Finnigan v New Zealand Rugby Football Union

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Finnigan v New Zealand Rugby Football Union
Coat of arms of New Zealand.svg
Court Court of Appeal of New Zealand
Full case nameFinnigan and another v. New Zealand Rugby Football Union (Incorporated) and others
Decided 21 June 1985
Citation(s) [1985] 2 NZLR 159
Transcript(s)

High Court judgment

Court of Appeal judgment
Court membership
Judge(s) sitting Cooke, Richardson, McMullin, Somers JJ, and Sir Thaddeus McCarthy
Keywords
standing, judicial review, All Blacks, South Africa

Finnigan v New Zealand Rugby Football Union, was a case taken by a member of the Auckland University Rugby Football Club and a member of the Teachers Rugby Football Club against the decision of the New Zealand Rugby Football Union (NZRFU) Council to accept an invitation for the All Blacks to tour South Africa. The invitation came just four years after the 1981 South Africa rugby union tour of New Zealand had divided the New Zealand public over the All Blacks refusal to participate in the sporting boycott of South Africa during the Apartheid era. The decision primarily concerned whether the two plaintiffs had sufficient standing to challenge the NZRFU decision. The decision marked the adoption of the principles of R v Inland Revenue Commissioners ex p National Federation of Self-Employed and Small Businesses [1982] AC 617 approach to standing in judicial review into New Zealand law. [1]

South Africa Republic in the southernmost part of Africa

South Africa, officially the Republic of South Africa (RSA), is the southernmost country in Africa. It is bounded to the south by 2,798 kilometres (1,739 mi) of coastline of Southern Africa stretching along the South Atlantic and Indian Oceans; to the north by the neighbouring countries of Namibia, Botswana, and Zimbabwe; and to the east and northeast by Mozambique and Eswatini (Swaziland); and it surrounds the enclaved country of Lesotho. South Africa is the largest country in Southern Africa and the 25th-largest country in the world by land area and, with over 57 million people, is the world's 24th-most populous nation. It is the southernmost country on the mainland of the Old World or the Eastern Hemisphere. About 80 percent of South Africans are of Sub-Saharan African ancestry, divided among a variety of ethnic groups speaking different African languages, nine of which have official status. The remaining population consists of Africa's largest communities of European (White), Asian (Indian), and multiracial (Coloured) ancestry.

In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case. Standing exists from one of three causes:

  1. The party is directly subject to an adverse effect by the statute or action in question, and the harm suffered will continue unless the court grants relief in the form of damages or a finding that the law either does not apply to the party or that the law is void or can be nullified. This is called the "something to lose" doctrine, in which the party has standing because they will be directly harmed by the conditions for which they are asking the court for relief.
  2. The party is not directly harmed by the conditions by which they are petitioning the court for relief but asks for it because the harm involved has some reasonable relation to their situation, and the continued existence of the harm may affect others who might not be able to ask a court for relief. In the United States, this is the grounds for asking for a law to be struck down as violating the First Amendment to the Constitution of the United States, because while the plaintiff might not be directly affected, the law might so adversely affect others that one might never know what was not done or created by those who fear they would become subject to the law – the so-called "chilling effects" doctrine.
  3. The party is granted automatic standing by act of law. Under some environmental laws in the United States, a party may sue someone causing pollution to certain waterways without a federal permit, even if the party suing is not harmed by the pollution being generated. The law allows them to receive attorney's fees if they substantially prevail in the action. In some U.S. states, a person who believes a book, film or other work of art is obscene may sue in their own name to have the work banned directly without having to ask a District Attorney to do so.

Judicial review in English law enables people to challenge the exercise of power, often by a public body. A person who feels that an exercise of power is unlawful may apply to the Administrative Court for a court to decide whether a decision followed the law. If the court finds the decision unlawful it may have it set aside (quashed) and possibly award damages. A court may impose an injunction upon the public body.

Contents

Background

On 20 May 1985 the two plaintiffs, as members of two Auckland rugby union clubs, sought to overturn a decision by the NZRFU Council to accept an invitation for the All Blacks to tour South Africa. As Cooke J noted,

Judicial review, under which executive actions of the Government are subject to review, and possible invalidation, is used in New Zealand. Judicial review is carried out by a judge of the High Court of New Zealand. Legislative action is not justiciable in the High Court under New Zealand's Westminster constitutional arrangements; Parliament remains supreme in law.

They claimed that the decision failed to comply with the object of promoting, fostering and developing amateur rugby union football throughout New Zealand, and that for various specified reasons it gives the game a tarnished and sullied image and will reflect adversely on the game. These contentions we will refer to as the against-the-objects ground. They also claimed that the decision was outside the powers of the Council and could only have been made by the Union in general meeting. This we will refer to as the wrong body ground. They claimed therefore that the decision was invalid and unlawful, and sought a declaration and injunction. [2]

The NZRFU as defendants sought to strike out the statement of claim as, "disclosing no cause of action and as frivolous, vexatious and an abuse of process." [3] On 6 June the defendants strike out application was heard in the High Court by Sir Ronald Davison, the Chief Justice, who struck out the claim and dismissed the action, declining to grant the plaintiffs standing. The plaintiffs appealed. [4]

Sir Ronald Keith Davison was a New Zealand lawyer and jurist. He served as the tenth Chief Justice of New Zealand from 1978 to 1989. Davison was the last Chief Justice of the old Supreme Court and the first with the new and current Supreme Court.

Judgment

The plaintiffs succeeded in their appeal, clearing the way for the claim to proceed to a substantive hearing. Cooke J delivered the judgment of the Court of Appeal. The judgment considered two points of law.

Robin Cooke, Baron Cooke of Thorndon jurist

Robin Brunskill Cooke, Baron Cooke of Thorndon was a New Zealand judge and later a British Law Lord and member of the Judicial Committee of the Privy Council. He is widely considered one of New Zealand's most influential jurists, and is the only New Zealand judge to have sat in the House of Lords. He was a Non-Permanent Judge of the Court of Final Appeal of Hong Kong from 1997 to 2006.

The first point concerned whether the NZRFU Council was the wrong body to make the arrangement of matches and tour. The Court agreed with the Chief Justice that the Council was not the wrong body to accept the invitation and held that the appeal failed on this point. [5]

The second point concerned whether the plaintiffs had the requisite standing to bring their action against the NZRFU. The Court rejected the plaintiffs argument that implied contracts linked each of them with the NZRFU. [6] However it approved earlier judgments that standing could be granted to those claiming an incorporated association acted beyond its powers even where no contract existed. Here Cooke J said,

In cases where an incorporated association is alleged to have acted against its objects but the plaintiff cannot show a contract, we think that all the circumstances have to be considered - case by case or category of case by category of case - in order to determine as a question of mixed law and fact whether or not he or she has sufficient standing. [7]

The Court noted that the plaintiffs were connected to the club by a "chain of contracts" and that the plaintiffs were "at grass roots level; but it is the players, who are all at that level, for whom basically the organisation exists". [8] The Court also noted that in exercising its discretion to grant standing regard had to be had to the plaintiff's claims that the NZRFU was acting contrary to the fundamental goals of its constitution and that "the decision challenged is probably at least as important as - if not more important than - any other in the history of the game in New Zealand." [9] As Cooke J noted,

The decision affects the New Zealand community as a whole and so relations between the community and those, like the plaintiffs, specifically and legally associated with the sport. Indeed judicial notice can be taken of the obvious fact that in the view of a significant number of people, but no doubt contrary to the view of another significant number, the decision affects the international relations or standing of New Zealand. [10]

The Court also noted that although the NZRFU was a private, voluntary association, its decision in this case put it in a "position of major national importance"; [11] that the plaintiffs could not be dismissed as "mere busybodies, cranks or other mischief makers"; that unless persons such as the plaintiffs were granted standing they would have no "effective way of establishing whether or not the Union is acting within its lawful powers"; and that,

As a result of the disturbances accompanying the 1981 South African tour of New Zealand many citizens, including normally law-abiding citizens, were alleged to have gone too far when indulging in protest activity. The importance of preserving law and order was rightly stressed. The Courts applied the law impartially. There were numerous prosecutions, many of them successful. It is now no less appropriate that the lawfulness of the Union's decision under its own constitution to arrange the proposed tour should be open to test in the Courts. [12]

Significance

With standing granted, the hearing of the substantive action began in the Wellington High Court on 8 July, with the All Blacks due to leave for South Africa on 17 July. On 11 July the plaintiffs applied for an interim injunction to prevent the team leaving as it became clear the hearing would not be finished before the All Blacks were due to depart. [13] Casey J ruled that,

[T]he plaintiffs in my opinion have put forward a strong prima facie case at this point for their proposition that the present tour cannot benefit rugby in this country. The correspondence and other evidence demonstrates much the same split in the community [as in 1981] over the issue, and those opposed cannot be brushed aside as irresponsible trouble makers or publicity seekers, as some of the evidence and opinions from the Union suggests. It is impossible to regard the leaders of nearly all our major churches, or a unanimous House of Representatives or the Auckland and North Harbour Rugby Unions in this light. Nor is the case answered by counting the heads of those who support the tour and suggesting they may be in a majority. [14]

With the injunction granted the All Blacks tour of South Africa was halted. [15] However an unofficial New Zealand team dubbed the New Zealand Cavaliers did tour South Africa in 1986.

See also

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References

  1. ↑ Taylor, GDS (2010). Judicial Review: A New Zealand Perspective. Wellington: LexisNexis. p. 204. ISBN   9781877511455.
  2. ↑ Finnigan v New Zealand Rugby Football Union Inc [1985] 2 NZLR 159 at 175.
  3. ↑ Finnigan v New Zealand Rugby Football Union Inc [1985] 2 NZLR 159 at 175.
  4. ↑ Finnigan v New Zealand Rugby Football Union Inc [1985] 2 NZLR 159 at 175.
  5. ↑ Finnigan v New Zealand Rugby Football Union Inc [1985] 2 NZLR 159 at 177.
  6. ↑ Finnigan v New Zealand Rugby Football Union Inc [1985] 2 NZLR 159 at 177.
  7. ↑ Finnigan v New Zealand Rugby Football Union Inc [1985] 2 NZLR 159 at 178.
  8. ↑ Finnigan v New Zealand Rugby Football Union Inc [1985] 2 NZLR 159 at 178.
  9. ↑ Finnigan v New Zealand Rugby Football Union Inc [1985] 2 NZLR 159 at 179.
  10. ↑ Finnigan v New Zealand Rugby Football Union Inc [1985] 2 NZLR 159 at 179.
  11. ↑ "NZRFU injunction cartoon". NZ History. Retrieved 12 June 2017.
  12. ↑ Finnigan v New Zealand Rugby Football Union Inc [1985] 2 NZLR 159 at 180.
  13. ↑ Finnigan v New Zealand Rugby Football Union Inc (No 2) [1985] 2 NZLR 181 at 181.
  14. ↑ Finnigan v New Zealand Rugby Football Union Inc (No 2) [1985] 2 NZLR 181 at 184.
  15. ↑ Tahana, Yvonne (21 January 2012). "Judge's ruling halted divisive All Black tour". The New Zealand Herald . Retrieved 5 April 2015.
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