As Perth Glory players were taking the field against Sydney FC on Friday night, lawyers for the club were in a specially-convened Supreme Court hearing seeking an injunction against the FFA’s decision to expel the Glory from the finals for salary cap breaches.
The penalty, which also sees Perth fined $269,000, is the largest in FFA history and draws comparisons with the AFL’s decision to boot Essendon from the 2013 finals for governance breaches as well as the NRL retrospectively stripping Melbourne Storm of the 2007 and 2009 premierships (coincidentally, current FFA chief David Gallop was at the helm of the NRL when the Storm’s penalties were handed down).
After the penalties were announced on Friday afternoon, lawyers for the Glory attended an urgent ex parte (in the absence of the other party) hearing seeking an injunction preventing the FFA from implementing the finals ban. The attempt was unsuccessful, with Justice Mitchell adjourning the application until the following Monday.
While the club has the right to appeal the Association’s findings, the decision to race to court, without giving the FFA an opportunity to be heard, in the hours following the announcement was a strange one given the finals are still weeks away. The question must be asked – what rights did the Glory have to protect on Friday night that would not still exist on Monday?
The court’s general rule is that an order should not be made ex parte. Exceptions may be made where there is the risk of imminent and irreparable damage to a party’s rights, but in those cases the party bringing the action has an obligation to act in “the utmost good faith” and to bring to the court’s attention all material facts which the absent party would presumably have put forward in its defence.
In general, the court will grant an injunction to preserve the status quo where the applicant establishes that there is a serious question to be tried, that it will suffer irreparable injury if the injunction is not granted and that injury will not be adequately compensated by an award of money, and that the “balance of convenience” favours the granting of the injunction.
The implications for the Glory if the finals ban is upheld are clearly serious – the club will be locked out of a finals series and potential premiership push. It is difficult to argue that an award of damages would be able to compensate the Glory if it later emerges the FFA has overstepped its bounds.
If the Glory has a serious argument against the penalties (and at this stage it is unclear what that argument is, although the club has vehemently denied there are any errors in its salary cap payments), then it should be afforded the right to continue to participate in the premiership season as normal until that argument can be resolved. But the matter is not so urgent that the court should be asked to intervene without the FFA being given an opportunity to respond.
