There was a parting of law and morality in yesterday’s Super League judgment. Whereas in the judgment which it over-ruled, that of Justice James Burchett, morality was the glue that held it together.
Essentially, Murdoch’s News Ltd wanted a spectacle for his pay TV network. That specacle was a rugby league competition. If the existing competition did not come aboard on his terms he would just buy as many of the clubs and players as necessary to have the spectacle, leaving what was there in the past an empty shell.
Justice Burchett saw it as immoral; he described it in those terms. As a result he imposed court orders that would prevent Super League from getting off the ground for five years. His approach was: something is immoral; the law will not allow it; the court will make whatever orders necessary to prevent it.
Yesterday’s judges saw it differently. They did not see it as a single event … the attempt to take a spectacle or the whole AFL business by whatever means necessary. Rather they broke down what happened into a series of events. To each event they applied the appropriate law and the appropriate remedy, according to legal precedent. And the remedy was money.
To the appeal judges it was a series of court actions: a trade practices action; a contracts action; a torts action; a passing off action and so on. Their conclusions were devoid of a judgment about what is right and wrong.
They accepted that News Ltd breached contracts, induced others to breach contracts; engaged in passing off; infringed trade marks; and breached the corporations law.
But in effect they gave no realistic remedy to a wronged party which is fighting over the continued running of a rugby league competition. They said the only remedy for these breaches is damages. In other words, if you want to throw enough money at something you can do what you like.
Burchett, on the other hand, said No.
Buchett, of course, was wrong in law. His orders that Super League players must play in the ARL competition flew in the face of ages of precedent, and his interpretation of the Trade Practices Act flew in the face of nearly two decades of rulings. (I think I wrote as much last March, saying his judgment would not stand up to appeal.) But presumably he felt the need to give what can only be described as draconian remedies precribing and proscribing conduct (rather than just awarding monetary damages) as the only way to deal with an aggrieved party fairly.
Yesterday’s judgment changes that approach. It has been painted as a News Ltd win. Strictly speaking it is not. The ARL won the main point that News Lts engaged in unlawful conduct. But it lost on the point of what should flow from it. Burchett said they should not get away with it at all; yesterday’s judgement said News Ltd can get away with it, but it must pay damages. (There will not be much change out of $40 million, so you cannot describe it as a “”win” for News Ltd).
Yesterday’s judgment piece-by-piece is better argued and will stand up to appeal, but it reflects a sad change in courts’ approach to commercial conduct, largely brought about by a change in attitude in business and government in general.
The old approach was for loyalty, tradition, status quo, punishment of the wrong-doer, protection for the aggrieved. The new approach is for competition (always good), change (always good), individualism, money as the remedy for all wrongs, freedom of trade.
The old approach is exemplified by Burchett’s language in referring to one Super League club official as being “”completely corrupted” and having “”shut his eyes to his obligations”. He used words like the league being “”defenceless”; and News Ltd’s operation as being a “”meticulously planned operation, involving secrecy, suddenness and deception.” He referred with distaste for the huge amounts of money used to tempt people so that they were overwhelmed by it.
In short, he passed moral judgment about News Ltd’s conduct and misuse of money.
That contrasts with the new competition-is-good approach yesterday. The judges wrote: “”We have not found it necessary to make a judgement about the propriety of the tactics employed by News in its dealings with the League and ARL . . . The probity of News’s conduct and tactics is not central to this appeal.”
Maybe Burchett was over the top, but the law need not be devoid of morality and moral judgment. The law should not work in a moral vacuum.
The judges who ruled yesterday, bear in mind, did not dispute any of Burchett’s findings of fact. They just made a different judgment about what should flow from that conduct.
Neither side is blameless, of course. True, the ARL has been arrogant, stupid, obstinate, resistant to change and a cosy monopoly and that has been bad for the game and the spectators.
But in these days of huge multi-national corporations which huge amounts of money at their disposal, it is dangerous if the law works in a moral vacuum and allows a situation in commerce where any conduct is condoned provided the right money price is paid.