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Kate Henderson v New Zealand Water Polo


Appeal against decision of NSO – non-selection – H appealed decision of New Zealand Water Polo (NZWP) to not select her for the NZ Women’s Under 20 World Championship team – H in squad of 14, from which a final team of 11 was selected – H was one of those not selected – H appealed on a number of grounds including: not afforded a reasonable opportunity to satisfy selection criteria; selection criteria were not properly followed or implemented; natural justice had not been followed through the process; and there may have been bias – Tribunal considered the procedure followed by the Selection Panel and concluded that on the evidence the selectors had approached the matter in a rational way and had brought their own experience to bear in a manner that was open to them – Tribunal stated it did not feel able to challenge the reasoning of the Selection Panel as to its decision – Tribunal then considered other matters including the manner in which the non-selection decision had been communicated, which the Tribunal considered unfortunate but did not think provided grounds for setting aside decision – Tribunal found deficiencies in relation to appointment of the Selection Panel and in the decision-making process that was followed: no evidence that the Panel was selected, as required, after the last AGM, which was held in March 2015; Only three and not four, as required, selectors were appointed; and Panel made and announced the selection decision before it was ratified by the Board – NZWP argued deficiencies were technical or not material – Tribunal stated it took a more serious view – NZWP laid down rules, relating to appointment of selectors and processes leading to the final selection decision, which are published and known or available to players seeking selection who are entitled to expect that NZWP will follow and abide by its own rules – all Tribunal members acknowledged there was force in the submission made by NZWP that the three selectors had consulted with others who had knowledge of the U20 players and that the views expressed by those persons were consistent with the views of the Panel so that the outcome of deliberations by any new expanded panel (if the matter were referred back) was likely to be the same – previous Tribunal decision (Sarah Her-Lee v Table Tennis New Zealand, ST 08/14, 2 July 2014) was cited where the Tribunal said on its view on the facts of that case the fact that the decision was made by a quorum of two selectors, rather than the three prescribed, did not affect the validity of the selection decision because the Tribunal was not persuaded “that the appointment of a third selector would have altered the decision which was ultimately made” – Majority of the Tribunal, while acknowledging that the two cases are different, were content to follow this pragmatic approach in the present case, principally because they were satisfied that if a new Panel were convened it would in all likelihood be comprised of the existing members and a fourth member and would arrive at the same decision – dissenting member of the Tribunal in this issue was of the view that the issues raised were jurisdictional in nature and that the failure to appoint the selection panel correctly was a defect that could not be overcome so that the selection decisions were invalid – Tribunal by a majority decision dismissed the appeal – observations made.

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