Not for general distribution Trade Practices - Trade Practices Act 1974 - Application for interlocutory injunction under s.80 - professional footballer refused permit by Football League to participate in competition games - restraint of trade - jurisdiction of court - cause of action under Trade Practices Act not specifically pleaded - interim injunction granted Trade Practices Act 1974 - 3.80(2); 80(5) Cases Adamson v. West Perth Football Club Inc. and Others (1979-1980) 27 ALR 457 at 499 Buckley v. Tutty (1971) 125 CLR 353 Hall v. Victorian Football League - Supreme Court of Victoria - unreported 31 August 1977) The Australian Coarse Grain Pool Pty Ltd v. The Barley Marketing Board of Queensland (1983) 57 ALJR 425. TITLE: ARFMAS PTY LTD and MAURICE JOSEPH RIOLI v. VICTORIAN FOOTBALL LEAGUE No. WA G38 of 1986 MUIRHEAD J. PERTH 2ND MAY 1986 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G38 of 1986 BETWEEN: ARFMAS PTY LTD Applicant and MAURICE JOSEPH RIOLI Second Applicant and VICTORIAN FOOTBALL LEAGUE Respondent MINUTE OF ORDER JUDGE MAKING ORDER: MUIRHEAD J. DATE OF ORDER: 2 MAY 1986 WHERE MADE: Perth THE COURT ORDERS THAT: The applicants having given the usual undertaking as to damages And Until Further Order, order that the respondent by its proper officers, servants agents or otherwise forthwith grant such permit as is or may be necessary to enable the second applicant to play football for Sydney Rules Pty Limited in professional Australian Rules Football Ww competititons conducted by the respondent pending 'Jinal determination of the issues arising between the applicants and the respondent in this application. Liberty to the parties to apply for such further orders or directions as they may be advised upon 48 hours written notice to the other party or parties. This order shall be entered forthwith Service of this Order may be effected by telegram, or letter including facsimile letter to the respondent signed by or on behalf of the Registrar pursuant to Order 7 Rule 13. Costs reserved. The time for service of the Application, Statement of Claim and Affidavits filed herein be abridged to the lst May 1986. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G38 of 1986 BETWEEN: ARFMAS PTY LTD Applicant and MAURICE JOSEPH RIOLI Second Applicant and VICTORIAN FOOTBALL LEAGUE Respondent CORAM: MUIRHEAD J. 2 May 1986 REASONS FOR JUDGMENT By Application filed in this Court (at the Perth Registry) on 30 April the applicants seek interlocutory relief, primarily an order directed to the respondent that it should "forthwith grant the second applicant" (Riol1) "a permit to play football for Sydney Rules Pty Limited (Swans) in professional Australian Rules Football competitions conducted by the respondent" (VFL) "pending final determination of the issues arising in the application. The Statement of Claim was filed the same date. ba The first applicant (ARIMAS) is the manager of Rioli, Who on the affidavit evidence before me 1s a skilled professional footballer. The application was brought in this Court yesterday, far from the scene of controversy, because, as I understand it, this court was able to give the earliest hearing. The application has been brought in haste, the VFL has only just been served and has not had the opportunity to place any factual material before the court. These matters make determination of such an application difficult and if an interlocutory order is made it must be of an interim nature (see 0.25 r.1 Federal Court Rules of Court and s5.80(2) Trade Practices Act 1974). The VFL which opposes the application was however represented by senior counsel. Whilst at my invitation, he put submissions in opposition on the merits, the primary thrust of his argument went to the question of Jurisdiction, a matter I must first determine. I summarise the background facts as they appear in the affidavits of Rioli and Terence McAuliffe, and the exhibits thereto. Rioli, whose present income is derived from professional football, until recently played for the Richmond club. Farlier this month he was recruited to play for the Swans. He obtained a 'clearance' from Richmond early this month "through", he asserts, the VFL. He has been engaged to play with the Swans during 1986, 1987 and 1988 but the VFL refuses to grant a permit which is apparently a necessary prerequisite to his participation in league ld matches. He has <5 data misced tour matches by thzs reason. His income 1s thus diminished and he swears he qave up a position as an officer with the Department of Youth Sport and Recreation of Victoria as a consequence of joining the Swans. He seeks an order of this Court which may permit him to play without delay. The Affidavit of Mr McAuliffe exhibits recent communications between ARFMAS, its solicitors, VFL's solicitors and VFL. I. will not deal with it save to comment that the applicants have, at least since 21 April, made every effort to obtain a permit. In a telex to the VFL dated 23 April, the applicants' solicitors stressed that the VFL's attitude if maintained "would clearly be oppressive and in restraint of trade and in this case in derogation of a professional footballer's right to work". In contrast to the applicants' vigorous efforts to resolve the situation the VFL has (in correspondence at least) been reticent. By letter dated 24 April the VFL's solicitors wrote to the applicants' solicitors stating inter alia "The Sydney Swans have exceeded the Club's Maximum Team Salary and are in breach of Player Rule 50. A permit will only issue when the Rules have been complied with". Efforts on behalf of the applicants to obtain an up to date copy of Rule 50 from the VFL or its advisers do not appear to have met with success at the time of hearing. I do not know the content of Rule 50. It may be concluded that Rioli's inability to play is not due to shortcomings on his part. Mr Anderson Q.C. submits that this court has no jurisdiction. If incidental jurisdiction exists, it is argued correctly that it can only be by reason of the stautory at bie eh fe te a el cl tae ALN att poneeren aan A ee NS jJurssidiction of thas Court under the Trade Practices Act 1974. That jurisdiction, it 13 argued, can only exist when on the pleadings that jurisdiction 1s invoked. In Adamson v. West Perth Football Club Inc. and others (1979-1980) 27 ALR 475 at 499 Northrop J. dealt with the source of incidental power. Counsel referred to this passage (lines 13 to 39). His Honour stated, at p.500, and he was referring to the facts in the case before him" "Applying the principles stated and on the facts of this case, I am of the opinion that the court has jurisdiction to hear and determine the claim made by the applicant in so far as it is based on the common law doctrine of restraint of trade and that the court should exercise that jurisdiction. The facts on which the claim is made under the Trade Practices Act are the very same facts on which the claim is made under the common law doctrine. The one form of relief is claimed. The claim made under the Trade Practices Act is made bona fide and is substantial. The common law doctrine relied upon as a ground is not completely severable from the grounds supporting the claim under the Trade Practices Act". The primary initial question is whether there is before the Court "a matter vested in it by laws made by the Parliament being in respect of matters arising under laws made by the Parliament". The nub of the objection to the jurisdication is that the pleadings, (the Application and the Statement of Claim) do not specifically plead the provisions of the Trade Practices Act, except perhaps in a very general way. The Statement of Claim alleges that both ARFMAS and the VFL are "corporations" within the meaning of the Trade Practices Act. That allegation is consistent only I think with the conclusion that the cause of action arises under that Act. The on applicants' counsel informed the Court that his clients' action 1s based on s.45(2)(a)1i which provides that "A corporation shall not make a contract or arrangement, or arrive at an understanding, if...... a provision of the proposed contract. arrangement or understanding has the purpose, or would have or be likely to have the effect, of substantially lessening competition....". The Statement of Claim does not refer to ""a contract arrangement or understanding", it makes no reference to s.45 nor indeed to s.80 which deals generally with injunctions, including an injunction of the nature here sought under s.80(2),and s.80(5). The Rules of this Court relating to pleadings are obviously designed for simplicity and brevity (see Order 11), particularly Rules 2, 3 and 6, and the powers of obtaining particulars and indeed of amendment are wide. See Order 13 Rule 2. It is the material facts to which emphasis must be given. I do not consider the failure to specifically plead the cause of action under the Trade Practices Act justifies the Court in refusing jurisdiction, nor indeed does it deprive it of jurisdiction. The facts pleaded are in my view sufficient to invoke this Court's jurisdiction under the Trade Practices Act. If I had thought to the contrary I would have given leave (if indeed leave is required bearing in mind Order 13 Rule 3(1)) to amend to enable the Court to determine the real questions raised upon the application. It must also be borne in mind that Order 25 Rule 1 empowers this Court to grant injunctions before the commencement of proceedings; in such cases of urgency the Court would have to rely on counsel's submissions in examining , jurisdiction. In reaching my conclusion I am not unmindful of the applicants reference to the restraint of trade in the correspondence. and I am satisfied that the VFL 1s not embarrassed, at this stage, by the form of pleading. This is not to say that I hold the Statement of Claim is in adequate form for resolution of the substantive issues in due course - that is not now a matter for me - but I am satisfied that the cause of action is based on the Trade Practices Act and the jurisiction granted to this Court by that Act. Mr Anderson Q.C. also referred to the inconvenicne caused by the matter being determined in Perth. He submits that I should decline to make an order and adjourn it elsewhere closer to the seat of contention. I can understand this submission - in fact I have some selfish sympathy for it. But on the evidence before me Rioli is suffering a continuing loss and he is entitled to seek relief in the Federal Court in Perth, if it is the venue which offers prospects for early relief. "Prt is as I have said, inappropriate to make a substantive determination of the issues but I consider the justice of the tage requires that I must now consider whether it is "desirable" to grant an interim injunction, the specific power so to do being provided by s.82(2) of the Act. It is of course not possible at this stage to assess the applicants prospects of obtaining relief and damages under the Trade Practices Act. The background in Adamson's case (supra) was different. There Northrop J. examined the relationship between a plaver. a ciub ana the icaque. He commented (at p.504) "Tt was not really disputed and I find that the rules and requlations of the various leagues and clubs constitute a contract arrangement or understanding within s.45 of the Act and that in so far as those rules and regulations prevent a person from playing football with a club of his choice, contain a provision which is capable of having a purpose which has or is likely to have the effect of substantially lessening competition..... By complying with the permit and clearance provisions of those rules and regulations the respondents, being corporations within s.45 of the Act are parties to the contract arrangement or undertaking and are giving effect to a provision which is capable of being proscribed by s.45". (See generally Buckley v. Tutty (1971) 125 CLR 353 and Hall v. Victorian Football Leaque - Supreme Court of Victoria - unreported 31 August 1977). Upon the material now before me it is evident that Rioli a talented professional footballer is now prevented from pursuing his professional calling. This does not appear to be by virtue of any breach of rules or conduct on his part. He is not in dispute with a club. The source of the dispute which is disqualifying him as an individual apparently lies between Swans and the VFL and has its origins in matters which are probably beyond his control. He appears to be the 'meat in the sandwich' and it is at least arguable that the refusal to grant a permit imposes upon Riolia restraint of trade which is unreasonable and unjustified. His advisers have acted with expedition. The VFL, so the exhibits demonstrate, has not responded with the same expedition and I find it difficult to understand the delay in supplying the copy of the rule requested. The affidavit evidence establishes he is Ww suffering a continuing financial loss. The factors to be considered are whether there 1S a serious question to be tried, followed by a determination of the balance of convenience (The Australian Coarse Grain Pool Pty Ltd v. The Barley Marketing Board of Queensland (1983) 57 ALJR 425). Iam satisfied there is a serious question to be tried. There can hardly be dispute on this issue. As to the balance of convenience, that balance is heavily weighed in favour of the applicants. Both, in their affidavits, have given an undertaking in damages to this court. As I have said Rioli is suffering financial loss but also he is currently subject to a disqualification and an absence from match play which could operate to his detriment. I appreciate it has many and wide responsibilities but the VFL is unlikely to suffer prejudice by reason of Rioli's appearance on the field. In fact one would think that football generally will benefit by the participation of such a fine footballer, assuming as I do that the promotion of Australian Rules is one of the functions of the VFL. Its counsel contends that an interim injunction in the form proposed may have extensive repercussions as it may require the VFL to grant a permit contrary to its rules and regulations - that it may, as it were, set a difficult precedent. I would be surprised if an interlocutory order of this Court which requires the granting of a permit to enable one player to take the field, an order which is subject to review, could possibly serve to jeopardise the VFL in its administrative responsibilities. Tam satisfied that the justice of the matter requires that an injunction be granted. I order as follows: The time for service of the Application, Statement of Claim and Affidavits filed herein be abridged to the lst May 1986. The applicants having undertaken to abide by any order which the Court may make as to damages in the event that the Court is of the opinion that any party has been adversely affected by reason of this Order, order that until further order the respondent by its proper officers, servants, agents or otherwise forthwith grant such permit as is or may be necessary to enable the second applicant to play football for Sydney Rules Pty Limited in professional Australian Rules Football competitions conducted by the respondent pending final determination of the issues arising between the applicants and the respondent in this application. Liberty to the parties to apply for such further orders or directions as they may be advised upon 48 hours written notice to the other party or parties. This Order shall be entered forthwith. 5. Service of this Order may be effected by telegram, telex, facsimile. to the respondent pursuant to Order 7 Rule 13. 6. Costs reserved. I certify that this and the preceding nine pages are a true copy of the reasons for decision herein of his Honour Mr Justice Muirhead. (Mipabedd Nrclerwor Associate Dated: 2 May 1986 or