Julien v Racing Penalties Appeal Tribunal of Western Australia

[1999] WASC 163

JULIEN -v- RACING PENALTIES APPEAL TRIBUNAL OF WESTERN AUSTRALIA & ANOR [1999] WASC 163

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 163
Published:	08/09/1999
Case No:	CIV:1851/1999	Heard:	10 AUGUST 1999
Coram:	MILLER J	Delivered:	10/08/99
No of pages:	4	Judgment Part:	1 of 1
Result:	Motion refused
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Parties:	MAXWELL JOHN JULIEN RACING PENALTIES APPEAL TRIBUNAL OF WESTERN AUSTRALIA WESTERN AUSTRALIAN GREYHOUND RACING AUTHORITY STEWARDS
Catchwords:	Prerogative writ Motion for order nisi for Writ of Certiorari Tribunal sending matter to stewards for re-determination Relief by way of prerogative writ inappropriate Turns on own facts
Legislation:	Racing Penalties (Appeals) Act 1990
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : JULIEN -v- RACING PENALTIES APPEAL TRIBUNAL OF WESTERN AUSTRALIA & ANOR [1999] WASC 163 CORAM : MILLER J HEARD : 10 AUGUST 1999 DELIVERED : 10 AUGUST 1999 PUBLISHED : 8 SEPTEMBER 1999 FILE NO/S : CIV 1851 of 1999 MATTER : Application for a Writ of Certiorari against the RACING PENALTIES APPEAL TRIBUNAL OF WESTERN AUSTRALIA BETWEEN : MAXWELL JOHN JULIEN

Applicant

AND

RACING PENALTIES APPEAL TRIBUNAL OF WESTERN AUSTRALIA
First Respondent

WESTERN AUSTRALIAN GREYHOUND RACING AUTHORITY STEWARDS
Second Respondent

Catchwords:

Prerogative writ - Motion for order nisi for Writ of Certiorari - Tribunal sending matter to stewards for re-determination - Relief by way of prerogative writ inappropriate - Turns on own facts

(Page 2)

Legislation:

Racing Penalties (Appeals) Act 1990

Result:

Motion refused

Representation:

Counsel:

Applicant : Mr R E Birmingham QC
First Respondent : No appearance
Second Respondent : Mr R J Davies QC

Solicitors:

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

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

Case(s) also cited:

Nil

(Page 3)

1 MILLER J : The applicant seeks an order nisi for a Writ of Certiorari, calling upon the first respondent to show cause why its decision made on 15 June 1999 upholding the appeal of the applicant and ordering a re-hearing or re-determination of the matter by the second respondent should not be quashed. It is contended that the Tribunal made a number of errors of law on the face of the record revealed in its written reasons for decision. Grounds 2.1, 2.2, 2.3 and 2.4 set out those alleged errors.

2 The purpose of the order nisi stage in these proceedings is to prevent the Court's time being wasted by misguided or trivial complaints of administrative error. An applicant for an order nisi need only demonstrate an arguable case for the relief sought. It is not necessary to show that the case has reasonable or real prospects of success and accordingly the Court will not go into the matter in depth. It has been said that it will grant the order nisi if on a quick perusal of the material it discloses what may on further consideration turn out to be an arguable case.

3 In this matter the Tribunal, having considered the arguments that were put before it, ruled that it was not satisfied that it was a case in which the Tribunal should quash the conviction and uphold the appeal, but rather, it was of the opinion that it was appropriate for the matter to be sent back to the stewards to be re-determined in the light of the fresh evidence before the Tribunal and all other fresh material the stewards may elicit or which may be presented on behalf of the appellant.

4 It is said by counsel for the second respondent that this was a proper exercise of power under the provisions of section 17(9)(b) of the Racing Penalties (Appeals) Act1990. I agree that the provisions of that section do give to the Tribunal the power to send a matter back not just for a complete rehearing, but for a re-determination as is predicated in this instance.

5 It seems to me that there has been an exercise of power by the Tribunal under the powers given to it by the relevant legislation and it is, in my view, inappropriate for this Court to deliberate on the matter in these circumstances. The appeal below was allowed, and the matter has been sent back to the stewards for re-determination in the light of fresh evidence and perhaps other evidence which may be adduced. In these circumstances it would seem that the stewards are the most appropriate body to be responsible for further determination of the issues.

6 In the exercise of the discretion which resides in this Court, it seems to me inappropriate to send the matter to the Full Court. It may be that

(Page 4)

upon reconsideration by the stewards the applicant will be successful. It may be that upon further determination of a host of different matters the stewards will see the case in a different light. If on the other hand the stewards re-determining the matter are said to have made errors which are apparent, then it may be appropriate for the applicant to appeal again to the Tribunal. If the Tribunal is alleged to have made errors on the face of the record, the appropriate prerogative relief can be sought in this Court.

7 I am of the view that it is most appropriate that domestic bodies charged with the responsibility of concluding these matters should be given that opportunity. Here that opportunity has been given by the Tribunal to the stewards by way of re-determination.