Greyhound Racing NSW v Cessnock & District Agricultural Association - [2006] NSWCA 333

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: GREYHOUND RACING NSW v CESSNOCK & DISTRICT AGRICULTURAL ASSOCIATION [2006] NSWCA 333
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 6, 7 November 2006

JUDGMENT DATE:
27 November 2006

JUDGMENT OF: Beazley JA at 1; Hodgson JA at 2; Basten JA at 3

DECISION: (1) Appeal allowed; (2) Set aside the declarations made in the Common Law Division on 30 June 2006 and the further declarations made on 15 August 2006; (3) Relieve the Appellant of compliance with the undertakings given on 15 August 2006; (4) Set aside the orders as to costs made on 30 June and 15 August 2006; (5) In lieu of the orders made below, order that the summons be dismissed with costs; (6) Order the Respondent to pay the Appellant’s costs in this Court; (7) Grant the Respondent a certificate under the Suitors’ Fund Act 1951 if otherwise qualified.

CATCHWORDS: ADMINISTRATIVE LAW – procedural unfairness – statutory body – lack of reasonable opportunity to make submissions – failure to identify criteria for decision- making – what is the operative decision – whether procedural unfairness of earlier decision infected later decision. - ADMINISTRATIVE LAW – procedural unfairness – apprehended bias – application of general law principle to statutory administrative decision-maker – Greyhound Racing Act 2002 (NSW), Schedule 1, cl 10 and 11. - DECLARATORY RELIEF – declarations of procedural unfairness – decisions not set aside – affected parties not joined – undertakings accepted in absence of affected parties.

LEGISLATION CITED: Commonwealth Authorities and Companies Act 1997 (Cth), s 27F
Corporations Act 2001 (Cth), ss 191, 192
Greyhound and Harness Racing Administration Act 2004 (NSW), ss 14, 15
Greyhound Racing Act 2002 (NSW), ss 6, 8, 9, 53, Schedule 1 cls 10, 11, 12, 13, 14Migration Act 1958 (Cth), Part 2, Div 3, Subdivs AB and AC
Supreme Court Act 1970 (NSW), s 69

CASES CITED: Bennetts v Board of Fire Commissioners of NSW (1967) 87 WN (Pt 1) (NSW) 307
Builders’ Registration Board of Queensland v Rauber (1983) 57 ALJR 376
Calvin v Carr [1980] AC 574
Campbelltown City Council v Vegan [2006] NSWCA 284
Carroll v Sydney City Council (1989) 15 NSWLR 541
Dickason v Edwards (1910) 10 CLR 243
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Kioa v West (1985) 159 CLR 550
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381
Muin v Refugee Review Tribunal (2002) 76 ALJR 966
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656
The Queen v Marks; Ex parte Australian Building Construction Employees & Builders Labourers’ Federation (1981) 147 CLR 471
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Smiths v Roach [2006] HCA 36; (2006) 228 ALR 262
South Australia v O’Shea (1987) 163 CLR 378
Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150
Twist v Randwick Municipal Council (1976) 136 CLR 106
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78

PARTIES: Greyhound Racing New South Wales - Appellant
Cessnock & District Agricultural Association Inc - Respondent

FILE NUMBER(S): CA 40452/06

COUNSEL: J. Griffiths SC/K. Williams - Appellant
M.R. Speakman SC/K.G. Oliver - Respondent

SOLICITORS: Blake Dawson Waldron, Sydney - Appellant
Smyth Turner Wall, Cessnock - Respondent

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 30069/06

LOWER COURT JUDICIAL OFFICER: Hulme J

LOWER COURT DATE OF DECISION: 1 August 2006

LOWER COURT MEDIUM NEUTRAL CITATION: Cessnock and District Agricultural Association Inc v Greyhound [2006] NSWSC 759

CA 40452/06
SC 30069/06

BEAZLEY JA
HODGSON JA
BASTEN JA
27 November 2006

GREYHOUND RACING NEW SOUTH WALES v CESSNOCK & DISTRICT AGRICULTURAL ASSOCIATION INC

The Appellant, Greyhound Racing New South Wales, is a statutory corporation with a number of functions in relation to greyhound racing clubs, of which the Respondent, Cessnock and District Agricultural Association Inc, is one. By January 2006, the Appellant was facing a funding shortfall of $3.5 million for the financial year 2006/2007. Various cost-saving measures were considered, but it appears have been determined, by 14 March 2006, that it would be necessary to reduce the number of fixtures for the coming financial year by a total of 104 meetings. On 15 May 2006 the Appellant resolved that the reduction in meetings was to be achieved by not allocating any dates for greyhound races to two clubs, of which the Respondent was one. The Respondent instituted proceedings in the Supreme Court challenging the above two decisions taken by the Appellant and sought to have them set aside.

The trial judge declared that the two decisions were made in breach of the rules of procedural fairness. Greyhound Racing NSW appealed against this decision.

The issues for determination for the Court of Appeal were:

(i) whether procedural unfairness affected the 14 March decision;

(ii) if so, whether subsequent steps were inadequate to cure this so that the 15 May decision was also affected by procedural unfairness;

(iii) whether there was a lack of procedural fairness in the 15 May decision on the basis that two members of the Appellant had an interest in the making of those decisions which gave rise to an apprehension of bias;

(iv) whether declaratory relief should have been granted in the absence of affected parties.

Held by Basten JA (Beazley & Hodgson JJA agreeing):

In relation to (i)

(a) Nature of decision-making

The nature of the decision to be taken, in combination with the possible range of affected interests, affects the content of any obligation to accord procedural fairness. In this case, that was not a constant factor, with the possible result that the content of the obligation may not be constant: at [71].

The Queen v Marks; Ex Parte Australian Building Construction Employees & Builders Labourers’ Federation (1981) 147 CLR 471; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, applied.

The obligations of procedural fairness must be assessed against the practical realities, in particular circumstances: at [75].

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1, applied.

(b) Lack of reasonable opportunity to make submissions

The evidence demonstrates that the option of not allocating races dates to selected venues was under consideration and was the subject of consultation, for a period of at least six weeks prior to the 14 March meeting of the Appellant. The contention that the Respondent did not have a reasonable opportunity to address it, prior to 14 March, is difficult to accept: at [76].

(c) Failure to identify criteria for decision-making

General law principles of procedural fairness do not require disclosure of all the material which may provide a basis for reaching a conclusion adverse to a particular body, nor do they require the decision-maker to identify, let alone disclose, specific criteria it intends to apply in making decisions. Furthermore, the Respondent did not attempt to identify any particular information of which it was not aware, which could properly have been released to it, and which might have affected the submissions it made: at [82] & [88].

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 per McHugh J at [142] & Kirby J at [193]; Muin v Refugee Tribunal (2002) 76 ALJR 966 per McHugh J at [128] – [134], distinguished; Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, Campbelltown City Council v Vegan [2006] NSWCA 284; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 per Gleeson CJ & Hayne J at [31], applied.

(d) Operative decision

The first step in addressing a question of procedural unfairness is to identify the decision reached which was said to be tainted by such unfairness. The operative decision was that of 15 May 2006. There was no suggestion that members of the Appellant would not have changed their minds if presented with relevant fresh material. Accordingly, there was no reason to conclude, either in legal or practical terms, that resolutions passed in February or March of 2006 predetermined the outcome on 15 May 2006. The Respondent had a reasonable opportunity to put its case: at [80].

The Respondent was not denied procedural fairness prior to the 14 March decision: at [89]–[90].

In relation to (ii)

(a) Infection issue

It is wrong to conclude that a stage had been reached by 14 March where, assuming inadequate procedural steps prior to that point, no remedy could be provided thereafter. This is not a case of “curing” a want of procedural fairness before the original decision-maker, by way of a procedurally fair appeal or review. Rather it is the provision of procedural fairness at the second stage of a staged consideration, prior to the making of the operative decision: at [98].

Carroll v Sydney City Council (1989) 15 NSWLR 541, applied; Calvin v Carr [1980] AC 574; Twist v Randwick Municipal Council (1976) 136 CLR 106, distinguished.

His Honour’s conclusion with respect to the decision of 15 May was flawed, either because there had been no denial of procedural fairness prior to 14 March, or because the fair procedures, which his Honour recognised took place thereafter, rendered the whole of the process fair, when viewed by reference to the operative decision: at [98].

(b) Departure from announced decision-making process

The Respondent failed to demonstrate that it suffered adverse consequences as a result of the departure from the draft timetable: at [103].

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1, applied.

(c) No opportunity to respond to the Maitland submission

Material adverse to the personal circumstances of the applicant, being matters which might give rise to subconscious prejudice, even if put to one side and in some circumstances external matters, may need to be referred to an applicant for comment. That obligation may arise, at least in relation to information known to the applicant, where it could not reasonably have been anticipated that the decision-maker would take it into account, or it is being taken into account in a way which could not reasonably have been anticipated. The submissions put forward on behalf of the Maitland venue did not fall into either category: at [106]–[108].

Kioa v West (1985) 159 CLR 550; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; Muin v Refugee Tribunal (2002) 76 ALJR 966, distinguished.

In relation to (iii)

The proper starting point for consideration of apprehended bias must be the statutory scheme under which the Appellant operates: at [111].

Pecuniary interest does not necessarily preclude a member from participating in a decision in which he or she has such an interest, nor does contravention of cl 10 of Schedule 1 of the Greyhound Racing Act 2002 (NSW) invalidate any decision of the Appellant. Given that express declaration of legislative intent, it might be doubted whether some lesser or more indirect form of interest, as in this case, would give rise to invalidity: at [114] – [116].

The general law principles of apprehended bias have frequently been expounded in cases involving courts or quasi-judicial tribunals. However, those principles should not be translated, without adaptation, to the circumstances of statutory administrative decision-makers: at [118].

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, applied; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, considered.

The statutory scheme is inconsistent with the conclusion that a reasonable, informed observer would, in the circumstances of the present case, have a reasonable apprehension of bias in relation to a decision with respect to the allocation of racing dates which discriminated between clubs, and allocated dates in the Hunter region to two clubs who had officers who were members of the Appellant, whereas the Respondent missed out: at [119].

There was no allegation that either Mr Mangafas or Mr Zammit was actually biased against the Cessnock Club. The existence of even a direct pecuniary interest is no longer an automatic disqualification. A person may be “relieved from the operation of” the rule against being a judge in one’s own cause “by statute”: That does not mean that all aspects of the bias rule have been abrogated by the Greyhound Racing Act: it does mean, however, that an allegation of apprehended bias based upon an association between a member of the Appellant and a greyhound racing club, without more, will not be sufficient. Finally the Appellant took steps to avoid, as best as it could, any reasonable apprehension of conflict of interest by setting up a committee without the two affected members: at [120]–[122].

Ebner v Official Trustee (2000) 205 CLR 337; Dickason v Edwards (1910) 10 CLR 243 at 259; Builders’ Registration Board of Queensland v Rauber (1983) 57 ALJR 376, applied.

Held in relation to (iv)

The orders of the lower court were inappropriate. Declarations were not appropriate where decisions could not be set aside or injunctive relief granted, in absence of affected parties: at [129]–[130].

It may be doubted that the lower court had powers to accept the undertakings as such power is necessarily confined to the limits which attach to the power to grant injunctions: at [133].

Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150, applied.

CA 40452/06
SC 30069/06

BEAZLEY JA
HODGSON JA
BASTEN JA
27 November 2006

GREYHOUND RACING NEW SOUTH WALES v CESSNOCK & DISTRICT AGRICULTURAL ASSOCIATION INC

Judgment

1 BEAZLEY JA: I agree with Basten JA.

2 HODGSON JA: I agree with Basten JA.

3 BASTEN JA: The Appellant, Greyhound Racing New South Wales, is a statutory corporation with a number of functions in relation to greyhound racing clubs, of which the Respondent, Cessnock and District Agricultural Association Inc (“the Cessnock Club”) is one. Those functions include the registration of clubs, the distribution of money received from TAB Limited and the allocation of dates on which greyhound races may be conducted.

4 The Appellant, which has six members appointed under the Greyhound Racing Act 2002 (NSW) knew, at least since early June 2005, that it was facing a downturn in revenue which the Chairperson described in a press release of 2 June 2005 as a “funding crisis”. By January 2006, the Appellant was facing a “funding shortfall” of $3.5 million for the financial year 2006/2007. Various cost-saving measures were considered, but it appears to have been determined, by 14 March 2006, that it would be necessary to reduce the number of fixtures for the coming financial year by a total 104 meetings. On 15 May 2006 the Appellant resolved that the reduction in meetings was to be achieved by not allocating any dates for greyhound races to two clubs, of which Cessnock was one. It immediately instituted proceedings in the Supreme Court challenging decisions taken by the Appellant on 14 March and 15 May 2006 and seeking to have them set aside.

5 On 30 June 2006 declarations were made in the Common Law Division that two specific decisions made by the Appellant on 14 March and 15 May respectively “were made in breach of the rules of procedural fairness”. By further orders made on 15 August 2006 two further declarations were made and the Court noted two undertakings given by the Appellant to reconsider its earlier decisions: Cessnock and District Agricultural Association Inc v Greyhound Racing NSW [2006] NSWSC 759.

6 For the reasons set out below, the decisions of the Appellant challenged by Cessnock were not attended by want of procedural fairness and the declarations should not have been made.

7 To explain why that is so, it is necessary to set out the steps taken by various parties leading up to the decisions in question. Before doing that, it is appropriate to note two matters. The first is a difficulty arising from the parties to the proceedings.

8 Both in this Court and in the Court below, the proceedings were constituted with only two parties. The orders sought by Cessnock in its summons included orders in the nature of certiorari setting aside the challenged decisions. One of the decisions challenged was the allocation of race meeting dates to two venues in the Hunter region identified as “The Gardens” and “Maitland”. If that order had been made, neither of those clubs would have had a lawful entitlement to conduct greyhound race meetings during the current financial year. Despite that, neither club was joined to the proceedings. A further order in the nature of certiorari was sought in relation to the resolution of the Appellant on 15 May 2006 which allocated dates for all meetings in the financial year commencing 1 July 2006. An order in that form would appear to render unlawful the conduct of any further greyhound race meetings in the current financial year. The reason for challenging the calendar was presumably to throw open all available dates so that, if the existing overall cuts were reaffirmed, Cessnock would still have an opportunity to obtain an allocation of dates for the current financial year. Such an order would have adversely affected rights and interests of each of the clubs to which dates had been allocated: yet no attempt was made to join any of those clubs to the proceedings.

9 Why no steps were taken to join the other clubs is not a matter which need or should be pursued on the present appeal. However, there is some irony in Cessnock seeking to set aside decisions of the Appellant on the ground of procedural unfairness, whilst seeking orders in circumstances which would deny procedural fairness to the other relevant greyhound racing clubs.

10 Secondly, before turning to the events which gave rise to these proceedings, it is necessary to address the statutory framework within which the events took place.

Statutory framework of greyhound racing

11 Greyhound racing in New South Wales is governed by a network of legislation, only the key elements of which need be noted for present purposes. The key provisions are found in the Greyhound Racing Act under which the Appellant is incorporated: Greyhound Racing Act, s 6. The activities of present concern involve the conduct of greyhound races by greyhound racing clubs. Such clubs must be licensed under the Racing Administration Act 1998 (NSW). The membership of the Appellant includes two persons nominated by greyhound racing clubs, one being a representative of “TAB clubs” and the other being a representative of “Country Racing”: Greyhound Racing Act, s 8(1)(c). The term, “TAB club”, is defined to mean a “greyhound racing club on a majority of whose race meetings TAB Limited conducts an off-course totalizator (within the meaning of the Totalizator Act 1997)”: s 8(8). The present proceedings concern the distribution of money and allocation of dates to TAB clubs.

12 The two principal bodies with responsibility for regulation of the industry are the Appellant and the Greyhound and Harness Racing Regulatory Authority (“the Authority”), the latter being established as a statutory body representing the Crown, under the Greyhound and Harness Racing Administration Act 2004 (NSW) (“the Administration Act”). The Authority is primarily concerned with disciplinary matters and occupational health and safety: Administration Act, s 14. It is also empowered to make rules in relation to both greyhound racing and harness racing. The power in relation to greyhound racing includes, pursuant to s 15(2), the power to make rules for or with respect to:

(d) the allocation to greyhound racing clubs of dates on which they may conduct greyhound racing meetings and greyhound races.

13 The Appellant has functions conferred on it under the Greyhound Racing Act or any other Act or law: s 9(1). The functions conferred under the Greyhound Racing Act itself, pursuant to s 9(2) are as follows:

(a) to register greyhound racing clubs and greyhound trial tracks,

(b) to initiate, develop and implement policies considered conducive to the promotion, strategic development and welfare of the greyhound racing industry in the State,

Totalizator Act

1997

(d) to allocate the dates on which greyhound races may be conducted,

(e) to develop and review policy in relation to the breeding and grading of greyhounds.

14 The Authority has made rules pursuant to s 15 of the Administration Act, one of which, known as LR135E – Approval of race meetings, is as follows:

“A club must not conduct a race meeting unless the meeting has been approved by GRNSW.”

15 As will be seen below, the Appellant passed a number of resolutions, some of which are challenged, prior to the resolution passed on 15 May 2006 which allocated to specific venues the number of race meetings which each could conduct in the coming financial year. For the purpose of the present proceedings, the parties accepted that this last decision was an exercise of the statutory function contained in s 9(2)(d), presumably because the identification of a number of meetings to be held on a particular day of the week, perhaps when understood in the context of administrative arrangements between the Appellant and the individual clubs, constituted the allocation of “the dates” on which greyhound races may be conducted. This approach must be accepted, although the lack of precision gave rise to debate between the parties as to which resolutions constituted operative decisions for the purpose of this provision and which were “policy” decisions, in the exercise of broader functions and thus subject to different principles for the purposes of judicial review.

16 As will appear below, one of the challenges made by the Cessnock Club to the decision-making process which resulted in the allocation of no dates to it for the forthcoming year concerned the members of the Appellant who participated in determining that outcome. Accordingly it is necessary to return to the membership of the Appellant, as identified in s 8(1) of the Greyhound Racing Act, which relevantly provides as follows:

17 It is immediately apparent that the Appellant is constituted by six persons, at least five of whom (excluding the chairperson) will be nominated by those directly involved in the greyhound racing industry and each is at least likely to have an association with one or more of the nominating entity or entities. However, there is no prohibition on persons nominated under paragraph (1)(a)-(c) being current members of the committee of a greyhound racing club or employees of such a club: the restriction on eligibility of such persons is limited to the nomination made under paragraph (1)(d). The apparent purpose of sub-s (6), which imposes that restraint, is to limit the risk of the clubs having undue representation in the membership of the Appellant. As will appear below, each of the associations identified in paragraphs (1)(a) and (b) is itself involved in the conduct of race meetings, including meetings conducted at two of the three venues in the Hunter region, the third being Cessnock. It was the involvement of these two members of the Appellant in decisions which resulted in Cessnock not being allocated dates which gave rise to a complaint of apprehended bias.

18 In considering this challenge, a number of aspects of the provisions relating to the conduct by the Appellant of its meetings need to be considered. These are set out in Schedule 1 to the Greyhound Racing Act. First, cl 12 provides:

12 Duty of members to act in interests of public and industry

It is the duty of each member of GRNSW to act in the public interest and in the interests of the greyhound racing industry as a whole. (For example, in the case of a nominated member, this duty requires the member to put the interest to which the duty relates before the interests of the body that nominated the member.)

19 There are then provisions of general operation to be found in cls 13 and 14 which respectively provide:

13 General procedure

The procedure for the calling of meetings of GRNSW and for the conduct of business at those meetings is, subject to this Act and the regulations, to be as determined by GRNSW.

14 Quorum

The quorum for a meeting of GRNSW is a majority of its members.

20 Apart from its functions with respect to registration, or the suspension or cancellation of registration under s 9(2)(a), the Appellant has power to delegate the exercise of its functions to a member, the chief executive officer, or a committee or combination of those persons: s 53(1).

21 Finally, cls 10 and 11 of Schedule 1 set out rules identifying and requiring the disclosure of pecuniary interests of members. The content of those provisions will be dealt with below in the context of the challenge based on apprehended bias, although it does not directly involve any allegation that the members in question held a relevant pecuniary interest in the matter at issue.

The decision-making process: January – 14 March 2006

22 As noted above, the Appellant was concerned about falls in revenue at least from June 2005. At its first meeting of 2006, on 4 January, it approved a projected deficit of $2.5 million for the current financial year “based on current wagering trends and anticipated TAB distribution income”. It determined that the deficit projection be reviewed at each Board meeting. There was shortly to be a change in the membership of the Board and the following resolution was carried:

“The issue of a media release foreshadowing that the new incoming Board of GRNSW give consideration to reducing the number of race meetings throughout the State instead of reducing prize money per meeting.”

23 On 6 January 2006 a press release was issued, reflecting the resolutions of the meeting two days earlier. On 17 January Mr Brent Hogan, an officer of the Appellant, sent a memorandum to all “TAB club Secretaries”, confirming details of a meeting to be held on January 24 and attaching a background briefing paper with respect to the TAB race dates calendar for the forthcoming financial year. He stated:

“If you think there is other information not contained in this paper which would assist our discussions in someway, please do not hesitate to contact me and we will endeavour to obtain and circulate that information prior to the meeting.

NOT

24 The accompanying background paper noted a “savings target for the industry of approximately $3 - $3.5 million”. The paper further stated:

“In light of the funding shortfall confronting the industry in FY07, the Board of GRNSW has asked GRNSW management to commence consultations with TAB Clubs on three different options in respect to the allocation of race dates in FY07:-

1. Maintaining the status quo, that is 726 TAB meetings;

2. Returning to the Minimum TAB Programme required under the Racing Distribution Agreement of 593 meetings;

25 On 23 January, Mr Chris McKay, the Secretary of the Cessnock Club sent an email to Mr Hogan proposing two variations to the options. Following the meeting on 24 January, a report was prepared for the Appellant and presented to a meeting of the “new Board” on 13 February 2006. The report included the following remarks:

“Whilst opinion varied, the general view of clubs was:

· Maintain the current level of race dates in FY07

· Clubs could not sustain further reductions in administrative funding in FY07

· The funding shortfall would need to be met by various reductions in per race prize money

· No Club was in a position to lose more than 1 to 3 meetings without adversely affecting their trading performance and on-going viability.

Richmond and the NCA argued that there needed to be a reduction in the number of meetings conducted and this could only be achieved by not allocating TAB race dates to all existing TAB clubs in FY07.”

26 The minutes of the meeting of 13 February 2006 note receipt of the report and direct management to “continue consultations with the TAB clubs on the basis that the TAB race dates calendar will be reduced by 104 meetings in FY07”.

27 Pursuant to industry arrangements, the Appellant was required to submit a final racing program for the forthcoming financial year to TAB Limited by 28 February 2006. On 13 February it had sought a two week extension from TAB Limited, which was agreed to. The timing for consultations nevertheless remained tight. A management paper prepared for the February 20 meeting noted that the FY07 race dates calendar was the only matter to be considered and that “this consideration must have regard to the projected $3.5 million funding shortfall for FY07”. It also noted that the issue required “immediate attention as it must be resolved by March 17, 2006. The briefing paper continued:

“It is the view of management that the number of meetings conducted at TAB level should be reduced by 104. This is based on participant feedback that clearly indicated a preference for reducing racing opportunities over reducing the average per race prize money. Per race prize money reductions will have a dramatic effect on the viability, sustainability and image of the NSW greyhound racing industry. In short, we can no longer afford to conduct the number of meetings currently scheduled whilst operating under our current funding model.

If this recommendation is not accepted and the saving associated with cutting 104 meetings therefore not achieved, it will be necessary to make significant per race prize money reductions that deliver the same saving. GRNSW management believes that this saving must be between $1.4 and $1.8 million.”

28 On 20 February, the members of the Appellant passed a resolution in similar terms to that noted above with respect to the reduction of 104 meetings in the forthcoming financial year, that being approximately a 14% reduction on the number of meetings held by TAB clubs in the previous year. It further proposed the issue of a media release indicating its intention to reduce the race meetings by that number, with a resultant “saving of $1.6 million as the initial step in addressing the funding crisis and the need to achieve savings of $3.3 million in FY07”.

29 On 21 February, Mr Hogan sent an email to TAB club secretaries confirming a meeting for February 28 and enclosing a background paper. The paper noted the Appellant’s resolution to reduce TAB meetings by 104 in the coming financial year. The paper identified as a critical question what was “the best approach to accommodating 104 less TAB meetings in FY07 given the current allocation of TAB race dates”. It asked how each option would affect the operations and financial viability of individual clubs and:

“If it is determined not to allocate TAB meetings to selected venues, how should the selected venues be chosen?”

30 The paper then outlined a timetable for the decision-making process which identified 21 February as the date of distributing the briefing paper, 28 February as the date of the proposed meeting with TAB clubs and 2 March as the date on which the Appellant “determines the draft FY07 race dates calendar”. A period from March 3-14 was then provided for all TAB clubs “to make representations & make submissions to” the Appellant on the draft calendar with the anticipated resolution of a final calendar on 14 March 2006.

31 The agenda for the meeting with the TAB club secretaries on 28 February included in item 2 the possible non-allocation of TAB meetings to selected venues and, in item 5, the question noted above as to the selection of such venues.

32 The options available for accommodating the reduced allocation of meeting dates was identified succinctly in the agenda paper under the following four points:

· Reducing the race dates of all clubs by an equal number

· Allocation of an equal number of race dates to all TAB clubs

· Non-allocation of TAB meetings to selected venues

· Other options.

33 Although in an affidavit on which he was not cross-examined, Mr McKay, the secretary of the Cessnock Club, asserted that he had not, before the meeting of 28 February, “been apprehensive” that the Appellant “might be seriously considering targeting clubs losing their status as TAB clubs”, there is no dispute that he was “apprehensive” as a result of the meeting. However, objectively speaking, there can have been no doubt that such a possibility existed and Mr McKay acknowledged that at the meeting on 24 January there had been discussion of a proposal to accommodate “race date cuts that would allow all clubs to continue operating as TAB clubs”. He further stated that he could not recall “any serious discussion of the possibility of any existing club losing entirely its status as a TAB club”, at that time. Submissions put by the Cessnock Club to the Appellant in January had been directed to avoiding any cuts to the existing allocation of race dates.

34 The minutes of the meeting between the TAB club representatives and the Appellant on 28 February record a discussion of three options identified as follows:

Option 1 Reducing the race dates of all clubs by an equal number

Option 2 Allocating an equal number of race dates to all clubs

Option 3 Not allocating race dates to selected venues.

35 The meeting of 28 February was attended by representatives from all the clubs and Mr Bill Mangafas, who was a member of the Appellant, nominated by the New South Wales Greyhound Breeders, Owners and Trainers’ Association Ltd (“the GBOTA”). The GBOTA operated the venue at Maitland, although Maitland was also separately represented. In addition, the meeting was attended by a Ms Donna Summers of the National Coursing Association Ltd (“the NCA”) which operates at Wentworth Park in Sydney and at The Gardens near Newcastle. Ms Summers appears to have been the only person to have spoken at the meeting in favour of “option 3”, supporting it on the basis that it involved “less pain for the majority” of clubs. The other clubs, to varying degrees, appear to have resisted option 3 as unacceptable.

36 The “FY07 TAB race dates calendar” was considered again by members of the Appellant at a meeting on 7 March 2006. In a paper prepared by management for that meeting, the three options which had been discussed with the TAB club secretaries were each identified and considered. Option 1 (reducing dates per club by an equal amount) was rejected on the basis that it was not supported by any club at the meeting on February 28 and that the necessary reduction of eight or nine meetings could cripple the financial viability of the clubs.

37 The memorandum noted that option 2 (equal number of race dates) was favoured by a majority of the TAB clubs, on the basis of fairness and equity. However, the paper noted a number of difficulties which that would create, given the significant discrepancies which existed in present allocations.

38 In relation to option 3 (not allocating TAB meetings to selected venues) the paper noted that it was an option which “might be considered extreme by some” and was one that “the majority of TAB clubs do not support”. However, it was supported by management on the basis that it did not “weaken all TAB clubs”, provided “an opportunity to pursue regional club amalgamations” and allowed “for the creation of a racing schedule with greater continuity”. As disadvantages, it noted that some tracks would close and clubs may be forced out of business and that it would have “potential inconvenience to participants”.

39 The minutes of the meeting of 7 March demonstrate a deep division of opinion amongst members of the Appellant in relation to option 3, with the result that the only motion carried was a resolution to reduce prize money by 22% for all meetings. One result of that meeting was that the timetable advised to the club secretaries, which included determination by the Appellant of a draft calendar on 2 March 2006 was no longer being adhered to. By 10 March 2006, Cessnock had instructed solicitors who wrote to the Appellant noting advice that it was considering various options by way of cost-cutting measures:

“We understand these options include reduction of prize money at current operating tracks, reductions in meetings, or of more concern to our client, the closure of several greyhound tracks which are currently in operation.

Our client’s obvious concern in this respect stems from the fact that once again in line with recent history, it would appear that greyhound racing in the Cessnock area may be under threat.

We are advised by our clients that at this time there has been no predetermined criteria put in place for any decision making in relation to the cost cutting measures and there has also been no structured process or transparency involved in any decision-making.”

40 On 14 March a further meeting of the Appellant was held, commencing at 1.09pm and closing at 6.15pm. The first step taken was to rescind the motion in relation to prize money cuts which had been carried on 7 March 2006. The minutes record that the chairperson was absent from 1.25pm until 4.10pm and that discussion of the calendar was deferred during his absence. A resolution was then carried which approved a race date calendar for the coming financial year. In relation to the Hunter and South Coast regions, dates were not allocated to specific venues, but the Appellant resolved to notify affected clubs:

“(a) the number of allocated TAB dates for their particular region;

(b) that one venue in each of the affected regions will not be allocated TAB racing unless an agreed position from Clubs in each region delivers the required financial and meeting reductions for that region;

(c) that GRNSW inform all clubs simultaneously of their allocation of Race Dates in FY07;

(d) in the circumstances, GRNSW sees this as the opportunity to streamline operations and as a catalyst for club amalgamation or a joint venture approach to racing.”

41 On 15 March 2006 the Chief Executive, Mr Bawtree, advised Mr McKay at Cessnock of the Appellant’s resolution. He advised:

“In coming to its decision, the Board has considered all inputs received from clubs and participants and have examined various options. It has considered and rejected an option of reducing per race prize money levels at TAB meetings.

In determining the allocations, the Board paid close attention to the current volume of racing in all areas across the State and the proximity of other racing opportunities to participants in each region.”

“I appreciate that this is a most difficult exercise for all concerned, but it is imperative given the financial crisis that now confronts the industry. Please do not hesitate to contact me to discuss any aspect of this letter. Additional, GRNSW is also willing to meet with any affected club individually to discuss these issues.”

42 It is convenient to pause at this point in the chronology of events to note that the first two decisions challenged by Cessnock were the resolutions of 14 March which approved “a draft 2006/07 calendar for TAB race meeting dates” and “the conditional determination” of the Appellant “not to allocate TAB race meeting dates to one greyhound racing venue in the Hunter region”. The primary judge held that the Cessnock Club was entitled to a reasonable opportunity to oppose these resolutions, and was denied that opportunity. In addition, by way of notice of contention, Cessnock asserted on the appeal that it was denied procedural fairness for two additional reasons, namely that:

(a) the Appellant departed from the decision-making process which it had represented to Cessnock that it intended to follow, and

43 As already noted, the status of the decision of the Appellant not to allocate 104 race dates for the financial year commencing 1 July 2006 was the subject of dispute in the course of the appeal. That decision did not itself involve the allocation of any race dates and was, at least arguably, a decision in relation to reduction of expenditure and thus related to the exercise of the Appellant’s functions under s 9(2)(c), concerning the distribution of money received by TAB Limited. It was described by the Appellant as a policy decision. Arguably it was a preliminary decision not affecting rights or interests, and not subject to review pursuant to s 69 of the Supreme Court Act 1970. For reasons which will appear, it is not necessary to determine that question.

44 Further, a factor which was not fully debated in the course of the proceedings involved the commercial relationships between the Appellant and other bodies. Thus, it appears that the Appellant was committed to maintaining a minimum program of greyhound race meetings, pursuant to its agreements with other industry bodies. The memorandum sent to TAB club secretaries on 21 February 2006 by the Appellant contained the following statement, which was not contradicted in the course of the hearing:

“The Calendar must consist of a minimum of 593 meetings. This consists of 104 Category 1 meetings (metropolitan meetings), 238 Category 2 meetings (provincial meetings) and 251 Category 3 meetings (country meetings).”

45 In any event, it is clear that, as at 14 March 2006, the Appellant had reached no firm decision not to allocate racing dates to Cessnock. Accordingly, before addressing the complaints about the process followed up to 14 March, it is convenient to consider the process followed thereafter, which, at least as a matter of principle, may have remedied any unfairness which had occurred prior to that date.

Decision-making process: 14 March – 15 May 2006

46 On 15 March 2006, in addition to writing to the Cessnock Club, the Appellant issued a media announcement which stated in part:

“The new calendar will result in a 34 meeting reduction on the south coast, a 46 meeting reduction in the Hunter and a 16 meeting reduction at Richmond.”

Why are the bulk of the reductions coming from the south coast and Hunter?

In determining the allocation of TAB race dates to all TAB tracks across the State, GRNSW paid close attention to the current volume of racing in the areas and the proximity of other racing opportunities to participants in each region.

The reductions have occurred in areas where GRNSW believes there to be surplus racing activity when compared to other areas in the State.

The reduction of TAB racing in the Hunter returns the region back to a level of racing similar to that conducted prior to the opening of The Gardens.”

47 On the same day, the Cessnock Club issued a media release quoting Mr McKay, who criticised the process by which the Appellant had reached its decision, complaining of a lack of transparency and suggesting that the decision was “not based on any pre-determined, credible criteria” which the clubs had had the opportunity to test. Mr McKay was also quoted in the media release as stating:

“It is ludicrous for anyone to say Cessnock is not set up for a fall in the preposterous ultimatum which GRNSW has put to the Hunter clubs about their agreeing on how to achieve the cuts.

major conflict of interest issues

48 The following day, the Cessnock Club issued a further media release criticising the focus on regional boundaries and claiming that the decision taken:

“strangely neglects important racing related issues like track types and the need to cater for the many talented dogs who need a big one turn track … and/or a grass track alternative.”

“Finally we will be pursuing our concerns vigorously with our Independent TAB Clubs representative on the GRNSW Board Mr Jack Primmer, who is also the president of the Dapto Club.”

49 In a letter dated 17 March 2006, the Cessnock Club requested the Appellant to establish an “appeal process” which would allow it to challenge the decision to cut 46 meetings from the Hunter.

50 On 21 March 2006 the NSW Metropolitan & Provincial Greyhound Clubs Association (“the MPGCA”) held a meeting attended by representatives of a number of clubs, including Cessnock. The meeting resolved on a proposal which would spread the cuts broadly across their membership and agreed to put the proposal to the Appellant. The chief executive of the Appellant, Mr Bawtree, responded to that proposal on March 24. In the ensuing days, further representations were made by individual clubs, including Cessnock. A further meeting of the MPGCA was held on 27 March, 2006 and a further lengthy submission was made to Mr Bawtree, together with a resolution:

“That the Board of GRNSW be requested to reconsider its decision to reduce 104 race dates in 2006/2007 so as to bring about a $1.6 million savings and rather seek to achieve the same financial outcome via a race meeting reduction of around 52-59 race meetings and a prizemoney reduction across TAB clubs of around $700,000, thus ensuring the survival of all current TAB clubs with a viable number of dates.”

51 In addition, the letter requested release of internal modelling, based on financial information provided by the clubs, despite the fact that Mr Bawtree had indicated that the information was “commercially sensitive” and would not be released without the express consent of each club. In response the MPGCA said that it “had always assumed that the modelling would only be provided to the individual clubs and then each club would bring it to the Association’s March 27, 2006 meeting for further discussion”. (It did not appear from the letter as to why the clubs were unable to provide the information directly to the MPGCA.)

52 On 28 March 2006 the Appellant had another meeting at which it passed a resolution noting that agreement between the clubs seemed unlikely and determining a six-step process by which it would determine which clubs were not to receive race date allocations for the coming financial year, the six steps being:

“(i) Delegate the process of consideration of allocation of race dates to a committee of the Board which does not include members with particular club affiliations potentially affected by this decision;

(ii) The committee will meet as soon as possible to agree a proposal for the allocation of race dates in the Hunter and on the south coast …;

(iii) Affected clubs should be served a show cause notice explaining the proposal of the committee, its reasons for formulating the proposal and inviting affected clubs to make representations within 28 days;

(iv) The committee would consider any representations by an affected club and make a recommendation to GRNSW members as to the allocation of TAB race meetings in the Hunter and on the South Coast;

(v) The Board of GRNSW would agree to adopt that recommendation unless there was a clear reason for not doing so. In considering the recommendation, GRNSW would also consider the representations by an affected club;

53 The resolution also provided:

“Appoint a committee of the Board which does not include members with particular club affiliations potentially affected by this decision to consider the matter as required by the above decision-making process.”

54 On March 30, the Cessnock Club was advised in writing of the effect of the resolution and a media announcement was made the following day.

55 The committee met on 4 April 2006 and identified a number of considerations which it intended to take into account for the purpose of allocating race dates within the two regions. The committee proceeded to assess the venues by reference to those considerations and resolved, in relation to the Hunter, that the race dates be allocated to The Gardens and Maitland and that the Cessnock Club be served with a “show cause notice” explaining the allocation proposal, the reasons for formulating this proposal and inviting the Cessnock Club to make representations to the committee within 28 days.

56 On 5 April the Cessnock Club issued a media release commenting on recent developments, including the Appellant’s media announcement of 31 March 2006, as to which Mr McKay is reported as saying:

“I have grave concerns about the vague Committee process set up whereby only three members of the GRNSW board will form a committee to consider and agree on the allocation of race dates in the targeted regions of the South Coast and the Hunter, to serve notices on affected clubs and to hear any objections before making its recommendations to the GRNSW board.

This vague committee process denies all GRNSW board members being involved in this key process and the clubs involved should not be denied the opportunity to plead their case before the full Board before any recommendations whatsoever are handed down.”

57 The substance of the critique was that the two members of the Appellant “who have consistently held to the position that they do not support race date cuts” have been excluded from the committee process, thus leaving on the committee the three members of the board who, it was inferred, did support the process. However, the media release acknowledged that the intention was a concern about “removing perceived bias”.

58 On 7 April, Mr Bawtree wrote to the Cessnock Club setting out the considerations resolved to be relevant by the committee, the committee’s reasons for reaching its decision and a summary of information considered by the committee, not including information believed to be confidential. The summary of data included “secure financial results” and “racing activities results” in relation to clubs for the previous two years. The data about the Cessnock Club was also enclosed.

59 On 26 April 2006 Mr McKay responded to the letter of Mr Bawtree of 7 April, noting that the Cessnock Club did not “accept” the committee process as fair, but also making a number of comments about the process, the criteria and the benefits of maintaining race meetings at the Cessnock Club. In part, those submissions were directed to matters which appeared to go beyond the factors considered by the committee. A further letter was sent on the following day.

60 On 1 May 2006 the committee visited the Cessnock Club and the other clubs in the Hunter region. Mr Bawtree gave evidence that the visit lasted for approximately 80-90 minutes and that Mr McKay and the president of the Cessnock Club conducted a tour of the track and facilities. There was a further meeting with the committee at its Homebush Bay premises, on 5 May 2006. The following is recorded in the minutes of that meeting:

“Mr McKay in opening his submissions to the Committee indicated that on legal advice he wished to ask, ‘whether the Committee’s terms of reference allows it to recommend to the GRNSW board an allocation that involves reconsidering the March 14, 2006 decision?’

The Chairman indicated that the committee’s terms of reference did not allow for such a recommendation; however the committee was open to receiving the club’s submissions on this issue and would undertake to act as a conduit and report the Cessnock Clubs [sic] views to the full GRNSW board.

Mr McKay acknowledged the Chairman’s advice and indicated that he would address the narrower brief of the committee. Before doing so however and at the Chairman’s invitation he made extensive representations in respect of the GRNSW board decisions of March 14, 2006. Mr McKay asserted that there had been other viable alternatives that GRNSW could have adopted.

The Chairman again indicated that the Cessnock club’s views would be conveyed to the Board.”

61 Various other clubs and associations provided submissions to the committee, including the GBOTA, which operated the Maitland venue. Its submission was made in support of the proposed allocation to it of 48 race meeting dates. The contents of the submission were limited to the promotion of the facilities at Maitland and the value to be obtained from maintaining the allocated dates.

62 The committee met again on 12 May 2006 and discussed the representations and submissions made by the clubs and their inspections of the south coast and Hunter venues. A resolution was then passed by which the committee reaffirmed its preliminary proposal and recommended to the members of the Appellant that no TAB race dates be allocated to the Cessnock Club for the coming financial year.

63 The critical and final meeting was that of 15 May 2006, being a special meeting of the members of the Appellant. The committee report, excluding a reference to legal advice, read as follows:

“The Chairman advised the Board Members that the Committee had inspected each of the Tracks in the Hunter and South Coast regions and informed them of the resolutions of the Committee’s teleconference held on May 12, 2006.

The Board then discussed at length the recommendations of the FY07 Race Dates Committee including the following table. …”

64 The first challenge raised by the Cessnock Club to the decision of 15 May 2006 was that no steps had been taken which were adequate to cure the procedural unfairness which affected the 14 March decision and, therefore infected the 15 May decision. Secondly, it challenged the decision made on 15 May on the basis that Messrs Mangafas and Zammit had an interest, which gave rise to an apprehension of bias and thus a lack of procedural fairness, in the making of those decisions. Thirdly, by way of contention, it complained of the Appellant’s failure to apprise it of “the substance of the submissions advanced by the Maitland club to the committee meeting on 5 May 2006”.

65 It is convenient to address the issues raised by these events in the following categories:

(1) lack of reasonable opportunity to make submissions in relation to the 14 March decisions;

(2) whether steps taken after 14 March cured any procedural unfairness prior to that date;

(3) failure to supply a copy of the Maitland submission to the Cessnock Club, and

(4) apprehended bias of two members of the Appellant.

Procedural fairness – prior to 14 March 2006

66 The complaints in relation to this period have four related elements, namely:

(1) failure to put the Cessnock Club on notice that proposed cost-cutting measures might result in one or more clubs losing their race meeting dates;

(2) failure to identify the criteria by which that result might obtain;

(3) a departure from an announced decision-making process, and

67 Point (3), referring to a departure from an announced timetable, relates primarily to steps taken after a draft calendar was prepared. That the timetable slipped is conceded, so that the draft calendar was not in fact available until 14 March. The effect of the departure is thus more conveniently addressed in relation to events after 14 March: see below at [99].

68 The Appellant accepted that it owed an obligation of procedural fairness to the Cessnock Club (and indeed all the TAB clubs) in respect of any decision which might result in a substantial diminution of the dates upon which the clubs could conduct greyhound races. Accordingly, the issues in dispute were concerned with the content of the obligation, rather than its existence in the abstract.

69 In order to address the content of the obligation, consideration should first be given to the nature, functions and powers of the Appellant, as established by the Greyhound Racing Act.

70 In broad terms, the constitution of statutory bodies which have powers in relation to the control and management of particular activities or industries often follow one of two approaches. One approach is to constitute the body with members drawn from particular interest groups carrying on the activity or industry concerned; the other is to have members who are independent of those carrying on the activity or industry. In this case the statute is heavily weighted in favour of the former principle although, depending on the criteria established by the Minister, the chairperson may have a degree of independence: Greyhound Racing Act, s 8(5) and (7). Nevertheless, in accordance with cl 12 of Schedule 1 – set out at [18] above – each member is to act in the public interest and in the interests of the greyhound racing industry as a whole, which duties must be placed before the interests of the body that nominated the member and, at least by implication, the interests of any body with which the member has an association within the industry. In this respect, cl 12 gives effect to the principles stated by Street J in Bennetts v Board of Fire Commissioners of NSW (1967) 87 WN (Pt 1) (NSW) 307 at 310:

“The consideration which must in board affairs govern each individual member is the advancement of the public purpose for which parliament has set up the board. A member must never lose sight of this governing consideration. His position as a board member is not to be used as a mere opportunity to serve the group which elected him. In accepting election by a group to membership of the board he accepts the burdens and obligations of serving the community through the board. This demands constant vigilance on his part to ensure that he does not in the smallest degree compromise or surrender the integrity and independence that he must bring to bear in board affairs.”

71 A further matter which affects the content of any obligation to accord procedural fairness is the nature of the decision to be taken, in combination with the possible range of affected interests. In this case, that was not a constant factor, with the possible result that the content of the obligation may not be constant: see The Queen v Marks; Ex parte Australian Building Construction Employees & Builders Labourers’ Federation (1981) 147 CLR 471, 500-501 (Brennan J); Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [62] (Gaudron and Gummow JJ). Thus, in January 2006 (and earlier) the Appellant was confronted with a broad issue created by a diminishing revenue flow. The fact of a diminished annual budget required it to consider where funding cuts could best be made. At that time, any body or individual in receipt of funding, or enjoying benefits flowing from, existing levels of funding, was potentially at risk of losing part or all of those financial benefits. Decisions of a policy kind were then made which narrowed the focus of those likely to suffer until, after 14 March, it seemed likely that two out of six or seven TAB clubs were among those likely to be directly and adversely affected. No doubt many people who participated in various ways in the greyhound racing industry would suffer some direct or indirect financial detriment from a reduction in the expenditure of the Appellant.

72 At the earlier stages of the process, the Appellant submitted, procedural fairness either did not apply or was readily satisfied by the consultation with the greyhound racing clubs which in fact took place prior to February/March 2006. The Appellant sought to rely, in support of that position, on the following remarks of Spigelman CJ in Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 at [74]:

“The fact that the exercise of a particular statutory power has effect on a wide range of persons, even in circumstances where the identity of all such persons is difficult to establish, will often impinge, not on the obligation to accord procedural fairness, but on the content of that obligation.”

Minister for Local Government v South Sydney City Council

“The present case involves examination of a proposal which … was capable of affecting a very broad number of persons and institutions in what may broadly be termed a matter of town planning overlaid with political issues. Such tasks do not usually attract the principles of procedural fairness at all, although they may do so as regards particular interests of particularly affected and identifiable persons … .”

73 Vanmeld Pty Ltd involved the promulgation of a local environment plan under the Environmental Planning and Assessment Act 1979 (NSW). The majority (Meagher and Powell JJA) held that compliance with the statutory scheme was sufficient to satisfy the requirements of procedural fairness. In South Sydney City Council, the Court was concerned with consultation with parties who might be affected by a recommendation of the Boundaries Commission, operating under the Local Government Act 1993 (NSW). Again, the statutory context was of importance. In any event, the broadly stated principles derived from the passages relied upon by the Appellant are not directly applicable in the present case. It became apparent early in the Appellant’s deliberations that, although various other cost-saving devices were contemplated, to make savings in the order of $3.5 million in a financial year required reductions in prize money payable at TAB club meetings, a reduction in the number of race meetings conducted, or a combination of those two approaches. Once a reduction in the allocation of dates was identified as a real possibility, the parties who would be most directly affected were readily identified as the twelve TAB clubs. Consultation with those clubs was required prior to any operative decision being taken but, even assuming such a decision was taken on 14 March 2006, consultation took place. Accordingly the issue in dispute must depend upon the factors identified at [66] above.

74 It is logical to deal first with the complaints that a particular outcome was not identified for the purposes of the consultations, namely that individual clubs might be at risk of losing their allocation of racing dates and, secondly, that the criteria upon which such a decision might be taken were not identified. It is only when the force of these complaints has been considered that it is possible to deal with the broader question of whether the clubs were given an adequate opportunity to present their views.

75 To an extent, Cessnock’s submissions sought to force the Appellant into a narrow passage between the Scylla of consulting without having formulated a proposal and the Charybdis of formulating a proposal without adequate consultation. However, the obligations of procedural fairness must be assessed against the practical realities, in particular circumstances. As Gleeson CJ noted in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37], in relation to the content of procedural fairness, “the concern of the law is to avoid practical injustice”.

76 Further, it is important to bear in mind that the process of allocating racing dates was being driven by the need to cut expenditure. Nevertheless, at the end of the day the determination now under challenge, made in exercise of a statutory function, was the allocation of dates on which greyhound races may be conducted, pursuant to s 9(2)(d) of the Greyhound Racing Act. The purpose of the consultations undertaken in January and February 2006 involved a recognition that the need to make substantial cuts in funding could affect the number of race dates allocated. That was clearly understood, no later than the meeting of 24 January between officers of the Appellant and the TAB clubs, referred to at [23]-[25] above. It will be recalled that the report of the meeting noted that Richmond and the NCA had argued that there needed to be a reduction in the number of meetings and that “this could only be achieved by not allocating TAB race dates to all existing TAB clubs in FY07”: at [25] above. Furthermore, the meeting between the Appellant and the TAB club representatives on 28 February expressly addressed “not allocating race dates to selected venues” as one of three options. The option may have been one which was considered, at least by clubs under threat of such a loss, as unacceptable and as unlikely to be adopted. Nevertheless, the evidence demonstrates that it was a matter under consideration and was the subject of consultation, for a period of at least six weeks prior to the 14 March meeting of the Appellant. The contention that the Cessnock Club was not on notice that such a possibility was being considered and did not have a reasonable opportunity to address it, prior to 14 March, is difficult to accept.

77 The primary judge dealt with this issue at [67]-[74]. Having reached a conclusion that there was procedural unfairness prior to the decisions of 14 March, his Honour then found further material in support of that conclusion in the steps taken prior to the meeting on 20 February 2006 at which members of the Appellant passed a resolution committing it to a reduction of 104 meetings for the forthcoming year. That decision was also, as his Honour held, “made in circumstances of a denial of natural justice” to the Cessnock Club: at [85]. However, no relief was sought in relation to that resolution, nor was any order made in relation to it. It thus appears to have been treated as an incidental finding giving support to the view his Honour expressed in relation to the decisions taken on 14 March.

78 His Honour’s reasoning appears to have a number of cumulative elements. First, he noted the financial health and possibly the continued existence of the Cessnock Club, depended on the allocation of racing dates: at [67]. Secondly, he noted the significant number of alternatives to the course ultimately taken by the Appellant: at [68]. That consideration was relied on, it would seem, not to illustrate the difficulty of the task facing the Appellant, but the difficulty of the task facing a club under threat in mustering its arguments against one particular course of action. Thirdly, that factor was said to be exacerbated by the likely conflict of interest between clubs and the strategic decisions which each would be required to make: at [69]. A fourth matter identified was the need for each club to gain and consider information about the others: at [70]. It was a combination of these considerations which led his Honour to think that the opportunity for the Cessnock Club to do justice to its own situation was “unrealistic”.

79 The first step in addressing a question of procedural unfairness is to identify the decision reached which was said to be tainted by such unfairness. There was no discussion in the judgment below as to whether the decisions taken on 20 February and 14 March, which his Honour thought procedurally unfair and, at least in relation to the latter, which his Honour was minded to set aside – see [74] – were indeed operative decisions affecting the rights or interests of the Cessnock Club. The operative decision would seem to be that of 15 May 2006, declining to allocate dates for race meetings in favour of the Cessnock Club in the coming financial year. Because this decision was not taken in a vacuum there were numerous resolutions passed by the Appellant at meetings leading up to the meeting of 15 May. Some no doubt affected in a practical sense the result achieved on 15 May, but it does not follow that they affected, in a legal sense, the rights and interests of the Cessnock Club. This may be tested by asking whether the earlier resolutions were preconditions to the resolution of 15 May or otherwise necessarily affected its validity. The answer to that question is straightforward: they were not and did not. The Appellant could at any stage prior to 15 May have rescinded, varied or simply not acted upon those resolutions. This conclusion is not an abstract matter of legalities. A reading of the minutes of the Appellant’s meetings demonstrates that there was considerable uncertainty as to what course to take and that, as late as 7 March, the members were unable to agree on the proper course. So much is demonstrated by the decision of 20 February not to reduce the race prize money, followed by a different decision on 7 March and a rescission of the new decision on 14 March.

80 That conclusion leads to a second reason why there was error in seeking to assess procedural unfairness as at particular stages of the process. Resolutions of administrative bodies are not to be equated with orders, even interlocutory orders, of courts or tribunals. The fact that members of the Appellant were all (bar the chairperson) intimately involved in the industry, may suggest, as a practical matter, that in adopting a particular approach (even if contentious) they were likely to be aware of its impact on various operators in the industry and their likely concerns. On the other hand, there was no suggestion that they would not have changed their minds if presented with fresh material suggesting that the course upon which they were embarked would lead to consequences which were not in the public interest or were not in the interests of the industry as a whole. Accordingly, there is no reason to conclude, either in legal or practical terms, that resolutions passed in February or March of 2006 predetermined the outcome on 15 May. Thus, so long as the Cessnock Club had a reasonable opportunity to put its case, in defence of its own interests, or in support of some general reshaping of the proposals put forward by the Appellant, prior to 15 May, it would be difficult to conclude that there had been procedural unfairness. It was not contended, on the part of the Cessnock Club, that any decision actually taken by the Appellant was manifestly unreasonable, in a sense which would have involved a challenge to its legal validity.

81 One other factor of importance in considering the challenge to the resolution of 14 March was the timetable within which the Appellant was operating. The critical source of funds for the TAB clubs was TAB Limited, the amount obtained by the Appellant depending upon the volume of bets placed upon particular race meetings where the TAB totalizator operated. In addition, betting activity depended upon the broadcasting of races and indeed the revenue shortfall was understood by the industry to have resulted largely from a dispute between two television broadcasters, Sky Channel and TVN. The fixing of race dates for a particular financial year needed to occur well before the start of that year. That fact was well understood in the industry and no complaint is made that the Appellant failed to act in a timely fashion in determining the allocation of race dates for the financial year commencing on 1 July 2006. Pursuant to commercial agreements involving TAB Limited and the various racing entities, the Appellant was required to present TAB Limited with a final calendar of race dates, by 28 February 2006, for the ensuring financial year. That date was put forward, by agreement with TAB Limited, to 15 March. The original timetable proposed by the Appellant on 24 January complied with that altered deadline. However, with the apparent agreement of TAB Limited, the period was further extended, ultimately to mid-May. Nevertheless, it was self-evident in the interests of all parties operating within the industry, including the Cessnock Club and the Appellant, that the allocation of race dates should be determined as expeditiously as possible. It followed that the time available for consultations was by no means open-ended and was, indeed, essentially limited to a period of four months. The Cessnock Club did not submit otherwise.

82 There are other aspects of the circumstances which operated during those four months which needed to be taken into account in assessing fairness to the clubs and particularly the Cessnock Club. First, although his Honour was at pains to note the complexity of the possible combinations of reduction in expenditure and the many factors which could affect the decision-making process, these matters should not be viewed in the abstract. The Cessnock Club was one with a long involvement in the greyhound racing industry and, it may be inferred from the material contained in the papers before the Court, it well understood how the industry operated, including which race meetings provided the greater source of revenue and where the greater elements of cost lay. It did not submit otherwise. Further, when the occasion arose, it was able to present with some force the special features of the Cessnock Club’s track and facilities which justified a continued allocation of race meetings. Nor did it suggest that the decision to source the reduction of 104 meetings to the Hunter and south coast regions was manifestly unreasonable or that the decision was made without reference to relevant considerations or was based on irrelevant considerations. Furthermore, it seemed to have no doubt that, within the Hunter region, there were substantial reasons why the allocation to The Gardens would not be cut, so that the real contest lay between it and the Maitland venue. Although Cessnock made demands for all of the information which was available to the Appellant in the course of the decision-making process, its ultimate complaint was that it was not made aware of the criteria upon which the Appellant acted. In the course of the proceedings in this Court, there was no attempt to identify any particular information of which it was not aware, which could properly have been released to it, and which might have affected the submissions it made. In any event, as will be discussed further below, no legal obligation to provide information was established.

105 Cessnock contended that it should have received a summary of the Maitland submission, and been given a reasonable opportunity to respond. It invoked the principles set out in Kioa v West (1985) 159 CLR 550. That case involved the refusal of further temporary entry permits to a Tongan citizen and his family, who had arrived in Australia pursuant to temporary entry permits which had expired. They faced deportation, although the Minister had a discretionary power to issue further temporary entry permits, which would have allowed them to stay in Australia. Mason J (at p 587) noted that matters of fairness did not necessarily require them to be given an opportunity to be heard. His Honour continued:

“The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter … .”

106 To similar effect, Brennan J (at p 629), after noting the need to avoid steps which would “over-judicialise” the process, continued:

“Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interest are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account.”

107 Prior to the decision of the High Court in Ex parte Miah (at [87] above), there was some doubt as to whether the principle established in Kioa v West extended to information which was not adverse to the applicant in a personal sense, but went to external matters relevant to the decision. It is clear from the passages set out above from Kioa that the concept of “adverse” material there considered was limited to material adverse to the personal circumstances of the applicant, being matters which might give rise, in the language of Brennan J, to subconscious prejudice, even if put to one side. However, since the decisions of the High Court in Ex parte Miah and Muin it is clear that in some circumstances external matters may need to be referred to an applicant for comment. That obligation may arise, at least in relation to information known to the applicant, where it could not reasonably have been anticipated that the decision-maker would take it into account, or it is being taken into account in a way which could not reasonably have been anticipated.

108 The submissions put forward on behalf of the Maitland venue did not fall into either category. They were not adverse to the interests of the Cessnock Club, in the manner identified in Kioa. They said nothing at all about the Cessnock Club. They focused entirely on the merits of the Maitland venue. The fact that the respective merits of each venue would be taken into account by the committee in considering whether to uphold its proposal of 4 April was known to the Cessnock Club, both through the identification of relevant criteria circulated to the clubs and through its knowledge of the site visits. That Maitland (and possible The Gardens) would make representations of a kind which would support the proposed allocation of racing dates, was reasonably to be expected. Nor was any statement contained in the Maitland submission identified as presenting material which the Cessnock Club could not have foreseen. Failure to provide the written submission in relation to Maitland, or even, which is all that was demanded, a summary of its contents, resulted in no procedural unfairness to Cessnock.

Apprehended bias

109 There remains an entirely separate challenge to the decision of 15 May, which was based on participation in the meeting of that date of two members of the Appellant, namely Messrs Mangafas and Zammit. As noted above, Mr Mangafas had an association with the club which ran meetings at the Maitland venue, whereas Mr Zammit had an association with the body which ran meetings at The Gardens.

110 The primary judge stated, at [94]:

“It is clear that Mr Mangafas and Mr Zammit who participated in the meeting of 15 May had a clear interest in preferring, out of the three Hunter region clubs, Maitland in the one case and the Gardens in the other … .”

111 His Honour commenced his consideration of this issue with a statement of principles concerning apprehended bias under the general law: at [92]. However, the proper starting point must be the statutory scheme under which the Appellant operates. It is that scheme, rather than any principle of necessity, on which the Appellant relied to justify the procedures adopted in relation to the allocation of dates for race meetings, in exercise of its function under s 9(2)(d) of the Greyhound Racing Act.

112 The key features of the legislative scheme flowing from the provisions set out at [12]-[21] above are threefold. First, it is only the Chairperson and the person nominated by participants under s 8(1)(d) who may not be members of the committee of a greyhound racing club, or an employee of such a club, the restriction in relation to committee membership applying to the whole year immediately preceding the time of selection: s 8(6) and (7). The limited operation of these restrictions indicates that the Parliament envisaged that members nominated under paragraphs (a), (b) and (c), constituting four of the six members of the Appellant, might be members of the committee of a greyhound racing club.

113 Secondly, it is clear that the majority of the functions of the Appellant involve decisions relating to specific greyhound racing clubs, including the exercise of functions with respect to registration of greyhound racing clubs, distribution of money received from TAB Limited and the allocation of dates for greyhound races. It is self-evident that decisions made in exercise of these functions will affect the interests of individual clubs and, in relation to the distribution of money and the allocation of dates, could affect the interests of all clubs. It is at least unlikely that the legislature intended that members nominated as representatives of sections of the industry, and likely to have associations with individual participants within the industry, would thereby be precluded from fulfilling their statutory responsibilities as members of the Appellant.

114 Thirdly, the legislature directly addressed the likely conflict between the general duties of a member and the interests of the body which nominated the member, in cl 12 of Schedule 1. Further, it imposed a specific regime for disclosure and procedural steps to be taken where a member “has a pecuniary interest in a matter being considered”. In accordance with general law principles, it might be thought that the existence of a pecuniary interest would be the most serious form of conflict with the duties of a member. Nevertheless, and subject to a point of construction put on behalf of the Cessnock Club, pecuniary interest does not necessarily preclude a member from participating in a decision in which he or she has such an interest, nor does contravention of cl 10 of Schedule 1 invalidate any decision of the Appellant. Given that express declaration of legislative intent, it might be doubted whether some lesser or more indirect form of interest would give rise to invalidity.

115 The construction point raised by the Cessnock Club concerned the scope of cl 10(6) of Schedule 1 to the Act, which provides that a contravention of “this clause” does not invalidate “any decision” of the Appellant. It was contended that the phrase “any decision” referred to a decision under cl 10(4) permitting a member who had disclosed an interest in any matter nevertheless to be present during deliberations and take part in any decision with respect to the matter. However, that construction is highly implausible and should not be accepted. First, cl 10(4) provides an exemption from its own prohibition, which would only arise in the case of a disclosure under cl 10(1). That disclosure would mean there was a compliance cl 10, not a contravention of it. In that case cl 10(6) would have no operation. It is perhaps arguable that there could be a contravention because the disclosure was inadequate, but it is unlikely that the language of cl 10(6) was designed to cope purely with that limited and special form of contravention. Secondly, it would have been easy for the drafter to have stated that a contravention would not invalidate “a decision under cl 10(4)”, if that had been its purpose, although more accurately the drafter would have referred to a determination under cl 10(4), rather than a decision. Thirdly, the language of “any decision”, as used in cl 10(6), is reflected in cl 10(4), which refers to “any decision” with respect to the matter under consideration. It is the substantive decision to which cl 10(6) is directed. Finally, the provision appears to reflect similar provisions in the Corporations Act 2001 (Cth), ss 191(4) and 192(7) and Commonwealth Authorities and Companies Act 1997 (Cth), s 27F(4), where the proposed construction is not open.

116 In this context, it must be noted that neither Mr Mangafas nor Mr Zammit was said to have any pecuniary interest in the decision with respect to the allocation of racing dates. That is presumably because neither obtained financial gain or loss from the allocation of dates to venues where greyhound racing was operated by, in the case of Maitland, the GBOTA, of which Mr Mangafas was the chairman or, in the case of The Gardens, the club being owned and operated by the NCA of which Mr Zammit was the president, being also the treasurer of the club itself. It would not have been necessary to show that they had “a reasonable likelihood or expectation of appreciable financial gain or loss” for the purposes of cl 11(1) of Schedule 1, it being sufficient if the person were a member of a company or other body that has such an interest in the matter: cl 11(4)(b). However, the latter association is established only where the person holds a beneficial interest in any shares of the company or body: cl 11(5)(c). Because the nature of a pecuniary interest is carefully and precisely defined in cl 11, it would be a curious result if a person who had an interest of a similar, but marginally more indirect kind, were excused from the disclosure and other requirements of cl 10, but whose participation might yet, under general law principles, invalidate the decision of the Appellant.

117 As with any other general law principle, not subject to constitutional constraints on the legislature, a statutory provision may override its effect. Indeed, the very content of natural justice, in a statutory context, is well understood as depending upon the statutory rules: see, eg, Kioa v West, 159 CLR at 584-585 (Mason J) and at 609 (Brennan J). It has become a practice in some jurisdictions in recent years to prescribe principles of procedural fairness which are applicable to statutory tribunals and other bodies. The inter-relationship of such statutory provisions with general law principles was considered in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, referred to above in a different context. In that case, the Migration Act prescribed rules pursuant to which a visa application was to be considered, stated that the statutory provisions constituted a “code of procedure” and further provided that non-compliance with the code did not mean that the decision was not a valid decision: see Migration Act 1958 (Cth), Part 2, Div 3, subdivs AB and AC. As noted by Gleeson CJ and Hayne J at [43], in commenting on the legislative scheme:

Annetts v McCann

Commissioner of Police v Tanos

Annetts v McCann

Baba v Parole Board (NSW)

118 The general law principles have frequently been expounded in cases involving courts or quasi-judicial tribunals. However, those principles should not be translated, without adaptation, to the circumstances of statutory administrative decision-makers: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [4] (Gleeson CJ, McHugh, Gummow and Hayne JJ), a passage quoted with approval by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [99]. Their Honours also agreed, at [100] with comments to similar effect in the judgment of Hayne J in that case, which may be found particularly at [178]-[187]. As his Honour noted at [180], a particular decision-maker may bring to the task “a great deal of information and ideas which have accumulated or formed in the course of deciding other applications”. Such a decision-maker, his Honour continued, is expected to build up “expertise” in the matters it is required to decide. Those comments were made in the context of the Refugee Review Tribunal: they apply with added weight in the case of the Appellant, given its membership.

119 In my view the statutory scheme is inconsistent with the conclusion that a person would, in the circumstances of the present case, have a reasonable apprehension of bias in relation to a decision with respect to the allocation of racing dates which discriminated between clubs, and allocated dates in the Hunter region to two clubs who had officers who were members of the Appellant, whereas the club which missed out, namely Cessnock, did not. There are a number of reasons for this conclusion.

120 First, there is no allegation that Mr Mangafas or Mr Zammit was actually biased against the Cessnock Club. Yet, at least in relation to a court, the existence of even a direct pecuniary interest is no longer an automatic disqualification: see Ebner v Official Trustee. A similar principle is to be found in Schedule 1, cl 10 in relation to the Appellant.

121 Secondly, it has always been the case that a person may be “relieved from the operation of” the rule against being a judge in one’s own cause “by statute”: see Dickason v Edwards (1910) 10 CLR 243 at 259 (Isaacs J), applied in Builders’ Registration Board of Queensland v Rauber (1983) 57 ALJR 376 at 385 (Brennan J). That does not mean that all aspects of the bias rule have been abrogated by the Greyhound Racing Act: it does mean, however, that an allegation of apprehended bias based upon an association between a member of the Appellant and a greyhound racing club, without more, will not be sufficient. Corrupt behaviour would, of course, fall into a different category.

122 Thirdly, the Appellant took steps to avoid, as best it could, whilst carrying out its functions appropriately, any reasonable apprehension of a conflict of interest, arising from the associations between Mr Mangafas and Mr Zammit with greyhound racing clubs in the Hunter region and the association of Mr Primmer with a club on the south coast. Thus, it set up a committee of three members having no such connections. It delegated to that committee the power to make a recommendation as to an appropriate course, indicating that it would not depart from the recommendation except in special circumstances, and did not in fact depart from it. No allegation could properly be made, or was made, against the members of the committee. The complaint is rather that, having made a recommendation, the operative decision was that of all members, including Mr Mangafas and Mr Zammit. It was pointed out that they could, in exercise of the power under s 53 of the Greyhound Racing Act, have delegated the exercise of this particular function to a member or to the committee as actually constituted. Because they did not do so, it was contended that the Appellant cannot escape a challenge of apprehended bias in relation to the decision made by the full membership on 15 May.

123 This last challenge carries within it the seeds of destruction of the substantive argument relating to apprehended bias. If the committee could have made a final and operative decision, pursuant to a full delegation of power, but the full membership in fact made the final decision, which was in keeping with that of the committee, the reasonable apprehension of bias would seem to disappear. The observer who, in those circumstances, continued to believe that the final decision was tainted, could not readily be described as a fair-minded person.

124 That aspect of the matter also gives rise to a question as to why the members sought to retain the power to make the final decision. One answer may be that it was not necessarily in the interests of the clubs who missed out not to have the benefit of the votes of other members of the Appellant. Thus, in relation to Cessnock, Mr Primmer, who was not a member of the committee because of his association with a south coast club, may well have supported the interests of another greyhound racing club with which his club was not in competition. Indeed, there might have been a view that either or both of the other members who were not on the committee might have supported the interests of clubs allocated no racing dates, despite the possibility of competition with their own clubs. Each of the three was a member of the MPGCA which, at meetings on March 21 and March 27, had passed resolutions opposing the approach adopted by the Appellant on 14 March. Mr Mangafas had been at both meetings of the MPGCA. Indeed, at one stage the Cessnock Club appeared to view the matter in this way. In a media release dated 5 April 2006, Mr McKay complained of the committee membership on precisely that basis: see [56] and [57] above.

125 Although in principle a person can be seen to waive an apprehension of bias – see Smits v Roach [2006] HCA 36; (2006) 228 ALR 262, at [43] – care must be taken in circumstances which involve no formal process not to infer informed waiver too readily. But short of such a finding, an appearance of bias is less likely to be demonstrated where the party who might object, having knowledge of the individuals involved and their “interests” in the outcome, actually objects to their exclusion from part of the process. Inconsistency between asserting that the full membership should have participation in the ‘show cause process’ and then complaining about the involvement of two of the three members who were not on the committee in the final decision-making process, is relevant to an assessment of whether the apprehension of bias is reasonable.

126 The committee process itself did not breach obligations of fairness. There is nothing objectionable in principle to a decision-maker delegating part of its functions, in relation, for example, to the taking of submissions and the conduct of consultations, to an officer or committee of its members: see South Australia v O’Shea (1987) 163 CLR 378. The committee process was not attended by any reasonable apprehension of bias. Its recommendation adverse to the Cessnock Club was therefore not attended by any reasonable apprehension of bias.

127 Finally, the Court was not directed to any material in which the Cessnock Club complained about the retention by the full membership of the Appellant of the power to reject, should circumstances arise, the decision of its committee. Nor did it challenge the decision made on 14 March (or indeed that taken on 20 February), because of the involvement of Messrs Mangafas and Zammit. It is only at the last stage, when a decision must be made between the three Hunter clubs, that their involvement is said to be unacceptable yet, despite that, it wanted at least one of Mr Mangafas and Mr Zammit on the committee.

Orders

128 For the reasons set out above, the appeal should be upheld and the orders made by the primary judge should be set aside.

129 The orders were in any event inappropriate. In the course of his Honour’s reasons, he expressed the view that each of the challenged decisions should be set aside, although at [74] he recognised the possibility that “the impact on third parties” and “any discretionary considerations” might need to be taken into account. Ultimately, his Honour made orders which declared that each of the challenged decisions was made in breach of the rules of procedural fairness. Generally speaking, that would mean that the decisions were invalid: see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [59] and [80] (Gaudron and Gummow JJ) and [87] (McHugh J). On the other hand, the declarations did not extend so far.

130 One reason why the decisions may not have been set aside, was that merely to set aside an adverse decision affecting the Cessnock Club would not result in that club being allocated further race dates. To set aside the decision requiring a reduction of 104 race dates over the previous year, may have simply led to a refusal of the Appellant to grant further race dates for budgetary reasons. It was no doubt because of these considerations, that the Cessnock Club sought to set aside decisions which directly affected other clubs. However, no other club was joined to the proceedings, nor was there any consideration of the effect of an order setting aside the allocation of a race date to another club, either with respect to the future or the past. At least in relation to the future, the absence of any valid allocation of race dates would presumably bring the lawfulness of greyhound racing at the TAB clubs to an abrupt halt. That could not have been done without hearing from the other clubs, or at least giving them an opportunity to participate in the proceedings. In a practical and strategic sense, one could understand why Cessnock did not seek to join the other clubs: from the point of view of effective relief, that decision may, however have caused an insuperable problem.

131 Despite the absence of any order, even by way declaration, invalidating the existing decisions, the Court below noted certain undertakings given by the Appellant, namely:

(a) Subject to paragraph (b), to commence the process of reconsidering the primary, regional, venue and calendar determinations by 18 August;

(b) The reconsideration process may be terminated or substantially changed by board resolution of the [Appellant] following any decision on appeal or other agreement by the parties.

(a) Formulation by GRNSW management of a paper for circulation to relevant greyhound racing clubs by 1 September 2006; and

(b) GRNSW accepting submissions from relevant greyhound racing clubs (including the Cessnock and District Agricultural Association Inc) in writing by 22 September 2006.

132 There was no evidence before this Court as to what steps the Appellant had taken pursuant to its undertaking. Nor is it entirely clear what steps it was envisaged the Appellant would take in relation to the exercise of its functions under s 9(2)(d) of the Greyhound Racing Act, which functions had already been exercised. It may have been thought that it was empowered to re-exercise the power, the Court having told it that there had been procedural fairness attending its earlier attempted exercise of the power, in accordance with the principles identified in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. Whether the power to reconsider a decision, if satisfied that it was made without compliance with the obligations of procedural fairness, in relation to one party, was engaged in circumstances where the decision may affect numerous parties, was not debated before this Court and need not be addressed. Similarly, there is no need to address the question of whether the undertaking should have been accepted. If the Court did not set aside the earlier decisions of the Appellant, it could not appropriately have granted mandamus directing the Appellant to reconsider those decisions.

133 Similarly, it could not have awarded any form of relief by way of prohibition or injunction in relation to the taking of steps dependent upon those decisions. In those circumstances, there may be doubt as to whether the Court had power to accept undertakings “because the power to accept undertakings is necessarily confined to the limits which attach to the Court’s power to grant injunctions”: Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 158 (Gibbs CJ, Stephen, Mason and Wilson JJ). At the very least, if the other clubs were entitled to be heard in relation to whether or not orders setting aside the decision were to be made, one might have expected that consent would be obtained to the undertakings by which the Appellant agreed to, in effect treat those decisions as invalid, or they should have been given an opportunity to comment on the undertakings before they were accepted by the Court. Neither of these things appears to have happened.

134 In any event, in accordance with the substantive issues dealt with above, I would propose the following orders:

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Citations

Greyhound Racing NSW v Cessnock & District Agricultural Association [2006] NSWCA 333

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CITATION:	GREYHOUND RACING NSW v CESSNOCK & DISTRICT AGRICULTURAL ASSOCIATION [2006] NSWCA 333 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	6, 7 November 2006
JUDGMENT DATE:	27 November 2006
JUDGMENT OF:	Beazley JA at 1; Hodgson JA at 2; Basten JA at 3
DECISION:	(1) Appeal allowed; (2) Set aside the declarations made in the Common Law Division on 30 June 2006 and the further declarations made on 15 August 2006; (3) Relieve the Appellant of compliance with the undertakings given on 15 August 2006; (4) Set aside the orders as to costs made on 30 June and 15 August 2006; (5) In lieu of the orders made below, order that the summons be dismissed with costs; (6) Order the Respondent to pay the Appellant’s costs in this Court; (7) Grant the Respondent a certificate under the Suitors’ Fund Act 1951 if otherwise qualified.
CATCHWORDS:	ADMINISTRATIVE LAW – procedural unfairness – statutory body – lack of reasonable opportunity to make submissions – failure to identify criteria for decision- making – what is the operative decision – whether procedural unfairness of earlier decision infected later decision. - ADMINISTRATIVE LAW – procedural unfairness – apprehended bias – application of general law principle to statutory administrative decision-maker – Greyhound Racing Act 2002 (NSW), Schedule 1, cl 10 and 11. - DECLARATORY RELIEF – declarations of procedural unfairness – decisions not set aside – affected parties not joined – undertakings accepted in absence of affected parties.
LEGISLATION CITED:	Commonwealth Authorities and Companies Act 1997 (Cth), s 27F Corporations Act 2001 (Cth), ss 191, 192 Greyhound and Harness Racing Administration Act 2004 (NSW), ss 14, 15 Greyhound Racing Act 2002 (NSW), ss 6, 8, 9, 53, Schedule 1 cls 10, 11, 12, 13, 14Migration Act 1958 (Cth), Part 2, Div 3, Subdivs AB and AC Supreme Court Act 1970 (NSW), s 69
CASES CITED:	Bennetts v Board of Fire Commissioners of NSW (1967) 87 WN (Pt 1) (NSW) 307 Builders’ Registration Board of Queensland v Rauber (1983) 57 ALJR 376 Calvin v Carr [1980] AC 574 Campbelltown City Council v Vegan [2006] NSWCA 284 Carroll v Sydney City Council (1989) 15 NSWLR 541 Dickason v Edwards (1910) 10 CLR 243 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Kioa v West (1985) 159 CLR 550 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381 Muin v Refugee Review Tribunal (2002) 76 ALJR 966 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 The Queen v Marks; Ex parte Australian Building Construction Employees & Builders Labourers’ Federation (1981) 147 CLR 471 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Smiths v Roach [2006] HCA 36; (2006) 228 ALR 262 South Australia v O’Shea (1987) 163 CLR 378 Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 Twist v Randwick Municipal Council (1976) 136 CLR 106 Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78
PARTIES:	Greyhound Racing New South Wales - Appellant Cessnock & District Agricultural Association Inc - Respondent
FILE NUMBER(S):	CA 40452/06
COUNSEL:	J. Griffiths SC/K. Williams - Appellant M.R. Speakman SC/K.G. Oliver - Respondent
SOLICITORS:	Blake Dawson Waldron, Sydney - Appellant Smyth Turner Wall, Cessnock - Respondent
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 30069/06
LOWER COURT JUDICIAL OFFICER:	Hulme J
LOWER COURT DATE OF DECISION:	1 August 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	Cessnock and District Agricultural Association Inc v Greyhound [2006] NSWSC 759