Stollery v Greyhound Racing Control Board

[1972] HCA 53

HIGH COURT OF AUSTRALIA

. Barwick C.J., McTiernan, Menzies, Gibbs and Stephen JJ.

STOLLERY v. GREYHOUND RACING CONTROL BOARD.

(1972) 128 CLR 509

27 October 1972

Inferior Tribunals

Inferior Tribunals—Greyhound Racing Control Board (N.S.W.)—Disciplinary functions—Proceedings after report by member of Board of gift proferred to him—Member present at but taking no part in deliberations or decisions of Board—No dispute concerning facts—Natural justice.

Decisions

October 27.
The following written judgments were delivered:-
BARWICK C.J. The appellant, John Leslie Stollery, appeals by special leave of this Court against a decision of the Supreme Court of New South Wales, Court of Appeal Division, discharging a rule nisi for prohibition to restrain further proceedings upon a decision of the Greyhound Racing Control Board (the Board) or in the alternative for certiorari to bring up that decision to be quashed. By its decision the Board purported to disqualify the appellant as a bookmaker registered with the Board for the space of twelve months as from the date of the decision, namely, 13th August 1971. The ground on which the appellant sought the prerogative writs was that in the hearing of the matter in respect of which the decision was given by the Board natural justice was not observed. The Supreme Court was of opinion that it was. (at p512)

2. The facts and circumstances of the matter are few. The Board is constituted by s. 56C (1) of the Gaming and Betting Act, 1912-1968 (N.S.W.) as a body corporate to control and regulate greyhound racing in New South Wales. In particular it is directed to control and regulate greyhound racing and empowered "in accordance with the rules" to "disqualify either permanently or temporarily any greyhound, or owner, trainer, bookmaker or bookmaker's clerk, or other person associated with greyhound racing from participating in or associating with greyhound racing" (s. 56G (1) (c) (iii)), and to make rules "for and with respect to the control and regulation of greyhound racing" (s. 56H (1) ). (at p512)

3. The Board duly made rules which, as operative in August 1971, provided for the registration of owners and trainers of greyhounds and of bookmakers and bookmaker's clerks. A registration as a person in one of these capacities, unless sooner cancelled by the Board, is effective until 31st March next after it was granted (r. 11 (1)). Application for renewal of such a registration is to be made on or before 1st March in the current year of registration. However, if such an application is not made in such time the Board has a discretion to grant or refuse a renewal of the registration (r. 12). Rule 21 (2) sub-ss. (a) and (c), so far as presently relevant, are in the following terms:

"21. (2) Without limitation of its powers under the Act, the Board may - (a) inquire into or investigate or cause to be inquired into or investigated any matter, act or omission which it suspects to be or intended to be or to have been dishonest, corrupt, fraudulent or improper in connexion with a greyhound or greyhound racing or which, in its opinion, is or may be detrimental to the proper conduct, control or regulation of greyhound racing; (c) cancel or withdraw the registration of any owner, trainer, bookmaker or bookmaker's clerk and disqualify either permanently or temporarily and/or fine or warn off any such registered person or other person associated with greyhound racing from participating in or associating with greyhound racing who - (i) ... (ii) ... (iii) has been found guilty by the Board or Board Stewards or the Committee or Stewards of a club after notice to him and due inquiry of - (a) any dishonest, corrupt, fraudulent or improper act or practice in connexion with greyhound racing or any act which, in the opinion of the Board, is in any way detrimental to the proper control and regulation of greyhound racing. ..." (at p513)

4. One Norman Smith was at all material times a member of the Board and was also manager of the N.S.W. Greyhound Breeders Owners and Trainers Association Ltd. (Harold Park) (the Association) which conducted dog racing in Sydney and elsewhere in New South Wales. It appears that a much greater number of dogs are sought to be nominated for greyhound races conducted by the Association than can be accepted having regard to the racing facilities available and also no doubt to the capacities of the greyhounds. Accordingly, the Association has graders who determine which of the dogs offered for nomination shall be accepted. The basis of selection was not fully expounded in the case but it would seem that the recent performances of the dog are matters of account in this connexion. (at p514)

5. The appellant was the owner and trainer of a dog named "Double Chariot". The appellant took the dog to Grafton on the evening of 19th July 1971 there to be raced. However, before leaving he handed his wife an envelope which contained a nomination form in respect of the dog "Double Chariot" and a nomination form for another dog owned by her each for the Harold Park meeting to be held on 31st July 1971 and also ten twenty dollar notes. She was instructed to give this envelope to Mr. Norman Smith personally. She did so on 20th July. On opening the envelope and finding the $200 he thought, according to his account of the matter, that perhaps the appellant owed betting fees. He caused an inquiry to this end to be made in his office and found that the appellant was not so indebted. There was no explanation in the envelope for the presence of money in it. The appellant's wife, when later asked by Mr. Smith for an explanation of the money, informed Mr. Smith that it was a present to him. Mr. Smith informed her that he "looked on this as a serious action" and asked that the appellant see him. When interviewed by Mr. Smith the appellant said that the sum was intended as a gift to Mr. Smith in respect of his, Mr. Smith's, recent marriage. Mr. Smith, after some conversation with the appellant, said that he would have to report the matter to the Board. In the course of conversation with the appellant Mr. Smith made remarks from which it might fairly be concluded that he, Mr. Smith, regarded the appellant as having attempted to bribe him. He said that "it", meaning at least the making of gifts to officials, "was the type of thing that" he "was fighting against" and that he "had a duty to the industry". Mr. Smith did report the matter to the Board both orally and in writing. (at p514)

6. The appellant by letter of 3rd August was required by the Board to attend a meeting of the Board on 13th August. The appellant did so. According to the minutes of the Board, the appellant was informed by the chairman of the Board that the Board had opened the inquiry in accordance with the Board rules. This was apparently a reference to r. 21 (2) (a). Mr. Smith reported the incident to which I have referred. The appellant did not dispute that he had sent the money by his wife along with the nomination forms but he denied that there was any ulterior purpose in his doing so and said that it was an attempt on his part to make a gift to Mr. Smith for a reason unconnected with any question of the nomination of the dogs. The appellant made a statement as to the circumstances of the nominations and, although not minuted, must have referred to the fact that there had been some newspaper publicity on 4th August as to the pendency of the inquiry by the Board into the circumstances because, as the minutes record, Mr. Smith was asked whether he had informed anyone associated with the sport, other than the Board, of the incident of the money. He denied having done so and said that his staff were bound to secrecy in such matters. (at p515)

7. After making his statement the appellant withdrew from the board room but Mr. Smith did not. (at p515)

8. According to the minutes, Mr. Smith was asked by the chairman of the Board after the appellant had withdrawn whether he wished to take any further part in the deliberations of the Board with regard to the matter before it: to which inquiry Mr. Smith gave a negative reply. However, Mr. Smith remained during the Board's deliberations, perhaps at his place at the board table as a member of the Board, though there is no specific evidence on this point. After conferring amongst themselves the other members of the Board resolved that the appellant be charged under r. 21 (2) (c) (iii) (a) that he "being a bookmaker registered with the Board did an act which in the opinion of the Board was detrimental to the proper control and regulation of greyhound racing in that on 20th July 1971, he did cause to be handed to Mr. N. Smith, the Manager of the N.S.W. Greyhound Breeders, Owners and Trainers Association Ltd. (Harold Park), a sum of money to wit $200.00". Thereupon the appellant was recalled into the board room and the charge was read to him, Mr. Smith still being present. The appellant was informed that he could have an adjournment to consider the matter and that he could have counsel to assist him. However, the appellant said he wished the matter to be decided that day and pleaded not guilty to the charge. The appellant was then told by the chairman that it was for him to raise a reasonable doubt in the mind of the Board as to whether what had been done "was not detrimental to the proper control of greyhound racing". The appellant addressed the Board asserting his innocence of any attempt to do anything detrimental to the interests of greyhound racing and called attention to his long association with the sport. Though the appellant then withdrew from the Board, Mr. Smith still remained with the Board, which is recorded as having then conferred. Thereafter it was resolved by the members of the Board, other than Mr. Smith, that the appellant be found guilty as charged and that he be "disqualified for twelve months as from this date". (at p516)

9. Thereafter the appellant was readmitted to the board room, Mr. Smith still being present, and informed of the Board's decision. The $200 was returned to him. (at p516)

10. In the reasons for judgment of the Court of Appeal for discharging the orders nisi for prerogative writs it was accepted that the mere physical presence of an unqualified or disqualified member of the Board during the period of its deliberations on a matter in respect of which it was required to act in a judicial manner was such a denial of natural justice as required the consequential decision to be declared void. But the Supreme Court was of opinion that Mr. Smith was not disqualified as a member of the Board from participating in its deliberations, though, in fact, according to the record he had not done so. (at p516)

11. It is to my mind quite evident that Mr. Smith stood in a very special relationship to the appellant and to the matter which the Board was called upon to consider. He it was who reported the matter to the Board. So far it was his duty so to do. However, he was personally involved in the incident which he reported. The incident, so far as the objective facts were concerned, was not a matter of dispute, but the gravamen of the matter was the purpose or motive with which the appellant had proffered money to Mr. Smith and the likely effect of the offer to Mr. Smith upon the control and regulation of the sport. There can be little doubt, on the material before the Court, that Mr. Smith, at the time he received the money, concluded that there had been an attempt to bribe him. Not unnaturally he was affronted by such an attempt. I am of opinion that in the circumstances Mr. Smith was in the position of an accuser, accusing the appellant of having done an act detrimental to the control of the sport. It seems to me, therefore, that he was not in a position to participate either in the discussion or decision of the question whether or not what had occurred was an act detrimental to the control and regulation of greyhound racing, or of the question of what was the appropriate penalty to be inflicted if the first question should be answered unfavourably to the appellant. (at p516)

12. It may be accepted that he did not participate in the deliberation or decision of the Board by any positive act. But as well as being a member of the Board Mr. Smith was a very important official of the Association. He was probably an influential person in the sport. It might well be said that, although he did not speak during the deliberations or vote on the proposed decision, the deliberations of the Board were not free of his influence. But for the purposes of my decision, I will assume that, although he was present, his presence had no actual bearing or effect on those deliberations or that decision. The matter can therefore be approached, in my opinion, on the footing that the disqualified member of the Board, though present, had no part whatever in the decision at which the Board arrived. (at p517)

13. But so to conclude does not end the matter. The most important feature of the matter is the appearance which his continued presence in the board room during the time the matter was decided and the penalty agreed must present to any reasonably minded man who knew the facts antecedent to the hearing before the Board but who was completely unaware of what had occurred in the board room. In my opinion, the reasonable inference to be drawn by the reasonable bystander in that situation was that Mr. Smith was in a position to participate in the Board's deliberations and at least to influence the result of those deliberations adversely to the appellant. The existence of that reasonable inference, in my opinion, is sufficient warrant for concluding that, in a matter in which the Board was bound to act in a judicial manner, natural justice was denied. (at p517)

14. I find little need to discuss the law at any length. We are, of course, not concerned here, and indeed we would have no power, to review the decision of the Board as to whether or not the appellant had committed an act which was detrimental to the business of greyhound racing. We are not concerned with the appellant's guilt or innocence in that connexion. What we are concerned with is the regularity of the proceedings of the Board in which he was found guilty of doing an act as charged. In my opinion, it is of the utmost importance that tribunals such as the Greyhound Racing Control Board should conduct their proceedings with scrupulous adherence to the requirements of natural justice. What is required to satisfy these principles no doubt depends very largely on the nature of the matter in hand and the circumstances in which the hearing takes place. Mr. Wood, who argued the case for the appellant, gave the Court the benefit of a useful review of a number of decided cases. Some of these cases related to bias in a person participating in the decision of a tribunal and others, such as Dickason v. Edwards (1910) 10 CLR 243 in this Court, were instances of a disqualified member of a tribunal officiating but not participating in the tribunal's deliberation or decision. I append a list of the cases cited in argument but I find no need to discuss them in these reasons. It suffices, in my opinion, for the disposal of this application to refer to and cite from R. v. Sussex Justices; Ex parte McCarthy (1924) 1 KB 256 . In that case, a deputy clerk, who was a member of the firm of solicitors acting for a person concerned in the collision of motor vehicles out of which the action arose, acted as clerk to the justices and retired with them, as would be the right of the clerk, when they adjourned to consider the case. He did not take part in the deliberations or offer the justices any advice whatever. However, on an application for certiorari, the resulting conviction by the justices was set aside on the ground that there had been a departure from the requirements of natural justice. Giving judgment, Lord Hewart L.C.J. had this to say (1924) 1 KB, at pp 258-259 :

"It is clear that the deputy clerk was a member of the firm of solicitors engaged in the conduct of proceedings for damages against the applicant in respect of the same collision as that which gave rise to the charge that the justices were considering. It is said, and, no doubt, truly, that when that gentleman retired in the usual way with the justices, taking with him the notes of the evidence in case the justices might desire to consult him, the justices came to a conclusion without consulting him, and that he scrupulously abstained from referring to the case in any way. But while that is so, a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. Speaking for myself, I accept the statements contained in the justices' affidavit, but they show very clearly that the deputy clerk was connected with the case in a capacity which made it right that he should scrupulously abstain from referring to the matter in any way, although he retired with the justices; in other words, his one position was such that he could not, if he had been required to do so, discharge the duties which his other position involved. His twofold position was a manifest contradiction."

Lush J. added (1924) 1 KB, at pp 259-260 :

"It must be clearly understood that if justices allow their clerk to be present at their consultation when either he or his firm is professionally engaged in those proceedings or in other proceedings involving the same subject matter, it is irrelevant to inquire whether the clerk did or did not give advice and influence the justices. What is objectionable is his presence at the consultation, when he is in a position which necessarily makes it impossible for him to give absolutely impartial advice. I have no doubt that these justices did not intend to do anything irregular or wrong, but they have placed themselves in an impossible position by allowing the clerk in those circumstances to retire with them into their consultation room."

As in that case, so in this the continued presence of a disqualified person is fatal to the validity of the decision taken as the result of deliberations in his presence. Also it seems to me that, had Mr. Smith been asked by the Board for his opinion as to whether what had happened was likely to be detrimental to the control and regulation of the sport, he would not have been in a position to have offered entirely objective and unbiased advice. (at p519)

15. I fully agree, with respect, with the above statements of principle which have been reinforced by their adoption and application in subsequent cases. The citations I have made from the judgments in R. v. Sussex Justices; Ex parte McCarthy (1924) 1 KB 256 sufficiently bear out the views I have expressed of the circumstances of this case as to leave no need for further discussion of the decided cases. The basic tenet that justice should not only be done but be seen to be done does not, of course, warrant fanciful and extravagant assertions and demands. What justice requires will ever depend on circumstances, and the degree to which it should be manifest that it is being done will likewise be related to the particular situation under examination by a supervising tribunal. But, in my opinion, dissatisfaction engendered in the mind of an observer aware of the facts, by the continued presence of Mr. Smith in this board room, having regard to his personal connexion with the matter in hand, is not extravagant or far-fetched. As I have said, a reasonable man could very properly suspect that the clear opportunity which Mr. Smith had for influencing the decision of the Board might well have been used. (at p519)

16. I am quite clear that Mr. Smith could not have properly participated in the discussion or decision of the matter concerning the appellant's conduct or in the imposition of a penalty. He was thus disqualified from acting as a member of the Board in relation to those matters. His continued presence in the room was inconsistent, in my opinion, with the requirements of natural justice. In my opinion, the rule for certiorari ought to be made absolute. (at p520)

17. APPENDIX. R. v. Sussex Justices; Ex parte McCarthy (1924) 1 KB 256 ; R. v. Essex Justices; Ex parte Perkins (1927) 2 KB 475 ; R. v. Justices of County of Armagh (1913) 2 IR 410 ; Allinson v. General Council of Medical Education and Registration (1894) 1 QB 750 ; Reg. v. Camborne Justices; Ex parte Pearce (1955) 1 QB 41 ; Leeson v. General Council of Medical Education and Registration (1889) 43 Ch D 366 ; Cooper v. Wilson (1937) 2 KB 309 ; Dickason v. Edwards (1910) 10 CLR 243 ; Reg. v. London County Council; Ex parte Akkersdyk (1892) 1 QB 190 ; Australian Workers' Union v. Bowen (No. 2) (1948) 77 CLR 601 ; Ethell v. Whalan (1971) 1 NSWLR 416 ; Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd. (1953) 88 CLR 100 ; Ex parte Angliss Group (1969) 122 CLR 546 ; Reg. v. Justices of Rankine River (1962) 3 FLR 215 ; University of Ceylon v. Fernando (1960) 1 WLR 223; (1960) 1 All ER 631 ; Banks v. Transport Regulation Board (Vict.) (1968) 119 CLR 222 ; Wiseman v. Borneman (1971) AC 297 ; Mobil Oil Australia Pty. Ltd. v. Commissioner of Taxation (1962) 113 CLR 475 . (at p520)

McTIERNAN J. I agree in the judgment of the Chief Justice. (at p520)

MENZIES J. A long line of authority establishes that the decision of a tribunal, whose duty it is to act judicially, will be invalidated if, while the tribunal deliberates and reaches a finding adverse to a person whose conduct is under scrutiny, there is present some person who, in fairness, ought not to be there: R. v. Sussex Justices; Ex parte McCarthy (1924) 1 KB 256 ; R. v. Essex Justices; Ex parte Perkins (1927) 2 KB 475 ; Cooper v. Wilson (1937) 2 KB 309 ; Reg. v. Camborne Justices; Ex parte Pearce (1955) 1 QB 41 ; Ex parte Angliss Group (1969) 122 CLR 546 . (at p520)

2. Authority further establishes that a person who has an interest adverse to, or in such proceedings, has been opposed to, the person on trial, is within the category of persons who in fairness ought not to be present at the deliberations of the tribunal: Dickason v. Edwards (1910) 10 CLR 243 ; Allinson v. General Council of Medical Education and Registration (1894) 1 QB 750 ; Reg. v. London County Council; Ex parte Akkersdyk (1892) 1 QB 190 . (at p521)

3. Here we are concerned with an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales which rejected the contention that proceedings of the Greyhound Racing Control Board on 13th August 1971, at which the appellant was found guilty and disqualified for twelve months upon a charge under Board r. 21 (2) (c) (iii) (a) that:

"... being a bookmaker registered with the Board (he) did an act which in the opinion of the Board was detrimental to the proper control and regulation of greyhound racing in that on 20th July, 1971, he did cause to be handed to Mr. N. Smith, the Manager of the N.S.W. Greyhound Breeders, Owners and Trainers Association Limited (Harold Park), a sum of money to wit $200.00."

were invalidated by the presence of Mr. Norman Smith at the meeting of the Board. (at p521)

4. Mr. Smith was himself a member of the Board; he was also the manager of the N.S.W. Greyhound Breeders, Owners and Trainers Association Ltd. which, inter alia, conducts greyhound racing at Harold Park. In the latter role, Mr. Smith could exercise a powerful influence in the determination of what nominations should be accepted for events at Harold Park. (at p521)

5. On 20th July 1971 Mr. Smith received from the appellant's wife an envelope containing nominations for the greyhounds, "Flying Seagull" and "Double Chariot", for events at Harold Park, together with ten $20.00 notes. The appellant was responsible for this and it was his conduct in causing $200 of his money to be handed to Mr. Smith that gave rise to the charge upon which he was found guilty and disqualified. To round out the story, it may be added that the appellant's explanation of his conduct was that, being elated with a good win by one of his dogs, he had decided to give a present to Mr. Smith who had always been obliging and had recently remarried and that in doing so, he had no ulterior purpose. (at p521)

6. There is no doubt that having opened the envelope and having ascertained that no fees were owing by the appellant, Mr. Smith suspected that an attempt was being made to bribe him. He immediately communicated his suspicion to members of his staff. He also made a verbal report to the Board on 23rd July 1971, and on 29th July presented a written report in which he set out the facts already stated together with his account of subsequent conversations to the effect (1) that in a telephone conversation with the appellant's wife on 22nd July 1971 he had asked why the $200 was in the envelope and had said to her that he looked on what had been done as a serious action and told her to inform her husband that he must contact him, and (2) that in a telephone conversation with the appellant on 26th July, there had been the following exchanges:

"I asked was he in the habit of giving presents to Club Officials when his greyhounds won and his reply was to the effect that he had never done it before and was sorry that he had caused 'such a fuss' and couldn't I accept the $200 as a gift to the Association as had been done in the past by bookmakers, I replied that I could not and would have to report the whole incident to the Board. Mr. Stollery asked me not to do this, as he would probably get into worse trouble than he was now, I informed him that I was sorry that he had done it as it was the type of thing that I was fighting against and I had a duty to the industry." (at p522)

7. It was upon this report that the Board called the appellant before it on 13th August 1971. The record of what then occurred is as follows:

"3. INTERVIEW - Mr. J. Stollery - bookmaker, 25A Percival Street, Bexley. Mr. J. Stollery was admitted. A report from N. Smith, manager of the N.S.W. Greyhound Breeders, Owners and Trainers Association Limited, dated 29th July 1971 was read to Mr. Stollery. He was shown the envelope containing the $200.00. At the conclusion of the reading a copy of the report of Mr. Smith was handed to Mr. Stollery. After reading the report Mr. Stollery agreed that to his knowledge the report was correct. Mr. Stollery submitted that in his 'phone conversation he stressed to Mr. Smith that the $200.00 was not to be connected with the nomination form. Mr. Stollery said he had been successful with his greyhound at Grafton. He felt he should give Mr. Smith something. He knew he had recently been married, he had heard his home had been burgled and he had just given it to his wife to give to Mr. Smith personally as a gift and in no way connected with the nomination form. He said his wife did not enclose a note with the money but he reiterated that it was given not to obtain preferential treatment but purely as a kindness. CHAIRMAN: I want you to understand that the Board has opened this inquiry in accordance with the Board rules.

MR. STOLLERY: The nomination for "Flying Seagull" was already in for the next meeting at Harold Park as it had won a qualifying trial and the other nomination was for "Double Chariot".

The nominations were not intended to be given to Mr. Smith by me but they were enclosed in the same envelope. However, the money was not intended to seek any privilege. Mr. Smith was asked whether he had informed any person associated with the sport other than the Board of the money. Mr. Smith said only the Board and his office staff who were bound to silence.

Mr. Stollery advised he had been registered with the Board for some twenty years. He had been engaged as a secretary of a branch of the Owners and Trainers. He was a man of good character. MR. FELL: In the 'phone conversation Mr. Stollery had with you Mr. Smith, did Mr. or Mrs. Stollery make any reference to a letter omitted in the envelope?

MR. SMITH: No. MR. FELL: Do you confirm this Mr. Stollery? MR. STOLLERY: Yes. Mr. Stollery withdrew. CHAIRMAN: Mr. Smith, do you wish to take any further part in the deliberations of the Board with the matter now before it?

MR. SMITH: No, I do not propose to take any part.

The Board conferred. MOVED by Mr. Fell seconded by Mr. Geldard THAT Mr. Stollery be charged under Board r. 21 (2) (c) (iii) (a) with being a bookmaker registered with the Board did an act which in the opinion of the Board was detrimental to the proper control and regulation of greyhound racing in that on 20th July 1971, he did cause to be handed to Mr. N. Smith, the manager of the N.S.W. Greyhound Breeders, Owners and Trainers Association Ltd. (Harold Park), a sum of money to wit $200.00.

CARRIED.

Mr. Stollery was readmitted and the charge was read. He was advised he could plead to the charge today or seek an adjournment to consider such charge and have legal counsel to assist him. MR. STOLLERY: I would like it decided today. I plead not guilty to the charge.

CHAIRMAN: What you have to do is to raise a reasonable doubt in the Board's mind that what you did was not detrimental to the proper control of greyhound racing.

MR. STOLLERY: I did not think this detrimental to greyhound racing. I was giving this to Mr. Smith, not as an official but as a person. I would not do anything detrimental to greyhound racing. I bought my first greyhound when I was selling papers. That is all I wish to say.

Mr. Stollery withdrew, the Board conferred. MOVED by Mr. Fell seconded by Mr. Geldard THAT Mr.
Stollery be found guilty as charged.

CARRIED.

QUESTION OF PENALTY: MOVED by Mr. Fell seconded by Mr. Geldard THAT Mr. Stollery be disqualified for twelve (12) months as from this date. CARRIED.

Mr. Stollery was readmitted and advised of the Board's decision and the $200.00 in question was handed to Mr. Stollery." (at p524)

8. The relevant rules of the Greyhound Racing Control Board are as follows:

"21. (1) ... (2) Without limitation of its powers under the Act, the Board may - (a) inquire into or investigate or cause to be inquired into or investigated any matter, act or omission which it suspects to be or intended to be or to have been dishonest, corrupt, fraudulent or improper in connexion with a greyhound or greyhound racing or which, in its opinion, is or may be detrimental to the proper conduct, control or regulation of greyhound racing; (b) ... (c) cancel or withdraw the registration of any owner, trainer, bookmaker or bookmaker's clerk and disqualify either permanently or temporarily and/or fine or warn off any such registered person or other person associated with greyhound racing from participating in or associating with greyhound racing who - (i) ... (ii) ... (iii) has been found guilty by the Board or Board Stewards or the Committee or Stewards of a club after notice to him and due inquiry of - (a) any dishonest, corrupt, fraudulent or improper act or practice in connexion with greyhound racing or any act which, in the opinion of the Board, is in any way detrimental to the proper control and regulation of greyhound racing, ..." (at p525)

9. It seems to me clear that Mr. Smith had brought to the Board a matter requiring investigation and had done so by a report which disclosed that he had formed the conclusion that what the appellant had done was, at least, seriously detrimental to the proper conduct or control of greyhound racing and that it was necessary to stamp out such conduct. He had also given the evidence upon which the charge against the appellant depended, albeit that the appellant himself accepted Mr. Smith's account of the actual events on 20th July 1971 and of the conversations which followed it. (at p525)

10. In these circumstances, I have come to the conclusion that Mr. Smith was disqualified from sitting as a member of the Board to consider and deal with the appellant's conduct and that his presence when the other members of the Board did so and found the appellant guilty as charged was not in conformity with the principles of natural justice. The basis of this conclusion is simply that in the circumstances, Mr. Smith had a personal interest in the outcome of the proceedings before the Board and had formed a conclusion, adverse to the appellant, about what their result should be. This is, of itself, enough to invalidate the proceedings and a court will not investigate whether or not his presence did in fact influence the decision of the Board. (at p525)

11. The Court of Appeal, as I have said, came to a different conclusion. It did so on the footing that, as Mr. Smith could have taken an active part in the proceedings as a member of the Board concerning the appellant without any departure from the principles of natural justice, his non-participating presence was unobjectionable. It is because I have, with respect to and for the reasons already indicated, formed a different conclusion about the first point, that I am constrained to differ from their Honours in relation to the second point. I should perhaps make it clear that there was no requirement that all members must participate in a decision of the Board. A quorum provision is contained in s. 56D of the Gaming and Betting Act, 1912-1968 (N.S.W.). Had it been required that there should be a full meeting of the Board in order to exercise its powers, the circumstances would, in my opinion, have been very different. Accordingly, I would allow the appeal. (at p525)

12. The period of suspension imposed on the appellant by the Board has now passed. It was, however, current on 7th January 1972 when the rule nisi for prohibition or certiorari was granted. In these circumstances, I consider that the Court of Appeal should have granted certiorari to quash the proceedings of the Board in relation to the appellant and that this is the order which this Court should now make. (at p526)

GIBBS J. I have had the advantage of reading the judgments of the Chief Justice and my brother Menzies. I agree with their conclusions, but since we are differing from the Court of Appeal, I would shortly state my reasons. (at p526)

2. The Court of Appeal considered that if Mr. Smith was disqualified from sitting on the Greyhound Racing Control Board ("the Board") when it came to deliberate on the question whether the appellant was guilty of any act which in the opinion of the Board was in any way detrimental to the proper control and regulation of greyhound racing, natural justice would require the decision of the Board, reached when Mr. Smith was present, to be set aside. This view was correct. It is true that the Board is not a regular judicial tribunal and that it has been doubted whether the principles which require the decision of a tribunal to be set aside if a member who was interested or biased was present when the decision was reached apply with the same strictness to the case of administrative bodies: Reg. v. London County Council; Re Empire Theatre (1894) 71 LT 638, at p 640 ; Reg. v. Huggins (1895) 1 QB 563, at pp 565-566 . However, when the Board is adjudicating as to whether a bookmaker should be found guilty of conduct that may result in his disqualification, it is making a decision which may have a serious effect on the rights and livelihood of the person whose conduct is called in question. Rules conferring jurisdiction of that kind must be construed as requiring that the proceedings should be carried on in accordance with the principles of natural justice, unless an intention to exclude those principles plainly appears: Australian Workers' Union v. Bowen (1948) 77 CLR 601, at p 631 ; Wiseman v. Borneman (1971) AC 297, at p 318 . No such intention appears in the rules of the Board; on the contrary, those rules required "due inquiry" in the present case - r. 21 (2) (c) (iii). The principles of natural justice are not rigid or technical. "The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth": Russell v. Duke of Norfolk (1949) 1 All ER 109, at p 118 . It is, however, clear that it would not be in accordance with the principles of natural justice for a person who was in truth the accuser to be present as a member of the tribunal when the charge which he had promoted was heard, even if he took no actual part in the proceedings: Reg. v. London County Council; Ex parte Akkersdyk (1892) 1 QB 190, at pp 195-196 ; Dickason v. Edwards (1910) 10 CLR 243, at pp 252-253, 256, 263 . The very presence of a person who has brought forward a complaint may, even unconsciously, inhibit the discussions and affect the deliberations of the other members of the tribunal. (at p527)

3. However, the Court of Appeal held that Mr. Smith was not disqualified from sitting with the Board. They took the view that, because the facts as reported to the Board by Mr. Smith were undisputed, Mr. Smith was in no different position from any other member of the Board. With all respect, I cannot accept this view. It was necessary for the Board, in deciding whether the appellant was guilty of the conduct alleged, to draw inferences from the undisputed facts and make judgments upon them. Mr. Smith had already drawn an inference and made a judgment - he had inferred that the appellant had offered him a bribe and had formed the view that the appellant's conduct was of the sort which he was trying to stamp out. In other words, he had made up his mind that the appellant had been guilty of conduct which was detrimental to the proper control and regulation of greyhound racing. When, holding these opinions, he had brought the matter to the attention of the Board he was, perhaps not technically, but in truth and substance, and not merely formally, making a charge against the appellant of a breach of the rules. He was in substance the accuser and therefore was disqualified to act as a judge. (at p527)

4. There is no suggestion that Mr. Smith acted otherwise than in good faith and with a desire to do his duty. He indeed moved to withdraw, first, when the Board conferred in the course of its preliminary inquiry, and again before the Board deliberated on the questions of guilt and punishment. He should not have been persuaded to remain, at least on the second occasion when the Board considered the questions whether the appellant had been guilty as charged and, if so, what punishment should be imposed upon him. Although he took no part whatever in the Board's discussions, his presence as a member of the Board rendered the proceedings invalid and the decision bad. (at p527)

5. The period of disqualification imposed by the Board has now expired. The Board's finding, however, may have continuing serious consequences for the appellant. For example, if he should again apply for registration the Board might claim to refuse to register him on the ground that it was of the opinion that it was in the interests of greyhound racing to refuse to register a person found guilty of conduct detrimental to the proper control and regulation of greyhound racing - see r. 17. Although the direct effect of the Board's decision is now spent, it may have indirect consequences and ought not to be allowed to stand. Of course, nothing that I have said reflects any view as to the merits of the actual decision made by the Board. (at p528)

6. I would allow the appeal. (at p528)

STEPHEN J. I agree that this appeal should be allowed and do so for the reasons stated in the judgment of my brother Gibbs. (at p528)

Orders

Appeal allowed with costs. Order of the Supreme Court

of New South Wales, Court of Appeal Division, set
aside and in lieu thereof order that the order nisi for
writ of certiorari, made by Mr. Justice Slattery on
7th January 1972 be made absolute. Respondent to
pay prosecutor's costs of the application.