Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Golden v V’landys [2016] NSWCA 300 Hearing dates: 22 September 2016 Decision date: 04 November 2016 Before: McColl JA at [1];
Leeming JA at [2];
Payne JA at [3].Decision: (1) leave to appeal granted;
(2) the affidavit of Mr Golden sworn 6 September 2016 is admitted as evidence on this appeal pursuant to s 75A of the Supreme Court Act;
(3) further amended notice of appeal to be filed within 7 days of the date of publication of this judgment;
(4) ground 4 of the further amended notice of appeal is upheld;
(5) all remaining grounds of the further amended notice of appeal are dismissed;
(6) set aside orders of Adamson J of 17 November 2015 and in lieu thereof order:
(a) the decision of the first respondent dated 24 June 2011 to warn off the appellant from all race tracks controlled by the second respondent is quashed;
(b) the first and second respondents to pay 75 per cent of the appellant’s costs of the appeal as agreed or assessed;
(c) within 7 days of the publication of this judgment the appellant to file submissions about the appropriate order for costs before the primary judge;
(d) within 14 days of the publication of this judgment the first and second respondents to file submissions about the appropriate order for costs before the primary judge;
(e) within 21 days of the publication of this judgment the appellant file submissions in reply about the appropriate order for costs before the primary judge.Catchwords: JUDICIAL REVIEW - decision of Racing NSW to warn off applicant from race courses - apprehended bias - whether fair minded observer might reasonably apprehend decision-maker might not apply impartial mind - whether logical connection between letter of demand from decision-maker's solicitors and apprehended deviation from making decision on merits - whether role in initiating warning off decision incompatible with making decision - whether claim of improper purpose established - failure to bring appeal within time - whether relief should be withheld as a matter of discretion - appeal allowed in part and decision quashed
TORTS - misfeasance in public office - whether decision-maker knew, or was recklessly indifferent to, the invalidity of the warning off decision - appeal as to misfeasance in public office dismissedLegislation Cited: Defamation Act 2005 (NSW) s 9
Racing Appeals Regulation 2010 (NSW) cl 6
Racing Appeals Tribunal Act 1983 (NSW) s 15
Supreme Court Act 1970 (NSW) s 75A
Thoroughbred Racing Act 1996 (NSW) ss 4, 6, 12, 13, 14, 24Cases Cited: Austral Monsoon Industries Pty Ltd v Pittwater Council (2009) 75 NSWLR 169; [2009] NSWCA 154
Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 508
Crossman v Sheahan [2016] NSWCA 200
Dickason v Edwards (1910) 10 CLR 243
Director-General of Education v Suttling (1987) 162 CLR 427
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
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- AGLC
- Golden v V'landys [2016] NSWCA 300
- Case
- [2016] NSWCA 300
- Decision Date
CaseChat Overview and Summary
The Court was required to determine whether a fair-minded observer, informed of the facts, might reasonably apprehend that the decision-maker might not bring an impartial mind to the warning off decision. This involved considering whether there was a logical connection between a letter of demand issued by the decision-maker's solicitors and any potential deviation from making the decision on its merits, and whether the decision-maker's role in initiating the warning off process was incompatible with making the decision. The Court also considered whether Mr Golden had established a claim of improper purpose and whether relief should be withheld due to his failure to bring an appeal within the prescribed time.
The Court found that ground 4 of Mr Golden's amended notice of appeal was upheld, leading to the quashing of Racing NSW's decision to warn him off racecourses. This decision was based on the finding that the fair-minded observer test for apprehended bias was met. However, the Court dismissed all remaining grounds of appeal, including the claim for misfeasance in public office, finding that the decision-maker did not act with the requisite knowledge or recklessness regarding the invalidity of the warning off decision. The Court also exercised its discretion to allow the appeal in part, despite the delay in bringing it.
Orders
Orders of the court
(1) leave to appeal granted;
(2) the affidavit of Mr Golden sworn 6 September 2016 is admitted as evidence on this appeal pursuant to s 75A of the Supreme Court Act;
(3) further amended notice of appeal to be filed within 7 days of the date of publication of this judgment;
(4) ground 4 of the further amended notice of appeal is upheld;
(5) all remaining grounds of the further amended notice of appeal are dismissed;
(6) set aside orders of Adamson J of 17 November 2015 and in lieu thereof order:
(a) the decision of the first respondent dated 24 June 2011 to warn off the appellant from all race tracks controlled by the second respondent is quashed;
(b) the first and second respondents to pay 75 per cent of the appellant’s costs of the appeal as agreed or assessed;
(c) within 7 days of the publication of this judgment the appellant to file submissions about the appropriate order for costs before the primary judge;
(d) within 14 days of the publication of this judgment the first and second respondents to file submissions about the appropriate order for costs before the primary judge;
(e) within 21 days of the publication of this judgment the appellant file submissions in reply about the appropriate order for costs before the primary judge.
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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