R v Tasmanian Thoroughbred Racing Council; Ex Parte

[1991] TASSC 145

Serial No B31/1991
List "B "

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            R v Tasmanian Thoroughbred Racing Council;
  ex parte J G Turner [1991] TASSC 145; B31/1991

PARTIES:  R
  v
  TASMANIAN THOROUGHBRED RACING COUNCIL;
  EX PARTE J G TURNER

FILE NO/S:  M329/1990
DELIVERED ON:  13 June 1991
JUDGMENT OF:  Zeeman J

Judgment Number:  B31/1991
Number of paragraphs:  9

Serial No B31/1991
List "B"
File No M329/1990

THE QUEEN v TASMANIAN THOROUGHBRED RACING COUNCIL;
EX PARTE J G TURNER

REASONS FOR JUDGMENT  ZEEMAN J

13 June 1991

1. On 22 October 1990 a judge made a general order to show cause calling upon the respondent why a Writ of Mandamus or further or other order should not be granted on the following grounds:

(a)that the respondent has a duty to determine the prosecutor's application for an owner/trainer permit dated 24 August 1990;

(b)that the respondent has actually or constructively refused to determine that application.

1. The form of order does not indicate what duty on the part of the respondent is sought to be enforced by the issue of a Writ of Mandamus, but it is apparent that it is sought to enforce what is said to be the respondent's duty to determine an application made by the prosecutor to the respondent for the issue of an owner/trainer permit.

1. The respondent is constituted by s17 of the Racing Act 1983. The powers and functions of the respondent are defined by s19 of that Act, which is in the following terms:

"19–(1)   Subject to the authority of the Directorate and to any directions given to it, the Council, on behalf of the Principal Clubs, is responsible for the control of thoroughbred horse racing in Tasmania.

(2)    Subject to subsection (1), the powers that may be exercised, and the functions that shall be performed, by the Council are the powers and functions set out in an agreement in writing entered into between the Principal Clubs and the Minister.

(3)    An agreement under subsection (2) shall remain in force for a period of 3 years commencing on the date on which the agreement is entered into by the Principal Clubs and the Minister.

(4)    Subject to subsection (5), the Principal Clubs and the Minister may enter into fresh agreements in writing with respect to the powers that may be exercised, and the functions that shall be performed, by the Council after the agreement under subsection (2) is no longer in force.

(5)    An agreement under subsection (4) –

(a)  shall be entered into while the agreement under subsection (2) or (4) which it immediately succeeds is still in force; and

(b)  shall remain in force for a period of 3 years commencing on the day immediately after the date on which the relevant agreement referred to in paragraph (a) ceases to be in force."

1. It will be observed that the Act makes no provision for the issue of permits of the type the subject of the present proceedings, or indeed for the issue of permits of any type. The issue of such permits by the respondent appears to be a function exercisable by it in carrying out its responsibility to control thoroughbred horse racing in the State. The affidavits filed in these proceedings do not directly indicate the basis upon which a permit of the type sought by the prosecutor is to be issued. However, a copy of the prosecutor's application for a permit is in evidence. It appears to be in a printed form issued by the respondent. The form of application suggests that the respondent has adopted rules referred to as the Rules of Racing and by–laws. It would appear as though permits are provided for by the Rules of Racing. Again, whilst there is no direct evidence to this effect, the inference might be drawn from the affidavits that the effect of the respondent's exercise of its statutory duty to control thoroughbred horse racing is that it is not lawful for a person to train thoroughbred horses unless such person is authorized to do so by permit issued by the respondent. Whilst such inferences may be open, the evidence is not satisfactory. It is desirable that the actual Rules and by–laws (at least to the extent that they are relevant to the present proceedings) and any agreement entered into pursuant to s19 of the Act are in evidence before this matter is finally determined.

1. Having made those observations, it is appropriate to recite relevant events, which have occurred since the order nisi was made, as follows:

(1)On 19 November 1990 the application the subject of the order nisi, was in fact determined by the respondent when it refused to grant the prosecutor an owner/trainer permit.

(2)The respondent did not become aware of the making of the order nisi until 28 November 1990.

(3)On 17 December 1990 the respondent rescinded its resolution to refuse a permit to the prosecutor.

(4)The respondent has not further determined the prosecutor's application and has asserted that it requires further material relating to matters relevant to the making of a determination.

1. The question arises as to whether it is now open to make the order absolute as on one view the respondent did do what was sought to be achieved by an order absolute, that is a determination of the prosecutor's application. On the other hand, if the respondent has effectively rescinded that determination, then it still has before it the application for a permit, that being the application the subject of the order nisi.

1. The question has been raised as to whether the respondent has the power to rescind a determination to refuse the grant of a permit. Provisions with respect to meetings of the respondent are contained in Schedule 2 to the Act. That Schedule contains the following relevant provisions:

"1–In this Schedule, 'Board' means the Council .....

.....

3        .....

(3)      Questions arising at a meeting of a Board shall be determined by a majority of votes of the members present and voting.

.....

6        The procedure for the calling of, and for the conduct of business at, meetings of a Board shall, subject to this Schedule, be as determined by the Board."

1. It is clear that statutory bodies do not have an unfettered right to rescind determinations made in the exercise of their statutory powers. Limitations on any such power may be found in express provisions governing the exercise of those powers, and may arise when a person has acted upon a determination made. As to the former, there is no material presently before me to suggest that any limitation has been imposed upon the power of the respondent to rescind resolutions refusing the grant of a permit. As to the latter, the relevant principles are illustrated by Ex parte Renouf [1924] 24 SR(NSW) 463, Drummoyne Municipal Council v Page [1973] 2 NSWLR 566 and Northcott Pike & Associates Pty Ltd v District Council of Berri (1984) 55 LGRA 119. There is no suggestion that those principles can have any application to the present case. There is no material before me to indicate that the determination of the respondent to rescind its refusal of a permit to the prosecutor was ultra vires the respondent. It follows that prima facie the prosecutor's application, once again, remains unresolved. As the rescinding resolution was adopted by the respondent at a time when it had no knowledge of the making of the order nisi, its bona fides cannot be impugned.

1. I do not consider it necessary to deal with the submission that the determination made on 19 November 1990 was in any event void as being in breach of the rules of natural justice. The prosecutor's application remains an undetermined application and it would be open for me to make the order nisi absolute. Accordingly, I will proceed to hear the application on its merits and will give the parties an appointment for that purpose. The parties may wish to consider the adequacy of the affidavits filed in the light of these reasons.