Carlton Football Club Ltd and ANOR v Australian Football League and ORS M65/1997 [1997] HCATrans 218 (1 August 1997)

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No.M65 of 1997

BETWEEN: CARLTON FOOTBALL CLUB LIMITED and ANOTHER

Applicants

- and -

AUSTRALIAN FOOTBALL LEAGUE and OTHERS

Respondents

DAWSON J (In Chambers)

AT MELBOURNE, FRIDAY THE 1ST DAY OF AUGUST 1997

AT 4.30 PM

MR S.K. WILSON: If your Honour pleases I appear with my learned friend, Mr T.J. NORTH, on behalf of the applicants (instructed by Molomby & Molomby).

MR R.M. GARRATT: If the Court please I appear with my learned friend, Mr A.A. NOLAN, for the respondents (instructed by Browne & Co).

HIS HONOUR: Mr Wilson.

MR WILSON: Your Honour, this application is an application for a stay of an order of the Court of Appeal of Victoria made, in effect, made this morning or confirmed this morning but pronounced as at 1 week ago in relation to a matter wherein the Carlton Football Club and one of its players, Gregory Williams, were the respondents to the appeal and the Australian Football League and members of its Tribunal were the appellants. Your Honour, the brief history of the matter is set out - - -

HIS HONOUR: I have read the judgments in the Court of Appeal so I know what the history is.

MR WILSON: Thank you, your Honour. Your Honour, the application is brought by summons issued today seeking that the judgment of the Court of Appeal be stayed pending the hearing and determination of the applicant's application for leave - - -

HIS HONOUR: Now, that is a most exceptional application, is it not? It is one thing to stay further proceedings in a matter on a judgment, it is another thing to seek to stay the order itself. What is the effect of 35 - to grant that application, what is the effect - - -

MR WILSON: If your Honour were to grant the application the effect would be that the primary judgment of the trial Judge, Heddigan J, in our respectful submission, would be in force, or would still take effect because the effect of the order would be stayed and the result would be that player Williams would be entitled to continue playing, he would not be under effective suspension until such time as the appeal in this Honourable Court was heard.

HIS HONOUR: It would be in effect to set aside the judgment of the Court of Appeal pro tem.

MR WILSON: Well, with respect, your Honour, it would be to stay the judgment.

HIS HONOUR: Or set it aside for a period of time.

MR WILSON: For a period of time, yes, to render it nugatory for a period of time, yes.

HIS HONOUR: In other words there to give, and what the Court of Appeal did, of course, was to say that the judgment of Heddigan J was wrong, it was a judgment really of a declaratory nature if that was not its form, was it not?

MR WILSON: Yes, your Honour.

HIS HONOUR: Because the action is an action for breach of contract, is it not?

MR WILSON: Correct, your Honour.

HIS HONOUR: And damages were not sought.

MR WILSON: That is so, your Honour.

HIS HONOUR: For what reason need not concern me, but they were presumably if your client's contention was right then damages were available as a remedy.

MR WILSON: Yes, that may be so, yes, your Honour.

HIS HONOUR: It must be so, is it not, provided he suffered damage, and I think the whole gravamen of your complaint is that he did and will suffer great damage.

MR WILSON: Yes, that he is a highly-paid, professional footballer who will suffer a loss of livelihood if the orders of the Court of Appeal are allowed to take effect.

HIS HONOUR: Damages were not sought, and in effect it was a proceeding for a declaration that the order of the Tribunal was made in breach of contract.

MR WILSON: That is so, your Honour, yes.

HIS HONOUR: Well now, the effect of setting aside, pro tem, or if you like, staying the actual judgment of the Court of Appeal is to leave in place, in effect, a declaration as to rights which may or may not be correct. You see the difficulties involved in that.

MR WILSON: That is so, yes.

HIS HONOUR: But it is one thing to stay proceedings, it is another to, as it were, stay the law.

MR WILSON: Well that is so, your Honour, except that in the context of this matter we would respectfully submit that the effective result in real terms is that the appellants before the Court of Appeal, in a sense, will still, at the end of the day, if we were unsuccessful in our application in this Court, would still have the benefit of the judgment and would still have the benefit of the declarations or effective declarations as to the operation of their Tribunal system, and it would be really incidental as to what happened ultimately to player Williams.

From Williams's perspective and from the Club's perspective the position is that if a stay is not granted pending the application then in effect the appeal is rendered nugatory because the affidavit material filed in Court, certainly filed with the Supreme Court, indicates that player Williams has declared his intention of retiring at the end of this year and there are approximately five home and away games in the AFL season left, plus if the Carlton Club were to make the finals which at the moment is by no means certain, there might be another four games there which would in fact mean that he has effectively served one week of the original nine weeks suspension imposed on him, that being last week in the interim period during the applications before the Court of Appeal, so he would have eight weeks of those nine weeks to serve, and that would effectively mean that the appeal would be rendered nugatory because if he does retire then the last games which he might have otherwise played would be, in effect, served under a suspension which might later be set aside.

HIS HONOUR: On the other hand if you look at it from the other direction the penalty which is imposed on him would be rendered nugatory, too.

MR WILSON: Well, that may be so in an immediate sense but - - -

HIS HONOUR: It is in every sense, is not it, if he is going to retire.

MR WILSON: Yes, except though, we would respectfully submit that the potential or the balance of convenience vastly favours the individual.

HIS HONOUR: Where is the convenience?

MR WILSON: Whose - well, with respect, your Honour, the justice of the matter in terms of who is likely to suffer the greater harm.

HIS HONOUR: Well, if your client suffers harm it will be of a financial nature primarily so far as the law regards breaches of contract, and he has an action for damages.

MR WILSON: Except, your Honour, that his primary livelihood has been the display of his football skills upon a field - - -

HIS HONOUR: Well, that may be, but he is about to retire.

MR WILSON: - - - for many years, and one would expect that he would want to be able to play out the number of games which it might be determined hereafter he is entitled to play out.

HIS HONOUR: Perhaps, but the damage is largely financial from his point of view.

MR WILSON: It cannot be said that he would not have a claim in damages, although as your Honour has indicated I do not believe one has been made in the proceeding. The other matter, your Honour, is this, that your Honour indicates that the claim was one framed in contract, and it was, but in our respectful submission by the time the case was heard and your Honour would have seen in the judgments of the court of appeal that it in a sense went beyond contract because the judges in the court of appeal, and particularly Tadgell J and certainly Hayne J considered the prospect that the relevant rules of natural justice which it was sought to import into the contract, as it were, were ostensibly and probably available in any event as simply a rule of law applicable to the circumstances as they arose in the context of the obligations of the Tribunal as a domestic Tribunal.

In those circumstances we would respectfully submit that there is a larger public policy issue here and that was one which was articulated by Heddigan J at first instance in the context of the matters in respect - - -

HIS HONOUR: But it still is just a matter of contract. Your client by virtue of his contract with the AFL, I take it it is - - -

MR WILSON: Well, it is a tripartite contract, your Honour, with the AFL and the Carlton Football Club.

HIS HONOUR: But by that contract he agreed that these matters, that is matters such as this, would be heard and determined by the Tribunal, and that is the contractual obligation. It may be that the Tribunal has an obligation to deal with it in a particular way, either because of the terms of the contract or if Tadgell is right because of an obligation imposed on it, but nevertheless what you say is that there was a breach of contract, that is your cause of action.

MR WILSON: That was the cause of action, your Honour. Except may we also add though, that in the context of those matters the court of appeal by majority at least, because I am sure that Ashley J and Hayne J expressly dealt with this matter, and that was that the purported rules or regulations which were adopted as part of the contract and which ostensibly tried to exclude the jurisdiction of the courts to review the operation of the Tribunal, could not be held to do so. So that, insofar as the AFL contended during the course of the respective hearings that the terms of the contract in effect were such as to exclude review of the Tribunal's decisionmaking process by the courts, they failed in relation to that. And - - -

HIS HONOUR: I mean, those submissions fall on deaf ears, Mr Wilson. It is an action for breach of contract.

MR WILSON: It is, your Honour, but - and that is how it was - - -

HIS HONOUR: At the beginning and at the end, it is an action for breach of contract.

MR WILSON: Yes. But we would respectfully submit, your Honour, a contract of an usual type in that - - -

HIS HONOUR: Why?

MR WILSON: Well in that the breach alleged is a breach - in that it is alleged that the Tribunal failed to adhere to the requisite principles of natural justice which, it is alleged, were imported into the terms of the contract and - - -

HIS HONOUR: That is not unusual and contracts resulting in jurisdiction being confined to domestic tribunals is a common enough thing.

MR WILSON: Yes, your Honour, except we would respectfully refer to Bond's case. Australian Broadcasting Tribunal v Bond referred to in [1990] HCA 33; 1990 170 CLR 321, and in particular to the judgment of Mason CJ who said at page - I hope we have a copy of that for your Honour - your Honour, we apologise. It is my learned junior's copy. It does have some markings, but if we may - - -

HIS HONOUR: I am sure they will not inflame me or upset me.

MR WILSON: No.

HIS HONOUR: Thank you.

MR WILSON: And if I could, your Honour, take your Honour to a particular passage and then refer that back to the judgment of Heddie J and, at first instance, I think within in a sense a moment I will be able to take your Honour to the central point of this application.

[4.40pm]

Your Honour, at page 356, Mason CJ, having referred to the operation of the statutory tribunal that was there involved, and we appreciate immediately the possible distinction between the operations of a statutory tribunal and a domestic tribunal, but nevertheless his Honour said at 356 about a quarter of the way down the page:

Thus at common law, according to the Australian authorities, want of logic is not synonymous with error of law ...(reads)... as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.

If I might interpolate, in essence, it was that rule which the majority Judges in the Court of Appeal applied as being - - -

HIS HONOUR: Well, now, you are going to the likelihood of success on the application for special leave to appeal, are you?

MR WILSON: Well, no, I just really want to highlight the point of law which we say arises in the context of your Honour taking me to the fact that this is an issue of contract, and I just wanted to, in effect, take your Honour to these passages and then refer your Honour to the way in which Hedigan J dealt with them at first instance, and then to show your Honour that they were not, in fact, really considered in that light by the Justices of appeal, and we say that it really raises an important point of law and indeed a point of law which the - - -

HIS HONOUR: But I was rather having in mind something else in my interrogation of you, and that was that you do require quite exceptional circumstances to obtain a stay of the nature which you seek because what you are seeking is a stay not of proceedings, but of the order itself.

MR WILSON: Yes.

HIS HONOUR: And I think it was dealt with in Marks case by Mason J saying that you really need to show something quite exceptional to entitle you to an order of that sort from this Court. Now, what I was suggesting to you was that an action in contract where damages are available to the applicant if suffers them and seeks to recover them is not an exceptional circumstance sufficient to warrant such an order. What is exceptional about this case to justify me taking that exceptional course?

MR WILSON: Because, with respect, your Honour, we say that what is exceptional is that we, in the context of Jennings and Bergundy Royale, that we have a strong chance of success on the appeal because we say there was an important - - -

HIS HONOUR: That is not exceptional. You may suffer some damage - or your client may suffer some damage; that is to say, the second-named applicant may suffer some damage. He has an avenue of recovery available to him. He says that it will effectively end his football career, but on the other hand, looking at it from the other side, it would effectively nullify the penalty which is imposed if I were to grant the order.

MR WILSON: Yes. Your Honour, though we would argue that although there is - as your Honour says, there is a foundation point of contract. The issue here is also one of whether or not the Tribunal has acted ultra vires in such a way - - -

HIS HONOUR: It may have, but your client has a remedy.

MR WILSON: Well, he does not have a remedy that will permit him to pursue his chosen career for the - - -

HIS HONOUR: Well, that may be so, but that certainly does not make an exceptional case; the fact that someone is precluded from doing something for a period of time which he wants to do, does not make it exceptional.

MR WILSON: Your Honour, the - - -

HIS HONOUR: That is always the case with a judgment that goes against you.

MR WILSON: Well, except though, with respect, your Honour, we would submit that if the position is that in this particular case it can be shown that in the context of the operation of the contract as alleged, important public policy issues arise and that the relevant Tribunal can be shown - - -

HIS HONOUR: But they can be contested in due course if you get special leave.

MR WILSON: Yes, but in the meantime - in the meantime, the player has lost the very heart and soul of his existence, which is the ability to play out his playing career as a footballer.

HIS HONOUR: Well, that really is not something of which the law would take notice, is it? He has a remedy in damages, that is the way the law compensates these things.

MR WILSON: Save and except, your Honour, if the Court is of the view that it is a case where damages is not an appropriate remedy and that the Court might - for instance, I think of cases where in the context of normal injunctions it has been found that although damages may be said to be available, the Court is of the view that the justice of the matter demands that something other than damages be - - -

HIS HONOUR: Well, then you come up against the difficulty that I have got to look at both sides, and the justice of the matter on the other side is that your client has been found guilty of a breach of a particular rule and has had a penalty imposed on him and that penalty would be, in effect, nullified if you were to get the relief which you seek here.

MR WILSON: Yes. Can I put this - - -

HIS HONOUR: So that justice, if you are going to talk in those terms, is not just one way.

MR WILSON: Yes. Your Honour, in a sense, and I know this may sound in almost one sense self-defeating, but it is - the status quo at the moment up until the pronouncement of - or up until the pronouncement of the Court of Appeal's decision a week ago, was that various injunctions had been in place which had enabled the player Williams to continue playing through a period of approximately, I think, 13 - from certainly in or about April until about a week ago he played. He did not play last week because of the pronouncement by the Court of Appeal of the orders. So that, in a sense, the bulk of the period over which the suspension might otherwise have taken place has already been set aside, as it were, or not - but effectively set aside by the operation of court orders up until now, and there is only some five weeks of playing time left.

HIS HONOUR: Well, I appreciate that; you have made that point already, Mr Wilson.

MR WILSON: Yes, yes. Your Honour, the only other matter I can put to your Honour is that in the passage I was going to take your Honour to from Mason J, he indicated - Mason CJ, I should say - he indicated that - having referred to the position in the Australian cases, he then said:

On the other hand, there are statements in the English cases which support a no sufficient evidence test in the context of judicial review of findings of fact.

HIS HONOUR: But you are now going to the question of the merits.

MR WILSON: Of the legal point, yes.

HIS HONOUR: Yes.

MR WILSON: Yes.

HIS HONOUR: And, I mean, you are entitled to do that at some stage, but have you finished with the questions which I raised?

MR WILSON: Yes, I have, your Honour, I cannot take those matters any further.

HIS HONOUR: I should just direct your attention to the unusual nature of the relief which you are seeking here, Mr Wilson, if you will forgive me for reading something to you.

MR WILSON: No, no, I am indebted to your Honour.

HIS HONOUR: This is from Re Marks and the FIA (1981) 34 ALR 208. There an order was sought and the order - Mason J said:

An aspect of the order now sought is exceptional and gives to the application a unique quality. It is that the Federation seeks not a stay of proceedings, but a stay of the orders themselves. Mr Ryan frankly concedes that he has been unable to discover any case in which a court in the exercise of inherent jurisdiction -

and that is the only jurisdiction you would be calling in aid here - - -

MR WILSON: Yes.

HIS HONOUR:

...inherent jurisdiction stayed an order as distinct from proceedings. He also concedes, and this may have consequence for prohibition which he ultimately seeks from the Full Court, that there are indeed no proceedings in the commission on which a stay of proceedings would operate.

Well, that is so here when you look at the order of the Court of Appeal.

MR WILSON: Yes.

HIS HONOUR:

Nonetheless, he argues that the order sought to be stayed is one which creates rights and not merely declares rights and the jurisdiction extends to a stay of the order itself.

Well, of course, no one could contend that the order here even looks like creating rights at all, the order of the Court of Appeal.

Even so, the Court will be more reluctant to stay an order which, though it creates rights, is otherwise declaratory in the sense that unlike an injunction, it does not require a party to do or abstain from doing anything or something.

And he goes on to say that:

The stay order of the kind in question in the exercise of inherent jurisdiction is at best an exceptional undertaking.

MR WILSON: Yes.

HIS HONOUR: Well, now, what I was directing your attention to was those circumstances that would make this case exceptional so as to justify my taking that course.

MR WILSON: Yes, your Honour. The only point in that context that I think we can point to as making the case exceptional is that in our respectful submission the case provides an excellent vehicle within which this honourable Court can consider the very points raised by Mason CJ in ABC v Bond as to whether - - -

HIS HONOUR: But it would not be for this Court to consider it except for me and, as a single judge, that is not definitive.

MR WILSON: No. But in the context of those matters, your Honour, we would simply say that the legal point raised is an important one, that we have a good prospect of success on the appeal on that point, and that notwithstanding what your Honour has put to me which I accept of course, the general balance of convenience would favour the granting of the stay pending the hearing and determination of the matters which will be raised in relation to the particular legal point which we would wish to articulate in the context of their Honours' judgment.

HIS HONOUR: Yes.

MR WILSON: But that is the only matter that we could say is exceptional about the case in the context of the framework as your Honour has correctly pointed out that it is a contract case.

[4.50pm]

HIS HONOUR: Very well.

MR WILSON: Your Honour, the legal point is that as articulated at pages 356 and 357 of Bond's case where Mason CJ said, having taken your Honour to the passage in relation to the state of the Australian authorities, he went on to say:

On the other hand there are statements in the English cases which support a no sufficient evidence test ...(reads)... or should be the law of Australia on the topic.

And then further down:

Further, in Mahon v Air New Zealand the judicial committee stated that natural justice requires ...(reads)... the approach adopted in these cases has not so far been accepted by this Court.

HIS HONOUR: Is a distinction to be drawn between administrative tribunals and domestic tribunals?

MR WILSON: Well, that may well be - - -

HIS HONOUR: Because his Honour obviously had in mind the former.

MR WILSON: Yes. I in fact raised that matter with your Honour initially and said we were conscious of the fact that this was a state of the law in relation to an administrative tribunal in that context. But if I could just take your Honour briefly to one short passage in the primary judge's judgments. It was the submission throughout of the applicants in both first instance and on appeal that the test, as it were, or the principle enunciated in Mahon's case should be the proper enunciation of the principle for the purposes of the no evidence rule as it is sometimes referred to imported as a principle of natural justice into the operation of the tribunal.

In the context of that submission two things might be said. First, that when the matter was being addressed before Hedigan J at first instance. Mr Finkelstein, as he then was, now his Honour, Finkelstein J of the Federal Court, was referred by his Honour at page 257 of the transcript - can I hand your Honour a copy of the relevant passages of the transcript. I think our learned friends have them. His Honour took Mr Finkelstein to those cases and said - top of the page, your Honour, line 7 on page 257:

So far as Mahon and Pochi are concerned, Lord Diplock and Mr Justice Deane, you just say they are isolated from the main stream. ...(reads)... act dishonestly and so forth.

And then the point is properly juxtaposed when Mr Young is referred to the same point or refers to the same point at page 264 of the transcript where he said, at line 9:

So far as the last of the terms is concerned, namely, that there is an implied term that the rules of natural justice apply, we have made it clear ...(reads)... logically capable of supporting it.

Now, Hedigan J said in his judgment at page 46, which appears in section G I believe it is, your Honour, of the appeal book - does your Honour have that?

HIS HONOUR: I have got page 46 of Hedigan Js judgment.

MR WILSON: Yes, thank you, your Honour. Having referred - in the middle of the page - to Deane J in Pochi, he then said in the last paragraph:

These statements, and indeed their development in later paragraphs, were made in the context of the obligations of a statutory tribunal delivering ...(reads)... followed and loved by many Australians.

Now in that context his Honour then went on and we say properly juxtaposed the evidence, or the materials is probably a better phrase, that was before the tribunal and in effect said that no reasonable tribunal could have come to the decision which it did and accepted in general terms the no sufficient evidence test, if that is another tag that seems to have been given to it from time to time, in relation to Mahon's case as a test. Now, in the Court of Appeal your honour will have seen that Tadgell J did not follow that. He applied the must more stringent test which he indicated was probably imported not as a matter of contract but as a matter of law that simply the tribunal had a duty to act honestly and therefore could not make a decision where there was no evidence to support it and he then adopted Haines Js view of the facts and Haine J, although not conclusively stating his view of the law in precisely the same terms of Tadgell J, seems implicitly to have accepted that test, but we say extraordinarily referred to the divergence of legal opinion in the context of the matters referred to in Bond and then said we do not need to make any decision on that, and that seems to be referred to at page 14 of Haines Js judgment.

HIS HONOUR: Well, that is on the basis that he decided there was evidence - - -

MR WILSON: Yes, he decided that there was evidence but

HIS HONOUR: - - - on the tribunal to conclude logically as it did conclude, yes.

MR WILSON: Yes.

HIS HONOUR: But I take the point. You say that there is some divergence in the cases as to the test to be applied - - -

MR WILSON: Yes.

HIS HONOUR: - - - and that is an important question and is likely to be productive of a grant of special leave to appeal.

MR WILSON: Yes.

HIS HONOUR: Yes.

MR WILSON: And we say that on the face of it Haine J in fact almost, we would respectfully submit, fell into the very error that Tadgell J said judges should not, albeit we accept that it is a fine line. It seems to us, with respect, impossible to analyse whether or not a tribunal has accorded the relevant level of natural justice required unless one establishes first the principle and then juxtaposes the facts with it to draw the relevant comparison. Haines J seemed very keen to immediately go to the facts and come to the conclusion that there was some evidence without then deciding what - rather, upon the basis that he implicitly, it would seem, accepted that the test was was there any evidence rather than whether or not the evidence that was there may be said to have been probative, if one likes, in the context of the Mahon case and we say that he fell into error in not deciding it.

We say that Tadgell J was wrong in that he did decide it that way and we say that both of them in their analysis of the facts, if properly applied to in the context of the test that should have been applied, ought to have come to a different conclusion entirely and that is the point, your Honour, and we say it is a point that has in a sense been reserved or flagged by Mason CJ in Bond's case and Hedigan J, recognising the distinction that your Honour drew between statutory authorities and domestic tribunals, said that in his opinion that matter was one which should be, as it were, uplifted or applied to domestic tribunals, certainly of the type of the AFL Tribunal and finally, of course, Ashley J, as the dissenting judge in the Court of Appeal, also generally appears to have accepted a broader scope for the no evidence rule that Tadgell J and certainly on juxtaposing the facts was prepared to come to the same conclusion as Hedigan J.

[5.00pm]

So in terms of the State Court, although of course we accept that two Justices of Appeal have come to a conclusion which is the majority judgment, you have in effect four Judges, two of whom were in effect one way and two of whom were the other. We say on a matter of significant public importance in relation to the operation of a Tribunal that affects a multi-million dollar sporting business which has the interest of a lot of members of the public. We say that is why this case is an exceptional one and why it ought to be the subject of a stay pending the leave to appeal application. If your Honour pleases.

HIS HONOUR: Thank you, Mr Wilson. Mr Garrett, I need not trouble you at the moment on the question of the likelihood of success in the application for special leave to appeal, not because I accept what you were going to say, but because for the moment it is not something which would affect my decision in this matter, but on the question of whether this is an exceptional case, do you have any submissions to make?

MR GARRATT: I do, your Honour. It is not an exceptional case at all. It is a contract case, it is a case which turns in the Court of Appeal on a view of the facts on a common test. The argument in the Court of Appeal converged to a simple proposition, although there had been wide divergence at trial and perhaps at the outset of the appeal, by the middle of the appeal the parties had effectively come to a common statement of what needed to be decided, namely was there evidence or material upon which the Tribunal could find that the charge was proved? Two of the Judges said yes, there was; the third said, if you construe the rule narrowly, there was not. Now, your Honour, there is nothing exceptional about that; that is a divergence of opinion on a question of fact.

HIS HONOUR: Well, what is said to be exceptional is the effect of the decision upon the applicant - the second applicant anyway.

MR GARRATT: Well, your Honour, there is nothing exceptional - - -

HIS HONOUR: That he is prevented from playing out his career in football to the end of the season and this is a matter of great moment to him.

MR GARRATT: Your Honour, by his contract he and all players in the AFL competition submit to the jurisdiction of the AFL Tribunal and its determination of reported offences against the particular player.

HIS HONOUR: Yes, but the point is it is said that if the determination which was made was wrong, it has an effect which places him in an exceptional position.

MR GARRATT: It places him, your Honour, in no different position from any other player who is suspended. He says that he intends to retire and in his case that means he will not be able to play his last nine matches if there be nine left in this season in which Carlton participates. In a sense, there is nothing exceptional about that; it would not matter if he was retiring or not, it would be the next nine matches in which he could not play. Your Honour, that is the way in which a suspension works for every player - - -

HIS HONOUR: Well, he would lose a great deal of money, would he not?

MR GARRATT: He may, your Honour, but again - - -

HIS HONOUR: What do you say about the remedy in damages?

MR GARRATT: Well, your Honour, damages were originally part of the claim by Mr Williams in this case. He abandoned that claim on the first day of the trial by amending his pleading to delete his claim. So, your Honour, damages, although much agitated in the sense that much is sought to be made of them, in the result nothing was made of them, no claim was pressed.

HIS HONOUR: Yes, but I am suggesting - or I was suggesting to Mr Wilson that something could be made of them. Do you make anything of them?

MR GARRATT: No, your Honour. We say - - -

HIS HONOUR: I am surprised at that answer because I would have thought you would have said that he had a remedy available to him which would recompense him for such damage as he suffered and therefore this was not a case which was exceptional in that he was not deprived of a remedy.

MR GARRATT: Your Honour, when I say no, I say that for this reason: he had that remedy, he chose not to assert it.

HIS HONOUR: Well, that does not matter. The fact is the remedy is available to him; whether he chooses to avail himself of it or not, is not to the point in considering the matters which we are considering here.

MR GARRATT: Yes, that is so, your Honour, I accept that. Your Honour, I do not know that on this preliminary point about the existence of exceptional circumstances in this case, I can take it any further than that.

HIS HONOUR: It is not really a preliminary point, it is one going to the heart of the matter really.

MR GARRATT: Well, it is in one sense, your Honour, but then one would have to pass to the question of the existence of a question of law of sufficient importance as likely to attract the attention of the High Court and to have substantial prospects of success. Your Honour cannot cross that threshold so there is certainly a very serious yet to be addressed and then one would come to questions of balance of convenience and the impact that - - -

HIS HONOUR: Well, what do you say about balance of convenience?

MR GARRATT: Your Honour, what we say about balance of convenience is this: that the grant of the stay has the effect of nullifying the tribunal's decision. The result is that Mr Williams will be available for inclusion in Carlton's teams in remaining matches in this season. Your Honour will be aware that each time a match is played points are awarded to the winning team and percentage calculations are done on the basis of the proportion borne by the winning score over the losing score in the particular match. Teams are ranked on the basis of those percentages. All teams in the competition participate on this footing and accept that if their players become ineligible because of suspensions, that they cannot play those players. If they do they forfeit their winning points.

Carlton has been in the exceptional position because of the interlocutory orders of being able to play Mr Williams, and in those matches which it has won, win winning points in circumstances where, of course, if he had been suspended, could not have played him. If it had, it would have forfeited its winning points. Your Honour, the inclusion of Mr Williams or the allowing of Mr Williams to be included distorts the results of the competition in a way which is indefinable and irremediable. One cannot know - if it later turns out that Mr Williams should not have played, indeed, the Court of Appeal said he should not play, what effects this prized player ultimately has had on the outcome of a particular match on the percentage calculations on the rankings between the clubs.

Those rankings between the clubs affect which terms make it into the finals, affect, for example, which teams in which order can select new players coming into the draft next year, affect other players in the competition in relation to their participation in prizes such as the Brownlow Medal count and other prizes which are awarded on the basis of points awarded for players in particular matches. There is an impact of allowing this player to play which extends far beyond him; it touches all other clubs in the competition which abide by the rules; it touches all players in the competition of the calibre of Mr Williams who may be competing with him for the award of medals, like the Brownlow medal and other prizes.

So, on the question of balance of convenience, we would say, a clear balance of convenience in favour of maintaining the judgment the AFL holds the benefit of the judgment. If a stay is granted, it loses the benefit of that judgment. The effect is really to nullify the suspension order. That has the effect of granting Carlton and Williams advantages which they could not otherwise obtain which distort the results of the competition - - -

HIS HONOUR: Well, you have made that point, I think.

MR GARRATT: - - - and cannot be remedied. Your Honour, so the balance of convenience we say is all one way, effectively. We say there is no exceptional issues such as would warrant the grant of special leave in any event, and one comes back to the point at the outset, which your Honour has pressed me on, as to whether there is anything exceptional generally about the case that ought to warrant the court granting the exceptional remedy of a stay.

If the Court pleases.

[5.10pm]

HIS HONOUR: Yes, Mr Garratt. Mr Wilson?

MR WILSON: Your Honour, may I briefly reply? Just limit it to the very first point your Honour raised. Your Honour raised, of course, the issue of the fact of the claim being one in contract and the possible remedies to Mr Williams in terms of damages. Of course, it does not follow that the Carlton Club would have the same remedies. If it loses the services of player Williams and it is later found that it has improperly lost the services of the player Williams, then all the very matters that my learned friend Mr Garratt has referred to would affect the Carlton Football Club in ways which could never possibly be divined in damages, but may well drastically affect, one way or the other, its chances of success or lack of success in the remaining weeks of the season. And when one then puts against that the fact that Williams - - -

HIS HONOUR: I have not been entirely sure, and I do not need to go into it, but why the Carlton Football Club is a proper party in these proceedings.

MR WILSON: Because it is a party to the contract with the AFL and Williams.

HIS HONOUR: Yes.

MR WILSON: And it will, if the decision is found to have been in effect ultravirus or contrary to the principles of natural justice lose the services of one of its contracted players.

HIS HONOUR: Yes, I see.

MR WILSON: And we say it cannot possibly measure the effect that will have because of all the permeations our learned friend Mr Garratt has just referred to in damages. Yet Williams has played for most of the season and, in a sense, one can - and it creates almost to some extent absurd extensions, but Williams has played most of the season. The draw is made at the beginning of the season and every club takes their chance that that is the draw for the whole season. So now if Williams is not allowed to play, whichever clubs have the good fortune to be drawn to play Carlton in the last five weeks have the advantage of not having player Williams play against them, which other clubs earlier in the season have had to put up with. So - - -

HIS HONOUR: I know it may be a matter of heart with the club as well as maybe that with Mr Williams, but I am quite sure that someone of your ingenuity or equal ingenuity would not be incapable of framing a claim in damages even on the part - on behalf of the club, Mr Wilson.

MR WILSON: No. And, your Honour, the other matter which your Honour raised, in the context of that first point your Honour referred me, which I am grateful, to the case of Marks. I notice that there is a reference to it in Jennings v Burgundy Royale extracting part of Mason Js judgment where it says:

It has been accepted that the Court has inherent jurisdiction to grant a stay of proceedings to preserve the subject matter of litigation.

Now that, of course, was in the context, I appreciate, of a stay of proceedings, but here we simply emphasise the fact that we say the subject matter of the litigation may be lost. If your Honour pleases.

HIS HONOUR: Thank you, Mr Wilson. I will leave the Bench for a moment and determine what course I will take.

SHORT ADJOURNMENT

HIS HONOUR: This is an application to stay an order of the Court of Appeal which allowed an appeal from a judgment of Hedigan J. Hedigan J ordered that the decision of the AFL Tribunal of 2 April 1997 in relation to the second-named applicant and the penalty imposed upon him be of no force and effect. The Court of Appeal set aside that order.

It is important to recognise that the application before me is not an application for a stay of further proceedings in this matter pending an application for special leave to appeal against the decision of the Court of Appeal. It is an application for a stay of the judgment of the Court of Appeal and of the orders made by it. That is to say, it amounts to an application to set aside the judgment of the Court of Appeal pending an application for special leave. Such an application has been described by Mason J in Re Marks and FIA (1981) 34 ALR 208 at 211 as having a unique quality and requiring exceptional circumstances to justify its success.

Even assuming that the points which the applicant seeks to raise are likely to attract special leave, I do not consider that that circumstance is exceptional so as to support this application.

The application is one for breach of contract and, even if they have not sought the remedy, damages are available to the applicants if they establish a relevant breach of the contract. In that sense, the subject matter of the litigation remains on foot whether or not the stay which is sought is granted. At least that is so from the point of view of the applicants. On the other hand, from the point of view of the respondents, if I were to grant the stay sought, the penalty which the Tribunal imposed would be effectively nullified in respect of the current season because the nine matches for which the second applicant was suspended would see out that season.

I do not regard the intended retirement of the second applicant as relevant but, even if it were to tell in favour of him, it would tell equally in favour of the respondents. In these circumstances, I do not think that the applicants have made out exceptional circumstances of the kind which would justify a stay of the orders made by the Court of Appeal and the application is accordingly refused.

MR WILSON: If your Honour pleases.

MR GARRATT: Your Honour, I seek costs in respect of the dismissal of the application.

HIS HONOUR: Can you say anything about that, Mr Wilson?

MR WILSON: I say nothing about that, your Honour.

HIS HONOUR: The application is refused with costs.

AT 5.35 PM THE MATTER WAS ADJOURNED

INDEFINITELY