Kosla, Martin --- "Disciplined for 'Bringing a Sport into Disrepute' - A Framework for Judicial Review'" [2001] MelbULawRw 22; (2001) 25(3) Melbourne University Law Review 654
Disciplined For ‘Bringing A Sport Into Disrepute’ — A Framework For Judicial Review
MARTIN KOSLA[*]
[Athletes and sports officials are from time to time disciplined by their sports’ governing bodies for ‘bringing the sport into disrepute’. These ‘disrepute clauses’ give rise to concerns not only about their ill-defined and wide-reaching nature but also about their potential for stifling dissent and diversity. Although an aggrieved individual may challenge the decision of a sport’s disciplinary tribunal by way of judicial review, success may be difficult. The courts are generally reluctant to intervene in the internal disputes of voluntary associations and will not review the decisions of tribunals to determine their correctness. Where the defence is that the behaviour did not bring the sport into disrepute, the best that can be done is to invoke the ‘no evidence’ principle and establish that the tribunal made a finding in the absence of evidence such that the decision is ‘so aberrant that it cannot be classed as rational’. This article seeks to construct a framework that will assist the judiciary in determining the kind of conduct ‘which reasonable and honest minds could possibly’ classify as capable of bringing a sport into disrepute. It argues that the key considerations are public exposure and whether the conduct caused injury to the sport, rather than the accused’s personal interests.]
CONTENTS
INTRODUCTION
The governing organisation of a professional sport conducts ‘an entertainment business ... on a large scale’.[1] It is in the organisation’s best interests that the good public image of its sport is maintained. The governing body controls the behaviour of individuals engaged in its sport through various rules, codes and regulations, both to facilitate game play and to protect the integrity of the sport. These measures cover familiar topics such as violence, racial vilification and performance-enhancing drugs. It is not possible for the rules and codes of conduct to expressly provide for all misbehaviour that may have an adverse effect on a sport.[2] For this reason, wide-reaching clauses are employed to catch misconduct that falls outside the scope of specific rules. Various laws and rules that govern the way a sport is played often prohibit an individual from ‘generally behaving in a manner which might bring the game into disrepute’.[3] These laws and rules are supplemented by clauses in the codes of behaviour directed to off-field conduct. These provide, for example, that an individual must not: ‘indulge in conduct detrimental to the game’;[4] ‘behave in any way so as to bring [the sport] into disrepute’;[5] engage in ‘any act prejudicial to the interests of any competition or to the interests of [the] sport generally’;[6] or ‘engage in conduct unbecoming to their status which could bring ... the game ... into disrepute.’[7] These ‘disrepute clauses’ and similar ‘catch-all’ provisions, however, give rise to concerns about their imprecise and wide-ranging character as well as their potential for stifling dissent and diversity. These concerns are amplified when individuals found guilty of ‘bringing the sport into disrepute’ are harshly punished.[8]
An individual disciplined for bringing a sport into disrepute may attempt to challenge the decision by way of judicial review. However, success may be difficult as the courts are generally reluctant to intervene in the internal disputes of private organisations. The aggrieved person will first need to establish the presence of a justiciable issue. Even if the individual satisfies a court that it ought to review the decision of a sporting tribunal, the court ‘will not do so in order to decide whether the tribunal properly appreciated or treated’ the material before it.[9] Where an individual pleads that the conduct in which they engaged did not bring the sport into disrepute, their best defence (in the absence of bias[10]) is to invoke the ‘no evidence’ principle. The accused will need to establish that the tribunal made a finding in the absence of evidence such that the decision is ‘so aberrant that it cannot be classed as rational’.[11] Yet the prospects for successful judicial review may be regarded as thin. The disrepute clause is a criterion which ‘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.’[12] However, closer inspection of the disrepute clause reveals that it does have limitations and boundaries and must, therefore, operate within a framework.
This article seeks to construct a framework for judicial review in the hope that such a framework will assist the judiciary in determining the kind of conduct ‘which reasonable and honest minds could possibly’[13] classify as capable of bringing a sport into disrepute. The article examines how a reasonable tribunal would deal with cases like a goalkeeper performing a Hitler-style salute to the opposing team’s Jewish fans;[14] a boxer biting the ear of his opponent during a title fight;[15] the captain of a national rugby squad using recreational drugs;[16] the Chief Executive Officer of a national soccer league being arrested on charges of fraud and corruption (in his private affairs);[17] or a footballer legally changing his name to Whiskas for the week after signing a lucrative sponsorship deal with a cat food company.[18] The article submits that the key considerations in determining the kind of behaviour ‘which reasonable and honest minds could possibly’[19] classify as capable of bringing a sport into disrepute are public exposure and whether the conduct caused injury to the sport, rather than the accused’s personal (and financial) interests. It argues that misconduct will only be injurious to a sport if it affects the performance of an individual’s public duties or functions in the sport, or if the individual has been put forward as subscribing to a particular standard of behaviour and that standard has been lowered in the eyes of the public.
II NO EVIDENCE ON WHICH TO BASE A CHARGE OF DISREPUTE
The disciplinary tribunal of a sporting organisation cannot conclude that an individual has brought a sport into disrepute without a factual basis upon which its opinion can rest. There must be evidence that the facts alleged exist.[20] If the tribunal makes a finding in the absence of evidence, it commits a fundamental error of law,[21] and the aggrieved individual may challenge the tribunal’s decision by way of judicial review. However, before a court intervenes in the matter, the individual will first need to succeed in crossing the jurisdictional threshold by establishing the presence of a justiciable issue.
A The Jurisdictional Threshold
There is no general law entitlement to automatic judicial review of a private tribunal’s decision on the basis of legal error. For a court to intervene in an internal dispute within a voluntary association, something more than a mere error of law is required. An aggrieved individual will need to establish the existence of a justiciable issue by demonstrating that there has been an interference with a private right that has been adjudged to deserve protection.[22] The courts’ general policy has always been to decline to intervene in the internal affairs of voluntary associations, including tribunals set up by such associations to deal with disciplinary matters.[23] In Cameron v Hogan,[24] the High Court held that the rules of an association do not operate to create an enforceable contractual right between the members of the association. A member of a voluntary association cannot maintain an action founded directly on a claim of a breach of the rules of the association ‘except to enforce or establish some right of a proprietary nature’.[25] The case ‘operates as a general discouragement to members of sporting bodies and social clubs who want to take their internal disputes to the courts.’[26]
Although the doctrine in Cameron v Hogan has been distinguished in some cases,[27] it has not been overruled. As such, it remains a binding authority.[28] However, various ways have been found to avoid its application.[29] In Buckley v Tutty, for example, the High Court held that if a decision adversely affects a person’s livelihood, the aggrieved person can challenge the ruling on the basis that it is an unreasonable restraint of trade, without having to prove the existence of a contractual relationship or property interest.[30] This doctrine is now a regular means of challenging the disciplinary decisions of professional sporting organisations in the courts.[31] For example, a professional footballer who depends on playing football for the whole or a great part of their livelihood is, in the eyes of the law, ‘engaged in trade for the purpose of the doctrine that renders unreasonable restraint of trade illegal’.[32] Accordingly, an individual engaged in professional sport will succeed in crossing the jurisdictional threshold simply on the basis that a tribunal’s decision adversely affects his or her livelihood. A person engaged in amateur sport, however, may have difficulty in establishing the existence of a justiciable issue by relying solely on unreasonable restraint of trade. They may still need to establish interference with a proprietary interest or contractual right in spite of the fact that they are being paid to play, coach or officiate matches.[33]
An aggrieved individual may rely on the fact that the sporting organisation is incorporated. Incorporation has proven to be another method of bypassing the rule in Cameron v Hogan.[34] In some jurisdictions, members of an association incorporated under an Associations Incorporation Act have a contractual right to the enforcement of the rules of the association. These rules constitute the terms of a contract between the incorporated association and its members for the time being.[35] An individual engaged in amateur sport in such a jurisdiction will ordinarily pass the jurisdictional threshold on the basis that the rules of the incorporated sporting body are of a contractual nature. Hence any relief sought by a person in circumstances where he or she has been disciplined not in accordance with the rules of the sporting association will be to enforce the contract.[36] In other jurisdictions, however, a court may still find that the relationship between an amateur sporting association and its members is purely consensual, and that the rules do not intend to confer upon the member a contractual right to the performance of the particular duty upon which he or she insists, notwithstanding that the amateur sporting association is incorporated.[37] An aggrieved individual engaged in professional sport may also seek relief on the basis that he or she is attempting to enforce a contract. For example, the rules of a company limited by guarantee[38] constitute a contract between each member, between the company and every member, and between the company and its officers.[39] Hence a person engaged in professional sport who is disciplined by the league tribunal will generally satisfy the jurisdictional requirement by bringing judicial proceedings based on breach of contract, to which the person, the club and the league are parties.[40] Only when an aggrieved individual has established that the decision of a disciplinary tribunal is inconsistent with his or her proprietary, contractual or employment rights[41] will he or she be entitled to ask a court to intervene and review the decision of the tribunal.
B The ‘No Evidence’ Principle
It is accepted that ‘[t]here is no error of law simply in making a wrong finding of fact.’[42] A court has no jurisdiction to review the decision of a voluntary association’s domestic tribunal for the purpose of examining its correctness.[43] An individual punished by a disciplinary tribunal for bringing a sport into disrepute cannot ask a court to review the decision based on its merits. The individual will need to establish that the tribunal committed an error of law by making a finding in the absence of evidence.[44] The aggrieved person will need to invoke the ‘no evidence’ principle and demonstrate to the court that there was no evidence from which the tribunal could have concluded that the person engaged in conduct likely to bring the sport into disrepute. If the individual establishes that the tribunal made a finding in the absence of evidence, the court may intervene in the matter and declare the decision of the disciplinary tribunal invalid.
1 The Genesis of the Principle
The genesis of the ‘no evidence’ principle is found in the jury test. In considering whether a finding is reasonably open to a disciplinary tribunal, the courts have often asked whether the tribunal’s decision was supported by the ‘kind of evidence, which ... might go to a jury’.[45] In the context of the tort of negligence, before a trial judge can leave the case to the jury, the judge must be satisfied that the plaintiff has tendered evidence which could induce a reasonable person to conclude that the defendant was guilty of the negligence alleged.[46] The case can be taken away from the jury if there is ‘no evidence on which [it] could properly conclude that the plaintiff had made out his case’.[47] The question is ‘not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established.’[48]
The jury test was applied in the context of judicial review in Dickason v Edwards.[49] The High Court acknowledged that the only ground upon which a court could review the decision of a disciplinary committee was if ‘no reasonable man could come to the conclusion that the facts proved amounted to the offence charged under the rules.’[50] If the committee ‘honestly came to the conclusion that the conduct complained of was calculated to bring disgrace on the [society], and that conclusion is neither absurd nor unreasonable, the Court would be loath to interfere.’[51] Likewise, in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, Lord Greene MR stated that intervention is possible only ‘if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it’.[52] Similarly, in Lee v Showmen’s Guild of Great Britain, the Court indicated that if a domestic tribunal’s committee has held that a certain fact ‘is established when there was no evidence on which they could so find, ... the court should interfere’.[53] However, the appropriateness of the jury test in the context of judicial review was criticised in Bowen.[54] Dixon J stated that when dealing with a domestic forum ‘[t]he tests applied to juries’ verdicts ... have no place in the examination of the validity of such a domestic tribunal’s decisions’.[55] Yet the jury test is not the sole determinant for deciding whether there is evidence to support a disciplinary committee’s finding.
2 Subsequent Tests and Expressions
The courts have used many different expressions to describe situations where there has been an absence of evidence. At one end of the spectrum are expressions more easily satisfied. Here, courts have suggested that findings are reviewable on the ground that they could not reasonably be made on the evidence or reasonably drawn from the primary facts;[56] that judicial intervention is required when a decision is not ‘based upon some material that tends logically to show the existence of facts consistent with the finding’;[57] or that judicial review of findings of fact is appropriate when there is ‘no sufficient evidence’.[58] At the other end of the spectrum, courts have stated that ‘a decision may be attacked by judicial review’ only if it ‘is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it’.[59] These decisions have been described as ones that ‘jump off the page at you’.[60] Some courts have indicated that a court exercising judicial review should leave a finding of fact to the body appointed for that purpose except where the body has acted ‘perversely’.[61] Other courts will review a finding of fact ‘on the ground that there is no probative evidence to support it’[62] or if it is made ‘without a basis in evidence having rational probative force’.[63]
It is arguable that the various expressions used to describe instances where there has been a finding in the absence of evidence are the same in scope and may be used interchangeably. Indeed, some courts have acknowledged that, in the context of judicial review, ‘“perversely” signifies acting without any probative evidence’[64] and ‘irrationality’ means ‘what can by now be succinctly referred to as “Wednesbury unreasonableness”’.[65] Moreover, for a decision to be based ‘upon evidence that has some probative value’, it ‘must be based upon some material that tends logically to show the existence of facts consistent with the finding’.[66] These courts doubt whether ‘no sufficient evidence’ conveys any more than ‘no probative evidence’.[67] However, it is not certain whether the different tests and expressions are in fact the same in scope. Commentators have observed that intervention ‘for lack of “reasonable” evidence is clearly broader ... than a power to intervene where there is no rational basis’[68] and that a formula which provides that judicial intervention is warranted when ‘the facts were not reasonably capable of supporting the finding’ is almost certainly too wide.[69] Some courts have also indicated that showing the absence of evidence from which a decision-maker could reasonably be satisfied that a particular matter was established is a lesser burden than that of showing the absence of evidence to support a decision.[70] The scope of the ‘no evidence’ principle, however, must be examined in light of the recent observations of the Court of Appeal of the Supreme Court of Victoria in Williams.[71]
3 Williams — The Scope of the Principle
The issue before the Court in Williams was whether there was evidence from which the AFL Tribunal could conclude that Greg Williams of the Carlton Football Club had committed the offence of ‘unduly interfering with an umpire by pushing him away while remonstrating with an opposing player after the conclusion of a game’ with the Essendon Football Club.[72] Hayne JA acknowledged that a court can apply a general principle of law that enforcement of a decision of a domestic tribunal will be restrained if that decision is ‘absurd’ or ‘unreasonable’;[73] ‘contrary to “fundamental principles of common justice”’;[74] one that ‘no reasonable man could come to’;[75] one ‘at which no reasonable man could honestly arrive’;[76] one for which there is ‘no evidence’;[77] or one that is affected by ‘Wednesbury unreasonableness’.[78] However, given that it could not be said ‘that there was no evidence from which the tribunal could find that Williams had breached’ the rule,[79] Hayne JA did not need to ‘choose between these various expressions.’[80]
In dissent, Ashley AJA noted that there had been much formulation ‘by both sides of the content of what may be described, for sake of simplicity if not complete accuracy, as the “no evidence” principle’.[81] He held that the ‘no evidence’ principle goes at least this far: that a court may intervene if there is no evidence which supports a tribunal’s decision, or if a decision may properly be described as being perverse, irrational, unreasonable, not based on material having rational probative force, or one at which no reasonable person could (honestly) arrive.[82] Ashley AJA acknowledged that there was room for overlap between the various descriptions but it was undesirable to attempt to refine them further.[83] He observed that it was not debated in argument whether the ‘no evidence’ principle falls to be considered in a vacuum ‘or whether it is affected by the consideration that the decision-maker must be satisfied to a particular standard that facts have been proved.’[84] However, Ashley AJA concluded that this did not need to be decided as it was clear that ‘there was no material before the tribunal which permitted it to make the decision which it did.’[85]
The judgment of Tadgell JA provides some potentially useful guidance as to which test or expression is to be preferred. He first clarified the meaning of Dixon J’s statement in Bowen[86] concerning the inappropriateness of the jury test in determining the validity of a tribunal’s decision. Tadgell JA indicated that what Dixon J meant was that the material on which a tribunal is entitled to make a decision is not confined to evidence of the kind that would be capable of consideration by a jury in a court of law.[87] For example, ‘[a] domestic tribunal may in general use information available to it which it is prepared to accept, whether or not it is hearsay or sworn to be true.’[88] The jury test does not ‘point necessarily to a jury as the touchstone’ but indicates ‘that the courts may interfere with a decision of a domestic tribunal if no honest and reasonable tribunal could have made the decision.’[89] Tadgell JA subsequently reiterated that a court will not intervene in an internal dispute simply on the basis that a disciplinary tribunal has reached the wrong decision. The distinction is between recognising ‘that there was no information available to the tribunal on which reasonable and honest minds could possibly reach the conclusion reached’ and ‘reviewing the material in order to decide whether the tribunal properly appreciated or treated it’ — for a reviewing judicial body, the first approach is permissible but the second is not.[90] Importantly for present purposes, Tadgell JA then stated that a criterion of misconduct (such as unduly interfering with an umpire or bringing a sport into disrepute) may exist which
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. When a domestic tribunal is given the task of applying such a criterion to the facts that it finds, a court is entitled to substitute its own opinion for that of the tribunal only if the tribunal’s decision is so aberrant that it cannot be classed as rational.[91]
On the facts, Tadgell JA concurred with Hayne JA that, upon a rational interpretation of the rule, there was evidence upon which the AFL Tribunal could be satisfied that Williams infringed it.[92]
It is not clear whether Tadgell JA’s ‘imprecise criterion’ test ought to apply only when a tribunal is faced with applying an imprecise criterion, with the jury test to apply in all other circumstances,[93] or whether the imprecise criterion test is one of general application. In Old Melburnians,[94] the imprecise criterion test was applied liberally. The Court examined the decision of the Victorian Amateur Football Association to revoke a player’s permit to play amateur football after it became known that the footballer had previously played for gain. Byrne J held that he would not be ‘satisfied that the conclusion on this point ... is “so aberrant that it cannot be classified as rational”.’[95] He indicated that the Association was satisfied that the infringement of amateur status had occurred, and had done so ‘on material which is capable of supporting that determination.’[96] Byrne J’s application of the imprecise criterion test to the circumstances of the case implies that the test ought to apply to all situations. Yet the fact that the test is prefaced by reference to a criterion ‘so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case’[97] suggests that the test ought only be applied in circumstances where the interpretation and application of an imprecise criterion is in question. What seems to be certain, however, is that an individual disciplined by a tribunal for bringing a sport into disrepute is faced with an imprecise criterion and may need to rely on Tadgell JA’s formulation.[98]
III FRAMEWORK FOR DETERMINING DISREPUTABLE CONDUCT
Notwithstanding its imprecise nature, closer examination of the case law reveals that the disrepute clause does have boundaries and limits. In Mitchell v Australian Football League,[99] the plaintiff was reported for the first time in his career following a wrestling incident with an opposing player during a professional football match between Sydney and Essendon on 31 May 1992. At the AFL Tribunal hearing of 3 June 1992, Mitchell was found not guilty. On 9 June 1992, he was charged with ‘conduct unbecoming’ or conduct ‘likely to bring the game of football into disrepute’ in respect of the same incident. The following day, Mitchell was found guilty of the charge and suspended for two matches. He sought relief in the Supreme Court of Victoria. Tadgell J held that striking alone did not amount to ‘conduct unbecoming’ or likely to bring the sport into disrepute and found for Mitchell.[100] This finding implies that conduct in which an individual engages must be of a particular character for it to bring a sport into disrepute; the disrepute clause must operate within a framework. In Chappell v TCN Channel Nine Pty Ltd,[101] the Court observed that the obligation on individuals not to indulge in conduct detrimental to the game is ‘clearly limited by its general context to conduct which is of that quality because it causes injury to the game by being known to the public’.[102] This suggests that the key considerations that will need to be examined by a ‘reasonable and honest’ tribunal before it can conclude that the accused individual has brought a sport into disrepute are public exposure and whether the conduct caused injury to the sport, rather than merely the accused’s personal (and financial) interests.
A Public Exposure
The public exposure requirement will be met when an accused’s misconduct becomes common or public knowledge. For this to occur, information concerning the misconduct must enter the public domain. In determining the meaning of the term ‘public domain’, the law of confidence may be of assistance. Here, information will ‘be in the public domain either because it is so obvious or accessible that it would be generally known ... or because it has, in fact, become known to a sufficient number of people for it to be no longer a secret’.[103] The former is simpler than the latter; the information is either in the public domain or it is not.[104] In Johns v Australian Securities Commission, the High Court held that:
When the proceedings of a court, tribunal or commission created by statute ... are open to the public and a fair report ... can lawfully be published generally, it is not possible to regard information published in those proceedings as outside the public domain.[105]
The public domain, however, ‘is not measured by the extent of media reporting.’[106] Hence, the public exposure element will be satisfied when information concerning an accused individual’s conduct is reported by the media, notwithstanding that the reporting is not extensive.
In the law of confidence, the courts also ‘refer to information “entering the public domain” when it has received such publicity amongst those in the relevant groups in the community to effectively destroy the usefulness of its secrecy to its “owner”’.[107] In trade secret cases, the public domain ‘is not the world at large but the trade in which the plaintiff competes.’[108] Thus ‘[i]nformation may be categorized as public knowledge though only notorious in a particular industry or profession’.[109] Here, information will be in the public domain when it can be learnt without ‘a great deal of labour and calculation’.[110] By analogy, the public domain with respect to disrepute clauses in sport is not the world at large but the sport in which the accused engages. Information concerning the accused’s conduct which is not published in the media, but which can be learnt without a great deal of labour by persons engaged in the sport or a relevant part of it, will be in the public domain and satisfy the public exposure element.
It should be noted that disrepute clauses and similar ‘catch-all’ provisions will generally cover misconduct on the playing field or in its vicinity, as well as misbehaviour in private. The Court in Chappell explained that a clause covering ‘conduct detrimental to the game’ is not expressly limited to public behaviour.[111] Likewise, in Marten v Royal College of Veterinary Surgeons’ Disciplinary Committee, it was held that misconduct in a person’s private affairs may be relevant to his or her fitness to practise a profession.[112] However, the public exposure requirement will be more easily satisfied in relation to misconduct on the field of play or in its vicinity. Misconduct on the field of play automatically becomes known to those engaged in the sport as there are other players, officials and team staff to witness it. When misbehaviour is witnessed by spectators and/or reported in the media, it becomes public knowledge. Therefore, wild scenes of violence in a rugby league match,[113] scuffles on the field of play,[114] player involvement in spectator and security guard confrontations,[115] and violent incidents during a national league soccer match[116] automatically enter the public domain and satisfy the first limb of the test. Incidents in the vicinity of the field of play, such as a female referee taking a shower with male players following a soccer match in southwest England,[117] or a team manager being involved in a ‘tunnel bust-up’ with an official during a Premier League match,[118] will also satisfy the public exposure requirement, provided that they are reported by the media or become ‘notorious’ in the sport in which the accused individual engages.
Misconduct in the private life of an individual does not automatically satisfy the public exposure element. For instance, it is not possible to convict a cricket player of bringing cricket into disrepute for accepting money from a bookmaker for pitch and weather conditions if the cricketer is secretly disciplined and the misconduct is known only to the governing body of cricket at the time of disciplinary action.[119] ‘[I]nformation which is given to a limited group on a confidential basis will not be held to have entered the public domain so long as that group maintains the confidentiality and the group is small enough.’[120] Private misconduct must make its way into the public domain for the first limb of the test to be satisfied. This will occur only if the misbehaviour becomes ‘notorious’ and can be learnt without a great deal of labour by persons engaged in the sport or if it becomes common knowledge by being reported in the media. If the public exposure element is not met with respect to private misbehaviour, a court should be prepared to interfere with the decision of a tribunal to discipline an individual for bringing a sport into disrepute.
B Conduct Injurious to the Sport
The second requirement to be met before a ‘reasonable and honest’ tribunal can conclude that an individual has brought a sport into disrepute is that the individual’s conduct cause injury to the sport. The misbehaviour must negatively affect the sport and not merely an accused’s personal (and financial) interests. In determining whether conduct is injurious to a sport, the test concerning the defence of justification in relation to defamation may be of assistance. In a case of defamation in New South Wales, it is a defence to any imputation found by the jury to have been conveyed by the matter complained of that ‘the imputation is a matter of substantial truth’ and that it ‘relates to a matter of public interest’.[121] This requirement was considered in Chappell.[122] Hunt J held that the behaviour or character of a public figure can only become a matter of public interest in one of two ways — either because it has some bearing upon the person’s capacity to perform their public duties or because the person makes the activity a matter of public interest themselves.[123] A person will have made an activity a matter of public interest themselves if the person has deliberately put themselves forward to the public as subscribing to a particular standard.[124] By analogy, an individual’s behaviour may be classified as injurious to the sport if: (1) it has some negative bearing upon the individual’s capacity to perform their public duties or functions in the sport; or (2) the individual has been put forward to the public as subscribing to a particular standard, and that standard has been lowered in the eyes of the public.
1 Performance of Public Duties
An individual’s conduct may cause injury to a sport if the behaviour adversely affects the performance of the individual’s public obligations or functions in that sport. Such duties encompass on-field play, participation in pre-match and post-match activities,[125] travel to and from matches, giving media interviews, attending official functions, and taking part in sponsor days. Misconduct may occur during any of these activities or during an individual’s time in private. It may also be criminal or non-criminal in nature.
(a) On-Field Conduct
Behaviour which takes place on the playing field or in its vicinity may be injurious to a sport if it has some negative bearing upon a person’s capacity to perform their public duties in the sport. The extent to which an individual’s misconduct may affect their capability to fulfil their sporting responsibilities is a matter of degree and circumstance. An isolated incident (such as striking) may not be sufficient to cause injury to a sport. However, an individual’s conduct may have adverse consequences on their ability to perform in a sport if that conduct, for instance, leads to a refusal by the individual’s peers to take further part in the competition; if it causes friction and division amongst those engaged in the sport; or if the conduct is so outrageous or shocking that the sport is subjected to public ridicule.
(i) Behaviour Leading to a Refusal by Others to Engage in a Sport
A person’s on-field behaviour may negatively affect the person’s capability to perform their sporting duties if that conduct leads to a refusal by those already engaged in a sport to take further part in the competition. For example, the Hepburn Football Club was involved in an ‘all-in brawl’ before a Central Highlands Football League match against Dunnstown. The fight involved players, officials and spectators and resulted in three people being taken to hospital and two more requiring surgery for facial fractures. Three individuals were later charged with recklessly causing injury.[126] The club was found guilty of bringing the game into disrepute. Undeniably, the actions of the Hepburn Football Club drastically affected the club’s ability to perform its public duties in the sport of football after its conduct became ‘notorious’ in the League. The local umpires’ association refused to allow its members to officiate in matches involving the club and consequently the club missed three matches. Other clubs later forfeited their fixtures against Hepburn for fear of similar conduct.[127] Accordingly, misconduct such as ‘making foul and abusive remarks to [a] referee’,[128] causing or taking part in a melee,[129] ‘attempting to intimidate an umpire’,[130] acts of violence during a match[131] or confronting a referee[132] (all deemed by tribunals to have brought a sport into disrepute) may be injurious to a sport if that misconduct leads to a refusal by those engaged in the sport to take further part in it. When this occurs, the image that is projected to the public is that there is something seriously wrong with the sport. Such consequences clearly have a negative effect on the reputation and public image of the sport and a court should be reluctant to interfere with the decision of a tribunal to discipline an individual for bringing a sport into disrepute under these circumstances.
(ii) Conduct Causing Excessive Friction and Division in a Competition
Misconduct on the field of play may also have a negative bearing upon an individual’s ability to perform their public responsibilities or functions in a sport if the misbehaviour causes excessive friction and division (above the ordinary levels of competitiveness and rivalry) amongst those engaged in the sport and their supporters. Disciplinary tribunals tend to deem misbehaviour like ‘inciting crowd violence’,[133] engaging in an altercation with a spectator,[134] threatening and abusing an opponent for a substantial period of time,[135] being involved in a confrontation between spectators and security guards,[136] or ‘failing to ensure the orderl[iness] of the crowd’[137] as capable of bringing a sport into disrepute. This is understandable (and ‘reasonable’) as such behaviour may adversely affect the performance of an individual’s public duties in the sport in that it may cause undue hostility and division amongst clubs and spectators. This may be obvious when additional security or anti-harassment measures are employed to protect an individual from violence and hooliganism. For instance, Perth Glory striker Bobby Despotovski was convicted by the National Soccer League of bringing the game into disrepute by making a ‘Serbian salute’ at the opposing team’s Croatian supporters during a semi-final against the Melbourne Knights. The gesture was deemed offensive to persons of Croatian descent. Following the conclusion of the match, the Knights’ Croatian fans attacked the Perth players as they attempted to board the team bus.[138] Despotovski’s actions caused (above ordinary) friction and division between the two clubs and their supporters.[139] As a result, when Despotovski attempts to perform his public function of playing a match against Perth Glory in the future, there may be a need for additional security to be in force to protect him from any harassment or vengeful conduct by the Knights’ supporters. Indeed, the Soccer Australia tribunal ordered that the Melbourne Knights play their future home games against Perth Glory at a venue outside the Melbourne metropolitan area.[140] The image projected in this case is that soccer is ethnically divided and marked with hooliganism, which clearly has a harmful effect on the integrity and public perception of the sport. A conclusion that Despotovski has brought the sport of soccer into disrepute is not ‘so aberrant that it cannot be classed as rational’;[141] a court should be cautious to intervene in such a matter.
(iii) Outrageous or Shocking Behaviour
An individual’s on-field behaviour may also negatively affect the performance of sporting duties if that behaviour is so outrageous or shocking that the sport is subjected to public ridicule. However, it is not enough for the individual to be merely publicly ridiculed for misconduct. It is the sport that must be subjected to extreme public ridicule. For example, Wests Tigers winger John Hopoate was found guilty by the National Rugby League judiciary of ‘conduct ... contrary to the true spirit of the game’ and suspended for 12 matches for placing his finger into the anuses of three opposing footballers.[142] Not only was Hopoate publicly ridiculed,[143] but so too was the sport of rugby league. The media alleged that the misconduct had ‘taken the endangered code to new lows’[144] and questioned whether Hopoate’s ‘disgraceful’ action reflected the values of the National Rugby League.[145] Misconduct such as ‘biting the ear’ of the captain of the opposing rugby union team[146] or biting an opponent during a middleweight title fight[147] may therefore have an adverse bearing upon a person’s ability to perform their public responsibilities or functions in the sport if the sport is subsequently subjected to ridicule by the public. Such conduct is injurious to a sport as the image projected to the public is that this type of behaviour is common in the sport; a court should be reluctant to interfere with a disciplinary tribunal’s decision to discipline an individual for bringing the sport into disrepute. Alternatively, shocking and deplorable behaviour may have a negative effect on the performance of the person’s sporting duties as those engaged in the sport may refuse to take further part in the sport if the individual is present.
(b) Off-Field Conduct
An individual’s conduct in private and away from the playing field may also be injurious to a sport if the behaviour has a negative bearing upon the individual’s capacity to perform their public responsibilities or functions in the sport.
(i) Private Behaviour and Public Responsibility
It has been suggested that a public figure’s misbehaviour in private will have a bearing on their capacity to perform public duties. In Chappell, the defendant, in arguing that the imputation in question related to a matter of public interest, submitted that the ‘alleged betrayal of the plaintiff’s wife by his adultery and the unusual nature of his alleged sexual activities ... demonstrated a propensity on the part of the plaintiff to indulge in unworthy conduct’[148] in his duties as Commissioner of the Australian Cricket Board. In determining whether the plaintiff’s private activities were a matter of legitimate public concern in relation to the plaintiff’s role as a Commissioner, Hunt J indicated that there was no necessary link between adultery or sexual activities of an unusual nature and a person’s competence to administer the sport of cricket.[149] Thus it cannot be said that all off-field conduct deemed inappropriate by the governing body of a sport will automatically affect the performance of a person’s public duties in the sport.
(ii) Private Behaviour of a Criminal Nature
A person’s conduct off the playing field may, however, have a negative bearing upon the person’s capacity to perform their public responsibilities or functions in the sport if that conduct is criminal in nature. Disciplinary committees tend to regard private conduct of a criminal character as conduct likely to bring a sport into disrepute. For example, in late 1999, the South African Premier Soccer League suspended its Chief Executive Officer for bringing the League into disrepute after his arrest on charges of fraud and corruption concerning a private affair that had ‘nothing to do with football’.[150] Similarly, rugby league ‘wing sensation’ Noa Nadruku had his Canberra Raiders’ contract terminated in 1997 for bringing the club into disrepute after he was controversially acquitted of assaulting two women because he was too drunk to know what he was doing.[151] When attempting to determine whether such a decision is ‘reasonable’, it must be remembered that criminal conduct does not necessarily have to impede an individual’s function or ability to play or manage a sport. It is sufficient that the conduct adversely affects the performance of the individual’s public duties in the sport. For example, professional football players are obliged to attend public promotional events and functions such as player family days, autograph sessions and football clinics.[152] If a footballer risks public ridicule or rejection at such functions and events, his criminal behaviour will have a negative bearing on his capacity to perform his sporting responsibilities and functions. A court should therefore be cautious to interfere with a decision of a tribunal in circumstances where the behaviour of the accused is criminal in nature.
(iii) Dissent and Unfavourable Comment
A person’s private conduct may also have an adverse bearing upon the person’s capacity to perform their public duties or functions in the sport if that conduct is in the form of dissent. It is not uncommon for sports’ governing bodies to invoke the disrepute clause to deter any unfavourable comment which might otherwise fall outside the scope of the rules and codes of behaviour. However, a balance must be struck between a sport’s right to reputation and an individual’s freedom of speech. Just because an individual is a member of a private body, and must therefore obey its various rules and laws, does not necessarily mean that the individual must sacrifice his or her right to freedom of speech. A court clearly should not be reluctant to interfere with the decision of a tribunal to discipline an individual if the individual has disclosed illegal dealings or criminal acts in a sport or a breach of a sport’s own rules by persons engaged in the sport. In such cases, the individual should not be punished for upholding the law and a court should not be reluctant to interfere with the decision of a disciplinary tribunal to discipline an individual for bringing a sport into disrepute.
A court may, however, need to be cautious to intervene in circumstances where an accused was disciplined for revealing factual matters. On the one hand, revealing that which is factual may seem innocuous and incapable of bringing a sport into disrepute. On the other hand, it may not be in a sport’s best interest to have facts which may be damaging to the sport disclosed or publicised. Here, it is the action of disclosure which brings a sport into disrepute. This kind of distinction emerges when considering the law of defamation in Victoria and in New South Wales. In Victoria, it is a defence to any defamatory imputation that the imputation was true in substance and in fact.[153] In New South Wales, however, the imputation must also relate to a matter of public interest.[154] The extent to which a tribunal’s decision to discipline an individual may be justified (in circumstances where they have revealed factual matters) may therefore depend on which test is adopted. For example, a soccer player made allegations to the press that he and his family were subjected to long-term racist abuse from a rival club’s fans.[155] If the Victorian test is adopted and the allegations are true, then it cannot be said that the accused has brought the sport into disrepute. However, if the allegations are true and the New South Wales approach is employed, a ‘reasonable’ tribunal may very well come to the conclusion that it was not in the sport’s interest for the allegations to have been made public. In this case, the sport’s right to reputation prevails, and a tribunal may ‘honestly’ conclude that the individual has brought the sport into disrepute. Given the distinction between the two approaches and the fact that different individuals may reasonably come to differing conclusions on whether it was in a sport’s best interest for certain factual matters to be revealed to the public, a court may need to be more ready to accept that an individual has brought a sport into disrepute, even though he or she has merely recited the facts.
A court may also need to be cautious when considering the case of an accused disciplined for voicing his or her opinion in respect of policy issues concerning a sport’s governance. Governing bodies often tend to regard dissent as conduct capable of bringing a sport into disrepute. For instance, V8 supercar driver Russell Ingall was accused of bringing motor racing into disrepute when he criticised the Confederation of Australian Motorsport for inappropriately issuing race licences to privateers and occasional drivers.[156] However, the mode and manner of dissent may need to be considered when determining whether an individual has actually brought a sport into disrepute. For example, the agent of an AFL footballer made some remarks during a racial vilification dispute which could have been deemed offensive if taken out of context. A newspaper published the remarks and the agent had to appear before the AFL Players’ Agents Board and explain why he had not brought the players’ agents association into disrepute. The Board accepted the agent’s defence that the comments, amongst other things, were ‘off the record and not intended for publication’[157] and therefore did not bring the association into disrepute. A principal defence to the publication of defamatory matter concerning political matters in New South Wales is that the matter is related to an occasion of common law qualified privilege.[158] However, the defence only protects occasions where defamatory material is published to a limited number of recipients who have an interest in having the information. If a publication is made to a large audience, a claim for qualified privilege is rejected.[159] Therefore, a ‘reasonable’ tribunal may ‘honestly’ conclude that an individual who expresses dissent concerning a sport’s governance to the media (as opposed to a small group of individuals engaged in the sport) has brought the sport into disrepute. In such a case, a court should be reluctant to disturb the tribunal’s decision. A further condition of common law qualified privilege is that it does not protect a communication which is actuated by malice.[160] Indeed, dissent fuelled by ill will or improper purpose may have a negative bearing on an individual’s capacity to perform his or her sporting responsibilities and functions. For example, South Africa’s rugby union coach Nick Mallett was charged with bringing the game into disrepute for allegedly accusing the governing body of ‘greed’ by stating that match tickets were too expensive.[161] If it becomes known that criticism is actuated by malice or improper purpose, an individual may risk public ridicule or rejection in the sport; a court should be cautious to intervene in such a matter.
2 Subscribing to a Particular Standard of Behaviour
A person’s behaviour does not necessarily have to impede their ability to effectively perform their public duties for the conduct to be injurious to a sport. Misconduct may be injurious to a sport simply because a particular standard of behaviour to which an individual subscribes has been lowered in the eyes of the public. The person may have put themselves forward to the public as subscribing to a specific standard or they may have been held out as subscribing to such a standard by a sport’s governing body.
(a) Leadership Roles and Positions of Authority
An individual may be deemed to have put themselves forward as subscribing to a particular standard of behaviour if they have taken on a leadership role (such as being the captain or coach of a team or squad) or a position of authority (for example, being a referee, official or executive officer of a club or governing body). If a person in a leadership role or position of authority engages in misconduct, the status of the position or office held is lowered. For instance, former England captain Lawrence Dallaglio was charged with bringing the game of rugby union into disrepute following allegations published in a tabloid newspaper that he took recreational drugs during the British Lions’ tour of South Africa in 1997. The decision of the Rugby Football Union to charge the captain with bringing the sport into disrepute was not ‘so aberrant that it cannot be classed as rational’.[162] The very high standard of behaviour that is expected of international squad captains had been lowered in the eyes of the public.[163] A court should be reluctant to interfere with such a decision.
(b) Role Models Generally
Individuals engaged in professional sport may need to adhere to a particular standard of behaviour because they have been held out by their sports’ governing bodies as being role models.[164] In explaining to the media why Western Bulldogs midfielder Nathan Brown was disciplined following an incident after the club’s season-ending loss which involved damage to an automatic teller machine and an altercation with a security guard, the club’s chief executive commented that AFL players are to behave, ‘at all times, in a manner which upholds and promotes the highest standards of integrity and dignity’.[165] If the particular standard to which these role models subscribe has been lowered in the eyes of the public as a result of their misbehaviour, the misconduct may be deemed to be injurious to the sport. For example, goalkeeper Mark Bosnich was charged by the English Football Association with bringing the sport of soccer into disrepute following his Hitler-style salute to the opposing team’s fans during a Premier League match.[166] He was considered to be an ‘outstanding ambassador for the sport of football’[167] (and no doubt a role model). A ‘reasonable’ disciplinary tribunal could ‘honestly’ come to the conclusion that Bosnich had brought the sport into disrepute on the basis that the high standard of conduct which is expected of such a role model had been lowered in the eyes of the public. A court may therefore need to be more ready to accept that an individual has brought a sport into disrepute as a result of their misbehaviour in circumstances where the individual has been held out by their sport’s governing body as being a role model.
(c) Diversity and Entertainment
A holding out by a sport’s governing body that an individual (engaged in a professional sport) is a role model could permit any misconduct which fell outside the scope of the rules and codes of behaviour to be classified as injurious to a sport. Clearly, not all persons engaged in a sport are role models or ambassadors for the sport. Some individuals involved in a sport often engage in conduct on and off the field of play which is contrary to the sport’s rules and codes of behaviour. Such individuals have a reputation for being ‘rebellious’ or ‘controversial’. Then there are those ‘colourful’ characters or identities who bring diversity to a sport and often provide additional entertainment to the public[168] (and business to the sport’s governing body). After all, the governing bodies of professional sports conduct ‘an entertainment business ... on a large scale’.[169] If such individuals engage in misbehaviour, it cannot necessarily be said that they have engaged in conduct injurious to a sport, as they were not held out as subscribing to a particular standard of behaviour in the first place. It is arguable that these individuals have merely damaged their personal (and financial) interests. There are dangers in concluding that a ‘rebel’ or a ‘colourful’ character has brought a sport into disrepute by doing that for which they are ‘notorious’. A conclusion to that effect may be ‘so aberrant that it cannot be classed as rational’.[170] Indeed, in explaining the requirements for a public figure’s private behaviour to become a matter of public interest, the court in Chappell stated that it is not possible to
set up a person as having a reputation for possessing a character which he does not himself publicly claim to possess, then show that he does not in fact possess that character and finally justify the action as relating to a matter of public interest.[171]
However, if a ‘controversial’ or ‘colourful’ individual continuously misbehaves and is disciplined repeatedly, their cumulative conduct could be classified as injurious to a sport under the first limb of the public interest test, as it is clearly affecting the performance of their public duties. Therefore, it was ‘reasonable’, for example, for the English Football Association to charge ‘controversial’ captain Vinnie Jones with bringing the Premier League into disrepute following the 11th send-off of his career.[172]
IV CONCLUSION
This article has explained that an individual disciplined for ‘bringing the sport into disrepute’ may attempt to challenge such a decision by invoking the ‘no evidence’ principle and establishing that the tribunal made a decision that is ‘so aberrant that it cannot be classed as rational’.[173] Because the disrepute clause is so imprecise such that different decision-makers might honestly reach differing conclusions on the same facts, the prospects for successful judicial review can be regarded as thin. However, closer examination of the disrepute clause has revealed that the clause does have boundaries and limits and must, therefore, operate within a framework. The article has sought to construct such a framework to assist the judiciary in determining the kind of conduct ‘which reasonable and honest minds could possibly’[174] categorise as being capable of bringing a sport into disrepute. The key considerations are public exposure and whether the conduct caused injury to the sport, rather than the individual’s personal (and financial) interests. It was suggested that the public exposure requirement will be met only if an accused’s misconduct becomes common or public knowledge. If the misconduct does not enter the public domain, a court should be prepared to intervene in the matter.
Misbehaviour will be injurious to a sport only if it affects the performance of an individual’s public duties or functions in the sport or if the individual has been put forward as subscribing to a particular standard of behaviour and that standard has been lowered in the eyes of the public. Unless an individual’s on-field conduct has adverse consequences for their ability to perform their sporting duties (such that it leads to a refusal by the individual’s peers to take further part in the sport, it causes excessive friction and division amongst those engaged in the competition, or that the conduct is so outrageous or shocking that the sport is subjected to public ridicule), a court should be ready to interfere with the disciplinary tribunal’s decision to discipline the individual.
Not all off-field conduct deemed inappropriate by a sport’s governing body automatically affects the performance of a person’s public duties in the sport. However, a court should be reluctant to interfere with a decision of a tribunal in circumstances where the behaviour of the accused is criminal in nature. There will also be private conduct that may have an adverse bearing upon the person’s capacity to perform their public functions in the sport if that conduct is in the form of dissent or unfavourable comment. However, if an individual has disclosed criminal acts or a breach of a sport’s own rules by persons engaged in the sport, a court should not be reluctant to intervene in the matter. Likewise, a court should be prepared to interfere with the decision of a tribunal if the individual has voiced his or her opinion in respect of policy issues concerning a sport’s governance, without malice or ill will, to a small group of individuals engaged in the sport. An individual’s behaviour does not necessarily have to impede their ability to effectively perform their sporting public duties or functions for the conduct to be injurious to a sport. For example, if an individual has put themselves forward as subscribing to a particular standard of behaviour in that they have taken on a leadership role or a position of authority, and that standard has been lowered in the eyes of the public as a result of their misconduct, a court should be reluctant to intervene in the matter. Similarly, a court may need to be more ready to accept that an individual has brought a sport into disrepute in circumstances where they have been held out by their sport’s governing body as being a role model in the sport. However, not every individual engaged in a sport is a role model or an ambassador for the sport and so a court should be prepared to interfere with the decision of a tribunal to discipline a ‘colourful’ individual or ‘character’ who brings diversity to the sport and provides additional entertainment to the public.
[*] LLB (Hons) (Melb); Barrister and Solicitor of the Supreme Court of Victoria. The author is grateful to Hayden Opie, Faculty of Law, The University of Melbourne, for his valuable comments on a draft of this article. An earlier version of this paper was submitted as part of the requirements of the LLB at the University of Melbourne.
[1] Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546, 548 (Tadgell JA) (‘Williams’).
[2] See, eg, Australian Football League (‘AFL’) Players’ Association, AFL Players’ Code of Conduct, r 3.4. The vilification clause relates to interaction between players. Any act of vilification by a player towards a spectator during a match will fall outside the scope of the provision.
[3] Marylebone Cricket Club, Laws of Cricket (2000 Code), law 42(18). There are other wide-ranging rules employed by governing bodies which prohibit an individual from ‘do[ing] anything that is against the spirit of good sportsmanship in the playing enclosure’ (International Rugby Board, Laws of the Game, law 10(4)(k)); from ‘misconduct[ing] himself in any way’ (Australian Racing, Australian Rules of Racing, r 83(a)); or from engaging in ‘[a]ny act of misconduct’ (AFL, Laws of Australian Football (1998) r 16.9.4). Such clauses, however, are not concerned with the reputation or public image of a sport.
[4] Australian Cricket Board, Code of Conduct (1999–2000) r 1(e).
[5] AFL Players’ Association, AFL Players’ Code of Conduct, r 4.1.
[6] Fédération Internationale de l’Automobile, International Sporting Code, r 151(c).
[7] International Cricket Council, Code of Conduct for Players and Team Officials (1999–2000) r C(2).
[8] Eg, the Hepburn Football Club was banned from playing football until 2003 after being found guilty of bringing the game into disrepute following a brawl before a match against another club in 2000. The ban applied to the senior side, the reserves, the under-17s and under-14s: Gary Tippet, ‘A Death in the Family: How a Football Ban Tore the Soul from a Country Town’, The Age (Melbourne), 19 May 2000, 1. However, the penalty was later reduced to a $5000 fine and a $5000 good behaviour bond until the end of the 2002 season: Paul Daffey, ‘Hepburn Cheers As Footy Ban Lifted’, The Age (Melbourne), 9 June 2000, 4.
[9] Williams [1998] 2 VR 546, 558 (Tadgell JA).
[10] Where the decision of a disciplinary tribunal is inexplicable on the evidence, concerns about bias might be raised. In the absence of bias, however, an individual may need to rely solely on the ‘no evidence’ principle.
[11] Williams [1998] 2 VR 546, 559 (Tadgell JA).
[12] Ibid.
[13] Ibid 558 (Tadgell JA).
[14] See, eg, ‘Bosnich Gets Home Support’, The Age (Melbourne), 16 October 1996, C12.
[15] See, eg, Briefs, The Age (Melbourne), 20 October 1999, Sport 5.
[16] See, eg, ‘Former England Skipper Charged’, The Age (Melbourne), 6 August 1999, Sport 7; Briefs, The Age (Melbourne), 27 August 1999, Sport 4.
[17] See, eg, Bonile Ngqiyaza, ‘Soccer League Suspends CEO pending Inquiry’, Business Day (Johannesburg, South Africa), 2 December 1999, 2.
[18] See, eg, Karen Lyon, ‘For the Record, It’s Hocking’, The Age (Melbourne), 17 June 1999, Sport 3.
[19] Williams [1998] 2 VR 546, 558 (Tadgell JA).
[20] See generally J R S Forbes, Disciplinary Tribunals (2nd ed, 1996) 76–7.
[21] See, eg, Sinclair v Mining Warden at Maryborough [1975] HCA 17; (1975) 132 CLR 473, 481 (Barwick CJ), 483 (Gibbs J); Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355–6 (Mason CJ) (‘Bond’).
[22] See, eg, Williams [1998] 2 VR 546, 550 (Tadgell JA).
[23] See, eg, Shepherd v South Australian Amateur Football League Inc (1987) 44 SASR 579, 583 (Cox J). See generally A S Sievers, Associations and Clubs Law in Australia and New Zealand (2nd ed, 1996) 13.
[24] [1934] HCA 24; (1934) 51 CLR 358. Edmond John Hogan was a member of the Australian Labor Party of the State of Victoria, a voluntary association. He brought an action against President Donald Cameron and other executive officers of the Party. The defendants had refused to approve or submit to ballot the plaintiff’s nomination as a person seeking selection by the Party as its candidate at a State parliamentary election, and had by resolution excluded him from the Party. As a result, Hogan was not elected as leader of the State parliamentary Labor Party and thus did not receive the emoluments of that office. He alleged that the non-endorsement of his candidature was in breach of the rules of the association. Hogan claimed that he was expelled without any opportunity of being heard and that this decision was not in accordance with the constitution of the association and was contrary to law and natural justice. He also alleged that he had been wrongly excluded from the association and thus deprived of his rights in the property of the association. He sought an injunction to restrain his exclusion from the association and a declaration that he was still a member of the association and that his exclusion and the non-endorsement of his candidature were wrongful: at 359–63.
[25] Ibid 370 (Rich, Dixon, Evatt and McTiernan JJ). The Court found that voluntary associations
are likely to be formed without property and without giving to their members any civil right of a proprietary nature. They are ... bodies of persons who have combined to further some common end or interest, which ... stands apart from private gain and material advantage. Such associations are established upon a consensual basis ...
Unless a contrary intention exists, the rules adopted for their governance do not amount to an enforceable contract: at 370–1 (Rich, Dixon, Evatt and McTiernan JJ). The Court concluded that, under the rules, the members of the Australian Labor Party obtained from the funds no advantage susceptible of personal enjoyment. The funds were devoted to the promotion of the political ends for which the Party existed. Accordingly, the plaintiff had no proprietary right or interest in the property of the association to entitle him to a declaration or an injunction in respect of his exclusion from the association. The rules of the voluntary association, organised for political purposes, did not operate to create enforceable contractual rights and duties between the members of the Party: at 373, 375 (Rich, Dixon, Evatt and McTiernan JJ), 384 (Starke J).
[26] Shepherd v South Australian Amateur Football League Inc (1987) 44 SASR 579, 581 (Cox J).
[27] See, eg, Plenty v Seventh Day Adventist Church of Port Pirie (1986) 43 SASR 121, 123–5 (Jacobs J), 139 (Matheson J), 143–4 (Olsson J).
[28] See, eg, Scandrett v Dowling (1992) 27 NSWLR 483, 562 (Priestley JA).
[29] See generally G M Kelly, Sport and the Law: An Australian Perspective (1987) 53–62.
[30] [1971] HCA 71; (1971) 125 CLR 353, 374–5 (Barwick CJ, McTiernan, Windeyer, Owen and Gibbs JJ). See generally ibid 55–7.
[32] Williams [1998] 2 VR 546, 548 (Tadgell JA). Although the proceeding was founded on alleged breaches by the league of the contract to which the player, the club and the league were parties, Tadgell JA indicated that it might have been possible to place reliance on the doctrine of restraint of trade: at 548.
[33] See, eg, Smith v South Australian Hockey Association Inc (1987) 48 SASR 263. In this case, an amateur hockey player suspended by the Association’s Investigation Tribunal claimed that his suspension from playing for 13 matches was an interference with his livelihood. He gave evidence that he was paid $1400 in one year to coach and also to play. Cox J, however, found that the plaintiff failed to prove that the suspension was likely to cause him any financial detriment. The detriment was not ‘more than merely colourable or conjectural or insubstantial’ so as to provide a jurisdictional basis for the Court’s intervention. The plaintiff’s case broke down at the threshold: at 263, 265, 267–8. See also Wickham v Canberra District Rugby League Football Club Limited [1998] ATPR 41-664. The issue before Miles CJ in the ACT Supreme Court was whether the competition rules of the Canberra District Junior Rugby League Inc, which prevented the transfer of players from club to club for a period of three years, were in restraint of trade: at 41,391–3. The evidence showed, for example, that one of the plaintiff players was paid by a defendant club $100 for a game played in first grade and $30 for each of two games played in an under-19 grade: at 41,395. Although it was conceded by the defendants that the competition rules were in restraint of trade, the Court emphasised that the League, the clubs and the players did not conduct their activities in what was predominantly a commercial environment. The evidence did not show that the relationship of employer and employee existed between any of the clubs and their players, notwithstanding that from time to time some players received payments for their performance: at 41,399. The ‘extent to which the clubs, the League and the players [engaged] in trade in a real sense’ was ‘very little’: at 41,399. See generally Forbes, above n 20, 47–9 for conditions that need to be satisfied for a restraint of trade to be unreasonable.
[34] [1934] HCA 24; (1934) 51 CLR 358.
[35] See, eg, Associations Incorporation Act 1981 (Vic) s 14A(1); Associations Incorporation Act 1981 (Qld) s 71(1). In situations where an incorporated district association is affiliated with a national sports association, a member of the district association may challenge a decision of the federal body by virtue of a chain of contracts: see, eg, Finnigan v New Zealand Rugby Football Union Inc [1985] NZHC 102; [1985] 2 NZLR 159, 178. See also Forbes, above n 20, 39–40.
[36] See, eg, Old Melburnians Football Club Inc v Victorian Amateur Football Association [2001] VSC 34 (Unreported, Byrne J, 23 February 2001) [19] (‘Old Melburnians’), where it was accepted that the rights arising from the articles of association of the Victorian Amateur Football Association and the rules made under it were essentially contractual and the relief sought was to enforce this contract.
[37] See, eg, Shepherd v South Australian Amateur Football League Inc (1987) 44 SASR 579; Smith v South Australian Hockey Association Inc (1987) 48 SASR 263. See generally Sievers, above n 23, 14–15.
[38] This is a common type of structure for sporting bodies.
[39] See, eg, Corporations Act 2001 (Cth) s 140(1).
[40] See, eg, Williams [1998] 2 VR 546, 548 (Tadgell JA).
[41] Note that, in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, the High Court extended the categories of rights which might be protected in tribunals to include legitimate expectations and commercial reputation.
[42] Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54, 77 (Brennan J). See also Bond (1990) 170 CLR 321, 356 (Mason CJ).
[43] Australian Workers’ Union v Bowen [No 2] [1948] HCA 35; (1948) 77 CLR 601, 630 (Dixon J) (‘Bowen’). See also Williams [1998] 2 VR 546, 558 (Tadgell JA).
[44] Cf Bond (1990) 170 CLR 321, 356 (Mason CJ). See also Sinclair v Mining Warden at Maryborough [1975] HCA 17; (1975) 132 CLR 473, 481 (Barwick CJ), 483 (Gibbs J).
[45] Osgood v Nelson [1872] UKLawRpHL 15; (1872) LR 5 HL 636, 654 (Lord Colonsay). See also Allinson v General Council of Medical Education and Registration [1894] UKLawRpKQB 36; [1894] 1 QB 750.
[46] Naxakis v Western General Hospital (1999) 197 CLR 269, 274 (Gaudron J), 281 (McHugh J).
[47] Ibid 274 (Gaudron J).
[48] Ryder v Wombwell [1849] EngR 699; (1868) LR 4 Ex 32, 39 (Willes, Byles, Blackburn, Montague Smith and Lush JJ), cited in Naxakis v Western General Hospital (1999) 197 CLR 269, 282 (McHugh J).
[49] [1910] HCA 7; (1910) 10 CLR 243 (‘Dickason’). A member of a friendly society was charged with conduct unbecoming and calculated to bring disgrace upon the society. He was found guilty by the society’s judicial committee and expelled from the association. He contended that his conduct as proved was not such that the judicial committee could come to the conclusion that it was calculated to bring disgrace upon the society: at 248 (Griffith CJ), 254 (O’Connor J).
[50] Ibid 254 (O’Connor J). Griffith CJ indicated that ‘the true test is ... that the conduct must be such that reasonable men might think it was likely to bring disgrace on the [society]’: at 249. Isaacs J stated that ‘so long as the finding is one which the Court finds it impossible to designate as one at which no reasonable man could honestly arrive, the Court cannot review it’: at 258.
[51] Ibid 254 (O’Connor J).
[52] [1947] EWCA Civ 1; [1948] 1 KB 223, 230 (‘Wednesbury’). The case examined the powers of a local authority to grant a licence for cinema performances on Sunday subject to such conditions as the authority thought fit to impose. The Wednesbury Corporation gave the plaintiffs a licence subject to the condition that no children under 15 were to be admitted to the performances. The plaintiffs brought an action seeking a declaration that the condition was unreasonable and ultra vires. The action was dismissed by the trial judge and by the Court of Appeal.
[53] [1952] 2 QB 329, 340 (Somervell LJ) (‘Lee’). Denning LJ stated that a domestic tribunal’s committee must first construe the rules and then apply the rules to the facts. The ‘question whether the committee has acted within its jurisdiction depends ... on whether the facts adduced before them were reasonably capable of being held to be a breach of the rules’: at 345. If ‘the facts were not reasonably capable of being held to be a breach, ... the only inference is that the committee [had] misconstrued the rules and exceeded [its] jurisdiction’: at 345. Denning LJ concluded that this ‘proposition is sometimes stated in the form that the court can interfere if there was no evidence to support the finding of the committee; but that only means that the facts were not reasonably capable of supporting the finding’: at 345.
[54] [1948] HCA 35; (1948) 77 CLR 601.
[55] Ibid 628. Dixon J went on to state that a tribunal, however, must have an honest opinion that what the disciplined member did amounted to misconduct and its decision must be given in the interests of the body it represents and not for an ulterior motive: at 628.
[56] See, eg, Edwards (Inspector of Taxes) v Bairstow [1955] UKHL 3; [1956] AC 14, 36 (Lord Radcliffe); Cooper v Stubbs [1925] 2 KB 753, 772 (Atkin LJ); British Launderers’ Research Association v Borough of Hendon Rating Authority [1949] 1 KB 462, 471–2 (Denning LJ); Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 3 All ER 371, 374 (Lord Denning MR). See also Bond (1990) 170 CLR 321, 356 (Mason CJ).
[57] Mahon v Air New Zealand Ltd [1984] AC 808, 821 (Lord Diplock) (emphasis in original). See also Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666, 689 (Deane J); R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456, 488, where Diplock LJ stated that ‘[t]he requirement that a [decision-maker] must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence ... of facts relevant to the issue to be determined’.
[58] See, eg, Armah v Government of Ghana [1968] AC 192, 235 (Lord Reid), 257 (Lord Upjohn). See also Bond (1990) 170 CLR 321, 356 (Mason CJ).
[59] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410 (Lord Diplock).
[60] R v Lord Chancellor; Ex parte Maxwell [1996] 4 All ER 751, 756 (Henry LJ).
[61] See, eg, Puhlhofer v Hillingdon London Borough Council [1986] UKHL 1; [1986] AC 484, 518 (Lord Brightman); Broadbridge v Stammers (1987) 16 FCR 296, 300–1 (Bowen CJ, Beaumont and Gummow JJ); Apthorpe v Repatriation Commission [1987] FCA 423; (1987) 77 ALR 42, 53–4 (Davies, Lockhart and Gummow JJ). See also Bond (1990) 170 CLR 321, 358 (Mason CJ).
[62] Bond (1990) 170 CLR 321, 359 (Mason CJ), 367 (Deane J).
[63] Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 2 ALD 33, 41 (Brennan J).
[64] Bond (1990) 170 CLR 321, 359 (Mason CJ). See also Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511.
[65] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410 (Lord Diplock).
[66] Mahon v Air New Zealand Ltd [1984] AC 808, 821 (Lord Diplock) (emphasis in original). In Williams [1998] 2 VR 546, 579, Ashley AJA suggested that ‘a decision not based on evidence tending rationally to show the existence of facts consistent with the finding’ would very likely fit the category of the ‘no evidence’ principle. The respondents in the case had partly relied on Mahon v Air New Zealand Ltd [1984] AC 808, R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 and Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666.
[67] Bond (1990) 170 CLR 321, 356 (Mason CJ). Mason CJ indicated that no occasion had arisen to determine whether ‘no sufficient evidence’ is to be seen as expressing what is or should be the law of Australia on the topic.
[68] Forbes, above n 20, 80 (emphasis in original).
[69] Kelly, above n 30, 73. Kelly was referring to Lee [1952] 2 QB 329, 345 (Denning LJ).
[70] Bond (1990) 170 CLR 321, 358 (Mason CJ). Note that Mason CJ made this observation in the context of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
[72] Ibid 546. Williams was charged under the AFL, Laws of Australian Football (1998) r 16.9.1 with unduly interfering with an umpire. The AFL Tribunal found the charge proved and imposed a nine-match suspension. The Carlton Football Club and Williams sought an interlocutory injunction restraining the AFL from giving effect to the suspension. The trial judge held that the Tribunal misconstrued the rule and made a decision that no reasonable tribunal could have reached. The league and the Tribunal members appealed. Tadgell and Hayne JJA (Ashley AJA dissenting) allowed the appeal, holding that the trial judge erred in interfering with the Tribunal’s decision.
[73] Williams [1998] 2 VR 546, 568, citing Dickason [1910] HCA 7; (1910) 10 CLR 243, 254 (O’Connor J).
[74] Williams [1998] 2 VR 546, 568, citing Dickason [1910] HCA 7; (1910) 10 CLR 243, 255 (O’Connor J).
[75] Williams [1998] 2 VR 546, 568, citing Dickason [1910] HCA 7; (1910) 10 CLR 243, 254 (O’Connor J).
[76] Williams [1998] 2 VR 546, 569, citing Dickason [1910] HCA 7; (1910) 10 CLR 243, 258 (Isaacs J).
[77] Williams [1998] 2 VR 546, 569, citing Lee [1952] 2 QB 329, 340 (Somervell LJ).
[78] Williams [1998] 2 VR 546, 569.
[79] Ibid 566.
[80] Ibid 569.
[81] Ibid 575.
[82] Ibid 578–9.
[83] Ibid 579.
[84] Ibid.
[85] Ibid 587.
[86] [1948] HCA 35; (1948) 77 CLR 601, 628.
[87] Williams [1998] 2 VR 546, 557.
[88] Ibid.
[89] Ibid.
[90] Ibid 558. This is in accordance with the judiciary’s view that if ‘the courts were to assume a jurisdiction to review ... acts or decisions which are “unfair” in the opinion of the court — not the product of procedural unfairness, but unfair on the merits — [they] would put [their] own legitimacy at risk’: A-G (NSW) v Quin (1990) 170 CLR 1, 37–8 (Brennan J). The various bodies exercising jurisdiction over sporting activities are far better suited to judge those activities than are the courts: see, eg, McInnes v Onslow-Fane [1978] 1 WLR 1520, 1535 (Megarry V-C). Tadgell JA himself stated that ‘there are some kinds of dispute that are much better decided by non-lawyers or people who have a special knowledge of or expertise in the matters giving rise to the dispute than a lawyer is likely to have’: Williams [1998] 2 VR 546, 549.
[91] Williams [1998] 2 VR 546, 559. Tadgell JA referred to R v Monopolies & Mergers Commission; Ex parte South Yorkshire Transport Ltd [1993] 1 WLR 23, 32, where Lord Mustill stated that a criterion may
be so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case. In such a case the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational.
See also Edwards (Inspector of Taxes) v Bairstow [1955] UKHL 3; [1955] 3 All ER 48.
[92] Williams [1998] 2 VR 546, 559.
[93] The only other test that Tadgell JA refers to, and appears to approve, is the jury test from Dickason [1910] HCA 7; (1910) 10 CLR 243.
[94] [2001] VSC 34 (Unreported, Byrne J, 23 February 2001).
[95] Ibid [42].
[96] Ibid [43].
[97] R v Monopolies & Mergers Commission; Ex parte South Yorkshire Transport Ltd [1993] 1 WLR 23, 32 (Lord Mustill).
[98] Williams [1998] 2 VR 546, 559.
[99] (Unreported, Supreme Court of Victoria, Tadgell J, 12 June 1992).
[100] See Joshua Funder, ‘Supreme Court Reviews AFL Tribunal’ (1992) 2(2) ANZSLA Newsletter 6, 7. Tadgell J also found that the procedures set out for prosecution of charges had not been followed.
[101] (1988) 14 NSWLR 153 (‘Chappell’). Greg Chappell applied for an injunction to restrain Channel Nine Pty Ltd from publishing certain defamatory imputations on ‘A Current Affair’ following promotional advertisements that alleged that Chappell had committed adultery or that he had engaged in sexual activities of an unusual nature. Much of the case revolved around the defence of justification concerning defamation.
[102] Ibid 166 (Hunt J).
[103] Robert Dean, The Law of Trade Secrets (1990) 112, approved in Re B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279, 308 (F N Albietz, Information Commissioner).
[105] [1993] HCA 56; (1993) 178 CLR 408, 432 (Brennan J). The High Court examined, amongst other things, whether the release to media representatives by a Royal Commission of transcripts of examinations of the plaintiff conducted by the Australian Securities Commission, which were tendered in evidence in public hearings, was in breach of the law of confidence.
[106] Ibid.
[107] Dean, above n 103, 123, approved in Re B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279, 308 (F N Albietz, Information Commissioner).
[108] Dean, above n 103, 129, approved in Re B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279, 308 (F N Albietz, Information Commissioner).
[109] O’Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310, 326 (Mason J).
[110] Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203, 215 (Lord Greene MR).
[111] (1988) 14 NSWLR 153, 166 (Hunt J). His Honour was referring to the then clause 1(e) of the Australian Cricket Board, Code of Conduct which provided that ‘[p]layers must not indulge in conduct detrimental to the game’.
[112] [1966] 1 QB 1, 9 (Lord Parker CJ). The case concerned a veterinary surgeon who was charged with failing to bury cattle carcasses without reasonable excuse. The Disciplinary Committee of the Royal College of Veterinary Surgeons found that he was guilty of conduct disgraceful to him in a professional respect in allowing conditions to exist on his farm that were likely to bring disgrace on the veterinary profession. The Committee ordered that his name be removed from the register. He appealed to the Court and argued that, as a matter of law, a professional man’s conduct could not be said to be disgraceful to him in a professional respect unless it was done in the course of the practice of his profession. The Court refused to intervene. It held that if the conduct complained of was equally reprehensible in anyone, as for example conduct constituting some traffic offence, it would not amount to disgraceful conduct in a professional respect. But if that conduct was, in the case of a professional person, ‘so much more reprehensible as to be defined as disgraceful’, it could amount to disgraceful conduct in a professional respect in the sense that it brought disgrace on the profession which the person practised: at 9 (Lord Parker CJ). See also Re H (a barrister) [1981] 3 All ER 205.
[113] See, eg, ‘Origin Ref Backed on Send-Off’, The Age (Melbourne), 20 May 1996, Sport 14.
[114] See, eg, Laurie Schwab, ‘$8000 in Fines for Soccer Brawl’, The Age (Melbourne), 2 February 1996, Sport 6.
[115] See, eg, ‘Threat of Expulsion over Clubs’, The Age (Melbourne), 26 July 1997, B24.
[116] See, eg, ‘Sport Briefing’, The Age (Melbourne), 23 January 1996, 21.
[117] See, eg, ‘Sport Briefing’, The Age (Melbourne), 21 November 1996, Sport 7.
[118] See, eg, ‘Wenger Banned for Bad Behaviour’, The Age (Melbourne), 12 October 2000, Sport 5.
[119] See, eg, Theresa Ambrose, ‘Match-Fix Claims’, Education, The Age (Melbourne), 3 May 2000, 9; Greg Baum, ‘ICC Not Armed to Fight Corruption Alone’, The Age (Melbourne), 13 April 2000, Sport 1. It should be noted that, if such a cricketer challenges the tribunal’s decision by way of judicial review (on the basis that the public exposure element has not been met), their misconduct will become common knowledge and satisfy the public domain requirement. However, it may not be possible to recharge the cricketer with bringing cricket into disrepute because of the double jeopardy rule.
[120] Dean, above n 103, 112, approved in Re B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279, 306 (F N Albietz, Information Commissioner).
[121] Defamation Act 1974 (NSW) s 15(2).
[123] Ibid 165, 167.
[124] Ibid 167.
[125] Eg, singing the club’s theme song at the conclusion of a match.
[126] ‘Reprieve, but No Opponent for Club’, The Age (Melbourne), 27 May 2000, 13.
[128] See, eg, Sport Briefing, The Age (Melbourne), 31 January 1996, B7.
[129] See, eg, Melissa Ryan and Len Johnson, ‘Bomber, Roos Fined, Swan Out’, The Age (Melbourne), 7 June 2000, Sport 1.
[130] See, eg, ‘Sport Briefing’, The Age (Melbourne), 22 January 1997, C9.
[131] See, eg, ‘Sport Briefing’, The Age (Melbourne), 23 January 1996, 21.
[132] See, eg, ‘Sport Briefing’, The Age (Melbourne), 26 September 1996, Sport 7.
[133] Cf ‘Salute Costs Striker $2000 Fine’, The Age (Melbourne), 24 May 2001, Sport 5.
[134] See, eg, Stephen Howell, ‘Melmeth’s Bad Week Gets Worse’, The Age (Melbourne), 22 February 2000, Sport 2.
[135] See, eg, Stephen Rielly, ‘Defiant Sheedy Welcomes Inquiry’, The Age (Melbourne), 20 June 2000, Sport 1; ‘Sheedy’s Turn to Sit in Judgment’, The Age (Melbourne), 1 August 2000, Sport 1.
[136] See, eg, ‘Threat of Expulsion over Clubs’, The Age (Melbourne), 26 July 1997, B24.
[137] See, eg, ‘Sport Briefing’, The Age (Melbourne), 23 January 1996, 21.
[138] ‘Salute Costs Striker $2000 Fine’, above n 133.
[139] Some friction and division had already existed between the two clubs. The Knights had 10 police officers and 27 security guards on duty during the match: Michael Lynch, ‘Knights to Face Seven Charges’, The Age (Melbourne), 16 May 2001, Sport 1.
[140] ‘Salute Costs Striker $2000 Fine’, above n 133.
[141] Williams [1998] 2 VR 546, 559 (Tadgell JA).
[142] Joseph Kerr, ‘Hello Sailor: League’s Ugly Act That Dare Not Speak Its Name’, Sydney Morning Herald (Sydney), 30 March 2001, 1.
[143] See, eg, ‘Players Point the Finger at Hopoate’, Illawarra Mercury (Illawarra), 30 March 2001, Sport 1; Steve Mascord, ‘It May Not Be Good and Clean but It’s All Entertainment, and That’s the Way It Is’, Sydney Morning Herald (Sydney), 30 March 2001, 38.
[144] ‘Hopoate Must Go’, Sun Herald (Sydney), 1 April 2001, Sport 1.
[145] Jeff Corbett, ‘Shame for the Game’, Newcastle Herald (Newcastle), 30 March 2001, 8.
[146] ‘Springbok Biter Is Banned from All Rugby until 1996’, The Age (Melbourne), 26 July 1994, 53.
[147] See, eg, ‘Briefs’, The Age (Melbourne), 20 October 1999, Sport 5.
[148] (1988) 14 NSWLR 153, 166 (Hunt J).
[149] Ibid.
[151] ‘Coach Tips Lockyer to Shine on UK Tour’, The Age (Melbourne), 27 October 1997, 17.
[152] See, eg, AFL Players’ Association, AFL Players’ Code of Conduct, rr 4.3, 4.4.
[153] See, eg, Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331, 366 (Isaacs J).
[154] Defamation Act 1974 (NSW) s 15(2)(b).
[155] The rival club claimed that the comments had brought the competition into disrepute as they had the potential to incite unruly behaviour at an upcoming match: Michael Reid, ‘Soccer Gets a Turn in Footy’s Spotlight’, The Age (Melbourne), 14 May 1998, Sport 4. Such comments could certainly bring the sport into disrepute if they have the effect of creating a Despotovski-type incident.
[156] Michael Lynch, ‘Ingall Asked to Explain Comments’, The Age (Melbourne), 17 July 2000, Sport 8; Michael Lynch, ‘Off-Track Action Hots Up’, The Age (Melbourne), 20 July 2000, Sport 7.
[157] Karen Lyon, ‘Race Row: Hession Clear’, The Age (Melbourne), 16 April 1999, Sport 3.
[158] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 569.
[159] Ibid 570.
[160] Ibid 572.
[161] ‘Briefs’, The Age (Melbourne), 27 September 2000, Sport 19.
[162] Williams [1998] 2 VR 546, 559 (Tadgell JA).
[163] See, eg, ‘Former England Skipper Charged’, The Age (Melbourne), 6 August 1999, Sport 7; ‘Briefs’, The Age (Melbourne), 27 August 1999, Sport 4.
[164] Most individuals engaged in professional sport may be deemed to be role models as they have risen through the amateur ranks and reached the highest level of competition possible in the sport. They compete at a level to which almost all aspiring players in the sport strive. These individuals include Olympians, AFL players, World Cup footballers, Formula One drivers, test match cricketers, National Football League, National Basketball Association and Major League Baseball players, and NRL State of Origin footballers.
[165] Stephen Rielly, ‘Dogs Set for Colonial Compo’, The Age (Melbourne), 23 August 2000, Sport 3.
[166] ‘Bosnich Gets Home Support’, The Age (Melbourne), 16 October 1996, C12.
[167] Ibid.
[168] See, eg, Mascord, above n 143, 38.
[169] Williams [1998] 2 VR 546, 548 (Tadgell JA).
[170] Ibid 559 (Tadgell JA).
[171] (1988) 14 NSWLR 153, 167–8 (Hunt J).
[172] ‘United Cuts Lead As Ice Beats Newcastle’, The Age (Melbourne), 1 January 1996, 33.
[173] Williams [1998] 2 VR 546, 559 (Tadgell JA).
[174] Ibid 558 (Tadgell JA).