Applicant v National Sporting Body

The National Sporting Body investigated Complaints made against the Applicant. If the Complaints were to be substantiated by the investigators, the conduct would amount to Prohibited Conduct under both the Code of Conduct and Safeguarding Children and Young People Policy.

The National Sporting Body investigated the Complaints, having received correspondence from State Police who had cautioned the Applicant for the conduct, and having interviewed the Applicant and provided him with an opportunity to submit further material in writing. 

The National Sporting Body found that the Applicant had breached both policies and sanctioned the Applicant. The Applicant disputed the findings and sanction, and the dispute was referred to the National Sports Tribunal for arbitration.

The parties entered into an arbitration agreement, with the issue in dispute being the sanction.

The Tribunal considers that whilst the proceedings are concerned with the sanctions proposed by the Breach Notice, the sanctions are inextricably bound with the facts upon which those sanctions are based including those disclosed in the Breach Notice. Therefore, any examination of the proposed sanctions must, of necessity in this case, require a consideration of the facts and circumstances upon which the National Sporting Body relied in arriving at its proposed sanction including, as the Applicant contents, whether he was afforded procedural fairness.

Acting in accordance with the dictates of procedural fairness, the National Sporting Body should have raised the particulars of the facts that ground their assertion apart from a reference to the caution itself. These particulars should have been put to the Applicant prior to issuing the Breach Notice and he should have been provided with an opportunity to respond.

As the authorities make plain, a component of the content of a fair hearing is that the person whose interest will be affected is to be notified of the charge or allegation. In the absence of sufficient particulars of the charge or allegation, or the grounds upon which it is based, it is not possible to understand the nature of the allegation so as to prepare a response to it. It is especially important in disciplinary proceedings that particulars of the charge be provided.

The National Sporting Body’s failure to do so comprised a denial of procedural fairness with the consequence that the decision-making process fundamentally miscarried. That failure is a jurisdictional error depriving the decision manifested in the Breach Notice of any validity. Ordinarily there is no discretion to refuse relief where there is a breach of procedural fairness.

The Tribunal finds that the National Sporting Body did not afford the Applicant procedural fairness in arriving at its decision as evidence by the Breach Notice, that it therefore had no jurisdiction to make that decision, it is not valid and should be set aside.