Racing NSW v Lewin

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.