Rugby Union bid rejected

Press, 20 December 1985, Page 8

Rugby Union bid rejected

PA Wellington The New Zealand Rugby Football Union has been refused leave to appeal to the Privy Council against a Court of Appeal judgment that two Auckland lawyers could challenge the union’s decision to tour South Africa. A full bench of the Court of Appeal was unanimous in rejecting the application. Mr Justice Cooke presided, with Mr Justice Richardson, Mr Justice McMullin, Mr Justice Somers and Sir Thaddeus McCarthy. Two Auckland lawyers, Patrick Thomas Finnigan and Phillip James Recordon, succeeded in June in getting the Court of Appeal to rule that as rugby club members they had legal standing to challenge in the High Court the rugby union’s decision to send the All Blacks on a tour of South Africa.

The High Court case went ahead and the two lawyers also succeeded in getting an interim injunction which prevented the team from leaving for the tour. Subsequently, the union decided to cancel the tour and advised it would seek leave to appeal the Court of Appeal’s legal-standing decision to the Privy Council.

The application was made under a rule which allows an appeal “if in the opinion of that (Appeal) Court the question involved in the appeal is one which by reason of its great general or public importance, or otherwise

The case history was outlined in the judgment given by the presiding judge who pointed out that no oral evidence was ever heard by the High Court for the union, even after the interim injunction was granted. “With the advantage of hindsight one can see that it might have been more satisfactory if at least the chairman had been called to give evidence, which would of course been open to crossexamination, at some stage before the proceedings were abandoned, Mr Justice Cooke said.

Discussing the Court of Appeal’s decision which had allowed the two Auckland lawyers to proceed with the High Court action, Mr Justice Cooke said that the Court had decided the case

was a very special one. “Though other plaintiffs in other cases might try to Invoke the judgment as a precedent, it by no means follows that they would suceed. It can hardly be necessary to say that the judgment does not deal with problems in any other coun-

“Perhaps in some future year the New Zealand union may wish to consider another invitation to tour South Africa. But it is difficult to believe that the (N.ZJR.F.U.) council would ever again wish to accept such an invitation after an approach leaving the union as open to successful attack, whether by an affiliated union or by some ofther sufficiently interested person ...” The case was unique and arose from a unique problem confronting the Court in June, 1985. “No hearing by the Privy Council in London in 1986 could reproduce the situation or the background.” Mr Justice Cooke said that leave should be refused on the grounds that the question of a Privy Council appeal was academic and that in any event the history of the case was so special that discretionary leave was not appropriate. The Court of Appeal’s refusal of leave was not necessarily final as the members of the Privy Council could grant special leave to appeal if they saw fit, Mr Justice Cooke said. Mr Justice Richardson said that to grant leave at this time would be contrary to the principle that in exercising discretion leave must be refused where the present litigation between the parties had passed and there was no matter remaining in actual controversy and requiring decision. Sir Thaddeus McCarthy said the substance of the proceedings was extinguished by the union’s decision not to tour - and the agreement made between the parties that the proceedings should not continue. Sir Thaddeus said he did not accept that the Court of Appeal’s ruling in June would have the wide and deleterious effects which the rugby union believed would ensue. The Court made no order on costs.