2. The result of that event should stand. However, the decisions made as to the management of that event were not the most appropriate decisions that could have been made. Our findings appear at paragraph 112 below. This Report also contains recommendations at paragraph 113 below.

Definitions

3. In this Report:

The ACA means the Australian Croquet Association

The Chairman means Robert Fenwick Elliott, chairman of this Enquiry

The Complainants means Chris Clarke and Jenny Williams

The Complainants’ Opponents means Paddy Chapman and Greg Bryant

Game 2 means the 2^nd game of the final of the 2007 Australian Open Doubles

The MPP means the ACA’s Member Protection Policy

The Notice of Appeal means the complaint of the Complainants of 9^th November 2007

The Panel means those listed at paragraph 9 below.

The Tournament Manager means Mr Brian Reither

WCF means World Croquet Federation

This Enquiry

4. This enquiry arises out of a complaint made by Chris Clarke and Jenny Williams on 9^th November 2007 concerning events at the Australian Open Doubles Final on 5^th November 2007. The complaint was made in the form of a Notice of Appeal, and appears at paragraph 116 in Attachment 1.

5. For the reasons set out in a letter dated 19^th November 2007 (see Attachment 2 below), the Complainants were invited at the Chairman's suggestion to agree that the matter should proceed by way of Enquiry and Report, and they accepted that suggestion; see Attachment 3.

6. It is inherent in this process that this Report be made public.

The Parties

7. The Complainants are both very experienced and skilful players. At the time of the Report, Chris Clarke is ranked 3 in the world. Jenny Williams is ranked 21, the highest ranking of any woman in the world. Chris Clarke is English, and Jenny Williams is a New Zealander: they both now live in New Zealand.

8. The Complainant’s Opponents in the final were Paddy Chapman and Greg Bryant. Their world rankings are 12 and 29 respectively. They are both New Zealanders. Neither of them accepted the invitation extended to them to take any part in these proceedings.

The Panel

9. The Panel consisted of the following:

a) Robert Fenwick Elliott, Chairman. He is a lawyer admitted in England & Wales, New South Wales and South Australia, proprietor of Fenwick Elliott Mallets and plays croquet with the much more modest world ranking of 576. He was born in England and now lives in Australia.

b) Peter Landrebe. He is an experienced croquet player, with a world ranking of 8. He was born in New Zealand and now lives in Australia.

c) Michael Sweeney. He is a member of the Victorian bar based in Melbourne. He is an arbitrator, being a fellow of the Institute of Arbitrators and Mediators Australia and of the Chartered Institute of Arbitrators (UK). He has sat on ACA MPP panels, but otherwise has no connection with croquet.

10. All of the Panel have had various contacts with the interested parties in the past. In a relatively small sport, this is more or less inevitable. None of those contacts are such as to give rise to any partiality.

11. Prior to the commencement of this process, the Complainants asked that the Panel be nominated by the WCF. Since this is not a WCF matter, the ACA regarded this as inappropriate, but has indicated that it is satisfied that the makeup of the Panel appropriately addresses the Complainant’s concern as to neutrality.

The evidence – procedure

12. In the first instance, our inquiry is preceded by inviting submissions from a number of interested parties. A bundle containing these submissions was made available to the Complainants and to the Tournament Manager in order that they should have an opportunity of comment.

13. On 19^th December we held a Hearing at Owen Dixon Chambers in Melbourne, attended by the Panel, Mr Reither, Mr Murray and – by telephone conference call – the Complainants in New Zealand.

14. The Panel has treated itself as independent of the ACA, and the ACA has made no attempt to compromise that independence. The Panel has seen no evidence that the ACA has sought in any way to suppress the complaint made: on the contrary, the ACA’s approach in relation to this process suggests a real desire to establish the facts and to remedy anything that might need remedying.

15. We should say at once that, whilst their standing is such that it is obvious that a complaint by them should be taken seriously, neither of the Complainants appear to the Panel to have sought at any time to abuse their seniority as players to obtain any unfair advantage.

The Harassment Issue

16. The first ground of complaint is that Jenny Williams was harassed. The background to this complaint is not in issue. Jenny Williams says in her statement:

During the second game it was dark and relatively cold outside, and the lights had been brought into play. Because we were both unused to the conditions of using lights, and the lighting in the clubhouse and outdoors was very different, we found it preferable to stand in the clubhouse (for shelter and warmth), but with a door ajar, so that we could concentrate on what was happening outside and keeping ourselves acclimatised to the lighting outside for when we had to play. After Chris and I had conferred on our next line of play, I went back inside and again stood with the door ajar.

17. Chris Clarke explains that

After about five minutes of the second game, Steve Jones asked us to close the door and I explained to him that we were keeping the door open so as to keep our eyes adjusted to the outside lights. Steve accepted this. We remained in the same position for I would estimate another 20 minutes before I went onto the lawn to take the lift shot.

18. This account is supported by what Tim Murphy recalled:

During the break by Chapman, Clarke/Williams were standing in front of the fully open doorway. It was a cool night and one or two players asked for the doors to be closed. Clarke said glare from the lights through the glass was hindering his ability to watch the game.

When Clarke/Williams went out for their lift shot the doors were closed to applause. When Williams returned she fully opened the doors again.

This account suggested that the spectators as a whole were interfering with the players’ chosen vantage arrangements. Similarly Max Murray’s statement:

There was some obvious dissatisfaction by other spectators with this because of the cold draught coming through the doorway.

And Charlotte Morgan:

As the game progressed, an air of antagonism developed between the spectators and Chris and Jenny. Some spectators made loud comments about how cold they were. When Chris and Jenny stepped outside at one stage, a spectator got up and closed the doors to the loud approval of other spectators. There was even a suggestion that the door should be locked with Chris and Jenny outside.

19. It seems clear that this antagonism was bound to be felt by the Complainants. It is at this point that accounts slightly differ. Jenny Williams says that she was approached by a particular spectator who was “very aggressive” and who told her that she and Chris Clarke were “making fools” of themselves. That spectator’s account explains that rather she was seeking to be helpful, by quietly explaining to Jenny Williams, with whom she felt she had earlier in the day established some rapport, what the feelings in the room were. But it was not just this spectator’s comments which discomforted Jenny Williams:

The general comments in support of [that spectator’s] actions towards me from some of the men who were watching the match made me feel additionally uncomfortable, and I chose not to look at them to enable them to engage me in whatever comments they wanted to add.

20. Harassment is defined in the MPP as follows:

8. What is Harassment?

8.1 Harassment is any behaviour by a person or organisation to whom this Policy applies which is offensive, abusive, belittling or threatening and which is directed at a person or a group of people because of a particular characteristic of that person or group of people. The behaviour must be unwelcome and the sort of behaviour a reasonable person would recognise as being unwelcome and likely to cause the recipient to feel offended, humiliated or intimidated. Whether or not the behaviour is Harassment is determined from the point of view of the person receiving the Harassment.

8.2 Harassment includes:

(a) Sexual Harassment (clauses 8.3 to 8.7);

(b) Racial Harassment (clauses 8.8 and 8.9);

(d) Disability Harassment (clauses 8.13 and 8.14);

(e) Abuse (clauses 8.15 to 8.17);

(f) Vilification (clause 8.18 and 8.19); and

(g) Discrimination (clause 9).

21. Abuse is defined as follows:

8.15 Abuse may be a form of Harassment. It includes:

a) physical abuse, (e.g. assault);

b) emotional abuse, (e.g. blackmail, repeated requests or demands, excluding someone or ‘bastardisation’ practices);

c) neglect, (e.g. failure to provide the basic physical and emotional necessities of life);

d) abuse of power, which the harasser holds over the harassed.

Examples of relationships in (d) that involve a power disparity include a coach–athlete, manager– athlete, employer–employee, and doctor–patient. People in such positions of power need to be particularly wary not to exploit that power.

8.16 Examples of abusive behaviour include:

· Bullying and humiliation of players by coaches;

· Verbal abuse and insults directed by players or parents at opposing participants;

· Verbal and/or physical abuse of officials by players and coaches.

22. Having reviewed the evidence, we find:

a) That it was reasonable for the Complainants to stand in the open doorway. As competitors in an important final, their interests as competitors should have taken precedence over those of the spectators;

b) That the spectators could have stayed warm by seating themselves away from the door in question, and whilst the area by the door in question may well have afforded them the best vantage point, they were not entitled to the benefit of both the warmth and the best vantage point, to the prejudice of the players. As a matter of etiquette, the spectators should not have intruded upon the players’ concentration. Their behaviour fell short, however, of the threshold for harassment;

c) That the spectator who spoke to Jenny Williams had no intention to harass her, and we are not satisfied that is was such as a reasonable person would recognise as being unwelcome and likely to cause the recipient to feel offended, humiliated or intimidated;

d) That, as a matter of fact, the behaviour of all the spectators did cause Jenny Williams discomfort and distraction.

23. In light of these findings, the Panel sees no useful purpose in identifying in this public Report the individual spectator in respect of whom this complaint was made.

Should the result be overturned?

24. The Complainants seek a rematch. That would involve an overturning of the result that was declared. Is that possible? And would it offend against the rights of the Complainants’ Opponents?

25. In considering and making findings in respect of the complaints, the Enquiry must, as a first step, establish whether or not the decision of the Tournament Manager was validly made in accordance with the Regulations. Whether the Tournament Manager acted wisely or unwisely, temperately or harshly or if there be options for the decision, did or did not select a preferable option, are secondary questions and, whilst such actions may be of importance to another aspect of this Enquiry; they do not affect a determination of the validity or otherwise of the complained decision which is to be tested against the Regulations.

26. The relevant Regulations are the ACA’s Regulations for Tournaments of 2nd April 2007, Regulation 12 of which provides as follows:

12. THE TOURNAMENT MANAGER

(a) POWERS AND DUTIES

The powers and duties of a Tournament Manager are as follows.

(1) …

(2) To be responsible for the conduct of all events contained in the tournament program.

(3) To observe and adhere to all conditions for the tournament as contained in the Australian Tournament Regulations or approved by the Committee of Management for the event.

…

The Tournament Manager during the Tournament is responsible for:

(1) Adhering to all conditions for the tournament as contained in the Australian Tournament Regulations or approved by the Committee of Management for the event;

(2) Arranging any daily draws to be available by 4:00pm on the preceding day;

(3) Deciding, and if necessary in consultation with Venue managers, the suitability of weather (including whether it is too hot for play to start or continue) and court conditions for playing matches;

(4) Forwarding results to persons designated by the Committee of Management;

(5) Submitting a report including recommendations to the Committee of Management, if required.

(d) DELEGATION

The Tournament Manager during the Tournament has the following powers and duties. If more than one venue is being used then the Tournament Manager will delegate these powers and duties to the Venue Managers.

(1) To observe all conditions for the tournament as contained in the Tournament Regulations or approved by the Committee of Management for the event.

(2) To ensure that regulation hoops are set to the required width and approved balls are used and to relocate hoops as necessary.

(3) To allot courts for the matches to be played at the venue.

(4) To ensure that courts are ready for play prior to the scheduled commencement of play.

(5) To allow up to 15 minutes between games, except for a meal break. In that case, players are allowed up to 30 minutes between games.

(6) To ensure that a clock or suitable electronic timepiece is available for each game and is visible to all players.

(7) To ensure that matches commence at the designated starting time each day unless decided otherwise by the Tournament Manager.

(8) To determine whether or not a player not in readiness to play at the appointed time, without a valid reason, be disqualified from that game. Such a player has the right of appeal to the Tournament Committee.

(9) To report in writing to the Tournament Committee any player guilty of misconduct (N.B. Any deliberate substantial damage to equipment or courts shall be classed as misconduct.).

(10) To peg-down unfinished games, or nominate a referee to do so, and in doing so avoid, if possible, a situation involving a ball in a critical position (Law 6(d));

(11) To be responsible for setting out of the court prior to resumption of a pegged-down game.

(12) Have the discretion to allow a 5 minute practice on the court immediately prior to the game with the actual balls to be used.

(13) Have the discretion to allow other practice on the tournament courts.

27. There is no express power for the Tournament Manager to decide when games should be pegged down, bringing play to an end for that day, but the breadth of the powers as a whole lead the Panel to conclude that that matter does lie within the power of the Tournament Manager, either on the basis of the power to decide on the suitability of court conditions under Regulation 12(c)(3), or as an aspect of his general powers under Regulation 12(a)(2).

28. We note in particular that the Tournament Dinner would not readily fall into the category of a “meal break” within the meaning of Regulation 12(d)(5), because it was bound to be a much more lengthy affair than the “up to 30 minutes” mentioned in that Regulation; in fact it appears to have taken about three times that length of time. But we do not read that Regulation as absolutely forbidding a resumption of play after a break of longer than the 15 or 30 minute time periods mentioned in that Regulation.

29. Competitors have through their entry into the ACA Australian Open entered into an agreement which amongst other things binds them to the rules of the tournament and by incorporation to the rules and regulations for the conduct of tournaments under the auspices of the ACA. By reason of such agreement, it has already been agreed that certain affairs such as management of the tournament and disputes shall be managed in a prescribed manner by the Tournament Manager and ACA Executive. The Panel must look to see whether or not the decision of the Tournament Manager was validly made in accordance with the Regulations that so bind the competitors.

30. Consequently, if the Enquiry were to find that the decision complained of has been validly made in accordance with the Regulations, it would not make any recommendation that would seek to interfere with the decision merely on the grounds that there might have been a ‘preferable’ decision. We consider this later issue (including the evidence concerning it) as a separate matter at paragraph 57 and following below.

31. The decision complained of is the call by the Tournament Manager for the final match to be resumed after the Tournament Dinner. The Complainants were not willing to so play; their opponents were. The decision made was in fact made in two parts:

a) At around 8 o’clock, that the 2^nd game of the final should start after the Tournament Dinner, and

b) At around 9 o’clock, that that game should not be pegged down when requested by the Complainants, after their opponents had made their first 9 hoops, and Chris Clarke had hit the lift shot.

32. It seems clear that the Tournament Manager gave what was in effect an ultimatum to the Complainants (at least on the second occasion): continue play or you will forfeit Game 2. Chris Clarke recalled:

the Manager told us that if we did not continue to play we would “forfeit” the second game and that the third would be played later in the week

And the Tournament Manager’s statement was to similar effect:

I then advised that he continue to play or he forfeit the game

33. On the first occasion, the Complaints did accede to the Tournament Manger’s direction. On the second, they did not. It is thus the second occasion that is particularly material. The Tournament Manager was then faced with making a decision on whether or not to proceed with the second game and the match, or to stop play, and resume the match later in the week.

Disqualification of Forfeit?

34. There was some discussion as to whether or not the Tournament Manager’s actions amounted to a disqualification of the Complainants, or whether this is a case of forfeit. We doubt that anything of consequence turns on this semantic issue – the effect is the same whether the ultimatum be put in terms of a disqualification or a forced forfeit. We doubt if the language of Regulation 12(d)(8) is appropriate to permit disqualification is such circumstances, because that regulation appears to be concerned with an “appointed time”, which must mean a time for the commencement of play; as such this regulation does not extent to continuation of play. But this is not to say that a Tournament Manger is powerless to declare a “default result” if one player or pair fails to proceed with a game in progress.

35. In any event, it appears that, in face of the ultimatum put to them, the Complainants withdrew. The Tournament Manager said:

At 8.55pm Clark[e] stated he would withdraw from the tournament, to which I a