Allen v Northland Rugby Union Incorporated

[2023] NZHC 1448

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1178

[2023] NZHC 1448

BETWEEN

AROHANUI TAKANGAROA ALLEN

Applicant

AND

NORTHLAND RUGBY UNION INCORPORATED

First Respondent

CAMERON BELL, CHIEF EXECUTIVE OFFICER, NORTHLAND RUGBY UNION INCORPORATED

Second Respondent

Hearing:	11 June 2023 (by telephone)
Counsel:	A M McCormick for Applicant D M Grindle for Respondents
Judgment:	11 June 2023

JUDGMENT OF BREWER J

Solicitors:

Brandts-Giesen McCormick (Rangiora) for Applicant WRMK Lawyers (Whangarei) for Respondents

ALLEN v NORTHLAND RUGBY UNION INCORPORATED [2023] NZHC 1448 [11 June 2023]

[1]    This judgment decides  an  urgent  application  for  interim  injunction  by  Ms Allen in her capacity as a member of the Kaikohe women’s premier rugby team. The team is part of the Kaikohe Rugby Football and Sports Club. The team is competing in the first respondent’s premier women’s competition. It has done very well. The team was scheduled to play in the semi-finals later today at Kaikohe. However, on 8 June 2023 the Council of Unions met and held by majority that due to ongoing breaches of conduct the team should be withdrawn from the competition. In other words, it will not be permitted to play in the semi-finals and hence it is no longer in the competition. Ms Allen brings her application for interim injunction against this decision on the basis that the respondents have not complied with the Code of Conduct and, in particular, the first respondent:

i.did not provide the applicant’s team or Club with details of the complaints it claims to have received concerning the team’s alleged breaches of the Code, nor did they afford the applicant’s team or Club a proper opportunity to respond to the complaints; and

ii.by making a recommendation of exclusion to the first respondent’s own Council of Unions to determine, has not followed the process prescribed in the Code or indeed a process based on natural justice.

[2]    When I agreed to hear this matter this morning it was on the understanding that if I were to grant the interim injunction then the semi-final match scheduled to proceed at 2 pm today would proceed. However, I am told by Mr Grindle for the respondents that consequent upon the decision of 8 June 2023 all arrangements for the playing of that match were cancelled. So, there would be no team to play, no referee, no other facilities. That does have an effect on one of the factors I have to look at which is the balance of convenience.

[3]    Ms Allen’s draft affidavit deposes to her awareness of two individual cases involving team members and the disciplinary process. One resulted in a player being suspended for three weeks for unsportsmanlike behaviour. The other involves an allegation of striking, and that allegation is yet to be resolved.

[4]    Ms Allen’s affidavit is to the effect that the action by the first respondent is puzzling given that, with the exception of the player cited for striking, not one of them has been ordered from the field in a game this year.

[5]    Ms Allen also refers to a meeting that was held on Tuesday 6 June 2023 and which was attended by the entire team and its management. This took the form of a hui with the Club’s committee and with representatives of the first respondent. The first respondent’s  Community  Pathways  Manager  attended  and,  according  to  Ms Allen, told the meeting that the team would be withdrawn. The manager said that complaints had been received from four Clubs about the team’s behaviour on the field during games. However, the manager was unable to give details, save there was some reference to a game against the Onerahi team, but Ms Allen’s view is that the criticism there was not about the team’s behaviour on the field but rather how the game should have been structured when the crushing defeat of the Onerahi team became inevitable.

[6]    That is about it so far as the evidence in favour of the injunction is concerned. There is no evidence from the respondents. The respondents were served on a Pickwick basis and Mr Grindle has appeared on their behalf.

[7]    Mr Grindle’s main point is that the first respondent’s duty has been to inform the Kaikohe Rugby Football and Sports Club of the complaints and to deal with the Club and not the players. His submission is that it could only be following repeated complaints being received and discussed with the Club that it would be appropriate for the Council of Unions meeting to be convened on 8 June 2023 as it was. He tells me there are 17 members of the Council and there were 15 in attendance on the night of 8 June 2023. There was a representative from the Club who voted against the motion.

[8]    Mr Grindle is unable to specify each of the complaints. He says that they are many and do not just involve the way in which the team’s players comported themselves but also the way in which spectators and the team’s management comported themselves. He recalls that one of the complaints was of online bullying. In short, Mr Grindle submits there is no evidence of a breach of natural justice at the level pertinent.

[9]    The Club is not a party to this proceeding. Mr McCormick, however, refers to Exhibit A of Ms Allen’s affidavit which is a letter from Mr Wally Harris (President of

the Club) dated 7 June 2023 to the first respondent. In it, Mr Harris, who says he is writing on behalf of the Committee, states:

The KRFSC committee acknowledge (sic) that allegations of misconduct have been raised by the NRU and agree that these allegations need to be investigated thoroughly.

The KRFSC has also come to the agreement that the NRU has not given the KRFSC Committee the sufficient time and information to address these and any allegations thoroughly and agreed that the NRU has come to discussions with predetermined outcomes.

[10]I turn now to the principles I have to consider.

[11]   First, Ms Allen must establish that there is a serious question to be tried in the proceeding. I find that she has not done this. Certainly, and as a team player, Ms Allen can say that she is unaware of the detail of the reasons why the Council of Unions took what is by any definition in this context extreme measures to remove her team from a competition in which it was doing very well and had advanced to the semi-finals. But Mr Grindle is correct. It is at the Club level that the complaints are received and reviewed, and it is the Club that needed to be in a position to address them at the Council of Unions meeting that was held on 8 June 2023. There is no affidavit from the Club in this proceeding and nor is it a party. The Club voted against the resolution but was overwhelmed.

[12]   I do not say that there might not be a serious question to be tried, and I do not say that individual team members do not have a right of natural justice to be properly informed and have an ability to respond relevantly to allegations which concern them personally when it comes to decisions of this sort. It is just that there is no evidence before me that such individual considerations apply.

[13]   The next point is where would the balance of convenience lie. The balance of convenience would usually favour the team. As Mr McCormick said, it is not unusual where judicial proceedings to decide overall sanctions would simply take too long within the context of a playing season, for proceedings not to be determined during the playing season. They can properly be determined after the playing season and penalties, if necessary, can be allocated to have effect for the following season. But, here, the balance of convenience is not simply whether a scheduled game proceeds or

not. The scheduled game has been cancelled and the participants dispersed. If I were to grant the application, it would be on the assumption that the respondents could properly find another team to compete in the semi-finals and to do so probably during the course of the week since the finals are scheduled to be played next weekend.

[14]   On this basis I find that in this particular case the balance of convenience favours the respondents. I accept that damages is not a remedy. But, standing back and looking at the overall justice of the situation, it seems clear to me that this is not a storm which has come from a hitherto clear sky. It seems to me that the first respondent has been dealing with a range of complaints for some time. I must accept that these complaints have been raised with the Club. There was notice given of the first respondent’s intention to put to the Council of Unions that the team be withdrawn from the competition. The Club had the ability to have its say at the meeting and it has not joined this proceeding as a complainant alleging breach of natural justice. It might be that there has been a breach of natural justice. But there is insufficient material before me to make a decision in favour of Ms Allen on that point.

[15]The application for interim injunction is dismissed.

[16]   I reserve the issue of costs. If the respondents are to claim costs, then they are to file their memorandum within 15 working days of today’s date.

Brewer J