Jesse White v SA Amateur Football League Incorporated - [2022] SASC 85

Supreme Court of South Australia

(Civil: Application)

JESSE WHITE v SA AMATEUR FOOTBALL LEAGUE INCORPORATED

[2022] SASC 85

Judgment of the Honourable Auxiliary Justice Tilmouth

12 August 2022

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - HEARING - NATURE OF HEARING - DISCLOSURE OF EVIDENCE AND MATERIAL FACTORS

ADMINISTRATIVE LAW - JUDICIAL REVIEW - POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION - DECLARATIONS

Following a disciplinary tribunal hearing before the SA Amateur Football League Tribunal, Mr Jesse White was found guilty of 'careless conduct, medium impact and high conduct' by striking another player during the course of an Australian Rules football match. He was suspended from playing in the competition for three matches.
While considering its decision as to penalty, the Tribunal became aware of two prior reports of 'rough conduct' recorded on Mr White's Player Management record. Mr White denied any recollection of the two incidents. The Tribunal considered the record relevant for the purposes of determining penalty and it expressed 'some scepticism' over Mr White's explanation and indicated a concern that he may have misled the Tribunal.
Mr White applies for a judicial review of the Tribunal's decision, on the grounds that he was denied procedural fairness and natural justice. He seeks an order quashing the Tribunal's decision, or in the alternative, a declaration that the penalty is null and void.
Held, per Tilmouth AJ:
1.     The applicant was denied procedural fairness by the fact that the Tribunal did not disclose in advance of submissions on penalty, the details of Mr White’s Player Management record. In such circumstances, the Court is unpersuaded that justice was done, or manifestly and undoubtedly seen to be done.
2.     The Court declares that the decision made on 27 July 2022 by the Tribunal suspending Mr White from playing in the League for three matches is null and void.
3.     Parties are at liberty to apply on the issue of costs, or any other consequential order.
Supreme Court Act 1935 (SA) s 31; Uniform Civil Rules 2020 (SA) r 256.7, referred to.
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; Cameron v Hogan (1934) 51 CLR 358; Dixon v Commonwealth (1981) 61 ALR 173; Ex parte McCarthy [1924] 1 KB 256; FAI Insurances Ltd v Winneke (1982) 151 CLR 342; Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487; Kioa v West (1985) 159 CLR 550; McClelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759; NIB Health Funds Ltd v Private Health Insurance Administration Council (2002) 115 FCR 561; R v Sussex Justices [1923] All ER Rep 233; Twist v Randwick Municipal Council (1976) 136 CLR 106, considered.

JESSE WHITE v SA AMATEUR FOOTBALL LEAGUE INCORPORATED

[2022] SASC 85

Civil

TILMOUTH AJ

The current proceedings

The Court has before it an application by Mr Jesse White for the Judicial Review of a decision made on 27 July 2022 by the South Australian Amateur Football League Tribunal, finding him guilty of intentionally or carelessly striking another player during the course of an Australian Rules football match and on account thereof, suspending him from playing in the 2022 Australian Rules football competition for three matches until 15 August 2022.
Mr White plays with the Broadview Football Club in the Second Division of the 2022 Australian Rules football competition convened by the SA Amateur Football League Incorporated, trading under the name ‘Adelaide Footy League’ (“the League”).
The orders sought by him include quashing the decision suspending him and facilitating the rehearing of the charge by orders and directions enabling a rehearing as a matter of urgency. Alternatively, an order is sought declaring the suspension for three weeks as null and void. Mr White has already served two of the three match suspensions.
As the order for suspension for the third match precludes Mr White from playing in the next and final minor round of fixtures this coming weekend, he becomes ineligible to play in the finals rounds owing to restrictions under the The Adelaide Footy League Rules & Regulations 2022 (“the Rules”) as to the qualification of players for the finals. In these pressing circumstances the Court determined on the first return date pursuant to The Uniform Civil Court Rules 2020 (SA) r 256.7(2), that further conduct of the action was to be heard and determined exclusively by a single Judge forthwith. Accordingly, given the exigencies, these reasons are relatively briefer than they would otherwise be.

Underlying facts in brief

On 23 July 2022, in the course of a game in the competition between Broadview and Gaza Football Clubs, the incident occurred involving Mr White and an opposition player. This became the subject of a complaint by Gaza to the League. It was not however the subject of report by any match official. This incident was in fact captured on video. Mr White’s version is that the other player was restraining him from behind whilst he was attempting to writhe free in order to continue playing on. No injury was apparently reported resulting from this incident. There is however no attack on the finding that he was guilty of the striking charge.
By notice dated 25 July 2022, the League advised Mr White that the Match Review Panel considered he breached rule 22.2.2(a)(i) of The Laws of Australian Football (“the Laws”) by committing the offence of striking, which was categorised by the Panel as ‘careless conduct, medium impact and high contact’, of which he was then charged.

The Tribunal hearing

The charge was heard at a disciplinary tribunal hearing convened on 27 July 2022, at the conclusion of which the South Australian Amateur Football League Tribunal (“the Tribunal”) found the charge proved and suspended Mr White, as detailed above. By rule 57 of the Rules, the Tribunal was vested with the power to hear and determine charges laid against players in the League and to discipline players of member clubs for breaches of the Laws or Rules. Those powers included the powers of reprimand, suspension and fine as well as to allow for suspended or partially suspended penalties and for the reduction of standard penalties at the discretion of the Tribunal.
According to The Adelaide Footy League Tribunal Reference Manual 2022, such rights as to procedural fairness and natural justice in the Tribunal are provided for. These include provisions for due notice in advance of the nature of the allegations made against players, rights of appearance and representation (legal or otherwise), to hear the evidence and cross-examine witnesses, allowing for charged players to give evidence and to call witnesses in their own defence and to make submissions to the Tribunal. The Manual further proceeds to provide that a player’s past disciplinary history is a relevant consideration in when it comes to the reduction of penalty, and it specifically provides for a player found guilty that “the details of the player’s record shall be read”. It also permits submissions to be made by or on behalf of the player as to penalty. These rules appear designed to quarantine the Tribunal from knowledge of the charged player’s record until the charged conduct is proven.
These Manual procedures borrow from deeply rooted principles of the common law. It is fundamental administrative law that disciplinary bodies having ‘legal authority to determine questions affecting the rights of subjects’, are subject to the principles of natural justice: Twist v Randwick Municipal Council, FAI Insurances Ltd v Winneke. These principles oblige the decision-maker to give reasonable notice of the matters to be considered and the corresponding opportunity to respond: Heatley v Tasmanian Racing and Gaming Commission, FAI Insurances Ltd v Winneke. Such obligations ordinarily require the party affected to be advised of issues the Tribunal is considering, and informed of the nature and content of any material from which adverse findings might be based: Dixon v Commonwealth. Such obligations become particularly acute when a Tribunal has before it information obtained from some other source likely to affect the outcome of the decision to be made: Kioa v West (“Kioa”).

In Kioa, Brennan J expressed the guiding principle in these terms:
The repository must adopt a fair procedure having regard to the matters he is bound to take into account (Attorney-General v Ryan [1980] AC 718 at 727) and, I would add, the matters he proposes to take into account. Subject to one qualification, the Minister's delegate gave Mr Kioa the fair hearing the delegate was bound to give him.
…
However, there was one allegation — that contained in para 22 of the department's submission — which was damaging to the prospects of Mr and Mrs Kioa being allowed to stay in Australia. That information was never put to Mr and Mrs Kioa for their comments.
…
A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise (Kanda v Government of Malaya [1962] AC 322 at 337; Ridge v Baldwin [1964] AC 40, per Lord Morris at pp 113–4; De Verteuil v Knaggs [1918] AC 557 at 560, 561). The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by enquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made.
As Brennan J proceeded to explain in Kioa, the obligation of disclosure does not abate simply because the decision-maker has not taken the undisclosed material into account:
Nevertheless, in the ordinary case where no problem of confidentiality arises, an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account.
After quoting the above passage, Allsop J added in NIB Health Funds Ltd v Private Health Insurance Administration Council:
…the necessity to disclose such material in order to accord procedural fairness is not based on answering a causal question as to whether the material did in fact play a part in influencing the decision, but rather on the appearance of a fair hearing and the maintenance of confidence in the administrative process and judicial review of it.
Later, the High Court elaborated on what was required of ‘credible, relevant and significant to the decision’ in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (“Applicant VEAL”):
“Credible, relevant and significant” must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is "credible, relevant and significant" are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached.
These authorities make it clear that the obligation of disclosure operates to overcome the appearance of subconscious prejudice inherent in circumstances where a Tribunal has received without disclosing, but ostensibly disregarded adverse material. Hence, as was affirmed in Applicant VEAL:
The relevant inquiry is: what procedures should have been followed? The relevant inquiry is neither what decision should the decision-maker have made, nor what reasons did the decision-maker give for the conclusion reached.
Mr White was represented at the hearing by Mr Nicholas Murphy, an employed solicitor with the legal firm Charlton Rowley. After the Tribunal found Mr White guilty of the charge of intentionally striking another player, which it categorised as ‘careless conduct, medium impact and high contact’, it invited submissions as to penalty. Mr Murphy informed the Tribunal that Mr White had never appeared before a Tribunal at any level of Australian Rules football over his entire playing career of some 280 games, mostly at AFL and SANFL levels in Victoria, New South Wales, the ACT and South Australia. He did so on the basis of what he was instructed by Mr White, and from what he was told by Mr White’s coach at the Broadview Football Club. Mr Murphy confirms that when the Tribunal then asked Mr White directly whether he was ever fined, sanctioned, or otherwise reported over his playing career, Mr White replied that he had not.
Mr Murphy next proceeded to submit that the Tribunal had good reason to exercise its discretion to suspend the penalty for one or more games that Mr White was to be penalised for, based on sporting good behaviour over a lengthy and extensive playing career. He further submitted that Mr White was highly unlikely to reoffend in view of that history, so that suspension of penalty was warranted on account of his good behaviour.
After considering its decision in private, the Tribunal resumed to indicate that it just became aware of two separate occasions when Mr White was reported for rough conduct. According to Mr Murphy, the Presiding Member expressed “disgust” that Mr White was dishonest in deliberately misleading the Tribunal by failing to disclose those reports. The Tribunal then suspended Mr White for three games, indicating that they found no good reason to suspend that penalty for any of those three matches.
According to the Presiding Member, upon receiving this information during the Tribunal’s initial deliberations from an employee of the League, it opened the hearing room to advise of the ‘specifics’ of that information and to enquire ‘what do you have to say about that?’. On the Presiding Member’s version of the events, Mr White responded that ‘he knew nothing about the disciplinary record and could not explain the fines suggesting that the clubs may have taken care of them’.
It transpires that the record produced by the employee suggested Mr White was previously reprimanded and reported for rough conduct, for which he was fined $500 during the 2017 season while playing with Collingwood, and was again reported for rough conduct for which he was reprimanded and fined $200 during the 2019 season while playing with Glenelg. Neither occasion required an appearance or hearing before a Tribunal. Mr White claims to have no recollection of these two incidents, believing they were dealt with administratively by the clubs. He did not recall receiving any paperwork relating to the reports, whilst stating that he ‘did not pay the fines and was not called upon by either club to do so’.
The provenance of this record was not strictly proven, but it is said to have come from the Player Management records of the employee.
The Presiding Member accepts that on this occasion during the resumed hearing, the Tribunal did express ‘some scepticism’ over Mr White’s explanation and that it did indicate ‘a concern that [he] may have misled the Tribunal’. The Presiding Member does however, note that ‘the point was not taken any further, and was not the subject of any further deliberations by the Tribunal’. He otherwise denies the allegations of the Tribunal expressing disgust, or that Mr White was dishonest in deliberately misleading the Tribunal.
According to the Presiding Member, the Tribunal ‘decided to impose the penalty solely on the basis of the evidence … and the seriousness with which the Tribunal viewed the incident’. In addition, he states that it considered ‘there was little likelihood of … re-offending’, but as Mr White ‘did not have a good disciplinary record … there was no basis to suspend any of the three matches’.
Since the parties elected to conduct these proceedings on the papers, it is clearly not open to make adverse findings of fact in relation to the disputed course of the events before the Tribunal. For the purposes of these reasons, it is assumed that the Player Management records are accurate and that there is at least a reasonable possibility that Mr White had honestly forgotten about the two reports for rough conduct, which after all, were dealt with informally and resulted in reprimand and fines.
On the other hand, what is clear enough is that Mr White’s player’s record was not read or disclosed in advance of sentence as it was required to be and that at the very least the Tribunal did during the resumed hearing, openly express scepticism as well as indicate its concern that he may have misled it. Furthermore, it is accepted that the Tribunal did take into account the two reports for rough conduct in order to conclude that no basis existed to suspend penalty.

Resolution

Based on the above-described course of events relating to the hearing before the Tribunal, Mr White was denied procedural fairness, in that the Tribunal did not disclose in advance of submissions on penalty, the details of Mr White’s playing record as required by The Adelaide Footy League Tribunal Reference Manual 2022, and in breach of the principles of natural justice. This error was potentially compounded by asking Mr White directly to explain the player history. Just why it was not produced in advance in open Tribunal during the sentence hearing remains largely unexplained. To this point however, this somewhat awkward course of events may have been inconsequential, in that Mr White’s explanation was likely to be the same if it was produced and read as required.
The fact remains that the Tribunal did take into account the two reports for rough conduct in order to conclude that there was no basis to suspend penalty, and it undoubtedly expressed scepticism and suggested it was misled. The past player record was certainly credible, relevant and significant as it was the driver in the decision not to suspend penalty. By the same token, the past two rough conduct charges were relatively minor judged by the outcome, and they did not involve Tribunal hearings.
More than that, under the Laws, a ‘guideline’ penalty indicates 3-4 matches for the offence as categorised by the Tribunal, allowing for the discretionary reduction of penalty for an early plea of guilty and for players not found guilty of a reportable offence within the past five years in the League, both of which applied to Mr White.
According to the authorities discussed above, issues of non-disclosure stand for resolution according to the appearance or otherwise of a fair hearing and the maintenance of confidence in the administrative process. In those situations, it does not matter that the Tribunal expressly disavows reliance on such material.

Conclusion and orders

There was some discussion during argument as to whether this Court had jurisdiction to grant orders in the nature of judicial review, since the Tribunal was a voluntary amateur sporting body: Cameron v Hogan. Counsel for Mr White sought to rely on cases in which financial interests were at stake as founding the jurisdiction to intervene, beginning with McClelland v Burning Palms Surf Life Saving Club. Since it was conceded by counsel for the League that if the Court were otherwise disposed to intervene, a binding declaration of right under s 31 of the Supreme Court Act 1935 (SA) would suffice, it is unnecessary to resolve the jurisdiction issue.
For the above reasons, the Court is unpersuaded in the particular circumstances of this case, that justice was done or manifestly and undoubtedly seen to be done: R v Sussex Justices; Ex parte McCarthy.
Consequently, there will be an order declaring the decision made on 27 July 2022 by the Tribunal suspending Mr White from playing in the League for three matches null and void.
The parties are at liberty to file written submissions as to costs or as to any other consequential order, by close of business Monday, 19 September 2022.