The Darling Downs Harness Racing Cub Inc v The Queensland Harness Racing Board
[2000] QSC 176
•21 June 2000
SUPREME COURT OF QUEENSLAND
CITATION: The Darling Downs Harness Racing Cub Inc v The Queensland Harness Racing Board [2000] QSC 176 PARTIES: THE DARLING DOWNS HARNESS RACING CLUB INC
(applicant)
v
THE QUEENSLAND HARNESS RACING BOARD
(respondent)FILE NO: S2389 of 2000 (Brisbane Registry) DIVISION: Trial Division DELIVERED ON: 21 June 2000 DELIVERED AT: Brisbane HEARING DATE: 15 June 2000 JUDGE: Mullins J ORDER: I order that the decision of the respondent made on 21 February 2000 refusing the applicant's applications for race dates for the months of April, May and June 2000 and for the year 2000/2001 (July 2000 to June 2001) be set aside. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – Whether notice of subject matter for decision was fair and reasonable – factual error in decision – Judicial Review Act 1991 ss20(2)(a), 20(2)(h), 24(b).
Judicial Review Act 1991, ss20(1), 20(2)(a), 20(2)(h), 24(b)
Racing and Betting Act 1980, ss52(1), 52(2), 62Anghel v Minister for Transport (No 1) [1995] 1QdR 465
Attorney (NSW) v Quin (1990) 170 CLR 1
Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212
Kioa v West (1985) 159 CLR 550
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24COUNSEL: Mr RAI Myers for the applicant
Ms EM O'Reilly SC and Mr SA McLeod for the respondentSOLICITORS: Hede Byrne & Hall for the applicant
Deacons Graham & James for the respondent
MULLINS J: By application for a statutory order of review filed on 16 March 2000, The Darling Downs Harness Racing Club Inc ("applicant") seeks to review the decision of The Queensland Harness Racing Board ("respondent") made on 21 February 2000 not to allocate any race days to the applicant in the period April to June 2000 and in the year July 2000 to June 2001.
The respondent is constituted under s35 of the Racing and Betting Act 1980 ("the Act"). The applicant is incorporated under the Associations Incorporations Act 1981 and until February 2000 conducted harness racing meetings in Toowoomba.
The role of the respondent is set out in s52(1) of the Act as follows:
"The Harness Racing Board, subject to the direction of the Minister, shall have the control and general supervision through Queensland of trotting and the rules of trotting shall, to the extent necessary to give operation and effect to this section, be read subject to this section."
The functions of the respondent are set out in s52(2) of the Act as follows:
"(2) The functions of the Harness Racing Board are-
(a) to encourage trotting; and
(ab) to control, supervise and regulate trotting; and
(b)to initiate, develop and implement such policies as it considers conducive to the development and welfare of the trotting industry and the protection of the public interest; and
(ba)to cooperate with the other control bodies in relation to arrangements involving the industry relating to wagering on animal racing; and
(c)to take all such steps and do all such acts and things as are necessary or desirable to be done for or in connection with the performance of its functions."
It is common ground that the respondent in performing its functions allocates race days to the various trotting clubs. Rule 21 of the Rules of the Queensland Harness Racing Board which appear to be rules of trotting under the Act provides that the respondent may allocate to clubs and associations the dates on which meetings and races may be conducted. It is unlawful for a trotting club to conduct a trotting race or hold a trotting meeting, unless it is on a day which has been allocated by the respondent to the club under the Act: s62 of the Act.
By one letter dated 2 February 2000, the applicant requested the respondent to allocate it two race dates per month for April, May and June 2000. By a second letter of the same date, the applicant requested the respondent to allocate it two race dates per month for the 2000/2001 racing year (July 2000 to June 2001).
By letter dated 14 February 2000, the respondent advised the applicant that the two applications for race dates would be included in the agenda of the respondent's meeting schedules for 21 February 2000. That letter also advised:
"It is anticipated that the Board will finalise its position on Toowoomba's future at this meeting and you will be advised accordingly."
The reference to Toowoomba in that letter is a reference to the applicant.
The letter of 14 February 2000 was addressed to Mrs Nola Wagland, the president of the applicant. Mrs Wagland was absent from Queensland between 5 and 20 February 2000. That absence does not alter the fact that the letter of 14 February 2000 was sent to the applicant prior to the meeting set for 21 February 2000.
Both parties put in evidence concerning a telephone conversation between Mr Peter Caldwell, general manager of the respondent, and Mr Mervyn Webber, the treasurer of the applicant, on 16 February 2000. According to Mr Webber, rumours had been circulating within the industry to the effect that the respondent intended to decline further allocation of race dates to the applicant, Mr Webber therefore telephoned Mr Caldwell to inquire about the rumours and he was advised that the matter was on the agenda for discussion at the meeting scheduled for 21 February 2000. Mr Caldwell deposes to having the telephone conversation with Mr Webber in which he confirmed that the applicant's applications were on the respondent's agenda for 21 February 2000. The occurrence of this telephone conversation does not add anything to or detract from the notice given by the letter of 14 February 2000.
At the respondent's meeting held on 21 February 2000 the respondent refused the applicant's applications for additional race dates. The decision was conveyed to the applicant by letter dated 22 February 2000.
The grounds of the application made pursuant to s20(1) of the Judicial Review Act 1991 ("JRA") are:
"1.That a breach of the rules of natural justice happened in relation to the making of the decision in as much as the Applicant was not heard; the Respondent was not disinterested or unbiased in the matter that was decided and the decision was not based upon logically probative evidence.
2.That procedures that were required by law to be observed in relation to the making of the decision in terms of according to the Applicant the opportunity to be heard; in bringing a disinterested or unbiased mind to bear in the matter and in basing the decision upon logically probative evidence were not observed.
3.That the Respondent did not have jurisdiction to make the decision in as much as it was to the positive discouragement of trotting in the area whereas the Respondent's obligations in terms of Section 52 of the Racing and Betting Act 1980 were to encourage trotting and to initiate, develop and implement policies conducive to the development and welfare of the trotting Industry and the protection of the public interest.
4.That the decision was not authorised in terms of the Racing and Betting Act 1980 and was in fact in complete contravention of Section 52 thereof.
5.That the making of the decision was an improper exercise of the powers conferred on the Respondent by the Racing and Betting Act 1980 pursuant to which the Respondent purported to make its decision.
6.That the decision involved an error of law in as much as it was a decision made in contravention of the Racing and Betting Act 1980.
7.(a) That there was no evidence or other material to justify the making of the decision and such material and evidence as did exist obliged the Respondent to allocate fortnightly meetings on every second Thursday of every year to the Applicant.
(b) The respondent's decision was based on the existence of a particular fact which fact did not exist, namely that it could be seen from the applicant's financial reports that the applicant's modest profit had been achieved by severely restricting any allocation for normal repairs and maintenance and by using volunteer labour in almost every area of the club's operation.
8.That the decision was otherwise contrary to the law."
In order to deal with both parties' submissions, it is necessary to set out the history of dealings between the parties since May 1999.
On 4 May 1999 the respondent wrote to the applicant about the respondent's concern that the applicant had been unable to arrest significant operating losses with each race meeting. Reference was made to the financial statements for the period ending February 1999 showing that the applicant had an average loss per meeting of over $3,096. The respondent advised:
"... the Board ... has no option but to look at the rationalisation of clubs as the primary means of reducing infrastructure costs.
...
To this end, before race dates or prizemoney can be allocated to DDHRC for 1999/2000, the club will have to provide a business plan to the Board which clearly shows how the club can guarantee enough income to meet its current average operating costs. Should the club's plan not be approved by the board, it is probable that the club will be placed in recess from the 1st July and directed to prepare for dissolution."
The applicant responded by letter dated 24 May 1999. In that letter reference was made to a proposal that club members would man the bar and cafeteria on a voluntary basis. The letter included a petition that was conducted at Toowoomba supporting the continuance of harness racing on the Downs. The letter stated:
"Any moves to cease Harness Racing in the Downs area would have wide reaching detrimental effects on the industry as a whole."
On 31 May 1999 the respondent considered that there was insufficient detail in the letter from the applicant dated 24 May 1999 to make any firm decisions about reinstating race dates and prizemoney for the 1999/2000 year. It was resolved that if the applicant could produce a business plan which would satisfy the respondent that they could generate enough income to meet their normal operating expenses, including repairs and maintenance, then a limited number of meetings would be transferred from the allocation of Tuesday TAB meetings to Redcliffe and this would be on a trial basis with the applicant's performance being closely monitored. The applicant was advised of this decision by letter dated 1 June 1999.
Under cover of letter dated 22 June 1999, the applicant provided to the respondent income and expenditure for the current financial year to the end of May 1999 and forecasted income and expenditure for 1999/2000.
Ultimately the respondent agreed to approve one race meeting per month for the months August to December 1999. In advising the applicant of this under cover of its letter dated 27 July 1999, the respondent stated:
"During this period, all performance indicators will be monitored before further consideration is given to the club's future operations beyond December, 1999. Factors that will be taken into consideration will include:
· Financial results
· Nomination levels
· TAB turnover
· Overall impact of continued operation of Darling Downs on the Industry's Strategic Plan."
The applicant was advised that the five days were to be transferred from the current allocation of Tuesday meetings to Redcliffe Harness Racing Club and was requested to liaise with them when submitting proposed race dates.
The applicant was therefore on notice from the respondent that the respondent would be reviewing its performance in the period August to December 1999, as the respondent was going to consider the applicant's future operations beyond December 1999.
By letter 11 November 1999, the applicant applied to the respondent for an allocation of further race dates for the period January to June 2000. The applicant provided financial statements as at 31 October 1999 which showed a profit of $7,318.99 for the financial year which commenced on 1 July 1999.
That request for additional race dates was considered by the respondent at its meeting on 30 November 1999. The minutes record:
"There were diverse views of what action should be taken with DDHRC and the general consensus was that the overall benefits to the industry associated with continuing operations at Toowoomba were negligible.
After further discussion it was Resolved to allow three Tuesdays to be transferred from Redcliffe to Darling Downs, with the actual dates to be determined between the clubs. These dates were to be one per month from January to March 2000.
The GM was to advise the club that their future would be determined by a review of overall operations, taking account of the projected funding levels for 2000/2001.
The Board agreed that further rationalisation of clubs and/or race dates was a distinct possibility."
After the 30 November 1999 meeting, the respondent sent the letter dated 30 November 1999 to the applicant. That letter stated:
"At the Board meeting held on Tuesday 30th November, it was resolved that an additional 3 Tuesday race meetings be transferred from Redcliffe to Darling Downs (ie, one meeting per month for the period January to March 2000). The two clubs are to liaise with each other and advise the Board which dates have been agreed for transfer as soon as possible.
It is considered that by the end of March, additional information will be available to the Board to help them determine budgets and strategies for the 2000-2001 financial year.
With the projected funding available for the 2000/2001 year being anything up to $2M less than that available in the current year, it is anticipated that further rationalisation of clubs and race dates will be necessary to secure the future viability of the industry."
The letter of 30 November 1999 did not convey to the applicant that at the meeting on 30 November 1999 there was general consensus amongst the board members of the respondent that the overall benefits to the harness racing industry associated with continuing operations at Toowoomba were negligible. That view colours this statement that "further rationalisation of clubs and race date will be necessary to secure the future viability of the industry". There was also no express communication of the decision of the respondent that its general manager was to advise the applicant that its future would be determined by review of overall operations, taking account of the projected funding levels for 2000/2001.
The respondents circulated a memorandum to all clubs which included the applicant dated 18 January 2000 on the subject of race dates for 2000/2001. The memo stated:
"All clubs are to submit applications for race dates for the 2000/2001 season by 15 February 2000."
The memorandum also stated:
"Final allocation of race dates will depend on a number of things, including:
· Prizemoney available in the 2000/2001 budget
· Opportunities for optimum promotion of Grand Circuit races and major feature races
· Confirmation of coverage available from Sky Channel and the TAB
· Strategies to maximise TAB turnover."
No express mention was made in this memorandum that allocation of race dates may depend on whether the respondent made a decision about rationalisation of clubs, and in particular the applicant. This was likely to be a consideration, as a result of the general consensus reached by the respondent at the board meeting on 30 November 1999 that "the overall benefits to the industry associated with continuing operations at Toowoomba were negligible".
Another memorandum to all clubs including the applicant dated 21 January 2000 was circulated dealing with funding arrangements for 1999/2000. That memorandum referred back to an earlier memorandum from the respondent dated 28 June 1999 and stated:
"As there has been no negative feedback to the arrangements that have now been in place for just over 6 months, there will be no major changes made during the current financial year, with the exception of centralisation of prizemoney payments."
The applicant relies on this memorandum as an indication from the respondent that there would be no major changes made in respect of existing arrangements for allocation of race dates to the applicant. This memorandum was clearly concerned with a topic other than allocation of race dates and therefore cannot be resorted to as a communication in respect of allocation of race dates.
When the respondent was considering the applicant's request for race dates for the balance of the year ending 30 June 2000 and for the next financial year, the respondent had before it statistics on Tuesday meetings between 6 July 1999 and 1 February 2000 which showed in respect of the applicant and the Redcliffe club the nominations and number of races for each meeting together with TAB turnover and on course tote turnover for each meeting. An analysis had also been prepared of the trainers and starters at Tuesday meetings for the season. That analysis showed that, of all the trainers who raced at Toowoomba, only four trainers had raced exclusively at Toowoomba and that 157 trainers who had raced at Redcliffe on Tuesdays had not raced at Toowoomba.
In dealing with the applicant's application, the minutes note the tabling of the statistics and information concerning Tuesday race meetings and the board's consideration of that information. The minutes then record:
"(1) It was clear from the data provided that:
· TAB turnover was similar at both clubs
· On course tote performance at Toowoomba was far below that at Redcliffe
· Nominations for Redcliffe meetings were consistently higher than those recorded at Toowoomba
(2) In an analysis of trainers supporting both meetings, it was highlighted that only 4 trainers who had raced at Toowoomba had not also raced at Redcliffe on Tuesday afternoons. Conversely, 157 trainers who had raced at Redcliffe on Tuesday afternoons had not raced at Toowoomba.
(3) With regards to the club's financial performance over the limited number of meetings allocated in the current season, the club was showing a modest profit but as could be seen from their financial reports, this had been achieved by severely restricting any allocation for normal repairs and maintenance and by using volunteer labour in almost every area of the club's operation.
(4) It was also highlighted to the Board that the club did have money invested which had been accumulated in the days when their oncourse tote was regularly supported by the attendance of high volume professional punters.
(5) A lengthy debate followed where the Board asserted its belief that the future of the industry lay in more races at fewer venues to reduce the infrastructure and maintenance costs which would eventually eat into the prizemoney available to participants.
(6) A consensus was reached that at some time in the not too distant future it would probably be necessary to reduce the number of tracks in south east Queensland to a maximum of 3, while retaining the same number of races currently run.
(7) While the Board acknowledged the efforts of the current committee and members of the Toowoomba club, it unanimously agreed that the objectives and strategies of the Board would be best achieved by refusing Toowoomba's application."
I have inserted numbers (which do not appear in the minutes) at the commencement of each of the paragraphs to facilitate making reference to each of the paragraphs.
At the hearing of this application, there was no cross-examination of deponents. Submissions were made on the basis of the affidavits which had been filed by both parties. The respondent objected to much of the applicant's material on the basis that it was irrelevant to judicial review. It was submitted that such material could be relevant only to a merits review. I deferred ruling on the objections, until determining the application and deal with this general objection of irrelevance in paragraph 47 below. In addition, the respondent objected to paragraph 11.3 of Mrs Wagland's affidavit filed on 16 March 2000 on the ground that it is a comment. That paragraph is argumentative and I allow that objection.
It is trite, but it is necessary to record that review of a decision under the JRA is not a review of the merits of the decision. On judicial review, the court does not assume the function of the decision maker in making findings of fact. The court is concerned with the legality of the decision making process: Attorney (NSW) v Quin (1990) 170 CLR 1, 36. This application is not concerned with what is good for the trotting industry or whether, as the applicant asserts, Toowoomba is "the backbone of the industry". This is a review of the process by which the subject decision was made on such of the grounds provided for in the JRA which are advanced by the applicant.
Lack of Proper Notice
Grounds 1 and 2 of the application raise breach of the rules of natural justice in relation to the making of the decision and, in particular, failure of the respondent to give the applicant an opportunity to be heard.
This ground was expanded on in the written submissions of the applicant and in the oral submissions. It primarily focused on lack of proper notification to the applicant and depended on the applicant's characterisation of the communications between the applicant and the respondent between May 1999 and the respondent's meeting on 21 February 2000.
As a first step, it is necessary to determine what the principles of natural justice required the respondent to give by way of notice to the applicant of its proposal to consider at its meeting on 21 February 2000 the applicant's applications for allocation of race dates for the months of April 2000 to June 2001, in the context of a consideration whether the applicant should continue to operate as a trotting club at all.
The test to be applied in determining what procedures the principles of natural justice required the respondent to observe is what a reasonable and fair repository of the powers of the respondent would have done in the circumstances: Kioa vWest (1985) 159 CLR 550, 584, 626-7.
Determining what was reasonable and fair for the respondent to do in the circumstances must be determined against the background of the dealings between the applicant and the respondent from May 1999 and the nature of the role of the respondent.
As the respondent submitted, there was no statutory or administrative framework which required the respondent to afford the applicant the opportunity of a hearing in person or to attend the respondent's meeting schedule for 21 February 2000. An opportunity to be heard can still be given without an oral hearing, if notice of the matter under consideration by the decision maker is given to the party likely to be adversely affected in sufficient time to allow for written submissions or representations.
The applicant had been on notice since the receipt of the respondent's letter dated 27 July 1999 that the respondent was going to give further consideration to the applicant's future operations beyond December 1999. That the respondent in response to the applicant's request for race dates for January to June 2000 gave dates only for the period January to March 2000 did not displace the uncertainty about the applicant's future operations that was generated by the letter of 27 July 1999.
It is apparent from the minutes of the respondent's meeting on 30 November 1999 that the respondent was considering "rationalising" clubs and, in particular, considering the closing of the applicant. The memorandum to all clubs dated 18 January 2000 dealing with race dates for the year commencing July 2000 did not alert clubs including the applicant to the consideration being given by the respondent to one club being given no race dates or "rationalised".
Notwithstanding the uncertainty generated by the letter from the respondent to the applicant dated 27 July 1999, the general memorandum about race dates for the year commencing July 2000 was not consistent with that uncertainty continuing in relation to the applicant and, more importantly, did not convey the position of the respondent reflected in the minutes of its 30 November 1999 meeting about the future operations of the applicant.
It was argued on behalf of the respondent that the applicant was always aware that there was a possibility that it would receive no allocation for race dates, as requested, as the respondent clearly had the power to refuse any request for allocation of race dates. There is no doubt that, subject to procedural fairness, the respondent had the power to make a decision in respect of any request for allocation of race dates, that no race dates be given. There is a difference, however, in deciding an application for allocation of race dates by not allocating some or all dates requested and deciding whether or not to allocate any race dates against a background of the wider consideration of the need to rationalise one club and whether the particular club's operations as a trotting club should continue.
What would have been fair and reasonable to accord procedural fairness to the applicant in the circumstances would be for the respondent to have given the applicant notice of its intention to consider the applicant's application for race dates for the period April 2000 to June 2001 in the context of making a decision about whether or not the applicant should continue to operate at all, when the respondent's meeting on 30 November 1999 had reached a consensus view about the negligible benefits for the industry associated with the continuing operations of the applicant.
It appears that the respondent recognised its obligation to give notice to the applicant. That must be the explanation for why it sent the letter of 14 February 2000 to the applicant.
The next step is whether the letter from the respondent to the applicant dated 14 February 2000 amounted to the requisite notice to ensure that procedural fairness was given to the applicant.
The applicant could have no doubt from the letter from the respondent of 27 July 1999 that its future operations beyond December 1999 were going to be considered by the respondent. To the extent that may have been clouded by the general memorandum of 18 January 2000, the respondent's letter of 14 February 2000 squarely raised the respondent's intention to consider the applications by the applicant for further race dates in the context of a consideration of the applicant's future. The reference to the applicant's future in that letter could be a reference only to its future operations as a club.
It was critical to the respondent's decision making in relation to the applicant's applications for further race dates, that the respondent had reached a view about the negligible benefits for the industry associated with the applicant's continuing to operate as a trotting club. This view had been reached at the meeting on 30 November 1999 without giving the applicant an opportunity at that stage to make submissions on that issue. Simply giving the applicant notice that at the meeting on 21 February 2000 the respondent was going to consider the applicant's future did not fairly apprise the applicant of the context in which that consideration was being undertaken. Without that notice, the respondent denied the applicant the opportunity to be heard on whether it should be allowed to continue to operate in the light of the view formed by the respondent that there were negligible benefits for the industry associated with the continued operation of the applicant as a trotting club.
The paragraphs in the affidavits filed on behalf of the applicant to which objection is made on the ground that they are irrelevant to judicial review set out the matters which the applicant no doubt would have brought to the attention of the respondent, if given an opportunity to be heard on the real decision being undertaken by the respondent. I accept that those paragraphs cannot be relied on by the applicant to advance a merits review. The paragraphs are relevant however, to show that it would not have been futile to have given proper notice to the applicant. I overrule the objection.
The applicant has therefore made out its ground under s20(2)(a) of the JRA that there was a breach of the rules of natural justice in relation to the making of the decision by the respondent in that appropriate notice of what was being considered by the respondent at its meeting on 21 February 2000 was not given to the applicant.
It is therefore strictly unnecessary to consider the other grounds relied on by the applicant. As extensive submissions were addressed by both parties to each of the grounds, I will briefly deal with them.
Bias
The applicant submitted that the formation of the view by the respondent at its meeting on 30 November 1999 meant that the respondent had a preconceived notion for rationalisation within the industry directed at the applicant which amounted to bias in considering the applicant's applications for allocation of race dates.
The respondent has a statutory role to fulfil and in doing so must form views as a step in the process of developing and implementing policies and strategies for the development of the trotting industry. The role of the respondent can be contrasted to that of a decision maker in a judicial or quasi judicial role.
The formation of its view about the need to rationalise a club and the negligible benefits to the industry as a whole of the continuation of the applicant's operations was therefore something which could be characterised as properly being part of its decision making process, provided the rules of procedural fairness were observed. The view formed by the respondent on 30 November 1999 cannot be attacked as bias.
Improper Exercise of Power
The applicant submitted that the decision was vulnerable on the basis that the respondent had:
(a) taken irrelevant considerations into account in the exercise of the power;
(b) failed to take a relevant consideration into account in the exercise of the power; or
(c) exercised the power for a purpose other than a purpose for which the power was conferred.
The applicant relied on the matters set out in paragraphs 2, 5, 6 and 7 of the minutes of the meeting of 21 February 2000 as irrelevant considerations.
It was stated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40:
"In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard ... ."
Having regard to the subject matter of the paragraphs of the minutes which the applicant seeks to characterise as irrelevant considerations, they are not matters which the respondent could be prevented from taking into account, if the applicant had been given proper notice of the real issue under consideration by the respondent at its meeting on 21 February 2000.
The relevant consideration which the applicant submitted the respondent had failed to take into account in making its decision was the need to preserve the applicant as an operating trotting club for the benefit of harness racing in Queensland.
The respondent relied on the statements of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 39-40 as to what is a relevant consideration. It was stated by Mason J at 39:
"The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision ... ."
That does not apply to what the applicant submitted was the relevant consideration which the respondent omitted to take into account.
The applicant's submissions directed to its claim that the respondent exercised its power to refuse to allocate race dates to the applicant for a purpose other than the purpose for which the power was conferred was based on the respondent's making of the decision by reference to the broader considerations which it took into account. This point is more appropriately analysed in terms of procedural fairness rather than improper exercise of power.
On a proper construction of section 52 of the Act, there was no basis whatsoever for grounds 3 and 4 of the application.
Error of Law
It is not necessary to consider this submission which was intended to be advanced only if a finding were made that financial considerations were the only relevant considerations to determine the applicant's entitlement to an allocation of race meetings.
No Evidence
The applicant made submissions relying on s20(2)(h) of the JRA. Towards the end of the hearing, it was apparent that those submissions were directed at a ground which was not squarely raised by the application. Leave was given to the applicant to amend the grounds set out in the application to include paragraph 7(b). Paragraphs 8.4, 8.5 and 8.6 of Mrs Wagland's affidavit filed on 26 May 2000 disagreed with the factual matters set out in paragraph 3 of the minutes of the respondent's meeting held on 21 February 2000.
I gave leave to the respondent to put in written submissions dealing with the amended ground of the application and leave to the applicant to put in a written submission in response to the further written submission of the respondent.
The respondent's written submission concerning ground 7(b) of the application was accompanied by an affidavit of Mr Caldwell sworn on 16 June 2000. I give leave to the respondent to read and file that affidavit in connection with the application.
The respondent conceded that paragraph 3 of the minutes was incorrect when it stated that the applicant was showing a modest profit for the current season "by using volunteer labour in almost every area of the club's operation." Mrs Wagland deposed to volunteer labour being used for two gate attendants, one bar attendant, three or four persons to operate the barbecue and the persons who cleaned on conclusion of the race meetings. It was apparent from the list of paid staff used by the applicant on race days that the volunteer labour was not being used in "almost every area" of the applicant's operation. It was submitted by the respondent that its decision have referred to the use of volunteer labour "in some areas" of the applicant's operation.
With respect to the fact set out in paragraph 3 of the minutes of the respondent's meeting dated 21 February 2000 that the modest profit had been achieved by "severely restricting any allocation for normal repairs and maintenance", Mrs Wagland deposed as follows:
"On no occasions has our Club failed to attend to any necessary repairs or maintenance."
The respondent submitted that there is not shown to be any correlation between "necessary" repairs or maintenance and "normal" repairs or maintenance.
It is for the applicant to show that a fact found by the respondent is incorrect. On the basis of the evidence that was relied on by the applicant, it has not shown that it did not restrict any allocation for normal repairs and maintenance during the relevant period.
It is therefore necessary to consider the consequence of one fact found by the respondent in its decision making process now shown to be wrong.
The parties relied on s24(b) of the JRA which provides:
"The ground mentioned in sections 20(2)(h) and 21(2)(h) is not to be taken to be made out –
...
(b) unless –
(i) the person who made, or proposes to make, the decision based, or proposes to base, the decision on the existence of a particular fact; and
(ii) the fact did not or does not exist."
Section 24(b) is satisfied in respect of the fact relating to the use of volunteer labour.
It is not enough however to comply with s24(b) of the JRA in order to make out the ground under s20(2)(h) of the JRA. Section 24 imposes an additional requirement of which the court must be satisfied, before an order of review is granted under the ground in s20(2)(h) in circumstances where such a ground is otherwise made out: Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212, 224; Anghel v Minister for Transport (No1) [1995] 1QdR 465, 473.
If it had been necessary to consider the ground under s20(2)(h) of the JRA, the applicant has not shown that there was no evidence or other material to justify the making of the impugned decision.
Relief
As the applicant has made out the ground that there was a breach of the rules of natural justice in that the applicant was not given appropriate notice of what was being considered by the respondent at its meeting on 21 February 2000. I order that the decision of the respondent made on 21 February 2000 refusing the applicant's applications for race dates for the months of April, May and June 2000 and for the year 2000/2001 (July 2000 to June 2001) be set aside.
The applicant claims ancillary relief in its application. I will hear the parties on what further relief, if any, should be ordered. I will also hear the parties on costs.
0
3
2