N2537

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

O.S. NO. 185 OF 2004

BETWEEN:

BROTHERS RUGBY FOOTBALL UNION CLUB INC.
-Plaintiff-

AND:

PORT MORESBY RUGBY FOOTBALL UNION INC.
- Defendants-

AND:

RICHARD KASSMAN, ROBERT DOKO, JONATHAN KASSMAN,
SAILOSI DRUMA, BILLY RAPILLA, IAN LIVERAS as the
Exeuctive of the PORT MORESBY RUGBY
FOOTBALL UNION INC.
-Second Defendant-

LAE: Injia, DCJ
2004: April 15, 16, 20

Civil Law – Practice and Procedure – Competency of proceedings commenced by Originating Summons – Declaratory relief – Primary relief and consequently relief – Primary relief not pleaded – Proceedings incompetent – Struck out.

Civil Law – Sports- Challenge to decision of sports body – Need to address grievance using dispute settlement mechanism provided for in the rules of the sport organization – Court proceedings as a last resort.

Cases cited:
Michael Watonga v Sam Kadira & Another  N332(L)

Counsel:
Mr Koi for the Plaintiff
Mr Gileng for the Defendants

20 April 2004

Injia, DCJ: When the matter came before me on 16th April for review of the ex parte interim restraining orders I issued on 15th April, I requested parties to address me on the issue of competency of the proceedings commenced by Originating Summons. The issue of competency remains open to be addressed and determined by the Court throughout the proceedings, either on the application of a party or of the Court’s own motion. Competency matters include pleading a reasonable cause of action, whether the proceedings are frivolous or vexatious and, whether the proceedings are an abuse of the process of the Court: see Order 12 rule 40 of the National Court Rules. It is in the general discretion of the court to determine these issues at the outset before the hearing of the substantive matter.

The Plaintiff by this time had prepared and filed affidavits and served them on the defendant’s counsel who required time to obtain instructions to respond to those affidavits. The issue was argued before me on the basis of the Plaintiff’s affidavits with references made by the Defendants’ counsel to instructions given to him by the Defendants. Also at the conclusion of arguments, I refused to extend the interim ex parte orders granted on the 15th and other interim orders sought by the Plaintiff to restrain the Defendants from going ahead with the 2004 Season games with the first round of matches fixed for Saturday 17th.

The Plaintiff’s action as stated in the Originating Summons is for declaratory orders "quashing the decision of the First Defendant to refuse the Plaintiff’s application to be permitted to field a team in the Premier Division of the Port Moresby Rugby Football Union Competition (POMRFU) proper" and declaratory orders "permitting the Plaintiff to field a team in the said Premier Division." It also seeks certain injunctive relief. The Originating Summons does not prescribe the legal basis of the declaratory relief claimed. It appears from the affidavits that the case for the Plaintiff is based on breach of certain provisions of the Constitution of the POMRFU. The factual and legal basis of the case is stated in para 2 of the Plaintiff’s written extract of submissions, which states:

"(a)	On 10 February 2004, the Plaintiff applied for re-admission into the POMRFU;
(b)	On 8 March 2004, the POMRFU communicated its advice that the Plaintiff had been readmitted to start from First Division;
(c) 	The Plaintiff was given the opportunity to be heard, prior to the decision to readmit the Plaintiff, which was communicated on 8 march 2004;
(d)	On 29 March 2004, the Plaintiff gave notice of its intention to apply for admission into the Premier Division;
 (e)	On 3 April 2004, a meeting was constituted to determine the Plaintiff’s application for admission into the Premier Division;
(f)	The Plaintiff moved to address the full caucus of the POMRFU Management Committee, but was denied;
(g)	The meeting proceeded despite the lack of quorum;
(h)	As there was no quorum, no proper voting in accordance with the Constitution of the POMRFU took place;
(i)	The Plaintiff is not sure how voting was done if there was no quorum to properly constitute a meeting in accordance with the requirements of the Constitution of the POMRFU;
(j)	On 3 April 2004, the Plaintiff was notified verbally of the POMRFU Management Committee’s decision to affirm its earlier decision to maintain the Plaintiff in the First and Under 19 Divisions;
(k)	No written decision was furnished to the Plaintiff of the Management Committee’s decision of 3 April 2004.
(l)	On 5 April 2004, the Plaintiff wrote to the POMRFU expressing its disappointment over the decision, and giving notice of the Plaintiff’s intention to seek review of that decision;
(m)	The Plaintiff also requested, in light of the fact that the Constitution of the POMRFU was silent on the right of appeal from decisions of the Management Committee, that an independent body be convened to deliberate on the Plaintiff’s request for review;
(n)	As a safeguard, notwithstanding the lack of provision in the POMRFU Constitution, the Plaintiff by letter dated 5 April 2004, also lodged an appeal in writing to the Papua New Guinea Rugby Football Union; and
(o)	Since 5 April 2004, the Plaintiff has received no response to its notice of intention to seek a review of the decision of 3 April 2004"

The alleged breaches of provisions of the Constitution of POMRFU are those set out in (d) – (k). It is submitted for the Plaintiff that the Defendants failed to comply with clause 5(1) which provides:

The affiliation to the Union

"The Management Committee shall at the commencement of each competition year determine the level of fees payable by clubs seeking to affiliate with the Union.

All clubs shall be affiliated with the Union by application in writing and paying the appropriate fees in order to be eligible to participate in any Union sponsored competition.

All registered players, officials and members of all affiliated clubs to the Union become automatic members for that particular season by virtue of their club’s affiliation to the Union."

The Plaintiff seeks to rely on the second paragraph of clause 5(1), saying it was entitled to be admitted into the Premier Division, having complied with the requirements for affiliation, and not the First Division as it is presently admitted. It says its application was rejected and another team Telikom, a new comer to the competition, which did not comply with the requirements, was admitted to field a team to play in the Premier Division.

The propriety of the Management Committee Meeting of 3rd April 2004 is the primary basis of the Plaintiff’s action, and this is advanced on two (2) grounds: – (1) There was lack of quorum for that meeting. The Plaintiff contends it was denied the basic principles of natural justice (2) No written decision of that decision was furnished to the Plaintiff. The Plaintiff acknowledges that there is no provision in the Constitution of the POMRFU for an appeal against the decision of the Management Committee. The Plaintiff appealed against the decision to the Union and also sought a rehearing before the Management Committee and a decision by the Management Committee and the Union is still pending. The Plaintiff says it is not seeking a review of the decision of the Committee under Order 16 of the National Court Rules but will ask the Court to exercise its original jurisdiction to grant declaratory orders, to do justice in the circumstances of this particular case. 

The Defendants contend that there is no reasonable cause of action set out in the Originating Summons and the affidavits, to warrant a substantive hearing. The Plaintiff was fully heard before the initial decision of the 8th March 2004 was made, on whether they be included in the First Division or the Premier. There is no proper basis for any further appeal or review before the same committee or the Union respectively, as the Plaintiff purportedly did on 29th March and 5th April respectively. The decision of the 8th of March was proper and based on merits. The action should be struck out or dismissed for disclosing no reasonable cause of action.

In my view, I am mindful of the rushed manner in which the issue has been raised by the Court and the lack of affidavit material from the Defendants responding to the Plaintiff’s evidence. I am also mindful of the risks associated with dealing with competency issues raised by the Court before a full hearing when the parties or the Plaintiff in particular is desirous of the substantive issues being determined at a full hearing on the merits. But of course, time is of essence in any sports, in particular national sports with international affiliations such Rugby Union. The onus is on the Plaintiff to take prompt steps to seek redress of its grievances either within existing review provisions in the Constitution of POMRFU or in the absence of any such provision, to promptly institute proceedings in court, so that these issues are resolved before the actual sports season starts. A lot of time, effort and expenses involving a lot of people in staging this kind of sports is committed to ensure that the game season commences and is concluded on time, and it is in the interest of good sports to address these grievances promptly so there is no or minimal disruption to match fixtures. In the present case, critical time seems to have been wasted by the Plaintiff, who sought a review or rehearing of the decision before the same Management Committee and lodged a further appeal against the decision to the Union, when there is no provision in the Constitution for such review, rehearing or appeal. Even if there were, the present case before the Court is not one which seeks to protect the rights of the Plaintiff to be heard and a decision made by the Management Committee or the Union. It is seeking a review of the Committee’s decision, if any, of 3rd April. The present kind of case is clearly distinguishable from Watonga’s case N332(L) relied on by the Plaintiff, which deals with suspension or expulsion of a member, by a Judiciary Panel.

An action such as this which challenges the decision of sports bodies must be clearly pleaded in the Originating process or by affidavits, showing breach of rules of procedure enshrined in the Constitution or rules governing the Sports before the Court can interfere in the management affairs of voluntary non-professional sporting organizations and their activities. Such disputes must be resolved from within, using internal dispute resolution procedures. If there are no rules for addressing such grievances, the onus is on everyone involved in the game - sports administrations, executives, committees, members of the Union and players alike to raise these issues in the proper forum and modify these rules to accommodate appeal or review procedures. 

In the present case, the Plaintiff relies on the Management Committee’s lack of quorum and the failure to provide the Plaintiff with a written decision. There is no requirements in the rules for written decisions so this cannot be a proper ground for a review of the committees’ decision. In relation to the former, clause 10(6)(b) says "2/3 of the total membership of the committee" is the required quorum for a meeting. The only reference to lack of quorum is in the affidavits of Amet (Jnr) sworn on 15/4/04 in para 25 which says: "As there was no quorum, the Plaintiff’s representatives were asked to make informal submissions". But then again there is no evidence by way of Agenda Items or Minutes, of any meeting taking place on 3rd April 2004. According to annexure "C" of Mr Amet’s affidavit, meeting No. 3 of 2004 was held on 25th March 2004 and Meeting No. 4 of 2004 was scheduled for 15th April 2004. What Meeting No. then was the one held on 3rd April 2004? It sounds illogical to me.

I accept the Plaintiff’s submission that this application is not one of judicial review under Order 16 of the National Court Rules. Accepting their submission that this claim is one for declaratory relief by Originating Summons, the relief claimed in the clauses (1) and (2) of the Originating Summons seeks an "order in the nature of a declaration …." A declaratory relief is available as declaratory of a right under law, which is the primary relief. The primary relief must be pleaded first in the Originating Summons before any consequential relief is pleaded. The quashing of a decision of a body or tribunal and other similar orders are consequential upon the grant of the primary relief. The Plaintiff in clause (1) and (2) do not plead the primary relief e.g. A declaration that the decision of the Management Committee of 3rd April 2004 was ultra vires or in breach of clause 5(1) of the Constitution of POMRFU and therefore invalid, void and of no effect. The injunctive relief pleaded in clause (3) of the Originating Summons is also consequential to clause (1) and (2) and cannot stand on its own.

On the whole of the relief claimed in the OS and the affidavits intended to be relied upon, the Plaintiff’s action is without proper factual and/or legal basis. The Originating Summons is incompetent as not pleading a primary relief by way of declaratory order. The Originating Summons and the affidavits do not disclose a reasonable cause of action as against the Defendants. A hearing on the substantive matter is unnecessary and not in the interest of good sports. For these reasons, I strike out the Plaintiff’s action with costs to the Defendants.
______________________________________________________________________
Lawyers for the Plaintiffs		:	Amet Lawyers
Lawyers for the Defendants		:	Mirupasi Lawyers