Ex Parte

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

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.

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.

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.

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.

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.

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.

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.

I refuse the application.

CaseChat Overview and Summary

The Supreme Court of Tasmania was asked to decide whether to issue an order calling upon the Tasmanian Thoroughbred Racing Council to show cause why a writ of certiorari should not be issued to quash a decision made by the Council. The applicant, Turner, sought the order to challenge the Council's refusal of his application for an owner–trainer's permit for the year ending 31 July 1989. Turner argued that the Council's determination was invalid due to a member's disqualification because of bias or apprehended bias, thereby denying him natural justice. Turner provided affidavits and a transcript of the proceedings before the Council to support his application.

The legal issues before the court involved whether Turner's application could succeed on the basis that the Council's determination was void due to a breach of natural justice. The court needed to consider whether the Council's decision was so flawed as to warrant the issuance of a writ of certiorari, and whether Turner's application for relief was futile. The court also had to determine whether the remedy Turner sought would be effective, given that the permit in question related to a period that had already expired.

The court found that while Turner's evidence suggested that a member of the Council was disqualified, this matter was not apparent from the face of the Council's determination. The court concluded that the relief sought by Turner would be futile as the permit in question related to a period that had already passed. The court noted that even if the Council's determination was quashed, the Council could not consider the application anew. The court also observed that the circumstances present did not warrant the issuance of a writ of certiorari, as the applicant did not meet the criteria set out in precedent cases.

The Supreme Court of Tasmania refused Turner's application, finding that the relief sought would be ineffective. The court did not grant the order nisi calling upon the Council to show cause, as the determination Turner sought to challenge related to a past period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established