Judge’s injunction decision

Press, 15 July 1985, Page 1

Judge’s injunction decision

PA Wellington Two Auckland lawyers had put forward a strong prima facie case for their proposition that the proposed All Black tour of South Africa could not benefit rugby in New Zealand, said Mr Justice Casey. Those opposed to the tour could not be brushed aside as irresponsible troublemakers, he said. His Honour, in the High Court in Wellington pn Saturday afternoon, granted the interim injunction sought by Patrick Thomas Finnigan and Phillip James Recordon, of two Auckland rugby clubs, to restrain the New Zealand Rugby Union from proceeding with the tour until the substantive action had been determined.

He said the plaintiffs’ first and main submission in support of the injunction was that the decision did not comply with the union’s objects of promoting, fostering, and developing rugby in New Zealand. It was obliged as an incorporated society to act in accordance with its constitution.

Mr Justice Casey said it must be regrettably well known to every adult New Zealander that the Springbok rugby tour of New Zealand in 1981 was a disaster both for rugby football

and the community, which was widely, and sometimes violently, split over the question of sporting contact with South Africa.

The courts encountered numerous cases of otherwise perfectly lawful people at odds with the law, while those responsible for its maintenance and enforcement came under enormous strain.

His Honour said the plaintiffs in his opinion put forward a strong prima facie case at this point for their proposition that the present tour could not benefit rugby in New Zealand. The correspondence and other evidence demonstrated much the same concept in the community over the issue. Those opposed to it could not be brushed aside as irresponsible troublemakers or stirrers as some of the evidence and opinion from the union suggested. It was impossible to regard the leaders of almost all New Zealand’s main churches or a unanimous House of Representatives, or the Auckland and North Harbour rugby union in that light.

His Honour said it appeared to be an inarguable fact that a substantial number, perhaps even approaching half of all New Zealanders, were opposed or

upset about the tour on grounds that seemed to include the good of rugby, New Zealand’s international standing, trade, the cancellation of other sports likely to be affected, or moral reasons connected with hatred of apartheid.

“Most of these reasons may have no direct connection with benefiting local rugby,” he said. “But taken together they must result in a groundswell of public opinion exasperated or angry with the union’s stance and very concerned about the reopening of the scars of 1981.” His Honour said that the plaintiffs were on strong ground in his opinion when they said that such an attitude spread so widely among all sections of the community must inevitably damage the image of the game and lead to a drop in support and interest and retention of potential players at the schoolboy level. Similar comments could be made about the increasingly important financial and moral sponsorship. “It is not my task to

resolve those issues at this stage,” His Honour said. “All I shall say is that on the material now before me the plaintiffs have established what I consider to be a strong prima facie case that the decision and the tour will not promote or foster and develop the game in this country.”

He said the case was not answered by the proposition of counsel for the defendants, Mr Douglas White, that international tours by themselves were in the best interests of rugby. His Honour said that Mr Ted Thomas, Q.C. counsel for the plaintiffs, took him through a detailed study of the council’s minutes and records and volume of primary exhibits which, accepting their limitations, he w'as satisfied demonstrated an arguable case that when they were read as a whole a pattern emerged of a majority on the council deliberately shutting their eyes to the reality of the widespread and responsible public concern over the tour. In doing so they closed their minds to any genuine

consideration of its effect on the welfare of rugby, he said.

They became side-tracked in the defence of the right to choose those with whom the union would play instead of capitulating to threats or intimidation. His Honour said he felt he should mention one or two significant remarks indicative of the attitude he had just described as recorded in the notes produced. On March 30, a meeting about whether to accept the invitation seemed to show a determination not to play into the Prime Minister’s hands rather than in evincing a desire to listen to what he had to say. On Mr Blazey’s intimation that if he used the words “require” and “direct the tour not to take place” he would accept a decision, a letter was written by the council on that point and one asking Mr Lange to state how New Zealand would be affected by the tour.

“The Deputy Prime Minister, Mr Palmer, replied on April 4 in a letter that I can only describe with respect as a clear, comprehensive, and foreceful presentation of New Zealand’s situation,” Mr Justice Casey said. “It contained an equally clear formulation of the Prime Minister’s statement that the tour must not proceed as amounting to the directive, instruction or command which the Rugby Union has said in the past it would respect. “Annexed was a copy of the unanimous resolution of the House of Representatives of March 20, urging rejection while nonetheless acknowledging the union’s right to decide. Mr Justice Casey said that in a memorandum to the council on April 9 dealing with this letter, Mr Blazey had drawn attention to the fact that the direction or command had no legal backing and that anything he said in 1981 to this effect need not be taken as a commitment for the future. His Honour said that having found an arguable case in respect of the decision based on the normal test of good faith applicable to

voluntary incorporated societies, he turned to the alternative advanced by the plaintiffs which would place a higher obligation on council members. He said Jie felt he must have regard to the unique importance of the decision in the public domain and the effect it could have on New Zealand’s relationship with the outside world and on our own community. This had been noted by the Court of Appeal and was amply borne out in the correspondence from Mr Lange and the letter from Mr Palmer which the union itself requested.

He was satisfied that such a decision required that body, or any other in a similar position, to exercise more than good faith. It must also exercise that degree of care which it had been found proper to impose on statutory bodies in the exercise of their powers affecting legal rights or legitimate expectations. Broadly speaking, the council must act reasonably as well as honestly, paying regard to relevant considerations over the playing of New Zealand rugby and must not be influenced by irrelevant matters in reaching its decision.

His Honour said the circumstances pointed to the

union keeping its options open. He thought there was force in Mr Thomas’s criticism of the defendants’ counsel submitting that the tour must be cancelled (in the event of the interim injunction being granted), “and asking me on the one hand to so find while on the other his client declines to make that statement positively.” He thought there was room for some elasticity in fixtures. If the tour had been delayed, the keen enthusiasm of the South African board to get the All Blacks would go a long way to ensuring it took place if humanly possible. “However, I accept that there is a real possibility that it might not take place,” he said. “And a very strong one that if it does it will be different to the present one.” Mr Justice Casey said the interest of the public and the nation in not having the tour go ahead was a most potent factor already recognised by the Court of Appeal. The tour was contrary to a clear direction from the Government because of the harm it could do to New Zealand’s national interest. He said the unanimous resolution of Parliament indicated the serious harm it would do for New Zealand’s interests at home and abroad and the spirit of the Gleneagles agreement. Also, there was a risk of violence and bloodshed, even loss of life to Africans. All these matters emphasised the vital importance of ensuring that the decision which might cause such consequences be one that was lawfully arrived at.

They were of such seriousness that, in the responsible exercise of his discretion, he considered the only order he could make was one that would preserve the position “existing at the date of that decision.” His Honour said the injunction was granted as moved, until further order of the Court.

He said both plaintiffs had accepted their undertakings in respect of damages, which were required to be given in such cases, to extend to' commercial loss action to individual team members and the team doctor if it should turn out that the grant of the interlocutory injunction was not justified. These undertakings had been unreservedly accepted. In his oral judgment, his Honour said that Mr Ted Thomas, Q.C., counsel for the plaintiffs, had moved for an order restraining the Rugby Union and Mr Cecil Blazey, chairman of the union’s council, and the members of the counsel sued, including their servants and agents, from proceeding with the proposed tour of South Africa by the All Blacks until such time as the action had been determined.

He said it had long been recognised that the Court had jurisdiction to make orders preserving the status quo until the dispute between the parties had been disposed of by further hearing. In such an application, the Court was concerned with, first, the maintenance of the position that would allow justice to be done when its final order was made.

His Honour emphasised that the grant or refusal of an injunction at this stage was not the final ruling in the claim, nor any indication of how the court would decide it. It was a matter for his discretion.

“I am engaged essentially in balancing the rights the plaintiffs seek to protect against the defendants’ right to make the decision and carry on their activities which are not yet shown to be unlawful and may turn out to be entirely proper,” he said. His Honour said the availability of an injunction was to prevent what was described as deplorable ■ damage to the plaintiffs.

“That term means in this context an injury for which money would not be an adequate compensation,” he said.

“Here the plaintiffs face an initial problem in identifying just what injury they would suffer if the tour proceeds before this case can be decided.

“Certainly neither can point to any definite or other tangible loss. Nor could they indicate any prejudice to their own rights or expectations as rugby club members. Mr Thomas abandoned as untenable a submission that they would be deprived of the fruits of this case if they succeeded.” His Honour said the Court of Appeal rejected any contractual relationship between the plaintiffs and the union whereby the plaintiffs’ standing could arise, but held that in special circumstances the sufficiency of their interests had to be judged in relation to the special matter of their application.