Ausn Rugby Football League Ltd & Ors v Brisbane Broncos Rugby League Club & Ors S183/1996 [1996] HCATrans 417 (24 October 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S182 of 1996

B e t w e e n -

AUSTRALIAN RUGBY FOOTBALL LEAGUE LIMITED

First Applicant

NEW SOUTH WALES RUGBY LEAGUE LIMITED

Second Applicant

SOUTH SYDNEY DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED,

EASTERN SUBURBS DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED,

ST. GEORGE DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED,

SYDNEY TIGERS RUGBY LEAGUE FOOTBALL CLUB LIMITED,

WESTERN SUBURBS DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED,

MANLY WARRINGAH DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED,

PARRAMATTA DISTRICT RUGBY LEAGUE CLUB LTD,

GOLD COAST SEAGULLS RUGBY LEAGUE FOOTBALL CLUB LIMITED,

ILLAWARRA DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED,

NORTH SYDNEY DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED,

SOUTH QUEENSLAND CRUSHERS RUGBY LEAGUE FOOTBALL CLUB LIMITED,

NEWCASTLE KNIGHTS LIMITED

Third to Fourteenth Applicants

and

NEWS LIMITED

First Respondent

SUPER LEAGUE PTY LIMITED

Second Respondent

AH IL PTY LIMITED,

AH GC PTY LIMITED,

AH EA PTY LIMITED,

AH CR PTY LIMITED,

AH CT PTY LIMITED,

AH CB PTY LIMITED,

AH BR PTY LIMITED,

AH BA PTY LIMITED,

AH MN PTY LIMITED,

AH NE PTY LIMITED,

AH NO PTY LIMITED,

AH NQ PTY LIMITED,

AH WR PTY LIMITED,

AH WE PTY LIMITED,

AH SG PTY LIMITED,

AH SQ PTY LIMITED,

AH SO PTY LIMITED,

AH PE PTY LIMITED,

AH PA PTY LIMITED,

AH AU PTY LIMITED

Third to Twenty-Second Respondents

Office of the Registry

Sydney No S183 of 1996

B e t w e e n -

AUSTRALIAN RUGBY FOOTBALL LEAGUE LIMITED

First Applicant

NEW SOUTH WALES RUGBY LEAGUE LIMITED

Second Applicant

SOUTH SYDNEY DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED,

EASTERN SUBURBS DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED,

ST. GEORGE DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED,

SYDNEY TIGERS RUGBY LEAGUE FOOTBALL CLUB LIMITED,

WESTERN SUBURBS DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED,

MANLY WARRINGAH DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED,

PARRAMATTA DISTRICT RUGBY LEAGUE CLUB LTD,

GOLD COAST SEAGULLS RUGBY LEAGUE FOOTBALL CLUB LIMITED,

ILLAWARRA DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED,

NORTH SYDNEY DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED,

SOUTH QUEENSLAND CRUSHERS RUGBY LEAGUE FOOTBALL CLUB LIMITED,

NEWCASTLE KNIGHTS LIMITED

Third to Fourteenth Applicants

and

BRISBANE BRONCOS RUGBY LEAGUE CLUB LIMITED,

CANBERRA DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED,

CANTERBURY-BANKSTOWN RUGBY LEAGUE CLUB LIMITED,

CRONULLA-SUTHERLAND DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED,

WESTERN REDS RUGBY LEAGUE FOOTBALL CLUB LIMITED,

PENRITH DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED,

SYDNEY BULLDOGS LIMITED,

AUCKLAND WARRIORS RUGBY LEAGUE LIMITED

First to Eighth Respondents

Office of the Registry

Sydney No S184 of 1996

B e t w e e n -

AUSTRALIAN RUGBY FOOTBALL LEAGUE LIMITED

First Applicant

NEW SOUTH WALES RUGBY LEAGUE LIMITED

Second Applicant

SOUTH SYDNEY DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED,

EASTERN SUBURBS DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED,

ST. GEORGE DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED,

SYDNEY TIGERS RUGBY LEAGUE FOOTBALL CLUB LIMITED,

WESTERN SUBURBS DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED,

MANLY WARRINGAH DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED,

PARRAMATTA DISTRICT RUGBY LEAGUE CLUB LTD,

GOLD COAST SEAGULLS RUGBY LEAGUE FOOTBALL CLUB LIMITED,

ILLAWARRA DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED,

NORTH SYDNEY DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED,

SOUTH QUEENSLAND CRUSHERS RUGBY LEAGUE FOOTBALL CLUB LIMITED,

NEWCASTLE KNIGHTS LIMITED

Third to Fourteenth Applicants

and

COWBOYS RUGBY LEAGUE FOOTBALL CLUB LIMITED

Respondent

Application for expedition

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 24 OCTOBER 1996, AT 9.36 AM

Copyright in the High Court of Australia

MR R.J. ELLICOTT, QC: Your Honour, I appear with MR A.J.L. BANNON in each of those matters for the applicant. (instructed by Gilbert & Tobin)

MR J.D. HEYDON, QC: I appear with MR T.D. CASTLE for the respondents in the first-called matter. (instructed by Atanaskovic Hartnell)

MR P.J. DOWDY: I appear for the Super League clubs in 183 and 184, may it please the Court. (instructed by Phillips Fox and Suthers & Taylor)

MR J.R. SACKAR, QC: This morning we appear as a matter of courtesy to the Court. I appear with MS P.P. WINES for the persons in appendix 2 to the judgment. (instructed by Gadens Ridgway)

HIS HONOUR: Now, are you joined in Mr Ellicott's application for special leave?

MR SACKAR: We have been served with the papers.

HIS HONOUR: But you are not joined on the record.

MR SACKAR: I do not believe we are, but I would be seeking leave to intervene at some appropriate point in the proceedings at least, but perhaps not for this morning's purposes.

HIS HONOUR: I need to know what you are going to be doing on the hearing of the leave applications because it goes to matters of timing, I suppose.

MR SACKAR: Quite. We would be seeking leave to intervene at that point.

HIS HONOUR: Will you be saying anything that will not be said by Mr Heydon or Mr Dowdy?

MR SACKAR: I do not believe so.

HIS HONOUR: All right. Now, Mr Ellicott, you move on three summonses, I think.

MR ELLICOTT: Yes, your Honour. They are dated 18 October, and there is an affidavit of John Richard Quayle of the same date.

HIS HONOUR: Which is read in all three?

MR ELLICOTT: Yes.

HIS HONOUR: I have read Mr Quayle's affidavit. There is no objection to it, is there, gentlemen? All right. Now, Mr Quayle's affidavit, particularly I think paragraphs 14 or 15 and following, indicate there is a degree of special urgency in the matter. The Court would have available a spot in the leave list on 15 November. That would require some adjustment of the ordinary timetable procedures to speed it up, as it were.

MR ELLICOTT: Yes, your Honour.

HIS HONOUR: Is there any difficulty with meeting that deadline?

MR ELLICOTT: We would have no difficulty, your Honour.

HIS HONOUR: I had better ask Mr Heydon.

MR HEYDON: The only adjustment that would be necessary would be an expedited preparation of the application book - - -

HIS HONOUR: Yes, and I would be anxious that the bench hearing it have ample time to digest the submissions.

MR HEYDON: I think the Rules provide for the applicants' to be on 10 days before the day, ie on the fourth or so of November, and the respondents' five days later.

HIS HONOUR: Yes. Let me ask Mr Dowdy? Have you got any difficulties about that, Mr Dowdy?

MR DOWDY: No, your Honour.

HIS HONOUR: Appearances have to go on. Have they gone on yet?

MR HEYDON: No. We will have them on shortly.

HIS HONOUR: They can go on today or tomorrow.

MR HEYDON: Yes.

HIS HONOUR: Then the next thing that would have to be done would be to settle the index, which is usually in the carriage of the Registrar. Could that be done with co-operation of the solicitors by 29 October?

MR HEYDON: I would think so, your Honour. We have seen a draft index which seems to conform to what reason would require.

HIS HONOUR: Then the application book, I was going to suggest for counsel's consideration, could the application book go in on 4 November, together with the summary of argument by the applicants for leave. That has to cross-reference the application book with paginations and so on, but that can be done if they both go in on the same time. Mr Heydon and Mr Dowdy's summary one week later, which is on the 11th, or if you could do it earlier, tell me.

MR HEYDON: May we have the 11th, but bear in mind what your Honour just said about the importance of the Justices having it sooner than later.

HIS HONOUR: All right. Let me ask you this, Mr Heydon, and Mr Dowdy too: if leave were granted, would there be notices of contention and cross-appeals?

MR HEYDON: Yes, as to notices of contention, and possibly as to a cross-appeal on one point.

HIS HONOUR: What would that be?

MR HEYDON: The Full Court did not find entirely favourably to the appellants below in that while finding a one year contract between each club and the League, implied a term into it which the Full Court said was breached by the relevant clubs, and that breach was induced by News. We would wish to reserve for consideration whether to cross-appeal on that point. As to the notices of contention, there are some questions that the Full Court did not go to because it was not a necessary step in view of their reasoning in other respects.

HIS HONOUR: What are they?

MR HEYDON: Form of remedy. There are many independent attacks upon the remedies granted by the trial judge which we would wish to make. There is also perhaps another matter. The present special leave papers do not deal with a part of the judgment below, though they seek special leave to appeal from "the whole of the judgment below", namely a part dealing with the non-joinder of 310 players and coaches who only participated below at the time by leave of the remedy as being determined by the trial judge and who then intervened in the Full Court.

HIS HONOUR: That is Mr Sackar's group?

MR HEYDON: That is Mr Sackar's point. I was astonished to hear Mr Sackar say that he would have nothing to say that I would not say because that is not normally Mr Sackar's style, but may I just say this now, it would be a question as to how many of the remedies of the learned trial judge could survive, even if the whole of the Full Court judgment were overturned, in view of the non-attack by the present applicants upon the Full Court's reasoning in relation to the players. That would be another aspect of the notice of contention.

HIS HONOUR: The points you have just outlined to me, Mr Heydon, will appear in your summary of argument which may provide some need for your opponents to reply to that, I suppose.

MR HEYDON: We have no problem with liberty being given in that regard. It will not be placed at very much greater length than what I have just said.

HIS HONOUR: All right. It may be Mr Ellicott will be able to deal with that sufficiently on his feet on the day.

MR ELLICOTT: Yes, your Honour, I think we should be able to, if that does not sound too presumptuous. But we may even pre-empt it a little by dealing with it in our own submission.

HIS HONOUR: That might be very useful, I think.

MR ELLICOTT: The position of the players, we need to consider in the overall scheme of things, your Honour.

HIS HONOUR: Very well.

MR ELLICOTT: There is a limitation in the Rules about length of - - -

HIS HONOUR: There is, yes, 10 pages.

MR ELLICOTT: Is it the Court's desire that we comply with that?

HIS HONOUR: It is unseemly to haggle about it. I was going to suggest 15 pages. The more succinct it is, as we all know, the better. But I realise there is a lot in it. I would extend the limitation in Order 69A rule 8(4) to 15 pages.

MR ELLICOTT: Closely typed, your Honour.

HIS HONOUR: Now, the matter would go, I think, at the head of the list on the 15th and may well commence at 9 am. Now, all three applications would be heard together, I suppose, and I would propose to provide 25 minutes oral argument on each side, excluding you from consideration at the moment, Mr Sackar.

MR SACKAR: May I say something about that in one moment, your Honour?

HIS HONOUR: Yes, what do you want to say about it?

MR SACKAR: I only want to say this, your Honour, that would your Honour make as part of the timetable allowance for us to put in some written material. I misunderstood what your Honour said earlier. We do want to put some submissions which are peculiar to the players. They are not going to be covered entirely by News Limited's submissions. They were not below, they will not be entirely covered here. And there are special orders or particular orders made by Justice Burchett which were of particular concern to us and which we were successful in below. So we do want to put submissions in terms of our right, we say - - -

HIS HONOUR: They were set aside, were they not?

MR SACKAR: They were. The draft notice of appeal seeks to reinstate all orders.

HIS HONOUR: Is that right, Mr Ellicott?

MR ELLICOTT: Yes, your Honour.

HIS HONOUR: All right. Your outline should really go in at the same time as Mr Heydon's, I suppose, Mr Sackar?

MR SACKAR: Yes, your Honour.

HIS HONOUR: This is what I propose, gentlemen.

1. Order in terms of order 1 of each of the summonses which was filed on 18 October.

2. Direct that each application be entered in the list of applications to be heard in Sydney on 15 November 1996 and that the applications be heard together.

3. Oral argument for each of the applicants and respondents be extended to 25 minutes.

Just pausing there for a moment, Mr Dowdy and Mr Heydon, will you be overlapping?

MR HEYDON: Yes, we, I think, did overlap in the Full Court. Representation was more unified at trial.

HIS HONOUR: I would have thought so. Mr Ellicott appears for the League and for what has been called the loyal clubs. You appear for - - -

MR HEYDON: I appear for News Limited, Super League and the Super League franchisees and Mr Dowdy appears separately for eight rebel clubs.

HIS HONOUR: The so-called rebel clubs, yes.

MR HEYDON: And the interests of the eight rebel clubs and of my clients in many respects are similar.

HIS HONOUR: I do not see why Mr Ellicott should have 25 minutes and you two should have 50.

MR HEYDON: No. But we respectfully submit that if we have 25 minutes, any tightening of the belt ought to be around the waist of Mr Dowdy.

HIS HONOUR: What do you say to that, Mr Dowdy?

MR DOWDY: We would like 15 minutes.

HIS HONOUR: What are you going to say that Mr Heydon has not said?

MR DOWDY: Certainly on the form of remedies we would want to say something. Perhaps your Honour could just extend ours a further five minutes so that Mr Heydon and I could come to an agreement about how we divide 30 minutes.

MR HEYDON: I am content with that course, your Honour.

HIS HONOUR: Yes, very well.

All argument for the applicants, and the respondents together, be extended to 30 minutes for each side.

4. The page limitation in Order 69A rule 8(4) extended to 15 pages.

5. The index be settled on or before 29 October.

6. The application book be filed on or before 4 November.

7. The applicants' summary of argument be filed on or before 4 November.

8. The respondents' summaries of argument and summary for the intervener be filed on or before 11 November.

9. Reserve the application for leave to intervene sought by Mr Sackar.

10. The costs of the summonses should be costs on the applications.

11. I certify for counsel.

Is there anything else?

MR HEYDON: Just to correct one think I said earlier. We have filed our appearance. It was only done this morning just before your Honour came on the bench.

HIS HONOUR: Is there anything else, gentlemen? Thank you. I will adjourn now.

AT 9.54 AM THE MATTER WAS CONCLUDED