Johncock v Port Lincoln Football League Incorporated - [2013] SASC 143

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
JOHNCOCK & ANOR v PORT LINCOLN FOOTBALL LEAGUE INCORPORATED
[2013] SASC 143
Judgment of The Honourable Justice Sulan
10 September 2013
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS - RELEVANT CONSIDERATIONS - BALANCE OF CONVENIENCE GENERALLY
ASSOCIATIONS AND CLUBS - JURISDICTION OF THE COURTS - INTERFERENCE IN INTERNAL MANAGEMENT - GENERALLY
The first plaintiff was, prior to his deregistration, a footballer registered to play in an Australian Rules football league administered by the defendant. The second plaintiff fields teams in the league administered by the defendant. The first plaintiff played in one of those teams. The plaintiffs sought urgent injunctive relief requiring the defendant to reregister first plaintiff in the league and restraining it from taking steps to prevent him from playing in the league. The first plaintiff was automatically deregistered from the league following the accumulation of a combined total of 16 weeks' suspension in his football career.
Held: Plaintiffs' application granted.
1. It is sufficiently likely that a court would exercise its discretion to grant the relief sought and there is a serious question to be tried in relation to the plaintiffs' claim.
2. The balance of convenience favours the granting of the injunction.
3. In the circumstances, damages would be an inadequate remedy.
Associations Incorporation Act 1985 s 23(1), referred to.
Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470; Popovic v Tanasijevic [2001] SASC 289; Rush v WA Amateur Football League Inc [2001] WASC 154; Millar v Houghton Table Tennis and Sports Club Inc (2003) 225 LSJS 241, considered.

JOHNCOCK & ANOR v PORT LINCOLN FOOTBALL LEAGUE INCORPORATED
[2013] SASC 143
Civil: Application

SULAN J: This is an application for urgent injunctive relief pursuant to rules 131 and 246 of the Supreme Court Civil Rules 2006. The first plaintiff, Barry Dean Johncock Jnr, and the second plaintiff, the Mallee Park Football Club Incorporated, seek orders requiring the defendant, the Port Lincoln Football League Incorporated, to re-register Mr Johncock as a player permitted to play in the Australian Rules Football League (“the League”) administered by the defendant on an interim basis and an order restraining it from taking steps to prevent Mr Johncock from playing in the League.
In an affidavit dated 29 August 2013, the solicitor for the plaintiff’s, Mr Gregory Nicholls, states that the Port Lincoln Football League was served with the application and is aware of the orders sought. Mr Nicholls states that that the Port Lincoln Football League neither consents to nor opposes the application and indicated that it did not wish to appear at the hearing.
The application was brought urgently on the basis that if Mr Johncock were not deregistered, he would be picked in the Mallee Park Football Club’s A grade team to play in an elimination final on Saturday 31 August 2013 at 2pm. At the hearing of the application on Friday 30 August 2013, I granted the plaintiffs’ application. I indicated that I would provide detailed reasons for doing so at a later date.
Background
It is necessary at the outset to describe the inter-relationship between the relevant associations in this matter.
The second plaintiff, the Mallee Park Football Club, fields teams in the League which is administered by the defendant, the Port Lincoln Football League. The Port Lincoln Football League is governed by its Constitution. At all relevant times the Mallee Park Football Club was a member football club for the purpose of clause 6 of the Port Lincoln Football League’s Constitution. The first plaintiff, Mr Johncock, until his deregistration, was a footballer registered to play in the League. He plays for the Mallee Park Football Club. Both the Mallee Park Football Club and the Port Lincoln Football League are duly incorporated associations under the Associations Incorporation Act 1985.
The governing body of the Port Lincoln Football League is the South Australian Community Football League Inc (“SACFL”). It is also a duly incorporated association with its own constitution. The inaugural Community Football Board was appointed in 2008 by the SA Football Commission. It is associated with the South Australian National Football League (“the SANFL”).
Pursuant to clause 5 of its constitution, the SACFL has the power to make regulations. Appendix 13 to the SACFL Regulations is the Australian Football Player and Official National Deregistration Policy (“the Deregistration Policy”). The Deregistration Policy was introduced by the Australian Football League (“AFL”) in 2007 and is applied uniformly across all levels of football in Australia. In early 2012 the Port Lincoln Football League adopted the Deregistration Policy.
Clause 3.2.2 of the Deregistration Policy provides as follows:
3.2.2 Criteria for Deregistration
(a)Players
i)     Players shall be automatically deregistered and not allowed further registration with the same or another League if the Player has accumulated a combined total of sixteen (16) weeks Suspension (or greater) in a football career (including AFL career, subject to section 3.2.2(a)(iii) below).
ii)    For the avoidance of doubt, any Suspension period served by a Player in any junior Australian football competition, will count for the purposes of this Deregistration policy.
iii)    Any Suspension period served by a Player during his AFL career shall carry over, however such Suspension period shall be halved for the purposes of this Deregistration policy. For example, if a Player receives a total of six (6) weeks Suspension whilst playing in the AFL, only three (3) weeks shall carry over for the purposes of this Deregistration policy.
First Offence
iv)   Should a player receive sixteen (16) weeks or more Suspension as a “first offence” it shall be at the Leagues discretion as to whether or not that Player will be deregistered, following his/her Suspension.
[Emphasis in original.]
At the time the Deregistration Policy was adopted by the Port Lincoln Football League, Mr Johncock had previously been suspended for a total of 13 games. He was again suspended on 13 September 2012 for two matches by the Port Lincoln Football League Tribunal. This took the total number of games from which he had been suspended to 15 games. On 23 July 2013, Mr Johncock was further suspended for three games, taking the total of games from which he had been suspended to 18 games. In accordance with clause 3.2.2(a)(ii), he was automatically deregistered as a player in the Port Lincoln Football League.
Relevant principles
The principles governing the circumstances in which a court will grant an interlocutory injunction are well known. In Australian Broadcasting Corporation v O'Neill, Gummow and Hayne JJ said:[1]
The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued:
The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.
By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.
[Citations omitted.]
[1] (2006) 227 CLR 57, [65]-[72].
Accordingly, it is necessary that the plaintiffs establish the following:
That there is a serious question to be tried, namely that on the evidence before the Court there is a sufficient likelihood of success of the plaintiffs’ claim at trial to justify the orders sought;
That the balance of convenience favours the grant of the injunction; and
That damages are an inadequate remedy.
I will address each of these considerations in turn.
Serious question to be tried
The plaintiffs submit that the basis of their complaint that they will seek to have resolved at trial is whether the Port Lincoln Football League’s conduct, in failing to notify the plaintiffs in accordance with clause 3.2.1(a) of the Deregistration Policy, amounted to either a breach of contract as between it and the Mallee Park Football Club and/or a denial of procedural fairness to Mr Johncock.
Clause 3.2.1(a) of the Deregistration Policy deals with the notification obligations on the administrator of a league. It provides as follows:
3.2.1 Notification
(a)(a) Leagues
v)    State Leagues must advise all and Clubs of the details of the policy and make the policy readily available to their Clubs, Players and Officials.
vi)   Once a Player/Official has accumulated a Suspension history of ten (10) weeks or more, the League must advise the Player/Official and their Club in writing that the Player/Official faces the risk of automatic Deregistration should the Player/Official incur further Suspension(s) that results in him/her reaching or exceeding the sixteen (16) week total Suspension history.
vii)   Notification of Deregistration shall be made in writing to the Player/Official and their Club.
viii)    Leagues shall be notified in writing of all decisions to deregister a Player/Official, by the Player’s/Official’s Club. A central database of all deregistered players/officials will be kept by all Leagues.
ix)   Should a Player/Official’s tribunal history already have reached or exceed a combined total of sixteen (16) weeks Suspension at the time of implementing this policy, the League is to formally advise the Player/Official and the Player’s/Official’s club that the Player/Official faces automatic Deregistration should the Player/Official incur another Suspension.
In his affidavit, Mr Nicholls states that he is instructed that no notice or communication was received by either plaintiff from the defendant either following the adoption of the Deregistration Policy by the Port Lincoln Football League in early 2012 when Mr Johncock had already been suspended for a total of 13 games, or following his further suspension on 13 September 2012 which took the total number of games from which he had been suspended to 15 games.
Annexed to Mr Nicholls affidavit are two letters from the Port Lincoln Football League dated 23 April 2012. One is addressed to Mr Johncock, care of the Mallee Park Football Club, and the other to the President of the Mallee Park Football Club. They are in essentially in the same terms, noting that Mr Johncock had previously been suspended for a total of 13 games and advising that he would be automatically deregistered should he reach a total of 16 suspended games. Mr Nicholls deposes that his instructions are that neither plaintiff received the correspondences. Mr Nicholls obtained the letters from the offices of the Port Lincoln Football League on 28 August 2013. He further states that, following enquiries with the Port Lincoln Football League, he confirmed that the letters were purportedly sent by ordinary mail and that the Port Lincoln Football League were unable to provide corroboration that the letters were in fact sent.
The plaintiffs submit that they will be seeking a declaration that the automatic deregistration that occurred on 23 July 2013 was ineffective and a mandatory injunction requiring the Port Lincoln Football League to re-register Mr Johncock as a player permitted to play in the League should be granted.
To determine whether there is a serious question to be tried, it is necessary to address two issues. Firstly, whether the plaintiffs have standing to bring a claim against the Port Lincoln Football League in respect of the failure to comply with clause 3.2.1(a)(ii). And secondly, whether it is sufficiently likely that the plaintiffs will be able to establish an entitlement to the relief sought.
It is well recognised that, in certain circumstances, courts have the power to intervene in the affairs of private clubs and associations.[2] On the plaintiffs’ case, each plaintiff is entitled to the relief sought by virtue of different circumstances which warrant intervention by this Court.
[2] McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470, [82]-[117].
The claim by the Mallee Park Football Club
It is submitted that the Mallee Park Football Club is entitled to relief on the basis that the Port Lincoln Football League has breached the contractual duty it owed to the Mallee Park Football Club by failing to comply with the notification requirements under the Deregistration Policy.
In McClelland v Burning Palms Surf Life Saving Club,[3] Campbell J explained the basis on which a Court can intervene where a contractual relationship exists between a voluntary association and one of its members. He said: [4]
There is a long line of judicial statements, explaining that the basis on which a court can prevent excess of power by a domestic tribunal is by enforcing the contract under which the tribunal operates. Thus, in Dickason v Edwards (1910) 10 CLR 243 at 250 Griffith CJ said:
It is, of course, a general rule of natural fair play that a man cannot be judge in his own cause. In the case of statutory tribunals that rule is absolute unless the statute provides, as it does in some cases, that a person who is only formally a party may nevertheless sit on the tribunal, as, for instance, in England in the case of licensing tribunals and the London County Council when it sits to determine applications for granting licences. The rule prevails except so far as the language of the particular statute is to the contrary. In the case of tribunals created by contract between the parties it is entirely a question of the construction of the contract whether the parties have agreed that an interested person shall or shall not be disqualified. To exclude the general rule of fair play I think it is necessary that it should appear that the parties intend that a person may sit although he is interested, that is to say, he must be able to collect from the contract itself an agreement either expressly or by necessary implication to that effect. The question therefore resolves itself into an examination of this contract.
O’Connor J said, at 255:
It is necessary in the management of a society of this kind to give powers of expulsion. It is necessary also to appoint tribunals for the purpose of dealing with questions of conduct, and the courts will not interfere with the decisions of these tribunals unless they exceed their powers, and their decision results in injury to property or to civil rights. Whether a domestic tribunal has exceeded its powers is entirely a question of the construction of the contract which creates it. The rules of a society may give power to decide disputes on any principle the members think. The rules may be of such a nature as to empower a judicial body to decide in violation of all principles of natural justice. If the parties choose to agree to a tribunal having power of that kind the courts will not interfere. But in the interpretation of such a contract there are some leading principles to be borne in mind. The first is that in interpreting rules which give jurisdiction to any tribunal there is always to be read into them the underlying condition that the proceedings shall be carried out in accordance with the fundamental principles of common justice. It is upon a party who wishes to shut out the implication of that basic condition to show that the rules expressly or by necessary implication negative the implication of its existence.
[3] [2002] NSWSC 470.
[4] McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470, [84].
Both the Mallee Park Football Club and the Port Lincoln Football League are duly incorporated associations under the Associations Incorporation Act 1985. The Mallee Park Football Club is a member of the Port Lincoln Football League. Pursuant to s 23(1) of the Act, the rules of an incorporated association bind the association and all members of the association. The plaintiff’s submits that, as a corollary, the clauses of the Deregistration Policy adopted by the Port Lincoln Football League applied as contractual terms between the Mallee Park Football Club and the Port Lincoln Football League. Accordingly, it is submitted, that a failure by the Port Lincoln Football League to comply with clause 3.2.1(a)(ii) would constitute a breach of contract and entitle the Mallee Park Football Club to relief by way of injunction and/or declaration
In Popovic v Tanasijevic,[5] Williams J, which whom Doyle CJ and Martin J agreed, confirmed that where a voluntary association is incorporated, its rules are binding in law. He held:[6]
The principles of Cameron v Hogan are confined to voluntary organizations whose membership is based upon consensus; they are not applicable to an incorporated organization whose rules are binding in law by virtue of the statute. When (as in the present case) a plaintiff sues for a declaration as to the effect of a transaction in light of the rule of an association, the court may grant discretionary declaratory relief in the exercise of its jurisdiction when it is useful to do so (cf Ibeneweka v Egbuna [1964] 1 WLR 219 at 225).
[5] [2001] SASC 289.
[6] Popovic v Tanasijevic [2001] SASC 289, [46]-[47].
I am satisfied that the dispute between the Mallee Park Football Club and the Port Lincoln Football League is justiciable.
The plaintiffs contend that it is sufficiently likely that the Mallee Park Football Club would be entitled to the relief it seeks against the Port Lincoln Football League. The plaintiffs rely on the inquiries made of the Port Lincoln Football League by Mr Nicholls which he outlines in his affidavit. The plaintiff’s submit that there is unchallenged evidence that neither plaintiff received the notification required under the Deregistration Policy and that there is no evidence other than an unsubstantiated understanding by the Port Lincoln Football League that the letters were sent. Accordingly, it is contended that there is a serious question to be tried as to whether, as a matter of fact, a notice pursuant to clause 3.2.1(a)(ii) was sent to the plaintiffs.
It is to be observed that the remedies sought by the plaintiffs are discretionary. However, given the serious consequences of automatic deregistration, the importance of the notification requirements in the scheme of the policy and the inadequacy of other remedies, I am satisfied that it is sufficiently likely that a court would exercise its discretion to grant the relief sought and that there is a serious question to be tried in relation to the claim by the Mallee Park Football Club.
The claim by Mr Johncock
It is not contended by the plaintiffs that Mr Johncock has a contractual relationship with the Port Lincoln Football League. It is submitted that Mr Johncock, as a non-member, is entitled to seek relief against the Port Lincoln Football League for breach of procedural fairness or natural justice requirements as a matter of law.

In McClelland v Burning Palms Surf Life Saving Club, Campbell J discussed the principles in which a non-member is entitled to relief against an association. He said:[7]
If a decision is arrived at by a private body which, contrary to its own rules, does not accord procedural fairness to a non-member who is affected, it is in theory possible that there may be circumstances where the courts will recognise such a person as having standing to apply for a declaration of the invalidity of the decision, and an injunction against treating it as valid. It would be for the courts to develop, on a case-by-case basis, the circumstances in which such standing should be recognised. Even though the legal basis of the body’s right to make a decision is contained in the constitutive documents of the body itself, there is no necessary reason why it should be only members of the body, or people with the benefit of a contractual promise that the body will follow its own required procedures, who can assert the invalidity of the decision. It is a fact of life that a decision of a private tribunal can affect people who are not members, or people who are not bound by contract to observe the decision- and the existence of the private body and of the decisions of its tribunal is a reality which affects people other than by force of a contract with the body. If the body has practical power to affect a plaintiff in a sufficiently serious way, it would be for the courts to recognise in which situations the nature of affectation of the interests of the plaintiff is sufficient to confer standing.
[7] McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470, [113].
The plaintiffs submit that, pursuant to clause 3.2.1(a)(ii) of the Deregistration Policy, Mr Johncock had a right to have notice provided to him prior to him being suspended for a total of more than 16 games and thus automatically deregistered.
For the reasons I gave earlier, I am of the view that there is a serious question to be tried in relation to whether the notice required by clause 3.2.1(a)(ii) of the Deregistration Policy was in fact sent to the plaintiffs. I accept the plaintiffs’ submission that the clause plays an important role in mitigating the harsh consequences of automatic deregistration and the restrictions the policy places on the reregistration of a deregistered player. If it were established that the Port Lincoln Football League breached its notification obligations imposed by clause 3.2.1(a)(ii), then it is clear that Mr Johncock’s interests have been clearly affected by the breach. He would no longer be able to play football, a games which, according to the evidence of Mr Nicholls, is one of the most important things in Mr Johncock’ s life. In my view, Mr Johncock had a legitimate expectation that that the Port Lincoln Football League would comply with the Deregistration Policy.
I am also satisfied that it is sufficiently likely that a court would exercise its discretion to grant the relief sought for the reasons stated above.
Balance of convenience
The plaintiffs submit that there are four relevant factors which favour the grant of the interlocutory injunction. Firstly, the Port Lincoln Football League neither consents to nor opposes the orders sought in the application. Secondly, it is submitted that it would work an injustice to the plaintiffs to deny Mr Johncock the opportunity to play in the League pending the outcome of the trial. Mr Johncock would miss the finals series, and possibly the grand final, and would not be able to participate in the sport he loves. In contrast, it is submitted that if the Port Lincoln Football League is successful at trial, it is difficult to see what harm may be caused to it as a result of the injunction granted on an interim basis.
Thirdly, it is contended that a cloud remains over the plaintiffs’ reputations while the automatic deregistration remains in effect. In support of this argument, the plaintiffs rely on the decision in Rush v WA Amateur Football League Inc.[8] In that case, the Court granted an interlocutory injunction to restraining the defendant league from giving effect to its decision to suspend plaintiff for a period of 10 years. In considering whether the balance of convenience favoured the granting of the application, Templeman J observed that the plaintiff’s reputation was a relevant consideration. He stated:[9]
If the League's position is vindicated at trial, then so be it. But I think it desirable, pending trial, to avoid as far as possible the risk of an injustice to the plaintiff resulting from an unwarranted slur on his reputation.
[8] [2001] WASC 154.
[9] Rush v WA Amateur Football League Inc [2001] WASC 154, [71].
Fourthly, the plaintiffs submit that Mr Johncock has a right of appeal under clauses 3.4 and 3.5 of the Deregistration Policy. He also has a right to apply to the South Australian Community Football League Tribunal for an exemption from automatic deregistration pursuant to clause 3.3 of the Deregistration Policy. It is submitted that Mr Johncock intends to pursue both avenues and is in the process of preparing the relevant documents. However, it is unlikely that the South Australian Community Football League Tribunal will be in a position to consider the applications before Saturday, 31 August 2013, nor is it clear when the applications can be heard.
Having regard to these factors, I am of the view that the balance of convenience favours the granting of the interlocutory injunction.
Damages an inadequate remedy
It is the plaintiffs’ submission that damages would be an inadequate remedy. Firstly, it is contended that damages would not compensate Mr Johncock for the loss of enjoyment he derives from playing football. Secondly, it is submitted that damages would not compensate Mr Johncock or the Mallee Park Football Club if he is not able to play in the finals match and the team is eliminated from the finals series. In support of these contentions, the plaintiffs rely on the decision of Rush v WA Amateur Football League Inc[10] where Templeman J considered that if the plaintiff were to be successful at trial then damages would not be an adequate remedy. He observed:[11]
For the reasons set out above, it is clear that damages would not be an adequate remedy. Even though the plaintiff could be compensated in money for any loss of income from coaching, he could not easily be compensated in that way for the loss of enjoyment of playing the game which has been such a major part of his life for some 23 years.
[10] [2001] WASC 154.
[11] Rush v WA Amateur Football League Inc [2001] WASC 154, [64].
Finally, the plaintiffs submit that it is not clear that damages are available as a remedy in this context. In Millar v Houghton Table Tennis and Sports Club Inc,[12] the Besanko J considered whether to grant an injunction to restrain the defendant from holding a special general meeting to consider the sale of its club rooms. In doing so, he cast doubt upon the availability of damages in such situations with the following observation:[13]
The possible remedies for a breach of the rules are a declaration and/or injunction. Specific performance is not relevant in this context. There is no claim for damages in this case, and that remedy (even if it is available, which is doubtful) can be put to one side.
[12] (2003) 225 LSJS 241.
[13] Millar v Houghton Table Tennis and Sports Club Inc (2003) 225 LSJS 241, [112].
It is unnecessary to decide this point for the purposes of the present application. In my view it is clear that, in the present circumstances, damages are an inadequate remedy, they cannot compensate the plaintiffs for the loss of enjoyment or opportunity to play in the football finals.
Orders
Following the hearing of the application, I made orders in the following terms:
1Within 4 hours of service of this order the defendant re-register the first plaintiff as a player permitted to play in the Australian football league administered by the defendant (League).
2Upon re-registering the first plaintiff as a player permitted to play in the League, the defendant be restrained from de-registering the first plaintiff pursuant to Appendix 13 of the South Australian Community Football League Regulations, in particular clause 3.2.2 of the South Australian Community Football League Regulations, until further order.
3The defendant (whether by its officials, agents or employees) be restrained from taking steps in reliance of clause 3.2.2(a)(i) of Appendix 13 of the South Australian Community Football League Regulations to prevent the first plaintiff from playing in the League.
4The proceeding be adjourned to a date to be fixed for directions.
5The parties have liberty to apply to the Court to vary or discharge these orders upon 24 hours’ written notice.
6Costs be reserved.[14]
[14] For completeness, I add that on Saturday, 31 August 2013, the Mallee Park Peckers went down to the Lincoln South Eagles in the first semi-final, with the final score 81 - 78. Mr Johncock did not play in that match.