R v Tasmanian Racing Appeal Board; Ex Parte
[1992] TASSC 92
•29 April 1992
COURT: SUPREME COURT OF TASMANIA
CITATION: R v Tasmanian Racing Appeal Board; ex parte Young [1992] TASSC 92; B11/1992
PARTIES: THE QUEEN
v
TASMANIAN RACING APPEAL BOARD;
EX PARTE THOMAS
FILE NO/S: M347/1991
DELIVERED ON: 29 April 1992
JUDGMENT OF: Zeeman J
Judgment Number: B11/1992
Number of paragraphs: 18
Serial No B11/1992
List "B"
File No M347/1991
THE QUEEN v TASMANIAN RACING APPEAL BOARD; EX PARTE THOMAS YOUNG
REASONS FOR JUDGMENT ZEEMAN J
29 April 1992
Prerogative writs – Certiorari – Tribunal misunderstanding the effect of a rule to be applied by it – Evidence incapable of establishing a breach of the rule in any event.
This is the return of a general order to show cause made by Wright J. on 13 November 1991 requiring the respondent to show cause why a Writ of Certiorari or a Writ of Mandamus or further or other relief should not be granted in respect of a determination of the respondent made on 13 May 1991 whereby the respondent dismissed an appeal by the prosecutor. The relief is sought upon the grounds stated in the general order in the following terms:
"(i)That in making its determination [the respondent] failed to take into account certain relevant considerations namely –
(a) Whether or not the applicant was at the relevant time on land which was Crown land;
(b) The evidence tendered by the applicant that the relevant land was Crown land;
(c) The provisions of the Crown Lands Act 1976;
(d) The provisions of the Roads and Jetties Act 1935;
(ii) That [the respondent] erred as to its own jurisdiction.
(iii) The determination of [the respondent] is on its face, wrong in law.
(iv) [The respondent] acted unreasonably and ultra vires its powers.
(v) [The respondent] took into account certain irrelevant considerations namely –
(a) The control exercised over the relevant land by the Devonport Racing Club;
(b) That horses walk over the relevant land;
(c) The presence of signs on or near the relevant land;
(d) The close proximity of the relevant land to the racetrack."
On 15 January 1991 Mr K R Mulley, described as Chairman of Stewards, wrote to the prosecutor in the following terms:
"The Stewards of the Devonport Racing Club are charging you under AR 182 (1) (a) which states :
'Except with the Consent of the Committee that imposed the disqualification, a person disqualified by the stewards or committee of a Principal Club shall not during the period of that disqualification :–
(a)Enter upon any racecourse or training track owned, operated or controlled by a Club or any land used in connection therewith; '
The basis of the charge is that on Wednesday the 9th of January 1991 you did enter onto the Devonport Racing Club's Car Park area which is land used in connection with racing.
This charge will be heard at the Offices of the Tasmanian Thoroughbred Racing Council at 53 St. John Street, Launceston, on Thursday the 14th February 1991 at 3.00 p.m.
Please note that you are required to attend the Inquiry and should you fail to appear this matter will proceed in your absence.
You may question any witness called by the Stewards, give evidence yourself, or call witnesses to give evidence on your behalf."
That letter correctly set forth the terms of Australian Rules of Racing AR 182(1)(a), although the basis of the charge as expressed in the letter is not entirely accurate in that it assumes that the rule is directed to land "used in connection with racing" rather than to land used in connection with a racecourse or training track owned, operated or controlled by a club. The parties are agreed that the Australian Rules of Racing in evidence, from which the extract contained in the letter is taken, are rules of racing within the meaning of the Racing Act 1983 ("the Act"), s4.
The Stewards duly conducted an enquiry. They found that the prosecutor had committed a breach of AR 182(1)(a) on 9 January 1991 and imposed a further disqualification upon him. The prosecutor had been disqualified until and including 14 June 1992. The effect of the disqualification imposed by the Stewards was that the prosecutor's disqualification operated until 8 July 1993. Exercising his rights under the Act, s.26(1), the prosecutor appealed against the decision of the Stewards to the respondent. The appeal was heard by the respondent on 9 May 1991. It made the following order:
"This Appeal was heard by Messrs Avery, Phair and Prouse sitting as the Tasmanian Racing Appeal Board on 9 May 1991 AND UPON HEARING Mr Richardson of Counsel for the Stewards and Mr P Wood of Counsel for the Appellant, MR T YOUNG, IT WAS ORDERED that the Appeal be dismissed and that the penalty imposed by the Stewards on the 9 April 1991 be amended to a twelve month disqualification cumulative upon the existing disqualification such penalty to expire on 14 June 1993.
DATED the 13th day of May 1991."
Although the Board purported to order that the appeal be dismissed (which dismissal is complained of in the order nisi), it is not strictly accurate to say that the appeal was dismissed because the respondent did impose a penalty which varied the penalty imposed by the Stewards. Had the order of the Stewards stood, the prosecutor would have been disqualified until 8 July 1993. The effect of the respondent's order is that the respondent was disqualified until 14 June 1993, i.e. for a somewhat lesser period. The respondent gave reasons for the making of its order and I will be referring to such reasons further. Before doing so, it is appropriate to summarize some of the evidence before the respondent. To some extent, a determination of what material was before the respondent requires recourse to secondary evidence. Regrettably the respondent has lost the documentary exhibits which were before it upon the hearing of the appeal.
Attached to these reasons is a location plan depicting the area of the Spreyton racecourse and adjacent areas, a copy of which plan was before the respondent. The racecourse and its associated facilities were conducted by the Devonport Racing Club ("the club"). A racecourse, a training track and ancillary facilities were contained in the area indicated on the plan as "area transferred to racing club". I will refer to that area as "the racing club land". In part, the racing club land was divided by a road reservation indicated by the words "Racecourse Road" on the plan. From the point where the plan indicates that road reservation is first bounded by racing club land on both sides, until the point where it is crossed by a pipe easement, Racecourse Road was a public street, part of which was a formed bitumen road indicated on the plan by parallel lines. On either side of the bitumen road there was a grass verge. That part of the road reservation which is to the right of the pipeline easement did not contain a made road and was not a public street. The boundary between that part of the road reservation which was a public street and that part of the racing club land above it on the plan was fenced with a rail. The racecourse was within that part of the racing club land. On 9 January 1991 a major race meeting was in progress at the racecourse. The prosecutor was then a disqualified person. AR 182(1)(a) prohibited him from entering the racecourse. He did not do so. He did enter upon the public street, Racecourse Road. In particular he was found in two positions on the grass verge close to the racecourse but within the public street. On at least one of those occasions he was leaning on the rail, although it is not suggested that any part of his body protruded on to the racing club land. In those circumstances, the respondent concluded that the prosecutor had offended against the provisions of AR 182(1)(a). It was open to the respondent to so conclude only if there was evidence before it upon the basis of which it could find that the land upon which the prosecutor was found was in fact land used in connection with a racecourse or training track owned, operated or controlled by a club.
There is no suggestion but that the racing club land had upon it a racecourse and a training track, in each case operated and controlled by the club. The question is whether the land upon which the prosecutor was found was land used in connection with that racecourse andor training track.
In the course of its reasons, the respondent expressed the view that the intent of AR 182(1)(a) was:
" ... to exclude disqualified persons from (race–tracks) and areas used in connection therewith. The intent of the rule is for the very good purpose that persons disqualified should not be in a position or in a place able to exert influence or even apparently be present in close proximity with race tracks."
It may be doubted whether the rule indicates any intention to prevent disqualified persons from being in close proximity to racetracks. It does not purport to do so and many circumstances may be envisaged where a person could be in extremely close proximity to a racetrack without it being capable of being suggested that a breach of the rule was made out. The respondent went on to say that it found "of particular importance the proximity of where Mr Young was to the activities of the race meeting on this day, he was clearly within one to two metres of the saddling enclosure and indeed from the photograph one could say even one to two centimetres." With respect to the respondent, I find it difficult to understand how that matter could be of particular importance. The rule is directed to the use to which relevant land is put and not to its proximity to a racecourse or training track. The respondent then went on to say this in the course of its reasons:
"Rightly or wrongly the club was clearly exercising control over the area marked Racecourse Road and marked green on the plan tendered by Mr Young. It is noteworthy that Mr Bramich says, that the right way which appears to extend over the entirety of Racecourse Road was not available on raceday. There were various elements of control visible by the club on Devonport Cup Day, various photographs of signs have been put in evidence and although this case was not argued on the question of control by the club, there is clear evidence that indeed control was being exerted over that portion of Racecourse Road where we find Mr Young was present.
Was then the area where Mr Young was found to be being used in connection with racing?
Clearly a portion of the land marked green in the plan was used in connection with racing because indeed as we understand the evidence the saddling enclosure straddles part of that green hashed area and not in anyone's wildest imagination could it be said that a saddling enclosure on Devonport Cup Day was not being used in connection with racing.
We're therefore on this green area can we say that there was no use in connection with racing bearing in mind we are only talking about this particular day, Devonport Cup Day, 9 January 1991."
I observe that the area marked green referred to by the respondent is that portion of Racecourse Road which on the plan is shown as bounded by racing club land on both sides. I also observe that the question posed by the respondent in the second paragraph of the passage which I have set out did not correctly set out the question for determination. In posing the question in that way the respondent fell into the same error as did the draftsman of the letter to the prosecutor indicating that he would be charged with a breach of the rule.
The evidence before the respondent relevant to the issue as to whether the land upon which the prosecutor was found was land used in connection with the racecourse or training track, being the evidence which the respondent apparently referred to as land over which the club was "clearly exercising control", may be summarized as follows:
1 Although there was no suggestion that it had any lawful authority to do so and although it may have acted in breach of the provisions of the Crown Lands Act 1976, s.46(1), the racing club had erected a number of signs on the grass verge, although none of those signs were in terms which suggested that the racing club purported to exercise any dominion over the land, but which were indicative of the facilities upon the racing club land.
2 On race days, including 9 January 1991, a number of parking attendants engaged by the club directed persons as to where to park motor vehicles on the grass verge.
3 Although there was no suggestion that there was any lawful authority for this, on some race days, although not on 9 January 1991, the club erected "no parking" signs purporting to prohibit parking on the grass verge.
4 On some occasions prior to January 1991 the club carried out some maintenance to the grass verge, although, as was conceded by counsel for the respondent, the evidence about that was ambiguous and confused.
5 As indicated on the plan, access to the premises of the Canine Defence League was to be gained by passing over Racecourse Road and a right of way. Normally that access was unimpeded, but on 9 January 1991 the right of way had been blocked at some undefined point, so that if access was to be gained to those premises on that day, it would need to have been gained by some other route.
6 Access from the racecourse to the training track was most conveniently obtained by crossing that portion of Racecourse Road which was a public street.
The respondent did not in terms consider whether upon the basis of that material it ought to conclude that the relevant land was used in connection with the racecourse or training track. Perpetuating the error as to the relevant test, it concluded its reasons by saying:
"For the purpose of the record we did consider that 'used in connection with racing' would not only denote such aspects as were apparent here such as the fact that the area was being controlled to some extent and used as a carpark, the fact that there were signs to indicate that it was that area being used in connection with racing, the fact the horses walk across it, they are all elements that we found gave some comfort to the conclusion we have reached that that area of land was used in connection with racing but the most obvious one we can indicate was the close proximity with the actual track itself."
Whilst in commencing its reasons the respondent correctly stated the terms of AR 182(1)(a) and then expressed its understanding of the intention of the rule by reference to the test set forth in the rule, the further passages from the respondent's reasons which I have set out, make it plain that the respondent did not actually apply the appropriate test. Clearly its reasoning proceeded upon the basis of considering whether, upon the evidence, it had been established that the relevant land was "used in connection with racing". Upon that basis the determination of the respondent cannot stand and ought to be quashed. Nevertheless, the question arises as to whether the respondent ought to be required to consider whether upon the evidence before it it is satisfied that the prosecutor breached the rule upon its proper construction. That question is to be answered by reference to a consideration of whether it was open to the respondent to be satisfied that the relevant land was land which fell within the terms of AR 182(1)(a). If that was not open, then no purpose would be served by remitting the matter to the respondent for such further consideration.
The expression "any land used in connection therewith" might be thought to be open to varying interpretations. On a very wide construction, it might be said that a public street providing the means of access to a racecourse is used in connection with that racecourse, even though there may be absolutely no suggestion of the relevant club exercising any form of control over that public street. On the other hand, it might be said that land is only used in connection with a racecourse or a training track if it is land used for a purpose immediately ancillary to the use of a racecourse or training track as such. It might be thought that a saddling enclosure, a public viewing stand or a betting ring would all be readily capable of answering to the description of being used in connection with a racecourse. I do not consider the possible very wide construction to be reasonably open. I did not understand counsel for the respondent to contend that it was open, but to submit that the particular land could be said to come within the rule, because of the degree of control exercised thereover by the club and the use made thereof by persons attending the racecourse, at least on 9 January 1991 if not generally.
Both counsel referred to the judgment of Adam J in City of Essendon v Cox [1967] VR 545 which involved a consideration of whether certain land was used for "outdoor sporting or recreational purposes" for rating purposes. In particular, counsel for the respondent relied upon a passage appearing at 550 – 1 in the following terms:
"To take first the various car parking areas both those on the green land and those in the blue lands, these are used both by members of the club and the public as car parks. Car parks, as such, are not of course lands used for outdoor sporting or recreational purposes, in any proper sense. On the other hand, lands only used as car parks, and on race days only, and for the convenience only of those attending the races, are clearly enough used for purposes which are ancillary, incidental and subordinate to the use of the race–course lands as a whole for such sporting or recreational purposes. Car parks so used are in truth but adjuncts of the race–course itself.
The critical question is whether for lands to be considered for purposes of the Act, as used for outdoor sporting or recreational purposes, it is sufficient that the immediate and direct purpose served by the use of the lands, although not of that character, is fairly to be regarded as merely ancillary and incidental to the use of the lands as a whole for outdoor sporting or recreational purposes."
As I understand counsel's argument, he sought to equate a car park as referred to by his Honour with the subject land, it also having been used for supervised car parking. I consider that case to be of little assistance. His Honour was not dealing with an expression such as that appearing in the present rule, but with quite a different expression. He was required to consider whether that expression was to be limited in application to land directly used for the relevant purposes or also to other land which might be regarded as being used for ancillary and incidental uses. Of somewhat greater assistance is what was said by the Judicial Committee of the Privy Council in A Hatrick & Co Ltd v The King [1923] AC 213 which concerned a statutory provision empowering the Minister to make charges for goods received into a shed "used in connection with a railway". In delivering the advice of the Board, Lord Atkinson said, at 225 – 6:
"Then comes s. 10, dealing with what the Minister so charged with the maintenance, management and control of railways may do by notice published in the Gazette, in discharge, presumably, of the authority conferred and the duty imposed upon him in respect of railways or any specified railway or any part thereof. He may (a) fix scales of charges to be paid for persons carried on or using a railway ; for goods carried on a railway or received on or into or stored in or delivered from any wharf, pier, jetty, shed or yard 'in connection with a railway,' or for passengers failing to take out tickets from the booking office of the station whence they started, or for demurrage of any rolling stock, or for the use of cranes, hoists or other machinery for loading or unloading goods, or for the use by any vessel of any wharf, jetty, mooring, building, crane or other appliance 'in connection with a railway,' or for goods loaded or unloaded from any wharf, pier, jetty, berthage or mooring 'in connection with a railway,' or for goods received from or delivered from or to any vessel lying at or adjacent to any 'such' wharf, pier, or jetty, berthage or mooring. This, owing to the use of the word 'such,' must mean any wharf, pier, jetty, berthage or mooring 'in connection with a railway,' but all those things must be done in respect of railways or of any specified railway or any part thereof, and must be something done in the management, maintenance, control, work or business of a railway. In the view of their Lordships these words cannot apply to something done on a space or in a building merely contiguous to or abutting upon a railway, even though it be the property of a railway ; if the thing done forms no part of or has no connection with the proper business of a railway, as a carrier of passengers and goods by rail, or in other words that the expression 'in connection with a railway' means connected with, subserving and being ancillary to, the business of a railway as such carriers. If that were not so the strangest results would follow.
If, for instance, the Minister should allow a shed or yard not at the time needed for the proper work and business of a railway, though contiguous to its lines, to be used by any trader for storing the commodities dealt with in his trade, but which had never been carried on a railway or been sent or intended to be sent anywhere by rail, it would seem to their Lordships impossible to hold that the Minister could, against the will of this trader, fix a scale of charges for the use of the shed or yard by him, or the handling therein of his goods even though their own servant might assist in the handling, for the reason that though the shed or yard might be physically contiguous to the railway, the use of it for the trade carried on or the work done in it was not in any way connected with or ancillary to the business of the railway as carriers of goods."
In the present case the use made and control exercised by the club and its patrons of the subject land cannot be described as being a use in connection with the racecourse or training track in any relevant sense. It matters not that upon the land were signs indicating where facilities upon the club's land were to be found. It matters not that patrons resorting to the racecourse parked motor vehicles upon part of the public street. It matters not that persons engaged by the club controlled such parking by way of directing persons to appropriate parking spaces. Being a public street, all members of the public had the right to pass and repass thereover. If parking was permitted at all, it mattered not whether persons parking motor cars were in fact resorting to any part of the racing club land. What occurred on the public street formed no part of and had no connection with the proper operation of the racecourse or the training track. Persons who used the public street in circumstances where in a general sense it might be said that that use was connected with their attendance at the racecourse did so as members of the public exercising their rights to use the public street in common with all other members of the public. The placing on the public street of directional and other signs relevant to the racecourse and associated facilities did not alter the nature of the use of the land. In those circumstances I have concluded that upon the evidence before it, it was not open to the respondent to conclude that the prosecutor was upon land which fell within the operation of the rule. It follows that no purpose can be served by requiring the respondent to do anything further beyond upholding the prosecutor's appeal.
It appears appropriate to order that certiorari issue for the purpose of quashing the determination of the respondent and that pursuant to O 72, r11 the determination be quashed on return without further order. It appears unnecessary for mandamus to issue as a peremptory order under the Rules of the Supreme Court O 72, r37 requiring the respondent to uphold the appeal to it and set aside the determination of the Stewards would appear to meet the requirements of this case. However, before any orders are made, I will hear counsel further.
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