Ex Parte

[1990] TASSC 129

Serial No B52/1990
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Ex Parte Turner [1990] TASSC 129; B52/1990

PARTIES:  TURNER; ex parte

FILE NO/S:  M476/1989
DELIVERED ON:  7 September 1990
JUDGMENT OF:  Zeeman J

Judgment Number:  B52/1990
Number of paragraphs:  8

Serial No B52/1990
List "B"
File No M476/1989

EX PARTE TURNER

REASONS FOR JUDGMENT  ZEEMAN J

7 September 1990

1. The applicant, by his amended application, seeks an order nisi calling upon the Tasmanian Thoroughbred Racing Council to show cause why a Writ of Certiorari should not issue to quash the Council's determination whereby it refused his application for an owner–trainer's permit on 21 August 1989.

1. In support of the application, the applicant read two affidavits sworn by him, and in addition gave oral evidence during the course of which he proved a transcript of the proceedings before the Council on 21 August 1989.

1. The Council is constituted by s17 of the Racing Act 1983. By s.19 of the Act, the Council is responsible for the control of thoroughbred horse racing in Tasmania, subject to the authority of the Racing Directorate and any directions given by it. It appears that it had the authority to determine the applicant's application pursuant to its statutory powers and duties.

1. The application which the Council had before it was an application for an owner–trainer's permit for the year ended 31 July 1989. That application was dated 1 May 1989, and received preliminary consideration by the Council on occasions prior to 31 July 1989. As at 31 July 1989, no determination had been made.

1. On 21 August 1989, the Council purported to determine the application by refusing it. For present purposes, I will assume that the Council treated the application as being one for the year ended 31 July 1990.

1. The evidence before me arguably discloses that one member of the Council who sat upon the applicant's application was disqualified because of bias or apprehended bias and that thereby the applicant was denied natural justice.

1. That matter does not appear on the face of the determination, so that the applicant is not entitled to the order as a matter of right. If I conclude that the remedy sought by the applicant would be useless and that therefore any order nisi that I made would be discharged upon its return, then I ought not to grant the order nisi. In my view, the relief sought by the applicant could not achieve anything. It relates to a determination refusing the applicant a permit which on the best construction that could be put on the matter, relates to a period which ended on a date now long past. If the determination were quashed, the Council could not consider it anew. Considerations such as those present in R v Solomon; Ex Parte Transport Commission [1968] Tas SR 89 are not present here.

1. I refuse the application.