Agricultural Societies Council of NSW v Christie

Case •

[2016] NSWCA 331

•

01 December 2016

No judgment structure available for this case.

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Agricultural Societies Council of NSW v Christie [2016] NSWCA 331
Hearing dates:23 May 2016
Decision date: 01 December 2016
Before: Meagher JA at [1];
Ward JA at [83];
Leeming JA at [84]
Decision:

1. Extend time for the applicant to file its summons seeking leave to appeal to 5pm on 9 March 2016.
2. Grant leave to the applicant to appeal from orders 1 and 2 made on 11 August 2015.
3. Direct the applicant file its amended notice of appeal within seven days.
4. Allow the appeal.
5. Set aside orders 1 and 2 made on 11 August 2015.
6. Dismiss the summons filed on 2 April 2015.
7. Respondent pay the applicant’s costs of the proceedings below.
8. Respondent pay the applicant’s costs of the appeal.

Catchwords:

ASSOCIATIONS AND CLUBS – Domestic tribunal – Jurisdiction of courts to interfere in decision of disciplinary committee – decision to suspend respondent show horse trainer from events after found in breach of disciplinary rules – where no contract between respondent and applicant agricultural society or other private law right as basis for court’s jurisdiction to grant relief – whether decision amenable to orders in the nature of certiorari for jurisdictional review or to private law remedies such as declaration or injunction

  JUDICIAL REVIEW – reasonable apprehension of bias – where decision to suspend respondent trainer after horse tested positive for prohibited substances – where member of disciplinary committee determining penalty involved in selecting horse for testing and overseeing horse swabbing procedure and sample testing procedures – whether fair-minded observer might reasonably apprehend decision-maker might not apply an impartial mind – whether member had an “interest” in the process akin to that of a prosecutor that might cause him to deviate from proper decision-making
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)
Corporations Act 2001 (Cth), s 140
Domestic Animals Act 1994 (Vic), s 29(4)
Judicial Review Act 1991 (Qld)
Supreme Court Act 1970 (NSW), s 69
Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Amos v Western New South Wales Local Health District [2016] NSWSC 1162
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546
Australian Workers’ Union v Bowen [No 2] (1947) 77 CLR 601
Bird v Ford [2014] NSWCA 242
Buckley v Tutty (1971) 125 CLR 353
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Dickason v Edwards (1910) 10 CLR 243
Forbes v New South Wales Trotting Club Limited (1979) 143 CLR 242
Golden v V’landys [2016] NSWCA 300
Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7
Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487
Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20
Khuu & Lee Pty Ltd v Corporation of the City of Adelaide (2011) 110 SASR 235; [2011] SASCFC 70
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161
Mickovski v Financial Ombudsman Service Ltd (2012) 36 VR 456; [2012] VSCA 185
Mitchell v Royal New South Wales Canine Council Limited (2001) 52 NSWLR 242; [2001] NSWCA 162
Mullins v McFarlane [2006] EWHC 986 (QB)
Mullins v The Appeal Board of the Jockey Club [2005] EWHC 2197 (Admin)
R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864
R v Panel on Take-overs and Mergers, Ex parte Datafin Plc [1987] QB 815
Regina v Disciplinary Committee of the Jockey Club, Ex parte Aga Khan [1993] 1 WLR 909
Rigby v Connol (1880) 14 Ch D 482
Ririnui v Landcorp Farming Ltd and The Attorney-General [2016] NZSC 62
Stollery v the Greyhound Racing Control Board (1972) 128 CLR 509
Texts Cited:

J Boughey and G Weeks, “‘Officers of the Commonwealth’ in the Private Sector: Can the High Court Review Outsourced Exercises of Power?” (2013) 36 UNSWLJ 316

 

J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed 2014, LexisNexis Butterworths)

  M Aronson and M Groves, Judicial Review of Administrative Action, (5th ed 2013, Thomson Reuters)
Category:Principal judgment
Parties: Agricultural Societies Council of NSW Ltd (Applicant)
Michael Christie (Respondent)
Representation:

Counsel:
L Gor (Applicant)
A T Schlicht (Respondent)

  Solicitors:
Colin Biggers & Paisley (Applicant)
Simon Nixon & Associates (Respondent)
File Number(s):2015/258955; 2016/77276
Publication restriction:Nil
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Common Law Division
Citation:
[2015] NSWSC 1118
Date of Decision:
11 August 2015
Before:
Kunc J
File Number(s):
2015/98489

HEADNOTE

[This headnote should not be read as part of the judgment]

The applicant, Agricultural Societies Council of NSW Ltd (ASC), was a not-for-profit organisation providing services to member show societies. Those services included the drug testing of horses and the conduct of disciplinary inquiries. ASC’s Rules for Discipline in Horse Sections at Shows (“the Rules”) were formulated with respect to the undertaking of its disciplinary functions.

On 3 October 2014, the respondent horse trainer participated in the 150th Wagga Wagga Show. After an event, the horse that he was riding was selected to undergo drug testing by Mr Capp, a director of ASC and its official present at the show. That testing revealed the presence of two prohibited substances. An inquiry was initiated and on 24 March 2015 a disciplinary committee, constituted of Mr Capp and three other directors of ASC, found the respondent had breached the ASC Rules through the use of the substances. It imposed a penalty of 12 months suspension from competition.

The respondent sought interlocutory injunctive relief and a final order setting aside or quashing the decision of the committee. In doing so, he did not rely on any contract or other private law right as the basis for the Court’s jurisdiction to grant relief. Nor was it said that ASC was exercising any statutory power or performing any governmental function.

The primary judge found that the committee’s decision was amenable to judicial review because it adversely affected the respondent’s livelihood and reputation. His Honour also found that there was apprehended bias on the part of Mr Capp which vitiated the committee’s decision and ordered that the decision be quashed.

ASC sought leave to appeal from those orders. The issues in the proposed appeal were:

Whether the disciplinary committee’s decision to suspend the respondent was susceptible to relief in the nature of certiorari;

Whether the committee’s decision to suspend the respondent was amenable to relief by way of declaration or injunction founded on a private law right;

Whether the committee’s decision was vitiated because of a reasonable apprehension of bias on the part of Mr Capp;

The Court held (per Meagher JA, Ward and Leeming JJA agreeing), granting leave to appeal and allowing the appeal:

In relation to (i):

The basis for the exercise of the Court’s power to grant relief in the nature of certiorari arises where the decision maker is exercising a public, relevantly statutory, function. ASC was not exercising any statutory power or function and its decision was not amenable to judicial review: [42]-[49], [87]-[94]

Chase Oyster Bar Pty Ltd v Hamo Industries Pty ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 applied

In relation (ii)

The Court’s power to grant a remedy such as a declaration or injunction in relation to the decision of a private tribunal is founded the exercise of contractual or other private law rights recognised at law or in equity. No such rights were relied on to justify the Court’s intervention: [35], [40]-[41]

Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546; Mitchell v Royal New South Wales Canine Council Limited (2001) 52 NSWLR 242; [2001] NSWCA 162 applied

In relation to (iii):

Mr Capp’s involvement in the circumstances leading to the decision to impose a penalty was not akin to that of prosecutor. He did not undertake investigations nor oversee the prosecution of the charges and had no “interest” in the process that might cause him to deviate from proper decision-making: [74]-[78]

Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 distinguished

Judgment

MEAGHER JA:

Overview

  1. The applicant, Agricultural Societies Council of NSW Ltd (ASC), is a not-for-profit organisation which provides services to its member show societies. Those services include random drug testing of horses competing in events at agricultural shows and the conduct of disciplinary inquiries into questions of misconduct, including the use of prohibited substances.

  2. The respondent (Mr Christie) is a riding instructor and show horse trainer. On 3 October 2014 he rode the horse “Royalwood Black Swan” to victory in the Galloway Champion Hack event at the 150th Wagga Wagga Show. The owner of that horse was a Ms Cullen. After the event, the horse was selected by Mr Capp, a director of ASC and the chairman of its disciplinary committee, for a swabbing procedure. It subsequently tested positive for two prohibited substances: 2-(1-hydroxyethyl) Promazine sulphoxide (sometimes referred to as “ace”) and phenylbutazone (sometimes referred to as “bute”). The former is a tranquiliser and sedative and relaxes the horse, thereby affecting its performance. The latter is a pain killer and anti-inflammatory, which by reducing swelling and numbing pain also affects performance and behaviour.

  3. On 24 March 2015, following a hearing, ASC’s disciplinary committee, constituted by Mr Capp and three other directors of ASC, found that Mr Christie had breached r 25 of the ASC Rules for Discipline in Horse Sections at Shows. That rule provided that a person must not permit a horse to which a Prohibited Substance has been administered to compete in an event. It was accepted that ace and bute are such substances. The committee then imposed a penalty on Mr Christie. That penalty was suspension from competition for 12 months from the date of breach.

  4. ASC had no contractual or other relationship with Mr Christie which enabled it to enforce that penalty. The evidence was, however, that its general practice was to write to member show societies following the outcome of a disciplinary inquiry to inform them of any penalty imposed on a horse, owner or rider. Although there was no express agreement between the member show societies and ASC that the former would enforce such a penalty, it may safely be assumed that in the ordinary course they would determine to do so.

  5. Mr Christie commenced proceedings against ASC for an order setting aside or quashing the decision to impose a penalty. On 2 April 2015 an interlocutory order was made restraining ASC from taking any action to enforce or implement that decision. That injunction was subsequently continued by consent until final orders were made on 11 August 2015. The primary judge (Kunc J) upheld Mr Christie’s claim, and ordered that the committee’s decision be quashed: Michael Christie v Agricultural Societies Council of NSW Ltd [2015] NSWSC 1118. By the agreement of the parties no further order was made referring back to ASC for further determination the question whether Mr Christie had committed a breach of the rules and should be disciplined.

  6. His Honour quashed ASC’s decision on the basis that it was “open to review” in accordance with this Court’s decision in Mitchell v Royal New South Wales Canine Council Limited (2001) 52 NSWLR 242; [2001] NSWCA 162 and that of the Victorian Court of Appeal in Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546. As will be seen, each of these cases concerned the availability of private law remedies founded in contract with respect to the decision of a domestic or private tribunal not exercising any governmental function.

  7. The parties agreed the questions which arose in the proceedings at first instance. The first was formulated as being whether the committee’s penalty decision was “justiciable”: at [7]. With respect to that question ASC adopted the position that as the remedy sought was relief in the nature of certiorari – that the decision be quashed – the issue was whether the decision was amenable to judicial review, in the exercise of this Court’s supervisory jurisdiction as continued by s 69 of the Supreme Court Act 1970 (NSW).

  8. His Honour recorded ASC’s submission with respect to this first question as being that the decision was “not justiciable under the common law of administrative review”. He described that submission as “not sustainable” and concluded that, applying the principle determined in Mitchell, “the decision is justiciable”: at [24]-[25], [30].

  9. Before this Court ASC continues to contend that the decision of its committee was not amenable to relief in the nature of certiorari. It also contends that Mitchell and AFL v Carlton were cases in which the contractual relation between the parties gave rise to the private law right for which a remedy was sought and granted in Mitchell, but refused in AFL v Carlton. In response Mr Christie submits that the primary judge was correct in applying these decisions, and relies on Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 and Forbes v New South Wales Trotting Club Limited (1979) 143 CLR 242 as supporting his Honour’s conclusion as to this Court’s jurisdiction to grant the relief sought.

  10. These arguments make it necessary, in resolving the appeal, to consider whether the committee’s decision was susceptible to judicial review, or to relief by way of declaration or injunction founded on a private law right. Those questions arise in circumstances where it is accepted by Mr Christie that the disciplinary committee was a domestic tribunal, not established by statute, which was operating under contractual arrangements to which he was not a party, and undertaking functions which were private, as distinct from governmental. They are to be contrasted with those in Regina v Disciplinary Committee of the Jockey Club, Ex parte Aga Khan [1993] 1 WLR 909 where it was said that the Jockey Club, whose disqualification order was sought to be quashed, was the “effective de facto controller of a significant national activity”, that its functions were “essentially public” and that its powers were of a nature and scope which affected the public (at 915). The argument that the Jockey Club’s functions so characterised were amenable to judicial review was rejected.

  11. Having answered that question, the primary judge addressed three questions directed to whether the Wednesbury unreasonableness principle (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) applied to the committee’s decision, concluding that it did not: at [80]. His Honour then considered whether apprehended bias on the part of Mr Capp vitiated the committee’s decision, holding that it did and that Mr Christie had not waived the right to rely upon that bias: at [83], [104], [109]. The primary judge’s decisions in relation to these questions, excepting those relating to Wednesbury unreasonableness, are sought to be challenged in the appeal.

The issues in the proposed appeal

  1. ASC requires leave to appeal because the matter in issue does not amount to or have a value in excess of $100,000. In my view leave to appeal should be granted. The question whether Mr Christie had any public or private law remedy available to him is not without difficulties, and similar questions arise in a variety of different circumstances, and commonly in those involving sporting and community based disciplinary bodies.

  2. The appeal (as formulated in ASC’s proposed amended notice of appeal) raises four issues. They are:

1.   Whether ASC's decision was amenable to a public or private law remedy at the suit of Mr Christie (grounds 1 and 2).

2.   Whether the principle of apprehended bias applied to the members of the disciplinary committee (grounds 3 and 4).

3.   Whether Mr Christie was denied procedural fairness by reason of apprehended bias on the part of Mr Capp (ground 5).

4.   Whether Mr Christie had waived any right to object to Mr Capp's participation in the decision-making process (ground 6).

  1. Ground 7 of appeal (which only asserts error in general terms) does not raise any further issue to these four issues.

  2. The following additional facts, which are not controversial, are relevant to an understanding of these issues and how they fall to be resolved.

Additional relevant facts

  1. ASC is a public company limited by guarantee. By s 140 of the Corporations Act 2001 (Cth) its constitution has effect as a contract between the company and each member, and between the members, under which each agrees to observe and perform the constitution. As at October 2014, ASC had 195 show society members. For the purpose of the appointment of directors, those members were divided into 15 groups. With one exception, those groups represented different geographical areas within New South Wales. Each group has two representative directors on ASC’s board, which cannot exceed 40 in number (cl 11.1).

  2. ASC’s constitution describes its purpose as being the “provision of support and services to member Show Societies and Groups in order to assist their contributions to the fabric of their communities and to the pursuit of excellence in primary production and related activities” (3.1). The services provided by ASC include those of the disciplinary committee. By cl 18.1 the board may make regulations and rules relating to the operations or conduct of the company. Such rules were formulated with respect to the membership of the disciplinary committee, the conduct of its inquiries and the imposition of penalties. Those rules are the ASC Rules for Discipline in Horse Sections at Shows referred to in [3] above.

  3. Mr Capp had held the position as Chairman of that committee since May 2012. The committee itself was to comprise such persons as the board from time to time appointed, being not less than three nor more than seven. The Rules provided that inquiries were to be conducted by a panel of at least three members of the committee: rr 4, 5.

  4. The evidence did not disclose the exact basis on which Ms Cullen's horse and Mr Christie participated in the relevant event at the Wagga Wagga Show. The Horse Program provided that competitors sign waivers before they rode and that an entry form had to be completed and an entry fee paid before “entering the ring”. The evidence does not indicate whether such an entry form was completed for the horse. Presumably that occurred. However whether it did so was not part of Mr Christie’s case. The pro forma entry form in the program, which was to be signed by the competitor, included statements that they “accept the Association's rules and regulations”, “agree not to make any claim against the Wagga Wagga Show Society Inc for any injury or loss sustained” and “agree to compete and exhibit at my own risk”.

  5. The Horse Program listed the events to be held on each of the two days of competition and the area (more specifically the ring) in which those events were to be held. At the commencement of the list of the events for each area which were to be held on each day, the following appeared:

DRUG TESTING MAY BE CARRIED OUT AT THIS SHOW, ANY COMPETITOR FOUND TO HAVE BREACHED THE ASC DISPUTES & DISCIPLINARY REGULATIONS WILL BE INVESTIGATED BY THE ASC DISCIPLINARY COMMITTEE [capitals, bolding and underlining in original].

  1. The proceeding was conducted on the basis that that reference to the ASC Disputes & Disciplinary Regulations was to the Rules referred to above.

  2. Mr Capp was the only ASC official present at the show on 3 October 2014. Mr Christie and Mr Capp were not previously known to each other. Following the event Mr Capp selected the horse for a prohibited substance test. It was not suggested that he did so for any reason other than that it won the event. The horse was taken to a designated testing area and swabbed by a veterinary doctor. Mr Capp did not take the swab although he was present when it was taken. Two samples were taken and sealed. They were sent to the Australian Racing Forensic Laboratory (ARFL), where one was tested and the other held. Subsequently the second and untested sample, at the request of Mr Christie, was sent to another laboratory, Racing Analytical Services Limited (RASL), and tested. The testing conducted by each laboratory showed the presence of “ace” and “bute”.

  1. On 2 January 2015 Mr Christie wrote to ASC requesting that the second sample be tested. He also advised that he had been unable to “locate the Society rules governing these situations”. On 6 January Mr Capp responded, advising that those rules (being the Rules referred to earlier) could be found on the ASC website.

  2. In late February 2015 Mr Capp again wrote to Mr Christie, advising of the result of the testing of the second sample. That letter continued:

The 2014 Wagga Wagga Show was conducted in accordance to the Rules & Regulations for this Show and the Agricultural Societies Council of NSW Ltd Rules for Prohibitive Substances & Discipline for Horses.

The Disputes/Disciplinary Committee has initiated an enquiry regarding the matter and considers the confirmed detection to a prohibited substance to be a breach of the Show's Rules and Regulations and of the Agricultural Societies Council of NSW Ltd Rules for Prohibitive Substances section,

24.   A person must not administer a Prohibited Substance to a horse, or permit a horse to which a Prohibitive Substance has been administered to compete.

25.   The Competitor, the Owner and an Attendant of any horse in which a Prohibited Substance is detected is deemed to be in breach of these rules.

Notice is hereby given that, the Disputes/Discipline Committee, intends to conduct a hearing into this matter at 11.00 am on Wednesday the 18th of March 2015, in the Board Room, Agricultural Societies Council of NSW Ltd, …

You are entitled to attend and be heard at the hearing and to give such evidence as shall be relevant in the circumstances. The hearing will be conducted, notwithstanding that the person directly affected, who has been given notice, fails to appear at the hearing.

  1. Rules 24 and 25 as extracted in this letter do not precisely correspond with the equivalent paragraphs of the version of the rules which was in evidence. No point was made, however, about that difference either before the primary judge or in this Court.

  2. Two days before the hearing scheduled for 18 March, solicitors acting for Mr Christie requested an adjournment because of medical treatment which he was receiving. That request was acceded to, and the hearing was adjourned to 24 March 2015. In his letter of 17 March 2015 advising of that adjournment, Mr Capp also said:

If the Committee determines that your client has breached the regulations, he will be invited to make submissions as to penalty. Once he has made any submissions he wishes to make, the Committee will then proceed to determine penalty, and your client will be advised accordingly.

Please note that this matter will be finally determined at the hearing on 24 March, even if your client chooses not to appear.

  1. On 24 March a hearing took place before a panel of four members of the committee, including Mr Capp who sat as Chairman. Each of the other members of the panel also was a director of ASC. Mr Christie appeared in person, as did Ms Cullen and her husband. Mr Christie also relied on a nine page typewritten submission which had been forwarded to the committee on 23 March 2015. That submission, which was almost certainly prepared by a lawyer, concluded that the committee should find that the prohibited substances had been administered to the horse by Ms Cullen, without Mr Christie’s knowledge, and in circumstances where no reasonable person could infer or impute knowledge of that administration to him. In those circumstances it was submitted that the committee should form the view that Mr Christie had “discharged his obligations and that no penalty should be imposed”.

  2. At the conclusion of the hearing the committee adjourned. After a short deliberation it returned and announced that it had found Mr Christie had committed a level 2 “offence” namely “use of a Prohibited Substance which could have affected the performance of the horse at the time of competition” (r 31). Mr Christie was then given the opportunity to make further representations on the question of penalty. He did so. The committee further adjourned and returned to announce its decision that he should be suspended for 12 months from 3 October 2014, an effective period of seven months. On 25 March 2015 Mr Christie was advised in writing of that finding and penalty.

Whether upon the evidence ASC’s penalty decision was amenable to a public or private law remedy (grounds 1 and 2)

  1. Although the primary judge described ASC’s submission that its penalty decision was not amenable to judicial review as “not sustainable”, in fact his Honour did not consider the question whether that decision was susceptible to relief in the nature of certiorari. Instead, as I have noted above, his Honour considered and relied on two decisions (Mitchell and AFL v Carlton) in which private law remedies were sought to enforce “consensual arrangements or contracts” between the parties. It was not Mr Christie’s case that any such arrangements or contracts existed, either between him and ASC or between him and Wagga Wagga Show Society Inc, which was not a party.

  2. At the outset of his judgment in AFL v Carlton, Tadgell JA (at 548) described the basis on which relief was sought:

The proceeding brought by the respondents was founded on alleged breaches by the league of the contract to which the player, the club and the league are parties. No reliance was placed – nor in the circumstances could it have been placed – on any tortious claim, breach of trust or statute. Nor, although it might perhaps have been possible, was any reliance placed on the doctrine of restraint of trade (cf Buckley v Tutty (1971) 125 CLR 353) or any property right separate from that which the contract might confer. … Moreover, the proceeding was purely in the nature of a civil action. … Nothing in the nature of judicial review was sought by way of prerogative writ or under O. 56 of the Rules of Court.

  1. To the same effect, Hayne JA (at 561) recorded that “the proceeding is one alleging breach of contract. It is not a proceeding seeking relief or remedy in the nature of certiorari or prohibition …”. Finally, Ashley AJA (in dissent in the result) described (at 576) the proceeding as one “brought by a player or his club for breach of contract, or for relief by recourse to a general principle of law”.

  2. In Mitchell, Ipp AJA (with whom Mason P and Stein JA agreed) identified (at [34]-[36]) the jurisdictional basis for the exercise of the Court’s power to make declarations that the decision and orders of a private tribunal were of no effect, as derived from “consensual arrangements or contracts between the members of the association concerned”. In doing so his Honour referred to the decision of Mahoney JA in Scandrett v Dowling (1992) 27 NSWLR 483 at 503-504 where his Honour had said in relation to the question whether the Court would intervene to restrain a breach of the rules of a voluntary association:

In considering whether such a breach should be restrained by injunction or the subject of a declaration, it will ordinarily be of assistance to consider three matters: whether the rules of the voluntary association were intended to create legally binding rights and obligations between the members; (if they were) whether there has been a breach of rules creating such rights and obligations; and (if there has) whether the rules or the breach are such that it was intended that legal consequences should flow from the breach and (if it was) whether those consequences warrant intervention to restrain the breach.

  1. The primary judge accepted that the committee was a domestic tribunal which had not been established by statute and which was operating under arrangements which were private, albeit not contractual arrangements to which Mr Christie maintained that he was a party. Referring to ASC’s submission that, in contrast to the position in AFL v Carlton and Mitchell, there was no contractual relationship relied on in this case, the primary judge said at [28]:

The Court does not accept that to focus on such matters is a valid point of distinction. The principle guiding whether or not a court will interfere in a decision of a domestic tribunal demonstrated by cases such as Mitchell and AFL requires an examination of the nature or quality of the effect of the decision on someone such as Mr Christie rather than analysing the legal framework for how the decision was made or can be enforced. The cases demonstrate that the effect of a decision will have the necessary quality to enliven the Court’s jurisdiction if, for example, the Court is satisfied that it will have an effect on private legal rights such as rights in property or adverse financial or reputational impact on someone, particularly insofar as their livelihood is concerned. The categories of the necessary quality of the impact of the decision are not closed. However, the emphasis in the authorities on interference with matters such as property rights or livelihood suggests that the Court’s jurisdiction is unlikely to be engaged where the impact of a decision is de minimis or gives rise merely to personal inconvenience or distress.

  1. His Honour considered it was sufficient to engage this Court’s jurisdiction to grant relief that ASC’s decision, if implemented by its member show societies, had the capacity adversely to affect Mr Christie’s ability to earn his livelihood, and his reputation. His Honour did so without identifying any alleged breach or threatened breach of contract, any tortious claim, breach or threatened breach of trust or statutory entitlement which would provide a principled basis for granting a private law remedy. He nevertheless concluded “applying the principle in Mitchell” that the penalty decision was justiciable: at [30].

  2. Neither AFL v Carlton nor Mitchell decides that a Court may grant a private law remedy, such as a declaration or injunction, in relation to a challenged decision of a private tribunal other than in enforcing or protecting an underlying contractual or other entitlement recognised at law or in equity. For that reason his Honour’s statement that his decision was consistent with the “principle in Mitchell” was neither justified nor correct.

  3. His Honour’s reference may be to Ipp AJA’s statement at [37] that it had been held “in certain circumstances, that the court has power to intervene, irrespective of the terms of any contract that may be applicable”. That observation was made in relation to the jurisdictional basis for the exercise of the Court’s “discretionary power to intervene in the affairs of voluntary tribunals” which, as Ipp AJA observed, had “long been recognised”. Having also observed of that power that it was “ordinarily regarded to be derived from consensual arrangements or contracts between the members of the association concerned”, Ipp AJA extracted two passages from the judgment of Tadgell JA in AFL v Carlton.

  4. In the first, Tadgell JA (at 552) discusses the basis upon which a private tribunal is taken to be obliged to act “in good faith, without bias and in other respects honestly”. His Honour was not there seeking to identify the underlying private law rights by reference to which, in an appropriate case, the Court will grant a remedy for breach of any such duty. In the course of that discussion, Tadgell JA referred to tribunals operating under a consensual arrangement or trust. Tadgell JA’s earlier statement (see [30] above) had made clear that contract and trust provide two instances in which a private law remedy might be available.

  5. In the second of the passages cited by Ipp AJA, Tadgell JA (at 550) notes that the Courts “have been disposed to interfere in a limited way with decisions of private or domestic tribunals in order to protect private rights that have been adjudged to deserve protection, including rights in property”. Tadgell JA continued:

If a tribunal's decision purports to owe its binding quality, for example, to a contract or a trust the courts, exercising jurisdiction in respect of contracts and trusts, will recognise that the making of the decision is to be consonant with the contract or trust before it is binding.

  1. Tadgell JA’s reference to the courts interfering with decisions of domestic tribunals in order to protect rights in property is most likely to one of the circumstances in which equity, in its auxiliary jurisdiction, would restrain unincorporated associations from expelling members: see Rigby v Connol (1880) 14 Ch D 482 and, more generally, the discussion in JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed 2014, LexisNexis Butterworths) at [21-280]-[21-305].

  2. As I have already noted, in relation to the making or enforcement of the committee’s decision, it was not alleged that there was any contract or proprietary right, legal or equitable, or equity that might be enforced, or protected at Mr Christie’s suit by injunction or declaration. At its highest, the relevant effects on Mr Christie of the “voluntary” enforcement of the penalty decision were said to be “financial and reputational”. It was not contended, however, that any such enforcement of that decision, or its publication, was or would be tortious, or involve any unreasonable restraint of trade because of any arrangement or understanding between ASC and its member show societies: cf Buckley v Tutty (1971) 125 CLR 353.

  3. It follows that the primary judge erred in concluding that either the decision in Mitchell, or any other statement of Ipp AJA in Mitchell, provided a principled basis for the Court to grant a private law remedy to Mr Christie. So to conclude is not to exclude the possible availability of such a remedy as against the Wagga Wagga Show Society Inc or its agents, which, for the purpose of any agreement as to the terms on which Mr Christie participated in the Galloway Champion Hack event, may have included ASC. No such case was made before the primary judge.

  4. It remains to consider Mr Christie’s reliance on the decisions in Heatley and Forbes. Before doing so it is necessary to say something further about the Supreme Court’s jurisdiction to grant relief in the nature of certiorari. The function of such relief is to quash the legal effect of an act or decision which has been reached in breach of a condition of its validity: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580, 595.

  5. In R v Criminal Injuries Compensation Board; Ex parte Lane [1967] 2 QB 864 Lord Parker CJ noted (at 882) that “the ambit of certiorari can be said to cover every case in which a body of persons of a public as opposed to a purely private or domestic character has to determine matters affecting subjects”. I have omitted the reference to there being any requirement that the relevant public officer or tribunal be under a duty to act judicially. See Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 at [9]-[19], (Spigelman CJ) and [82]-[84] (Basten JA); and, more generally, M Aronson and M Groves, Judicial Review of Administrative Action, (5th ed 2013, Thomson Reuters) at [12.160].

  6. The scope of this Court’s jurisdiction to grant relief in the nature of certiorari was considered in Chase Oyster Bar, and particularly in the judgments of Spigelman CJ and Basten JA. The question in that case was whether the determination of an adjudicator appointed under the Building and Construction Industry Security of Payment Act 1999 (NSW) was amenable to that jurisdiction. It was accepted the resolution of that issue depended on the nature of the function exercised by the adjudicator, and its relationship with government power.

  7. Basten JA (Spigelman CJ relevantly agreeing) considered that an adjudicator was amenable to relief in the nature of certiorari because the adjudicator was exercising a public, relevantly statutory, function and notwithstanding that the adjudicator was not an officer of government, nor nominated by any officer of government, and notwithstanding that government did not have any power to control the adjudicator, either in the exercise of its statutory functions or otherwise: Chase Oyster Bar at [65]-[66].

  8. Agreeing with that conclusion, Spigelman CJ observed of this Court’s supervisory jurisdiction at [3]:

… [that it] can be invoked with respect to the exercise of statutory powers and the conduct of statutory procedures, whether or not the person to whom any orders equivalent to the prerogative writs are to be directed is a public officer.

  1. The Chief Justice added at [5]:

The process of adjudication is not in any sense a consensual arbitration of the character which has often been held not to be subject to the Court’s supervisory jurisdiction. Rather, it is a public, relevantly a statutory, dispute resolution process, and as a consequence is subject to the supervisory jurisdiction.

  1. Although reference was made on behalf of Mr Christie to the decision of the English Court of Appeal in R v Panel on Take-overs and Mergers, Ex parte Datafin Plc [1987] QB 815, the reasoning in that case was not relied on as supporting any conclusion that public law remedies might have been available in this case: cf the argument made and rejected in Ex parte Aga Khan. Specifically it was not suggested that ASC was exercising functions conferred by government or exercising public power because it was performing a regulatory role and recognised as an integral part of government.

  2. Heatley concerned the exercise by the Tasmanian Racing and Gaming Commission of its statutory power to give a written notice requiring a person to refrain from entering any racecourse in that State. The appellant, Mr Heatley, applied for a writ of certiorari to have the relevant notice quashed. There was no issue as to the Court’s jurisdiction to grant such relief in circumstances where the Commission was exercising statutory functions which involved the regulation and control of matters relating to horse racing, coursing, the breeding of horses and dogs, the conduct of race meetings by registered clubs and the regulation and control of betting by and with bookmakers and by means of the totalisator. It was plain that the character of the Commission’s statutory power was governmental. See esp per Aickin J at 511-512.

  3. In Forbes, the New South Wales Trotting Club Ltd gave notice to the appellant that he was “excluded from admission to the Harold Park Paceway, the Menangle Park Paceway and any other course which may now or in the future be occupied by or come under the control” of the respondent. The Trotting Club was the owner of the land on which the Harold Park and Menangle Park Paceways were situated. Rule 28 of the Rules of Trotting empowered the Committee of the Trotting Club “to warn any person off any course”. Mr Forbes sought a declaration that the resolution of the committee of the respondent was ultra vires and void because he had not been afforded any opportunity to be heard. He also sought an injunction restraining the respondent from giving effect to that resolution.

  4. As appears from the summary of the argument of Mr M H McHugh QC, who appeared for Mr Forbes, that relief was sought on two bases, neither of which involved the supervisory jurisdiction of the Court. The first was contractual and was that the Trotting Club could not revoke the licence of a person attending a meeting otherwise than in accordance with the Rules of Trotting, which it was conceded required that the person first be given an opportunity to be heard. The second was that the resolution warning off Mr Christie was void as against public policy because it was an unreasonable interference with his right to work as a professional punter (Forbes at 244).

  5. The Court (Gibbs, Stephen, Murphy and Aickin JJ, Barwick CJ dissenting) upheld Mr Forbes’ claim, rejecting the Trotting Club’s argument that the resolution could be supported as an exercise of its right as the owner and occupier of the two trotting courses to refuse admission to them. Gibbs J accepted Mr Forbes’ argument that in entering the trotting course he agreed to be bound by the Rules of Trotting and that that contract properly understood contained an implied stipulation that the Trotting Club would not exclude him except in accordance with those rules (at 271). That was sufficient to found an entitlement to a declaration, the making of which Gibbs J held would not be futile (at 272). Aickin J (with whom Stephen J relevantly agreed) also upheld Mr Forbes’ claim to a declaration on the basis that there was a contract by which both parties were bound by the Rules of Trotting (at 282). The remaining member of the majority, Murphy J, noted that in purporting to exclude Mr Forbes from any trotting course the Trotting Club was exercising a public power (at 275), but did not address in more detail the basis for the remedy granted. Thus, three members of the majority decided this case on the basis that it was argued, namely as a claim to private law remedies founded upon a contract between the parties.

  1. The primary judge erred in concluding that Mr Christie was entitled to any relief, either in the nature of certiorari or by way of private law remedy. Grounds 1 and 2 should be upheld and the appeal allowed. Notwithstanding this conclusion I will nevertheless address the remaining grounds of appeal.

Whether the disciplinary committee’s decision to suspend Mr Christie from competition was vitiated because of a reasonable apprehension of bias on the part of Mr Capp (grounds 3, 4 and 5)

  1. The extent to which the principles of natural justice apply to proceedings of a private tribunal depends on the construction of the consensual or other arrangements which empower the tribunal to decide any dispute or matter arising between the parties. It is sufficient in this respect to refer to the decision in Dickason v Edwards (1910) 10 CLR 243 at 250-251 (Griffith CJ), 255-256 (O’Connor J) and 262-263 (Isaacs J).

  2. In interpreting the rules of a friendly society that gave authority to such a tribunal to deal with a question of expulsion for misconduct, O’Connor J observed in Dickason (at 255) that “there is always to be read into [the rules] the underlying condition that the proceedings shall be carried on in accordance with the fundamental principles of common justice. It is upon a party who wishes to shut out the implication of that basic condition to show that the rules expressly or by necessary implication negative the implication of its existence”. This statement was applied by Dixon J in Australian Workers’ Union v Bowen [No 2] (1947) 77 CLR 601 at 631.

  3. The same general principle applies when determining the extent to which the rules of natural justice apply to a tribunal or other decision-maker constituted by statute. Those rules must, where necessary, give way to any statutory requirements governing the performance of the tribunal’s functions, and cannot be invoked to frustrate the intended operation of the statute: see Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 89.

  4. The Rules contain express provisions directed to ensuring that the person whose conduct is the subject of inquiry receives procedural fairness prior to the making of any decision as to misconduct, or the imposition of a penalty with respect to a finding of misconduct. That person is to be informed in writing of the complaint which is then to be the subject of a hearing; and is entitled to be heard at the hearing and to present evidence and cross-examine witnesses called in a contrary interest. He or she also is entitled to have each of the persons constituting the panel which hears the complaint present at all times (rr 9, 10, 11). The Rules also contain an express acknowledgment that one of their objects is to ensure that there is no “denial of natural justice” (r 13(b)).

  5. Although they address the requirement that a person be given adequate notice of any charge and opportunity to be heard, these Rules do not expressly address the principle that any decision be made free from bias or partiality. Accepting that principle to apply differently in relation to domestic, as distinct from public tribunals, in Dickason O’Connor J (at 256) considered that it must at least require “that there… be no reasonable or substantial ground for suspecting bias”. Isaacs J (at 258-259) adopted the same qualification to the application of that principle. The circumstances in which there would likely be such a reasonable or substantial ground were identified as including where a person is “judge in his own cause” (Griffith CJ at 250); or “prosecutor in a charge of using abusive language concerning himself personally” (O’Connor J at 257); or judge as well as occupying “some other position which he really has in the case” (Isaacs J at 259).

  6. In Bowen [No 2], Dixon J similarly considered (at 631) that it was not open in accordance with that principle as applied to a domestic tribunal of a trade union:

… to have present as a member of the tribunal a person who has promoted the charge and supports it as the prosecutor or one who is invincibly biassed against the accused as a result of his participation in the controversy ...

  1. Mr Christie’s submission of apprehended bias on the part of Mr Capp was, as his Honour recorded at [84], “squarely founded” on the decision of the High Court in Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20.

  2. ASC’s response was that the apprehended bias rule did not apply to a consensual domestic tribunal, such as its disciplinary committee. In support of that submission, it relied on the decision of this Court (Glass JA, Hope and Hutley JJA agreeing) in Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161.

  3. It is not necessary to consider this submission in all its breadth because, as will be seen, the circumstances said to give rise to apprehended bias in this case are within those which it was held in Dickason and Bowen [No 2] apply to domestic tribunals, unless excluded either expressly or by necessary implication. In accepting in Maloney (at 171) that “the requirements of natural justice are in some respects different where domestic tribunals are concerned”, Glass JA was merely applying the principles earlier stated in Dickason and Bowen [No 2].

  4. Having referred to passages from the judgment of Dixon J (at 631) and Rich J (at 618-619) in Bowen [No 2], Glass JA continued (at 170-171):

Domestic tribunals are usually established in circumstances which are radically different. The members, generally speaking have agreed to abide by a set of rules and the authority of a committee to enforce them, if necessary, by expulsion. The committee members cannot, in the nature of things, divest themselves of the manifold predilections and prejudices resulting from past associations with members. Apprehension of bias could be generated in all kinds of ways. If it was a disqualifying consideration, the enforcement of the consensual rules would be largely unworkable. There may be some circumstances where a suspicion of bias would operate to disqualify a member of a domestic tribunal. [Emphasis added]

  1. The circumstances which Glass JA is to be taken to accept would operate to disqualify a member of a domestic tribunal include, in the language of Rich J in Bowen [No 2] (at 619), that a member of the tribunal “had gone beyond the necessary functions of secretary to those of an informant and prosecutor” and, in that of Dixon J (at 631), that there is “as a member of the tribunal a person who has promoted the charge and supports it as the prosecutor”.

  2. The question in Isbester was whether the council’s decision to have the appellant’s dog put down should be quashed because of apprehended bias on the part of Ms Hughes, one of the members of the three person panel of the council which made that decision. The Court applied the test for apprehended bias as formulated in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63. It involves a two step approach which directs attention first to “what it is said might lead a decision-maker to decide a case other than on its legal and factual merits” (Isbester at [21]-[22]). (This Court’s decision in Golden v V’landys [2016] NSWCA 300 provides a recent example of the application of this test in relation to the decision of a racing tribunal.)

  3. It was alleged in Isbester that Ms Hughes had an “interest” in the decision-making process which was “akin to that which a person bringing charges, whether as a prosecutor or other accuser, might be expected to have in the outcome of the hearing of those charges” (at [34]). In that context reference was made to Isaacs J’s description in Dickason (at 259) of cases of that kind being instances of “incompatibility” because of some other role or interest of the person having the position of judge or decision-maker. Reference was also made to the decision in Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 where the person to whom the greyhound owner was accused of having paid the bribe, and who reported the matter to the Board, was present during the whole of its proceedings, although taking no part in its deliberations.

  4. Mr Christie’s case against ASC in respect of apprehended bias was that Mr Capp’s presence as a member of the tribunal, in circumstances where he was involved in the investigation and was the moving force in respect of the laying of the charges, was indistinguishable from that of Ms Hughes so as equally to compel the conclusion that a fair minded observer might reasonably have apprehended that Mr Capp might not bring an impartial mind to the decision to impose the 12 month suspension.

  5. The primary judge accepted Mr Christie’s submission that the level of Mr Capp’s involvement in ASC’s disciplinary process was “indistinguishable from the level of Ms Hughes” involvement in Isbester. The primary judge concluded that Mr Capp’s role was “factually and legally indistinguishable” from that of Ms Hughes: [91]. In doing so the primary judge rejected ASC’s submission that Mr Capp’s role other than by reason of his participation in the hearing and deliberations of the committee was quite different from that of Ms Hughes and could be characterised as “administrative or ministerial”.

  6. If Mr Capp’s role was correctly characterised as being akin to that of a prosecutor there would in this case be apprehended bias of the kind described in Dickason and Bowen [No 2] as sufficient to vitiate the decision of a private tribunal in the position of ASC’s committee. That being so makes it unnecessary to address grounds 3 and 4 any further. It should be noted, however, that the authorities to which I have referred do not support the broad proposition advanced by ASC that the apprehended bias rule does not in any circumstances apply to a domestic or private tribunal. Maloney identifies as an example of circumstances not likely to give rise to any sufficient apprehension of bias as those in which the apprehension is said to arise from “manifold predilections and prejudices resulting from past associations” between a member or members of the tribunal and the members of the association whose consensual rules provide the basis for the tribunal’s authority to decide a matter in question. In such a case the members are taken to have agreed to tribunal members having such views and prejudices as might ordinarily be expected to arise from their participation in the association’s activities and affairs.

  7. Ground 5 is whether Mr Christie was denied procedural fairness by reason of apprehended bias on the part of Mr Capp. The primary judge held there was apprehended bias, Mr Capp’s position being “indistinguishable” from that of Ms Hughes in Isbester. Ms Hughes was involved in the prosecution of charges brought under s 29(4) of the Domestic Animals Act 1994 (Vic) and in arranging the hearing of the council Panel which imposed a penalty after the dog owner had pleaded guilty to those charges. The relevant facts are summarised in the plurality judgment at [4] and [43] as follows:

[4] Ms Hughes directed Council employees to further investigate the identity of the dog involved in inflicting the injury on the person in [the attack in August 2012] and she spoke with the complainant herself. She determined that six charges should be laid with respect to that attack, arranged for charges and summonses to be drafted and signed some of the charges, including that brought under s 29(4), as informant. Ms Hughes gave instructions to the Council's solicitors to prosecute the charges and to negotiate pleas which might be accepted from the appellant. Those pleas were entered in the Ringwood Magistrates' Court on 12 September 2013. …

[43] In any event, it is not accurate to describe Ms Hughes as a person who in fact had no ongoing involvement in advancing the matter after the Magistrates' Court proceedings. Having participated in obtaining the conviction for the offence under s 29(4), she organised the Panel hearing and drafted the letter advising the appellant of it. She supplied the Panel with evidence, including further evidence she had obtained as relevant to the future housing of the dog. If Ms Hughes could not actually be described as a prosecutor with respect to the decision under s 84P(e), she was certainly the moving force.

  1. The “interest” as prosecutor which Ms Hughes had that might cause her to deviate from proper decision-making (or as Gageler J said at [60], that might prevent a “neutral evaluation of the merits”) is described in the plurality judgment at [46] :

… In the case of a prosecutor or other moving party it refers to a view which they may have of the matter, and which is in that sense personal to them. The interest of a prosecutor may be in the vindication of their opinion that an offence has occurred or that a particular penalty should be imposed, or in obtaining an outcome consonant with the prosecutor's view of guilt or punishment.

  1. And, as Gageler J explained at [63]:

… Rarely could a fair-minded observer not think it appropriate to say of a person: "[i]f he is an accuser he must not be a judge". That is because a person who has been the adversary of another person in the same or related proceedings can ordinarily be expected to have developed in that role a frame of mind which is incompatible with the exercise of that degree of neutrality required dispassionately to weigh legal, factual and policy considerations relevant to the making of a decision which has the potential adversely to affect interests of that other person.

  1. In the present case the question for the hypothetical fair-minded observer was whether, by reason of his involvement up to the time of the penalty hearing, Mr Capp’s position was likely to be such that his frame of mind was incompatible with the exercise of the degree of neutrality required for him dispassionately to weigh the considerations necessary to the making of a decision as to the penalty to be imposed.

  2. Mr Capp’s prior participation was as follows. He had attended the Wagga Wagga show as the ASC official responsible for overseeing any drug testing which was to take place. One of his tasks in that capacity was to select horses to undergo a swabbing procedure. Having made such a selection, he took Mr Christie and the horse to the designated drug testing area where Ms Wilkes, a qualified vet, took the two samples which were subsequently sealed and sent for analysis. To that point there was no basis for suggesting that Mr Capp had any particular interest in, or any view about, the outcome of those tests. His position is to be contrasted with that of Ms Hughes who, on becoming aware that the investigation of the August 2012 incident had not been completed, directed council employees to undertake further investigations and, upon completion of those investigations, determined that six charges should be laid with respect to that incident. Ms Hughes then arranged for those charges to be formulated and prosecuted. In those circumstances the fair-minded bystander was justified in concluding that she had formed a view as to the fact of the conduct and as to its seriousness justifying the bringing of charges.

  3. Mr Capp, on receipt of the results of the first sample, communicated that result to Mr Christie and advised him that the fact of the positive test result had been referred to the disciplinary committee for inquiry. That decision was made in accordance with r 6(b) and apparently followed a telephone communication between Mr Capp and three other members of the committee. Mr Capp’s participation in that decision, and that of the other members of the committee, was necessary for the inquiry to be initiated on the committee’s own motion. The fact that he took part in that decision would not have caused the reasonable bystander to think it likely that Mr Capp had formed any view other than that there was a positive test result which on the face of it required an inquiry, which may result in a need to impose some penalty.

  4. At Mr Christie’s request, Mr Capp also arranged for the second sample to be tested, received the result of that testing, advised that result to Mr Christie, and confirmed that there was to be an inquiry in relation to a breach of r 25. In Mr Christie’s case the breach was of permitting a horse to which a prohibited substance had been administered to compete. The hearing subsequently took place on 24 March 2015. Mr Capp’s further involvement to this point also was not likely to result in his having any particular view as to the punishment that might be applied to Mr Christie, which in turn might have been incompatible with the exercise of the degree of neutrality required for him to participate in that exercise. The fact that Mr Capp had previously sat on disciplinary committees that had addressed questions of punishment for similar offences would not answer that description, or suggest that he would not be inclined to approach the question of penalty dispassionately and impartially. Again, contrasting Ms Hughes’ position, she had given instructions to the council’s solicitors to prosecute the charges and to negotiate pleas which might be accepted from Ms Isbester. She had therefore turned her mind to the question of the particular penalty which might be appropriate and sought. She had also drafted a letter, which was sent to Ms Isbester the day after her pleas of guilty were entered, advising that it was open to the council to consider the destruction of her dog.

  5. Contrary to the primary judge’s conclusion, Mr Capp’s role was not “factually and legally indistinguishable” from that of Ms Hughes. He did not undertake or oversee investigations as to whether the relevant conduct had occurred. Nor did he have to decide whether the outcome of those investigations and the character of the conduct justified the bringing of charges. Furthermore he did not oversee the prosecution of any such charges in a civil court or in that capacity have to consider the pleas and penalties which might be negotiated from the perspective of the council. On the contrary, Mr Capp’s involvement was, as ASC submitted, more fairly characterised as “administrative or ministerial”.

  6. For these reasons it is my view the primary judge erred in concluding that Mr Capp’s involvement in the circumstances leading to the decision to impose a penalty gave rise to any reasonable apprehension of bias on his part. It follows that ground 5 also should be upheld. That conclusion provides a second and sufficient basis for allowing the appeal.

Whether there was any waiver by Mr Christie of any right to object to Mr Capp’s participation in the deliberations of the committee (ground 6)

  1. This ground does not arise. There was no denial of procedural fairness by reason of Mr Capp’s participation in the deliberations of the committee.

Conclusion

  1. The appeal should be allowed and the orders made by the primary judge set aside. By its proposed amended notice of appeal ASC also seeks an order that the proceeding be remitted to the trial judge for determination of any claim to relief arising from the undertakings as to damages given by Mr Christie in support of the grant of interlocutory relief.

  2. In the course of the oral argument ASC’s counsel could not identify any damages likely to have been suffered by it as a result of the granting of interlocutory relief. In that circumstance I do not consider it appropriate or necessary for any order to be made remitting the proceedings to the trial judge for any inquiry as to damages.

  3. Accordingly I propose the following orders:

1.   Extend time for the applicant to file its summons seeking leave to appeal to 5pm on 9 March 2016.

2.   Grant leave to the applicant to appeal from orders 1 and 2 made on 11 August 2015.

3.   Direct the applicant file its amended notice of appeal within seven days.

4.    Allow the appeal.

5.   Set aside orders 1 and 2 made on 11 August 2015.

6.   Dismiss the summons filed on 2 April 2015.

7.   Respondent pay the applicant’s costs of the proceedings below.

8.   Respondent pay the applicant’s costs of the appeal.

  1. WARD JA: I agree with Meagher JA.

  2. LEEMING JA: I agree with the reasons of Meagher JA. I add the following by way of elaboration on the threshold and dispositive issue argued on appeal, which is whether ASC’s decision was amenable to the relief sought by Mr Christie on public law grounds.

  3. Mr Christie sought a final order setting aside or quashing the decisions of ASC, as well as interlocutory injunctive relief. He did not rely on any property right, nor any contractual right. It is readily conceivable that there could be private law rights on which Mr Christie might rely, but that was not how his case was pleaded or run or determined.

  4. Counsel for ASC encapsulated its position as follows:

“[O]ne can perhaps posit some sort of claim in implied contract or contract with an implied term to afford natural justice but the simple point is the matter wasn’t put that way below, it wasn’t dealt that way below. The manner in which it was dealt with was there was a public law right to judicial review and the end result of that was because of the principle of apprehended bias, and for other reasons, the decision was quashed. We say if there was a complaint it should not have been advanced through the prism of public law.”

  1. The primary judge acceded to Mr Christie’s submission that it was sufficient to establish that Mr Christie’s livelihood or reputation was affected by ASC’s decision. That was reflected in the formulation of principle stated at [28] of his Honour’s reasons, which has been reproduced by Meagher JA. With respect, I cannot accept that “[t]he principle guiding whether or not a court will interfere in a decision of a domestic tribunal demonstrated by cases such as Mitchell and AFL requires an examination of the nature or quality of the effect of the decision on someone such as Mr Christie rather than analysing the legal framework for how the decision was made or can be enforced.”

  2. First, as Meagher JA has explained, the authorities relied upon do not support any such principle. Mr Christie’s submissions to the contrary proceed on a misreading of them.

  3. Secondly, it is not difficult to see how awkwardly Mr Christie’s submission sits within the Australian legal system. Perhaps the most obvious point is one which was advanced at first instance (both orally and in writing) and on appeal, namely, the highly uncertain status in this country of the reasoning of the Court of Appeal in R v Panel on Take-overs and Mergers; Ex parte Datafin Plc [1987] QB 815. Datafin authorised the judicial review of a private body which exercised the regulatory functions of government – a narrower proposition than that for which Mr Christie contends. There can be no doubt that whether or not Datafin is part of the law of Australia is controversial.

  4. In this State, Basten JA (with whom Spigelman CJ agreed in this respect) demonstrated the difficulties in its application in Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 at [73]-[81], concluding that “there is no authority in the High Court which supports its application and statements of general principle in that Court might be thought to adopt a more limited scope for the operation of public law remedies”. The same point was made by Beech-Jones J in Amos v Western New South Wales Local Health District [2016] NSWSC 1162 at [93].

  5. Appellate courts in other States have made the same point: see Khuu & Lee Pty Ltd v Corporation of the City of Adelaide (2011) 110 SASR 235; [2011] SASCFC 70 at [26]-[31] and Mickovski v Financial Ombudsman Service Ltd (2012) 36 VR 456; [2012] VSCA 185 at [31]-[33]. (Contrast the position in New Zealand; as Barrett JA observed in Bird v Ford [2014] NSWCA 242 at [22], “The tendency sanctioned by the New Zealand Court of Appeal is to treat as reviewable the exercise of any power having public consequences, even if the power is exercised by a private organisation”, a position which has more recently been confirmed in Ririnui v Landcorp Farming Ltd and The Attorney-General [2016] NZSC 62 at [89].)

  6. The undoubted uncertainty in Australia of the amenability to judicial review of private bodies exercising the regulatory functions of government demonstrates that the considerably larger principle advanced by Mr Christie, according to which private bodies are amenable to judicial review irrespective of whether they are exercising the regulatory functions of government, cannot be the law. One difficulty with Datafin is that it has “proven to be notoriously difficult to find a coherent method of delineating public from private power”: J Boughey and G Weeks, “‘Officers of the Commonwealth’ in the Private Sector: Can the High Court Review Outsourced Exercises of Power?” (2013) 36 UNSWLJ 316 at 333-334. That difficulty does not arise in the present case. Counsel for Mr Christie properly and correctly acknowledged that “I'm not suggesting there's any government power involved here.” There can be no suggestion that ASC was performing a governmental regulatory function. That is not to belittle the importance of the show day activities to participants, spectators and others involved; there are many activities in modern society, important and unimportant, which are extraneous to governmental power, and fall outside the jurisdiction of courts to protect against such power. Even in the United Kingdom, judicial review is not available of the decisions of racing authorities whose powers derive from contract as opposed to statute: see for example R v Disciplinary Committee of the Jockey Club; ex parte Aga Khan [1993] 1 WLR 909, Mullins v The Appeal Board of the Jockey Club [2005] EWHC 2197 (Admin) and Mullins v McFarlane [2006] EWHC 986 (QB).

  7. Thirdly, there are other ways in which Mr Christie’s broad principle lacks coherence with Australian law. Take a subject matter with a much closer connection with modern governmental functions: education. Very important decisions affecting reputation and livelihood are made by private schools and universities. Bird v Ford shows how problematic judicial review (as opposed to a contractual claim) is in such a case. But if Mr Christie’s claim that he was denied natural justice when he was suspended from competitive horse riding at agricultural shows organised by members of ASC is justiciable, then why would not a decision by a private school to suspend or expel a student also be justiciable? It may be noted that while Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7 ultimately turned on the construction of the Judicial Review Act 1991 (Qld), neither the reasoning nor the result supports Mr Christie’s principle.

  8. Fourthly, in point of principle, I regard the proposition for which Mr Christie contends as deeply contrary to the way the Australian legal system works. The difference between enforcement of excesses of coercive public power and protecting individuals’ private bargains is basal. Of course it is necessary to analyse the legal framework for how the impugned decision was made. How else would one know whether to apply the limitation periods for claims in contract as opposed to those relevant to a challenge to executive power? How else would one determine the existence and content of any obligation to be heard, noting that there are very different analyses depending on whether the question is the existence and content of an obligation to accord procedural fairness attendant upon the exercise of statutory power or else whether there is an implied contractual term to the same effect. If injunctive relief is sought, it will be vital to know whether the plaintiff’s claim is based at law or in equity, if only to determine whether damages are an adequate remedy. Examples of differences depending on the “legal framework for how the decision was made” could readily be multiplied.

  9. I agree with the orders proposed by Meagher JA.

**********

Decision last updated: 01 December 2016

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