Tokoglu v Victorian Soccer Federation Inc
[2003] VSC 256
•2 June 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 5912 of 2003
| ENGIN TOKOGLU | Plaintiff |
| v | |
| VICTORIAN SOCCER FEDERATION INCORPORATED (who constitutes the Soccer Appeals Board) | Defendant |
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JUDGE: | CUMMINS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 May 2003 | |
DATE OF JUDGMENT: | 2 June 2003 | |
CASE MAY BE CITED AS: | Tokoglu v Victorian Soccer Federation Incorporated | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 256 | |
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Mighell | Purcell and Purcell |
| For the Defendant | Mr W. Gillies | Lander and Rogers |
HIS HONOUR:
On Friday afternoon last I heard a matter which necessitated determination before Saturday's sporting fixture. I had the benefit of most helpful submissions from Mr Mighell for the plaintiff and Mr Gillies for the defendant and at the conclusion of proceedings I announced my decision and said I would give my reasons today and which now I do.
The plaintiff, Mr Engin Tokoglu, by summons on originating motion filed in this court on 23 May 2003, seeks an interlocutory injunction restraining the defendant, the Victorian Soccer Federation Incorporated, from further enforcing the suspension imposed on the plaintiff by the Soccer Appeals Tribunal (sic) on 3 April 2003. Filed on the same day between the same parties was an originating motion which sought a declaration that the Tribunal (sic) acted unlawfully in that it denied the plaintiff natural justice and fettered its discretion by taking into account an irrelevant consideration. The motion further seeks an order of prohibition forbidding the defendant from again proceeding with the head-butting charge or any other charge alleged to have been committed by the plaintiff on 2 March 2003.
It was agreed that I would treat the motion and the summons as one as it was in the interests of both parties finally to dispose of the matter. Having had the benefit of most comprehensive submissions by counsel on either side, that I did. I should add that no residual relief is now sought, the matter having been heard.
In support of the summons are two affidavits, being the primary affidavit of the plaintiff sworn 21 May 2003, and an affidavit of Mr A.G. Burns of counsel of 26 May 2003, which is a brief affidavit essentially of a factorial confirmatory character of the facts deposed to in the primary affidavit.
Mr Tokoglu has deposed - and I accept this evidence for purposes of this judgment - that he was a soccer player registered to and playing with the Werribee City Soccer Club as part of the Victorian Soccer League. On 2 March 2003, he was playing for his Club, Werribee, against the Westgate Soccer Club at the Ardeer Reserve, Ardeer. That was an official fixture of the Victorian Soccer League administered by the defendant. An incident occurred on the field followed by a second incident - the first incident being offensive language and the second being an assault by head-butting - and the plaintiff was sent off having been reported by the match official, Mr D. Barber. The events were described in the misconduct report, Exhibit ET2 to the plaintiff's affidavit as follows. As to abusive language, the umpire said:
"In the 34th minute of the match the offending player committed a red card offence in that he used offensive, insulting or abusive language. The player used the words, 'You are a fucking disgrace' to which I stopped play and showed him the red card and asked him to leave the field of play."
The second offence, also described in ET2 to the plaintiff's affidavit states as follows:
"At the time of his send off . . . the player approached me. He was continuing to use offensive and abusive language and when he arrived to where I was standing he brought his head forward and struck me on my forehead in a head-butting motion. At this time I stood my ground and naturally was ready for this player to attack me. I continued to ask him to leave the field of play where he was grabbed by members of his own team, rushed toward the player race and club rooms."
The plaintiff was charged with the offence of assault by head-butting and using offensive, insulting and abusive language - together with two alternative charges which are not relevant for present purposes as they were dismissed - the primary charges being sustained.
The charges were heard at a Tribunal hearing of the defendant on 12 March 2003. The Tribunal is constituted under the Victorian Soccer Federation Constitution Rule 7.2, headed "Disciplinary Matters". By Rule 7.2(3) it is provided:
"Every charge . . . shall be placed before the Tribunal or the appropriate Disciplinary Committee by the Secretary of the Federation".
That hearing occurred on 12 March 2003. The plaintiff was unrepresented. He entered a plea of guilty to the swearing charge but disputed the assault charge. Evidence was called in relation to the assault charge. The plaintiff was found to guilty of both charges. He was, on the assault charge, suspended from playing for 12 weeks and on the second charge, swearing, suspended for six weeks cumulative making a total of 18 weeks.
The plaintiff lodged an appeal. The appeal was in relation to conviction and sentence on the assault charge and sentence only on the swearing charge. The appeal was heard by the Appeal Board which is constituted under the Constitution as Rule 8. Rule 8(1) provides its constitution. In fact, there was a chairman and two legally qualified members, being three persons, who constituted the Board.
Relevantly under Rule 8(4)(e) the following is provided as to the proceedings of the Appeal Board:
"(e)Subject to the rules of natural justice which shall at all times be observed the Appeal Board may lay down its own rules of procedures which may vary as it sees fit from time to time and it shall not, save as aforesaid, be subject to requirements of legal formality."
At the appeal hearing the match referee, Mr Barba, gave evidence and also referee lineman Shevki. The plaintiff gave evidence as did the team manager, Mr C. Lombardo, player Mr G. Inserra, and coach Mr R. Laberto. Written reports were also accepted from Mr F. Barichello, Mr H. Turgut and Mr D. Perri. The evidence was not on oath.
I proceed according to the affidavit of the plaintiff of 21 May 2003:
"11.Referee Barba, during the course of his evidence, indicated that contact was made between he and I which amounted to me 'placing' my forehead against his. He admitted that this was not a head-butt and was not an assault.
12.At the conclusion of the hearing my counsel, Mr Burns, submitted that the weight of evidence was that contact had not occurred but even if it had occurred, as the referee Barba suggested, then the charge of 'assaulting a match official by head-butting' was not made out.
13.Chairman Howieson then indicated that he appreciated our attendance on the appeal but apologised by saying, 'I'm sorry, but FIFA, the international governing body of soccer, tells us that we must accept the referee's version no matter what. We must believe him in any circumstance.'
14.I was shocked to hear this. Mr Burns said, 'If that is the case, sir, then all of us have wasted our time tonight. Even domestic tribunals such as this must comply with the rules of natural justice. You need to follow the rules of this Federation. Nowhere in these rules do they defer to FIFA.'
15.Mr Howieson said words to the effect of, 'Well, FIFA is the world body and they say we have no choice but to believe the referee.'
16.Mr Burns submitted that even on the Referee Barba's version the charge of assault by head-butting was not made out.
17.The following day the defendant notified me that my appeal in relation to Charge 1, assault, was unsuccessful as to both conviction and sentence and further, that my appeal in relation to Charge 1, swearing, to which I had pleaded guilty was successful as to sentence with the suspension being reduced by three matches."
Mr Burns, in his affidavit of 26 May 2003, confirms the account of the events set forth by Mr Tokoglu.
The defendant relies upon two affidavits, of the Chairman of the Appeal Board, Mr W.H. Howieson, sworn 28 May 2003, and of Mr P. Vassili, competitions and disciplinary coordinator of the Federation, sworn 28 May 2003 also, and the exhibits to those affidavits. Mr Howieson states that he generally agrees with the contents of the paragraphs I have just recited as to the factual matters. Plainly some of those factual matters are comment or are referring to the question rather than the answer. For example, "He admitted this was not an assault" is not a matter for the evidence of the witness but is a matter of legal conclusion.
Mr Howieson, in his affidavit sworn 28 May 2003, states that he was the chairman of the Appeal Board which heard the matter. He said in relation to paragraph 15 of the plaintiff's affidavit as to the umpire, that he was referring to his interpretation of FIFA's Laws of the Game. The FIFA Laws of the Game come into focus in this way. Under the Constitution, exhibited as PV, to the affidavit of Mr Vassili, Rule 47 states:
"The Victorian Soccer Federation will at all times maintain affiliation with the Australian Soccer Federation or the governing body for football in Australia as recognised by the Federation Internationale de Football Associations, FIFA.
Furthermore, the Victorian Soccer Federation will at all times be bound by the Rules, Regulations and decisions of such governing body, insofar as they are not inconsistent with the Federation's Statement of Purpose, Rules and Regulations and the Act."
The FIFA Laws of the Game, which are exhibited to Mr Howieson's affidavit as Exhibit WHH2, under Law 5 headed "The authority of the referee", in relevant part state:
"Decisions of the Referee:
The decisions of the referee regarding facts connected with the play are final.
The referee may only change a decision on realising that it is incorrect or, at his discretion, on the advice of the assistant referee, provided that he has not re-started play."
The next day the plaintiff was notified of the decision of the Appeal Board.
It is notable that in the affidavit of Mr Howieson he deposes that the decision of the Appeal Board was unanimous to dismiss the appeal in relation to Charge 1, the assault charge, and to allow the appeal as to severity in relation to the second charge, the swearing charge. As I have said, the other two members of the Board were legally qualified.
The other affidavit relied upon for the defendant is that of Mr P. Vasili. It was sworn 28 May 2003. He is the competitions and disciplinary co-ordinator of Victorian Soccer Federation Incorporated, as I have said.
That is sufficient of a factual review. I will not go into further regulatory detail. The Victorian Soccer Federation Rules (2003 Season) are exhibited as ET1 to the affidavit of the plaintiff. The disciplinary code is set forth in Rule 17 therein and the Tribunal procedure in Rule 17.5 and appeal procedure in Rule 17.6 and as to misconduct, Regulation 18.
The formal charges are set out as Exhibit ET3 to the plaintiff's affidavit and the Appeal Board decision is set out as Exhibit ET5 to the plaintiff's affidavit, it being dated 4 April 2003.
Before me counsel for the defendant first submitted that if the proceeding is brought under the Administrative Law Act 1978 it was out of time as to a s.4(1) appeal because the proceedings were taken 48 days after the impugned decision whereas under s.4.(1) the time limit is 30 days. Plainly the decision of the Appeal Board could come within the purview of the Administrative Law Act 1978 because the Board was an entity which was required to be subject to the rules of natural justice and s.2 of the Act in relation to the tribunal defines it as a body as to which:
"…in arriving at the decision in question is or are by law required whether by express direction or not to act in a judicial manner to the extent of observing one or more of the rules of natural justice."
In relation to the certiorari aspect, Mr Gillies submitted that there is no error on the face of the record and that relief is activated by an error on the face of the record.
However, I do consider that I ought to look at the matter as a matter of substance, in fairness to the player concerned, the plaintiff, and in order to lessen substantial costs by having the matter finally disposed of in the Practice Court and accordingly, I propose to look at the substance of the matters rather than their mere form.
Mr Mighell for the plaintiff stated that the summons and motion do not proceed under the Administrative Law Act 1978 in any event but upon the inherent jurisdiction of the court to remedy error where there was a denial of natural justice and I proceed upon that basis.
It is plain, looking at Rule 47 of the Constitution of the defendant, that if the FIFA Law 5 meant that, at a Tribunal hearing in the first instance or an Appeal Board hearing in the second instance, the evidence of the referee was to be regarded as binding and conclusive upon the body, that would not constitute observance of the rules of natural justice. To that extent, Rule 47 of the Constitution of the Soccer Federation, which imports the FIFA Rules "insofar as they are not inconsistent" would be excluded. That is because under Rule 8(4)(e) of the Constitution it is provided that the rules of natural justice shall, at all times, be observed.
However, I am satisfied that the infelicitous expression by Mr Howieson - which is, in substance, not in dispute - does not reveal that the rules of natural justice have not been fulfilled in this case. I do not consider that the expression by Mr Howieson indicated that he or the Appeal Board had a closed mind as to the substance of the matters before them. In particular, I do not consider that the expression reveals that he or the Board had a closed mind as to deciding the substance and merits of the question of whether the plaintiff on Charge 1 had assaulted by head-butting the referee. It is well known that in considering argument by counsel or in the interplay of Bench and Bar Table comment can be made which is not final observation or final finding. The true reasons are to be found in the reasons given. In this particular case, no reasons for judgment were requested pursuant to s.8 Administrative Law Act 1978 . Nor were they provided to become part of the record pursuant to s.10. Thus there is no formal statement of the reasons. I consider it is plain and beyond argument that the comments simpliciter from Mr Howieson do not constitute the reasons for the decision. If they did, there would have been no purpose served in hearing all the evidence which was heard. Further, if they did, there would have been no purpose served in reserving the matter and then providing the decision to the player the next day. Indeed, if the words meant what they, on a literal meaning, would indicate, the whole proceeding would have been a waste of Mr Howieson's time and the two lawyers sitting with him time as well as everyone else's time. They would also have been a sham and a charade. I am not at all satisfied that they were. On the contrary, I am confident that, having heard witness after witness, the Board would have listened to and considered properly the material before it. The Board, in fact, reduced the penalty on one matter. I consider that the Board did exercise its mind properly in accordance with Rule 8(4)(e) of the Constitution. See generally, Australian Football League & Ors v. Ors. v. Carlton Football Club Ltd & Anor[1] ("there must be due inquiry …. The Tribunal must do the job it was supposed to do and not merely go through the motions of doing it"). I consider that the Appeal Board satisfied Tadgell, J.A.'s criteria. I do not consider the Board (or its Chairman) prejudged the matter (see The Queen v Watson, ex parte Armstrong)[2] Procedural fairness was accorded: Kioa & Ors v. West & Ors[3] Finally, by parity of reason I do not consider that the Board (or its Chairman) took into account in its decision an irrelevant consideration namely FIFA Law 5: see Minister for Aboriginal Affairs & Anor. v. Peko-Wallsend Ltd. & Ors.[4]
[1](1998) 2 V.R. 546 at 551 per Tadgell, J.A.
[2](1976) 136 C.L.R. 248 at 258.
[3](1985) 159 C.L.R. 550 at 584 per Mason, J. (as then he was).
[4](1986) 162 CLR 24 at 41.
Further, it is not without significance that the decision was unanimous, that is to say, the two legally qualified members of the Board and the chair all agreed on the decision.
Thus, I am satisfied that natural justice was not denied to the player concerned.
Before leaving the matter, however, I think it is appropriate for future purposes that I say that Law 5 relates to the decisions of the referee on the field and the question of the accepting or otherwise of evidence of the referee at the Tribunal under Rule 7 or the Appeal Board under Rule 8 is an entirely separate question. Whilst in a domestic tribunal such as this dealing with sport it would be right and proper for the evidence of the referee to be given all due weight and consideration, nonetheless that evidence is not binding upon the Tribunal at the first instance or the Appeal Board in the second instance. On each occasion the Appeal Board will, no doubt, carefully listen to all the evidence placed before it and then make a decision based upon the evidence, bearing in mind, of course, the special responsibilities of a referee properly to control the field of play.
For all those reasons I am not satisfied that the claim has been made out. Indeed, I am satisfied of the converse: that the Board did act according to the rules of natural justice. Accordingly, I refuse the relief sought and dismiss the summons and with it I dismiss the originating motion for reasons I stated at the start of the proceedings.
In all the circumstances, I consider that costs should follow the event but I am happy to hear counsel on that if there is any other submission that is sought to be made.
(Discussion ensued re costs.)
I order the plaintiff to pay the defendant's costs of this proceeding including reserved costs on a party and party basis.
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