Aspire Group v Gymnastics Australia

The Applicants (Aspire Group) were not selected by Gymnastics Australia (GA) to represent Australia at the World Championships in Spain to be held in August 2023. They appealed their non-selection on the grounds of actual bias and that GA had erred in the application of its Selection Policy and that there was no material on which GA’s decision could be reasonably based. The Interested Parties (Premier Group) were selected to compete at the event instead of the Applicants and participated in the appeal.

For the ground of bias, which included confidential evidence, the Tribunal ran a parallel process which allowed all relevant parties to receive and test the evidence whilst still maintaining its confidentiality. The Tribunal determined that this ground was not made out.

As to the remaining grounds, there was no real distinction drawn, although more emphasis was placed on mis-application of the Selection Policy. To argue the latter ‘no material’ ground, the Applicants must prove to the Tribunal’s satisfaction that there was no material on which the selectors could have based their decision; if there was some material, then, subject to GA’s selectors acting reasonably in the manner in which GA’s absolute discretion was applied, an appeal will fail. Accordingly, the real issue was whether the results achieved by Aspire relative to Premier Group in the events leading up to the selection decision were so overwhelmingly in Aspire’s favour that there was no plausible reason as to why Aspire would not be selected so that the Tribunal could conclude only that the Selection Policy had been misapplied.

The Tribunal considered the results, and the factors GA considered in its selection. The Tribunal was unable to conclude that the Selection Policy was not properly applied by GA when the decision was made to select Premier Group rather than Aspire or, given the amount of evidence relied on by the Selection Panel, that there was no material on which GA could, and did, reasonably base its decision. Accordingly, the appeal was dismissed.