R v Tasmanian Thoroughbred Racing Council Ex Parte Turner (No 2)
[1991] TASSC 68
•5 July 1991
Serial No 49/1991
List "A"
COURT: SUPREME COURT OF TASMANIA
CITATION: R v Tasmanian Thoroughbred Racing Council ex parte Turner (No 2) [1991] TASSC 68; A49/1991
PARTIES: R
v
TASMANIAN THOROUGHBRED RACING COUNCIL
TURNER, J G ex parte
FILE NO/S: M329/1990
DELIVERED ON: 5 July 1991
JUDGMENT OF: Zeeman J
Judgment Number: A49/1991
Number of paragraphs: 15
Serial No 49/1991
List "A"
File No M329/1990
R v TASMANIAN THOROUGHBRED RACING COUNCIL
ex parte J G TURNER (NO 2(
REASONS FOR JUDGMENT ZEEMAN J
5 July 1991
This is the return of a general order calling upon the respondent to show cause why a writ of mandamus or further or other order should not be granted requiring the respondent to hear and determine the prosecutor's application for an owner/trainer permit. The order nisi was made on 22 October 1990. Some relevant matters appear in my earlier reasons dealing with a preliminary question (B31/1991).
The relevant facts, as they appear from those portions of the affidavits filed herein which were read, the documents tendered by consent and the agreed facts, are as follows:
1On 19 June 1989 the Minister and the Principal Clubs entered into an agreement pursuant to s19(2) of the Racing Act 1983. By that agreement it was provided that the respondent might on behalf of the Principal Clubs exercise certain powers and perform certain functions which were expressed as including the following:
(i)Licence, or refuse to licence, trainers, jockeys or other persons associated with thoroughbred racing in Tasmania.
(ii)In consultation with, and only with the agreement of, the Principal Clubs, make, vary or rescind the local rules of racing.
2Local rules of racing have been adopted by the respondent. They are known as the Tasmanian Rules of Racing. They incorporate the Australian Rules of Racing. They have been made in conformity with requirements for the exercise of the relevant power conferred by the agreement. Those rules empower the respondent (inter alia) to exercise the powers of the committees of the Principal Clubs to grant owner/trainer permits. Other relevant rules provide as follows:
"LICENCES AND PERMITS
APPLICATION FOR LICENCES AND PERMITS
LR 33
(a) All applications for Licences or Permits required by the Rules should be made to the Committee annually in such form and at such time in each year as the Committee may from time to time direct, but the Committee may grant such licences or permits at any time. Each application must be accompanied by the prescribed fee.
(b) Applications for renewal of licences or permits lodged after the prescribed time will only be considered if accompanied by the prescribed late lodgement fee.
DURATION OF LICENCE OR PERMIT
(c) All licences and permits shall expire on 31st July in each year, but licences or permits to expire at an earlier date may be granted by the Committee.
LICENCE OR PERMIT MAY BE CANCELLED OR REVOKED
(d) The Committee may refuse to grant or renew a Licence or Permit and may at any time cancel or revoke a Licence or Permit before the termination of the period for which it was granted without assigning any reason for such refusal, cancellation or revocation as the case may be.
LICENCE OR PERMIT MAY BE RESTRICTED
(e) Licences or Permits may be restricted as to duration or locality or both.
LICENSING
(f) Any person who has had an application for a licence or a registration refused shall not make a further application until the expiration of twelve (12) months from the date of such refusal. The Council may in its discretion reduce the said period.
...
HORSES TO BE TRAINED BY LICENSED TRAINER
LR 34 No horse shall be eligible to be entered for or to run in any race within the State of Tasmania unless:
(i) It is trained by a Trainer licensed or registered by any Principal Club; or
(ii) It is trained by some person holding a Permit to Train granted by a Principal Club.
For the purposes of this Rule 'trainer' means a person employed in training horses for payment or remuneration or upon terms.
...
PERMIT TO OWNER–TRAINER
LR 36 The Committee may grant a licence or permit to an owner for training his own horse or horses provided that such horse or horses be trained under his personal superintendence. The Committee or Stewards shall judge as to whether such owner complies or has complied with this Rule. The Committee may at any time refuse or cancel such licence or permit or call upon such owner to show cause why such licence or permit shall not be refused or cancelled.
...".
3On 24 August 1990 the prosecutor made an application in writing to the respondent for an owner/trainer permit for the year ended 31 July 1991. Such a permit is authorized by LR 36.
4The prosecutor is the owner of a large number of thoroughbred race horses and has a property at Garden Island Creek consisting of a number of paddocks, training tracks, steeplechase course, stables, yards and other facilities available for the purpose of training race horses.
5The prosecutor's application was initially considered by the respondent at a meeting in September 1990. Subsequent to that meeting the respondent's secretary advised the prosecutor that the respondent had deferred consideration of the application until any prosecution against the prosecutor by the RSPCA had been completed, the state of his bankruptcy had been reported and legal advice was obtained concerning the respondent's duty and/or right to embark on a consideration of the application whilst there was pending in this Court an application relating to the respondent's decision of August 1989 to refuse an application for a similar permit. I assume that the reference to the pending proceedings was intended to be a reference to the proceedings the subject of my judgment in Ex Parte Turner B521990 which were determined on 7 September 1990 by a dismissal of the prosecutor's application for an order nisi directed to the respondent.
6On 1 October 1990 the prosecutor by letter responded to the advice that consideration of his application had been deferred. To use a relatively neutral term the prosecutor expressed his displeasure at the way in which the respondent was dealing with the application.
7On 19 November 1990 the respondent refused to grant an owner/trainer permit to the prosecutor. Notwithstanding the respondent's earlier stated intention, that refusal occurred when relevant prosecutions were on foot and had not been determined.
8Sometime prior to 17 December 1990 the likelihood of the respondent rescinding its refusal was raised and on 11 December 1990 the prosecutor wrote to the respondent seeking "certain information" before the meeting of 17 December 1990 including details of RSPCA charges being considered by the respondent and details of any other matters the respondent intended to raise. I infer that at the time he wrote that letter the prosecutor had reason to believe that his application would be considered anew on 17 December 1990.
9The respondent replied to the letter of 11 December 1990 in terms including the following:
"The Rules of Racing require that you show cause why a trainer's permit should be granted to you.
It is anticipated the Council will want to hear from you in respect of :
1The circumstances concerning your treatment of animals including those circumstances which resulted in you being charged with cruelty to animals.
2Details as to your stables.
3Whether you are a fit and proper person to be licensed.
Application would have to be made to the Council to have representation by a solicitor. It is the usual practice that as the Council is not represented, legal representation is not granted. However, I am unable to predetermine what the Council will decide."
10The respondent met on 17 December 1990. At that meeting it rescinded its earlier decision to refuse a permit. The prosecutor, in the company of a solicitor, attended for at least part of that meeting. A transcript of that portion of the meeting during which the prosecutor was in attendance is in evidence. There was some discussion as to certain prosecutions against the prosecutor initiated by the RSPCA which at that time had not been finally determined. The prosecutor said that there were "quite a few" matters involving the RSPCA before the courts and that all of them involved horses. It appears that discussion of those matters was unduly inhibited due to a misunderstanding (to some extent contributed to by the prosecutor's solicitor) as to the extent to which such discussion was constrained by reason of the fact that there were pending prosecutions. At no time did the prosecutor furnish information as to the precise nature of the charges nor was he asked to provide such information.
11It appears that subsequent to the prosecutor leaving that meeting the respondent determined not to deal with his application until such time as outstanding prosecutions had been disposed of. Accordingly, on 21 December 1990 it wrote to the prosecutor in the following terms:
"We refer to your attendance before the Council on 17th December 1990. The Council has adjourned the hearing of your attendance to show cause why you should have an owner/trainer licence until such time as all current charges against you brought by the RSPCA have been dealt with by the Courts.
Would you please advise as soon as these matters are completed and the Council will, as soon as possible, reconvene to continue the hearing of your Application."
12It appears that the prosecutor responded to that letter because on 8 January 1991 the respondent again wrote to the prosecutor acknowledging his letter of 28 December, essentially repeating what it had previously told him. By that letter the prosecutor was asked to advise "the dates that the charges against you brought by the RSPCA are next listed in Court".
13There is no evidence that the outstanding prosecutions have been determined nor is there evidence that the prosecutor has advised the respondent of any date upon which any such prosecution is to come before the relevant court.
14The application for a permit remains undetermined.
Counsel for the prosecutor conceded that the factual matters giving rise to the prosecutions appeared to be such that they might be relevant to the determination of the question as to whether the prosecutor was a fit and proper person to hold an owner/trainer permit. If as a matter of fact the prosecutor has been guilty of conduct amounting to cruelty to horses under his care and control, such conduct could lead the respondent to conclude that the prosecutor is not a fit and proper person to hold a permit. If the respondent were to so conclude then it might well be that in the proper exercise of its discretion it would refuse the application. It is obvious that the respondent took the view that the subject matters of the prosecutions were sub judice so that it was inappropriate to inquire into apparently relevant matters. The respondent took an unduly restrictive view of the extent to which it was entitled to make relevant inquiries. On any view of the law there would have been no objection to the respondent seeking particulars of the charges brought against the prosecutor which then remained undetermined. The extent to which further inquiry could properly have been made requires further examination and reference to a number of authorities.
The first authority to which I refer is Johns & Waygood Ltd v Utah Australia Ltd [1963] VR 70. The plaintiff in that case had instituted proceedings against the defendants claiming payment for additional work done by the plaintiff in the construction of the King Street bridge in Melbourne. Subsequent to the issue of the writ part of the bridge collapsed. Before the action was heard a Royal Commission was appointed to inquire into the cause or causes of such collapse. The plaintiff sought an injunction against the Royal Commissioners restraining them from proceeding with their inquiry pending the hearing of the action on the ground that such an inquiry would constitute a contempt of court. In that case Sholl J (at pp79–80) cited with apparent approval a passage from Inglis Clark J, Australian Constitutional Law, 2nd ed, at p230, including the following:
"It is, of course, evident that no question of interference with the due administration of justice could be raised in regard to the investigations made by any Commission of Inquiry appointed by the Crown, except in the contingency of a case pending in one of the courts, and involving an investigation of one or more of the same matters embraced in the scope of the inquiry entrusted to the Commission; and it is only when interference with the ordinary course of justice is a contempt of court that the courts can exercise their summary jurisdiction to restrain or punish it. The disclosure of particular facts in the course of one judicial proceeding may lead to the defeat of the proper administration of justice in another proceeding; and in order to prevent, as far as possible, any such result, the publication in the press of the evidence taken in a series of trials has frequently been prohibited by the courts until all the trials have been concluded. But the attorneys and counsel engaged in the first trial are not guilty of any contempt because they make use of the knowledge so gained by them for the benefit of their clients in the subsequent trials, and they cannot be restrained from making such use of the knowledge gained by them in such circumstances, or be punished for so using it. In any circumstances contempt of court must include conduct coming within one of the following descriptions, viz. – (1) direct interference with the proceedings of the court; (2) interference with a judge or any officer of the court, or with a juror or witness or a party to a suit; (3) disregard or disobedience or any order or summons or other process of the court; (4) publication of any matter derogatory to the court or to any judge or officer of the court; (5) publication of any matter calculated or intended to influence the mind of a judge or of any other officer of the court, or the mind of any juror or witness, in reference to any case pending in the court.... All the reported cases of contempt of court not coming within any of the descriptions of conduct that have been numbered (1), (2) and (3), place it beyond dispute that there cannot be any contempt of court outside of those three descriptions of conduct, unless there is a publication of something likely or intended to interfere with the regular course of justice. It would not be a contempt of court on the part of any person to make use of all lawful methods available to him for the purpose of obtaining a knowledge of the facts involved in any judicial question upon which the judgment of a court or the verdict of a jury were to be subsequently given, and to form his own opinion in the meantime on the question to be so decided, so long as he did not publish those facts or the opinion he had formed upon them to other persons."
In the circumstances his Honour declined to restrain the Royal Commissioners from proceeding with their inquiry whilst observing that it would be inappropriate to publish the report of the Royal Commission, at least as to matters relevant to the action, before the determination of that action.
Watts v Hawke & David Syme & Co Ltd [1976] VR 707 was a case where the plaintiff was a journalist suing the defendants for libel. The plaintiff sought an order pendente lite restraining members of the judiciary committee of the Australian Journalists' Association from hearing a complaint made to the Association by the first defendant shortly prior to the commencement of the action. The alleged libel consisted of the publication to and in a newspaper of the terms of the subject complaint. The complaint asserted that the plaintiff had breached provisions of that Association's code of ethics. The plaintiff sought to restrain the committee from continuing its investigation upon the basis that to do so would be likely to prejudice the fair trial of the action. Kaye J, at p715, expressed the view that the principles emerging from the reported cases led him to the conclusion "that a contempt of Court would be committed if a non–curial tribunal were to investigate and to make findings on matters the same as those in issue in a pending civil action, and if such investigations and findings would create a real and definite tendency to prejudice or to embarrass the fair trial of the action". There was no issue but that the committee would be investigating facts identical to those to be investigated in the course of the trial of the action. The issue for determination was whether the investigations and findings of the committee would create "a real and definite tendency to prejudice or to embarrass the fair trial of the action". After an exhaustive consideration of relevant factual matters his Honour concluded that there was such a tendency. The principal matters upon which he relied were the real risk that the findings of the committee would be published by some person or persons; that the procedure before the committee might operate to influence the conduct of the parties in relation to the action; that a determination of the committee might be to expel the plaintiff from the AJA which would result in the plaintiff not being able to describe himself as a journalist at the trial of the action and would effect his ability to call evidence of his reputation as a journalist; and that effectively an expulsion would preclude the plaintiff from calling expert evidence on the trial of the action as to whether or not the conduct complained of constituted a breach of the code and, if so, as to the gravity of the breach. The need for the presence of a real risk as opposed to a remote possibility that justice will be interfered with before it can be said that there is a relevant contempt of court is well established by other cases (John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351; Victoria v Australian Building Construction Employees' and Builders Labourers'Federation (1981–1982) 152 CLR 25; Attorney–General v Times Newspapers Ltd [1974] AC 273).
In the present case the respondent was called upon to consider whether or not a permit ought to be granted to the prosecutor. Clearly LR 36 confers a discretion whether to grant or not grant the permit although such discretion ought to be exercised upon proper principles and having regard to relevant matters. The respondent's letter of 21 December 1990 suggests that it considered the completion of all outstanding prosecutions brought by the RSPCA to be a condition precedent to granting a permit to the prosecutor. It did not say why it held such a view.
The action of the respondent in adjourning consideration of the application made by the prosecutor amounts to a refusal to exercise its undoubted jurisdiction unless it can be said that it was entitled to so adjourn its consideration of the application. Counsel for the respondent relied upon a line of cases which he submitted were indicative of the respondent having acted properly in adjourning a consideration of the application. The first of those cases is Ex parte Jospe; Re Radovsky (1957) 74 WN (NSW) 156. In that case the position was that a Fair Rents Board had adjourned an application to determine the fair rent of a business premises. At the same time proceedings in ejectment were taken in the Supreme Court between the same parties in relation to the same premises. The same question of fact was in issue in both sets of proceedings and it was a fact upon which the existence of jurisdiction on the part of the Fair Rents Board depended. In those circumstances a determination by the Fair Rents Board to adjourn the proceedings until the determination of the proceedings in the Supreme Court was held to be a proper exercise of the Board's discretion. The second case upon which the respondent relied was Ex parte Commissioner for Railways; Re Locke (1968) 87 WN (NSW) (Pt 1) 430. That case concerned concurrent criminal proceedings and proceedings by way of an appeal against dismissal from employment. The dismissal was sought to be justified, at least in part, upon the basis of the alleged facts which gave rise to the criminal proceedings. The Appeal Board adjourned the hearing of the appeal until a determination of the criminal proceedings. The Full Court declined to grant mandamus requiring the Appeal Board to hear the appeal but for reasons which largely relied upon particular statutory provisions and the conduct of the appellant himself. The third case relied upon by the respondent was Thornton v Repatriation Commission (1981) 35 ALR 485. That was an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) on the ground that there had been unreasonable delay by the Commission in making its decision upon an application, the Commission having decided not to determine the application until the High Court handed down its judgment in a case involving a question of law directly relevant to the decision which the Commission was required to make. That case is clearly distinguishable. However the test applied in that case to judge the reasonableness or otherwise of the Commission's decision is of more general application. Fisher J said, at pp490–491, that the test was as follows:
"... the reasonableness of the delay .... is a matter for objective determination, the question being whether a reasonable man acting in good faith could consider the decision to delay ... as appropriate or justified in the circumstances, or whether it was capricious and irrational."
The determination of the respondent to delay determining the prosecutor's application was expressed to be a determination to not deal with the application until all outstanding prosecutions had been determined. That in itself does not disclose any reason for the deferment. It merely specifies the period of the deferment. No reasons for the deferment were expressed by the respondent to the prosecutor nor was there express evidence of any such reasons before me. I infer that the respondent's reasons included the reason that the subject matters of the prosecutions were considered to be relevant, but that the respondent considered that it was not entitled to give any consideration to such matters until the relevant prosecutions had been determined. I also infer that the respondent may have had as an additional reason that the conviction of the prosecutor of one or more of the offences the subject of the pending prosecutions would be relevant to the exercise of the respondent's discretion.
There is no suggestion that any member of the public has access to the meetings of the respondent. There is no requirement for its proceedings to be published in any way. A consideration by the respondent of matters the subject of a pending prosecution might constitute a contempt if such a consideration tended to embarrass the prosecutor in his defence of the prosecutions. No suggestion has been made to me that that might the case. It is the prosecutor who wishes the application to be dealt with by the respondent. It is not a case such as Watts v Hawke & David Syme Ltd (supra) where the plaintiff was the subject of disciplinary proceedings. At the same time it is possible that in the course of further consideration of the application the situation may arise where the prosecutor claims such embarrassment. In that event, and if the claim is well founded, the respondent ought not to proceed further with a consideration of the application until the relevant prosecution is finalized, provided that the matter giving rise to such embarrassment is one relevant to the application.
It would be a proper exercise of the respondent's discretion to refuse the permit to the prosecutor if it concluded that he was not a fit and proper person to hold a permit. (By saying that I am not to be taken as expressing any opinion as to where the onus of proof lies). Counsel for the prosecutor submitted that any conviction of an offence would be irrelevant to that question, it being inadmissible by virtue of the rule in Hollington v F. Hewthorn & Co Ltd [1943] KB 587. Quite apart from the fact that there is substantial authority indicative of that case having been wrongly decided (see Mickelberg v Director of Perth Mint [1986] WAR. 365; Commissioner of Australian Federal Police v Butler (1989) 91 ALR 293; Hunter v Chief Constable of West Midlands Police [1982] AC 529), I do not consider that argument to be well founded. Even if that rule represents the law of this State it is a rule of evidence. It cannot be suggested that the respondent is bound by strict rules of evidence in determining an application for a permit. A conviction of an offence relevant to the application would be material which the respondent could take into account in determining an application. That is not to say that such a conviction would be conclusive so as to preclude an applicant for a permit from putting other material before the respondent in relation to the subject matter of the conviction. In considering the fitness of the prosecutor the respondent would be entitled to take into account (if it were the fact) that the prosecutor had been convicted of offences constituted by cruel conduct towards horses. The respondent would be entitled to take such material into account without itself being satisfied of the existence of the facts upon which the conviction was based. The prosecutor himself conceded before the respondent that prosecutions for offences of such a nature were outstanding at the time that he appeared before the respondent in December 1990. Counsel for the prosecutor submitted that a pending prosecution could be ignored as the power conferred by the rules to revoke a permit was sufficient protection. He submitted that a permit could be revoked in the event of a relevant conviction occurring. I do not agree, but it does not follow that it would be a reasonable exercise of the respondent's discretion to defer considering the application pending the determination of the prosecutions even though convictions resulting from such prosecutions, if they had occurred prior to such consideration, would be relevant. At the same time it may be that the respondent would be entitled to refuse a permit if the respondent declined to make a full and frank disclosure of particulars of all outstanding prosecutions or, if such a disclosure was made, upon the basis of what was disclosed or upon the basis of facts ascertained as a result of such disclosure. Whether such a refusal was proper would need to be judged by reference to all the material then before the respondent.
Although the respondent is not required by any express provision of the rules to determine any application for a permit or to determine an application within a particular period, an obligation to determine any application within a reasonable time ought to be implied (P & C Cantarella Pty Ltd v Egg Marketing Board of NSW [1973] 2 NSWLR 366 at pp376–377). At the same time what is a reasonable period ought to be determined by all the relevant circumstances including the period of time required by the respondent to make all proper inquiries and to seek and obtain all relevant information for the purpose of being in a position where it could properly consider the application in the light of all relevant matters. The respondent is entitled to satisfy itself of any relevant matter before either granting or refusing to grant the permit sought by the applicant.
Clearly the alleged facts giving rise to the prosecutions by the RSPCA may be very relevant to a consideration by the respondent of the application and the respondent thought so, but it felt constrained not to consider such alleged facts whilst prosecutions were pending. Subject to any embarrassment which the prosecutor may suffer as the result of any aspect of the further consideration of the application whilst any relevant prosecution is pending it ought not to consider itself to be so constrained.
The respondent has been in error in deferring a consideration of the application but it cannot be said that necessarily it ought now to determine the application. The application requires to be further considered by the respondent. Whether upon such further consideration it is appropriate for the respondent to determine the application will depend upon what transpires upon such further consideration. The respondent's action in refusing to further consider the application amounted to a refusal to exercise jurisdiction. It is appropriate that its duty to exercise its jurisdiction be enforced. It cannot presently be said that it has a duty to determine the application. The existence of such a duty depends upon the future course of its consideration of the application. Upon further consideration it may transpire that it is appropriate to defer final consideration of the application until the determination of the prosecutions. I have adverted to some possible circumstances.
It follows that I should not do more than to require the respondent to give further consideration to the application. This is an appropriate case for me to so require. I do not consider it appropriate for mandamus to issue. I do consider it appropriate to grant injunctive relief which is authorized by O72, r4A. The order I propose is an order requiring the respondent to give further consideration to the application by the prosecutor for an owner/trainer permit. Whether such further consideration leads to a determination of that application ought to be considered by the respondent in the light of these reasons. Before making the formal order I will hear counsel.
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