O'heare v Racing Penalties Appeal Tribunal of Western Australia
[1999] WASCA 41
•18 MAY 1999
O'HEARE -v- RACING PENALTIES APPEAL TRIBUNAL OF WESTERN AUSTRALIA & ANOR [1999] WASCA 41
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 41 | |
| Case No: | CIV:1239/1999 | 18 MAY 1999 | |
| Coram: | MALCOLM CJ IPP J STEYTLER J | 18/05/99 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi discharged | ||
| PDF Version |
| Parties: | DAVID ANDREW O'HEARE RACING PENALTIES APPEAL TRIBUNAL OF WESTERN AUSTRALIA THE STEWARDS OF THE WESTERN AUSTRALIAN TURF CLUB |
Catchwords: | Prerogative writs Writ of certiorari Racing Appeals Tribunal No error on face of record False statement by apprentice jockey regarding failure to ride trackwork Replacement of apprentice as jockey in race because of failure False statement "in respect of any matter in connection with the administration or control of racing" Australian Rules of Racing r 175(gg) Administrative law Racing Penalties Appeals Tribunal an administrative tribunal Identification of range of penalties Error of fact not jurisdictional error of law |
Legislation: | Nil |
Case References: | Anderson v Racing Penalties Appeal Tribunal, unreported; FCt SCt of WA; Library No 970504; 3 October 1997 Burswood Management Ltd & Ors v Attorney-General (Cth) & Anor (1990) 23 FCR 144 Craig v South Australia (1995) 184 CLR 163 Western Australian Trotting Association (1992) 9 WAR 178 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : O'HEARE -v- RACING PENALTIES APPEAL TRIBUNAL OF WESTERN AUSTRALIA & ANOR [1999] WASCA 41 CORAM : MALCOLM CJ
- IPP J
STEYTLER J
- Applicant
AND
RACING PENALTIES APPEAL TRIBUNAL OF WESTERN AUSTRALIA
First Respondent
THE STEWARDS OF THE WESTERN AUSTRALIAN TURF CLUB
Second Respondent
Catchwords:
Prerogative writs - Writ of certiorari - Racing Appeals Tribunal - No error on face of record - False statement by apprentice jockey regarding failure to ride trackwork - Replacement of apprentice as jockey in race because of failure - False statement "in respect of any matter in connection with the administration or control of racing" - Australian Rules of Racing r 175(gg)
(Page 2)
Administrative law - Racing Penalties Appeals Tribunal an administrative tribunal - Identification of range of penalties - Error of fact not jurisdictional error of law
Legislation:
Nil
Result:
Order nisi discharged
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 : Freehill Hollingdale & Page
Case(s) referred to in judgment(s):
Anderson v Racing Penalties Appeal Tribunal, unreported; FCt SCt of WA; Library No 970504; 3 October 1997
Case(s) also cited:
Burswood Management Ltd & Ors v Attorney-General (Cth) & Anor (1990) 23 FCR 144
Craig v South Australia (1995) 184 CLR 163
Western Australian Trotting Association (1992) 9 WAR 178
(Page 3)
1 MALCOLM CJ: This is the return of an order nisi for a writ of certiorari made on 12 and 19 March 1999 by which it was ordered that the first respondent, the Racing Penalties Appeal Tribunal of Western Australia ("the Tribunal"), do show cause before this Court why a writ of certiorari should not be issued to quash the decision of the first respondent made on 18 February 1999, whereby the first respondent dismissed the applicant's appeal against his conviction and penalty upon the ground that the first respondent made an error of law on the face of the record, in that in its written reasons for decision the first respondent:
(1) erred in law in failing to find that the false statement made by the applicant, which concerned his social life, was not in respect of a matter connected with the administration or control of racing as required by a proper construction of Australian Rules of Racing r 175(gg);
(2) erred in law in failing to find that as Australian Rule of Racing ("ARR") 175(gg) was an offence, provision upon a proper construction of the subrule of "substantial" connection with the administration or control of racing was required which substantial connection was on the facts lacking.
2 By a supplementary order made on 19 March 1999 the applicant was given leave to include a third ground, namely that the first respondent:
"erred in law in failing to correctly identify the range of penalties usually adopted for an offence of this nature and in the circumstances made an error of law when imposing the penalty upon the applicant."
3 The first respondent is an administrative tribunal which is of a kind which does not exercise judicial power. In Anderson v Racing Penalties Appeal Tribunal, unreported; FCt SCt of WA; Library No 970504; 3 October 1997, at 8 Steytler J (with whom the other members of the court agreed) said:
"It was common cause, at the hearing of the application, that the Tribunal is amenable to a writ of certiorari for errors of law on the face of the record or for excess of jurisdiction (see WA Trotting Association; Ex parte Chambers (1992) 9 WAR 178 at 181). It was also common cause that if an administrative tribunal (as the Tribunal is) makes an error of law which causes it to identify a wrong issue, ask itself a wrong question, ignore relevant material or rely on irrelevant material, and the
(Page 4)
- tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers and makes a jurisdictional error which will invalidate any order or decision of the tribunal which reflects it (see Craig v South Australia (1995) 184 CLR 163 at 179). The applicant submits that the errors contended for it are each jurisdictional errors falling in one or more of these categories."
4 The position in the present case is the same. The applicant was charged by the second respondents (also referred to as "the Stewards") under ARR 175(gg) which provides:
"The Committee of any Club or the Stewards may punish:
…
(gg) any person who makes any false or misleading statement or declaration in respect of any matter in connection with the administration or control of racing."
5 The charge laid against the applicant was that he had made:
"… a false statement when questioned on 15 January 1999 in relation to your movements on the evening of Thursday, 14 January 1999."
6 The charge was laid in the context of an inquiry by the Stewards held on 18 January 1999. The applicant, together with a Mr M Williams, his trainer and master, had been called before the Stewards. The circumstances giving rise to the inquiry, as they were outlined by the Chairman, were that on Friday, 15 January 1999 he received a telephone call from the trainer Mr Williams in relation to a horse, named "King and Ace", which was engaged to run in a race on Saturday, 16 January 1999.
7 Mr Williams requested that the applicant be replaced as the rider of that horse because the applicant had failed to attend trackwork on the morning of Friday, 15 January. The Chairman advised Mr Williams that he would contact the applicant regarding the matter. He contacted the applicant and requested that he attend at his office that afternoon, which he did.
8 The applicant attended the Chairman's office with a Mr Wagener. The Chairman inquired of the applicant the reason why he did not ride trackwork on Thursday, 14 January (which was obviously an error as
(Page 5)
- intended to mean Friday, 15 January) and the applicant's movements on the evening of Thursday, 14 January. They discussed Mr Williams' request to replace the applicant on King and Ace and his failure to ride trackwork on Friday morning; that is to say, Friday, 15 January.
9 The Chairman then convened an inquiry on 18 January 1999 at which he announced that the inquiry then being conducted by the Stewards was into the evidence which the applicant gave at the interview on 15 January. During the course of the proceedings, the Chairman stated that when the applicant attended his office on Friday, 15 January the applicant had been questioned regarding the reason:
"… why you failed to ride on January 14 and you said that you had been ill. You were down to ride two horses on that day: in race 2, Trade Show, and in race 3, Trapdoor."
10 The applicant agreed that this was correct.
11 The Chairman continued that the applicant had then produced a doctor's certificate from Belmont Health Point which said:
"This is to certify that David O'Heare of Redcliffe was unfit for work from 14/1/99 to 14/1/99 inclusive."
12 The applicant agreed that he had told the Chairman on that occasion that he had a case of "gastro".
13 It appears that the Chairman had then questioned the applicant concerning his movements on the Thursday evening of 14 January. The applicant had said he had been on a visit to another apprentice at about 6.00 pm but had spent the evening with his grandmother, with whom he lived, and that he had not gone out in the evening. He said that he had not had anything to drink that evening. He denied that he had gone out to the Post Office nightclub and denied that he had been drinking that night at the Post Office nightclub. He stated that he did not attend track work on the Friday morning because he was ill.
14 As a result of inquiries made and evidence given, it was demonstrated to the satisfaction of the Stewards that the applicant had been drinking at the Post Office nightclub on the evening and into the early hours of the morning of 15 January. At the inquiry on 18 January the applicant admitted that he had not previously been telling the truth about this matter.
(Page 6)
15 It was following that admission that the applicant was charged with the offence of which he was subsequently convicted. In imposing a penalty the Chairman said:
"We consider that a breach of ARR 175(gg) is extremely serious. It is central to the control of racing, that participants, when questioned, state the truth. Failure to do so, eventually affects the Stewards' ability to properly perform their functions. The Stewards are extremely concerned at your lack of remorse and your referral to this matter as a 'big joke'. We have considered the provisions of ARR 196 in this case. It is our decision that your permit to ride in races be suspended for a period of two months."
16 The applicant appealed from that decision to the first respondent, both in respect of the conviction and in respect of the penalty. So far as the conviction is concerned, the substantial point raised was that the statements made relating to the applicant's whereabouts on the night of 14-15 January 1999 did not constitute a "statement or declaration" for the purposes of r 175(gg).
17 It was also contended that the rule had no application to a statement made in the context of answers to questions at an informal interview. Further, it was contended that the Stewards were in error in convicting the applicant of the offence in that they found that the words spoken by the applicant were "in respect of any matter in connection with the administration or control of racing" for the purposes of r 175(gg) of the ARR.
18 The first respondent held that the word "statement" in r 175(gg) did not need to be a formal statement but would include the kind of statement made by the applicant in the course of an inquiry of the kind made of him by the Chairman. There was a distinction to be drawn between r 175(gg) on the one hand and r 197(g) on the other. The latter provision provides:
"Any person who gives at any inquiry or appeal any evidence which in their opinion is false or misleading in any particular."
19 So far as the issue whether the statement made by the applicant was not "in respect of any matter in connection with the administration or control of racing" the Acting Chairman of the first respondent said:
"The phrase 'in connection with' has been the subject of discussion in previous cases. In Burswood Management v
(Page 7)
- Attorney-General (Cth) (1990) FCR 144, the Full Court of the Federal Court said at 146:
'The words "in connection with" are words of wide import and the meaning to be attributed to them depends on their context and the purpose of the statute in which they appear. …
Reference to particular reported cases is of little assistance in determining the meaning of the words "in connection with" because they take their meaning from the particular statute in which they appear.'
Here the purpose of the phrase in the rules of racing is to limit the operation of rule 175(gg) to something relevant to the administration or control of racing. Some limiting words are necessary otherwise the rule would be ultra vires as beyond power. By using the phrase 'in connection with', the draftsman has simply stated the obvious. The words have their ordinary meaning. What is required in each case is to determine whether the facts provide the necessary connection to the administration or control of racing."
20 So far as the relevant questions are concerned, the first respondent took the view that:
"The questions asked were about Mr O'Heare's social life. But his social life had a connection to his work in that he admittedly had not turned up to ride trackwork on the Friday morning. Not turning up for trackwork could lead to action taken under Rule 8(1), which is obviously part of the administration and control of racing."
21 The first respondent also took the view that the applicant himself had accepted that his social life and going out to a nightclub and being late was a matter within the ambit of r 175(gg). In this respect the following exchange took place at the inquiry:
"Chairman: All right, so you haven't been telling us the truth.
O'Heare: No, I haven't.
Chairman: Why haven't you?
(Page 8)
- O'Heare: Oh, there's only one reason, sir, is because I had five rides on the Saturday and there is no way I'd be riding them if I'd told you so and I did want to ride them.
Chairman: But when you asked about this, you categorically stated you hadn't gone out. You told untruths to me, in other words, you lied.
O'Heare: Yes.
Chairman: How do you see how that would have affected your Saturday rides?
O'Heare: I would have got stood down.
Chairman: Why?
O'Heare: Well, I was stood down last time, sir, for not attending track work.
Chairman: So you decided to lie.
O'Heare: Yes."
22 It has been contended that upon a proper construction of r 175(gg) the words spoken by the applicant were not "in respect of any matter in connection with the administration or control of racing". This is said to be so because the words spoken were in respect of the applicant's whereabouts on the evening of 14 January 1999, a matter connected to the applicant's private social life but not the administration or control of racing.
23 In my opinion, the conclusion which was reached by the first respondent in relation to this matter was entirely correct. The investigation which was being conducted by the Stewards, initially by the Chairman, was prompted by the request by the trainer of the horse to substitute another jockey for the applicant in the race in question on 16 January.
24 The inquiry was about the reason for that. The reason which was given was that the applicant had failed to turn up to ride the horse in trackwork on the morning of Friday, 15 January. Both of those issues were issues which were relevant to the control and administration of racing. The reasons why the applicant failed to turn up for trackwork were a proper matter of inquiry in relation to r 175(gg).
(Page 9)
25 The submission which is made that the words "in respect of any matter" qualify the words "in connection with the administration or control of racing" is based upon the premise that the "matter" must itself and in and of itself be directly within the context of the administration or control of racing. I am unable to accept that submission. It is quite clear that the conduct of the applicant on the night prior to his being absent from track work was a matter relevant to and in connection with the administration or control of racing. The relevant matter was his failure to turn up for track work on the morning of 15 January which in turn led to the request that he be substituted by another apprentice jockey to race the horse on the day in question. In my view, there is no substance whatever in the grounds in relation to the conviction of the applicant and in that respect, I would discharge the order nisi.
26 So far as the question of penalty is concerned, the acting Chairperson of the first respondent stated in his reasons for decision:
"The range of penalties imposed for breaches of Rule 175(gg) is between disqualification and small fines. Suspensions of 3, 2 and 1 months are not uncommon. The penalty imposed on Mr O'Heare was therefore within the acceptable range."
27 This is said to constitute a jurisdictional error of law. I am quite unable to see how that would be the case. It was an error of fact, if it was an error at all. As it appears, what is challenged is the statement that: "Suspensions of 3, 2 and 1 months are not uncommon". Since the implementation of the rule there have been suspensions of 3 months and 1 month, according to the printout which has been provided. In relation to one of those penalties, the suspension for 1 month, this was a suspension of a Mr Farrell, another jockey who had made a false statement in support of the false statement made by the applicant himself. That penalty was in the context of the same decision dealt with by the first respondent by way of appeal. In dealing with that matter and setting aside the suspension of Mr Farrell, the first respondent said through the Acting Chairman:
"However, in my view the Stewards erred in principle in not taking into account the fact that Mr Farrell's statement was in a less serious category than Mr O'Heare's. Mr Farrell's false statement could not affect anything which was going to occur on race day, was only ever going to affect any action the Stewards might take against Mr O'Heare and whether they could prove an offence or not was not a matter which was going to affect the industry generally. For that reason in my view
(Page 10)
- Mr Farrell's false statement was in an entirely different category of seriousness than Mr O'Heare's and deserved a different category of penalty."
28 These matters related to the exercise of sentencing discretion. It was submitted that the disparity between the two penalties was unjustified, and so great as to give rise to a justifiable sense of grievance on the part of the applicant, when combined with the error of law to which I have already referred. There was no such error of law. If there was an error, it was an error of fact in relation to misunderstanding the penalties which had been imposed.
29 At all events, the issue of disparity is one which arises in relation to matters of facts and is predicated on matters of facts and does not involve anything which could be remotely characterised as a jurisdictional error.
30 For those reasons, I am of the opinion that the order nisi should be discharged.
31 IPP J: I agree entirely with the learned Chief Justice. I would merely make two brief comments. Firstly, while the first respondent is an administrative tribunal on which judicial power has not been conferred by legislation, it is nevertheless required to act judicially. On this basis the test for jurisdictional error is as set out by Steytler J in Anderson's case.
32 Secondly, the complaint against the applicant was that he lied to the Stewards when they were inquiring about a request to permit a late change of jockeys. That was a lie in respect of a matter in connection with the administration or control of racing. It was immaterial that the false statement itself did not concern the administration or control of racing.
33 STEYTLER J: I agree with what has been said by the Chief Justice and also with the additional comments of Ipp J. I have nothing to add.
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