Day v Sanders

Case [2015] NSWCA 324


Court of Appeal


Supreme Court


New South Wales

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Medium Neutral Citation: Day v Sanders; Day v Harness Racing New South Wales [2015] NSWCA 324
Hearing dates:4 and 5 August 2015
Decision date: 16 October 2015
Before: Basten JA at [1];
Leeming JA at [117];
Simpson JA at [131]
Decision:

(1)   With respect to the summons issued in the Common Law Division on 10 March 2015 and removed into this Court by order made on 11 March 2015, dismiss the summons and order that the applicants pay the respondents’ costs of the summons, both here and in the Division.

 

(2)   With respect to the application seeking leave to appeal from the judgment of Adams J of 11 March 2015, dismiss the summons with costs.

 (3)   With respect to the summons seeking leave to appeal from the judgment of Adamson J given on 9 March 2015,
(a)   grant the applicants leave to appeal;
(b)   direct that the applicants file the draft notice of appeal contained in the joint red appeal book filed on 26 June 2015 within seven days;
(c)   dismiss the appeal;
(d)   order that the applicants pay the respondents’ costs of the summons and the proposed appeal.
Catchwords:

BIAS – apprehended bias – pre-judgment – conflict of interest – member of a panel conducting inquiry had prior involvement in the events relating to the inquiry – recusal application refused – whether member’s interests logically connected with the inquiry – whether evaluative judgement by the panel required

 

JUDICIAL REVIEW – application for judicial review of decision of stewards’ inquiry under Harness Racing Act 2009 (NSW) – applicants independently invoked statutory right of appeal to Racing Appeals Tribunal – whether appeal to the Racing Appeals Tribunal exclusive remedy – whether judicial review available – whether relevant to discretionary refusal of relief

 

GAMING AND RACING – harness racing – disciplinary offences – presenting a horse for a race not free from prohibited substances – elements of the offence established by two valid certificates indicating presence of prohibited substance – whether honest and reasonable mistake of fact available – utility of authorities relating to criminal offences – Australian Harness Racing Rules, r 190

STATUTORY INTERPRETATION – rule-making power of Harness Racing NSW – scope of the power to create offences – whether presumption that defence of honest and reasonable mistake of fact available – whether adoption of an absolute liability offence within power – Harness Racing Act 2009 (NSW), ss 10, 22, 23
Legislation Cited: Harness Racing Act 2009 (NSW), ss 4, 5, 6, 7, 9, 10, 11, 21, 22, 23; Pt 3, Div 1
Interpretation Act 1987 (NSW), s 33
Racing Appeals Tribunal Act 1983 (NSW), ss 4, 6, 8A, 15B, 16
Racing Appeals Tribunal Regulation 2010 (NSW)
Cases Cited: CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
Day v Harness Racing New South Wales [2014] NSWSC 1402
Day v Harness Racing New South Wales (2014) 88 NSWLR 594; [2014] NSWCA 423
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AGLC
Day v Sanders [2015] NSWCA 324
Case
[2015] NSWCA 324
Decision Date

CaseChat Overview and Summary

The applicants, trainers and owners of harness racing horses, sought judicial review of a decision by stewards of Harness Racing NSW to disqualify them from racing. The stewards' inquiry found that horses trained by the applicants had returned positive swabs for prohibited substances, leading to the disqualification. The applicants contended that a member of the stewards' panel harboured apprehended bias due to prior involvement in related matters, and that the offence under rule 190 of the Australian Harness Racing Rules was not one of absolute liability, meaning a defence of honest and reasonable mistake of fact should have been available. The respondents argued that the statutory right of appeal to the Racing Appeals Tribunal was an exclusive remedy, precluding judicial review. The case was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the applicants were precluded from seeking judicial review due to the availability of a statutory appeal to the Racing Appeals Tribunal, and whether the offence under rule 190 of the Australian Harness Racing Rules was one of absolute liability, thereby excluding a defence of honest and reasonable mistake of fact. Additionally, the Court considered whether a member of the stewards' panel had demonstrated apprehended bias, warranting recusal.

The Court of Appeal held that the statutory right of appeal to the Racing Appeals Tribunal was not exclusive, and therefore judicial review was available. However, the Court found no apprehended bias on the part of the stewards' panel member, concluding that their prior involvement did not create a logical connection to the inquiry that would lead a reasonable observer to apprehend bias. Regarding the offence under rule 190, the Court determined that the rule-making power of Harness Racing NSW, as conferred by the *Harness Racing Act 2009* (NSW), permitted the creation of absolute liability offences. Consequently, the defence of honest and reasonable mistake of fact was not available.

The Court of Appeal dismissed the summons for judicial review and refused leave to appeal from one of the judgments below, while granting leave to appeal from another judgment but ultimately dismissing that appeal. The applicants were ordered to pay the respondents' costs in all proceedings.

Orders

Orders of the court

(1) With respect to the summons issued in the Common Law Division on 10 March 2015 and removed into this Court by order made on 11 March 2015, dismiss the summons and order that the applicants pay the respondents’ costs of the summons, both here and in the Division.

(2) With respect to the application seeking leave to appeal from the judgment of Adams J of 11 March 2015, dismiss the summons with costs.

(3) With respect to the summons seeking leave to appeal from the judgment of Adamson J given on 9 March 2015,

(a) grant the applicants leave to appeal;

(b) direct that the applicants file the draft notice of appeal contained in the joint red appeal book filed on 26 June 2015 within seven days;

(c) dismiss the appeal;

(d) order that the applicants pay the respondents’ costs of the summons and the proposed appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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