Liverpool Touch Football Association v New South Wales Touch Association Incorporated [2014] NSWSC 1553

Supreme Court New South Wales

Medium Neutral Citation: Liverpool Touch Football Association v New South Wales Touch Association Incorporated [2014] NSWSC 1553 Hearing dates: 23 October 2014 Decision date: 23 October 2014 Jurisdiction: Equity Division - Duty List Before: White J Decision: Summons dismissed. Catchwords: ASSOCIATIONS AND CLUBS - jurisdiction of the courts - application for short service - plaintiff participant in touch football competition sought to set aside decisions of defendant competition manager - no contractual relationship between plaintiff and defendant - held claim not justiciable - summons dismissed Cases Cited: Cameron v Hogan (1934) 51 CLR 358 Rush v WA Amateur Football League (Inc) [2007] WASCA 190; (2007) 35 WAR 102 Category: Principal judgment Parties: Liverpool Touch Football Association (Plaintiff) New South Wales Touch Association Incorporated (Defendant) Representation: Counsel: I Leong (Plaintiff) Solicitors: Woodward Wickes Wicken (Plaintiff) File Number(s): 2014/312148

Judgment 1HIS HONOUR: This is an application for short service. The plaintiff participates in a touch football competition run in Sydney known as the Vawdon Cup. The competition is managed by the defendant. 2The plaintiff fielded three teams in three separate divisions of the Vawdon Cup. It plays under the name Liverpool Lightning. Liverpool Lightning were the minor premiers for the Third Division. 3The final draws for the Third Division of the Vawdon Cup were: semi-final one, first versus second; and semi-final two, third versus fourth. The winner of semi-final one was to go straight to the grand final and the loser to play the winner of semi-final two, with the winner of that game to play the winner of semi-final one in the grand final. 4The Third Division team of Liverpool Lightning won its semi-final. It contends that it was entitled to go straight to the grand final. However, the defendant that manages the competition ruled that it was to be taken as having forfeited the semi-final on the grounds that it had been required to pay a fee in respect of two earlier forfeits of other teams from the club during the course of the competition, and did not do so. 5It has been notified that it is to be treated as having lost the semi-final and, therefore, it has been drawn to play the winner of semi-final two. It says it should not be required to participate in that game. The game is due to be played on Saturday, that is, in two days' time. 6The plaintiff seeks an urgent hearing of what is essentially a claim for final relief to set aside the decisions of the board of the defendant. It seeks an order from this Court determining who are the proper teams to play in the preliminary and grand final of Division Three of a touch football competition. 7If that is an issue that can and should be adjudicated upon, then the other clubs affected would presumably have the same interest in the relief sought as does the plaintiff. It would be necessary to join at least the Parramatta District Touch Football Association that fielded the team that lost to Liverpool Lightning in the semi-final but has gone through to the grand final, and possibly the winner of semi-final two. 8I do not think it necessary to make any such orders for joinder. I do not think it appropriate to make an order for short service. In saying so, I recognise that I am in substance disposing of the application ex parte. 9In in my view, the principles in Cameron v Hogan (1934) 51 CLR 358 apply in this case. In that case Starke J said (at 384): "As a general rule the Courts do not interfere in the contentions and quarrels of political parties, or indeed, in the internal affairs of any voluntary association, society or club. 'Agreements to associate for purposes of recreation, or an agreement to associate for scientific or philanthropic or social or religious purposes, are not agreements which Courts of law can enforce. They are entirely personal. Therefore, in order to establish a civil wrong from the refusal to carry out such an agreement, if it can be inferred that any such agreement was made, it is necessary to see that the pursuer has suffered some practical injury, either in his reputation or in his property' (Murdison v Scottish Football Union (1896) 23 R (Ct. of Sess.) 449 at pp 466-67)." 10In the same case, Rich, Dixon, Evatt and McTiernan JJ said (at 370): "Judicial statements of authority are to be found to the effect that, except to enforce or establish some right of a proprietary nature, a member who complains that he has been unjustifiably excluded from the voluntary association, or that some breach of its rules has been committed, cannot maintain any action directly founded upon that complaint ... There are ... reasons which justify the statement that, at common law as well as in equity, no actionable breach of contract was committed by an unauthorised resolution expelling a member of a voluntary association or by the failure on the part of its officers to observe the rules regulating its affairs unless the members enjoyed under them some civil right of a proprietary nature." 11In Rush v WA Amateur Football League (Inc) [2007] WASCA 190; (2007) 35 WAR 102 at 108, [30] and 109-110, [37], the Court of Appeal of Western Australia said: "[30] In Skelton's case, [Skelton v Australian Rugby Union Ltd [2002] QSC 193], Chesterman J noted that there were many cases in which Courts have intervened where exclusion or suspension from membership of a club or association had occurred in breach of the organisation's rules or of natural justice. However, as his Honour noted, all of those cases were predicated upon the person involved suffering some diminution of rights of property, livelihood or trade. To that category of case may be added cases where a person's reputation is damaged ... [37] In the particular circumstances of this case, in the absence of any property, income or reputational interests, this Court has no jurisdiction to decide issues arising out of the consensual but non-contractual relationship between the parties." 12The evidence does not show any contractual relationship between the plaintiff and the defendant. Nor am I satisfied, despite the best efforts of counsel for the plaintiff, that the decision to declare the plaintiff's win in the semi-final forfeited affects any person's reputation in any relevant sense. Doubtless, the issue is one about which those playing in the team and associated with the club feel strongly. That is not a sufficient reason for the dispute to be justiciable. 13I think this case illustrates very clearly the policy behind the rule laid down in Cameron v Hogan. There is no reason the Supreme Court should be asked to rule on the legality of decisions concerning the running of the competition. 14In this case the plaintiff complained to the board of the defendant that had the management of the competition about the decision. The board upheld the decision. It relied upon material that showed that the plaintiff had been told that the fine would have to be paid prior to its participating in the semi-final. It took account of conflicting statements made about that. 15The plaintiff says the board misapplied the relevant rule. According to the plaintiff's submission, the rule required forfeiture to be effected, before the game occurred, by a decision that the club was not allowed to participate in the semi-final in question. I think that is an arguable construction of the rule. But the application of the rule in the circumstances of the case was a matter for the board and for the board alone. 16For these reasons, I refuse the application for short service. 17I will hear counsel as to whether the plaintiff wishes the summons to be returnable at some future date in the Registrar's list, or whether I should simply dismiss the summons without other parties being joined and further costs being incurred. [Counsel addressed.] 18Counsel for the plaintiff sensibly does not ask for the summons to go over into the Registrar's list. There is no occasion, I think, for the incurring of further legal costs by service of the summons upon the defendant. 19The appropriate order is to order that the summons be dismissed. 20No order, of course, as to costs. 21Exhibits returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 December 2014