Lee v Greyhound Racing Authority

[2004] NSWSC 69

CITATION:	Lee v Greyhound Racing Authority [2004] NSWSC 69
HEARING DATE(S):	16 February 2004
JUDGMENT DATE:	16 February 2004
JURISDICTION:	Common Law Division Administrative Law List
JUDGMENT OF:	Campbell J
DECISION:	Declaration that enquiry had concluded
CATCHWORDS:	ADMINISTRATIVE LAW - application for statutory mandamus under section 65 Supreme Court Act to require stewards enquiry by Greyhound Racing Control Board to be concluded
LEGISLATION CITED:	Supreme Court Act 1970 (NSW)
CASES CITED:	Cotogno v Lamb (1985) 3 NSWLR 221 Dickinson and others v Perrignon and others [1973] 1 NSWLR 72 Engineers' and Managers' Association and others v Advisory, Conciliation and Arbitration Service [1980] 1 WLR 302; [1980] 1 All ER 896 Re Federal Commissioner of Taxation Ex Parte Australena Investments Pty Ltd and others (1983) 50 ALR 577 Gleeson v New South Wales Harness Racing Authority (1990) 21 ALD 515 Munday v Munday [1954] 1 WLR 1078 Re Australian Broadcasting Tribunal and others; Ex Parte 2HD Pty Ltd (1979) 144 CLR 45 R v Central Professional Committee for Opticians; Ex Parte Brown (1949) 65 TLR 599 R v Commonwealth Court of Conciliation and Arbitration; Ex Parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 Re Real Estate and Business Agents Supervisory Board; Ex Parte Cohen (1999) 21 WAR 158
PARTIES :	Raymond Lee - Plaintiff Greyhound Racing Authority - Defendant
FILE NUMBER(S):	SC 30048/03
COUNSEL:	S Austin - Plaintiff P Callaghan SC; R Rana - Defendant
SOLICITORS:	Lockhart Quinn & Co - Plaintiff Hartmann & Associates - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

CAMPBELL J

MONDAY 16 FEBRUARY 2004

30048/03 RAYMOND LEE v GREYHOUND RACING AUTHORITY

JUDGMENT – Ex Tempore

1 HIS HONOUR: On 12 April 1996 the Singleton Greyhound Racing Club held a race meeting. Mr Lee, the plaintiff in these proceedings, had a dog called Hua Blue which ran in race 9. A urine sample was taken from the dog after the race, and sent for analysis. The analysis results which came back showed that there were substances in the urine being tested which were not supposed to be there. Other analysis also showed, however, that the urine which had been tested was human urine, not dog urine.

2 On 21 January 1996 the Greyhound Racing Control Board (a body which then had control of greyhound racing in New South Wales and, it is accepted on both sides, was the predecessor of the defendant) wrote to Mr Lee saying that it had decided to have an inquiry. The inquiry was one which was held pursuant to a resolution passed on 28 June 1996 that:

“The functions of Board stewards, R Potter, S Howard and G Anderson be extended to enable them to conduct an inquiry into a positive urine specimen obtained at Singleton on April 12, 1996.”

3 The three stewards heard evidence on two days, 9 July 1996 and 29 August 1996.

4 At the conclusion of the hearing on 9 July 1996 Mr Potter, who was acting as chairman of the panel of stewards, said to Mr Lee:

“Okay, well that concludes the evidence we wish to take at this stage of the inquiry, Mr Lee. I appreciate your patience with us today. It has been a long hearing and sit down and we thank you for your cooperation and you will be advised as soon as possible when we can resume and hopefully come to some sort of decision in relation to this matter.”

5 Towards the close of the further evidence which was heard on 29 August 1996 Mr Potter said to Mr Lee:

“What we intend to do Mr Lee is to quickly go over the evidence which we have taken today in relation to what was taken in the room and the physical evidence in the kennels and hopefully we will get back to you within a week or so and give you an outcome in relation to our findings in this inquiry.
So at this stage the inquiry stands adjourned for a short time and we will be in contact with you.”

6 A little later in the hearing on 29 August 1996, Mr Potter told Mr Lee:

“… we will contact you as I said within a week to ten days.”

7 The stewards wrote a memorandum on 11 September 1996 to Mr Cartwright, a senior executive with the Board. It was as follows:

“Board Stewards, Mr R Potter, Mr S Howard and Mr G Anderson which were appointed to conduct an inquiry by the Board into the positive urine specimen obtained from the greyhound 'Hua Blue' a competitor in Race 9 at the meeting conducted by the Singleton Greyhound Club held at Singleton on 12 April, 1996 today finalised their inquiry concerning the above matter .
The Stewards commenced this inquiry at the Boards offices, on Tuesday, 9 July, 1996 and took evidence from the trainer of the greyhound Hua Blue, Mr R Lee, the Singleton Greyhound Club's Veterinary Surgeon, Mr F Hay, the Chief Kennel Attendant, Mrs L Gibbs, Mr H Van Den Berg and Mr. D Kiernan, Board Stewards appointed to act at the abovementioned meeting, Mr W Billett Board Steward who transported the urine specimen to the AJC from the Board's offices, Mr P Reilly, Deputy Chief Analyst, AJC Laboratory, Mr A Duffield, Director of the AJC Laboratory, Dr Kazlauskas Director of the Australian Sports Drug Testing Laboratory.
The Stewards after considering evidence from all of the above witnesses resumed this inquiry at the offices of the Singleton Greyhound Racing Club on Thursday, 29th August, 1996 and again took evidence from Mr R Lee, Mr F Hay, Mrs L Gibbs and Mr H Van Den Berg. At this time the stewards took each witness individually through the security process of the Singleton Greyhound Club and also posed many questions with regards to these matters.
The Stewards after considering evidence taken from all of the above witnesses on two occasions are unable to determine how or when the urine sample submitted for the greyhound 'Hua Blue' became contaminated with human urine or was swapped or added to. The stewards have examined all security measures with regards to the collection, transportation and analysis of the sample and cannot determine if or when this procedure was breached.
The Stewards are unable to substantiate the laying of any charges with regards to any person involved in this inquiry and therefore recommend that this matter be forwarded to the Police for investigation as the Stewards have exhausted all avenues available to them at this time.
The Stewards wish it to be noted that all witnesses co-operated fully with the Stewards during the duration of this inquiry.
Stewards' decision handed down 11th September, 1996 . Stewards concerned R Potter, S Howard and G Anderson.” (emphasis added)

8 On 11 September 1996 a News Release from the Greyhound Racing Control Board, issued with an invitation for interested persons to contact either a named Public Relations Consultant or Mr Cartwright, said:

“The Board Stewards appointed to conduct an inquiry into the positive urine specimen obtained from the greyhound 'HUA BLUE', a competitor in Race 9 at the meeting conducted by Singleton Hunter Valley MCC on April 12, 1996 today resolved to adjourn the Inquiry indefinitely.
The Stewards have taken lengthy evidence from the greyhound's trainer, the Singleton Club's Veterinary Surgeon, and Kennel Attendant together with the Hunter Valley based Board Stewards.
Despite an exhaustive Inquiry the Stewards at present are unable to determine how the urine specimen came to be consistent with being of human origin.
The Stewards closely examined all security measures in relation to the collection and transportation of the urine sample and at this stage are unable to substantiate the laying of any charge or charges against any persons.
The Stewards have now exhausted all lines of inquiry available to them and have recommended that in the light of the seriousness of the matter, all evidence and documentation be forwarded to the NSW Police for investigation.
The Stewards have emphasised that all persons connected with the Inquiry cooperated fully with them during this extensive Inquiry.”

9 Mr Cartwright wrote to the Commissioner of Police on 11 September 1996 saying that all evidence and documentation in the case was to be forwarded to the police for investigation and his response in due course would be appreciated.

10 On 25 July 1997 the minutes of the Authority contained a note of certain advice received from the New South Wales Police Service that:

“Following interviews with several parties in relation to the 'Hua Blue' inquiry the police could find no evidence capable of proving a criminal charge against any person in relation to the matter. However, the police indicated that should further evidence be forthcoming it would continue the investigation.”

11 It is clear on the evidence before me that the police inquiry finished years ago and the police file has been closed.

12 In November 2002 the solicitors for Mr Lee wrote to the defendant requesting that the inquiry resume and proceed to finality. That request was not agreed to.

13 The plaintiff took out a summons commencing these proceedings on 27 May 2003. The orders sought were:

“1. Order, pursuant to section 65 of the Supreme Court Act, that the defendant forthwith cause to be re-convened and determined to finality the steward's inquiry [known as "The inquiry into the positive urine specimen obtained from the greyhound "Hua Blue" a competitor in race 9 at the meeting conducted by the Singleton Greyhound Racing Club on 12 April 1996"] which became part-heard and adjourned indefinitely before stewards Potter, Howard and Anderson on or about 29 August 1996.
2. Such other orders as the Court thinks fit.”

14 Mr Potter is someone who, it is common ground, has been dismissed by the Authority. He would not be in a position to participate in any inquiry which might resume.

15 Arguments were presented on several topics. One concerned whether there was a duty on the stewards to complete an inquiry which they had embarked upon. It is well established, in the law concerning mandamus, that if a duty is placed on a body to inquire or to do some act, then if it delays unreasonably in performing its functions, that can amount to a refusal, which can justify the award of a mandamus: Re Federal Commissioner of Taxation Ex Parte Australena Investments Pty Ltdand others (1983) 50 ALR 577; R v Central Professional Committee for Opticians; Ex Parte Brown (1949) 65 TLR 599 at 600; Engineers’ and Managers’ Association and others v Advisory, Conciliation and Arbitration Service [1980] 1 WLR 302; Re Real Estate and Business Agents Supervisory Board; Ex Parte Cohen (1999) 21 WAR 158; R v Commonwealth Court of Conciliation and Arbitration; Ex Parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 398-399; Dickinson and others v Perrignon and others [1973] 1 NSWLR 72; Re Australian Broadcasting Tribunal and others; Ex Parte 2HD Pty Ltd (1979) 144 CLR 45 at 49. It is arguable that this line of authority applies equally to the statutory mandamus available under s.65 Supreme Court Act 1970 (NSW).

16 In the present case there may be some basis for concluding that, while the power of the stewards to embark on an inquiry is discretionary, once they have decided to embark on an inquiry there is a duty to complete it. However, it is not necessary for me to base my decision on such a ground.

17 Submissions were also made about whether, given that Mr Potter would no longer be available to be part of any resumed inquiry, it was possible for the inquiry to resume at all: Gleeson v New South Wales Harness Racing Authority (1990) 21 ALD 515; Munday v Munday [1954] 1 WLR 1078; Cotogno v Lamb (1985) 3 NSWLR 221.

18 In light of the view that I have come to, it is not necessary to consider those submissions.

19 Questions were also agitated about whether there was a discretionary reason for refusing to grant any remedy arising from the plaintiff's long delay in seeking it, or from his having been found guilty of certain charges in the past and being currently under a disqualification which will expire in a few weeks. Again, I do not need to base the decision on that ground.

20 The plaintiff's counsel has informed the court that the plaintiff's prime interest in bringing these proceedings is to bring to a resolution the situation concerning the inquiry. The plaintiff would support the granting of a declaration that the inquiry is at an end, if that be the appropriate relief for the court to grant. In my view it is.

21 It is hard to think of a clearer termination of an inquiry than a memorandum which the stewards wrote to Mr Cartwright on 11 September 1996. It appears that there may have been some desire, on the part of people within the Control Board, other than the stewards, to keep the inquiry alive. However, the stewards had already terminated it.

22 If, at some stage in the future, any further evidence concerning the running of Hua Blue in race 9 at Singleton on 12 April 1996 were to come to light, I see nothing which would stop a further inquiry from being commenced. Any such inquiry would, of course, be subject to the rules of procedural fairness and the delay in bringing any such further inquiry might impact on whether such an inquiry, if started, ought be allowed to continue. However, precisely the same considerations apply if the inquiry held before Messrs Potter, Howard and Anderson were, in some fashion, to be revived or continued after so many years.

23 I declare that the inquiry before Messrs Potter, Howard and Anderson into the positive urine specimen obtained at Singleton on 12 April 1996 has concluded.

24 The plaintiff seeks costs. The declaration which has been made is not one which the plaintiff sought until the hearing today was some way advanced. It is also one which is logically inconsistent with the primary order which the plaintiff sought in his summons.

25 In those circumstances I make no order as to costs.

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Last Modified: 02/27/2004