The Intercept That Changed the Game Forever: Fifty Years of Buckley v Tutty

Abstract

The thirteenth of December 2021 marked the fiftieth anniversary of Buckley v Tutty where the High Court of Australia, in upholding an earlier ruling of the Full Court of the Supreme Court of New South Wales in Tutty v Buckley, found the New South Wales Rugby League’s retain and transfer system to be an unreasonable restraint of trade. The article points to the long-term importance of this decision, especially it being endorsed by lower courts and tribunals in striking down similar employment rules. Prior to the case, Justice Hardie of the Supreme Court of New South Wales found in Elford v Buckley that the NSWRL’s retain and transfer system was not an unreasonable restraint of trade. The article will examine the differences in approach of Justice Hardie in Elford and the Supreme Court of New South Wales and the High Court of Australia, respectively, in Tutty. The article begins with a brief analysis of Nordenfelt v Maxim Nordenfelt Guns and Ammunition which established the modern restraint of trade doctrine. It explores the meaning of ‘carrying on trade’ under this doctrine. It contrasts two possible meanings; ‘absolute freedom’ (subject to contractual and legislative norms) and ‘Hobsonian freedom’. This distinction is used to explain the differences between the Elford and Tutty courts. The article provides an examination of the decisions of courts in previous sports cases – Walker v Crystal Place Football Club, Hawick v Flegg, Eastham v Newcastle United Football Club and Nagle v Feilden – in reaching an understanding of the decision making of the respective courts.