Hughes v Western Australian Cricket Association (Inc)
(1986) 19 FCR 10
Boycott by clubs applied against players participating in a "rebel" cricket tours of South Africa as part of an international cricket ban on playing in SA – designed to pressure SA into ending its apartheid policy.
The WACA and clubs adopted rules/regulations the provided players would be disqualified if the participated in a non-recognised match – this included South African tours. Hughes and others were disqualified as a result of attending one of these tours. Hughes argued (amongst other things) that the agreement to disqualify him (and others) was exclusionary in contravention of the TPA.
Federal Court (Toohey J)
On whether the WACA was a trading corporation
Noted that the current activities test should apply to determine whether the corporation was a 'trading corporation' at the relevant time for purposes of s 4 of the Act.
"The mere fact that a corporation trades does not mean that it is a trading corporation" (p 20)
"The purpose of incorporation ... is no longer a valid test. The test is one of the current activities of the corporation: Adamson; State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282 at 304 ..." (p 20)
"But the current activities test is not the sole criterion for determining whether a corporation is a trading corporation. ... Views as to the necessary extent of trading have varied. ..."
"An incorporated sporting body can be a trading corporation if its activities meet the required test: Adamson" (p 20)
On exclusionary provisions
The clubs were ‘competitive with each other for the services of cricketers’ despite the relative informality of the recruiting process. WACA argued there was no competition for the services of the player Hughes because once he played in the ‘rebel’ tour none of the clubs competed for his services. Toohey J held that this did not matter; clubs need not compete for the services of the particular applicant – the issue was whether they were competitive for the services of persons affected by the rule and ‘whether they entered into a contract or arrived at an understanding (more accurately, a provision of the understanding) for the purpose of preventing, restricting or limiting the supply of services from the applicant.’
The rule here did contain an exclusionary provision.