Racing NSW v Lewin - [2018] NSWCA 93

Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Racing NSW v Lewin [2018] NSWCA 93
Hearing dates: 1 May 2018
Decision date: 03 May 2018
Before: Bathurst CJ at [1];
Basten JA at [2];
Macfarlan JA at [43]
Decision:
(1)   Grant the applicant leave to appeal.

(2)   Allow the appeal and set aside order (1) made in the Common Law Division on 6 March 2018 and orders (2)-(4) made on 19 April 2018.

(3)   In lieu therefore declare that Mr Lewin has no right of appeal to the Racing Appeals Tribunal from the decision of Racing NSW to refuse to grant him a bookmaker licence for the year ending 30 June 2018.

(4)   Mr Lewin is to pay the costs of Racing NSW in this Court and in the Common Law Division.
(5) Grant Mr Lewin a certificate under the Suitors’ Fund Act 1951 (NSW) with respect to the costs of the appeal.
Catchwords:
ADMINISTRATIVE LAW – regulations — validity of delegated legislation — whether Racing Appeals Tribunal Regulation 2015 (NSW), cl 5 arbitrary or capricious

CIVIL PROCEDURE — parties — joinder — whether necessary to join State of New South Wales (or other relevant polity) where challenge to validity of regulations — State of New South Wales v Macquarie Bank Ltd (1992) 30 NSWLR 307 not followed

JURISDICTION — Racing Appeals Tribunal – decision by Racing NSW not to renew bookmaker licence – jurisdiction to hear appeal

WORDS AND PHRASES — “regulations may make provision for or with respect to appeals” — Racing Appeals Tribunal Act 1983 (NSW), s 18
WORDS AND PHRASES — “person … may, in accordance with the regulations, appeal” — Racing Appeals Tribunal Act 1983 (NSW), s 15 — “revoke the licence of any person under the rules” — Racing Appeals Tribunal Regulation 2015 (NSW), cl 5
Legislation Cited:
Judiciary Act 1903 (Cth), s 78B
Racing Appeals Tribunal Act 1983 (NSW), ss 15, 16, 17, 18, 23
Supreme Court Act 1970 (NSW), s 101
Thoroughbred Racing Act 1996 (NSW), ss 3, 14, 14A, 14AA, 42, 45
Racing Appeals Tribunal Regulation 1984 (NSW), cl 13
Racing Appeals Tribunal Regulation 2015 (NSW), cll 5, 9
Cases Cited: Attorney-General for the State of South Australia v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3
FAI Insurances Ltd v Winneke (1982) 151 CLR 342; [1982] HCA 26
Friends of Leadbeater's Possum Inc v VicForests [2018] FCA 178
New South Wales Thoroughbred Racing Board v Waterhouse (2003) 56 NSWLR 691; [2003] NSWCA 55
State of New South Wales v Macquarie Bank Ltd (1992) 30 NSWLR 307
Travel Compensation Fund v Travel Guide Pty Ltd (1997) 72 FCR 371; [1997] FCA 54
Williams v Melbourne Corporation (1933) 49 CLR 142; [1933] HCA 56
Texts Cited: NSW Legislative Assembly, Parliamentary Debates (Hansard), 21 September 1983, p 1053
Category: Principal judgment
Parties: Racing NSW (Applicant)
Leo Lewin (First Respondent)
Minister for Racing for the State of New South Wales…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Racing NSW v Lewin

Details

AGLC: Racing NSW v Lewin [2018] NSWCA 93
Case: [2018] NSWCA 93
Decision Date: 03 May 2018

CaseChat Overview and Summary

The Court of Appeal of New South Wales considered an appeal by Racing NSW against a decision of the Common Law Division concerning the validity of a regulation and the jurisdiction of the Racing Appeals Tribunal. The dispute arose when Racing NSW decided not to renew Mr Lewin's bookmaker licence, and Mr Lewin sought to appeal this decision to the Racing Appeals Tribunal. The primary issue was whether Mr Lewin had a right to appeal that decision under the relevant legislation and regulations.

The legal issues before the Court of Appeal were whether clause 5 of the *Racing Appeals Tribunal Regulation 2015* (NSW) was invalid on the grounds that it was arbitrary or capricious, and whether the State of New South Wales, or another relevant polity, was a necessary party to the proceedings challenging the validity of the regulation. The Court was also required to determine whether the Racing Appeals Tribunal had jurisdiction to hear Mr Lewin's appeal, given the wording of section 18 of the *Racing Appeals Tribunal Act 1983* (NSW) and section 15 of the same Act, read in conjunction with clause 5 of the Regulation.

The Court reasoned that clause 5 of the Regulation, which provided that the Tribunal could revoke a licence if a person was disqualified under the rules, did not grant a right of appeal against a decision not to renew a licence. The Court found that the power to revoke a licence was distinct from the power to refuse renewal. Furthermore, the Court held that the State of New South Wales was not a necessary party to the proceedings, distinguishing the present case from *State of New South Wales v Macquarie Bank Ltd*. The Court concluded that the regulation was not arbitrary or capricious and that Mr Lewin did not have a right of appeal to the Racing Appeals Tribunal from Racing NSW's decision.

Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, and set aside the orders of the Common Law Division. The Court declared that Mr Lewin had no right of appeal to the Racing Appeals Tribunal from Racing NSW's decision to refuse to grant him a bookmaker licence for the year ending 30 June 2018. Mr Lewin was ordered to pay the costs of Racing NSW in both the Court of Appeal and the Common Law Division, and was granted a certificate under the *Suitors’ Fund Act 1951* (NSW) in respect of the costs of the appeal.

Orders

Orders of the court

(1) Grant the applicant leave to appeal.

(2) Allow the appeal and set aside order (1) made in the Common Law Division on 6 March 2018 and orders (2)-(4) made on 19 April 2018.

(3) In lieu therefore declare that Mr Lewin has no right of appeal to the Racing Appeals Tribunal from the decision of Racing NSW to refuse to grant him a bookmaker licence for the year ending 30 June 2018.

(4) Mr Lewin is to pay the costs of Racing NSW in this Court and in the Common Law Division.

(5) Grant Mr Lewin a certificate under the Suitors’ Fund Act 1951 (NSW) with respect to the costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Racing NSW v Lewin [2018] NSWCA 93
Hearing dates:	1 May 2018
Decision date:	03 May 2018
Before:	Bathurst CJ at [1]; Basten JA at [2]; Macfarlan JA at [43]
Decision:	(1) Grant the applicant leave to appeal. (2) Allow the appeal and set aside order (1) made in the Common Law Division on 6 March 2018 and orders (2)-(4) made on 19 April 2018. (3) In lieu therefore declare that Mr Lewin has no right of appeal to the Racing Appeals Tribunal from the decision of Racing NSW to refuse to grant him a bookmaker licence for the year ending 30 June 2018. (4) Mr Lewin is to pay the costs of Racing NSW in this Court and in the Common Law Division. (5) Grant Mr Lewin a certificate under the Suitors’ Fund Act 1951 (NSW) with respect to the costs of the appeal.
Catchwords:	ADMINISTRATIVE LAW – regulations — validity of delegated legislation — whether Racing Appeals Tribunal Regulation 2015 (NSW), cl 5 arbitrary or capricious CIVIL PROCEDURE — parties — joinder — whether necessary to join State of New South Wales (or other relevant polity) where challenge to validity of regulations — State of New South Wales v Macquarie Bank Ltd (1992) 30 NSWLR 307 not followed JURISDICTION — Racing Appeals Tribunal – decision by Racing NSW not to renew bookmaker licence – jurisdiction to hear appeal WORDS AND PHRASES — “regulations may make provision for or with respect to appeals” — Racing Appeals Tribunal Act 1983 (NSW), s 18 WORDS AND PHRASES — “person … may, in accordance with the regulations, appeal” — Racing Appeals Tribunal Act 1983 (NSW), s 15 — “revoke the licence of any person under the rules” — Racing Appeals Tribunal Regulation 2015 (NSW), cl 5
Legislation Cited:	Judiciary Act 1903 (Cth), s 78B Racing Appeals Tribunal Act 1983 (NSW), ss 15, 16, 17, 18, 23 Supreme Court Act 1970 (NSW), s 101 Thoroughbred Racing Act 1996 (NSW), ss 3, 14, 14A, 14AA, 42, 45 Racing Appeals Tribunal Regulation 1984 (NSW), cl 13 Racing Appeals Tribunal Regulation 2015 (NSW), cll 5, 9
Cases Cited:	Attorney-General for the State of South Australia v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3 FAI Insurances Ltd v Winneke (1982) 151 CLR 342; [1982] HCA 26 Friends of Leadbeater's Possum Inc v VicForests [2018] FCA 178 New South Wales Thoroughbred Racing Board v Waterhouse (2003) 56 NSWLR 691; [2003] NSWCA 55 State of New South Wales v Macquarie Bank Ltd (1992) 30 NSWLR 307 Travel Compensation Fund v Travel Guide Pty Ltd (1997) 72 FCR 371; [1997] FCA 54 Williams v Melbourne Corporation (1933) 49 CLR 142; [1933] HCA 56
Texts Cited:	NSW Legislative Assembly, Parliamentary Debates (Hansard), 21 September 1983, p 1053
Category:	Principal judgment
Parties:	Racing NSW (Applicant) Leo Lewin (First Respondent) Minister for Racing for the State of New South Wales…