Ward v Country Rugby League of NSW Inc

[2000] NSWSC 720

CITATION:	Ward v Country Rugby League of NSW Inc [2000] NSWSC 720
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 3194/00
HEARING DATE(S):	17 & 19 July 2000
JUDGMENT DATE:	19 July 2000
PARTIES :	Andrew Ward (P1) Turvey Park Rugby League Football Club Inc (P2) Country Rugby League of New South Wales Inc (D)
JUDGMENT OF:	Hamilton J

COUNSEL :	S Prince (P1 & 2) J B Riordan, Solicitor (D)
SOLICITORS:	Denniston & Day (P1 & 2) McLaughlin & Riordan (D)
CATCHWORDS:	ASSOCIATIONS AND CLUBS [15] - Expulsion, suspension and disqualification - Exercise of powers - Generally - Whether internal appeal from Judiciary Committee available to disappointed complainant.
LEGISLATION CITED:	Justices Act 1902, s 112
CASES CITED:	CI & D Manufacturing Pty Ltd v The Registrar of the Industrial Court of New South Wales (1996) 40 NSWLR 1 Ex parte Sidebotham. In re Sidebotham (1880) 14 Ch D 458 Grayndler v Cunich (1939) 62 CLR 573
DECISION:	Defendant restrained from hearing internal appeal.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

WEDNESDAY, 19 JULY 2000

3194/00 ANDREW WARD & ANOR v COUNTRY RUGBY LEAGUE OF NEW SOUTH WALES INC

JUDGMENT

HIS HONOUR:

1    These proceedings are brought by Andrew Ward (“Ward”), a Rugby League player, and the Turvey Park Rugby League Football Club Inc, for which he plays. That Club plays in a competition organised by Group 9 of the Country Rugby League of New South Wales Inc (“the Country Rugby League”), the State being divided into a number of areas for the purposes of conducting rugby league competitions in the country. The relevant area is in the southern part of the State.

2 It is alleged that during the course of a game against the Wagga Brothers Club, Ward bit the ear of a Wagga player. He was not sent off or did not leave the field during the course of the game because the player bitten did not, at that time, make a formal complaint, but indicated the game should go on, simply saying, “That is football”. However, subsequently, his Club made a complaint which led to a hearing against Ward before the Group Judiciary Committee on 21 June 2000. At that hearing the Judiciary Committee found the charge not proven. The Wagga Brothers Club subsequently appealed against the decision of the Judiciary Committee to the Appeals Board of the Country Rugby League (“the Appeals Board”). The defendant proposes to have that appeal heard by the Appeals Board, since it considers it to be a valid appeal, which the plaintiffs controvert. An agreement has been reached between the parties that, if the appeal is held to be valid, it will proceed, not before the Appeals Board, but before a Group Appeals Committee constituted under the relevant provisions of the Group 9 Constitution which will be set out hereafter.

3    The question for the Court is whether the appeal to the Appeals Board is a valid appeal, and one that can be maintained under the relevant provisions of the Constitutions properly construed. The matter is urgent as the rugby league season is still continuing and the incident and the complaint, if the appeal be dealt with, could lead to Mr Ward’s suspension from play. The Court has heard the matter at short notice on a final basis and I have not had any considerable time to conduct researches into the matter. That, in the long run, may not matter a great deal, because in this, as in all cases of the interpretation of instruments, authority on other instruments is not of great assistance. The question that must always be decided is the proper construction to be put upon the relevant words of the instrument in the context of the whole instrument. There are two instruments which require consideration. One is the Constitution of the Country Rugby League and the other is the Constitution of Group 9.

4    The Constitution of Group 9 provides by clause 40(a) that at its first meeting after the annual general meeting of the Group the General Committee shall elect a Judiciary Committee. The following provisions are contained in clauses 42 and 43:

“42 The duties of the Judiciary Committee shall be:-
(a) Investigate and deal with all reports of referees who have sent players from the field of play.
(b) Any other matter which the Group General Committee of Management Committee may from time to time delegate to the Judiciary Committee to determine.
…
43 (a) The Judiciary Committee may impose penalties by way of fine, suspension, disqualification, costs and/or expense or by caution: [sic]
(b) The Committee shall nominate a date by which a monetary penalty, costs and/or expenses are to be paid or on which a period of suspension or disqualification will end.”

Under the heading “Protests and Appeals” clause 45 provides as follows:

“45 (a) The Group Appeals Committee shall consist of a minimum of three and a maximum of five members none of whom shall be members of Group Judiciary Committee.
(b) The duties of the Committee shall be to hear appeals against decisions of the Group Judiciary Committee.
(c) A person or a Constituent Body other than a Group or Division may appeal to the League Appeals Board.
(d) All appeals shall be subject to and conducted in accordance with subparagraphs 3(i), (ii) and 5 of Clause 31 of the Constitution of the League.
…
(f) An appeal to the Appeals Committee or Appeals Board shall not operate as a stay of proceedings against the sentence of the Judiciary Committee.
(g) An appeal to the Group Appeals Committee shall be a new hearing.”

Clause 47 under the heading “Protests and Appeals” provides as follows:

“47 (a) Any person, Club or Constituent League aggrieved by a decision of the Judiciary Committee Appeals Committee or General Committee of the Group may appeal to the Appeals Board of the League.
(b) Such appeals shall be subject to the Rule 31 of the Constitution of the League.”

Thereafter, under the heading “Discipline” appears clause 48:

“48 (a) Any person being a member, player, coach, employee, official or other like person of the Group, or of a Club or Constituent League, against whom a complaint has been laid that such person:
(i) has been involved in misconduct; or
(ii) has been involved in conduct which is detrimental or prejudicial to the welfare and good image of Rugby League or of any of the Group, Club or Constituent League; or
(iii) has breached the Constitution of any By-law or Regulation of any of the aforementioned; or
(iv) has failed to comply with any direction or decision of any such body to the control of which he is subject,
may be cited or caused to appear before the General Committee or Management Committee to answer such a complaint.
(b) A complaint against any such person pursuant to subclause (i) or (ii) above shall be lodged with the Group Secretary within 72 hours of the incident giving rise to the complaint.
(c) Complaints shall be in writing and lodged with the Group Secretary with a fee of one hundred dollars ($100.00).
(d) (i) Upon receipt of a complaint in accordance with (c) above, the Group Secretary shall convene a meeting of the Management Committee to investigate the complaint and notify the parties to attend giving at least twenty four hours notice of the time and venue.
(ii) After hearing evidence from the complainant, the Management Committee may decide that there is a case to answer in which case the complaint shall be referred to the General Committee for determination of the complaint at a time and place to be notified to the Complainant and the Respondent giving at least twenty four hours notice if requested by the Respondent.
(iii) If after hearing evidence from the Complainant, the Management Committee decides there is no case for the Respondent to answer, the Management Committee shall dismiss the complaint.
(iv) If after hearing evidence from the parties, the General Committee decides that the Respondent is guilty of an offence, it shall proceed to iimpose such penalty by way of caution, fine, suspension, disqualification or otherwise as it decides is appropriate.
(v) Penalties imposed under (iv) above shall take effect on and from the date in [sic] which they are imposed.
(vi) All evidence received by the Management and/or General Committee shall be recorded in writing and/or audio sound equipment and shall be retained until the completion of the matter.
(vii) At the completion of the matter the Committee shall refund or retain the lodgment fee a its discretion.”

Thus, where a player has been sent off the field for misconduct the matter goes straight to the Judiciary Committee by medium of a report of the referee. As has already appeared, that did not occur in this case. The complaint against the first plaintiff, being made after the game, went under clause 48(a) to the Management Committee, by which it was referred under clause 42(b) to the Judiciary Committee, which made the decision which has been recounted.

5    The following provisions are relevant in the Constitution of the Country Rugby League. Clause 31 provides that the Appeals Board shall be elected at the Annual Conference of the Country Rugby League. Clause 31(3)(i) and (ii) provide:

“(3) (i) The Appeals Board shall determine all appeals from decisions of a Constituent Body or any sub committee thereof. It may in the exercise of its powers uphold or dismiss an appeal and may increase or decrease the penalty appealed against ot substitute its own penalty by way of fine, suspension, disqualification or otherwise. The hearing of the Appeal shall be a new hearing in the nature of an original hearing.
(ii) In the case of an appeal by a player, employee or official against a decision of the Judiciary Committee or Group Appeals Committee to impose a penalty against that person the appellant must produce fresh evidence, indicating which part of the evidence presented to the previous hearing the appellant wishes to have re-opened. The appellant must indicate the nature of the fresh evidence which was not available at the previous hearing. Fresh evidence is evidence of which the appellant did not know before the conclusion of the hearing before that Committee and of which the appellant could not have become aware if the appellant had, before conclusion of that hearing, made all those investigations and enquiries that could have been made by the appellant.”

The determination of the question of whether there is fresh evidence is to be by an Appeals Review Board under the provisions of clause 31(3)(iii). Later subclauses of clause 31 are as follows:

“(8) Any appeal from a decision of a Constituent Body or its sub committee other than an appeal by a player against a suspension or fine must be lodged in writing with the Constituent Body Secretary within five days of the decision appealed against accompanied by the appropriate appeal fee. The Constituent Body Secretary shall lodge the same by posting the appeal to the League within 48 hours of the receipt of the same. The General Manager/Treasurer of the League shall set the appeal down for hearing and give the concerned Constituent Body Secretary and the appellant 48 hours notice of the place, time and date of the hearing of such appeal.
(9) The Appeal’s [sic] Board decision relating to appeals by players who have been fined or suspended by a Constituent Body or a sub committee shall be final.
(10) (a) Any decision of the Appeal’s [sic] Board other than a decision referred to in the preceding sub-clause against a decision of a Constituent Body (the Country Rugby League Referees’ Association excepted) shall be subject to the right to seek that the General Committee call a meeting within fourteen days to rehear the matter. If such meeting is requested the unsuccessful party to the Appeal shall be liable for the cost of assembling the General Committee or the sum of two thousand five hundred dollars ($2,500.00) which [sic] is the less.
(b) Alternatively, the Constituent Body may advise when lodging such appeal that it requires the matter to be dealt with by the General Committee at its next normal meeting. The appeal fee for an appeal by the Constituent Body to the General Committee shall be $800.00. Appeals under this clause must be lodged within fourteen days of the date of the Appeals Board decision.
(c) The decision of the General Committee or in the absence of an Appeal to the General Committee, the Appeals Board shall be final.
…
(13) A Constituent Body may if it so desires establish a Group Appeals Committee which shall consist of a minimum of three members and a maximum of five to be elected at the Annual General Meeting. Such members shall not be members of the Judiciary Committee of the Constituent Body. The duties of such Appeals Committee shall be to hear appeals against decisions of the Group Judiciary Committee. A person or Constituent Body, other than a Group or Division, aggrieved by a decision of the Group Appeals Committee may appeal to the League in accordance with the League constitution.”

The importance of these provisions of the Country Rugby League’s Constitution are that the Group Constitution makes it plain in my view that all proceedings before the Group Judiciary Committee are to be conducted according to the provisions of clause 31 of the Country Rugby League Constitution.

6    In both Constitutions it seems clear that there is provision for two types of proceedings within this contractual adjudication system. One relates to disciplinary proceedings arising from the conduct of players or, indeed, persons. The other relates to more general matters, in the matter being able to be referred, or any decision being able to be referred by the executive bodies to the Judiciary Committee for determination. It seems to me that it is the fact that these two quite different types of appeals are caught up in the same set of provisions that leads to some of their difficulty.

7 The plaintiffs’ argument is that the indications on the face of the Constitution documents themselves are that it is only a player, or another person, whose conduct has been the subject of an adverse finding or penalty, who has the right to appeal from the Group Judiciary Committee, whether to the Group Appeals Committee or to the Appeals Board. He refers particularly to the provision in clause 31(3)(i) that powers are given to the Appeals Board to increase or decrease a penalty, or substitute its own penalty; there is no power conferred to impose a penalty where the complaint was originally dismissed, either expressly, or by conferring upon the Appeals Board all the powers of the Judiciary Committee if the Appeals Board finds a complaint established. Similarly, in clause 31(3)(ii), which imposes a fresh evidence requirement upon an appeal, the appeals concerned are expressly specified to be “an appeal by a player, employee or official”. This would have the rather strange effect which Mr Riordan, the solicitor for the defendant, concedes is implicit in his argument, that a penalised player would have to meet a stringent fresh evidence requirement to have an appeal heard, whereas no such restriction would be placed on an unsuccessful complainant. Mr Riordan suggests that this is necessary by reason of a plethora of appeals by penalised players and a scarcity of appeals by unsuccessful complainants, but, to my mind, the effect of the interpretation propounded by Mr Riordan would be quite anomalous.

8    Mr Riordan’s contentions are that paragraphs (b) and (c) of clause 45 of the Group Constitution provide alternative avenues of appeal from the Group Judiciary Committee either to the Group Appeals Committee or to the Appeals Board, at the election of the appellant, just as appellants from decisions of a single judge of this Court once had an election of appeals to the Court of Appeal or the High Court of Australia or the Judicial Committee of the Privy Council. The appeal that was taken in this case was under section 45(c) of the Group Constitution which is general in its terms and should not be read down. The requirement of paragraph (d) should be taken as regulating the procedure of the appeal and not as restricting entitlement to appeal. What he has said about the apparent anomaly created by the fresh evidence rule in this context I have already set forth.

9    The conclusion that I have come to on reading both the documents as carefully as I can in the limited time available is that, in the case of decisions by the Group Judiciary Committee relating to complaints of misconduct against players, employees or officials, the intention evinced by the Constitutions upon their proper interpretation is to give a right of appeal only to persons who have been penalised as a result of complaints and not to complainants whose complaint has been dismissed.

10    I find encouragement in this conclusion by the analogy of some cases, although the analogies are somewhat distant. In CI & D Manufacturing Pty Ltd v The Registrar of the Industrial Court of New South Wales (1996) 40 NSWLR 1 the Court of Appeal restricted an apparently general right of appeal contained in the Industrial Relations Act 1991 to appeals by defendants, in reliance upon the principle that there is no right of appeal by a prosecutor against an acquittal of a criminal charge after a hearing on the merits, unless specifically and clearly given. These are not, of course, criminal proceedings, but they are proceedings before a contractually constituted tribunal, which are punitive in nature, in that penalties may be exacted and they may affect the livelihood and reputation of persons involved. Not dissimilarly, the High Court of Australia in Grayndler v Cunich (1939) 62 CLR 573 held that an informant whose information before a Magistrate had been dismissed was not a person aggrieved who could seek statutory prohibition under the then provisions of the Justices Act 1902 s 112. That was a provision which applied both to criminal and civil proceedings before Magistrates. The decision proceeded in part from the fact that the remedy, although statutory, was described as a prohibition and expressed in terms of restraint, but it also proceeded in part on the notion that a person whose proceedings were dismissed was not aggrieved in the relevant sense (see per Latham CJ at 588). The High Court cited the decision of the English Court of Appeal in Ex parte Sidebotham. In re Sidebotham (1880) 14 Ch D 458. The proceedings in that case were not criminal but proceedings before the Court of Bankruptcy, in an appeal from a decision by which the Comptroller had refused to find a trustee in bankruptcy guilty of misfeasance. In upholding the decision of Bacon CJ in the Court of Bankruptcy, that a person whose application in that case had been refused was not a person aggrieved in the relevant sense, James LJ in the Court of Appeal said at 465:

“It is said that any person aggrieved by any of the Court is entitled to appeal but the words ‘person aggrieved’ do not really a man who is disappointed of a benefit which he might have received if some other order had been made. A ‘person aggrieved’ must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something.”

However, as I say, the guidance from these authorities is distant. Although the word “aggrieved” is used in one of the provisions under which the appeal in this case might be brought, it is not used in another. The decision that I have made is, in reality, squarely founded upon a reading of the instruments themselves.

11    I propose to grant appropriate relief to carry into effect my decision as to the correct interpretation of the instruments. It may be that an injunction ought to be granted, or it may be that declaratory relief will suffice. I shall hear further submissions on that matter.

…oOo…

12    I order that the defendant, by itself, its servants and agents, be restrained from hearing or causing to be heard the appeal purported to be instituted by letter dated 22 June 2000 by the Wagga Brothers Rugby League Football Club Inc against the decision of the Group 9 Judiciary Committee on 21 June 2000 in respect of a complaint against the conduct of the first plaintiff. By agreement I order that there be no order as to the costs of the proceedings.

…oOo…

Last Modified: 09/26/2000