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Day v Sanders

Day v Sanders

Case [2015] NSWSC 173 9 March 2015

Reasonable Apprehension of Bias

Judicial Review

Natural Justice & Procedural Fairness

Administrative Law

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Supreme Court

New South Wales

Medium Neutral Citation: Day v Sanders [2015] NSWSC 173
Hearing dates: 25 February 2015
Decision date: 09 March 2015
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Summons dismissed.
(2) Unless any party makes an application in writing for a different order within seven days, order the plaintiffs to pay the defendants’ costs of the proceedings.
Catchwords: ADMINISTRATIVE LAW – harness racing horses – cobalt – prohibited substance – alleged reasonable apprehension of bias – challenge to decision of Chief Steward to suspend licence pending inquiry and Chief Steward’s membership on inquiry panel – whether Chief Steward a material witness – importance of logical connection between identified matters and alleged apprehension
Legislation Cited: Australian Harness Racing Rules rr 14, 15, 20, 90, 90A, 91, 181, 182, 183, 183A, 184, 188, 188A, 190, 191, 193, 256, 309, 313
Harness Racing Act 2009 (NSW) ss 4, 6, 9, 10, 18, 21, 22, 23(2), 43, 47
Local Rules of Harness Racing New South Wales rr 1, 188A(2)
Racing Appeals Tribunal Act 1983 (NSW) ss 15B, 16(1), 16(2)
Racing Appeals Tribunal Regulation 2010 (NSW) reg 9(1)(g)
Cases Cited: Builders Registration Board (Qld) v Rauber (1983) 47 ALR 55
Day v Harness Racing New South Wales [2014] NSWCA 423
Day v Harness Racing New South Wales [2014] NSWSC 1402
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Gleeson v The New South Wales Harness Racing Authority (Supreme Court of NSW, 20 August 1990, unreported, Young J)
Hall v NSW Trotting Club Ltd [1977] 1 NSWLR 378
Harper v Racing Penalties Appeal Tribunal of Western Australia (1995) 12 WAR 337
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
McGovern v Ku-ring-gai Council [2008] NSWCA 209; 72 NSWLR 504
Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; 205 CLR 507
Petty v The Queen [1991] HCA 34; 173 CLR 95
R v Brewer; ex parte Renzella [1973] VR 375
Re JRL; Ex parte CJL (1986) 161 CLR 342
Re Refugee Tribunal; Ex Parte H [2001] HCA 28; 75 ALJR 982
Webb v The Queen [1994] HCA 30; 181 CLR 41
Wonson v Greyhound and Harness Racing Regulatory Authority [2005] NSWSC 584
Category: Principal judgment
Parties: Neil Anthony Day (First Plaintiff)
Dean Albert McDowell (Second Plaintiff)
Reid Sanders (First Defendant)
Harness Racing New South Wales (Second Defendant)
Representation:
Counsel:
AR Moses SC/J Murphy/RL Gall (Plaintiffs)
Dr AS Bell SC/ATS Dawson/DM Forrester (Defendants)
Solicitors:

File Number(s): 2015/22576

Judgment

Introduction

The plaintiffs train horses for the purposes of harness racing. By letter dated 30 April 2014, signed by the first defendant, Reid Sanders, the second defendant, Harness Racing New South Wales (HRNSW) purported to suspend the licences of Neil Day and Dean McDowell, the first and second plaintiffs. The basis for the suspension was that each presented for racing a horse or horses, the urine of which contained a prohibited substance, namely cobalt in excess of the prescribed concentration. On 8 December 2014,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Day v Sanders

Details

AGLC: Day v Sanders [2015] NSWSC 173
Case: [2015] NSWSC 173
Decision Date: 09 March 2015

CaseChat Overview and Summary

In Day v Sanders, the respondent sought to challenge the decision of the Chief Steward to suspend his harness racing licence pending an inquiry. The suspension was imposed after the Chief Steward found that the respondent had a cobalt level in his horse which exceeded the permitted level. The appellant, the Chief Steward, had membership on the inquiry panel, and the respondent claimed this created a reasonable apprehension of bias. The case was heard in the Supreme Court of New South Wales. The primary legal issue the court needed to address was whether the Chief Steward’s membership on the inquiry panel, combined with his role as the person who imposed the initial suspension, created a reasonable apprehension of bias. A secondary issue was whether the Chief Steward was a material witness to the events under inquiry.

The court found that there was no reasonable apprehension of bias because the Chief Steward was not a material witness to the events under inquiry. The Chief Steward's role in imposing the initial suspension did not automatically create a reasonable apprehension of bias when he was also a member of the inquiry panel. The court noted that for such an apprehension to exist, there needed to be a logical connection between the identified matters and the alleged apprehension of bias. Since the Chief Steward was not a material witness, there was no logical connection that could lead to such an apprehension. The court concluded that the Chief Steward’s membership on the inquiry panel did not constitute a reasonable apprehension of bias.

As a result of the court's reasoning, the appeal was dismissed. The Chief Steward's membership on the inquiry panel did not create a reasonable apprehension of bias, and therefore, the decision to suspend the respondent's licence pending inquiry was upheld. The court's decision emphasised the need for a logical connection between the identified matters and the alleged apprehension of bias to successfully challenge the decision on the grounds of bias.

Orders