Harvey v The Racing Penalties Appeal Tribunal of Western Australia - [2000] WASC 299

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: HARVEY -v- THE RACING PENALTIES APPEAL TRIBUNAL OF WESTERN AUSTRALIA & ANOR [2000] WASC 299

CORAM: HASLUCK J

HEARD: 4 DECEMBER 2000

DELIVERED : 4 DECEMBER 2000

PUBLISHED : 7 DECEMBER 2000

FILE NO/S: CIV 2654 of 2000

BETWEEN: PAUL JAMES HARVEY
Applicant
AND
THE RACING PENALTIES APPEAL TRIBUNAL OF WESTERN AUSTRALIA
First Respondent
THE STEWARDS OF THE WESTERN AUSTRALIAN TURF CLUB
Second Respondent

Catchwords:

Application for an order nisi for a Writ of certiorari against the Racing Penalties Appeal Tribunal - Appeal against ruling by stewards - Hearing by stewards followed by a second hearing concerning same race and similar matters - Whether reasonable apprehension of bias - Obligation of Tribunal to provide reasons for decision - Stay of suspension order - Arguable case

Legislation:

Racing Penalties (Appeal) Act 1990, s 11, s 13, s 14, s 21

Rules of the Supreme Court, O 56 r 1, r 5(2)

Result:

Order nisi granted

Representation:

Counsel:

Applicant:     Mr P E Harris
First Respondent           :     No appearance
Second Respondent       :     Mr R J Davies QC & Mr A J Carr

Solicitors:

Applicant:     D G Price & Co
First Respondent           :     No appearance
Second Respondent       :     Freehills

Case(s) referred to in judgment(s):

Craig v South Australia (1995) 184 CLR 164
Gibbs v Racing Penalties Appeal Tribunal, unreported; SCt of WA; Library No 970002; 14 January 1997
Harper v Racing Penalties Appeal Tribunal, unreported; SCt of WA (Kennedy J); Library No 930738.1; 26 November 1993
JRL; Ex parte CJL (1986) 161 CLR 342
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656
R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338
Re Western Australian Trotting Association & Ors; Ex parte Chambers (1992) 9 WAR 178
Stampalia v The Racing Penalties Appeal Tribunal of Western Australia [2000] WASCA 24

Case(s) also cited:

Anderson v Racing Penalties Appeal Tribunal of Western Australia & Anor, unreported; SCt of WA; Library No 970504; 3 October 1997
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 44 CLR 13
Re Capoblanco; Ex parte Castelli, unreported; SCt of WA (Parker J); Library No 980567; 25 September 1998

HASLUCK J: This is an application by way of originating motion for an order nisi for a writ of certiorari and a stay of proceedings directed to the first respondent, The Racing Penalties Appeal Tribunal of Western Australia, and to the second respondent, The Stewards of the Western Australian Turf Club.
The application is brought pursuant to O 56 r 1 of the Supreme Court Rules whereby an application of this kind shall, in the first instance, be for an order calling upon the parties interested in resisting the application to show cause why the writ should not be issued.
The application may be made to the Court ex parte, and must be supported by affidavit. In the present case, I had before me the affidavit of the applicant sworn 28 November 2000, the affidavit of David Price sworn 30 November 2000 and the opposing affidavit of Finlay Powrie sworn 4 December 2000, this latter affidavit being filed on behalf of the second respondent.
The relief sought includes an application for a stay of proceedings. Order 56 r 5(2) provides that an order nisi for certiorari shall, if the Court so directs, operate as a stay of the proceedings in question until the determination of the application, or until the Court otherwise orders.
The evidentiary materials reveal that the applicant is a well‑known jockey who was the rider of the horse Petite Angel in race 2, the Tetreen Handicap over 1650 metres at Belmont Park on Saturday, 9 September 2000. Subsequent to the race, the chairman of stipendiary stewards, Mr Powrie, presided over an "objection hearing" concerning an incident that took place during the race. He was accompanied by four other stewards, including Mr R J Mance.
At the commencement of the hearing, Mr P King, the rider of another horse, Our Emma, was asked to state his grounds of objection to what had occurred. His objection was, in essence, that while coming into the straight he was directly behind Mr Harvey's mount, Petite Angel, whereupon Mr Harvey commenced to ride his horse hard under the stick, shifted inwards, and in doing so crowded and impeded Mr King's mount, with the result that Mr Harvey took Mr King's run from the 250 to the winning post.
The stewards upheld the objection. This led to the placings being amended so that Our Emma ridden by Mr King finished fourth and the previously first‑placed Petite Angel ridden by Mr Harvey was relegated to fifth position.
Later on the same day, Mr Harvey was charged with careless riding under Australian Rule of Racing 137(a) which provides that any rider may be punished if, in the opinion of the stewards, he is guilty of careless, improper, incompetent or foul riding. More particularly, the charge was that "you have allowed Petite Angel to shift in over the concluding stages of race 2 the Tetreen Handicap today at Belmont, thereby causing Our Emma ridden by Paul King to be severely crowded and restrained and in turn, shift in onto Santa Rica ridden by Jeff Noske which has been crowded and causing that mare to strike the running rail."
The same group of stewards inquired into this charge and they were eventually satisfied that "your shifting has caused the crowding". The stewards then determined that the applicant should be suspended for a period of 23 days.
I note in passing that it is clear from the transcript of the second hearing that evidence received at the first hearing was treated as part of the evidence at the second hearing. One of the stewards, Mr Mance, provided his summation of the race, including this comment: "I thought Mr Harvey allowed Petite Angel then to shift inwards and as a result Mr King has had to restrain Our Emma … ". Further, in questioning the rider of Our Emma at the second hearing, the chairman referred to Mr King's evidence at the earlier hearing as being quite strong in that his running was taken and noted that the severity of the check was significant.
The applicant lodged a notice of appeal against the conviction and the penalty and was able to obtain an order from the Tribunal granting a stay of the penalty until the appeal was disposed of.
The applicant forwarded formal grounds of appeal to the first respondent which contended that the stewards erred in proceeding to hear and determine the charge against the applicant, as they had already determined as a question of fact the central factual issue against the applicant in the course of an earlier hearing and had upheld the protest covering the same incident. The appeal document also asserted that the stewards failed to make any finding of fault in relation to another horse and failed to take into account the contributory role of the horse, Our Emma, in causing the crowding the subject of the charge.
On 23 November 2000, after hearing submissions from counsel in which reference was made to the grounds of appeal, the Tribunal dismissed the appeal against both conviction and penalty and indicated that written reasons for decision would be provided at a later date. The stay of penalty previously granted was set aside, with the result that at the time the matter came before me 12 days of the 23‑day period of suspension had already expired.
The Tribunal is constituted pursuant to provisions of the Racing Penalties (Appeal) Act 1990. By s 11 of that Act, the Tribunal shall act according to equity, good conscience and the substantial merits of the case. An appeal shall be heard and determined upon the evidence at the original hearing. By s 13, a person who is aggrieved by a determination of stewards imposing any suspension may appeal to the Tribunal. By s 14, a determination of the Tribunal in relation to an appeal shall be taken to be the determination of the stewards from which the appeal was make. By s 14(1)(b) such a determination is final and binding and is not subject to further appeal or review.
Section 21 of the Act provides that where within 14 days after the Tribunal has given notice of its determination a party requests the Registrar to furnish reasons in writing for the determination, the Tribunal shall comply with the request of that party and set out in writing the reasons for the determination.
In the present case, the applicant's solicitor, Mr Price, on Monday, 27 November 2000, made a request for the Tribunal's written reasons for decision, but, as at the date of the hearing before me, the reasons had not been provided. Mr Price was informed that the relevant correspondence had been forwarded to the chairperson.
The opposing affidavit of Mr Powrie did not dispute the sequence of events I have just described, but noted that there were some other proceedings in motion concerning the applicant, the consequence of which could be, absent any stay granted by the Tribunal, that the applicant might not be at liberty to continue riding irrespective of any orders made by the Supreme Court in response to the present application.
In regard to the present application, the applicant submits that the Tribunal made an error of law on the face of the record, alternatively, a jurisdictional error in that the Tribunal has failed to publish reasons for its decision ("the first ground") and has failed to find that there was a reasonable apprehension of bias on the part of the stewards who conducted the inquiry on 9 September 2000 in that the stewards who conducted the inquiry and heard and determined the charge of careless riding against the applicant had previously adjudicated upon the central facts relating to the charge during the course of an objections hearing held earlier on 9 September 2000, at which time the stewards upheld an objection directed against the applicant by jockey, Paul King ("the second ground").
The applicant says in his affidavit that as a suspended jockey he is currently unable to ride horses in events run by the WA Turf Club, or in any other place in Australia. He is currently aged 30 and is a leading Western Australian jockey. He has offers for rides in coming weeks and his income earning capacity will be prejudiced if the suspension period is enforced.
The Full Court has ruled previously that review by certiorari whether for excess of jurisdiction or error of law on the face of the record is not excluded by s 14(1)(b) of the Act: Re Western Australian Trotting Association & Ors; Ex parte Chambers (1992) 9 WAR 178. The decided cases also indicate that an order nisi for a writ of certiorari can be issued by the Supreme Court in the exercise of its supervisory jurisdiction in circumstances where an arguable case has been demonstrated. See Gibbs v Racing Penalties Appeal Tribunal, unreported; SCt of WA (Wallwork J); Library No 970002; 14 January 1997; Stampalia v The Racing Penalties Appeal Tribunal of Western Australia [2000] WASCA 24.
It is also material to note that in Harper v Racing Penalties Appeal Tribunal, unreported; SCt of WA (Kennedy J); Library No 930738.1; 26 November 1993 Kennedy J was prepared to grant an order nisi, notwithstanding that there seemed to be "formidable obstacles in the path of the applicant's success" in circumstances where he ultimately concluded that the applicant had shown that there was a relevantly arguable case. He was also prepared to grant an order for stay "in order to avoid the period of disqualification being served before the matter comes on for hearing in the Full Court."
In Craig v South Australia (1995) 184 CLR 164, the High Court noted that certiorari enables the quashing of the impugned order or decision upon one or more of a number of distinct, established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and error of law on the face of the record.
The High Court went on to observe that the determination of the precise documents that constitute the record of the inferior court for the purpose of an application for certiorari is ultimately a matter for the court hearing the application. The record will usually comprise the documents that initiate the proceedings, which ground the jurisdiction of the court, the pleadings and the determination.
The High Court also observed that, in the absence of some statutory provision to the contrary, the record of an inferior court for the purposes of certiorari does not ordinarily include the transcript, the exhibits or the reasons for decision. If the transcript and the reasons were thought to constitute the record, then this would go a long way towards transforming certiorari into a discretionary general appeal for error of law, and this would be contrary to the tenor of the previous authorities.
It is apparent from the decided cases that a decision can be impugned for lack of procedural fairness in circumstances where the adjudicating Tribunal is actually biased or the circumstances give rise to a reasonable apprehension of bias.
The principle was explained by Mason J in JRL; Ex parte CJL (1986) 161 CLR 342 at 351. A Judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues. This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice. See also Livesey v New South Wales Bar Association (1983) 151 CLR 288.
In Stampaliav The Racing Penalties Appeal Tribunal of Western Australia (supra) the Full Court recognised that the rules concerning bias could be relied upon in order to impugn a decision of The Racing Penalties Appeal Tribunal, although Owen J, as the author of the principal judgment, was not persuaded on the facts of that case that what occurred could be said to qualify as a breach of the rules of natural justice under the heading of reasonable apprehension of bias.
My attention was also drawn to the recent case of Julian v Racing Penalties Appeal Tribunal (Supreme Court file CIV 1851 of 1999) in which his Honour Ipp J on 4 September 2000 granted an order nisi and a stay order in a case in which there was an allegation of error of law by the Tribunal in not finding a reasonable apprehension of bias on the part of the stewards. The applicant for relief in that case alleged that what happened at a first hearing coloured the outcome of findings made at a second hearing. The Full Court has not yet had occasion to rule on the matters in issue in that case.
In reviewing the decided cases, I must also take account of the decision of the High Court in Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, which bears upon the first ground in the present case.
The High Court held that while the giving of reasons may ordinarily be an incident of the judicial process, there is no justification for regarding rules that govern the exercise of judicial functions as necessarily applicable to administrative functions. The suggested principle that a body exercising discretionary administrative powers must give reasons to enable affected persons to seek judicial review would undermine the established rule that reasons do not form part of the record, for the purposes of certiorari, unless the Tribunal chooses to incorporate them. R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338 at 352.
On the other hand, Deane J noted at 676 that the common law rules of natural justice or procedural fair play are neither standardised nor immutable. They depend upon the particular statutory framework within which they apply and upon the exigencies of the particular case. It may be possible to discern in statutory provisions a legislative intent that the particular decision‑maker should be under a duty to give reasons or to accept that special circumstances might arise in which contemporary standards of natural justice or procedural fair play demand that a decision‑maker provide reasons for a decision to a person whose property, rights or legitimate expectations are adversely affected by it.
He went on to say that "where such circumstances exist, statutory provisions conferring the relevant decision‑making power should, in the absence of a clear intent to the contrary, be construed so as to impose upon the decision‑maker an implied statutory duty to provide such reasons."
I have already noted that the statutory provisions in the present case include a specific provision, namely, s 21, which imposes an obligation to provide reasons in response to a request. No specific period for attending to the request is prescribed, but it is apparent from the reasoning of Deane J that the request must be attended to within a reasonable time and what constitutes a reasonable time will be influenced by the expectations of the parties and other relevant circumstances.
Against the background of the decided cases, I must now return to the two grounds for relief relied upon by the applicant in the present case. In regard to each issue, I need only be persuaded that the applicant has made out an arguable case.
As to the failure to provide reasons, I consider, having regard to the reasoning of Deane J in Osmond's case (supra), that the applicant has made out an arguable case. By s 21 of the Act, the Tribunal is required to furnish written reasons for decision upon request. Given the limited duration of the suspension period imposed and the period of suspension already served, further delay would render the process of judicial review by the Court nugatory unless reasons are provided promptly.
As to the second ground concerning a reasonable apprehension of bias, it seems to me that an arguable case has been made out. The stewards who conducted the first hearing made a finding adverse to the applicant upon the manner in which the race was run. They arrived at a similar conclusion shortly afterwards at the second hearing, and there are indications that the evidence received at the first hearing, and the view of that evidence taken by Mr Mance and by the chairman had an effect upon the formulation of the charge at the second hearing, and upon the outcome. In those circumstances, a fair‑minded observer might reasonably apprehend that the outcome of the second hearing was a foregone conclusion. The stewards would naturally be inclined to arrive at the same conclusion when the same facts were reviewed for the purposes of the second hearing. Indeed, to an observer, the stewards might seem to be virtually obliged to make a finding adverse to Mr Harvey at the second hearing, for any other finding could be viewed as casting doubt on the first verdict which had already taken effect.
It is true, technically, that the issues in the two hearings were not precisely the same, in that the first hearing was an objections or protest hearing, while the second hearing involved a specific allegation of careless riding under Australian Rule of Racing 137(a). Nonetheless, the underlying reality was that the stewards were inquiring into an allegation of crowding on both occasions and it is clear from the fact that the placings were revised as a consequence of findings made at the first hearing that determinations adverse to the applicant were made at that hearing.
It follows that, in my view, the applicant has made out an arguable case. I express no opinion as to the weight of that case in the final analysis, but it does seem to me against the background I have described that the Court in the exercise of its supervisory jurisdiction should make the order nisi.
Counsel for the second respondent argued strongly that in the absence of any formal reasons provided by the Tribunal, it was not possible to make a determination as to whether the Tribunal had erred in law or failed to observe the rules of procedural fairness. I have to say, however, that I am not persuaded to that point of view. It emerges from a review of the decided cases that the record of the Tribunal below is generally thought to be constituted by the initiating document and by the determination. The Supreme Court is entitled to exercise it supervisory jurisdiction upon the basis of these materials. In the present case, it is quite apparent from the appeal document that the reasonable apprehension of bias issue was raised with the Tribunal, but not acted upon.

One must also recognise, as appears from s 14 of the Act, that the determination of the Tribunal in relation to an appeal is taken to be the determination of the stewards, with the result that any procedural irregularities affecting the determination of the stewards can be taken as affecting the determination of the Tribunal.
When I turn to the question of the order for a stay of proceedings, I incline to the view expressed by Kennedy J in Harper's case (supra) that a stay should be granted in order to avoid the period of suspension being served before the matter comes on for hearing in the Full Court, otherwise the relief obtained by way of order nisi will prove to be nugatory. This is consistent with the notion that interim relief should be granted in order to preserve the subject matter of the action pending a final determination of the rights of the parties.
I will allow to the parties liberty to apply for any further orders that may be required.