Russell (a pseudonym) v New South Wales Baseball League Incorporated (trading as “Baseball NSW”)

This matter has come before me in the duty list on Friday afternoon. The matter involves a father, William Russell (the first plaintiff) and his two children, Child 1 and Child 2 (the second and third plaintiffs), and their involvement in baseball. I have granted the first plaintiff leave to appear as the litigation tutor for his two children. He is not represented. There is both a summons and a notice of motion before me. Notice was given to Baseball NSW (the defendant), and the defendant appears represented before me. I accept the submission of the defendant that both the summons and notice of motion need to be dealt with today to finality.

The summons claims the following relief:

The notice of motion is set out in the following terms:

It can clearly be seen that the immediate issue is an attempt by the first plaintiff to have Child 1 be permitted to play at the NSW Baseball State Championships on Monday. The first plaintiff is clearly a very active father and is very supportive of his children and their involvement in the game of baseball. Even though the immediate issue only involves Child 1, as I understand it, the underlying issue affects both children.

The children have been playing with their primary club since 2019 (for Child 1) and 2018 (for Child 2). Child 1 is 13 years old, Child 2 is 14 years old. They have also been playing in a secondary club since 2025. A policy called the Baseball NSW – Dual Charter (Friendship Player) Framework: Little League – Season 2025/26 (Dual Charter Framework) was recently introduced by the defendant and it was left to the associations, that is, the area associations under which the various clubs are grouped, to publicise the Dual Charter Framework. Under the Dual Charter Framework, a player cannot play in “All-Star” events (including the State Championships), if they have been playing in two clubs (their local club, and a club outside their local area), unless they successfully apply for an exemption. An application for exemption is required to include written approval from the primary club and association, as well as approval from the secondary club or association (or potentially both the secondary club and association given the ambiguous way in which the policy is drafted).

In an unfortunate lapse in modern communication whereby emails and websites are readily available, for whatever reason, the Dual Charter Framework was not made known in a timely fashion to at least the first plaintiff that appears before me. He says that failure of communication grounds a claim of procedural unfairness because what has happened is that once he did become aware of the Dual Charter Framework he then went about obtaining, well into the season, the relevant written approvals, that is, from the daughters’ primary club and association and their secondary club and association. Both the primary club and the secondary association have failed to approve the children’s application for exemption. The first plaintiff has described his relationship with the primary club before me today as “toxic”, so it appears there are personal issues underpinning this whole matter. The fact that these may affect the current aspirations of the two children is, to say the least, unfortunate.

However, we are in the Supreme Court of New South Wales, in the territory of interlocutory injunctions and there are various principles that the Court has recognised over the years that are relevant to making a decision in a situation such as this. As I understand it, the main outcome sought by the first plaintiff is for the Court to direct Baseball NSW to waive the eligibility criteria which applies under the Dual Charter Framework, that is, so that the children do not need the primary club’s endorsement such that, to solve the most pressing issue, Child 1 can play on Monday. The Monday game is a particular state-wide competition which in turn, if successful, might lead to further opportunities nationally and potentially even internationally.

The first plaintiff has put what he is seeking in a number of different ways, none of them ultimately successful.

The defendant argues, and I accept, that there is a threshold problem with the application for an injunction. That is, that there has been no decision made by the defendant that enlivens the Court's jurisdiction. There has certainly been no decision to “ban” either child. Rather, no application for exemption has been submitted and no decision by the defendant to refuse the application for exemption has been made. All that has happened so far is that the first plaintiff has undertaken various steps in preparation for the applications for exemption under the Dual Charter Framework on behalf of the children. However, that application process has come to a certain point and stopped because a condition precedent, or mandatory requirement - that is, the primary club's approval - was not obtained. On this basis alone, the plaintiffs’ case must fail.

If I am wrong to accept that argument, and somehow it is possible to fashion an argument that an interim injunction is an available remedy, the defendant also points to a number of well recognised principles in relation to the granting of an injunction that means that the plaintiffs’ application must fail.

First of all, it is put that there is no utility in granting any injunction. This “no utility” argument arises if what is being sought by the first plaintiff (as has been also put by the first plaintiff at various points in his oral submissions) is an order for the defendant to persuade the primary club to consider fairly the application for approval to play outside the primary club, or at least to provide reasons for its refusal. I agree that an order for the defendant to persuade the primary club to consider the application fairly, or to provide reasons, would have no utility in these particular circumstances.

Second, the defendant points to delay, given the decision not to allow Child 1 to play on Monday 13 April 2026 was communicated to the first plaintiff on 2 March 2026, and today’s date is 10 April 2026. I do not accept this as a powerful factor against the first plaintiff because I accept that the delay has been largely caused by the proper attempts of the first plaintiff to explore other avenues of dispute resolution before coming to the Supreme Court.

Third, the defendant points to prejudice. This factor may apply if I were to construe the first plaintiff’s application as I first indicated above. That is, because of the lack of procedural fairness flowing from the poor publication of the Dual Charter Framework, the Court's jurisdiction is somehow enlivened (albeit it is not clear exactly how) to force Baseball NSW to waive the eligibility criteria such that no exemption is needed, or such exemption would automatically be given. In my view, the waiver of the eligibility criteria is what is fundamentally being sought by the first plaintiff.

The defendant argues that there would be prejudice if the Supreme Court were to force the defendant to waive the eligibility criteria in this situation, as that may well have consequences leading to complaints from other players when they have not met the relevant requirements. I accept there would be such prejudice.

In other words, the factors of no utility and prejudice would count against the granting of an injunction.

I am of the view, in any event, that in whatever way the application for an injunction is put (and assuming, for the purposes of argument that it can be put), it is not appropriate for the Supreme Court to issue an injunction, interlocutory or otherwise, in this matter.

In my view, as noted, the first plaintiff appears to be seeking primarily an injunction to force the defendant to waive the eligibility criteria for Child 1 under the Dual Charter Framework so that she is permitted to play on Monday 13 April 2026 even though she has been playing for two clubs, one of which is not her primary club and she would otherwise need an exemption. The first plaintiff argues that such an order should be made because of the lack of procedural fairness that came about because of the poor publication of the Dual Charter Framework.

Put in this way, the first plaintiff would appear to be seeking an interlocutory mandatory injunction. In the text by JD Heydon, Heydon on Contract (Lawbook, 2019), c 28 at 1065 par 28.530, the author states:

I note that this application involves children in a sporting competition. In particular, first of all, it involves a 13-year-old girl wanting to play in an important game on Monday. I further note the first plaintiff’s submission that this is a male-dominated sport and, on average, as time goes by, the average strength and physical capability of boys will likely exceed that, on average, of girls, and that may make it more difficult for a girl to succeed in this particular sport. Therefore, missing a year may be significant. However, I also note that Child 1 is only 13 years old and her sister is only 14 years old. There are several years yet where it can be assumed they can play this sport or other sports.

Further, the problem sought to be overcome by the first plaintiff is of very limited temporal compass. If not allowed to play in the State Championships, this will affect future 2026 opportunities, but, as I understand it, 2027 and beyond remains unaffected (subject to the average physical strength argument just mentioned).

Further, I refer to the considerations considered by the Queensland Supreme Court in the decision of Kovacic v Australian Karting Association (Qld) Inc [2008] QSC 344 at [26]. That case involved a 15-year-old boy who was a talented go-kart racer. The Court there resolved that matter by ruling that the decision not to allow the boy to play was a non-justiciable matter. Here it is conceded that the matter is justiciable (albeit it has also been argued that no decision has been made). However, I find that the observations and considerations referred to by the Court in Kovacic in coming to that conclusion have some real resonance in relation to the exercise of my discretion (assuming there is a proper basis for issuing an injunction, a matter which is far from clear).

In Kovacic, it was noted that courts were traditionally reluctant to interfere in the affairs of voluntary associations. The Court further noted that the position had eased since the well-known High Court of Australia case of Cameron v Hogan (1934) 51 CLR 358. In more recent times, the Court will intervene in the affairs of voluntary associations in some circumstances, including where there has been a breach of contract, where a proprietary right has been infringed, or where someone's livelihood or reputation is at stake.

No breach of contract has been pleaded in this case. Even though there might be a technical contract, because of the operation of s 26 Associations Incorporation Act 2009 (NSW), I cannot readily identify a breach of contract, and one has not been argued. Rather, as noted, what is apparently being alleged is a problem with procedural fairness or denial of natural justice.

Further, there is no proprietary right that has been infringed and there is no question of reputation or livelihood at stake. Further, I note that paragraph [15] of the first plaintiff’s affidavit is in speculative terms. At paragraph [15], the first plaintiff states that the “ban” (as he calls it, but more correctly should be put as a recognition that no exemption has been applied for or granted which has the effect of not allowing the girls to play):

There is certainly nothing of the type of evidence which was before the Court in Kovacic, and even that evidence was insufficient to ground a justiciable issue for that Court.

I also note the plaintiff's argument to the effect that the Dual Charter Framework is a flawed policy, especially because it does not allow for an appeal process, but that is not something that I can determine in this case. Nor can I deal with the matter on the basis of “judicial review” as not only is there no “decision”, but the defendant is also not an organisation whose decisions are judicially reviewable pursuant to ss 65 and 69 of the Supreme Court Act 1970 (NSW) or Part 59 of the Uniform Civil Procedure Rules 2005 (NSW). Accordingly, these issues are not matters before me to adjudicate, and in any event, would not solve the problems facing Child 1 for 13 April 2026.

It is unfortunate if the policy is flawed (although I am not sufficiently apprised of the issue to state one way or the other). It is unfortunate that there has been an apparent lack of procedural fairness in that neither the primary nor secondary associations publicised the Dual Charter Framework in a timely fashion. However, that does not, in my view, enliven the Court's powers to grant a mandatory injunction to force the defendant to waive eligibility criteria. Even if it did, I am of the view that as I have indicated, this is not an appropriate use of the Court's power given the matter concerns a voluntary sporting game involving children, with the effect of the failure to meet the eligibility criteria having the limited effect of the children (or one of the children) not being able to play in certain games for a limited period.

In all the circumstances, I refuse the relief sought in the summons and in the notice of motion.

As to costs, I note that the original application by the defendant was to seek costs on the ordinary basis on the basis that costs should follow the event. The defendant’s revised position, after a query by me as to whether costs were still sought, is that the defendant has a responsibility to its members and that the members would bear the costs if I did not award the defendant its costs. The defendant did, however, indicate that some adjustment could be made to the quantum.

On balance, I will afford the first plaintiff a discount as to costs payable by him. In doing so, I take into account that he is a well-intentioned father attempting to resolve a problem on behalf of his children, combined with the lack of timely and readily accessible publication of the Dual Charter Framework. Even if that deficiency of publication cannot be directly sheeted home to the defendant, it is sheeted home to associations who are generally under the aegis of the defendant. I make the following orders: