New South Wales Rugby League Ltd & Anor v Players Listed in Annexure "A" to the Application New South Wales Rugby League Ltd & Anor v Players Listed in Annexure "A" to the Application New South Wales Rugby League..
[1996] FCA 1161
•18 Dec 1996
NOT FOR GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 234 of 1996
GENERAL DIVISION )
BETWEEN:
NEW SOUTH WALES RUGBY LEAGUE LIMITED & ANOR
Applicants
AND:
PLAYERS LISTED IN ANNEXURE "A" TO THE APPLICATION
RespondentsNo NG 235 of 1996
BETWEEN:
NEW SOUTH WALES RUGBY LEAGUE LIMITED & ANOR
Applicants
AND:
PLAYERS LISTED IN ANNEXURE "A" TO THE APPLICATION
RespondentsNo NG 236 of 1996
BETWEEN:
NEW SOUTH WALES RUGBY LEAGUE LIMITED & ANOR
Applicants
AND:
MAURICE PATRICK LINDSAY
Respondent
CORAM:Lindgren J
PLACE:Sydney
DATE:18 December 1996
REASONS FOR JUDGMENT
(ex temporare)
INTRODUCTION
There are before the Court matters numbered NG 234 of 1996, NG 235 of 1996 and NG 236 of 1996. In each the applicants are the New South Wales Rugby League Limited ("the NSWRL") and the
Australian Rugby League Limited ("the ARL"). I will refer to them as "the Applicants" and "the Leagues".
In proceeding No NG 234 of 1996, respondents numbered 1 to 258 are individuals, while the 20 respondents numbered 259 to 278 are News Limited, Super League Pty Limited and 18 other companies. Those 18 other companies have been called "the Franchisees". It will be convenient for me to refer to those 20 respondents as "the News Entities".
In proceeding No NG 235 of 1996 respondents 1 to 166 are individuals, while the eight respondents numbered 167 to 174 are rugby league clubs.
(I note, in passing, that there is some confusion in the numbering and numbers of the respective classes of respondents in the documents which have been filed in proceedings Nos NG 234 and NG 235 of 1996 but this is of no consequence for present purposes.)
In proceeding No NG 236 of 1996, there is only one respondent, Maurice Patrick Lindsay ("Mr Lindsay"), the chief executive officer of the English Rugby Football League.
By consent, all three proceedings are to be dismissed. The only issue before the Court is one of costs. The applicants say that all three proceedings should be dismissed with costs except the costs of and incidental to their application for
relief heard on 22 March and 25 March 1996, as to which, they say, there should be no order as to costs. Apparently, however, the bulk of the costs of the proceedings were incurred in association with that interlocutory application. For their part, the respondents submit that costs should follow the event, the event being dismissal.
CHRONOLOGICAL ACCOUNT OF BACKGROUND FACTS
It is necessary now to recount something of the factual background and I will do this in chronological order.
On 23 February 1996, Burchett J delivered reasons for judgment in News Limited and Ors v The Australian Rugby League and Ors (1996) 58 FCR 447. I will refer to those proceedings as "the original proceedings".
On 27 February 1996, his Honour made interlocutory orders in the original proceedings. Those orders need not be recounted in any detail here. They prohibited the News Entities from being involved in any rugby league competition. Included was an order restraining the News Entities from permitting the individual respondents who were rugby league players and coaches who had associated themselves with the News Entities (see below) from being involved in any such competition.
On 11 March 1996, Burchett J made final orders in the original proceedings. Those orders are recorded at 58 FCR at 548 to 556. Again, I need not give an account of them. For their
submission that there should be no order as to the costs of the interlocutory application in the present three proceedings, the applicants rely primarily on order number 12 made by his Honour in the original proceedings. Order 12 was as follows:
"A declaration that each of News, SLPL [a reference to Super League Pty Limited] and each of the Franchisees holds in trust for the NSWRL [a reference to the NSWRL] all its rights pursuant to: (a) any contract which any of them has with any Super League player; and (b) any such contract with any Super League coach; and (c) any contract, lease, or licence to use any ground for the staging of games in any proposed competition involving any Super League player or coach."
The expressions "Super League Player" and "Super League Coach" were defined to mean any person who had agreed with any of News Limited, a company called "Star League Pty Limited" or any of the Franchisees to play in or coach players for, any game or competition, subject to certain exceptions. The individual respondents in the present three proceedings are Super League Players and Coaches.
On 13 March 1996, a Full Court granted the News Entities leave to appeal and stayed the operation of orders numbered 7, 8, 9, 15, 15A, 15B, 18 and 33. It will be noted that the operation of Order 12 was not stayed.
On 18 March 1996, the Super League Players and Coaches put a proposal to the ARL for participation in the ARL competition.
On 19 March 1996, the ARL rejected the terms of that proposal; it was announced that the players would run their own competition; and the name "Global League" was apparently reserved, to that end. On 20 March 1996 there was a press conference given by Mr Lindsay announcing a Global League competition with which he was to be associated.
On 21 March 1996, the present three proceedings were launched, ex parte, on an urgent basis. The time for service was abridged, and the applications were made returnable for Friday, 22 March. On that date, the hearing of an application by the applicants for interlocutory relief began before Sheppard J. Upon the applicants' undertakings as to damages, the individual respondents consented to certain orders to have effect until the following Monday, 25 March. At the risk of over-simplification, they were orders directed to preventing implementation of the Global League proposal.
On Monday, 25 March 1996, a Full Court of this Court lifted the stays on the operation of orders numbered 7, 8, 9, 15, 15A, 15B, 18 and 33 made by Burchett J in the original proceedings, and the interlocutory orders were continued, subject to certain variations, again on the applicants' undertakings as to damages.
On 4 October 1996, a Full Court of this Court allowed the appeal of the News Entities and set aside the orders of Burchett J. The setting aside included a setting aside of
Order 12. The Full Court judgment is now reported at (1996) 64 FCR 410.
On 15 November 1996, the High Court refused the Leagues' application for special leave to appeal against that Full Court decision.
REASONING
Although the above account of the history of the matter may be somewhat lengthy, I have come to the view that the result on costs is governed by reasoning which may be shortly expressed. In my opinion, costs should follow the event. The reason is that the effect of the order setting aside is that the parties' positions on the issue of costs in the present three proceedings is to be determined as if Order 12 had not been made by Burchett J on 11 March 1996.
The Leagues, as it is now made clear, were never entitled to obtain either interlocutory or final relief which they sought. It is true, of course, as has been submitted on their behalf, that when they launched the present three proceedings they had available to them a valid declaration of trust and, for that matter, other valid orders. But the setting aside has the effect of "wiping the slate clean" in relation to the issue of costs. That issue must be approached as if they had been refused the declaration of trust.
Other reasons can be offered for the result to which I have
referred. One is that the present three proceedings should be seen as part of an overall contest which includes the original proceedings. This is made clear by the fact that the Super League Players and Coaches should have been joined as parties in the original proceedings as the Full Court has decided. Indeed, at 64 FCR at 584, a particular reason which the Full Court gives for setting aside Order 12 is the non-joinder of the parties to the contracts in respect of which the trust was declared in that Order. If those individuals had been joined in the original proceedings, as the Leagues must, in the light of the Full Court's decision, accept that they should have been, the costs orders made against the Leagues in those proceedings would have included the costs of the parties responding to the Leagues' application for interlocutory relief of the kind which was in fact made in these three proceedings.
There are additional matters which favour an order that the applicants pay Mr Lindsay's costs but I do not think it necessary to give reasons beyond those which I have already given for making an order in his favour.
In sum, the result in the original proceedings consequent upon the hearing and determination of the appeal demonstrates that the Leagues were never entitled to any of the relief which they sought in the present three proceedings, and that the costs of those proceedings should follow the event.
CONCLUSION
The orders in each of the three proceedings will be as follows:
That the application be, and the same is hereby, dismissed;
That the applicants pay the respondents' costs of the proceeding.
I certify that this and the preceding 7 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.
Associate:
Dated:9 January 1997
Heard: 13 December 1996
Place: Sydney
Decision: 18 December 1996
Appearances: Mr A J Payne of counsel instructed by Gilbert & Tobin appeared for the applicants in proceedings Nos NG 234, 235 and 236 of 1996.
Ms P P Wines of counsel instructed by Gadens Ridgeway appeared for the 15th, 18th, 19th, 21st, 38th, 41st, 42nd, 67th, 114th, 134th and 137th respondents in proceeding No NG 234 of 1996 and for the 1st, 2nd, 4th-6th, 8th-15th, 18th-22nd, 24th-28th, 30th-38th, 40th, 46th, 48th-71st, 78th-82nd, 84th, 86th-93rd, 97th,
101st-103rd, 105th-112th, 118th, 122nd, 123rd, 125th-134th, 136th-137th, 139th, 140th, 142nd-146th, 148th-160th and 162nd-165th respondents in proceeding No NG 236 of 1996.
Mr N R Carson, solicitor, of Blake Dawson Waldron appeared for the respondent in proceeding No NG 236 of 1996.
Mr R Cobden of counsel instructed by Atanaskovic Hartnell appeared for the 259th-280th respondents in proceeding No NG 234 of 1996.
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