South Adelaide Court Case

[dinglinga]

hi there ppl .. sorry for the length of this thread ...here is a brief overview of the case between SAFC vs SANFL

SOUTH ADELAIDE FOOTBALL CLUB INC & ANOR v SOUTH AUSTRALIAN NATIONAL FOOTBALL LEAGUE INC
[2006] SASC 293


Civil

GRAY J: (ex tempore)


1 This is an application for judicial review[1] or alternatively for a declaration and ancillary orders with respect to a claim that procedural unfairness has occurred in the course of a domestic tribunal’s hearing.
2 The application is made by the South Adelaide Football Club Inc ("SAFC") and one of its players, Damian Cupido. Mr Cupido is a professional footballer and the SAFC is one of the teams within the South Australian National Football League ("SANFL"). The SANFL is the defendant in the proceedings and at issue is the conduct of its disciplinary tribunal ("the Tribunal").
3 The background circumstances can be briefly summarised. Mr Cupido was charged with striking following an incident that occurred during an SANFL match on 9 September 2006 ("the strike"). During the third quarter, it was alleged that Mr Cupido struck an opposing player with a closed fist to the chest. The report was made by a field umpire. The consequent charge came before the Tribunal on the evening of Tuesday, 12 September 2006. The charge was denied. A hearing ensued.
4 A representative of the SAFC, through the medium of a DVD, played footage of the incident the subject of the charge. That footage showed events leading to the alleged strike including shoving and pushing between Mr Cupido and the opposition player. It was said by the umpire that there was an attempted strike made by Mr Cupido that preceded the incident the subject of the charge. Mr Cupido’s case was that he had been taunted by an opposition player, who had been pushing and shoving as shown on the DVD and that he had made contact with the chest of the opposition player, but with an open hand. I infer that, on his case, that contact formed part of the ongoing shoving and pushing rather than a strike.
5 The Tribunal reached the conclusion that the strike had occurred and that the charge was made out. However, it was not satisfied that a closed fist had been used. The Tribunal proceeded on the basis that there had been a strike with an open hand to the chest. The Tribunal imposed a penalty of a one-match suspension.
6 On the hearing of the application, counsel for the plaintiffs contended that remarks made by the Chairman of the Tribunal at the time of sentence disclosed that the attempted strike described by the umpire was brought to account by the Tribunal when determining the appropriate penalty as a matter of aggravation and that the penalty imposed, in part, inappropriately involved punishment for that conduct. Counsel contended that Mr Cupido had been punished for an offence with which he had not been charged. It was claimed that no notice was given that the Tribunal might adopt such an approach.
7 It was accepted by the parties that the hearing was not an appeal. It was not the occasion to review the penalty. At issue, was the process followed. Had there been a denial of procedural fairness? Was Mr Cupido punished in respect to an uncharged act?
8 Counsel for the SANFL submitted that there had been no denial of procedural fairness. Counsel contented that Mr Cupido had not been punished for a charge, which had not been made, and that the comments of the Chairman with respect to the attempted striking incident constituted no more than the context in which the striking charge arose.
9 Counsel for the SANFL did not challenge the Court’s jurisdiction to entertain the application. Counsel accepted that there should be a rehearing if the conclusion was reached that there had been a denial of procedural fairness. It was accepted that this Court has jurisdiction to grant appropriate relief, at least by way of declaration and incidental order. Counsel for the SANFL did not challenge the Court’s jurisdiction with respect to judicial review on the basis that the Tribunal owed an obligation to accord procedural fairness to Mr Cupido.
10 It was accepted that if Mr Cupido had been penalised in respect of an uncharged and unproven attempted strike that that would constitute a denial of procedural fairness.
11 As earlier observed, both parties sought an immediate and final resolution of the proceedings.
12 The affidavit evidence before the Court allows the following factual findings to be made:
− The charge was of striking. No charge was laid in respect of an attempted strike. This was clarified and confirmed at the time of the hearing.
− At the outset of the hearing a representative of the South Adelaide Football Club played footage at the Tribunal showing the alleged strike in its context, including the shoving and pushing and what was said to be the alleged attempted strike.
− The umpire’s account addressed the general context in which the alleged strike occurred and included an account of the attempted strike.
− Mr Cupido’s account included a description of the general context in which the alleged strike occurred. He was questioned by a Tribunal member about the attempted strike.
− It was put to the Tribunal by Mr Cupido’s counsel that Mr Cupido had been taunted by an opposition player and that this led to the pushing and shoving and the offence which was said to comprise the alleged strike and attempted strike.
− The Tribunal found Mr Cupido guilty of the strike. The Tribunal then heard submissions as to penalty.
− On the delivery of penalty, the chairman made some short remarks. He indicated that the Tribunal had taken into account Mr Cupido’s impeccable record, the fact that the opposition player was not injured and the fact that the contact did not occur with a clenched fist.
− The Chairman then indicated, to quote from Mr Whitington’s affidavit, that, "The Tribunal could not help but take into account the incidents leading up to the reportable incident, in particular the alleged attempted striking incident".
− According to a handwritten note of the Chairman, written at a time, I infer, when penalty was being considered - "Background of two attempted punches not charged".
13 The context in which the strike occurred was a relevant and material consideration penalty. That context formed the background to the strike. The footage disclosed the surrounding events and circumstances in which the strike occurred. In determining the charge and fixing penalty, those surrounding circumstances were a relevant consideration. There were parts of the surrounding circumstances as shown on the footage that Mr Cupido relied on at the hearing - that he had been taunted and that what occurred was in the context of shoving and pushing and simply formed part of that shoving and pushing.
14 I am not prepared to find that the Tribunal’s penalty was, in part, imposed in respect of an uncharged act. I am not prepared to conclude that Mr Cupido was punished for an uncharged act. No relevant denial of procedural fairness has been established.
15 The Tribunal imposed the penalty in respect of the strike charge that had been made out and that in fixing penalty regard was had to the general context in which that strike occurred.
16 The application is dismissed.

[Punk Rooster]

if that's the brief version, don't bother posting the extended version!

[Spiritof64]

10 It was accepted that if Mr Cupido had been penalised in respect of an uncharged and unproven attempted strike that that would constitute a denial of procedural fairness.

Know the feeling. In the Green Machine while on the initial parade for a new Battery Commander me and several others were asked the question "Are those boots sprayed or spit polished?"

Being honest little diggers, and there being no law against having spray polished boots, we replied "sprayed". DOH.

We were confident right up untill the charge was read out, "Conduct against good discipline in that they had DIRTY boots on parade"

Three days CB. He went on to be known affectionately by the shitkickers as "Big Bill the Bastard"