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, 23Legislation 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
Dickason…
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- AGLC
- Day v Sanders [2015] NSWCA 324
- Case
- [2015] NSWCA 324
- Decision Date
CaseChat Overview and Summary
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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