Echunga Football Club Inc v Hills Football League Inc
[2014] SASC 201
•22 December 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
ECHUNGA FOOTBALL CLUB INC v HILLS FOOTBALL LEAGUE INC
[2014] SASC 201
Judgment of The Honourable Justice Stanley
22 December 2014
ASSOCIATIONS AND CLUBS - INCORPORATED ASSOCIATIONS
INTERPRETATION - GENERAL RULES OF CONSTRUCTION OF INSTRUMENTS - GENERAL MATTERS
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - DECLARATIONS - APPROPRIATE FORM OF RELIEF - DISCRETION OF COURT
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INJUNCTIONS FOR PARTICULAR PURPOSES
The Echunga Football Club (the plaintiff) is a member of the Hills Football League Incorporated (the defendant). The Hills Football League conducts two competitions in the Central Zone. The two competitions conducted by the Hills Football League in the Central Zone are the Central Division and Country Division. The Central Division is the first division and the Country Division is the second division.
By-laws made pursuant to the Constitution of the Hills Football League regulate these competitions. The by-laws provide that the competition in each grade of each division is conducted over the course of a season which consists of major and minor rounds. Provision is made in the by-laws for the promotion and relegation of clubs between the Central Division and the Country Division.
A dispute has arisen between the plaintiff and the defendant as to the interpretation of the by-laws relating to relegation. The dispute concerns whether the plaintiff is liable to be relegated from the Central Division to the Country Division for the 2015 football season. The League’s Board determines the club to be relegated in accordance with a points system prescribed by the by-laws. The club with the lowest number of points in accordance with the system is liable to relegation.
Central to the dispute between the plaintiff and the defendant is the question of whether in calculating a club’s points for the purpose of determining which club is liable for relegation to the Country Division, points can be earned in the major round.
The plaintiff asserts that, properly construed, the by-laws permit the inclusion of points earned in the major round in the calculation of the points that determine which club is to be relegated. The League asserts the contrary.
At issue is a question of construction of the relevant by-law.
Held (allowing the plaintiff’s claim):
1. The contextual matters to which the Court should have regard in construing the relevant by-law are the terms of the repealed by-law and the by-laws as a whole (at [35] - [42]).
2. A consideration of the text and the context in which by-law 18.2 appears in the whole of the by-laws evinces an objective intention that the points rating system prescribed in by-law 18.2 is to be calculated by reference to all wins (and draws) during the course of a season including wins in the major round (at [45] - [59]).
3. The by-laws afford the plaintiff the right to compete in the Central Division in the 2015 season (at [67]).
4. It is arguable that an amendment to the by-laws expressed to operate retrospectively so as to have the effect of reversing the plaintiff’s existing entitlement to remain in the Central Division would be beyond the power of the League and invalid (at [65] - [66]).
Associations Incorporation Act 1985 (SA) s 23, s 61, referred to.
Chiropractic and Osteopathic College of SA Inc v Struthers (1981) 97 LSJS 49; Harrington v Coote (2013) 119 SASR 152; Millar & Ors v Houghton Table Tennis & Sports Club Inc (2003) 225 LSJS 241; Green v Page [1957] Tas SR 66; Popovic & Ors v Tanasijevic & Ors [2001] SASC 289; Lion Nathan v Coopers Brewery (2005) 223 ALR 560; Lion Nathan v Coopers Brewery (2006) 156 FCR 1; Electricity Generation Corporation (Trading as Verve Energy) v Woodside Energy Ltd (2014) 251 CLR 640; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426; Catlow v Accident Compensation Commission (1989) 167 CLR 543; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; Broadcasting Co of Aust Pty Ltd v Cth (1935) 52 CLR 52; Grech v Bird (1936) 56 CLR 228; Shanahan v Scott (1957) 96 CLR 245; R v Toohey; ex parte NLC (1981) 151 CLR 170; Rokobatini v MIMA (1999) 90 FCR 583; Beard v SA (1991) 57 SASR 65 ; Clarke v ALP (SA Branch) (1999) 74 SASR 109, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"construction' and 'incorporated association"
ECHUNGA FOOTBALL CLUB INC v HILLS FOOTBALL LEAGUE INC
[2014] SASC 201Civil
STANLEY J:
Introduction
The Echunga Football Club Incorporated (the plaintiff) is a member of the Hills Football League Incorporated (the defendant). The Hills Football League is affiliated with the South Australian Community Football League Incorporated. The Hills Football League conducts two competitions in the Central Zone, being one of six regional zones established and organised by the South Australian Community Football League Incorporated. The two competitions conducted by the Hills Football League in the Central Zone are the Central Division and Country Division. The two competitions are hierarchical in the sense that the Central Division is the first division and the Country Division is the second division.
By-laws made pursuant to the Constitution of the Hills Football League regulate these competitions.
Those by-laws provide for the competition conducted in the Central Division and the Country Division. They provide that the Central Division consists of no more than 10 clubs. Each club nominating to compete in either division must field teams in four grades, namely, an A-Grade, B-Grade, Senior Colts and Junior Colts teams. However, the by-laws confer some discretion on the League’s Board with respect to the Colts teams in the Country Division. The competition in each grade of each division is conducted over the course of a season which consists of major and minor rounds. The teams in each grade of each division compete through the minor round to earn a place in the major round. Match points are awarded over the course of the minor round according to the result of each game. Where teams finish the minor round on equal points, the team’s position on the ladder is fixed by its percentage. A team’s percentage is determined by averaging the points scored by and against it throughout the minor round. A club which breaches certain by-laws with respect to the playing of disqualified, suspended or unregistered players, can lose match points and percentage points as well as having all goals it scored removed.
Provision is made in the by-laws for the promotion and relegation of clubs between the Central Division and the Country Division.
In the 2014 season the plaintiff competed in the Central Division.
A dispute has arisen between the plaintiff and the defendant as to the interpretation of the by-laws relating to relegation. The dispute concerns whether the plaintiff is liable to be relegated from the Central Division to the Country Division for the 2015 football season. Relegation from the Central Division to the Country Division occurs where a Country Division club is to be promoted to the Central Division for the forthcoming football season. To qualify for promotion a club must nominate and satisfy specified criteria in the by-laws. In the event a club qualifies for promotion from the Country Division to the Central Division, a club in the Central Division must be relegated to the Country Division. In the absence of a volunteer from amongst the clubs constituting the Central Division in the preceding season, the League’s Board determines the club to be relegated in accordance with a points system prescribed by the by-laws. The club with the lowest number of points in accordance with the system is liable to relegation.
Central to the dispute between the plaintiff and the defendant is the question of whether in calculating a club’s points for the purpose of determining which club is liable for relegation to the Country Division, points can be earned in the major round.
The plaintiff asserts that, properly construed, the by-laws permit the inclusion of points earned in the major round in the calculation of the points which determine the club that is to be relegated. The League asserts the contrary.
If the plaintiff’s contention is correct, the Bridgewater Football Club will be liable for relegation. If the League’s contention is correct, the plaintiff will be liable for relegation.
Accordingly, at issue is a question of construction of the relevant by-law.
The relevant by-law concerning promotion and relegation is by-law 18.2. It provides:
18.2 PROMOTION & RELEGATION
18.2.1 Promotion to Central Division:
A Country Division Club may, during the current season, nominate in writing for promotion to Central Division for the following season. For any nomination to proceed, the nominee Club must be in a position to satisfy all the following criteria
18.2.1.1The Senior Team (A grade) of that Club must contest the Grand Final for that current season; and
18.2.1.2Must have all teams as specified within the 18.1 to compete within the Central Division Competition, (with these being A and B Grade, Senior and Junior Colts, and any other team that may be specified and agreed by the League, for the inclusion in Central Division Competitions, for the next season); and
18.2.1.3Any such nomination must be submitted prior to 31 October in the that current season; and
18.2.1.4Confirmation must be tabled at the HFL AGM (1) (December) for that current season.
18.2.1.5If two (2) Country Division clubs nominate, the club finishing in the higher position and meeting all the necessary criteria, shall have first preference.
If a Country Division Club nominates for promotion as per 18.2.1, the Board of Directors of the HFL shall advise all Clubs of the HFL of the nomination.
18.2.2 Relegation to Country Division:
If the nomination of a Country Division Club for promotion to Central Division meets all criteria the following shall be applied in determining the Central Division Club that will be relegated:
18.2.2.1A Central Division Club may nominate to be relegated to Country Division and if successful shall be relegated in the next season.
18.2.2.2If no Central Division Club nominates for relegation, the Board of Directors of the HFL shall apply the promotion and relegation points system as referred in Rule 18.2.3, to all Central Division Clubs.
18.2.2.3The Central Division Club with the lowest points shall be relegated to Country Division in the next season.
18.2.2.4If two clubs finish on equal lowest points in the Central Division, the percentage of all four (4) teams (ie: A grade, B Grade, S/C and J/C) of each Club shall be added and the Club finishing with the lowest percentage shall be relegated to Country Division.
18.2.3 Promotion and Relegation Points System
The following points rating system shall be applied to all Central Division Clubs so as to confirm the Central Division Club to be relegated as per the HFL Promotion and Relegation as referred in Rule 18.2.2.
·A Grade win: 10 points
·B Grade win: 5 points
·Senior Colts win: 5 points
·Junior Colts win: 3 points
·Drawn game: ½ points to each team (Points to be shared equally)
·Forfeited game: Full points awarded to the team receiving the forfeit
·Abandoned game: Referred to the HFL Board of Directors
The plaintiff seeks the following orders:
1.A declaration that upon a proper interpretation of By-law 18.2.3 of the By-laws made pursuant to clauses 5.9 and 10.5 of the Constitution of the Defendant, and in the events that have happened, the Plaintiff Club is not liable to relegation from the Central Division to the Country Division for the 2015 Football Season.
2. A declaration that the Plaintiff Club is entitled to participate in all grades of the Central Division of the Defendant’s competition for the 2015 Season without let or hindrance.
3. An injunction restraining the Defendant, whether by itself, its officers, delegates, employees, agents or otherwise from:
a. relegating the Plaintiff Club to participation in all grades of the Country Division competition for the 2015 Season;
b. hindering in any way the Plaintiff Club’s full and complete participation in every grade of the Central Division competition for the 2015 Season.
4.Damages.
5.Such further or other orders as this Honourable Court deems fit.
At the direction of the Court the proceedings were served on the Bridgewater Football Club, given it had an interest in the proceedings. It did not seek to be joined to the action or to intervene in the proceedings.
Relevant legal principles
The plaintiff and the defendant are incorporated associations pursuant to the Associations Incorporation Act 1985 (SA). Section 23 of the Act provides:
23—Rules binding on association and its members
(1) The rules of an incorporated association bind the association and all members of the association.
(2) The reference in this section to the rules of an association extends to rules, by-laws or ordinances of the association relating to any matter.
Section 23 makes plain that the League’s by-laws bind the League and all the members of the League, being the affiliated clubs.[1]
[1] Chiropractic and Osteopathic College of SA Inc v Struthers (1981) 97 LSJS 49 at 51 – 59; Harrington v Coote [2013] SASCFC 154 at [4], [127] – [132], [183], (2013) 119 SASR 152 at 156, 186 – 189, 199.
The issue in this matter is primarily one of construction of the by-laws, in particular, by-law 18.2 Promotion & Relegation. The construction of the by-laws is to be undertaken in accordance with the principles applicable to the construction of the rules of an incorporated association. The rules of an incorporated association represent the terms of the statutory contract between the members of the association inter se and between the members and the association. It is not a contract, however, which in all respects, attracts those principles which are applicable to contracts in general or to commercial contracts in particular. The rules of an incorporated association not only regulate the conduct of the association but also serve public purposes going beyond the mere delineation of the rights and obligations of the association’s members. The principles applicable to the construction of the rules of an incorporated association are akin to the principles applicable to the construction of a corporate constitution.[2] Those principles are explained in Lion Nathan v Coopers Brewery[3] by Finn J[4] and approved on appeal.[5] Those principles are an adaptation of the principles which govern the construction of commercial contracts. The adaption of those principles must recognise as well that the rules to be construed are not those of a financial or trading corporation but an incorporated voluntary sporting association. The need to modify those principles in these circumstances was recognised by Besanko J in Millar & Ors v Houghton Table Tennis & Sports Club Inc.[6] I will come back to this.
[2] Green v Page [1957] Tas SR 66 at 71; Popovic & Ors v Tanasijevic & Ors [2001] SASC 289 at [42].
[3] [2005] FCA 1812, (2005) 223 ALR 560.
[4] [2005] FCA 1812, (2005) 223 ALR 560 at 571 – 574.
[5] Lion Nathan v Coopers Brewery [2006] FCAFC 144, (2006) 156 FCA 1.
[6] [2003] SASC 1 at [123], (2003) 225 LSJS 241 at 260.
The principles applicable to the construction of contracts have been the subject of recent consideration by the High Court in Electricity Generation Corporation (Trading as Verve Energy) v Woodside Energy Ltd.[7]The Court reaffirmed the objective theory of contract. French CJ, Hayne, Crennan and Kiefel JJ said that the meaning of the terms of a commercial contract are to be decided by what a reasonable business person would have understood those terms to mean. This requires consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding of the genesis of the transaction, the background, the context and the market in which the parties are operating.[8]
[7] [2014] HCA 7, (2014) 251 CLR 640.
[8] Electricity Generation Corporation (Trading as Verve Energy) v Woodside Energy Ltd [2010] HCA 7 at [35], (2014) 251 CLR 640 at 656.
Those principles, however, must be modified for two reasons when a court is construing the rules of an incorporated association such as this. First, because the rules of an incorporated association have a public dimension. They serve a public purpose and third parties will rely upon them from time to time. They are not merely a private record of a private bargain, rather, the rules of an incorporated association have statutory force by reason of s 23 of the Associations Incorporation Act 1985 (SA). Secondly, the Court must recognise that this association is not a commercial operation established with a view to generating profits but rather is what may be described as a non-profit making sporting organisation. In this regard it is proper to recognise that the by-laws are drafted in an ad hoc and piecemeal fashion by lay-persons rather than lawyers, couched in terms intelligible to them but which often lack the consistency, coherence, form and drafting that would be expected in a statute or commercial contract. Accordingly, in my view, the Court must approach the construction of a particular by-law, when read in the context of the by-laws as a whole, with a degree of flexibility. This means that the courts should not make too much of infelicities of expression in the by-laws, nor be too quick to identify absurdity, illogicality or apparent inconsistencies. As French J (as he then was) said in the context of interpreting industrial awards, while fractured and illogical prose may be met by a generous and liberal approach to construction, the instrument must make sense according to its ordinary and grammatical language.[9] Nonetheless, because of the public nature of the rules of an incorporated association, I consider it proper to place greater store by, what Kenny J in Lion Nathan calls, the constitutive text in construing the rules of an incorporated association as opposed to a private contract. This approach will constrain the ambit of the matters constituting surrounding circumstances to which a court has regard.[10]
[9] City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 at [57], (2006) 153 IR 426 at 440.
[10] Lion Nathan v Coopers Brewery [2006] FCAFC 144 at [124], (2006) 156 FCR 1 at 28.
This is because the rules of an incorporated association are a deemed contract, created by statute, without the normal elements of a contract having to be established. Its rules speak not only to its members but to third parties who might consider becoming members. Accordingly, it is important that the rules are capable of being construed by third parties by reference to the text of the rules. That is not to say that context is irrelevant to the construction of the rules of an incorporated association. A court can have regard to extrinsic material when construing the rules but, like a corporate constitution, the case for restraint in using such contextual considerations as the surrounding circumstances in the enactment of the rules as an aid to the construction of those rules remains cogent. Nonetheless, some “surrounding circumstances”, particularly those that are likely to be well-known, not just to the members of the association, but also to relevant third parties, are part of the contextual considerations to be weighed by a court in construing the rules of an incorporated association.[11]
[11] Lion Nathan v Coopers Brewery [2006] FCAFC 144 at [59], (2006) 156 FCR 1 at 13.
In construing the rules of an incorporated association, the court should commence by considering the text before it has resort to contextual considerations.[12] After all, the language employed in the text is the surest guide to the meaning of the rules. Contextual considerations can only assist in the interpretation of the text.
[12] Adapting the principles applicable to statutory construction, see Catlow v Accident Compensation Commission [1989] HCA 43, (1989) 167 CLR 543 at 550; Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [33], (2010) 241 CLR 252 at 265.
Accordingly, the task the court is required to undertake is to determine the objective intention of the association in enacting or amending its rules. To determine the objective intention of the rule maker regard must be had to the words of the rules themselves, but regard can also be had to certain aspects of the circumstances surrounding the making or amendment of the rules. I now turn to consider what those surrounding circumstances are in this case.
Surrounding circumstances
Before me, the parties agreed that the construction of the by-laws requires the Court to consider both text and context. Where the parties disagree is the question of what properly constituted the context.
The plaintiff submits that the matters of context to which the court can have regard in construing the text so as to determine the meaning of by-law 18.2 is the whole of the by-laws and such objective surrounding circumstances accompanying the adoption of the by-law in 2010 as were known to member clubs. In this regard the plaintiff contends that the Court can have regard to the terms of the former by-law 18.2 that was replaced by the present by-law.
The defendant submits that in construing the by-laws the Court should have regard to a wider range of surrounding circumstances. The defendant submits that the Court can have regard to the events leading up to the 2010 AGM at which the by-law 18.2 was amended, to documents that were circulated at that meeting pertaining to the proposed amendment and statements made at the meeting explaining the purpose of the proposed amendment.
I received affidavit evidence relevant to these matters. In addition, oral evidence was called from Mr Kym Pocock, the president of the plaintiff club, from Mr Glen Sickerdick, the president of the defendant, and from Mr John Schneemilch, the president of the Bridgewater Football Club.
That evidence referred to a process by which the League Board held a workshop on 31 October 2010 to discuss the promotion and relegation scheme as it existed in the by-laws at that time. The minutes of the meeting record that the meeting considered that the existing rule 18.2 as it stood at that time was wrong and had to be changed. Rule 18.2 at that time was in the following terms:
18.2 PROMOTION & RELEGATION
18.2.1. To be decided on points system of
· 5 points A Grade win,
· 3 points B Grade win
· 2 points Senior Colts win and
· 2 points Junior Colts win,
· A Bye to be 2 points
18.2.2.If two clubs finish equal on points at the bottom in Central Division or top in Country Division then the percentage of all 4 teams is to be added up.
18.2.3.Premiership winner’s double normal points per game i.e. 10,6,4,4 with runners up normal points.
18.2.4.Nominations from the top two Country Division clubs (if wishing to go to Central Division) from the season must be in by January 1st in next season. Country Division clubs can nominate but do not have to come up. They have until 30th June to withdraw their nomination.
There was discussion recorded in the minutes as follows:[13]
[13] Exhibit GAS 3 to the Affidavit of Glen Anthony Sickerdick sworn 10 December 2014.
·Discussion held on how the points should be allocated and decided to keep things simple and use the club shield system except the under 13s will not be included. Discussion was had on senior colts being the same as B Grade but it was decided that would put too much pressure on Senior colts (remembering it is Under 17 ½ and may [sic] are still only 15 years old). So it will be now
1, 10 points for A-grade, 5 for B-grade, 3 for Senior Colts and 3 for Junior Colts.
2, No points for a bye.
3, Drawn game ½ points A - 5, B - 2.5, SC - 1.5, JC – 1.5.
4, Forfeit – points to the club receiving the forfeit.
All above moved G McNabb, Seconded P O’Shaughnessy. Carried.
It was decided we will defiantly (sic) NOT include the Under 13s. This will apply from Season 2011.
·P & R will be only done on results points and nothing else (facilities) If you wish to allow for P & R to occur between one season and the next not over two years as it currently is, a club wishing to promote to central must
1, Play in the Country Grand Final, if both wish to nominate then the premiership team has priority.
2, Nominate before October 31st for promotion the following year.
Glen and Glenn to make changes to the by-laws.
It was common ground between the parties that in 2010 the club shield system was a competition decided on the basis of points awarded to a club for wins or draws in A-Grade, B-Grade, Senior Colts, Junior Colts and Under 13 games during the minor round.
Mr Sickerdick was one of the people given responsibility for drafting the amended by-law 18.2.
A proposed amendment was presented to the League’s 2010 AGM. Evidence was given that the terms of the proposed amendment together with a copy of the workshop minutes of 31 October 2010 were circulated to the attendees at the AGM.
There was some evidence that the minutes of the workshop had been circulated to the clubs before the AGM but an affidavit was tendered by the plaintiff from Mr Steven Mellington that at the relevant time he was secretary of the plaintiff and does not recall receiving these minutes either before the AGM or at the meeting. The defendant did not seek to cross-examine Mr Mellington on his affidavit.
Mr Sickerdick gave evidence that at the 2010 AGM he explained to those in attendance the purpose and effect of the proposed amendment to by-law 18.2. He gave evidence that although he cannot recall precisely what he said at the meeting, he said words to the effect that the Board’s recommendation is that the League adopt a system based on the club shield system and excluding finals and Under 13s. Evidence was given by Mr Schneemilch that he attended the AGM where he remembers a member of the Board explaining that by-law 18.2 be amended so that finals would not be included. Again, Mr Mellington deposed in his affidavit to being present at the 2010 AGM and having no recollection of Mr Sickerdick saying anything about the exclusion of finals in the new proposed promotion and relegation system. The AGM resolved to amend by-law 18.2.[14]
[14] The minutes of the AGM record that the by-law was not passed in the precise terms of the proposed amendment. By-law 18.2.1.5 was amended by the meeting so as to delete reference to “the Club” and substitute in lieu thereof the phrase “the A-Grade team”. Curiously, the text of the by-law in evidence does not reflect the resolution of the AGM. It continues to employ the expression “the Club” in 18.2.1.5. This anomaly, however, is of no relevance to the issue in dispute in this action.
Evidence was also given of a special general meeting of the League held on 20 November 2014 at which the members of the League defeated a resolution moved by the plaintiff that the amended by-law 18.2.3 be interpreted to mean that it includes all finals matches.
Mr Wells QC, counsel for the plaintiff, objected to nearly all of this evidence. I received much of this evidence de bene esse. This evidence falls into two discrete categories. First, evidence in the nature of explanatory memorandum and statements produced or made at the time the by-laws were amended. Secondly, evidence of subsequent conduct in general meeting of the League said to represent the express will of the League as to the meaning of the by-law as it was enacted.
I can most conveniently deal with the second category first. Evidence of such conduct cannot be admitted either as part of the surrounding circumstances or as part of any more general consideration of context. It constitutes no more than the expression of an opinion by the members of the League representing their subjective belief on the interpretation of the by-laws. It is irrelevant to the issue of construction with which the Court is concerned.
The first category is more problematic. At issue is whether the evidence of the process by which the by-laws were amended constitutes admissible evidence relevant to the interpretation of the by-laws. As I have said, where a court is construing the rules of an incorporated association such as this, some extrinsic material relevant to the circumstances surrounding the making of the rules can be admitted where those materials are relevant to the objective intention of the association in enacting or amending its rules and are likely to have been well known both to members of the association and relevant third parties. This approach, in the context of a corporate constitution, was accepted by the Full Federal Court in Lion Nathan v Coopers Brewery.[15]Lander J said that what surrounding circumstances may be considered when construing a corporate constitution will depend upon a variety of circumstances. He considered that the pre-existing terms of the constitution were clearly relevant in determining why amendments were proposed. The pre-existing constitution was easily ascertainable by members and other interested parties and provided a background to the amendments so as to assist the court in understanding the textual development of the constitution. By way of contrast he considered it unlikely that a court would be permitted to resort to an explanatory memorandum explaining changes to the constitution for the purposes of its interpretation. However, in the case of Coopers there were special features which made an explanatory memorandum in that case admissible on the question of interpretation. Those features include that the information contained within the explanatory memorandum was known to current shareholders of Coopers and easily ascertainable by third parties whose interests may have been affected by the proposed amendment.[16] Kenny J agreed in this analysis.[17] Weinberg J identified the rationale for the admission or exclusion of evidence of “surrounding circumstances” or “context” in the construction of corporate constitutions as depending on whether the evidence of surrounding circumstances was known or easily capable of being ascertained by interested third parties when the constitution was enacted or amended. On this basis, however, he differed from Lander and Kenny JJ in considering that the trial judge was not entitled to rely upon evidence of an explanatory memorandum. He considered that an interested third party would hardly be likely to be aware of the contents of the explanatory memorandum provided to the extraordinary meeting of Coopers which amended the constitution. He did agree, however, with Lander J that the trial judge was entitled to rely upon the evidence of the whole of the constitution in construing the relevant provision as well as the pre-existing provision which had been amended.[18]
[15] [2006] FCAFC 144, (2006) 156 FCR 1.
[16] [2006] FCAFC 144 at [255] – [258], (2006) 156 FCR 1 at 51.
[17] [2006] FCAFC 144 at [125] - [128], (2006) 156 FCR 1 at 28 – 29.
[18] [2006] FCAFC 144 at [63], [66] – [73], (2006) 156 FCR 1 at 14 – 16.
In my view, as a matter of general principle, in determining the objective intention of the League in amending by-law 18.2 the Court would not have regard to evidence of an explanatory memorandum as encompassed in the minutes of the workshop meeting or of explanatory statements such as that allegedly provided by Mr Sickerdick to the 2010 AGM. That general principle is subject to an exception where information contained within the explanatory memorandum or any explanatory statement was known to the members of the League and easily ascertainable by third parties whose interests may have been affected by the proposed amendment.
Having heard the evidence received by me de bene esse I would now rule that the evidence contained in the minutes of the workshop of 31 October 2010 and of the statement allegedly made by Mr Sickerdick to the 2010 AGM explaining the rationale for the proposed amendment to by-law 18.2 is inadmissible. I come to this conclusion on the basis that I am not satisfied that the minutes of the workshop were circulated to those attending the AGM or that Mr Sickerdick did explain that the proposed amendment would exclude finals games. I make this finding because of the effluxion of time since the AGM which was held on 6 December 2010, the frailty of memory, the fact that interpretation of this by-law was not a matter of controversy until September of 2014, the conflict in the evidence as to whether the document was presented to those attending the 2010 AGM and whether he provided any explanation in support of the amendment to the rules which referred to the exclusion of finals from the system enshrined in the proposed amendment. I do accept that Mr Sickerdick did provide an explanation for the purpose of the proposed amendment to the AGM. I add that my reservations in relation to this matter are reinforced by the inconsistency inherent in Mr Sickerdick’s evidence that he told the meeting that the Board’s recommendation was that the League adopt a system based on the club shield system excluding finals and Under 13s. The inconsistency is that while the club shield system did include Under 13s it did not include finals. As the club shield system did not include the finals, it is difficult to understand the need to point out to the meeting that finals were being excluded from a system based on the club shield system. My reservations in this regard are further reinforced by the absence of any reference to the exclusion of finals in the proposed amendment which of course is the source of the dispute at the centre of these proceedings. None of this involves any reflection of the credibility of Mr Sickerdick’s evidence but on its reliability. Given the long period of time intervening between these events and the giving of evidence and all the circumstances referred to above, I consider the risk of reconstruction is obvious. Accordingly, I am not satisfied that the information contained within the minutes of the workshop were known to the members of the League at the time the by-laws were amended at the 2010 AGM.
Given that I am not satisfied that the information contained within the minutes of the workshop were known to the members of the League, a fortiori, I cannot be satisfied that that information was easily ascertainable by third parties whose interests may have been affected by the proposed amendment, namely, other clubs who may have considered joining the League.
As a result, I would not admit the following into evidence which relates to the minutes of the workshop and the explanatory statement made by Mr Sickerdick at the 2010 AGM:
Paragraph 31 of the affidavit of Mr Sickerdick.
Paragraphs 2, 7, 8 and 9 of the affidavit of Glenn Stephen Thomson.
Paragraphs 7 and 8 of the affidavit of Donald Mark Cranwell.
Paragraphs 6 and 7 of the affidavit of Mr Mellington.
Further, I would not admit paragraph 37 of the affidavit of Mr Sickerdick. Paragraph 37 refers to a subsequent newspaper article. It is unrelated to the question of an explanatory memorandum or statement, however, it is irrelevant to the issue of the proper construction of by-law 18.2.
In my view, the contextual matters to which the Court should have regard in construing by-law 18.2 are the terms of the repealed by-law and the by-laws as a whole. The determination of the meaning of by-law 18.2 may be assisted by a consideration of the language used in the amending by-law’s predecessor. As Weinberg J said in Lion Nathan v Coopers Brewery the process is analogous to considering the legislative history of a statute when considering a particular provision.[19] Further, the meaning of the by-law may be determined by reading it in conjunction with the remaining by-laws. Its meaning may appear from the text of the by-laws as a whole, their arrangement and the place in the by-laws of the particular provision under construction. The meaning of the text of the particular by-law is to be understood in the context of the entire document.
[19] [2006] FCAFC 144 at [69], (2006) 156 FCR 1 at 15.
By-law 18.2: The text
I commence with a consideration of the text of by-law 18.2. The by-law by its terms does not refer to finals games or minor round matches (or any cognate expression). It establishes a scheme for the promotion of a club from the Country Division to the Central Division and the concomitant relegation of a club from the Central Division to the Country Division. Where a club is to be promoted, the by-law provides that in the absence of a club from the Central Division nominating for relegation, the determination of the club to be relegated is to be decided by the Board of Directors of the League applying the promotion and relegation points system set out in by-law 18.2.3 to all Central Division clubs. The Central Division club with the lowest points in accordance with that system shall be relegated. If there are two clubs with the lowest number of points, relegation is to be decided by aggregating the percentages of the A-Grade, B-Grade, Senior Colts and Junior Colts teams of each club, with the club with the lowest aggregate of percentage being relegated.
Mr O’Sullivan QC, counsel for the defendant, submits that the text of the by-law evinces an intention that in applying the points system prescribed by by-law 18.2.3, only minor round games are included. He submits this follows from two features of the terms of the by-law. First, from the reference in 18.2.2.2 and 18.2.3 to the points system being applied “to all Central Division Clubs”. He submits that this expression implies that the points system is to be applied equally to all clubs. As all clubs will not contest the finals, the necessary implication is that the points system will apply only to the minor round so that all clubs will be treated equally in deciding the question of relegation. To construe the rules otherwise so as to include points earned from finals games would act in a discriminatory manner to the prejudice not only of those clubs that do not play finals but to those clubs with teams at the top of the League ladder at the conclusion of the minor round which, because of the structure of the finals series, do not have the opportunity to play as many finals games as a club with teams who scrape into the finals at the conclusion of the minor round and thereby have the opportunity to play more finals games than teams who finish above them. Obviously, the fact that a club has a team or teams which play any finals games gives that club the opportunity to earn more points than a club which does not have teams contesting the finals series. He submits the Court should reject such an interpretation as absurd and unfair. Secondly, he submits that the terms of 18.2.2.4 which prescribe that, in the event two clubs are tied with the lowest number of points, the question of relegation is to be decided by reference to percentages, contraindicates the inclusion of finals games in the application of the points system. As percentage is only determined in minor round games, this is a further indicia that the objective intention of the by-law is that it should apply to minor round games only.
I do not find these arguments persuasive. In construing the by-law, it seems to me that three observable features of the by-law are relevant. First, the system of promotion and relegation is unusual if not unique. It involves the promotion or relegation of clubs, which can consist of four sides, namely, A-Grade, B-Grade, Senior Colts and Junior Colts. There was evidence before the Court, which I accept, that the by-laws are predicated upon what is described as a “whole of club philosophy”. This is reflected in the concept, enshrined in by-law 18.2, that to play in the top division requires a club to support all teams, not just the A-Grade team.[20] However, there is an inconsistency between the operation of the respective schemes established by the by-law for promotion or relegation. Promotion depends on the success of a Country Division Club’s A-Grade side in a way that does not apply to relegation. Relegation is to be determined on the basis of the performance of all of a club’s teams not just the A-Grade side. Accordingly, in adopting by-law 18.2 the League contemplated that the by-law could operate inconsistently. Secondly, the scheme established by the by-law to determine promotion is based on the results of finals games. At the very least, that suggests that the scheme established by the by-law for relegation could include the results of finals games. Thirdly, the question of relegation per se is to be decided by reference to points earned for winning games (albeit ½ a point is earned for a draw). In my view, it is neither absurd, unfair, or for that matter illogical, that the question of relegation should be decided by reference to all games that a club wins (or draws) in a season. While the argument can be propounded that there is some unfairness in a club being able to earn points pursuant to by-law 18.2.3 for finals matches, when not all clubs will contest finals, I do not find that argument persuasive. A club is only eligible for finals on the basis its team won a certain number of matches. Further, any club with teams contesting finals will only earn points if they win.[21] As to the argument that there is something unfair about a club with a team that barely scrapes into the finals series having more opportunity to play finals games than a club with a team that finishes at the top of the ladder, I consider this a weak argument. After all, a team which finishes in that position presumably will have won more matches than a team below it on the ladder at the end of the minor round. So it will have more points. In addition, the lower team will not earn any points in the finals series unless it wins those games. If it does so, why should that club not earn points that go to determine whether it is to be relegated?
[20] However, in adopting the by-law the League decided to omit the Under 13s from the points system to avoid undue pressure being imposed on such young players.
[21] By-law 18.4.2 provides for the playing of extra time in finals matches to avoid any drawn games.
In my view, there is no obvious objective intention evinced by the scheme established by by-law 18.2 to exclude from the points rating system points earned in finals games. On the contrary, logic suggests that the nature of a football competition which culminates in a finals series should include wins during the finals in determining which club is liable to relegation.
While I consider there is greater force in the submission based on the terms of by-law 18.2.2.4 which provides an effective tie-breaker for the purpose of relegation by reference to the aggregate percentage of two clubs, that argument does not represent an insurmountable obstacle to the construction contended for by the plaintiff. First, by-law 18.2.2.4 is capable of being construed in a way which would permit the calculation of percentage from finals games, although I do not favour that construction. I consider that when the League adopts the language of percentages in the context of a football competition, that expression would be understood as referring to percentages earned from minor round matches. I am reinforced in that view by the language of by-law 18.3.1 which deals with ladder points to be awarded during the minor round competition. The by-law refers to a win in a minor round being awarded with two points with percentage. By-law 18.3.2 refers to a draw being awarded one point with percentage.[22] By-law 18.3.4 provides that if at the conclusion of the minor round any two or more teams have obtained an equal number of match points the position of such teams shall be determined by the percentage of points kicked for and against such team. But confining the operation of the tie-break provision in 18.2.2.4 to percentages earned at the conclusion of the minor round does not preclude acceptance of the plaintiff’s construction that the points system should apply to wins in major round games. As I have observed, the system established by the by-laws for promotion and relegation has its own inherent inconsistencies. To construe 18.2.2.4 as applying to minor round matches only, does not compel the conclusion that the relegation points system has to apply to minor round matches only. Not only is there some inconsistency in the system, but by-law 18.2.2.4 is a provision which is likely to apply infrequently. In those circumstances I do not consider that there is anything illogical in the inconsistency. It simply involves adopting a convenient tie-breaker or count back. I would treat the provisions of by-law 18.2.2.4 as sui generis, providing no indication as to whether the operation of the relegation points system is to include wins in finals games.
[22] Teams competing in any competition shall in the minor round as designated by the Board of Directors be awarded points as follows:
18.3.1A win – 2 points with percentage and in the case of an additional competition being run concurrently with the Minor round matches, points can be given for a win to the additional competition in the following way – 2 points with percentage.
18.3.2A draw - 1 point with percentage.
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Turning to contextual considerations, the construction of by-law 18.2 in the context of the by-laws as a whole points strongly to wins in finals games being included in the application of the relegation points system. I form this view for the reasons that follow and after making proper allowance for the manner of drafting of the by-laws I referred to in paragraph [18].
The by-laws read as a whole recognise that a season consists of both a minor round and a major round. A minor round is part only of a season of competition. This is demonstrated by consideration of the following by-laws:
7.4Umpires or Coaches playing with clubs:
No Field Umpire who has acted as such shall be allowed to play or coach for a Club in a League match during the season which the Umpire has officiated at, except with the consent of the Board of Directors.
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8.2.1No player who has played for any Club in their previous season shall be granted registration until they obtain a clearance from such Club, counter signed by the Association to which their previous Club is affiliated.
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11.1.5Suspend or disqualify for any period during the season or any subsequent season any umpire, official, Club, delegate, player, Club member or spectator or ground.
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13.10.3Suspend or disqualify for any period during the season or any subsequent season any player, Club, Club official or Club member.
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15.2.10Where a player has received a yellow card and sent off:
15.2.10.1.On three (3) occasions in the same season, they will receive an automatic weekend suspension.
15.2.10.2.For the fourth time during the same season, they will receive an automatic 2 weekend suspension.
15.2.10.3.On any subsequent occasions, they will appear before the Disciplinary Tribunal with penalties increasing by a further weekend suspension for each offence and any further penalty the Commissioners decide. These matters will be treated as a report with the umpire appearing and a fee of $65.00 plus GST being payable.
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17.1No senior player shall be qualified to play in any finals round in any current season, unless they shall have played at least four (4) of that club’s matches on four (4) separate weekends.
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17.5No one of the twenty one players who were selected to play in the last match of the season (including finals) played by the Club in the higher grade, shall be eligible to play for such lower grade should it still be playing in the final round of matches and that no player shall be permitted to play in any grade more than one (1) level below that in which they played their last senior match for the Club.
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21.2If any instance of drug use is reported at any Hills Football League fixture (home & away games & finals) the authorities will be notified and the Club involved will be called before the Board of Directors. Penalties could be involved.
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25.2.1Each Affiliated League Club will be allocated a “Total Points Rating of up to and including 15 points” for each Season based on the position on the premiership table of each clubs Senior Team at the end of the preceding Season, or on such other criteria as may be approved by the Board.
Example:
Clubs which finished at the top of the premiership table at the end of the preceding season will be allocated a lower Total Points Rating then those Clubs finishing at the lower end of the premiership table which will be allocated a higher Total Points Rating.
Thus, in a 10 team competition the top four clubs could be allocated 10 points, the next three clubs 12 points and the bottom three clubs 15 points.
In my view, these provisions of the by-laws, in referring to a season, include finals games as well as minor round games. Accordingly, I consider this evinces an intention that the question of relegation is to be determined on the basis of all games a club plays during a season.
This construction is reinforced by consideration of other provisions of the by-laws which demonstrate that where the League does not intend a particular by-law to apply to the whole season, it states this intention expressly in the by-laws. See, for example:
3.5In the major round the team occupying the higher position on the premiership table at the completion of the minor round of matches shall wear the colours registered as first selection, the team against which they shall play, shall wear matching white shorts.
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7.6Umpire Medal Votes
Each Field Umpire shall in each Minor Round Match, select three (3) of the players who in order of merit, is considered the fairest and best players for the match. These selections shall be forwarded to the Administration Clerk of the League, or to such other person nominated by the Board of Directors, in a sealed envelope by the Wednesday following such match. If two Umpires officiate, there shall be only one vote cast.
7.6.1 If non-compliance with the above rules a fine will be imposed by the Board of Directors.
7.6.2 If two players tie on the same number of points in the Medal Count in all grades two medals will be presented.
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8.6.3 Subject to By Law 8.6.1 where a player from this League who is over 15 years -
8.6.3.1Has played 30 games or more in this League they may return for a minor round match at any time without permission unless they are on the active list of a Club affiliated to the SANFL.
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8.6.4 No player from this League playing with the SANFL at the end of or after the minor round of the Hills Football League competition, shall return and play with their Club in any of this League’s final matches without obtaining consent from the Permit Committee.
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13.7 The Disciplinary Tribunal shall regulate its meetings in the following manner:
13.7.1The charge shall be read to the player, Club official, Club member or person, who shall then be asked to indicate a plea; being either guilty or not guilty.
13.7.2The umpire, or their delegate, will then summarise the nature of the charge and the events leading up to and forming the charge.
13.7.3The player, Club official, Club member or person the subject of the charge, or their delegate, will then be allowed to enter evidence summarising the incident as offered as evidence on their behalf. Cross examination of the umpire or their delegate will also be allowed at this point.
13.7.4If required, the umpire or their delegate may then offer additional evidence or be allowed to re-examine or question the player, Club official, Club member or person the subject of the charge, to clarify any point disputed or deemed necessary.
13.7.5The Disciplinary Tribunal shall also be allowed to ask any questions which they think fit to clarify any point, or any evidence which may be in question.
13.7.6The Disciplinary Tribunal shall then arrive at a decision, with all decisions being by a majority of votes.
13.7.7The Disciplinary Tribunal may adjourn its meetings to a date and place fixed by the Chairperson of the Tribunal on that occasion.
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17.1No senior player shall be qualified to play in any finals round in any current season, unless they shall have played at least four (4) of that club’s matches on four (4) separate weekends.
17.2A junior player will be eligible to play finals in their age group providing they have played at least four (4) of that club’s matches on four (4) separate weekends.
17.3Any player to qualify for a Grade final below the highest grade in their Club must play the majority of their games for that Grade.
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17.5 No one of the twenty one players who were selected to play in the last match of the season (including finals) played by the Club in the higher grade, shall be eligible to play for such lower grade should it still be playing in the final round of matches and that no player shall be permitted to play in any grade more than one (1) level below that in which they played their last senior match for the Club.
17.6Any ‘C’ Grade player to qualify for ‘C’ Grade finals must play one third of the Home and Away games of the current ‘C’ Grade season matches to the nearest whole number including the last minor round game.
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17.9Where on any day a player has played for more than one senior team for their Club then the match for the highest graded team shall be the only match to count in qualification for finals matches.
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18.3 POINTS FOR MATCHES
Teams competing in any competition shall in the minor round as designated by the Board of Directors be awarded points as follows:
18.3.1A win – 2 points with percentage, and in the case of an additional competition being run concurrently with the Minor round matches, points can be given for a win to the additional competition in the following way – 2 points with percentage.
18.3.2A draw – 1 point with percentage.
18.3.3A forfeit – is a game that is not played or not completed. In the case of a game being forfeited the team receiving the forfeit shall receive two (2) match points, and be credited with fifty (50) points kicked for. The team which forfeits shall receive no match points, and shall be debited with fifty (50) points kicked against.
18.3.4If at the conclusion of the minor round, any two or more teams have obtained an equal number of match points the position of such teams shall be determined by the percentage of points kicked for and against such team.
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18.4.1Finals matches shall be contested in each competition in a way as directed by the Board of Directors.
18.4.2 In the event of a draw in any grade of a final –
The sides shall play five minutes either end with no break at the half way mark. If the score is still tied at the end of this time, a coin is tossed for the choice of ends and the first team to score is the winner.
18.5 CLUBS HOSTING FINAL MATCHES SHALL
18.5.1Make all necessary arrangements for catering for all food and refreshments as may in their opinion or in the opinion of the Board of Directors or the Administration Clerk be necessary.
18.5.2Make all necessary arrangements for the health and safety of persons likely to visit the ground on the day of the match including as appropriate the provision of medical services and arranging attendance of uniformed members of the Police Department of S.A.
18.5.3Change rooms to be clearly marked and side finishing higher in any grade at the end of the minor round to have main change room.
18.5.4Arrange appropriate Public Risk Insurance Cover with an insurer for an amount approved by the Board of Directors.
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19.1.6.2In finals matches the Director in charge of any finals game has the power to add time-on in extenuating circumstances.
Notwithstanding differences in terminology, such as references to home and away games and minor round games as well as finals games and major round games, it is clear that the by-laws distinguish part only of the season where it is intended that the by-law apply to part of the season only. Conspicuously, by-law 18.2 does not include any such express limitation.
Construing the by-laws as a whole, and by-law 18.2 in the context of the entire by-laws, indicates an intention that finals matches should be included in the application of the points system prescribed by by-law 18.2.
I am reinforced in this view by the terms of by-law 25. By-law 25 provides for an approved player points system. Pursuant to by-law 25.1.2 the approved player points system will only apply to A-Grade teams. By-law 25.2 provides:
25.2 Total Point Rating
25.2.1Each Affiliated League Club will be allocated a “Total Points Rating of up to and including 15 points” for each Season based on the position on the premiership table of each clubs Senior Team at the end of the preceding Season, or on such other criteria as may be approved by the Board.
Example:
Clubs which finished at the top of the premiership table at the end of the preceding season will be allocated a lower Total Points Rating then those Clubs finishing at the lower end of the premiership table which will be allocated a higher Total Points Rating.
Thus, in a 10 team competition the top four clubs could be allocated 10 points, the next three clubs 12 points and the bottom three clubs 15 points.
25.2.2Any League may apply to the Community Football General Manager for increased Total Points Rating for club/s in excess of 15 points for exceptional circumstances before the 1st March preceding the season.
By-law 25 applies a total points rating to each club for each season based on the position on the premiership table of each club’s senior team at the end of the preceding season or on such other criteria as may be approved by the Board. I consider the reference to the end of the preceding season must be understood as a reference to the end of the finals series. That is the end of the season. If it had been intended to refer to the end of the minor round, I expect the by-laws to have said so expressly.
The manner in which the approved player points system is to operate is prescribed by by-law 25.3. It establishes a system intended to limit the capacity of any one club to recruit so many talented players as to create a risk of significant competitive disparity in the competition. Under the system a club must not field players in its A-Grade team in any game which exceed the total points which have been allocated to that club under the total points rating system. As is apparent from a consideration of the terms of by-law 25.2.1, the total points rating of a club for each season is calculated on the basis of where the club’s senior team finished on the premiership table at the end of the preceding season. For reasons I have explained earlier, I consider this must include finals games. The inclusion of finals games in the calculation of this system provides additional reasons by way of considerations of coherence for the inclusion of finals games in the calculation of the points system to determine relegation in by-law 18.2.
Consideration of the terms of the repealed by-law 18.2 as it existed prior to the 2010 AGM, the other aspect of context I consider relevant, does not contraindicate the inclusion of finals games in that calculation. I have set out the terms of the predecessor by-law earlier in these reasons. The predecessor by-law is somewhat opaque. Nonetheless, unlike the existing by-law 18.2 it appears to apply its provisions both to promotion and relegation. It adopts a points system for wins and byes. It applies double normal points to the premiership winner. It includes a tie-breaker based on aggregated percentage.
The defendant submits that the amendment to by-law 18.2 to delete any reference to doubling up the points won by the premiership winner evinces an intention to exclude finals matches from the calculation of the points scheme prescribed by the amended by-law 18.2. I do not accept this submission. In my view, the terms of the repealed by-law are entirely equivocal as an aid to the construction of the amended by-law. The repeal of a system of points calculation that awarded double points to the premiership winner’s points calculation says nothing as to whether the amended provision should be calculated on all wins during the course of the season or only wins during the minor round.
Major round wins are included in the points rating scheme in by-law 18.2
In summary, a consideration not only of the text but the context in which by-law 18.2 appears in the whole of the by-laws evinces an objective intention that the points rating system prescribed in by-law 18.2 is to be calculated by reference to all wins (and draws) during the course of a season including wins in finals games.
Discretionary considerations
In the circumstances the plaintiff has satisfied me that if it was to be relegated to the Country Division for the 2015 season, that would be done in breach of the rules of the defendant.
Accordingly, I must consider whether to grant the plaintiff the declaratory or injunctive relief it seeks.
The possible remedies for a breach of the rules are a declaration and/or injunction. However, in Millar & Ors v Houghton Table Tennis & Sports Club Inc[23] Besanko J considered that declaratory or injunctive relief did not necessarily follow from the establishment of a breach of the rules of an incorporated association. He identified three principles by reference to which a court may decline to grant relief even though a breach of the rules is established.
[23] [2003] SASC 1, (2003) 225 LSJS 241.
First, a court may decline to grant relief because a member does not have standing to complain of the particular breach. Secondly, a court will decline relief if the breach constitutes no more than an irregularity. Thirdly, the remedies of declaration and injunction are, of course, discretionary. The court’s discretion will be exercised judicially by reference to well established principles. Those principles allow a court to take into account a wide range of matters. Nonetheless, even where the court is satisfied that there has been a breach of the rules it can, in the proper exercise of its discretion, decline to grant relief.[24]
[24] [2003] SASC 1 at [113] – [116], (2003) 225 LSJS 241 at 256 – 257.
In this case there is no contention that the plaintiff lacked standing to complain of the particular breach. Neither was it submitted that the breach, if found, constituted no more than an irregularity. In any event I am satisfied that it is not a mere irregularity. The relevant breach cannot be characterised as an irregularity in the application of a procedural provision.[25]
[25] Green v Paige [1957] Tas SR 66 at 77; Millar & Ors v Houghton Table Tennis & Sports Club Inc [2003] SASC 1 at [115], (2003) 225 LSJS 241 at 257.
In my view, no proper basis has been established for the Court, in the exercise of its discretion, to decline to grant the relief the plaintiff seeks. I do not understand the defendant to contend otherwise. Whatever the position may have been earlier in the proceedings, I do not understand the defendant to contend now that if the relegation of the plaintiff club to the Country Division is in breach of the by-laws it is open to the defendant, and the defendant intends, to seek to amend the by-laws retrospectively to achieve that result.
While the matter has not been fully argued, there must be considerable doubt whether the by-laws would permit the retrospective amendment. It is at the very least arguable that an amendment to the by-laws expressed to operate retrospectively so as to have the effect of reversing the plaintiff’s existing entitlement to remain in the Central Division would be beyond the power of the League, and invalid.[26] In any event, even if they do, such an amendment would run the risk of being found to contravene s 61 of the Associations Incorporation Act 1985 (SA) which provides:
[26] Broadcasting Co of Aust Pty Ltd v Cth (1935) 52 CLR 52 at 60-61, 63; Grech v Bird (1936) 56 CLR 228 at 239, 241-2; Shanahan v Scott (1957) 96 CLR 245 at 249-250; R v Toohey; ex parte NLC (1981) 151 CLR 170 at 201, 276; Rokobatini v MIMA [1999] FCA 1238 at [50] – [61], (1999) 90 FCR 583 at 593-595; Beard v SA (1991) 57 SASR 65 at 81; Clarke v ALP (SA Branch) [1999] SASC 365 at [130] – [143], (1999) 74 SASR 109 at 147-150.
61—Oppressive or unreasonable acts
(1) A member or former member of an incorporated association may apply to the Supreme Court or the Magistrates Court for an order under this section on the ground that the association has engaged, or proposes to engage, in conduct that is oppressive or unreasonable.
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(4) The Court hearing a proceeding under this section may, if satisfied that the association has engaged, or proposes to engage, in conduct that is oppressive or unreasonable, make one or more of the following orders:
(a) an order for regulating the conduct of the association's affairs in the future;
(b) an order directing the association to institute, prosecute, defend or discontinue specified proceedings, or authorising a member of the association to institute, prosecute, defend or discontinue specified proceedings in the name and on behalf of the association;
(c) an order restraining a person from engaging in specified conduct or from doing a specified act or thing;
(d) an order requiring a person to do a specified act or thing;
(e) an order for the alteration of the rules of the association;
(f) an order that a former member be reinstated as a member of the association;
(g) any other order that is, in the opinion of the Court, necessary to remedy any default, or to resolve any dispute.
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(13) If an order under this section makes any alteration to the rules of an association, then, despite anything in any other provision of this Act but subject to the provisions of the order, the association does not have power, without the permission of the Court that made the order, to make any further alteration to the rules inconsistent with the provisions of the order but, subject to this section, the alteration has effect as if it had been duly made by resolution of the association.
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(15) For the purposes of this section—
(a) an association has engaged, or proposes to engage, in conduct that is oppressive or unreasonable if—
(i) it has taken action, or proposes to take action, to expel a member from the association in circumstances in which the action was, or would be, oppressive or unreasonable; or
(ii) it has engaged, or proposes to engage, in conduct that was, or would be, oppressive or unfairly prejudicial to, or unfairly discriminatory against, a member or was, or would be, contrary to the interests of the members as a whole; or
(iii) the rules of the association contain, or are proposed to be altered so that they will contain, provisions that are oppressive or unreasonable;
(b) a reference to engaging in conduct includes a reference to refusing or failing to take action.
In my view, the by-laws afford the plaintiff the right to compete in the Central Division in the 2015 season. It is conceded that that right brings real benefits, both tangible and intangible, to the plaintiff. Accordingly, damages would not be an adequate remedy. In the circumstances I am satisfied the plaintiff is entitled to the relief it seeks.
Conclusion
I will hear the parties as to the terms of the orders to be made in light of these reasons and on the question of costs.
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