Attempt to ban test cricket umpires called 'no jurisdiction'

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Attempt to ban test cricket umpires called 'no jurisdiction'

Justice French of the Federal Court ruled that an attempt to prevent two test cricket umpires from being appointed to matches involving Sri Lankan player, Muttiah Muralitharan, could not be heard as the relevant legislation allowing for review by the Federal Court was not an available avenue.

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Justice French of the Federal Court ruled that an attempt to prevent two test cricket umpires from being appointed to matches involving Sri Lankan player, Muttiah Muralitharan, could not be heard as the relevant legislation allowing for review by the Federal Court was not an available avenue.

The relevant legislation allowed the Federal Court to hear applications for review of administrative decisions made under enactments. There was no identifiable enactment involved in the appointment of the test cricket umpires. The application was struck out with the option noted that a fresh notice of appeal could be lodged in terms that complied with the legislation.

The original hearing of the matter before the Federal Magistrates Court had been struck out for want of jurisdiction under the federal disability discrimination legislation.

Background

On 23 December 2002, Mr Vijitha De Alwis filed an application in the Federal Magistrates Court, said to be brought under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act). He named as respondents to that application Mr Darrell Hair and Mr Ross Emerson, both said to be care of the Australian Cricket Board.

The orders he sought in the Federal Magistrates Court were in the following terms:

'1. That Mr Darrell Hair not be appointed to umpire at the cricket matches where Mr Muttiah Muralitharan (sic) will play.'

At the time the application to the Federal Magistrates Court was made, a complaint had been lodged with the Human Rights and Equal Opportunity Commission by Mr De Alwis in which he purported to be complaining on behalf of Mr Muttiah Muralitharan in his capacity as a supporter and spectator that Mr Muralitharan had been discriminated against because he has a disability.

In substance, the complaint was that in the 1995 cricket season Mr Darrell Hair, an umpire, had 'called' Mr Muralitharan seven times at the Melbourne Cricket Ground. This was a reference to 'no ball' rulings against Mr Muralitharan.

The complaint made to the Commission was essentially that Mr Muralitharan suffered from an alleged disability called flexion deformity. It was alleged that the shape of his arm is such that he has a deformity and that this may make it look as if his arm is bent when he is bowling.

The applicant had alleged that as a result of that deformity Mr Muralitharan had been discriminated against by Mr Hair, the umpire, who had formed the view that his bowling action was illegal under the rules of cricket and was now biased against Mr Muralitharan on account of his disability.

The Chief Magistrate found that no jurisdiction resided with her court to hear this matter.

She held those parts of the Disability Discrimination Act 1992 that were limited to contract workers and commission agents did not envisage the contract of a kind the applicant relied upon.

On 8 January 2003, the applicant filed, in the Federal Court, a document headed 'Notice Of Appeal/Urgent Injunction for an Ex-Parte Interim Injunction'. The title to the document also included the following words:

'On appeal from the decision of the Chief Federal Magistrate to refuse an application for an urgent ex-parte Interlocutory Injunction.'

Ruling of Federal Court

Justice French commented:

'It appears, on the face of this notice of appeal, that reliance is placed both upon the appellate jurisdiction of the Court in respect of the decision of the Federal Magistrates Court, and the original jurisdiction of the Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). ...

'The appellate provisions of the Act ... conferred certain powers on single judges. They do not extend, in my opinion, to confer a power to grant an injunction of the kind now sought which is, in essence, the same order that was being sought and was refused by the Chief Federal Magistrate.

'That power would in effect determine the outcome of the appeal and be exercised by a single judge not authorised, absent a direction of the Chief Justice so to exercise it. '

Justice French continued:

'I asked the applicant to indicate the basis upon which the application invokes the jurisdiction of the ADJR Act. I pointed out to Mr De Alwis that the provisions of the ADJR Act confer jurisdiction on the Federal Court to hear applications for review of administrative decisions made under enactments.

'Broadly speaking, an enactment is a law of the Commonwealth or a piece of delegated legislation or instrument made under a law of the Commonwealth. An administrative decision made under an enactment is a decision which is made in the exercise of a power or discretion conferred upon an official by that enactment.

'There was nothing on the materials before me to indicate any basis upon which a decision of the Australian Cricket Board or the International Cricket Council or any individual umpire could fall into that category. Mr De Alwis was asked to identify the relevant enactment which he was relying upon to support his invocation of the jurisdiction of the Court as the enactment under which decisions had been made of which he complained. He was unable to do so beyond repeated reference to what he called the "mother of all laws, the Constitution of the Commonwealth".

'That, however, is not an enactment for the purposes of judicial review of this character.

'... Other persons who are named as respondents to the application should not be put to the expense and trouble of responding to it when it is, to put not too harsh a description on it, nonsensical in relation to its invocation of the ADJR Act.'

Justice French dismissed the motion for ex parte relief and struck out the application insofar as it sought any relief under the ADJR Act. He directed the applicant to file a fresh notice of appeal within seven days which conforms with the requirements of the forms of court.

See: De Alwis v Hair [2003] FCA 10 - French J - (9 January 2003).

 
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