Introduction

1 The Plaintiff seeks declarations that a decision by the Disciplinary Committee of the Defendant made on 2 March 2004 banning her from membership of the Defendant for five years is invalid and of no effect. The Plaintiff alleges that the Disciplinary Committee failed to comply with the procedural requirements for such a determination contained in the Constitution and By-Laws of the Defendant and, in addition,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carter v NSW Netball Association

Details

AGLC: Carter v NSW Netball Association [2004] NSWSC 737
Case: [2004] NSWSC 737
Decision Date: 17 August 2004

CaseChat Overview and Summary

The case of Carter v NSW Netball Association involved the plaintiff, who was a voluntary coach within a local sporting body, being accused of child abuse by individuals acting out of ill will. The accusation was based on deceptive information. The defendant's disciplinary tribunal subsequently banned the plaintiff from being a member of the association. The plaintiff argued that the decision to ban her was based on a manifest denial of procedural fairness and was contrary to the provisions of the Articles and By-Laws. Furthermore, the defendant notified the Commission for Children and Young Persons that the plaintiff had been subject to disciplinary proceedings related to child abuse, which led to the plaintiff suffering severe emotional illness. The plaintiff sought to challenge the decision of the tribunal, arguing that it was unjust and that she had not received fair treatment during the proceedings.

The legal issues before the court were whether the plaintiff's complaint was justiciable, the discretionary considerations that should be taken into account in this case, and the definition of child abuse. Additionally, the court needed to determine whether notice under section 39(1) of the Commission for Children and Young Persons Act should have been given in this case. The court also needed to examine the lack of clear and authoritative legislative guidelines for voluntary domestic tribunals regarding the conduct of disciplinary proceedings that may result in the notification of child abuse. Furthermore, the absence of a supervisory procedure under the Act or Regulations was considered, and the need for legislative review was identified.

The court found that the decision of the tribunal was indeed founded on a manifest denial of procedural fairness, and that it was contrary to the provisions of the Articles and By-Laws. The court determined that the plaintiff's complaint was justiciable, and that discretionary considerations should be taken into account in this case. The court also held that the notification under section 39(1) of the Commission for Children and Young Persons Act should have been given in this case, as there was a lack of clear and authoritative legislative guidelines for voluntary domestic tribunals regarding the conduct of disciplinary proceedings that may result in the notification of child abuse. The court concluded that there was a need for legislative review to address the absence of a supervisory procedure under the Act or Regulations.

The court ordered that the decision of the tribunal be set aside, and that the plaintiff be reinstated as a member of the defendant's association. Additionally, the court ordered that the defendant provide the plaintiff with a formal apology and compensate her for the emotional distress suffered as a result of the tribunal's decision. The court also recommended that the relevant legislation be reviewed to address the issues identified in the case.

Orders