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THE WHISTLE HAS BLOWN ... GAME OVER ... OR IS IT REALLY? CHALLENGING THE DECISIONS OF SPORTS GOVERNING BODIES IN NEW ZEALAND
ROWAN ARMSTRONG*
A number of sports have become high profile and 'big business'1 since the advent of professionalism. The financial and commercial interests involved and the social importance of sport within our community suggest that administrative sports bodies' decisions frequently have wide ranging effects. Often with monopolistic control and largely unfettered regulation over a sport, it should therefore not be surprising that self-regulatory governing bodies need to be, and are increasingly coming under close scrutiny. Whilst generally it is true that sport should be 'for playing, not litigating',2 it is completely justifiable to take action challenging a decision, especially when an injustice occurs affecting commercial interests or one's livelihood. This has even been recognised by Parliament, establishing the Sports Tribunal of New Zealand as an alternative for what can be 'costly and lengthy' court action.3
A contemporary overseas illustration of the commercial interests which can be at stake is the dispute regarding relegation from the 2006-2007 English Football Premier League. West Ham United pleaded guilty to breaching player signing rules and was fined £5.5 million by an independent disciplinary commission set up under the rules of the Football Association (FA). Four clubs4 disputed this penalty alleging that the decision to merely fine was not supported by precedent and should have resulted in a points deduction.5 Conversely, West Ham defended the position taken that there was no mandatory requirement for such a punishment. This issue was pivotal, as even if the minimum three point deduction was levied it would have condemned the club to certain relegation. Considering the sums of money at stake (which is estimated to be worth £50 million a year to remain in the Premier League) it was not surprising that Sheffield United and Fulham Football Club appealed to the FA's arbitration panel, on grounds that the internal disciplinary commission acted irrationally and perversely.
A three man panel, headed by retired Court of Appeal Judge Sir Phillip Otton, dismissed this claim, ruling against establishing a new independent commission to review the case. Although the panel had sympathy for Sheffield United, commenting that the decision was 'unfortunate in the extreme',6 they went on to state that applying public law principles it was impossible to satisfy the very strict test that the decision of the disciplinary commission was 'irrational or perverse'.7 The commission did not act incorrectly; it had the ability to reach its outcome. It also had acted reasonably at all times and followed the processes prescribed in the FA's rules. However, this was not the end of the dispute. Despite permission to appeal the arbitration panel's decision to be reinstated in the Premier League being declined by the High Court, on the basis that there was no error of law, Sheffield United has mounted a new cause of action to sue West Ham for £50 million in damages (the cost of relegation) for breach of contract.8
This example epitomises the importance of a decision made by a governing body's internal tribunal and the effect that this can have on a wide range of parties including clubs, managers, coaches, players, supporters9 and business sponsors. While it is not foreseeable that a claim of this magnitude is likely to arise in New Zealand in the near future, nevertheless it illustrates a range of mechanisms which can be utilised to hold sports bodies to account. It is therefore desirable, if not necessary in this professional age of sport, for interested parties to be aware of these.
Part II of this paper will focus on two core mechanisms which may be available to challenge a decision of a sports governing body. The aim of which is to offer an evaluative insight into the totality of New Zealand's position and contrast this with the position in England.10 In part III, a succinct overview will be provided as to the appropriateness of bringing a claim in the courts as opposed to specialist sports arbitration tribunals. It is intended that this discussion will be of some use practically, both to claimants and governing bodies. The paper will then briefly consider from a policy perspective whether reform to this area of the law, by way of a sports ombudsman, is justifiable and worth pursuing for the furtherance of justice.
Before turning attention to the general causes of action on which a challenge could be satisfied, it is necessary to outline the nature of sports governing bodies, the significance of their internal rules and the broad factual circumstances in which challenges have arisen.
A sports body is special in nature as technically they are private, autonomous, voluntary11 organisations yet they have a substantial degree of authority by regulating important aspects of society. The key feature of most sports bodies is that they are self-regulatory. This describes the situation of 'a group of persons or bodies, acting together, performing a regulatory function in respect of themselves and others who accept their authority'.12 They have the ability to control a sport and its administration by determining, amending13 and interpreting its constitution, regulations and rules. The role of a sports governing body has appropriately been likened by one commentator as effectively parallel to a 'government within a nation — it has control over the system of law and the economy of sport'.14 However, it is the monopolistic nature of these bodies which makes them so commanding. In order for an individual or club to participate in a given sport or competition, they will often have no option but to abide by and be bound by the rules and regulations of that body. Lord Denning emphasised this point in Enderby Town Football Club Ltd v Football Association Ltd15 where his Lordship stated:
[p]utting the fiction aside, the truth is that the rules are nothing more nor less than a legislative code — a set of regulations laid down by the governing body to be observed by all who are, or become, members of theassociation.16
Hence participation is essentially on a take it or leave it basis. True consensuality is a fiction. This makes the courts intervention necessary to curb any abuses of power.
Currently in New Zealand there are 91 recognised 'National Sport Organisations' (NSOs) which govern a range of codes.17 There are also other governing bodies such as Sport and Recreation New Zealand, the New Zealand Olympic Committee, several racing bodies (as facilitated by the Racing Act 2003)18 and many regional sports organisations. These bodies, as would be expected, differ as to their shape, size and form. Each asserts a varying degree of power and influence. A minority could be considered to occasionally make decisions of 'major national importance',19 or which regularly affect substantial commercial interests in the realm of professionalism.20 Whereas the majority govern sports which are amateur in status and thus make decisions predominantly impacting on peoples recreational lives (whether or not on a national level); reputation; more minor commercial interests; and society generally. It is anticipated with professionalism in a relatively infant state in New Zealand compared with some other jurisdictions that this balance will gradually alter over time. Combine this with the fact that commercialism seems to be exponentially developing within existing professional sports, it is probable that the number and the importance of appeals against the decisions of governing bodies or domestic (internal) tribunals will only increase.
As will be seen throughout this paper, there is an important distinction between two types of legal entity which sports bodies in New Zealand assume.21 The legal structure of a body will influence the mechanisms and remedies available to a claimant upon initiating a challenge. Firstly, an unincorporated association is where its members are 'contractually bound together towards compliance with the rules of the association'.22 It is not a separate legal entity and thus cannot enter into contracts, sue, or be sued in its own capacity.23 Secondly, 'any society consisting of not less than 15 persons associated for any lawful purpose, but not for pecuniary gain', may apply to become incorporated under the Incorporated Societies Act 1908 (ISA).24 Once incorporated, the rules of the society construe a contract between it and its members.25 An incorporated society has several advantages: it is a separate legal entity; it has perpetual succession; it has the ability to sue or be sued; and it may acquire, hold and dispose of property. Due to the ease and advantages of incorporating, this form of legal entity is the more popular amongst our sports bodies.26 For this reason, the paper will principally focus on those sports bodies which are incorporated societies in New Zealand.
A governing body's rules simply acts as the 'legal framework within which the organisation must operate'.27 These are of primary application in any sports dispute. Whilst some sports bodies govern on their own accord and are the ultimate source of their rules, others will be subject to the rules of a superior or international governing body, being part of a 'hierarchy based on a structure of inter-locking contracts'.28 In which case, the subordinate body will incorporate those rules from the superior authority in its own provisions along with any of its own rules, as is permitted.
If the sports body is an incorporated society in New Zealand it must provide certain elementary rules relating to specified matters stipulated in section 6 ISA. However there is no statutory restriction on the ambit of rules in which a private body may prescribe. Nor is there any requirement that the rules must be reasonable.29 It can agree whatever it likes with its members so long as these are not inconsistent with the ISA or with law.30 The rules of a sports body commonly go well beyond the on field activities of a member to include provisions which relate to conducting commercial transactions, employment relations31 and personal conduct. Also, governing bodies will provide rules which enable it to penalise or discipline members for breaching its rules and quasi-judicial procedures, or internal resolution mechanisms for enforcing its rules and resolving disputes.32 It is not possible to exclude the jurisdiction of the courts though. Any rule which does so, or which states that 'consent of the governing body is required to bring an action in the courts is void'.33 Lynskey J in Baker v Jones34 categorically stated:
[t]he parties can, of course, make a tribunal or council the final arbiter on questions of fact. They can leave questions of law to the decisions of a tribunal, but they cannot make it the final arbiter on questions of law. They cannot prevent its decisions being examined by thecourts.35
Thus, as will be substantively considered, those rules which govern a sport and any decisions applying or which should have applied those rules, are, and should be, subject to the control of the courts.
There are numerous factual contexts in which an appeal from a sports body is made.36 Potentially any decision of a body may give rise to a challenge. For instance, specific individuals could challenge a decision in the context of: a test result indicating a misuse of drugs;37 misconduct while playing the sport;38 a charge of 'bringing the game into disrepute';39 denial of access to the sport;40 denial of access to a particular competition or representative level (once one is a participant in the sport);41 or failing to be selected for a team.42 Or a class of individuals may be affected and challenge a decision, in circumstances where there is the imposition of a salary cap;43 transfer rules;44 additional levies;45 or general bans or restrictions on taking part in other competitions.46 Specific clubs might also be aggrieved, as was illustrated in the introduction, from a decision which relates to promotion and relegation rules (including the docking of points).47 Or all the clubs may be affected by a matter where the governing body determines: collective selling of commercial rights;48 the maximum number of foreign players; policy relating to players release for international duties; or transfers. Furthermore, subordinate governing bodies49 commercial parties50 and the public51 are often interested participants and can challenge a decision in appropriate circumstances. Hence, there is an extremely broad spectrum of circumstances (in no way limited to the above examples) in which a challenge may be brought against a sports body.
The courts have been somewhat reluctant to intervene in the private affairs of sports bodies.52 Lord Browne-Wilkinson in Cowley v Heatley53 explained that, 'sport would be better served if there was not running litigation at repeated intervals by people seeking to challenge the decisions of regulating bodies'. While the principle of acceptable self-regulatory control mechanisms are, and should to a degree be respected (although anticipated to decline as governing bodies are increasingly becoming more intrusive), the courts today have generally shown a readiness to exercise their jurisdiction if there is 'self-regulatory failure or the presence of compelling public interest which warrants intervention'.54 It is the degree to which, and the way in which this can be done, that is of interest.
New Zealand and several other Commonwealth jurisdictions could be described as adopting a liberal approach with regard to the courts' intervention in the decisions of sports bodies. There is no one specific cause of action or mechanism which claimants are necessarily restricted to when attempting to obtain redress against a wrong, unfair or unlawful decision, or reviewing their exercise of power. Due to the 'special nature' of these bodies, claims in public law (via the mechanism of judicial review) or private law (via a contractual cause of action; or the specific doctrine of restraint of trade) may be available.55 For instance, in Finnigan v NZRFU Inc,56 Cooke J succinctly stated that the decision of the Rugby Union to send the All Blacks on tour to South Africa 'falls into a special area where, in the New Zealand context, a sharp boundary between public and private law cannot realistically be drawn.' And in Coleman v Thoroughbred and Classic Car Owners' Club Inc and Motor Sport Association of New Zealand Inc57 Hammond J recognised that 'there is now a substantial body of juristic and jurisprudential writing suggesting that the line between public and private [law] has become at least blurred, and may be even breaking down'. So an effective challenge may require the claimant to choose the most appropriate route which best serves their interests. This of course will depend entirely upon the ground challenged, the circumstances of the case, and the desired outcome.
In comparison, intervention in England is somewhat different. The availability of the range of mechanisms to challenge sports bodies is restricted, notably, with judicial review unavailable. The claimant will therefore be required to establish a private law action and imply the principles of judicial review into the contract. Whilst practically the majority of claims which succeed in New Zealand would also in England, as will be seen, the procedures and remedies available to the courts on exercising their authority are more limited.
Other causes of action will also clearly be appropriate in specific circumstances.58 But due to the intricacy of the two core mechanisms substantively covered, this paper cannot pronounce to elaborate on all bases for challenge. For this reason it was not possible to consider the private law doctrine of restraint of trade.
A core mechanism which a claimant may wish to consider or find applicable on challenging a sports body's decision, is a judicial review action. Administrative law rests upon the notion that 'persons invested with legal authority over others must stay within the bounds of that power and use it only in a manner which ... the law-maker intended'.59 So if the body errs or acts outside its power in a way which is illegal, irrational or procedurally improper the High Court may uphold a claim.
Under the procedure of judicial review the courts are not concerned with the merits of a decision (it will not sit as a court of appeal);60 instead it undertakes in its supervisory capacity to review the correctness of the decision making process.61 Therefore the court will not substitute a decision of its own, but will usually require the decision maker to repeat the process in a lawful fashion. However this bold authority is not free from criticism. While judicial review does have limitations, a claim can be broader than this.62 Some grounds (notably irrationality63 and on occasion a claim of illegality)64 touch upon or are fundamentally concerned with the merits of the decision. It is not this author's intention to delve into what can become a theoretical analysis as to the precision of this presupposition. Rather, it is to identify and critique from a more practical perspective the availability and the legal ambit in which a judicial review challenge could possibly succeed. This discussion should not only be of particular interest to claimants in their quest to identify a potentially successful challenge, but remind governing bodies of minimum standards of conduct which the courts require.
A vital preliminary point to consider is the degree to which the courts are willing to entertain a judicial review challenge. This issue is not always straightforward due the nature of a sports body. It is the contrasting approach of the New Zealand and English jurisdictions which is of curiosity. From the outset it is submitted that the development of the law in England is unjustifiably lagging behind its Commonwealth counterparts.65 Whilst some aspects of judicial review could be seen in an attractive light for a sports body and sometimes less so for an individual, in practice this does not seem to be appreciated.66 Sports bodies in England should welcome rather than fear being subject to judicial review.
New Zealand's Approach
Traditionally, amenability depended not on whether the effect of exercise of the particular power was a matter of public interest, but whether the source of the power was derived from statute (or the prerogative) to make the power truly governmental. So according to this view, if a sports body was not established by statute, then its decisions would not be judicially reviewable as those of a public body.67 This approach is outdated. There has been a momentous shift in the New Zealand courts and Parliament's attitude towards the reviewability of domestic bodies. Conceptually it can be justified that jurisdiction 'is better explicated as being founded on the common law concept of the rule of law and common law values rather than on the doctrine of ultra vires'.68 A lack of statutory base in decision making will then not be an obstacle.69 The vexed issue in light of this development is at what point does a private operation merge into a public law one attracting judicial review?
With regard to incorporated societies, the Judicature Amendment Act 1972 (JAA) has artificially extended judicial review to promote the availability of an action.70 Section 4(1) JAA refers to several orders which the court can make (emphasis added):
... in relation to the exercise, refusal to exercise, or proposed or purportedexercise by any person of a statutory power.
Similarly, in section 4(2) JAA the High Court may declare a (emphasis added):
… decision made in the exercise of a statutory power of decision [as]unauthorised or otherwise invalid.
The key terms, 'statutory power' and 'statutory power of decision' are both broadly defined in section 3 JAA to mean (emphasis added):
… a power or right conferred ... by or under the constitution or other instrument of incorporation, rules, or bylaws of any bodycorporate.
While a completely literal reading of these terms would suggest that incorporation alone confers a right to judicially review the decisions of a sports body, authority by the Court of Appeal dictates that this is not so. A body must in substance be sufficiently 'public in character'71 or have important public consequences or effects.72
Unincorporated sports associations do not come within this extended 'statutory power' definition in the JAA. However this does not thwart a judicial review action. The JAA merely established a simplified statutory procedure for obtaining the full range of public law remedies. It did not alter the scope of the courts common law jurisdiction. The exercise of nonstatutory powers can be reviewed under Part 7 of the High Court Rules (HCR) which similarly requires the body to have public functions.73 The discussion below, while predominately directed at incorporated societies, will therefore be of relevance to this type of legal entity.74 Although in practice, as the overwhelming majority of sports organisations in New Zealand are incorporated, contemplation of the issue with regard to an unincorporated association will be rare.
To determine whether a sports body is exercising sufficiently public consequences, one must look with overall evaluation at two entwined factors: the nature of the decision being made, as well as its importance in terms of the rights affected.75 Even though the issue of justiciability (and more broadly judicial review) is assessed on a case by case approach, the courts in New Zealand have acknowledged the unique regulatory nature of a sports body,76 signifying that a liberal approach will be adopted.
The landmark case Finnigan set the scene in awakening community perceptions that incorporated sports bodies decisions were subject to challenge.77 But in an earlier case, Stininato v Auckland Boxing Association (Inc),78 Richmond P documented the dissenting judgment of Lord Denning in Breen v Amalgamated Engineering Union,79 in which his Lordship advocated that the decisions of powerful associations such as the Jockey Club and Football Association were the type that might be susceptible to review. Those bodies could not employ 'unfettered discretion'.80 It is apparent that in certain circumstances it is not even necessary for the decision to affect commercial interests in the realm of professionalism, or be of fundamental importance, for a body to have public consequences. The courts have shown a willingness to judicially review decisions of a sports body which are essentially amateur in status, accepting that this may act as a springboard to professionalism. Woodhouse J in Stininato (where there was no contractual relationship) indicated that a claim for judicial review, on grounds of natural justice where there was a refusal to renew a professional boxing licence, was not dependant on the person's livelihood being affected. Damage to reputation would be a relevant consideration.81
Also, in the subsequent case of Coleman an application for review was granted under the JAA in circumstances where an amateur driver was denied entry to one, of a series of races, on the basis that he had been overly aggressive. In holding that the body acted with an improper purpose, Hammond J stated that:
[i]t is simply unacceptable for significant sporting bodies to come into court and say, we have an absolute right to deal with this plaintiff as we see fit. Such defendants should hardly be surprised if, if necessary, courts will find remedies to ensure that they act fairly. If the position were otherwise, we could be in the ludicrous position that a defendant ... could quite arbitrarily decide that it really did not like the prospect of the plaintiff coming out on top of a points table and for that reason alone refuse to accept his 'entry' forthe final race of the Series!82
As the courts are prepared to judicially review a sports body's decision in the amateur arena then surely if the applicant was already a professional sportsperson, justiciability would be even more likely.83 Furthermore, with amateur sporting activities being gradually but steadily absorbed into the world of commerce it is probable that amenability to review, in many cases, will not even be an issue.84
Applying this broad authority would suggest that due to the nature of an incorporated sports body's decision, a claim will be readily justiciable in the public sphere, whatever the actual affected interest, and regardless of any available claim in the private sphere. This is not necessarily so. Obiter dicta by the Court of Appeal in Hopper v North Shore Aero Club Inc,85 has cast a degree of uncertainly on these propositions. While the Court found it unnecessary to resolve the issue, they questioned amenability to judicial review in circumstances where the incorporated body was not exercising a 'quasi-public function' (affecting membership, disciplinary, livelihood matters or lacked bona fides) or did not breach the rules of natural justice.86 The Court also stated that the internal workings of incorporated societies, applying the company law internal management principle, were primarily reviewable under the law of contract, and even then, the courts would act with restraint.87 It is submitted that this dicta is too narrowly couched and based upon dated authority.88
The preferable wider view was postulated in an even more recent (2007) case Adlam v Stratford Racing Club Inc,89 where the High Court simply saw a more restrained role relating to the grant of remedies. Instead of confining justiciability to traditionally narrow quasi-public categories, adopting a flexible approach would sensibly facilitate the court to intervene where it was 'necessary for the attainment of justice'.90 This is where something has gone wrong of a nature and to a degree which requires the courts intervention.91 As to a claim which also has an available action in the private sphere, Miller J affirmed the dicta in Royal Australasian College of Surgeons v Phipps92 that the 'court will intervene in judicial review, even where the relevant power is in significant measure contractual, such that an action might also be brought in contract'. His Honour went on to state that 'no purpose would be served in the case [before him] (where there were real abuses of power) by requiring the plaintiff' to reformulate his claim in contract before granting relief'.93
The fact that a private law claim is available should not compel a challenge to be brought via a private law action. To do so would unjustifiably sidetrack the court from the real issue or injustice. It is also advantageous to have consistency in the law. There is a difference in New Zealand between the grounds which can be challenged under the head of judicial review and the more restricted grounds for breach of contract. To necessitate an action be brought in contract for particular breaches lacks logical sense. For instance, a claimant may wish to challenge a decision on several grounds of judicial review where some, but not all of these, are available under a contractual cause of action.
Even reluctantly adopting the questionable narrow approach in Hopper it is extremely likely that the majority of challenges to sports governing bodies, especially in this growing professional era, will affect 'quasi-public regulatory functions'. In which case, any natural judicial disinclination of the courts to intervene in the private affairs of the body should be greatly lessened.94
At the other end of the spectrum, it must be acknowledged that there are certain claims against sports bodies which are inappropriate or too inconsequential to warrant the courts' intervention. One context, depending on the circumstances, may be where the decision of the sports body is based upon opinion regarding the appropriate standard of conduct or propriety for its members;95 or if the challenge is primarily concerned with a factual matter.96 Thus a claim is unlikely to be reviewable if the challenge relates to the on-field decisions of referees or umpires applying the operational rules of the game. It is integral to the authority of the referee or umpire, to certainty of results, and to fairness to players that the courts do not interfere.97 In Tracey v Speedway Control Board of New Zealand Inc98 Doogue J considered that where an attack is made in respect of the winner of a race, then 'unless the case is very strong indeed', it would be inappropriate for the court to intervene with such internal decisions. His Honour stated that 'in any sporting event there is a necessity for competitors to accept the decisions made by those presiding over the sporting event'.99
The factual scenario in the infamous 2006 international cricket ball-tampering fiasco provides a useful example. On the fourth day of a test between Pakistan and England the match took a surreal turn when one of the umpires, Darrell Hair, signaled that five penalty runs were to be awarded against Pakistan for ball tampering. Soon after, the players left the pitch for bad light and tea. On the resumption of play the Pakistan team refused to take the field, whereupon for the first time in cricket history, the umpires awarded the match to England. Pakistan later indicated their intention to continue the match, but the umpires stood by their decision. Cricket's world governing body, the International Cricket Council (ICC), subsequently charged Pakistan's captain, Inzamam-ul-Haq, on two counts of breaching the ICC Code for Players Conduct — for bringing the game into disrepute and ball-tampering.100 If, for instance, the ball-tampering charge was legitimately ruled upon by the internal disciplinary tribunal and then challenged in a New Zealand court on the basis of whether and to what degree the ball's condition was altered, it is extremely likely that this would be deemed non-justiciable. To allow this claim would require the court to consider a factual matter which would inexcusably undermine the tribunal's and adjudicator's authority, potentially opening the floodgates for similar actions. This is far better left to the adjudicator or experienced and knowledgeable experts within the domestic tribunal.101
If however the internal disciplinary tribunal came to the conclusion that it was their function to reach their own ab initio and de novo findings of fact as to whether there had been ball tampering, when on application of the ICC Code of Conduct the ball tampering decision by the umpire should only be overturned if it was perverse, in bad faith or the result of the misinterpretation of the laws, then this could be validly challenged in court.102 The challenge does not relate to a matter of fact but whether, at law, the interpretation was correct.
Although amenability to review the decision of a sports body in New Zealand will often not even be an issue under the JAA, when the body does not exercise a quasi-public function or breach the rules of natural justice, the ambit in which the courts will be willing to entertain a challenge is not clear. It is preferable to adopt the more liberal 'Adlam' approach in this respect. A case which is marginally justiciable (regardless of any available contractual claim) should proceed and instead be a factor which is taken into account in determining whether, and to what degree relief is granted. At least this way, the courts will determine whether the governing body has actually acted outside its legal authority.
Comparison — England's Approach
As already mentioned, the law in England has developed in a different direction to effectively provide sports governing bodies with immunity from judicial review. There is much commentary and condemnation of this position,103 but in the absence of an appeal to the House of Lords, or the imposition of a statutory equivalent to the JAA, it is unlikely that this position will change.
The leading case in England, Law v National Greyhound Racing Club (NGRC),104 set the scene for rejecting judicial review challenges. A greyhound trainer was suspended for six months after his dog was found to have been doped. Law brought a private law action claiming that the NGRC breached an implied contractual term, with suspension of his licence made on unreasonable grounds. The NGRC sought to have this action struck out for want of jurisdiction arguing that the claim should have been brought in judicial review. This proposition was unanimously rejected by the Court of Appeal. Lawton LJ considered that 'there was no public element in the jurisdiction itself' even though its exercise 'could have consequences from which the public benefited'.105 The authority to perform judicial or quasi-judicial functions was solely derived from contract.106
In a later case, R v Panel on Take-overs and Mergers; Ex parte Datafin plc,107 the Court of Appeal signalled a shift away from this approach to a more general, functional test, whereby the source of the power was only one of a number of factors to be considered in certain circumstances. Lloyd LJ stated that:
[o]f course the source of the power will often, perhaps usually, be decisive. If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review. If, at the other end of the scale, the source of power is contractual ... then clearly [this is] not subject to judicial review. But in between these extremes there is an area in which it is helpful to look not just at the source of the power but at the nature of the power. If the body in question is exercising public law functions, or if the exercise of its functions have public law consequences,then that may
... be sufficient to bring the body within the reach of judicial review ... The essential distinction ... is between a domestic or private tribunal on the one hand and a body of persons who are under some public duty on theother.108
The traditional view that it is the source of the power which determines the availability of judicial review cannot now be taken as comprehensive authority in England. Datafin suggests that three questions are to be considered when determining whether a claim is justiciable. Firstly, does a contractual relationship exist between the parties? Secondly, is the body of a nature that it ought to be subject to review? And thirdly, is the decision or the act in question of a nature that is affecting the public at large and ought to be susceptible to judicial review?109
This dictum provided the perfect opportunity for the courts to depart from Law. Unfortunately, a series of subsequent Divisional Court cases in the 1990's rejected this proposition.110 Rose J even stated that to do so would be a 'quantum leap'.111 The issue was finally brought before the Court of Appeal again in R v Jockey Club; Ex parte Aga Khan.112 Aga Khan sought to review the decision of the Jockey Club which disqualified his winning horse (pursuant with the Rules of Racing) after a prohibited substance was found in its urine. All three judges dismissed the claim. Although Bingham MR had little hesitation in accepting that the Jockey Club effectively regulated a significant national activity, exercising powers which affected the public and were exercised in the interests of the public,113 the Master of the Rolls held that the Jockey Club was 'not in its origin, its history, its constitution or (least of all) its membership a public body'.114 While the Club's powers could be described as public, it was not governmental — in that it had not 'been woven into any system of governmental control'.115 Bingham MR concluded by recognising, that despite participants effectively having no alternative to contract with the Jockey Club, the Club's power was based upon consensual agreement. This gave rise to effective private rights and made it unnecessary to resort to judicial review.116 To allow the review claim, according to the Court, would have been contrary to the long standing principle in Law.117
The most recent authority on this issue is R (Mullins) v Appeal Board of the Jockey Club.118 The facts were extremely similar to that in Aga Khan so counsel for Mullins submitted that Aga Khan was wrong, or that it ought to be distinguished on several grounds. These being: that there was no contract between the parties; the Jockey Club now purports to exercise its jurisdiction unrestricted to its members; sport occupies a substantial place in society with the decisions of the Jockey Club of greater importance than at the time of the decision in Aga Khan; that there is a substantial body of academic criticism towards the decision in Aga Khan; and that a different decision had been reached in other common law jurisdictions.119 Unsurprisingly, Burnton J rejected all of these arguments and ruled that he was bound by Aga Khan. His Honour stated that even if he wasn't, the Club was not a public body and was not exercising a public function.120 Review was a matter for private law.121
As can be seen from this line of authority, where there is a contract between the parties, judicial review in England will effectively be unobtainable. Justification for disallowing an administrative action is that the required level of governmental involvement and/or linkage to a scheme of statutory regulation cannot be identified.122 Form and procedure therefore rules over substance and function no matter how strikingly akin to the exercise of a statutory power the body is. The additional term 'governmental', which has reformulated the test in Datafin123 is a further complication to the law in England,124 obviously being an alien concept to New Zealand's judicial review jurisprudence. While English courts have gone in the direction of narrowing its public law supervisory jurisdiction post Datafin, New Zealand in stark contrast has widened it. It is submitted that this authority is out of line with the importance that sport now assumes in modern society and the enormous power that sports bodies can wield over individuals and clubs.
It will be of some interest whether the House of Lords would be willing to find otherwise (overruling Aga Khan and possibly Law), or if the courts will distinguish a claim which has no private law remedy available.125 In which case, the court should be prepared to accept the academic criticism rejected by Burnton J, otherwise a claimant would be left in a position without any form of redress. In the meantime though, the law in England is deemed to be solely operating in the private law sphere, around a framework of implying public law principles into a contract. Therefore substantive analysis of public law principles, discussed below, will also have application to sports bodies in England, although, it is yet to be determined whether these differ at all.126
There are broadly three well established heads of judicial review which may be utilised to hold a sports governing body to account.127 Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service128 referred to these as illegality, irrationality and procedural impropriety. There is also an 'innominate' ground of review which may be appropriate when a more flexible approach is called for.129 While these tend to overlap, with decisions often challenged on a number of grounds, it is probably more advantageous to focus on one or two major grounds rather than claim under every possible ground.130
Illegality
A sports governing body must properly instruct itself as to its rules and act lawfully in accordance with them. The court will ascertain, with objective consideration, the ambit of the decision maker's powers and decide whether or not the particular act is permissible. In interpreting the governing body's rules the courts acknowledge that they might have to look at the actual intent, rather than the strict wording of the rules, as they may not always be 'happily drawn'.131 Thus the body's rules should not be interpreted as if they are a statute or even a technical legal document.
Illegality, or ultra vires, contains several subcategories. This includes: an error of law and fact; abuse of discretionary power (acting for improper purposes, having regard to irrelevant considerations and/or failing to take into account relevant matters); and abdication of discretionary power (such as fettering of discretion).
The most obvious instance of illegality is where a sports governing body has made a decision which it does not have the power to make. In order for it to discipline any person or club it must have jurisdiction to do so. This means that firstly, the rules must specify that there is jurisdiction and secondly, there is a relationship between the body and the person or club that allows for the lawful and practical enforcement of that jurisdiction.132 If either limb fails to be established then the decision maker is deemed to have made a substantive jurisdictional error of law. Especially pertinent to sport is the possibility that there is an issue as to which of a number of governing bodies has jurisdiction over a matter. For instance, this may involve the allocation of jurisdiction between a national and international governing body, or allocation between a number of governing bodies on the same level (either where the sport is split133 or because different governing bodies have responsibility for different areas of the sport).134
An error of law, as a ground of review, is much broader than a jurisdictional error though and includes any material error made in the course of the decision making process which affected the decision itself.135 This basis of challenge was demonstrated in Brady v New Zealand Kennel Club Inc136 where Panckhurst J held that a judicial subcommittee's decision to refuse new evidence presented (on the premise that the evidence was not new, but simply had not been adduced at the first hearing) was a reviewable error of law. The subcommittee's decision was thereby quashed and the matter remitted to it for fresh consideration. Similarly in Adlam, Miller J found that the Racing Club had based its decision to transfer a racecourse on two errors of law.137 It had acted ultra vires or in breach of its rules under which the club was incorporated.
The courts will also deem a decision to be illegal when a discretionary power is granted for one purpose and that power is ultimately used for a different purpose. This rule will require the court to seek out the scope of a sports regime. In doing so it is necessary to determine the policy and objects of the power in context of the rules as a whole. For example in Auckland Boxing Association Inc v New Zealand Boxing Association Inc,138 Priestly J held that the New Zealand Boxing Council's power to suspend a boxer, as a punitive and coercive measure, was motivated by improper and impermissible purposes.
Related to this subcategory, is challenging a decision in which the sports body has had regard to irrelevant considerations or failed to have regard to relevant considerations. This ground of review was illustrated in Le Roux v NZRFU139 where a South African rugby player claimed that the NZRFU's disciplinary committee took into account irrelevant considerations and failed to take into account several relevant considerations on imposing a 19 month suspension for ear biting. Eichelbaum CJ appropriately held that the image of the sport and the level of deterrence were relevant factors which the committee was entitled to consider in determination of the penalty.
Another available form of challenge under the head of illegality is if a sports body has fettered its discretion by adopting a fixed, absolute rule, from which it will not depart.140
Irrationality or Wednesbury Unreasonableness
A considerably more difficult ground of judicial review to establish is challenging a decision on the basis that it is unreasonable. This principle was illustrated in the introductory example with the English High Court declining to review the FA's arbitration panel decision.
Fisher J suggested that some non-contractual public law grounds, such as unreasonableness, could undoubtedly be invoked against a voluntary organisation in three specific circumstances: 'where the organisation is publicly owned and its decisions in the public interest could adversely affect the rights and liabilities of private individuals without other forms of redress, where it exercises quasi-public functions, and (perhaps) where its decision could have significant direct impact upon the public'.141 Nevertheless his Honour did recognise that this list could never be closed. As mentioned above, it will be rare that a challenge to a sports body's decision will not come within these circumstances to affect quasi-public functions. The most common forms of challenge are likely to relate to disciplinary, membership, and livelihood matters. Challenging the actual existing rules of a voluntary organisation on the basis that they are unreasonable, will not fit within these limited circumstances though. The reason for this is that the member has voluntarily (at least ostensibly) contracted into the very rule which they now object to.142
Even with the courts willing to consider a claim that the decision maker acted unreasonably, they are extremely reluctant to substitute their opinion for that of an expert decision maker 'chosen for their background in a particular activity'.143 A court will only overturn a decision if it is one which no sports body properly instructing itself as to the facts and the law could have made. Eichelbaum CJ in Le Roux noted that a decision of a domestic tribunal was unreasonable in an administrative law, Wednesbury sense, if it was inconsistent, disproportionate, altogether excessive and out of proportion or so irrational that it went beyond the limits within which a reasonable tribunal could exercise its discretion. 'Whichever expression is used makes little difference. All are aspects, criteria, or different formulations of unreasonableness'.144 In that case, the Court, on taking into account all the relevant factors, held that the penalty imposed was within reasonable limits as it was based on a policy of deterrence towards on-field violence.
There are varying intensities of unreasonableness, application of which depends on the circumstances and the sports rule applied. While it is simply not possible to isolate a standard threshold for the courts interference, except to say that generally this threshold is a 'high one',145 it is submitted that the only way in which a claimant can ultimately be confident of success is if they establish the no-evidence principle. This is where the tribunal has made a finding in the absence of evidence such that the decision is 'so aberrant that it cannot be classified as rational'.146 In the context of a member challenging a tribunal's decision that they 'brought the sport into disrepute', Kosla147 argues that this threshold should be the standard applied by the courts. This is because the rule is so imprecise and its application so much a matter of impression that different decision makers each acting rationally might reach differing conclusions when applying it to the facts of a given case.148 While the no evidence principle is a higher threshold than that advocated in Le Roux, in the context of challenging a decision for 'bringing a sport into disrepute', this must be the correct analysis. To permit a lower threshold could undermine valid decisions by decision makers properly instructing themselves as to the facts.
Procedural Impropriety or Natural Justice
Challenging a decision on the basis that a sports body did not adhere to the principles of natural justice can be a fruitful ground for review.149 Natural justice is simply 'fair play in action'.150 There are two key principles of natural justice which decision makers must observe. Firstly, the parties have the right to be heard (audi alteram partem), and secondly, the decision maker must be disinterested and unbiased (nemo debet esse judex in sua causa). A failure to comply with minimum standards of procedural protection prescribed by either principle may result in a successful challenge.
The starting point for determining the requirements of natural justice is the sports body's rules which apply to the decision maker.151 It is a moot point in New Zealand whether it is possible for these rules to validly exclude the obligations of natural justice. The compelling argument in favour of exclusion is that the member contractually agrees to the rules of the organisation. This approach was favoured by Campbell J in the Australian case McClelland v Burning Palms Surf Life Saving Club152 where it was held that a club's rules, by express words or necessary implication, could exclude natural justice in whole or in part. However, with true consensuality to contract with a sports body often a fiction, it is submitted that the preferable approach is that it is not possible to exclude or lessen these minimum obligations, especially when one's livelihood is affected. The principles of natural justice should operate as a matter of fundamental public policy at common law rather than contract.153 This will prevent sports bodies oppressively determining a matter, whilst adhering to its rules, without adequately consulting the member affected.
The courts acknowledge that the principles of natural justice or fairness vary from case to case and must 'adapt to their context and be approached with a measure of realism and good sense'.154 'A conclusion that the process should be looked at overall matches the desirable aim of affording to bodies exercising jurisdiction over sporting activities as greater latitude as is consistent with fundamental requirements of fairness'.155 Thus a balance needs to be struck between the demands of justice and the requirement that a governing body be given a sufficient degree of autonomy to carry out its tasks efficiently. This will depend on the circumstances of the case; the nature of the inquiry; the rules under which the tribunal is acting; the subject matter that is being dealt with;156 and the severity of any sanction.157 For example, if a decision adversely affects a person's livelihood or reputation then a higher order of natural justice would be expected than if the decision merely affected a person's leisure or honour.158 Simply, the more significant the decision, the higher the standard of disclosure and fair treatment required.159
There are several subsidiary principles which sports governing bodies or internal disciplinary tribunals must adhere to in order to conduct a fair and genuine hearing. This obligation to act fairly is in most situations (especially in professional sport) the same as that owed by a public body. The minimum requirements, described below, are not exhaustive though. Ultimately, if a court deems a member's treatment to be unfair then it will say so.160
Natural justice requires a sports body to notify the accused of the specific formal allegation(s) against them161 and allow a sufficient amount of time to consider these and prepare for the case.162 If membership is in jeopardy, notice must be given of this potential outcome.163 It is fundamental that the accused has knowledge of the case that he or she has to meet so that they are given the opportunity to respond to an allegation that, with adequate notice, they could refute. Inherent in having knowledge of the case, is the duty for the decision maker to disclose all relevant information and evidence. This includes all outside reports and inquiries relied upon.164 In Auckland Boxing Association Inc, Priestly J noted that the inability of the governing body to adhere to the above requirements constituted 'a serious breach of natural justice'.165
A further element of natural justice requires the accused to have an opportunity to convey their case to the decision making body. Within reason, the accused should not be prevented from making points which he, she or it believes to be pertinent to the issue.166
Natural justice is extremely flexible as to the nature and the form of a hearing. An oral hearing is not necessarily required, with a hearing based on written submissions often sufficient. However the preferable and safest option for a sports governing body is to offer or grant a full oral hearing. An oral hearing will be obligatory when fairness necessitates it;167 such as when a person's credibility is at issue or the task requires a degree of fact finding.168 Cooke J suggested that an oral hearing will also be necessary where everything turned on a single charge related to a single incident as opposed to a general pattern of conduct.169
Stemming from conducting an oral hearing is the issue of availability to legal representation and cross-examination of witnesses. Generally natural justice does not impose a right to representation by a lawyer. Yet in Pett v Greyhound Racing Association Ltd,170 Lord Denning MR claimed that there is a general right to legal counsel where a person's reputation or livelihood is in issue. This approach seems to have been adopted in New Zealand where cases of sufficient complexity and importance warrant legal intervention.171 As to a sports body's rule which excludes legal representation, Lord Denning claimed in a later case, that this rule could only be valid if it was interpreted as directory and not imperative, leaving it open for the domestic body to permit legal representation in the exceptional case where justice required it.172 To be prudent, it is advisable for governing bodies to permit a right to legal representation, especially for those decisions which have significant commercial ramifications.
Whether there is a right to call witnesses or to cross-examine the sports governing body's witnesses also depends on the circumstances of the case. In Stewart v Judicial Committee of the Auckland Racing Club (Inc)173 a failure to permit cross-examination was held to be a breach of natural justice whereas in Loe v NZRFU Inc,174 Gallen J rejected a complaint that the NZRFU's witnesses had not been available for cross-examination, as the material would not have been of significance in reaching a verdict. With respect to professional sports, cross-examination should generally be permitted.
Another vexed issue is whether there is an obligation for sports governing bodies (or their tribunals) to give reasons for their decisions. There is no authority in New Zealand of a requirement to give reasons as yet,175 although obiter dicta by the Court of Appeal has indicated the desirability to do so.176 As many sports bodies have an internal right of appeal, then a failure to give reasons may be prejudicial. Or it may lead a court to infer that a decision was arbitrary; that it lacked factual foundation; that insufficient attention was paid to mandatory relevant considerations; or that attention was paid to improper or irrelevant considerations.177 The governing principle to be applied is whether it is fair to provide reasons in the circumstances of the case.178 If reasons are given then it is unlikely that the courts will insist on any excessive formalism in their form and delivery especially where there is no further right of appeal and the decision essentially turns on facts or opinion as to the sports event.179
As sports governing bodies often have internal rights of appeal, it is possible (although there is 'no clear and absolute rule')180 for a defective first instance disciplinary adjudication to be cured by a procedurally flawless appeal hearing. The Privy Council discussed this concept in Calvin v Carr181 where Lord Wilberforce sensibly acknowledged the need for sports bodies to reach decisions speedily and inquisitorially free of the shackles of excessive procedural refinements. Provided that the fundamentals of natural justice (such as notice of charges, the right to be heard and access to adverse evidence) had been observed at first instance, curing any irregularities on appeal is principally possible.182 At the end of the day there must be a fair result reached by a fair procedure.183
The second fundamental principle of natural justice is the rule against bias. Members of a tribunal must enter into a hearing with an open mind and without predetermined views or with bias. The body should be independent of the incident and the people involved, and each member must be able to honestly say that they have given the matter an objective assessment.184 Bias can take the form of actual, apparent or presumptive.185 The authoritative test which will govern any challenge to domestic tribunals is that of apparent bias: whether there is a real danger of bias from the facts.186 Actual bias need not be established. This 'real danger' test will be applied less strictly to administrative authorities, such as sports governing bodies or their tribunals, than to a more judicialised body.187 It is inevitable in the circumstances that an adjudicator of a sporting tribunal will have some degree of knowledge of the matters in dispute. Hence it is not practicable to insist that the threshold of bias be too strict.
If a decision maker is biased they are disqualified from deciding the matter unless they disclose their personal interest and the other parties waive any objection.188 If there is a suspicion of bias then it is sensible to take this action or dismiss one self from the hearing.
Alternatively in New Zealand it is possible, and may be more advantageous, for a member to tactically bring a private law action in contract (or for a restraint of trade)189 challenging a sports governing body's decision. Equally, if a court on application for judicial review held the claim to be non-justiciable, the exercise of the sports body's contractual rights with the member could still be challenged.
On joining a sports body which is an incorporated society in New Zealand, a binding contract is formed between the member and the body.190 This enables the rights arising under the contract (or the rules of the sports body) to be protected by the courts through the issue of private law remedies. A contract is thereby formed when the member complies with what the rules require of new members, such as the payment of subscription.191 At which point members, by virtue of their membership agree to be bound by the rules of the society, including any disciplinary code.192 With respect to unincorporated sports associations, an argument that a contract exists may not appear as compelling, although it is possible to establish a contract between the members themselves (expressly or by conduct) rather than between the body and its members.193
A non-member will not normally be entitled to enforce a society's rules unless the rules are expressly or impliedly incorporated into a contract with the non-member.194 This principle must be correct. However the courts have recognised that certain exceptional circumstances, such as where the subject matter is of substantial public interest, justifies a more relaxed view as to the formation of a contract.195
Akin to a claim of ultra vires in judicial review, a member can take action against a sports governing body for breach of contract if the body acts outside the express or implied scope of its own rules.196 This cause of action seems to be available to members of both incorporated and unincorporated societies.197 The courts in construing the rules of the sports body will apply the same principles as that given to any other legal document. The rules should be fairly construed as a whole, with their intentions derived from a reasonable interpretation of the language used so as to give them reasonable efficacy and a workable construction.198 This logically would seem to be the same interpretation that the courts apply when interpreting the rules under judicial review.199 On a sports body departing from its rules, then unless the departure is not prejudicial to the member, the courts will deem there to be a breach of contract. For example in Bryne v Auckland Irish Society Inc,200 Vautier J held that the rules of the society had been breached by the society failing to give the members notice of the charge or complaint for which they were expelled. The members had not been treated fairly and this non-compliance with the strict terms of the rules was prejudicial to them. Consequently the members were entitled to recover damages for breach of contract.201
An example where tactically a contractual cause of action was brought against an incorporated society, instead of judicial review, was in the well-known case Finnigan. A declaration was sought that the proposed All Blacks tour of South Africa (during the apartheid regime) was invalid and unlawful as it did not conform to the constitutive rules of the Rugby Union which required all decision making to promote, foster, or benefit the game of rugby in New Zealand. An injunction was also sought to restrain the Union from implementing its decision to tour. On application for an interim injunction, the High Court202 held, prima facie, on the very incomplete evidence that an arguable case had been made out that the NZRFU did not act honestly and in good faith (applying the company law test of ultra vires) or reasonably (additionally applying the broader administrative law test) in furthering the Union's objectives.203 They had 'closed their minds to any genuine consideration of ... [the tours] effect on the welfare of rugby'.204 Casey J thereby granted the interim injunction preventing the team from touring until the question of lawfulness could be substantively determined at trial. The consequence of this decision was for the tour to be cancelled with the issue never making it to trial.
The NZRFU could have applied immediately, under s 7 of the JAA,205 to have the actions for declaration and injunction converted into an application for judicial review. But for whatever reason no application was made.206 A member who wishes to challenge a sports body's decision for a declaration or injunction must bear this possibility in mind, for if granted, it will alter the procedure of the hearing and potential accessibility to remedies.
Challenging the Rules Themselves
Challenging a sports governing body for failing to adhere to its rules assumes that the existence of the rules, or the contractual obligation itself, is valid, fair and reasonable. As a governing body has the ability to freely amend its rules which bind all members, then contractually this must be subject to some degree of control.207 Otherwise technically, once one is a member of a governing body, the body could alter its rules in an oppressive manner against that member. There are three limitations to a governing body's power to amend which a member may wish to invoke.208 The key limitation is that no rule can conflict with the sports body's fundamental objects, or the purpose for which the society exists.209 Secondly, for a member to be bound by subsequent amendments to the rules, these must have been contemplated at the time of forming the contract. In general, the rule must be foreseeable.210 And thirdly, any amendment must not be arbitrary and haphazard in nature.211 There is little case law on this point in New Zealand. This either suggests that sports governing bodies are adhering to these principles, or, that this area for challenge is being overlooked by members who are focused on applying the actual rules. The former explanation is more likely.
As described above, the means for challenging a governing body's decision in England is through the mechanism of implying public law principles of illegality, irrationality and procedural impropriety into the contractual relationship between the member and the sports body.212 It would take an ambitious claimant to successfully argue that these principles should be implied into the contractual arrangement in New Zealand due to the availability of judicial review.213 It would also seem somewhat perverse to address these familiar public law issues through the cumbersome mechanism of implied terms in a contract.214 Yet this approach may appear attractive, especially with respect to a breach of procedural fairness, in order for the member to take advantage of private law remedies.215
When analysing the merits of mounting a judicial review challenge in New Zealand, as opposed to an available contractual cause of action,216 the claimant additionally needs to consider the significant procedural and remedial differences.
Judicial review procedures are more appropriate than the private law for those challenges where there are relatively few disputed facts and which necessitate a swift complete determination. In the sports context, there will frequently be some degree of urgency in resolving a dispute. This is why numerous attempts have been made in England to incorporate sports bodies within the public law jurisdiction. The introductory example, regarding relegation from the 2006-2007 Premier League, exemplifies this point. Any possibility of Sheffield United being reinstated into the League practically required the challenge to be upheld by the High Court before the imminent 2007-2008 season commenced.218
Traditionally in New Zealand, judicial review procedures vary in two substantial ways from standard civil procedures to promote 'expeditious' decisions.219 Firstly, evidence is by way of affidavit.220 It will be rare that oral evidence will be permitted. Secondly, regardless of whether judicial review is brought under the JAA or HCR the policy adopted is that it is generally undesirable to cross-examine on the affidavits filed.221 Only in limited circumstances is cross-examination likely to be granted given the courts' emphasis that judicial review is a simple procedure.222 As to the ambit of discovery in judicial review proceedings, Miller J in the High Court resolved an ongoing debate, stating:
I prefer the view that judicial review is a relatively simple, untechnical and prompt procedure, and that Judges are responsible for narrowing the issues and supervising the procedure to ensure that the material placed before the Court is reduced to the necessary minimum. The material must be both relevant to the proceeding and necessary in the circumstances. In many cases, there is no room for the Peruvian Guano 'train of inquiry'test.223
This statement could be seen as a step towards reversing a trend of judicial review being treated similarly to ordinary civil proceeding, with full-scale discovery224 (assumed to be as of right) and wide ranging and often argumentative affidavit evidence.225 Therefore limiting the scope of discovery should also make the process considerably cheaper.
Perhaps more significant for the claimant, is the remedial differences between public and private law claims. All judicial review remedies are entirely discretionary.226 Even if an applicant has made out his or her case the court may decline to grant relief. Cooke J in Stininato stated, that 'discretionary remedies should not be granted lightly'.227 Thus discretion will principally be used as a medium to maintain limits to judicial review. Factors which the court may consider pertinent in deciding whether to exercise discretion include:228 delay in bringing a claim;229 acquiescence or waiver of a right to object to a decision; administrative difficulties; conduct of the plaintiff; the availability of alternative remedies (such as internal rights of appeal which have not been used);230 the inevitability of an outcome (the decision would not have been different had the decision maker acted faultlessly);231 the usefulness of a remedy;232 whether loss or the consequence of the decision is minimal or trivial; the gravity of the error;233 locus standi;234 and, it is submitted, the degree of justiciability. This list is not exhaustive and additional factors may be considered on overall evaluation of the seriousness of the error and circumstances of the case.235 For this reason judicial review could be seen as a riskier option for claimants.
However, judicial review remedies may be more advantageous and have a greater impact on a governing body. Under JAA236 the court may grant any order(s) it considers appropriate, whether or not these were pleaded by the parties, and despite a plaintiff pleading the wrong remedy.237 These could include: a declaration that the decision is invalid or an order (of certiorari) quashing, varying or setting aside the decision;238 an order for the decision maker to reconsider the decision (either generally or in part) in accordance with any direction from the court;239 an injunction;240 and in very rare cases, where the court considers there is no other decision available to the decision maker, it may make an order directing a particular result.
Damages in judicial review are generally unobtainable though.241 So where the claimant's desired form of redress is to obtain compensation for a wrongful decision, then the preferable route would be to challenge in private law.242 If a private law action is brought, whether out of choice or necessity, the ordinary contractual remedies will be available, including injunctions and declaratory relief under the High Courts' inherent jurisdiction or the Declaratory Judgments Act 1908.243
Members are thankfully afforded a comprehensive range of mechanisms to challenge sports governing body's decisions in New Zealand. With significant financial and commercial interests now involved in sport and the impact that a governing body's decisions can have on its members, it is desirable that this is so. The availability of judicial review (in most circumstances) imposes significant boundaries on the ability of a sports body to act as it pleases. This mechanism, combined with the availability of a contractual challenge, will in some circumstances (such as where the body has acted outside its own rules) provide members with a choice of which path to follow. Such a choice will not only be influenced by the strength of claiming under the respective heads but the procedural and remedial differences may tactically necessitate the challenge take a particular form.
In contrast the position for challenging a governing body's decision in England is more limited. It is of some surprise and condemnation that this is the case with the extraordinary financial interests and enormous powers that many sports bodies in England wield. While the majority of challenges which succeed in New Zealand would also in England, through the courts implying the same public law principles into the contract, the claimant in England is in the position of being unable to utilise the advantageous public law procedural and remedial mechanisms. It is also possible that there is a gap in the law where the claimant is deemed to have no contractual relationship with the governing body and the decision does not affect their right to work or the principles of natural justice. This position is simply unsatisfactory and out of line with the modern realities of professional sport.
For the majority of challenges to sports governing body decisions, the issue of whether a claim should voluntarily be brought before a court or alternatively taken to arbitration244 is undemanding. The financial costs of a court proceeding can be prohibitive which for many makes this option impracticable or simply not viable in the context of the interest at stake. In practice the contract between the member and the sports body may not even permit the claimant to have this choice if a clause in the sports rules stipulates that, if there is a dispute or appeal from the internal disciplinary hearing, it must be determined by arbitration.245 For example, virtually all International Sporting Federations belonging to the Olympic Movement require disputes to be settled by the Court of Arbitration for Sport (CAS).246
In 2003 the New Zealand Parliament recognised the attractiveness of arbitration as a means for resolving sports disputes by establishing an independent specialist body, the 'Sports Tribunal of New Zealand' ( the Tribunal).247 The Sport, Fitness and Leisure Ministerial Taskforce identified that there was a 'need to help National Sport Organisations avoid lengthy and costly legal battles and to provide athletes with an affordable forum where they could access quality and consistent decision making for disputes'.248 There are several compelling advantages of using the Tribunal as a means of dispute resolution over traditional litigation. Apart from the relative speed,249 cost,250 and privacy251 in conducting the hearing, the Tribunal offers expertise in which the adjudicator will in all probability appreciate the true sporting context in which the dispute arose.252 This is likely to lead to consistency in decision making with the Tribunal accustomed to dealing with, and having a background of knowledge in 'sports related concepts' which are generally alien to the courts.253 Another potential advantage is that the decision of the Tribunal is final and binding unless the rules of the NSO specifically provide for an appeal to the CAS.254 This can be important to minimise disruption when the dispute impacts on an ongoing competition.
In accordance with Parliament promoting the advantages of arbitration, the Tribunal now has a wider jurisdiction under the new Tribunal Rules (2007) and the Sports Anti-Doping Act 2006 to hear sports related matters not necessarily connected with anti-doping violations. The Tribunal not only has the ability to determine an appeal from a decision of a NSO or the New Zealand Olympic Committee on grounds set out in the rules of that body or on prescribed judicial review grounds (under Part C of the Tribunal's rules)255 but may also, at its discretion, more broadly hear any sports related dispute (under Part D of the Tribunal's rules).256 On hearing a dispute, the Tribunal is not bound by the same strict formalities expected in a court of law, being able to regulate its own procedure,257 with wide powers to receive evidence, appoint counsel and independent experts, and summon witnesses.258 Due to the advantages of arbitration and development in this area of the law, deference to specialist sports tribunals is likely to expand and envelop the majority of sports related disputes between members and governing bodies in the future.
However there are certain circumstances where a more formal court proceeding will be the most appropriate and beneficial route. This could be where an individual athlete is adversely affected by a procedural impropriety or if the matter is of public interest. Additionally, if the claim has such wide-ranging consequences impacting on substantial commercial interests or one's livelihood, a court proceeding may well be preferable. The choice to bring a proceeding before the High Court, as opposed to arbitration, was demonstrated most recently with Surfing Taranaki filing a claim for judicial review against Surfing New Zealand for alleged breach of its rules, after failed attempts to resolve a two year feud between the parties.259 Necessity may also warrant a court proceeding in circumstances where the rules of the governing body do not provide for a dispute to be determined by arbitration and the body refuses to consent to such a course.
High profile court battles and arbitration between athletes and sports governing bodies may not necessarily serve the best long term interests of those parties, nor the sport itself.260 Thus for the sake of completeness it is desirable to briefly analyse whether reform, by way of a Sports Ombudsman, is justifiable and beneficial for the furtherance justice. A Sports Ombudsman, as an extra-judicial method of dispute resolution, is an innovative concept which prima facie could offer valuable protection and benefits. By analogy, this statement is justified through the success of other private law ombudsman schemes in New Zealand, such as the Banking Ombudsman.261 There is no reason why a similar system could not be replicated by New Zealand sports governing bodies, albeit on a smaller scale.
Implementing a Sports Ombudsman with remedial powers on a self-regulating basis could have several key advantages over specialist sports tribunals.262 Firstly, an ombudsman is not confined to strict legal standards but can draw on subjective notions of fairness and good administration to ensure athletes are well protected. Secondly, an ombudsman in performing his or her functions can go beyond a narrow redress of individual grievance function by additionally using the complaint as a vehicle for improving practises in the sports 'industry'.263 Thirdly, unlike arbitration, ombudsman processes are more likely to preserve relationships between governing bodies and members, being based on inquisitorial investigations. And fourthly, when a 'test case' arises it is possible for an ombudsman to transfer the member's complaint to a court, with the governing body meeting the complainant's legal costs.
While an ombudsman would evidently further justice and promote accountability from governing bodies, it is doubtful whether a self-regulatory ombudsman scheme would work within New Zealand. It would be very difficult to persuade governing bodies of the relative speed, cost, informality and privacy benefits of an ombudsman scheme in comparison with the Sports Tribunal of New Zealand, especially considering the small number of claims which are presently brought before the Tribunal264 and the courts. Furthermore, it is very unlikely that sports bodies would subscribe to membership and support the inevitable added cost of financing an ombudsman when many struggle for adequate funding as it is.265 More practical for a governing body is to promote and prescribe in its rules mediation266 as a tool for resolving appropriate disputes before requiring the resort to arbitration, or in extreme cases, litigation. This technique at the least, would encourage the parties to preserve their relationship in endeavouring to reach a mutually agreeable solution.
The ability of an individual, club or other associated member to effectively challenge the decision of a sports governing body is crucial. It is naive to think that sports disputes are, or should be left to the 'field of play'. With sport representing in excess of two and a half per cent of world trade, which continues to grow bigger and bigger every year,267 it is of no surprise that the decisions of sports bodies are increasingly impacting on members livelihoods and substantial commercial interests. Thankfully for members in New Zealand, the legal mechanisms to challenge such decisions and the extra-judicial dispute resolution systems provide sound protection from injustice. Once the whistle has blown, the game is not necessarily over ... but may just be warming up.
[*] Candidate for LLB (Hons); BCom.
[1] Jones v WRFU (6/3/1997) TLR (Ebsworth J); Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546, 559 (Hayne JA).
[2] J Anderson, 'An Accident of History: Why the Decisions of Sports Governing Bodies are not Amendable to Judicial Review' (2006) 35 Common Law World Review 173.
[3] Sports Tribunal of New Zealand, Sports Tribunal of New Zealand: An Information Guide (2007) <http://www.sportstribunal.org.nz/about.html> at 3 July 2007.
[4] Wigan Athletic, Sheffield United, Fulham Football Club and Charlton Athletic. Later, this decision was especially significant for Sheffield United who finished second-to-last on the points table (above Watford) claiming the second relegation position.
[5] Football Economy, Bottom Clubs Threaten to Sue Premiership (2007) The Political Economy of Football <http://www.footballeconomy.com> at 5 May 2007.
[6] BBC, Blades Lose Appeal on Relegation (2007) BBC Sport <http://news.bbc.co.uk/sport2/ hi/football/eng_prem/6252310.stm> at 3 July 2007. As West Ham had been 'deliberately deceitful' the panel even stated that if they had been sitting in judgment originally, they 'would in all probability have reached a different conclusion and deducted points from the club.'
[7] Ibid. The panel did not have the authority to change West Hams punishment; see also Football Economy, Blades Lose Relegation Appeal (2007) The Political Economy of Football <http://www.footballeconomy.com> at 3 July 2007.
[8] Football Economy, Blades May Sue for Compensation (2007) The Political Economy of Football <http://www.footballeconomy.com> at 15 July 2007: 'Sheffield United could argue that each club entered into an agreement to act in good faith with other clubs and that agreement was broken when West Ham admitted breaching the rules.'
[9] The Independent, Clubs Increase Legal Pressure on Hammers (2007) The Independent Sport <http://www.independent.co.uk/sport/football/premier-league/clubs-increase-legal-pressure-on-hammers-447526.html> at 5 May 2007. One of seven main reasons for the disciplinary commission declining to impose a deduction of competitions points on West Ham so late in the season was the 'position that relegation would have on the team's players and fans who were in no way to blame.'
[10] Note that although this paper refers solely to England, the term encompasses England and Wales.
[11] J Black, 'Constitutionalising Self-Regulation' [1996] 59 Modern Law Review 24, 27. '[T]here is no active state involvement, direct or indirect, in promoting or mandating self-regulation. ... [T]he industry ... takes the initiative in the formation and operation of the regulatory system.' The exceptions in New Zealand (NZ) are: bodies governed by the Racing Act 2003 (see below n 18) and Sport and Recreation New Zealand (SPARC) which is facilitated by the Sport and Recreation New Zealand Act 2002.
[12] Ibid.
[13] Hole v Garnsey [1930] AC 472; note the Incorporated Societies Act 1908 (ISA), s 21 and the limitation in the Racing Act 2003, s 30; see also the common law limitations, below n 207-211.
[14] R Verow, C Lawrence & P McCormick, Sports Business: Law Practice and Precedents (2nd ed, 2005) 20.
[16] Ibid 606.
[17] The 'National Sport Organisations' (NSOs) recognised by SPARC are listed on the SPARC website: <http://www.sparc.org.nz/partners-and-programmes/national-sporting-organisations/recognition> The Sports Anti-Doping Act 2006, s 4 defines a NSO as 'a body that represents members involved in a particular type of sporting event or activity in NZ and, if a national organisation does not exist for a sport, includes a local, regional, or other sporting organisation.
[18] Racing Act 2003, s 4(4). The Act applies to 'the three racing codes (NZ Thoroughbred Racing Inc, Harness Racing NZ Inc and the NZ Greyhound Racing Association Inc) and the racing clubs that are members of those codes'.
[19] Finnigan v NZRFU Inc [1985] NZHC 102; [1985] 2 NZLR 159, 179 (Cooke P).
[20] See E Toomey, 'A Taste of the Sporting Future? Salary Caps will they Contain Costs and Maintain Competitive Balance — What Benefits? What Determents?' (2006) Raising the Bar: 16th Annual Australia & New Zealand Sports Law Association Conference, Auckland. Presently few sports in NZ would be classified as fully professional. Rugby Union and League would be. Netball in 2006 would 'probably position itself at the upper end of the amateur scale'; come April 2008, when the new Australasian Tasman Trophy competition begins, Netball will begin its professional reign.
[21] LexisNexis, The Laws of New Zealand: Recreation and Entertainment (2007) also suggests that sports clubs are more frequently incorporated as a business (as a limited liability company). No evidence can be found that this is the position in NZ (unlike in England). There is no equivalent to the ISA in England, although various states in Australia have developed similar legislation: LexisNexis, The Laws of New Zealand: Incorporated Societies (2007).
[22] D Griffith-Jones, Law and the Business of Sport (1997) 75. The contract is usually contained in the associations constitution (assuming it has one) or rules; Clarke v Earl of Dunraven [1896] UKLawRpAC 56; [1897] AC 59.
[23] LexisNexis, The Laws of New Zealand: Recreation and Entertainment (2007); Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358, 370.
[24] ISA, ss 4, 7 and 8.
[25] Tucker v Auckland Racing Club [1956] NZLR 1; Bryne v Auckland Irish Society Inc [1979] 1 NZLR 351; Brady v NZ Kennel Club Inc (Unreported, High Court Christchurch, CP 143/00, Panckhurst J, 6 March 2001), [34].
[26] See a list of the NSOs recognised by SPARC: <http://www.sparc.org.nz/partners-and-programmes/national-sporting-organisations/recognition.html> .
[27] M Stuart (ed), Sports Law Manual (1998) 2.
[28] Finnigan v NZRFU Inc [1985] NZHC 102; [1985] 2 NZLR 159, 177 (Cooke P).
[29] Tucker v Auckland Racing Club [1956] NZLR 1, 15-16.
[30] ISA, s 6(2). It is a moot point whether a sports body is able to exclude minimum requirements of natural justice (see below n 152-153).
[31] For example, on 1 September 2007 the FA introduced new rules regulating football agents. The agents have threatened to sue the FA unless it 'waters these [rules] down': Football Economy, Agents Threaten to Sue FA (2007) The Political Economy of Football <http://www. footballeconomy.com> at 14 October 2007.
[32] This should include rights of appeal or may contain an arbitration clause. These mechanisms will generally need to be followed before appealing to a court (see below n 230 and 245).
[33] Enderby Town Football Club Ltd v Football Association Ltd [1971] Ch 591, 606.
[35] Ibid 558; see also Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546 and Stewart v Judicial Committee of the Auckland Racing Club (Inc) [1992] NZHC 2647; [1992] 3 NZLR 693, 701-702 (Hillyer J).
[36] See generally, A Lewis & J Taylor, Sport: Law and Practice (2003) 89-114.
[37] See, for example, a governing body may fail to follow prescribed procedures: Cropp v Judicial Committee [2007] NZHC 449; [2007] NZAR 465; Bray v NZSDA [2000] NZCA 368; [2001] 2 NZLR 160; Modahl v British Athletics Federation [2001] EWCA Civ 1447; [2002] 1 WLR 1192; Wilander & Novacek v Tobin & Jude [1997] 2 Lloyd's Rep 293. Or the sanction imposed may be an unreasonable restraint of trade: Gasser v Stinson (Unreported, Queens Bench Division, Scott J, 15 June 1988); Robertson v APCC (Unreported, New South Wales, Waddell CJ, 10 December 1992). See also the challenges against the sanction imposed on a trainer of a doped animal: William Mullins v The Board of Appeal of the Jockey Club [2006] LLR 437; Flaherty v National Greyhound Racing Club Ltd [2004] EWHC 2838; R v Disciplinary Committee of the Jockey Club; Ex parte Aga Khan [1992] EWCA Civ 7; [1993] 2 All ER 853; Law v National Greyhound Racing Club Ltd [1983] EWCA Civ 6; [1983] 3 All ER 300.
[38] See, for example, Le Roux v NZRFU [2006] NZAR 424; Loe v NZRFU Inc (Unreported, High Court Wellington, CP 209/93, Gallen J, 10 October 1993); NZ Trotting Conference v Ryan [1989] NZCA 214; [1990] 1 NZLR 143; Fallon v Horseracing Regulatory Authority [2006] EWHC 2030; Jones v WRFU (6/3/1997) TLR (Ebsworth J); Yuill Irvine v Royal Burgess Golfing Society of Edinburgh [2004] ScotCS 49; [2004] SCLR 386; Calvin v Carr [1979] UKPC 1; [1980] AC 574; Davis v Carew-Pole [1956] 2 All ER 524.
[39] See, for example, M Kosla, 'Disciplined for Bringing a Sport into Disrepute — A Framework for Judicial Review' [2001] Melbourne University Law Review 22; Hughes v Western Australia Cricket Association [1986] FCA 357; (1986) 69 ALR 660; R v Disciplinary Committee of the Jockey Club; Ex parte Massingberd-Mundy [1993] 2 All ER 207.
[40] See, for example, Stininato v Auckland Boxing Association (Inc) [1978] 1 NZLR 1; Hall v Victorian Amateur Football Association [1999] VCAT AD 30; Nagle v Feilden [1966] 2 QB 633; McInnes v Onslow-Fane [1978] 1 WLR 1520.
[41] A restraint of trade claim is common. See, for example, Blackler v NZRFL (Inc) [1968] NZLR 547; Kemp v NZRFL Inc [1989] NZHC 53; [1989] 3 NZLR 463; Stininato v Auckland Boxing Association (Inc) [1978] 1 NZLR 1; Hall v Victorian Football League [1982] VicRp 6; [1982] VR 64; Buckley v Tutty [1971] HCA 71; (1971) 125 CLR 353.
[42] See, for example, Yachting NZ Inc v Murdoch SDT/01/04; see also the Rules of the Sports Tribunal of NZ (2007).
[43] A Buti, 'Salary Caps in Professional Team Sports: An Unreasonable Restraint of Trade' (1999) 14 Journal of Contract Law 130.
[44] See, for example, Kemp v NZRFL Inc [1989] NZHC 53; [1989] 3 NZLR 463; Eastham v Newcastle United Football Club Ltd [1964] Ch 413.
[45] See, for example, Harness Racing NZ v Kotzikas [2004] NZCA 325; [2005] NZAR 268.
[46] See, for example, Greig v Insole [1978] 1 WLR 302.
[47] See, for example, Stevenage Borough Football Club v Football League Ltd (1996) 9 Admin LR 109.
[48] See, for example, Otahuhu Rovers Rugby League Inc v Auckland Rugby League (Unreported, High Court Auckland, M 818/93, Williams J, 12 November 1993).
[49] See, for example, Auckland Boxing Association Inc v NZ Boxing Association Inc [2001] NZLR 847; Reel v Holder (for IAAF) [1981] 1 WLR 1226.
[50] This may include decisions relating to: official endorsements; gambling (R v Horserace Betting Levy Board [2003] EWHC 1943); suppliers of sports products (Adidas-Salomon AG v Draper [2006] EWHC 1318); sponsorship; broadcasting (Scottish Football Association Ltd v Commission [1994] ECR II-1039); or arrangements with promoters and agents (R v Jockey Club; Ex parte RAM Racecourses Ltd [1993] 2 All ER 225).
[51] See, for example, Finnigan v NZRFU Inc [1985] NZHC 102; [1985] 2 NZLR 159 where it was necessary to establish locus standi; Ian Wiles v Bothwell Castle Golf Club [2005] ScotCS CSOH_108; [2006] SCLR 108; McDonald v FIFA and SFA [1998] ScotCS 85; [1999] SCLR 59.
[52] See generally, Adlam v Stratford Racing Club Inc [2007] NZAR 544, [80]; Finnigan v NZRFU Inc [1985] NZHC 102; [1985] 2 NZLR 159, 185; Hopper v North Shore Aero Club Inc [2006] NZCA 308; [2007] NZAR 354; note that the principle of judicial restraint should not apply with the same force where a special arbitral tribunal is established or given jurisdiction under the rules of the governing body: Watt v Australian Cycling Federation CAS 96/153, Digest 1986-1998, 340.
[53] (24/7/1986) TLR (Browne-Wilkinson V-C).
[54] P Morris & G Little, 'Challenging Sports Bodies Determinations' (1998) 17 Civil Justice Quarterly 128, 129; Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546, 549 (Tadgell JA).
[55] Adlam v Stratford Racing Club Inc [2007] NZAR 544, [77].
[56] [1985] NZHC 102; [1985] 2 NZLR 159, 179. This related to the issue of locus standi.
[57] (Unreported, High Court Auckland, M 670/93, Hammond J, 13 May 1994).
[58] Such as the New Zealand Bill of Rights Act 1990, Human Rights Act 1993 and the Commerce Act 1986.
[59] J Forbes, Disciplinary Tribunals (2nd ed, 1996) 6.
[60] Le Roux v NZRFU [2006] NZAR 434, [4].
[61] Chief Constable of the North Wales Police v Evans [1982] UKHL 10; [1982] 3 All ER 141, 155 (Lord Brightman); R v Slone [1989] NZHC 406; [1990] 1 NZLR 474, 479 (Hardy Boys J); Pring v Wanganui District Council [1999] NZCA 173; [1999] NZRMA 519 BC9961398, [7] (Blanchard J).
[62] See P Joseph, Constitutional and Administrative Law in New Zealand (3rd ed, 2007) 824-832 for a comprehensive critique of the validity of the appeal/review distinction.
[63] R Cooke, 'The Struggle for Simplicity in Administrative Law' in M Taggart (ed), Judicial Review of Administrative Action in the 1980's (1986) 10.
[64] See, for example, Coleman v Thoroughbred and Classic Car Owners' Club Inc and Motor Sport Association of NZ Inc (Unreported, High Court Auckland, M 670/93, Hammond J, 13 May 1994) where the Court ordered the defendant to allow the plaintiff to compete in the race.
[65] In South Africa, see, for example, Jockey Club of South Africa v Forbes [1992] ZASCA 237; (1993) (1) SA 649. The courts inherent jurisdiction is now specifically provided for in Constitution of the Republic of South Africa 1996, ss 33 and 173; Australia, see recently Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546; Scotland, see recently Crocket v Tantallon Golf Club (2005) SLT 663.
[66] Law v National Greyhound Racing Club [1983] EWCA Civ 6; [1983] 3 All ER 300, 307 (Slade LJ); D Pannick QC, 'Judicial Review of Sports Bodies' (1997) Judicial Review 150.
[67] In NZ this would mean that only SPARC and sports bodies created under the Racing Act 2003 would be subject to judicial review.
[68] P Joseph, 'The Demise of Ultra Vires — Judicial Review in the New Zealand Courts' [2001] Public Law 354 in J Caldwell 'Judicial Review of Sports Bodies in New Zealand' 44 in E Toomey (ed), Keeping the Score: Essays in Law and Sport (2002).
[69] Caldwell, above n 68, 44; Wilson v White [2004] NZCA 191; [2005] 1 NZLR 189; R v Panel on Take-overs and Mergers; Ex parte Datafin plc [1986] EWCA Civ 8; [1987] 1 All ER 564, 583 (see below n 107).
[70] The Judicature Amendment Act 1977 broadened the statutory definition in the JAA.
[71] Adlam v Stratford Racing Club Inc (Unreported, High Court New Plymouth, CIV 2005-443-4, Heath J, 16 February 2005) in Adlam v Stratford Racing Club Inc [2007] NZAR 544, [78]; Hopper v North Shore Aero Club Inc [2006] NZCA 308; [2007] NZAR 354.
[72] Wilson v White [2004] NZCA 191; [2005] 1 NZLR 189, 196 (McGrath J); see also Royal Australasian College of Surgeons v Phipps [1999] 3 NZLR 1, 11 (Henry, Keith and McGechan JJ).
[73] HCR, r 626(1)(d) refers to 'a person exercising power which affects the public interest'.
[74] Due to the unavailability of the broad JAA statutory definitions, caution should be exercised that the common law bar of justiciability may be higher than the statutory bar; Coleman v Thoroughbred and Classic Car Owners' Club Inc and Motor Sport Association of NZ Inc (Unreported, High Court Auckland, M 670/93, Hammond J, 13 May 1994), 14. Even with the JAA 1972 unavailable, an unincorporated association would be subject to the principles of natural justice.
[75] H Aikman QC, 'The Scope of Judicial Review — Scalpel or Chainsaw?' 10 in New Zealand Law Society, Judicial Review (2007).
[76] Sports bodies are usually monopolistic, which can be distinguished from the Aero Club in Hopper v North Shore Aero Club Inc [2006] NZCA 308; [2007] NZAR 354.
[77] Finnigan v NZRFU Inc (No 3) [1985] NZCA 111; [1985] 2 NZLR 190, 200 (Richardson J).
[78] [1978] 1 NZLR 1; cited in Adlam v Stratford Racing Club Inc [2007] NZAR 544, [78].
[80] Ibid.
[81] Stininato v Auckland Boxing Association (Inc) [1978] 1 NZLR 1, 12.
[82] Coleman v Thoroughbred and Classic Car Owners' Club Inc and Motor Sport Association of NZ Inc (Unreported, High Court Auckland, M 670/93, Hammond J, 13 May 1994), 14.
[83] Caldwell, above n 68, 45.
[84] See, for example, Otahuhu Rovers Rugby League Inc v Auckland Rugby League (Unreported, High Court Auckland, M 818/93, Williams J, 12 November 1993) and Tracey v Speedway Control Board of NZ Inc (Unreported, High Court Hamilton, A 179/86, Doogue J, 3 February 1986), where counsel agreed that the powers were 'statutory powers of decision' within s 4, JAA.
[85] [2006] NZCA 308; [2007] NZAR 354, [11] and [12].
[86] Ibid [5], [7] and [11]. The list adopted is from the High Court proceeding.
[87] Ibid [12], citing Peters v Collinge [1993] 2 NZLR 554.
[88] The cases relied upon by the High Court were generally 20-30 years old; in Ngati Kikopiri Maori Komiti Inc Society v Te Runanga O Raukawa Inc (Unreported, High Court Palmerston North, CIV 2005-454-409, MacKenzie J, 22 August 2006) it was noted that judicial review has moved on since the 1970's and 1980's.
[89] [2007] NZAR 544, [79].
[90] This test was applied by Tagdell JA in Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546, 550.
[91] In R v Panel on Take-overs and Mergers; Exparte Guiness plc [1990] 1 QB 146, 156-160 Lord Donaldson suggested a new 'innominate' ground for judicial review which dealt with public decision making in a commercial sphere; Gault J was attracted to this approach in Electoral Commission v Cameron [1997] NZCA 301; [1997] 2 NZLR 421.
[92] [1999] 3 NZLR 1, 12. The Court of Appeal's decision was overturned in part by the Privy Council, but not on the issue of justiciability.
[93] Adlam v Stratford Racing Club Inc [2007] NZAR 544, [81].
[94] Caldwell, above n 68, 49.
[95] Ibid.
[96] Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546 (Tagdell JA); Dilieto v Ealing London Borough Council [2000] QB 381.
[97] Lewis & Taylor, above n 36, 131.
[98] (Unreported, High Court Hamilton, A 179/86, Doogue J, 3 February 1986).
[99] Ibid.
[100] This is a breach of s C para 2 (bringing the game into disrepute) and s CC para 2.9, law 42.3 (changing the condition of the cricket ball): ICC Code of Conduct for Players and Team Officials.
[101] I Fullagar, 'Australian Football League v Carlton Football Club Ltd' [1997] MelbULawRw 26; [1997] 21 Melbourne University Law Review 703; Loe v NZRFU Inc (Unreported, High Court Wellington, CP 209/93, Gallen J, 10 October 1993).
[102] See R Griffiths QC & S Whale, 'Not Cricket' (2006) 156 New Law Journal 1897.
[103] See S Gardiner et al, Sports Law (3rd ed, 2006) 192; Anderson, above n 2; Pannick QC, above n 66; M Beloff QC & T Kerr, 'Why Aga Khan is Wrong' (1996) Judicial Review 30; M Beloff QC, 'Pitch, Pool, Rink, ... Court? Judicial Review in the Sporting World' [1989] Public Law 95.
[104] [1983] EWCA Civ 6; [1983] 3 All ER 300.
[105] Ibid 303 (Lawton LJ) and 307 (Slade LJ).
[106] Ibid 305 (Fox LJ) and 307 (Slade LJ).
[107] [1986] EWCA Civ 8; [1987] 1 All ER 564.
[108] Ibid 583 (emphasis added).
[109] R v Disciplinary Committee of the Jockey Club; Ex parte Massingberd-Mundy [1993] 2 All ER 207; Gardiner et al, above n 103, 185.
[110] R v Football Association of Wales; Ex parte Flint Town United Football Club [1991] COD 44; R v Disciplinary Committee of the Jockey Club; Ex parte Massingberd-Mundy [1993] 2 All ER 207; R v Jockey Club; Ex parte RAM Racecourses Ltd [1993] 2 All ER 225; R v Football Association; Ex parte Football League Ltd [1993] 2 All ER 833.
[111] R v Football Association; Ex parte Football League Ltd [1993] 2 All ER 833, 849.
[112] [1992] EWCA Civ 7; [1993] 2 All ER 853.
[113] Ibid 866. However, Hoffmann LJ (at 873) disagreed and saw the powers to be entirely private in nature due to the existence of a contract.
[114] Ibid 867.
[115] Ibid and at 874 (Hoffmann LJ); the term 'governmental' first appeared in R v Chief Rabbi; Ex parte Wachmann [1993] 2 All ER 249, 256 (Simon Brown LJ); also applied in R v Football Association; Ex parte Football League Ltd [1993] 2 All ER 833, 845 and 849 (Rose J).
[116] R v Jockey Club; Ex parte Aga Khan [1992] EWCA Civ 7; [1993] 2 All ER 853, 867.
[117] Ibid.
[119] Ibid [10]; see Anderson, above n 2, for a detailed discussion of these arguments.
[120] Ibid [45].
[121] In Mullins v McFarlane and the Jockey Club [2006] LLR 437 the decision was challenged in private law.
[122] Anderson, above n 2.
[123] Black, above n 11, 35.
[124] Ibid 43 for criticism of the English approach; Caldwell, above n 68, 47.
[125] R v Jockey Club; Ex parte Aga Khan [1992] EWCA Civ 7; [1993] 2 All ER 853, 867 (Bingham MR) was not prepared to decide, in the absence of a contract between the parties, whether a judicial review action would succeed; R v Disciplinary Committee of the Jockey Club; Ex parte Massingberd-Mundy [1993] 2 All ER 207, 224 (Roch J); R v Jockey Club; Ex parte RAM Racecourses Ltd [1993] 2 All ER 225, 247-248 (Simon Brown J).
[126] In England it is generally accepted that the standard of conduct is the same as that adopted by public bodies: Wilander & Novacek v Tobin & Jude [1997] 2 Lloyd's Rep 296, 300 (Lord Woolf MR); Modahl v British Athletics Federation [2001] EWCA Civ 1447; R (Mullins) v Appeal Board of the Jockey Club [2005] EWHC 2197 (Burnton J). Whether there was a difference was not something that had to be decided; Bradley v The Jockey Club [2005] EWCA Civ 1056; Fallon v Horseracing Regulatory Authority [2006] EWHC 2030, [12].
[127] Tracey v Speedway Control Board of NZ Inc (Unreported, High Court Hamilton, A 179/86, Doogue J, 3 February 1986); Auckland Boxing Association Inc v NZ Boxing Association Inc [2001] NZAR 847; Adlam v Stratford Racing Club Inc [2007] NZAR 544, [83].
[128] [1983] UKHL 6; [1984] 3 All ER 935, 950.
[129] See above n 91. This approach has received little judicial support.
[130] H Aikman QC, 'Grounds of Challenge,' 13 in New Zealand Law Society, Judicial Review (2007).
[131] Linwood Rugby League Football Club v Canterbury Rugby Football League Inc (Unreported, High Court Christchurch, CP 510/88, Tipping J, 9 September 1988), 10.
[132] Lewis & Taylor, above n 36, 49. A contract is the most obvious relationship. See above n 25, for the contractual relationship between a member and an incorporated society. There may also be a pyramid structure of governing bodies which confers jurisdiction (Finnigan v NZRFU Inc [1985] NZHC 102; [1985] 2 NZLR 159, 177).
[133] For example boxing and football.
[134] Lewis & Taylor, above n 36, 49.
[135] Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 1 All ER 208; Peters v Davison [1999] NZCA 376; [1999] 2 NZLR 164, 201.
[136] (Unreported, High Court Christchurch, CP 143/00, Panckhurst J, 6 March 2001); see also Cropp v Judicial Committee [2007] NZHC 449; [2007] NZAR 465.
[137] Adlam v Stratford Racing Club Inc [2007] NZAR 544, [82]-[86].
[138] [2001] NZLR 847, [65]-[74]; see also Coleman v Thoroughbred and Classic Car Owners' Club Inc and Motor Sport Association of NZ Inc (Unreported, High Court Auckland, M 670/93, Hammond J, 13 May 1994), 4 and Adlam v Stratford Racing Club Inc [2007] NZAR 544, [95] and [100] where the committee had acted for an improper purpose in perpetuating control of the club.
[139] [2006] NZAR 434, [6]-[9]; see also Walton v Holland [1963] NZLR 729.
[140] Enderby Town Football Club Ltd v Football Association Ltd [1971] Ch 591, 605 (Lord Denning).
[141] Waitakere City Council v Waitemata Electricity Shareholders Society Inc [1996] 2 NZLR 735, 747 (Fisher J).
[142] Ibid. If the rule was changed after the aggrieved member joined the association then these changes would be covered by a contractual claim rather than by judicial review.
[143] Le Roux v NZRFU [2006] NZAR 434, [21]; this can be compared to the Australian position where in Shepherd v SA Amateur Football League (1987) 44 SASR 579, 585 Cox J claimed that the Wednesbury unreasonableness principles did not apply to voluntary associations.
[144] Ibid; this indicates that disproportionality of a penalty is an available ground for review. It is yet to be determined whether proportionality in public law generally is a separate ground for judicial review: LexisNexis, The Laws of New Zealand: Administrative Law (2007).
[145] Waitakere City Council v Waitemata Electricity Shareholders Society Inc [1996] 2 NZLR 735, 748; the courts may be willing to hear arguments based on other standards of unreasonableness (ie, substantive unfairness) but this is unlikely to be successful.
[146] Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546, 559 (Tadgell JA).
[147] Kosla, above n 39.
[148] Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546, 559 (Tadgell JA).
[149] P Engelman, Commercial Judicial Review (2001), 33 claims that this ground may prove the easiest of the three to establish on the facts but may also prove the most difficult ground on which to persuade the court to grant an effective remedy.
[150] Wiseman v Borneman [1969] 3 All ER 275, 278 (Lord Morris).
[151] See Peters v Collinge [1993] 2 NZLR 554, 567; for example, the NZRU has a detailed code of rules for disciplinary hearings called the 'Black Book'.
[152] [2002] NSWSC 470; (2002) 191 ALR 759, [97]-[102]; also in NZ, with regard to unincorporated associations, Fisher J indicated that natural justice in most situations could be dispensed with by contract: Peters v Collinge [1993] 2 NZLR 554, 566.
[153] See the list of cases which imply natural justice as a matter of public policy in McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470; (2002) 191 ALR 759, [96]. Notably, the English authority per Lord Denning in Enderby Town Football Club Ltd v Football Association Ltd [1971] Ch 591, 606 and Nagle v Feilden [1966] 2 QB 633. And Australian authority in Forbes v New South Wales Trotting Club Ltd [1979] HCA 27; (1979) 143 CLR 242, 275 (Murphy J). In NZ, the early judgment Perry v Fielding Club Inc [1929] NZGazLawRp 81; [1929] NZLR 529 may favour this approach. When livelihoods are affected, Caldwell (above n 68) rightly interpreted the judgment of Richmond P in Stininato v Auckland Boxing Association (Inc) [1978] 1 NZLR 1, to mean that natural justice cannot be excluded.
[154] Modahl v British Athletic Federation Ltd [2001] EWCA Civ 1447; [2002] 1 WLR 1192, 1230 (Mance LJ), citied in Cropp v Judicial Committee (Unreported, High Court Auckland, CIV-2005-404-7040, Baragwanath J, 7 November 2006), [55].
[155] Ibid; see also Loe v NZRFU Inc (Unreported, High Court Wellington, CP 209/93, Gallen J, 10 October 1993), 17.
[156] Russell v Duke of Norfolk [1949] 1 All ER 109, 118 (Tucker LJ).
[157] Peters v Collinge [1993] 2 NZLR 554, 567 (Fisher J). These criterion will indicate what the parties intended or implied in their contract; Auckland Boxing Association Inc v NZ Boxing Association Inc [2001] NZLR 847, 859 (Priestly J); Brady v NZ Kennel Club Inc (Unreported, High Court Christchurch, CP 143/00, Panckhurst J, 6 March 2001), 11; if a member had a legitimate expectation then similarly a high order of natural justice would be expected (see, for example, Coleman v Thoroughbred and Classic Car Owners' Club Inc and Motor Sport Association of NZ Inc (Unreported, High Court Auckland, M 670/93, Hammond J, 13 May 1994).
[158] See Peters v Collinge [1993] 2 NZLR 554, 567 (Fisher J) and Auckland Boxing Association Inc v NZ Boxing Association Inc [2001] NZLR 847, 859 (Priestly J); Currie v Barton (27/3/1987) TLR (Scott J), 25 for a decision in which natural justice was not required as it affected a leisure-based activity.
[159] Ali v Deportation Review Tribunal [1997] NZAR 208, 220.
[160] Lewis & Taylor, above n 36, 150. Note that the burden of proof of any offence must not be placed on the accused to show innocence. Proof is required commensurate to the seriousness of the allegation: Brady v NZ Kennel Club Inc (Unreported, High Court Christchurch, CP 143/00, Panckhurst J, 6 March 2001), 11.
[161] Stininato v Auckland Boxing Association (Inc) [1978] 1 NZLR 1.
[162] Loe v NZRFU Inc (Unreported, High Court Wellington, CP 209/93, Gallen J, 10 October 1993); Auckland Boxing Association Inc v NZ Boxing Association Inc [2001] NZAR 847, 860; Stewart v Judicial Committee of the Auckland Racing Club (Inc) [1992] NZHC 2647; [1992] 3 NZLR 693. A hearing immediately after a race did not afford sufficient time for the case to be considered and a response prepared, but the availability of an appeal saved the process.
[163] Auckland Boxing Association Inc v NZ Boxing Association Inc [2001] NZAR 847, 859. No notice was given that the Council was contemplating suspending membership.
[164] Ibid 860, regardless of whether or not the report or inquiries are confidential; however in Loe v NZRFU Inc (Unreported, High Court Wellington, CP 209/93, Gallen J, 10 October 1993) the Court rejected that disclosure did not necessarily extend to a 'brief' of a key witness before the hearing nor a video of the on-field incident only made available on the morning of the hearing.
[165] Auckland Boxing Association Inc v NZ Boxing Association Inc [2001] NZAR 847, 861.
[166] In Stewart v Judicial Committee of the Auckland Racing Club (Inc) [1992] NZHC 2647; [1992] 3 NZLR 693 there was a failure to consider affidavits; and in Loe v NZRFU Inc (Unreported, High Court Wellington, CP 209/93, Gallen J, 10 October 1993) the Court rejected a complaint that there had been no opportunity to call character evidence.
[167] Pett v Greyhound Racing Association Ltd [1968] 2 All ER 545 (Lord Denning MR); see Caldwell, above n 68, 55 'if refusal of an oral hearing would prejudice the party concerned, then natural justice would probably necessitate an oral hearing'.
[168] Rose v Humbles (Inspector of Taxes) [1972] 1 All ER 314.
[169] Stininato v Auckland Boxing Association (Inc) [1978] 1 NZLR 1, 29.
[170] [1968] 2 All ER 545. Davies LJ disagreed with Lord Denning and suggested that express wording in a body's rules could exclude legal representation; also in Enderby Town Football Club Ltd v Football Association Ltd [1971] Ch 591, Fenton Atkinson and Cairns LJJ thought that such a rule excluding legal representation would be valid.
[171] Brady v NZ Kennel Club Inc (Unreported, High Court Christchurch, CP 143/00, Panckhurst J, 6 March 2001), 18.
[172] Enderby Town Football Club Ltd v Football Association Ltd [1971] Ch 591, 606. Lord Denning advocated that such a rule could be struck down as contrary to public policy; Drew v AG [2001] NZCA 207; [2002] 1 NZLR 58; and see the list of factors to consider as to whether legal representation should be granted in R v Secretary of State for the Home Department; Ex parte Tarrant [1985] 1 QB 251.
[173] [1992] NZHC 2647; [1992] 3 NZLR 693.
[174] (Unreported, High Court Wellington, CP 209/93, Gallen J, 10 October 1993); see also Perry v Fielding Club Inc [1929] NZGazLawRp 81; [1929] NZLR 529.
[175] Chamberlain v Speedway Control Board of NZ Inc (Unreported, High Court New Plymouth, CP 21/92, Master Williams, 9 December 1992).
[176] Lewis v Wilson & Horton Ltd [2000] NZCA 175; [2000] 3 NZLR 546.
[177] LexisNexis, The Laws of New Zealand: Administrative Law (2007) [86].
[178] Ibid citing Fiordland Venison Ltd v Minister of Agriculture and Fisheries [1978] 2 NZLR 341.
[179] Caldwell, above n 68, 56, noting the dicta in Le Roux v NZRFU [2006] NZAR 434 and Naden v Auckland Racing Club (Inc) (Unreported, High Court Auckland, M 72/95, Neazor J, 21 May 1995), 17.
[180] Calvin v Carr [1979] UKPC 1; [1980] AC 574, 592.
[181] Ibid; see also Stewart v Judicial Committee of the Auckland Racing Club (Inc) [1992] NZHC 2647; [1992] 3 NZLR 693.
[182] Morris & Little, above n 54, 138.
[183] Calvin v Carr [1979] UKPC 1; [1980] AC 574, 592-593.
[184] R Fisher, 'The Role and Conduct of Private Sports Tribunals — The Tribunals Perspective' (1993) Seminar Legal Research Foundation 17.
[185] Presumptive bias is where the decision maker has a direct pecuniary interest in the decision, is nominally a party to the hearing, or has a personal non-pecuniary interest through the decision maker's association with a party to the case: R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet (No 2) [1999] UKHL 1; [2000] 1 AC 119.
[186] In Church v Commerce Club of Auckland [2006] NZAR 494, [57]-[60] Venning J, affirming Riverside Casino v Moxon [2001] NZLR 78 rejected counsel's submission that the test should be actual bias rather than apparent bias. The test of bias is construed from the perspective of the reasonably informed observer.
[187] Caldwell, above n 68, 57; it may even be permissible for one to be both a witness and a judge: Chamberlain v Speedway Control Board of NZ Inc (Unreported, High Court New Plymouth, CP 21/92, Master Williams, 9 December 1992).
[188] Auckland Casino Ltd v Casino Control Authority [1994] NZCA 248; [1995] 1 NZLR 142.
[189] See above n 41. No contractual relationship is required (this form of challenge will not be covered in this paper); for further reference see D Oliver, 'Common Values in Public and Private Law and the Public/Private Divide' [1997] Public Law 630.
[190] Tucker v Auckland Racing Club [1956] NZLR 1; Bryne v Auckland Irish Society Inc [1979] 1 NZLR 351; Brady v NZ Kennel Club Inc (Unreported, High Court Christchurch, CP 143/00, Panckhurst J, 6 March 2001), [34]. A contract is not formed between the individual members personally: Henderson v Kane and The Pioneer Club [1924] NZGazLawRp 95; [1924] NZLR 1073, 1075. Cooke J in Finnigan v NZRFU Inc [1985] NZHC 102; [1985] 2 NZLR 159, 177 left open the possibility that fellow members of an incorporated society have a contractual relationship.
[191] M von Dadelszen, Law of Societies in New Zealand: Unincorporated, Incorporated, and Charitable (2000), 75.
[192] Ibid. Tucker v Auckland Racing Club [1956] NZLR 1; alternatively, the player may not be a member, but an express contract is entered into between the governing body and the player, providing jurisdiction.
[193] D Griffith-Jones, Law and the Business of Sport (1997) 75. The contract is usually contained in the associations constitution (assuming it has one) or rules; Clarke v Earl of Dunraven [1896] UKLawRpAC 56; [1897] AC 59.
[194] Tucker v Auckland Racing Club [1956] NZLR 1.
[195] Finnigan v NZRFU Inc [1985] NZHC 102; [1985] 2 NZLR 159, 178-179. The Court considered that eight factors were pertinent to the issue of locus standi, ultimately adopting the more liberal public law standing criteria in favour of the narrower private law criteria; in England it is understandable that the courts have been generous in establishing a contractual nexus between claimants and sports bodies to preserve accountability. See the leading cases Davis v Carew-Pole [1956] 1 WLR 833 and Modahl v British Athletics Federation [2001] EWCA Civ 1447; [2002] 1 WLR 1192. If this was not the case, then potentially with judicial review unavailable, there may be a legal vacume in which an individual would be unable to effectively establish their rights and obligations against sport bodies: Gardiner et al, above n 103. Such an expansive approach is unnecessary in NZ. Note, that the courts may be willing to intervene and provide a declaration, on noncontractual 'public policy' grounds (McInnes v Onslow Fane [1978] 1 WLR 1520).
[196] Waitakere City Council v Waitemata Electricity Shareholders Society Inc [1996] 2 NZLR 735; Turner v Pickering [1976] 1 NZLR 129, 141; it is no longer necessary for property rights to be affected. The law of contract and judicial review has moved on to protect non-proprietary interests (Millar v Smith [1953] NZLR 1049).
[197] Ibid 742 (Fisher J); Peters v Collinge [1993] 2 NZLR 554, 566 (Fisher J).
[198] LexisNexis, The Laws of New Zealand: Incorporated Societies (2007) [27].
[199] See above n 131; Linwood Rugby League Football Club v Canterbury Rugby Football League Inc (Unreported, High Court Christchurch, CP 510/88, Tipping J, 9 September 1988), 10.
[201] Ibid 366. Each member was only entitled to receive NZ$100 as there was no evidence of loss.
[202] Finnigan v NZRFU Inc (No 2) [1985] 2 NZLR 181 (Casey J).
[203] Ibid 185-187. The company law test, applies to all normal situations involving voluntary organisations and incorporated societies. Due to the special nature of this decision, Casey J also considered that the more rigorous public law, ultra vires, test may be applicable which requires council members to act carefully; I Eagles, 'Public Law and Private Corporations' [1986] Cambridge Law Journal 406; for criticism of Casey J's judgment see: D Baragwanath QC, 'The Tour' [1985] New Zealand Law Journal 221, 224-227; it is therefore possible that the test of ultra vires applied to a governing body in reaching a decision under a contractual cause of action may differ in some circumstances from that brought under the mechanism of judicial review. Thus it may be more advantageous for a member to claim under the more rigorous test applied in public law where the rule (or object) applied allows for some degree of interpretation or discretion.
[204] Ibid 185.
[205] JAA, s 7. 'Where proceedings are commenced for a declaration or injunction, or both, whether with or without a claim for other relief, and the exercise, refusal to exercise, or proposed or purported exercise of a statutory power is an issue in the proceedings, the Court on the application of any party to the proceedings may, if it considers it appropriate, direct that the proceedings be treated and disposed of, so far as they relate to that issue, as if they were an application for review.'
[206] M Taggart, 'Rugby, The Anti-apartheid Movement, and Administrative Law' in R Bigwood, Public Interest Litigation: New Zealand Experience in International Perspective (2006) argues that this was a strategy he would have employed. The matter would then, because of the judicial review procedures, probably have been determined before the All Blacks were due to leave for South Africa.
[207] See above n 142. Upon joining a sports body and agreeing to be bound by the rules, the contract includes each members agreement to be bound by any new rules introduced in accordance with the preconceived mechanism for changing the rules: Peters v Collinge [1993] 2 NZLR 554.
[208] See generally Waitakere City Council v Waitemata Electricity Shareholders Society Inc [1996] 2 NZLR 735.
[209] Ibid 743, approving the forceful dictum of Lord Hanworth MR in Doyle v White City Stadium Ltd [1935] 1 KB 110.
[210] Ibid 744, approving Black White & Grey Cabs Ltd v Reid [1980] 1 NZLR 40.
[211] Pharmaceutical Society of Great Britain v Dickson [1968] 2 All ER 686.
[212] Lewis & Taylor, above n 36, 68; Pannick QC, above n 66, 152, noted that while it was possible to strain private law causes of action to cover unfair or arbitrary decisions, this was precisely what the Court of Appeal in Ex parte Datafin said was an erroneous and unsatisfactory approach to adopt.
[213] Transit NZ v Pratt Contractors Ltd [2002] NZCA 391; [2002] 2 NZLR 313, 337-338. The Court of Appeal declined to imply public law principles into a (tender) contract with a private company; in the Australian case Carlton Football Club Ltd v Australian Football League (Unreported, Supreme Court Victoria, Hedigan J, 29 May 1997) at first instance, held that the contract did include implied terms to properly interpret the rules and to make decisions on probative evidence rationally considered; on appeal in Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546, Tadgell JA, Hayne JA and Ashley AJA did not need to consider this point, leaving Hedigan J's dictum open.
[214] Pannick QC, above n 66, 153.
[215] See the Australian case Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546 where this was argued.
[216] It is problematic to raise a concurrent action in both public and private law due to differing procedures. See Waikato Regional Airport Ltd v AG [2003] UKPC 50; [2004] 3 NZLR 1.
[217] Focus is on substantive procedures not interim measures. Although in some circumstances interim relief may be necessary; see JAA, s 8 and HCR, part 7.
[218] See also Coleman v Thoroughbred and Classic Car Owners' Club Inc and Motor Sport Association of NZ Inc (Unreported, High Court Auckland, M 670/93, Hammond J, 13 May 1994). The hearing was on the 13th May for which the motor race was to take place on the 15th and 16th May.
[219] JAA, s 10(1), a judge may hold a conference so that review 'may be determined in a convenient and expeditious manner, and that all matters in dispute may be effectively and completely determined'; HCR, r 628(4).
[220] Adlam v Stratford Racing Club Inc [2007] NZAR 544, [77]; Le Roux v NZRFU [2006] NZAR 434, [3].
[221] Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650; Adlam v Stratford Racing Club Inc [2007] NZAR 544, [77].
[222] BNZ Investments Ltd & Ors v CIR (No 2) (2007) 23 NZTC 21, [11] (Wild J); the exception where cross-examination will be permitted is 'where the interests of justice requires it' (Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650); or where it is 'reasonable necessary' for the court properly to determine the issues (Lalli v AG (Unreported, High Court Auckland, CIV 2006-404-435, Asher J, 27 April 2006)).
[223] Te Runanga o Ngati Awa v AG & Anor (Unreported, High Court Wellington, CIV-2006-485-001025, Miller J, 28 March 2007).
[224] Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650, 658 (Richardson P).
[225] C Gwyn, 'Discovery & Evidence in the Context of Judicial Review,' 97 in New Zealand Law Society, Judicial Review (2007); Wellington International Airport v The Commerce Commission (Unreported, High Court Wellington, CP 151/02, Hammond J, 25 July 2002).
[226] JAA, s 4(3); HCR, part 7; J Beatson 'The Discretionary Nature of Public Law Remedies' [1991] New Zealand Recent Law Review 8; A J Burr Ltd v Blenheim Borough Council [1982] NZLR 1; Martin v Ryan [1992] NZLR 209, 236-238.
[227] Stininato v Auckland Boxing Association (Inc) [1978] 1 NZLR 1, 29.
[228] Joseph, above n 62, 1093-1106; LexisNexis, Sim's Court Practice (NZ): Administrative Law (2007) 4(1), 11-21.
[229] Adlam v Stratford Racing Club Inc [2007] NZAR 544. Despite delay, very serious breaches of the club's rules called for a remedy.
[230] Despite JAA, s 4(1) the courts have held that it is well established that relief will be refused if an alternative remedy seems appropriate: Fraser v Robertson [1991] NZCA 261; [1991] 3 NZLR 257; but if the breach is so serious that it cannot sensibly be cured on domestic appeal (it is flagrantly unfair) or if a pure question of law can be isolated then a failure not to do so will not be fatal: Auckland Boxing Association Inc v NZ Boxing Association Inc [2001] NZAR 847, 864-865 (Priestley J).
[231] Stininato v Auckland Boxing Association (Inc) [1978] 1 NZLR 1, 29-30 and at 15 (Woodhouse J, dissenting).
[232] See Just One Life Ltd v Queenstown Lakes District Council [2004] NZCA 66; [2004] 3 NZLR 226.
[233] Stininato v Auckland Boxing Association (Inc) [1978] 1 NZLR 1.
[234] Joseph, above n 62, 1106. The courts now treat this question of standing as bearing on the discretion to grant relief rather than as a preliminary jurisdictional issue. However standing cannot be determined in isolation from the substantive application. See Finnigan v NZRFU Inc [1985] NZHC 102; [1985] 2 NZLR 159; McClelland v Burning Palms Surf Lifesaving Club [2002] NSWSC 470; (2002) 191 ALR 759, [113].
[235] Finnigan v NZRFU Inc [1985] NZHC 102; [1985] 2 NZLR 159, 187-188.
[236] JAA, ss 6 and 7; HCR, part 7, for remedies available when a claim is brought under the common law.
[237] JAA, s 9(2), (3); HCR, r 626(2)(b); Stininato v Auckland Boxing Association (Inc) [1978] 1 NZLR 1, 15.
[238] JAA, s 4(2).
[239] JAA, s 4(5).
[240] JAA, s 8.
[241] If damages are applied for, a claim is likely to be brought under the HCR, r 628 (as opposed to the JAA where there is conflicting dicta whether damages can be awarded); Stininato v Auckland Boxing Association (Inc) [1978] 1 NZLR 1; Chamberlain v Speedway Control Board of NZ Inc (Unreported, High Court New Plymouth, CP 21/92, Master Williams, 9 December 1992). Note the possibility for 'public law' damages under the New Zealand Bill of Rights Act 1990, ss 3(b) and 27(1), see Ransfield v Radio Network Ltd [2005] 1 NZLR 233.
[242] Byrne v Auckland Irish Society Inc [1979] 1 NZLR 351.
[243] Declaratory Judgments Act 1908, ss 2, 3 and 11. Which may be granted even if there is no contractual link with the governing body (such as possibly a private unincorporated association): Finnigan v NZRFU Inc [1985] NZHC 102; [1985] 2 NZLR 159.
[244] Lewis & Taylor, above n 36, 260. 'Arbitration is the adjudication of disputes by an independent third party or parties.'
[245] Stuart (ed), above n 27; an arbitration clause does not oust the jurisdiction of the courts (Enderby Town Football Club Ltd v Football Association Ltd [1971] Ch 591, 606), but generally must be followed: Sports Tribunal of New Zealand: An Information Guide, above n 3.
[246] Gardiner et al, above n 103, 232, for a comprehensive overview of the CAS; see also <http:// www.tas-cas.org.html> .
[247] The 'Sports Disputes Tribunal of New Zealand' was established by the board of SPARC under s 8(i) Sport and Recreation Act 2002. It has continued under the name 'Sports Tribunal of New Zealand,' by virtue of s 29 Sports Anti-Doping Act 2006 (which came into force on 1 July 2007).
[248] Sports Tribunal of New Zealand: An Information Guide, above n 3.
[249] Rules of the Sports Tribunal of New Zealand (2007), rr 17, 21 and 39. A Tribunal hearing is potentially much faster than even a judicial review hearing. A Tribunal hearing can also be held under urgency: NZ Rugby League Inc v Cavanagh ST/11/07; see also A Gibson, '2007 Rules of the Sports Tribunal of New Zealand (Part 1)' (2007) 72 The Commentator 1, 9-11.
[250] Rules of the Sports Tribunal of New Zealand (2007), rr 18, 28 and 39. A NZ$500 'filing fee' is payable but the Tribunal may, in cases of hardship, waive all or part of this fee. The Tribunal has discretion to award costs (Sports Anti-Doping Act 2006, s 47).
[251] Rules of the Sports Tribunal of New Zealand (2007), r 24, determinations are usually made public though.
[252] Sports Anti-Doping Act 2006, ss 30-34. The Tribunal members must have 'significant understanding, interest or experience in sport.' With 'non-legal' members having at least 10 years experience in sport.
[253] Lewis & Taylor, above n 36, 265. Such 'concepts' may relate to a charge of 'bringing a game into disrepute' or the various unique sporting remedies, such as the docking of points or relegation.
[254] Rules of the Sports Tribunal of New Zealand (2007), r 27(b).
[255] Sports Tribunal of New Zealand: An Information Guide, above n 3, 12; Sports Anti-Doping Act 2006, s 38(b), (c); Rules of the Sports Tribunal of New Zealand (2007), r 38; the grounds of appeal are: denial of natural justice; decision maker acted ultra vires (Wealleans v Basketball NZ SDT/01/07); new evidence became available after the decision; the penalty was excessive or inappropriate; and there are several grounds relating to a failure to be selected for a national team.
[256] Sports Anti-Doping Act 2006, s 38(b). The parties must agree to this in writing.
[257] Sports Anti-Doping Act 2006, s 39(1); Rules of the Sports Tribunal of New Zealand (2007), r 29(a).
[258] Sports Anti-Doping Act 2006, ss 40-45; Rules of the Sports Tribunal of New Zealand (2007), rr 12, 15 and 42.
[259] 'NZ Surfing's Big-Gun Rebels' Row Heads to Court,' Sunday Star Times (Auckland), 6 January 2008.
[260] Gardiner et al, above n 103, 265. Disputes can result in negative publicity, expense and even ineffectual remedies.
[261] A Satyanand, Independent Review of New Zealand Banking Ombudsman Scheme (March, 2006).
[262] P Morris, 'The Role of the Sports Ombudsman in Sporting Disputes: Some Personal Thoughts' (2000) 3(4) Sports Law Bulletin 12 in Gardiner et al, above n 103, 265.
[263] Morris & Little, above n 54, 146.
[264] In 2007 there were 15 published decisions of the Sports Tribunal of New Zealand (in 2006, 22 decisions) with 11 relating to doping offences (2006, 14 decisions): <http://www. sportstribunal.org.nz/decisions.html> . In comparison, Gardiner & Morris argue that a Sports Ombudsman in England is worth perusing (Gardiner et al, above n 103, 267).
[265] Finance would likely take the form of a fixed levy from governing bodies and a set fee for every formal complaint lodged.
[266] See, for example, the CAS which provides a sports mediation service: <http://www.tas-cas.org/guideline> .
[267] I Blackshaw, 'Regulating Sport Globally' (2000) 150 New Law Journal 617; for example, sport related economic activity in England reached a record £15.47 billion in 2005: Australia and NZ Sports Law Association, Sport Worth Over £15 Billion a year to England's Economy (2008) ANZSLA Sports Shorts <http://www.anzsla.com.au/sportslaw/?ArtID=905 & Show.html> at 16 January 2008.
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