Old Melburnians Football Club Inc v Victorian Amateur Football Association
[2001] VSC 34
•23 February 2001
| SUPREME COURT OF VICTORIA AT MELBOURNE | |
| COMMON LAW DIVISION | Not Restricted |
No. 7401 of 2000
| OLD MELBURNIANS FOOTBALL CLUB INCORPORATED (AIN A0015769C) and PETER JOHN ROACH | Plaintiffs |
| v | |
| VICTORIAN AMATEUR FOOTBALL ASSOCIATION (ACN 004 811 054) | Defendant |
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JUDGE: | Byrne J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 15 and 16 February 2001 | |
DATE OF JUDGMENT: | 23 February 2001 | |
CASE MAY BE CITED AS: | Old Melburnians Football Club Inc v Victorian Amateur Football Association | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 34 | |
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Associations and clubs – amateur football association – consensual appeal from subcommittee to Executive Committee – nature of appeal – meaning of “infringed amateur status” – forfeiture of premiership points – whether mental element.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiffs | Mr A.G. Uren QC | Clements Hutchins & Co |
| For the Defendant | Mr R.R.S. Tracey QC with Mr A.T. Schlicht | Carroll & Dillon |
HIS HONOUR:
There has been for over 100 years in the State of Victoria an association of amateur footballers which organises competition between a number of amateur football clubs. One such club, the firstnamed plaintiff, the Old Melburnians Football Club Incorporated (“OMFC”), was established in 1920 and was, in 1988, incorporated under the Associations Incorporation Act 1981. The Association which has, since 1970, been incorporated as a company limited by guarantee under the name Victorian Amateur Football Association (“VAFA”) is the defendant to this proceeding. Under the Articles of Association of the VAFA its members include, not the constituent clubs, but a representative of each club. The secondnamed plaintiff, Peter John Roach, is the representative of OMFC and a member of the VAFA. The circumstances which give rise to the present litigation are unusual and can be understood from the following chronology.
On 5 March 1998 Andrew Lloyd Topakas (“the player”) sought and obtained a permit to represent OMFC as a player in the VAFA premiership matches. In support of this application he provided the VAFA with an application form supported by an affidavit. In this form he was required and did set out as follows, a list of all clubs which he said he had previously played in or been registered to play with:
SEASON
CLUB
LEAGUE/ASSOCIATION
GAMES PLAYED
SEN RES U19 94 Oakleigh VFL 13 95 St Pauls Southern FL 10 96 - Did not play - - - 97 Murrumbeena Southern F/L 14
On 14 July 2000 OMFC wrote to the VAFA complaining that a person associated with a rival club had offered the player a financial inducement to transfer to that rival club. The VAFA, by its chief executive officer, Philip Bruce Stevens, and its executive assistant, Richard Leslie Evans, conducted a preliminary investigation into the matter and it determined to conduct a full enquiry into the allegation by a Special Investigation Committee. The player and the two clubs concerned were informed of this fact and of the date of the hearing.
On 27 July 2000 the Special Investigation Committee acting as a delegate of the Executive Committee of the VAFA conducted a hearing. The committee comprised Paul Lacava SC (Chairman), Alan Peter Burnes, solicitor, and Andrew Leigh Langford-Jones, company director. Each of the clubs and the player was represented by lawyers. Mr Stevens was in attendance as was the president of OMFC, Richard Pisarski. In the course of the hearing the player told the committee that he had played for three years in the Under 19 and Reserve grade competitions with St Kilda Football Club in the Australian Football League and a further year with Oakleigh Football Club in the Victorian Football League. This history had not been disclosed in his permit application of 1998. He offered by way of explanation for this omission that he had been told by the Secretary of OMFC that, if he disclosed his St Kilda playing history, he would not have been permitted to play in the VAFA competition. The Special Investigation Committee considered to be unsatisfactory and unreliable the evidence of the player on the matter which had been referred to it and it exonerated the rival club of the charge of offering an inducement to him. It was of opinion, however, that there was a case against the player that he had been guilty of conduct unbecoming an amateur player and of bringing the game into disrepute by his false report. The committee also observed that the player’s permit application was false and it revoked his permit to play pending a determination of his entitlement to play. The findings of the Special Investigation Committee are dated 28 July 2000.
On 28 July 2000 the VAFA wrote to OMFC informing it that it, too, was charged with conduct unbecoming a club of the Association. Three charges, or perhaps three grounds of the one charge, were specified. The third was that it “knowingly and deliberately withheld information pertaining to the grant of the permit to the player in 1998”. The hearing was fixed for 2 August 2000.
At 6.00 pm on that day the same Special Investigation Committee convened to hear the charge against OMFC. The club was again represented by Mr J.H.L. Forrest QC and a junior, and Mr Stevens and Mr Pisarski were again present. At this hearing the player produced a fresh permit application which included his full playing history. It is as follows:
SEASON
CLUB
LEAGUE/ASSOCIATION
GAMES PLAYED
SEN RES U19 89-91 St Kilda VFL/AFL 4 60 92 Southern U 18’s VFL 15 93-94 Oakleigh VFA/VFL 30 6 95 St Pauls Southern FL 10 97 Murrumbeena Southern FL 14
He told the hearing that he received from St Kilda Football Club approximately $30 per match for the Under 19 games and approximately $100 to $150 per match for the Reserves games, a total of approximately $2,200 to $2,400. This was in general agreement with information which had been independently obtained by Mr Stevens direct from the St Kilda Football Club on the same day. There were minor variations as to these figures but those set out above were accepted as correct before the Executive Committee.
Later in the hearing, the third charge or particular against OMFC was amended to one of negligently failing to provide information in the player’s 1998 permit application and OMFC, by its counsel, pleaded guilty to this charge. It was fined $5,000. According to Mr Stevens, attention then turned to the consequences of the invalidity of the permit for the player and of the consequence to OMFC of the fact that it had played an ineligible player. OMFC was advised that these matters would be considered by the Permit Committee on the following evening, Thursday 3 August 2000. Mr Lacava said that it later became apparent to the Special Investigation Committee that it had no power to revoke the player’s permit as it had on 27 July, and in its reasons dated 4 August it records that “it advised the representatives of [OMFC] that it proposed to recommend to the Player Permit Committee which would be convening the following evening that the player permit for [the player] be revoked”.
The Permit Committee at its 3 August meeting comprised Mr Evans (Chairman), Mr Stevens, Cliff Bastow, Peter Harris and John Bell. OMFC was represented on this occasion by Mr P.C. Dane QC and a junior. There is some controversy as to what happened at this meeting. According to Mr Dane he was given no opportunity to put legal or other arguments as to the power of the Permit Committee to forfeit OMFC’s match points. What is clear, however, is that the Permit Committee took the matter from where it stood on the previous evening before the Special Investigation Committee. It resolved to accept the recommendation of the Special Investigation Committee. It determined that the permit of the player should be cancelled as from 1 April 2000 and that the premiership points earned by OMFC in its three successful games in the season to date be awarded to the opposing team in each case.
I was told by counsel for the VAFA that this was the last week of the home and home games for the VAFA 2000 season. The effect of OMFC forfeiting its points for these three games not only meant that it dropped from eighth to tenth place on the premiership ladder, but also it affected the points of clubs in the final four. Hence, it was urgent that the matter be resolved quickly. The new position of OMFC on the ladder meant that it would be relegated to section B of the competition in 2001.
Following this decision of the Permit Committee, OMFC spoke of seeking legal redress. Some discussions took place, as a consequence of which OMFC lodged an appeal against the determination to the Executive Committee of the VAFA. The notice of appeal was taken to be a fax from Messrs Clements Hutchins & Co, the solicitors for OMFC dated 15 August 2000. This notice simply stated the fact that OMFC would be “appealing against the findings, determination, orders and penalties made by the Permit Committee resulting in [OMFC] losing points and percentage and being relegated from ‘A’ Grade to ‘B’ Grade”.
On 4 September 2000 Messrs Carroll & Dillon, the solicitors for the VAFA, advised that the appeal would be heard on Monday 11 September and on behalf of their client gave directions for the lodging of written submissions. The written submissions of OMFC were delivered on 7 September.
The Executive Committee sat to hear the matter on the evening of 11 September. OMFC was on this occasion represented by Mr A.G. Uren QC and a junior. The VAFA was represented by Mr R.R.S. Tracey QC and junior counsel. Those present included again Mr Stevens and Mr Pisarski. There is some controversy as to what was said by the Chairman, Bruce Reville McTaggart, a barrister, to those present at this hearing. This controversy is as to whether the Chairman announced that the hearing was to be a hearing de novo, as the VAFA witnesses contend, or whether he said nothing at all about this. Again, it is not necessary that I determine this matter because it is common ground that the Executive Committee raised as material matters those concerning the player’s playing history and payments received, which had not been disclosed in his 1998 permit application. These were the matters which had been before the Permit Committee. Counsel for OMFC contended that this was not a matter before the Executive Committee which was sitting on an appeal from the Permit Committee. Accordingly, it was said, the present hearing should be conducted on the basis of what was acted on by the Permit Committee not on the basis of the material before it. According to Mr McTaggart, he told counsel for OMFC that these were matters proper for the consideration of the Executive Committee and that it would have regard to them. Counsel for OMFC replied that they had not come prepared to argue these matters and they maintained that they were not matters proper for the Executive Committee.
There is also controversy as to whether the Chairman said at the end of the hearing, as the OMFC witnesses contend, that the Executive Committee would consider its decision and communicate it in due course. Mr McTaggart and Mr Stevens say that at the conclusion of the hearing it was simply adjourned and those present were told that, if it was thought appropriate, further argument would be received. Again, nothing turns on this.
On 14 September 2000 the VAFA wrote to OMFC’s solicitors in the following terms:
“Re: Old Melburnians’ Appeal Relating to the Decision of the Permit Committee on August 2000
After hearing the submissions made on behalf of the Old Melburnians AFC on 11th September 2000, the Executive Committee determined –
1.It was hearing the matter de novo, and was not limited to the material which was before or relied upon by the Permit Committee.
2.It was exercising, for the purposes of the determination of the appeal, the powers of the Permit Committee.
3.There appeared to be material relevant to the issue additional to that actually before the Permit Committee, and which could appropriately be considered by the Executive Committee. Such material comprises –
a)agreement by Andrew Topakas that he had received $30 - $50 per game while playing with St Kilda Under 19’s;
b)agreement by Topakas that he had received $100 - $150 per game while playing with St Kilda Reserves;
c)agreement by Topakas that he had signed a contract to play with VFA club Oakleigh pursuant to which he was to receive $12,000 over a three year period, although he did not actually receive any payments pursuant to that contract because of the financial situation of the Oakleigh club;
d)the full playing record of Topakas prior to 1998 was as set out in a permit application signed by him and dated 2 August 2000 (copy attached);
e)based on the actual playing record of Topakas prior to 1998, he was not, at the time when his permit application was submitted at the start of the 1998 season, entitled to be reinstated or to receive a permit to play in the VAFA.
So that Old Melburnians might consider these matters, the further hearing of the appeal by Old Melburnians has been adjourned to a date to be fixed (probably 25 September 2000). In the intervening period, Old Melburnians may –
1.Submit evidence to explain or refute any of the matters referred to above, or upon which it might otherwise seek to rely. In this event, Old Melburnians shall advise the Chief Executive Officer of the VAFA, in writing, of the nature of such evidence, and supply copies of any documents upon which it seeks to rely, by 20 September 2000;
2.Make written submissions as to the effect of the matters referred to above on the issue before the Executive Committee, and in particular the application of Rules 38 and 48, such submissions to be received by the Chief Executive Officer of the VAFA by 5.00 pm on 20 September 2000.
Upon receipt of the material submitted on behalf of Old Melburnians, the Executive Committee shall determine the manner in which the further hearing of the appeal shall be conducted.”
The position adopted by OMFC in the correspondence which followed was that the proceeding before the Executive Committee was complete and that it would not attend a fifth hearing. It was not represented at the resumed hearing on 25 September although, in its correspondence, it advanced a further argument as to why Rule 38 should not have applied to the case before it. On that date, the Executive Committee determined as follows:
“1.The permit of player Andrew Topakas be cancelled from the commencement of the 2000 playing season pursuant to Rule 37, and by reason of the fact that he had, at the time of the making by him of his application for a permit, infringed his amateur status.
2.Having regard to paragraph 1, the provisions of Rule 48 be invoked in relation to the games in which Topakas was included as a player by Old Melburnians during the 2000 season.”
OMFC was advised of these matters by letter dated 27 September 2000. The reasons of the Executive Committee were provided later, by letter dated 19 October 2000.
The consequence to OMFC of the forfeiture of its premiership points was that it slipped to the bottom of the premiership ladder and was relegated to the B section competition in 2001. This was doubtless a cause of some distress to the club and will affect its morale and reputation. The evidence also shows that relegation will make it difficult for OMFC to retain supporters, players and sponsors and that it will suffer unspecified economic loss.
This application is brought by originating motion filed on 27 October 2000. The plaintiffs seek an order that the determinations of the Permit Committee made on 3 August 2000 and that of the Executive Committee made on 25 September 2000 be set aside. They seek consequential orders to the effect that OMFC be not relegated from the section A competition. In addition, they seek declarations adverse to the nature and conduct of the hearing before the Executive Committee and as to the meaning of Rules 38 and 48 and other declarations.
It was accepted by the parties before me that such rights as were in issue were essentially contractual, arising from the articles of association of the VAFA and the rules made by it under this constitution. The relief sought is, therefore, not in the nature of prerogative relief, it is to enforce this contract.
In summary, what was contended for on behalf of OMFC was as follows:
1.The appeal to the Executive Committee from the determination of the Permit Committee was such that the Executive Committee was entitled to have regard only to the matters found and relied on by the Permit Committee. It was an appeal, therefore, in the strict sense of the term[1]. The Executive Committee fell into error in acting on material which was not relied upon by the Permit Committee, namely, the player’s history at St Kilda Football Club and the match payments made to him by that club.
2.It was not open to the Executive Committee to find that the player had infringed his amateur status in playing for St Kilda Football Club. Properly construed, Rule 38 had no operation and the player’s permit ought not to have been cancelled retrospectively.
3.Properly construed, Rule 48 required proof of a mental element on the part of the club playing an ineligible player.
[1]Coal and Allied Operation Pty Ltd v Australian Industrial Relations Commission(2000) 174 ALR 585, at [12]
The Appeal to the Executive Committee
Broad powers are by Article 36 conferred upon the Executive Committee of the VAFA to manage the business and affairs of the association. One activity of the VAFA which, therefore, comprises part of the work of the Executive Committee is the determination of who may or may not play for clubs in its competitions. For this purpose it has made rules and publishes an annual handbook which includes procedures and guidelines for obtaining playing permits and the reinstatement of amateur status lost. It has also established a Permit Committee to deal with applications for permits by players to play for a specified club. It would seem that the Executive Committee also establishes other committees, for the initial inquiry into the complaint made by OMFC was entrusted to a Special Investigation Committee. Another such committee is the Reinstatement Committee whose function it is to investigate any application for reinstatement of amateur status of a player who has lost that amateur status and to report to the Executive Committee for its decision on this[2].
[2]Rule 49
A feature of the power of the Permit Committee is that it may make decisions affecting players including the power to grant and cancel a player’s permit to play. The possession of such a permit means that the player is registered as a player of the VAFA[3]. Without a permit the player is ineligible to play in the VAFA competition[4]. Finally, it should be noted that, once granted, a permit to play continues in existence in subsequent seasons providing it has not been cancelled. One ground for cancellation is that the player has not played at least one VAFA match in the preceding season[5].
[3]Rule 39
[4]Rule 39
[5]Rule 44(v)
The Permit Committee sitting on 3 August was concerned with the question whether it had, in 1998, granted the player’s permit on a false basis and, presumably, whether the permit should be cancelled. It concluded that the player’s 1998 permit application contained material omissions and further, that, had all the information required by the rules been included in the application form, the player would not, in 1998, have been granted a permit. The first finding was never challenged; the second is of considerable significance, for it is such a finding made by the Executive Committee on 25 September which was impugned in the submissions of OMFC before me. Accordingly, the Permit Committee determined to cancel the player’s permit retrospectively from 1 April 2000 and that he was, therefore, ineligible to play in three matches which OMFC previously had won. It then made the following further determination:
“Due to the ineligibility of the player in the above matches, in accord with Rule 48, the Club forfeits all matches in which the player played together with all scores registered by the Club. Each match shall be awarded to the opposing Club, which shall be given the option of including both scores in its percentage or of not including either.”
The hearings of the Executive Committee were by way of appeal from these determinations. Notwithstanding its general management powers, there is in the rules no general right of appeal to the Executive Committee from a decision of the Permit Committee[6]. It would seem, therefore, that neither the player nor OMFC could, under the rules, re-open or challenge the decision of the Permit Committee to cancel the permit whether this had been done under Rule 37 or Rule 38. Its Rule 48 determination stands on a different footing. If Rule 48 operates automatically, as seems to be the general view, the Permit Committee has no power to forfeit matches or premiership points or scores. If it is not automatic in the sense that Rule 48 requires some further determination, it does not appear that the Permit Committee was competent to make such a determination. It was, of course, this forfeiture which was of primary concern to OMFC.
[6]Compare Rule 125
The nature of the appeal under a statute falls to be determined upon an examination of the terms of the statute conferring the right of appeal[7]. Where the right is conferred by contract attention turns to the terms of that contract, including the circumstances in which it was made. When the lawyers in August 2000 were discussing the courses which might be followed following the decision of the Permit Committee, those representing the VAFA told Mr Clements that there was a right of appeal to the Executive Committee pursuant to Rule 126. OMFC, notwithstanding its misgivings as to the existence of this right, decided to pursue this course as a “pragmatic step” to restore its forfeited premiership points and to avoid relegation. No point was or is taken that the appeal was incompetent whether it be authorised by Rule 126 or otherwise. Nothing was said in the exchange of correspondence which set the appeal in motion as to its nature. The parties simply speak of an appeal against the findings, determinations, orders and penalties made by the Permit Committee.
[7]Coal and Allied Operation Pty Ltd v Australian Industrial Relations Commission(2000) 174 ALR 585, at [11]
In their letter of 4 September 2000 the solicitors for the VAFA confirmed that the date of the hearing would be 11 September, that OMFC might be represented by counsel and/or solicitors, that written submissions should be lodged by 8 September and that the Executive Committee would allow oral submissions not exceeding 20 minutes. This last procedural matter suggests that the parties did not contemplate a full re-hearing in the sense that witnesses would be recalled and evidence re‑submitted. This is confirmed by the fact that no one seems to have thought it necessary to have the player at the hearing. In the written submissions presented on behalf of OMFC on 7 September there was no challenge to the determination that the player’s permit application was defective nor to the cancellation of his permit. The contest was about the retrospectivity of the cancellation and what followed from this.
It seems to me that the proper inference to be drawn from the circumstances leading to 4 September 2000 when the Executive Committee accepted the appeal and laid down the procedures is that the intention of the parties, objectively determined, was that the determinations of the Permit Committee be revisited on the material which was then before that committee. I reject the submission that the appeal was in the nature of review such as one might have under a writ of certiorari where only the determination of the committee and its reasons may be looked at. I reject the submission that the Executive Committee should approach the appeal by having regard only to those facts and findings which are mentioned in the reasons of the Permit Committee, ignoring other relevant material which was before it. I reject equally a submission that it was a re-hearing de novo requiring the repetition of all of the material. A body such as the VAFA Executive Committee would, to my mind, reasonably expect that the matters in contention be dealt with in the manner in which I have inferred to be the case. This is particularly so since the facts before the Permit Committee were uncontradicted before that committee and there was no indication that they would be challenged on the appeal. I reach this conclusion with respect to this appeal to the Executive Committee on the evidence before me as to how it came about. I express no view as to how any other appeal might or should be conducted.
This conclusion carries with it a number of consequences which deal with many of the matters before me.
(a)Since the Executive Committee was to reconsider the legal arguments as to the meaning of the rules and the application of the rules to the facts before the Permit Committee, its decisions would replace those of the Permit Committee. Hence, arguments addressed to me as to any deficiency before the Permit Committee cease to be of significance.
(b)Since the Executive Committee was to act on the material that was before the Permit Committee, this included the information obtained by Mr Stevens from the St Kilda Football Club on 2 August. It includes also the matters admitted by the player at the Permit Committee hearing on 2 August. OMFC was represented by counsel on that occasion who availed themselves of the opportunity to cross-examine the player on these matters.
(c)Since the Executive Committee on 11 September granted OMFC an adjournment to respond to this material and by letter dated 14 September 2000 confirmed this, setting out the relevant material, it cannot be contended that the Executive Committee denied natural justice to OMFC. The fact that OMFC decided not to exercise its right to respond to the material does not give substance to this contention.
The Rule 38 Determinations
The relevant rules are the following:
“37.The Permit Committee is empowered to cancel the permit of any player without assigning a reason therefore.
38.The Permit Committee is empowered to cancel the permit of any player who has infringed his amateur status retrospectively to the date of his infringement or the commencement of the current season whichever date is the more recent notwithstanding the permit held by the player having been granted by the Permit Committee.
39.No player shall be eligible to represent a Club in premiership matches of the Association unless he obtains a permit to play with such club and is thereupon registered as a player with the Association.
…
44.The Permit of any player to represent a Club in a premiership match shall be cancelled if:
(i)The Permit Committee decides accordingly.
(ii)The player forfeits his amateur status…”
The VAFA requires that all players in its competition enjoy amateur status. An amateur is defined by it as “one who has not participated at any time in Australian Football for gain”. A player, therefore, who has never played for gain may expect to be granted a permit by the Permit Committee provided he satisfies the other requirements of VAFA, if there be any. A player who has played for gain may nevertheless apply for reinstatement of his amateur status and, where he meets the strict requirements applicable to this, he may be reinstated by the Executive Committee and be granted a permit to play.
Counsel for the VAFA submitted that the definition of “amateur” which I have set out means that a player ceases to have that status if and when he receives a payment for playing. When the player justifies the receipt as being, not for playing, but for expenses incurred such as travelling, the Permit Committee may restore his amateur status and grant him a permit to play. This, it was said, appears from the permit procedures set out in the 1998 handbook. It was put against this that the mere receipt of a payment for playing football is not playing for gain. The payment received may be a reimbursement of or a payment for some expense incurred in playing. Accordingly, some characterisation of the payment as a non-expense must be made before the player’s status as an amateur or as a non-amateur can be known. Accordingly, counsel for OMFC contended, the mere fact that the player in this case received in 1989-1991 sums of the order of $1,800 for playing 60 Under 19 games with the St Kilda Football Club and $400 - $600 from the same club for his four Reserve matches is not sufficient to support the finding implicit in the determination of the Executive Committee that he had lost his amateur status by playing for gain.
To my mind, as a matter of construction of the expression in question, counsel for OMFC are correct when they argue that the mere receipt of a payment for playing is not the equivalent as playing for gain. This conclusion may be demonstrated by supposing that a player had to travel by taxi to a match over a distance for which the fare was $50. If the club accepted that it should pay this cost it may do so by opening an account with the taxi company and paying the fare itself; it might give the player, in advance, the $50 on terms that he be obliged to pay the fare and, if not, it be returned; or it may reimburse the player after the fare was paid by him. It would be very surprising that the player’s amateur status should depend upon the method of payment. I should be reluctant to conclude that the status was lost simply because he received the payment in cash.
Nor is this conclusion dictated by the terminology “plays for gain”. Gain connotes some personal benefit to the player. This is not to say that, where a player receives match payments, his continuing amateur status is to be determined by creating some profit and loss account, placing against payments received all the costs incurred in playing. The enquiry must be directed to the purpose of the payment. In the taxi example the payment is for travelling expenses not for playing.
Further, the submission put on behalf of the VAFA sits awkwardly with the great caution which attends the process of reinstating a player’s amateur status. These applications are not decided by any sub-committee: the decision must be made or ratified by the Executive Committee itself. There are strict limits upon the number of reinstatements which may be granted to any club in one year; a player is entitled to only one reinstatement; and the circumstances in which reinstatement is possible are very restricted. In these circumstances, it would require a clear statement of intention to warrant the conclusion that the Permit Committee may grant a kind of reinstatement by issuing a permit to play to a player who has ceased to be an amateur by the receipt of payments but who has justified the payments as travelling expenses.
Moreover, the conclusion which I have reached is consistent with the way the VAFA appears to have dealt with payments received by a player in the context of his permit application. In 1998, at least, the form of application completed by the player specified that it was for use by players who had never received match payments. The 1998 handbook shows that when an applicant player has received a payment from a club, he must provide a form A completed by that club and a form B justifying the payments. The only justification mentioned in the handbook is that payments were travelling expenses and I mention no other expenses in these reasons. Where the payments are justified the permit may be granted, presumably on the basis that the player has satisfied the VAFA that he has never played for gain notwithstanding that he has received the payments. This construction is not affected by the provisions of paragraph 4.1(f) of the handbook which arbitrarily prevent an applicant from justifying payments where they exceed the stipulated limit.
I should mention that I have not overlooked the procedures for permit application in the 2000 handbook. These different procedures, which may have been introduced in 1999, specify a more arbitrary and probably more relaxed regime for determining whether a player is an amateur at the time he applies for a permit. In the case of an applicant for a permit to play A or B section football and who has played no more than 50 senior games outside the VAFA competition, it seems that the VAFA does not concern itself whether he has received payments or has played any of those games for gain, unless he is “clearly a well known professional player”. Where he is such a player, or where he has exceeded the stipulated number of games by a minimal number, he may seek, nevertheless, to obtain a permit by validating or justifying match payments received. Accordingly, the form of the permit application provided by the player to the Special Investigation Committee on 2 August 2000, which I presume was the then current form, contains no statement that it was for use only by a player applicant who had never received match payments. I do not know the form of affidavit which such an applicant was expected to complete. It is sufficient for my present purposes that this 2000 form repeats the same definition of amateur as one who has not played for gain.
I turn now to the determinations to cancel the player’s permit retrospectively. The determination of the Permit Committee of 3 August 2000 does not identify the power under which it acted. The determination of the Executive Committee of 27 September states that its retrospective cancellation was made pursuant to Rule 37 and, in its reasons of 19 October, it states that it was appropriate that the Permit Committee had acted likewise under the power conferred by that rule. I do not agree. To my mind, the terms of Rules 37 and 38 in the context in which they are found, show that the power of cancellation under Rule 37 is not retrospective. The cancellation in this case must stand or fall on Rule 38.
In its reasons of 19 October, it is clear that the Executive Committee saw itself as exercising the Rule 38 power. This means that the cancellation may be supported only where the player had “infringed his amateur status”. The basis of the finding of such an infringement provided in the reasons of the Executive Committee is that the player had received payments for playing for St Kilda Football Club Under 19s and Reserves teams in 1989 to 1991.
It was put, first, that these payments, even if they did amount to an infringement of amateur status, could not found the exercise of Rule 38 power because, at the time of the infringement, the player was not a player holding a VAFA permit. This submission was based on the fact that the Rule empowers cancellation of “the permit of any player who has infringed his amateur status”. It was put that “player” means a player then registered in the VAFA competition and holding a permit to play. I reject this argument. The words “has infringed” shows that the infringement must have occurred before the cancellation. The Rule does not specify that the infringement must have occurred no earlier than the grant of the permit to the player. It is sufficient that the player, at the time of the cancellation, be the holder of a permit. Indeed, the last phrase in Rule 38 suggests that the infringement may have pre-existed the grant of this permit, for the phrase appears to be concerned to defeat an argument, perhaps based on some kind of estoppel, that the Permit Committee is precluded from acting in respect of a pre‑existing infringement by reason of the fact that it had granted the permit.
There is, to my mind, no reason of construction or good sense that would limit the operation of Rule 38 as counsel for OMFC contended.
Next, it was said that the mere receipt of the payments from St Kilda Football Club could not found a finding that the player was, in 1989 to 1991, playing for gain. This, it was said, flowed from the construction of the definition of “amateur” which I have accepted. Since the reasons of the Permit Committee and the Executive Committee show that no analysis of the payments had been undertaken, it cannot be said that there is a finding that they were not justified as permitted expenses.
I do not agree. The Permit Committee and the Executive Committee stated that, if the payments had been disclosed in 1998, the player would not have received a permit. It must be accepted that the members of these committees are familiar with the permit rules; they are familiar with the practice of making match payments such as those disclosed; they were doubtless familiar with the reasons for these payments and with the types and amounts of permitted expenses which may be incurred by amateur players. They might, in their experience, have been not at all surprised that the match payments made by the St Kilda Football Club vary as between the Under 19 matches and the Reserves matches, when travelling expenses may not. Bearing in mind the observations of Tadgell JA in Australian Football League v Carlton Football Club Ltd[8] I would be not satisfied that the conclusion on this point of the Executive Committee is “so aberrant that it cannot be classed as rational”. In this regard, in its letter of 14 September, the VAFA signalled to OMFC’s solicitors that it had before it material tending to this conclusion. It may be significant that OMFC did not seek to argue to the contrary when given the opportunity to do so.
[8][1998] 2 VR 546 at 550, 559
Finally, in this regard, I mention and reject the argument put on behalf of OMFC that the finding in question must be quashed because the VAFA had not discharged the onus it bore of establishing that the payments were not permitted expenses. When the question of justifying payments as permitted expenses arises in the context of a permit application, the VAFA procedures place the onus on the applicant player or his club. Where the question before the Permit Committee turns upon the application of Rule 38 so that the Permit Committee must be satisfied that an infringement of amateur status has occurred, this is not to be determined by any shifting or evidentiary onus of proof. The procedure is more akin to an inquisitorial than an adversarial process[9]. Much the same may be said of the proceedings before the Executive Committee. What is necessary at the end of the day is that the Committee be satisfied that the infringement of amateur status has in fact occurred. This it has done and on material which is capable of supporting that determination. I would not disturb it.
[9]See Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546 at 569, per Hayne JA
In the course of argument counsel for the VAFA put also that the player infringed his amateur status by playing 30 senior and six Under 19 games with the Oakleigh Football Club in the 1993‑4 seasons. This was partly disclosed in his 1998 permit application when he said that he played only 13 senior games with that club in 1994. It emerged in the course of the hearing before the Permit Committee that the terms under which he played for Oakleigh were that he was to receive $400 to $500 per game but that he received nothing since the club was unable to pay. This appears to have been taken by the Permit Committee to mean that he should have received $400 for each senior game, a total of $12,000. Counsel for VAFA said that playing under such an arrangement was playing for gain, whether the money was actually received or not.
Expressing no view as to the validity of such an argument, I would not, nevertheless, conclude that this finding warranted the maintaining of the Executive Committee’s Rule 38 determination in this case. It was not relied upon by the Executive Committee in its reasons as a basis for its determination. In any event, having regard to the conclusions I have reached, it is not necessary that I take this matter further.
The Rule 48 determinations
Having concluded that the retrospective cancellation of the player’s permit was good, I can shortly deal with the contentions with respect to the Rule 48 forfeiture of premiership points. Rule 48 is in the following terms:
“A Club which includes a player who is not eligible in a team by which it is represented in a premiership match shall be fined as prescribed in the Schedule of Fines appended hereto and shall forfeit all matches in which such player played together with all scores registered by such Club in such matches. Each such match shall be awarded to the opposing club which shall have the option of including both scores in its percentage or of not including either, but if such option be not exercised within seven (7) days of notice to the Chief Executive Officer of the Association of the offence, both scores shall be included.”
I accept the submission put on behalf of OMFC that non-eligibility in this rule means non-eligibility to play. Rule 39, set out in [29] above, states that a player without a permit is not eligible to play. Conversely, subject to Rule 46 and 47, a player in possession of a permit is eligible. Where a player plays a match before a permit is granted or after it is cancelled Rule 48 will operate. It operates, too, where the cancellation is retrospective. Indeed, it is difficult to see what would otherwise be the point of retrospective cancellation.
I reject the submission offered by counsel for OMFC that there should be written into this rule some mental element in the club which fields the non-eligible player. It was suggested that the penalty should be applied only where the club plays an ineligible player and does so knowingly or recklessly. The consequence of the application of Rule 48 to a club may be serious. The fine is modest but the loss of premiership points may have far-reaching consequences for the club in question and perhaps also for the opposing club in the match. It is, therefore, desirable that some objective yardstick apply to the application of this Rule. The possession or not of a player’s permit is a more sure yardstick than the state of mind of some or many officers of the club. More fundamental is the objection based on the fact that the Rule contains no such mental element expressly, and it is difficult to know what mental element should be inserted to satisfy counsel’s concerns. The VAFA imposes responsibilities on clubs to ensure that its permit rules are observed. It is entirely consistent with this that the club, which stands to benefit by fielding a player of its choice and is in the best position to know about his eligibility to play, should be responsible for any non-compliance with eligibility rules. It is understandable that the rule-makers were not keen to impose upon the VAFA the burden of proving guilty knowledge in the application of this rule.
The proceedings before the various VAFA committees seem to have been conducted on the basis that the forfeiture provisions of Rule 48 operate automatically once the ineligibility of a player is identified. Before me it was put that this may not be so. It is not necessary for me to determine this issue for it is clear that OMFC was on notice that the rule might be invoked and it had the opportunity to say what it wanted against this course. Nevertheless, it was put that the automatic application of the rule with its severe consequences suggests that some mental element is required. The difficulty with this submission is that the introduction of the suggested mental element would remove the automatic operation of the rule. It would in each case be necessary for a finding other than that of mere non-eligibility to be made. This would involve some investigation and determination as to the state of mind of the club.
Next, it was put that it would be harsh to punish the club for a breach by its player in circumstances where the club itself may have been faultless. This, I think, begs the question. It is difficult to suppose a circumstance where a player loses his eligibility under Rule 46 or 47 without the knowledge of the club. Likewise, since the club is implicated and involved in permit applications, it is difficult to suppose that the club would be unaware of the fact that no permit had been granted. Likewise, where the permit is cancelled prospectively. This leaves only a case such as the present. Leaving aside the facts of this case, the handbook and the application form make it clear that the club which applies for registration of a player has a heavy responsibility to ensure that the material lodged in support is accurate and comprehensive. I see no reason of construction or common sense to burden the VAFA with establishing any mental element.
I conclude that the determination of the Executive Committee that the premiership points earned by OMFC during the time of the retrospective cancellation of the player’s permit are forfeit is valid and was made in accordance with the agreement between the parties.
It follows, therefore, that the relief sought by the plaintiffs should be refused. As requested, I will stand the matter over for final orders.
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