A case (or two) for sport related injunctions in the Magistrates’ Court (“MCV”)

Haig Fawkner Cricket Club v Victorian Turf Cricket Association, unreported, MCV 10 March 2023 and Pettifer v Goulburn Valley Football League, unreported, MCV (22 September 2023)

While Victorians love their sport, it is rare for sporting related disputes to make their way to Victorian courts.  Most sport-related “litigation” at the sub-elite level occurs in informal tribunals established by small organisations with skeletal staff operating under governance documents of varying quality.  Even though the consequences of sanctions can be very significant, these tribunals are generally staffed by well-intentioned volunteers who may or may not have legal training.

Standard form disciplinary policies generally contain a provision that a person charged under the policy must exhaust all steps within the policy prior to commencing an action in any court, but if an individual remains aggrieved after the process where can they go?

While the Supreme Court remains vested with jurisdiction over disputes arising out of the contractual matrix that players have with their clubs and leagues, there may be a different and less costly avenue for redress through the Magistrates’ Court. 

Most sub-elite sporting organisations operate as incorporated associations under the regulation of Consumer Affairs Victoria and are subject to the Associations Incorporation Reform Act 2012 (the “Act”).  Section 54(3) of the Act imposes minimum standards of procedural fairness for organisations carrying out their disciplinary process.  It states the organisation must ensure that:

  (a)  the member who is the subject of the disciplinary procedure –

       (i)             is informed of the grounds upon which the disciplinary action against the member is proposed to be taken; and

       (ii)           has been given an opportunity to be heard in relation to the matter; and

  (b)  the outcome of the disciplinary procedure is determined by an unbiased decision-maker; and

  (c)   to the extent that doing so is compatible with paragraphs (a) and (b), the disciplinary procedure is completed as soon as is reasonably practicable…

Further, the Act contains, in s 68, a prohibition on oppressive conduct impacting members.  This concept has a similar meaning to that the subject of the Corporations Act 2001 (Cth) (see Stuart v Mordialloc Sporting Club Inc [2021] VSC 244 at [58]). 

Section 67 of the Act squarely vests jurisdiction in the MCV to hear disputes arising between members and an association, and recently, the MCV has heard and determined two applications for urgent injunctive relief on the basis of a denial of procedural fairness through disciplinary processes of two different sporting codes – with mixed results from the perspective of the athletes.

The principles underpinning injunctive relief set out in Australian Broadcasting Corporation v O’Neill [2006] HCA 46 are well known: a prima facie case, balance of convenience and monetary damages not being an adequate form of relief.

In one matter, Haig Fawkner Cricket Club v Victorian Turf Cricket Association, unreported, MCV (10 March 2023), the plaintiff athletes sought injunctive relief on the basis that they were not afforded procedural fairness in a disciplinary proceeding.  In particular, the plaintiffs alleged that the VTCA had not laid charges according to its rules, had not convened an independent disciplinary panel and there was apprehended bias. 

In the oral decision delivered by the Court, the magistrate found a prima facie case had been established and the balance of convenience favoured the athletes’ participation in the game.  Further, the magistrate found that if the athletes missed the opportunity to play they would not be adequately compensated by an award of pecuniary damages.  In this case, the injunction granted by the Court meant that the players could play in their semi-final match.

In Pettifer v Goulburn Valley Football League, unreported, MCV (22 September 2023), the plaintiff athlete alleged a lack of procedural fairness in the conduct of the lower and appellate disciplinary hearings, including failing to consider relevant information, failing to provide a recording of the lower hearing prior to the appellate hearing and a failure to consider certain representative offences in the process of grading the athlete’s conduct.  He sought injunctive relief to prevent his five week suspension from taking effect (which would have prevented him from playing in the finals).  

In this case, the Court, after reviewing the recording of the appellate tribunal, found that the plaintiff had not demonstrated sufficiently that the Court should interfere.  It found neither a prima facie case that there was a denial of procedural fairness by the appellate tribunal nor that the balance of convenience favoured the athlete, referring to the one week delay in the bringing of the application.  In denying the application for an injunction, not only was the delay a contributing factor, but in the particular circumstances (namely, a head contact leading to concussion of the opposition player), the court weighed, in its balancing exercise, the duty of the association to uphold the integrity of the sporting code as a significant factor to consider in the analysis of balance of convenience.

As always, the question of whether to grant injunctive relief is a matter in the broad discretion of the court and dependent on the facts and circumstances of the case.  However, what was generally thought only to be available in the Supreme Court is now, through the operation of the Act, available in the MCV resulting in a more cost effective avenue for redress by sub-elite athletes.

Note that the author appeared for the plaintiff athletes in the Magistrates’ Court in the proceedings the subject of this article.