Emma Hogan v Triathlon Australia - [2022] NST NST-E23-47455

Case number: NST-E23-47455

Case Title: Emma Hogan v Triathlon Australia

Determination

National Sports Tribunal

General Division

sitting in the following composition:

Panel Member Mr Christopher Johnstone

in the arbitration between

Emma Hogan (Applicant)

Represented by Emma Carney, Authorised Representative

And

Triathlon Australia (Respondent)

Represented by Tim Harradine, CEO

PARTIES

The applicant (appellant) in this arbitration is Ms Emma Hogan and is represented by her coach, Ms Emma Carney. Ms Hogan is a triathlete and member of Triathlon Australia (TA).
TA is the official National Sporting Organisation responsible for the management and delivery of the sports of triathlon, paratriathlon and multisport within Australia. In this arbitration it is represented by its Chief Executive Officer Mr Tim Harradine.
In addition, the Tribunal invited participation from Ms Emma Jeffcoat and Ms Sophie Linn being persons potentially interested in the outcome of the appeal, however they both declined to participate.

INTRODUCTION

Ms Hogan appeals against her non-selection by TA in a World Triathlon Cup event to take place on 25 and 26 March 2023 in New Plymouth (NP Event) (the appeal).
This appeal was fast-tracked and heard by video conference as a matter of urgency on the evening of Thursday 23 February 2023.
Whilst it was of no-consequence to the appeal, the Tribunal observes that the appeal was adjourned once to enable Ms Hogan further time to prepare. On Thursday 23 February 2023, Ms Hogan requested a further adjournment to respond to the submission of TA which the Tribunal refused on the basis that such an adjournment would adversely affect Ms Hogan given that TA had until 24 February to finalise its selections for the NP Event.
On the morning of Friday 24 February 2024, the parties were notified that the appeal was dismissed.
These are the Tribunal’s reasons for dismissing the appeal.

NST JURISDICTION

Pursuant to section 13 of the National Sports Tribunal Act 2019 (NST Act), the presiding member has been appointed by the Minister by written instrument as a Member of the Tribunal, and pursuant to section 23 of the NST Act was appointed by the CEO of the Tribunal under instrument to conduct this arbitration in the General Division of the Tribunal.

10.Pursuant to section 16(1) of the NST Act and rule 6 of the National Sports Tribunal Rule 2020, a Tribunal member is obliged to notify the CEO of the Tribunal of any conflict of interest in a matter to which he or she is appointed. There is no such interest to be notified.
11.Section 40 of the NST Act sets out general principles applicable to arbitration as follows:
(1)In the arbitration:
(a) the procedure of the Tribunal is, subject to this Act, within the discretion of the Tribunal; and
(b) the arbitration must be conducted with as little formality and technicality, with as much expedition and at the least cost to the parties as a proper consideration of the matters before the Tribunal permit; and
(c) the Tribunal is not bound by…

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.

Keep reading for free

Create a free CaseChat account to read Emma Hogan v Triathlon Australia and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NST NST-E23-47455
Decision Date: 27 February 2022

CaseChat Overview and Summary

Emma Hogan, an elite triathlete and member of Triathlon Australia (TA), appealed against her non-selection for the World Triathlon Cup event in New Plymouth in March 2023. Represented by her coach, Emma Carney, Hogan argued that her non-selection resulted from actual bias by TA, particularly regarding her categorisation and the communication between TA and her coach. Triathlon Australia, represented by its CEO, Tim Harradine, defended its selection process, asserting it was conducted fairly and in accordance with its Selection Policy.

The central legal issue in this arbitration was whether TA demonstrated actual bias against Hogan in selecting athletes for the New Plymouth event. Hogan argued that TA failed to properly categorise her as an athlete, ignored her race results, and did not communicate effectively with her coach, thereby prejudicing the selection process against her. TA contended that it had fairly exercised its discretion under the Selection Policy and that there was no actual bias against Hogan. The Tribunal also needed to determine whether the Selection Policy was misapplied in the selection process.

The Tribunal reviewed the submissions and evidence presented by both parties. It examined the Selection Policy, the categorisation process, and the specific selection criteria for the New Plymouth event. The Tribunal considered Hogan's arguments about her categorisation and the communication issues between TA and her coach. However, the Tribunal found that TA's selection process was in line with the Selection Policy and that there was no evidence of actual bias against Hogan. The selection of other athletes, such as Emma Jeffcoat and Sophie Linn, was based on their performance and compliance with the selection criteria. The Tribunal concluded that TA had not acted with partisanship or hostility towards Hogan and had properly considered her potential selection according to the discretionary factors outlined in the Selection Policy.

The Tribunal dismissed Hogan's appeal, finding insufficient evidence of actual bias or misapplication of the Selection Policy by TA. It held that TA was entitled to select athletes based on the immediate results and objectives outlined in its Selection Policy. The Tribunal found no fault in TA's exercise of discretion and could not substitute its decision for that of TA. Consequently, the Tribunal upheld TA's selection decision for the New Plymouth event.

Orders