Practices" - arrangement or understanding affecting elacation ror interlocutory taniunction under 5.89 wes Act and accrued turisdiction - alleqea u y respondents of applicant trom arade cricket t to applicants participation in South African cricket tour - whether contrary to s.45 of Trade Practices Act - whether in breach of Deed of Settlement - whether consplracy to injure applicant in business as professional cricketer - applicant disqualified pursuant to Cricket Council rule - whether disqualification authorized by rule - whether rule unlawful restraint of trade - consideration of whether serious question to be tried - observations as to standard to be met - consideration of balance of convenience - alleged financial loss to applicant - whether adequately compensable in damages - injunction sought to restrain respondents from interfering with applicant's eligibility to play - whether in terms futile ra o a Y 1q Trade Practices Act 1974 ss.45, 80 KIMBERLEY JOHN HUGHES v. WESTERN AUSTRALIAN CRICKET ASSOCIATION CINC.) and MT. LAWLEY DISTRICT CRICKET CLUB (INC.); MELVILLE CRICKET CLUB (INC.); NORTH PERTH CRICKET CLUB (INC.); SUBIACO FLOREAT CRICKET CLUB (INC.); BAYSWATER-MORLEY CRICKET CLUB (INC.); PERTH CRICKET CLUB (INC.); FREMANTLE DISTRICT CRICKET CLUB (INC.); CLAREMONT -COTTESLOE CRICKET CLUB (INC.); SOUTH PERTH CRICKET CLUB (INC.); MIDLAND-GUILDFORD CRICKET CLUB (INC.); WANNEROO DISTRICT CRICKET CLUB (INC.) and LESLIE ANNISON (sued on behalf of himself and all other members of the Southern District Cricket Club); GREGORY BUNNEY (sued on behalf of himself and all other members of the Scarborough Cricket Club); MICHAEL SNELL (sued on behalf of himself andall other members of the Nedlands Cricket Club); PHILLIP CLIFFORD (sued on behalf of himself and all other members of the University Cricket Club) and KEVIN MORRIS TAYLFORTH (sued on behalf of himself and all other members of the Cricket Council of Western Australian Cricket Association (Inc.) No. WA G14 of 1986 TOOHEY J. PERTH 7 7 MARCH 1986 , MINUTE OF ORDER JUDGE MAKING ORDER: TOOHEY J. DATE OF ORDER: 7 March 1986 WHERE MADE: Perth THE COURT ORDERS THAT: 1. The application for interlocutory injunction be dismissed. 2. The costs of the application be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. CORAM: TOOHEY J. 7 March 1986 REASONS FOR JUDGMENT The matter presently before the Court is an application for an anterlocutory injunction, until trial, restraining the first respondent and the fourth respondent from taking any action to unterfere with the eligibilitv of the applicant for selection to play cricket in any A arade pennant fixture or Tovota Cup fixture. The applicant, Mr. Hughes, is a well-known professional cricketer and was formerly captain of the Australian test team. He is engaged professionally by the Subiaco Floreat Cricket Club (Inc.). His participation ina recent cricket tour of South Africa has generated much controversy and strong feeling. The first respondent, Western Australian Cricket Association * (Inc.) ("W.A.C.A.") is incorporated under the provisions of the Associations' Incorporation Act 1895, a statute which permits the incorporation of associations formed for various purposes other than "trading or securing pecuniary profit to the members from the transactions thereof" (definition of "Association" in s.2). The fourth respondent Kevin Morris Taylforth 1s sued ina representative capacity on behalf of all members of the Cricket Council of the W.A.C.A. The Cricket Council is established by the rules of the W.A.C.A. and comprises delegates from the associated clubs and others. It 1s empowered to make by-laws and requlations for the control and management of and Mr. McKerracher appeared for the first and fourth respondents and for a number cr the second and third respondents. Some other respondents including the Subiaco Floreat Cricket Club appeared but only to indicate an intention to abide by whatever orders the Court might make. Affidavits were filed on both sides. Leave was qiven to the applicant to amend his application and statement of claim in several respects. Inevitably the Court became possessed of much more information than was available to 1t on 21 February. The Court had the benefit of detailed submissions for and against a continuance of the injunction, extending over two days. Late on Friday, 28 February I reserved my decision on the application to extend the injunction. The applicant's main complaint is that, by their actions, the respondents have prevented him from playing cricket in A grade pennant fixtures and local fixtures such as the Toyota Cup. He claims that they have done this by relying upon r.2.38.1 of the Cricket Council's rules which preclude a player from taking part ina cricket match other than a match recoqnized by the Australian Cricket Board or the W.A.C.A. without first obtaining the written consent of the Cricket Council. In its present form, that 1s as amended on 4 November 1985, the rule concludes: "Any player found in breach of this rule is automatically disqualified until reinstated by the Cricket Council". Rule 2.39.5 of the Cricket Council rules imposes a fine upon a club that allows a disqualified player to play in its team on s WG ub- Gh ection 45(2:' prohibits a corporation from makinu a contract Or akranuement of arrivang abt an understanding if: "c1) the proposed contract, arrangement or understanding contains an exclusionary provision: or ti1l) a provision of Che proposed contract, arrangement or understanding has the purpose, or would have or be likely to have the effect, of substantially lessening competition". The term "competition" is defined in sub-s.45(3). The applicant acknowledges that the first respondent is not directly concerned with competition ina market, saying that that is the province of the clubs. But, it 1s said, the conduct of the first respondent and of the other respondents at meetings of the Cricket Council in January and February 1986 has lessened competition by excluding the applicant from grade cricket. The relevant competition, the applicant submits, arises from the participation by clubs in markets which para.5 of the statement of claim defines as: "(i) the market for club membership and subscriptions from playing and non-playinag members and patronage of club facilities and services for which charges are made; (iil) the market for sponsorship of club activities by commercial organisations including prize money; and the market comprised by these two markets taken together as a single market." It is the cause of action under s.45 that attracts the jurisdiction of the Federal Court. The other causes of action, arising under the Court's accrued jiurisdiction, may be summed up in this way. The conduct of the respondents in excluding the entrance fees and srunsurshir - does nub constitute anv of the respondents wu trading cworearation., They seek tu distinguish the positiun ot the Football Leamtues in F. v. Federal Cuurt of Australia; Ex parte W.A. National Football League (1978-1979) 143 c.L.R. 190. In that event, they say, there can be no jurisdiction in this Court to deal with anv of the applicant's causes of action. Counsel for the respondents launched a strong attack on any cause of action under s.45. The attack was along these lines. There is no evidence that the W.A.C.A. or any of the respondents is a party to any contract, arrangement or understanding. There has been an amendment of the rules of the W.A.C.A. but those rules have no contractual force and their amendment cannot constitute a contract. Cameron v. Hogan (1934) 51 C.L.R. 358; Tutty v. Buckley (1970) 92 W.N. (N.S.W.) 329. All that happened was that the clubs, acting within the constitution cf the W.A.C.A., voted on an amendment to the rules. "Competition" is given a specific meaning in sub-s.45(3) and, so defined, it has no application to what has happened. The clubs do not "compete" for the services of cricketers. There is no "exclusionary provision" within the meaning of s.4D for there is no evidence that the respondents had any of the purposes referred to in that section. Equally they did not have a purpose of substantially lessehing any competition. There are some 1,000 players in the Perth' district competition and, if r.2.38.1 is enforced, one plaver, certainly no more than four, may be prevented from playing in local fixtures. This cannot be described as a substantial lessening of competition. lo. ze. «ok as true that, as Lhe authericies now stand, the applicant does mot nave te demonstrats a orima facie ca ua € pur rather show that there is a serious question to be tried. See Epitoma Pty. Ltd. v. Australasian Meat Industry Employees' Union (No. 2) (1984) 54 A.L.R. 730 where the authorities are discussed. This does not mean an applicant may simply offer the Court propositions of law and fact and argue that, because they have some complexity, 1t necessarily follows that the requisite standard has been met. An 'applicant must show that there is in truth a serious question to be tried. I find it unnecessary to unravel the arguments that have been put on both sides so far as the strength of any cause of action is concerned. I accept that there is a serious question to be tried; but, in my view, there are considerations strongly against an extension of the injunction. The Court now has before it a great deal of evidence that was not available to it at the first hearing. It is possible to assess with greater confidence the implications for the applicant, on the one hand, if an extension of the injunction is refused and for the respondents, on the other, if an extension is granted. In this regard it 1s important to appreciate what the injunction sought is about and what it is not about. It is not about the applicant's livelihood for that is derived, at any rate for the time being, from cricketing and allied activities not affected by any rules of the W.A.C.A. That is not to say that to disqualify the applicant from participating in grade fixtures will not cause him some financial loss. But in the circumstances that loss is minimal. At the time of the hearing there were only two grade fixtures remaining this season, to he played on 1, 2, 8 and 12. _respondents from takinaq anv action to interfere with the eligibility of 'the applicant ta play in any A arade pennant fixture or Toyota Cup fixture. The responsibility still lay on the Subiaco Floreat Cricket Club to make its selection of plavers and, had the match been played, 1t would have had to make that selection with an awareness that the applicant was reaarded as a disqualified player. The club would have had to make its own assessment of the applicant's position under" the Cricket Council rules. The same would be true if the injunction were now extended, for the actions of the applicant that gave rise to his alleged disqualification took place before any application was made to this Court. The W.A.C.A. says that an injunction will create serious administrative difficulties for it, particularly if the applicant plays in any of the remaining matches and its actions are vindicated by the Court at the substantive hearing. Evidence was given to the Court, by affidavit, newspaper reports and television coverage, of incidents that took place when the applicant played in grade fixtures late last year. There were anti-apartheid demonstrations, with some violence and some damage to pitches. The respondents say they fear a recurrence of these incidents if the applicant is permitted to play in the remaining matches. Once again, it is important to stress that the Court is not being asked to make an order and indeed could not make an order that took from the Subiaco Floreat Cricket Club or any club the right to make its own selection of players for the remaining matches. What it is being asked to do is to enjoin the first and fourth respondents from taking any action to interfere with the applicant's l4. not be Futile. In so far as 1t seeks to restrain the respondents from dotera anything to interfere with the aoplicant s eligibility, 1t would prevent the W.A.C.A. or Cricket Council from taking any further action having any consequences for the applicant's eliqibility. But there 1s no suggestion that this is likelv to happen; Lhe first and fourth respondents take their stand verv firmly on the position that they sav now exists. I am persuaded to refuse an iniunction until trial because I do not think it would achieve anything. It would make no difference to whatever situation in law now exists and would qive the applicant no protection that he does not already have. But there is a danger that the grant of an injunction would be seen by many as being not futile and as reflecting some concluded view by the Court regarding the merits of the substantive application. This is something I have sought to dispel more than once during the course of argument before me but I am not persuaded that the risk does not still exist. There are very good reasons for not adding to the position of the parties the further complication of an interlocutory injunction. In summary then, I accept that the causes of action pleaded raise a serious question to be tried. However I am of the opinion that an extension of the injunction should he refused. Because I am of that view, I think it undesirable to express views about complex questions of law and fact, which views are more appropriately expressed in the context of a substantive hearing. Iam of the opinion that to refuse an injunction will not cause the applicant financial loss so long as the decision of the Court is properly understood. If there is financial loss, it will he