Webber v Racing New South Wales

[2019] NSWSC 46

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Webber v Racing New South Wales [2019] NSWSC 46
Hearing dates:	16, 17, 18 April 2018
Decision date:	06 February 2019
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Declaration made that the decision of the defendants given 1 September 2016 refusing to renew the plaintiff’s trainer’s licence for the period expiring 30 June 2017 was invalid.
Catchwords:	ADMINISTRATIVE LAW – judicial review – grounds of review – decision by Racing NSW refusing to renew a trainer’s licence to an experienced thoroughbred trainer – review of licence renewal application prompted by concerns stemming from workers compensation proceedings against the same entity as authorised workers compensation insurer – failure to disclose internal material adverse to plaintiff including material concerning workers compensation claims – late concession by decision-maker that the decision entailed denial of procedural fairness – whether necessary or appropriate to determine remaining grounds of review – where decision no longer operative at time of hearing – utility of relief sought – discretion to grant declaratory relief – impact of decision on plaintiff’s reputation and future applications for a trainer’s licence
Legislation Cited:	Racing Appeals Tribunal Act 1983 (NSW), s 5 Thoroughbred Racing Act 1996 (NSW), ss 4, 14(2)(b), 14AA, 24(1), 45 Uniform Civil Procedure Rules 2005 (NSW), rr 59.7, 59.9, 17.7
Cases Cited:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 FAI Insurances Ltd v Winneke (1982) 151 CLR 342; [1982] HCA 26 Perder Investments Pty Ltd v Elmer (1991) 31 FCR 201 Racing NSW v Lewin [2018] NSWCA 93 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Webber v Racing New South Wales [2017] NSWSC 687
Category:	Principal judgment
Parties:	Pam Anne Marie Webber (plaintiff) Racing NSW (first defendant) Peter N V’landys (second defendant)
Representation:	Counsel: V Heath (plaintiff) P Braham SC, J McLeod (defendants)   Solicitors: Stacks Goudkamp (plaintiff) Racing NSW (defendants)
File Number(s):	2016/362162
Publication restriction:	None

Judgment

1. HER HONOUR: Ms Pam Webber is a professional horse trainer with over 35 years’ experience training thoroughbreds. Until the events giving rise to these proceedings, she had been continually licensed as a trainer in New South Wales since 1994 trading through a company, aptly named “Fasteedious Pty Ltd”.

2. Racing NSW is a body corporate established by s 4 of the Thoroughbred Racing Act 1996 (NSW). Mr Peter V’landys, the second defendant, is its Chief Executive Officer. Mr V’landys is also the Secretary of both the Appeal Panel constituted under s 45 of the Thoroughbred Racing Act and the Racing Appeals Tribunal (Thoroughbred Racing Appeals) constituted under s 5 of the Racing Appeals Tribunal Act 1983 (NSW).

3. On 1 September 2016, Racing NSW or Mr V’landys as its delegate made a decision not to renew Ms Webber’s trainer’s licence for the period ending 30 June 2017. By these proceedings, Ms Webber seeks judicial review of that decision. The summons also seeks review of two further decisions refusing to accept the lodgement of appeals by Ms Webber to the Appeal Panel and the Racing Appeals Tribunal. However, in light of a concession made by the defendants and for the reasons explained at the conclusion of this judgment, it is not necessary to determine the claims for relief in respect of those decisions.

The defendants’ concession

4. The concession made by the defendants was that Ms Webber was denied procedural fairness in the making of the decision refusing to renew her trainer’s licence. The principal contest at the hearing before me was whether, even in the face of that concession, Ms Webber is entitled to the relief sought and whether the Court should proceed to determine the other grounds on which the decision was challenged. The additional grounds raise matters arising from hotly disputed workers compensation claims brought by Ms Webber against Racing NSW which she alleges informed the treatment of her licence renewal application in various ways.

5. It is appropriate to record the circumstances in which the concession as to denial of procedural fairness was made.

6. After Ms Webber applied for renewal of her licence for the 2016/2017 year, she was invited to attend an interview which was held on 15 July 2016. The decision not to grant a licence for the period in question was communicated to her after that interview in a letter dated 1 September 2016. The letter was brief, stating the reasons for the decision in the following terms:

“After considering all of the material before it, the Licensing Committee determined that in light of your financial position and performance (particularly with respect to work health and safety issues) you are unsuitable to continue as a licensed trainer.”

7. After the commencement of these proceedings, Ms Webber made a request pursuant to r 59.9 of the Uniform Civil Procedure Rules 2005 (NSW) for a statement of reasons for that decision. In response to that request, Racing NSW provided a copy of a memorandum dated 25 August 2016 from the Licensing Committee to Mr V’landys which Mr V’landys had adopted and which was said to reflect the reasons for his decision. The memorandum listed four matters that had been “particularly relevant” to the recommendation of the Licensing Committee.

8. Ms Webber subsequently served upon each defendant a notice to produce documents relating to those events. She could alternatively have sought leave under r 59.7 of the UCPR to seek discovery but evidently failed to take up an opportunity allowed under directions of the court to do so. In response to the notices to produce, the defendants filed a notice of motion resisting production of the documents sought, partly on that basis. The motion came before Beech-Jones J on 26 May 2017. His Honour made orders requiring Racing NSW to produce documents in substantially the terms sought in the notices to produce: Webber v Racing New South Wales [2017] NSWSC 687.

9. During the course of the hearing before Beech-Jones J, counsel for Racing NSW accepted that some of the material adverse to Ms Webber relied upon by Mr V’landys in deciding to refuse the licence renewal application (one of four matters listed in the Licensing Committee’s memorandum) had not been put to Ms Webber before the decision was made.

10. Justice Beech-Jones made reference to that omission in his judgment at [32] as follows:

“The allegation of improper purpose also derives significant support from the apparently inexplicable failure of either the Licensing Committee or Mr V’Landys to seek Ms Webber's comments on the third matter noted in the Licensing Committee's memorandum as described above. It was arguably apparent to Mr V’Landys there was a problem in that regard. The memorandum identified the date of the interview with Ms Webber as 15 July 2016, described the interview in terms that did not suggest that Ms Webber was given any opportunity to respond to an allegation that she engaged staff who were not properly licensed, and then referred to an incident that occurred the day after the interview, that is 16 July 2016. The memorandum did not suggest that Ms Webber was given an opportunity to address the matter in the meantime.”

11. At the conclusion of the judgment, after observing that Ms Webber’s legal advisers would need to give careful consideration (following the production of the documents) as to whether the allegation of improper conduct against Mr V’Landys could be maintained, his Honour further observed at [46]:

“Second, bearing in mind the above discussion about the third matter raised in the Licensing Committee’s memo, the defendants should understand that they are now on notice of the way in which at least one aspect of the plaintiff's case, namely, that there was a denial of natural justice, is to be framed. They should consider their position accordingly.”

12. Following that hearing and in light of those developments, Ms Webber sought judgment pursuant to r 17.7 of the UCPR on the basis that the remark that had been made by counsel for Racing NSW amounted to an admission of denial of procedural fairness. In the alternative, Ms Webber sought an interim mandatory injunction requiring Racing NSW to extend her licence until final order.

13. That application was heard by Latham J on 28 June 2017, two days before the expiration of the period to which the licence renewal decision related. On 30 June 2017, the application was dismissed with costs. Justice Latham considered that the remark was “an admission of fact that falls far short of an admission that conclusively resolves the judicial review proceedings in the plaintiff’s favour”: at [14]. Her Honour was not persuaded that the admission had “the requisite unambiguous quality” or was “capable of resolving the judicial review proceedings in the plaintiff’s favour without a hearing on the merits”: at [15]. The application for an interim mandatory injunction was also refused: at [21].

14. The proceedings accordingly had to be listed for final hearing. By that time, it was inevitable that the hearing would take place after the expiration of the relevant licence period. There was some further delay in obtaining a hearing date due to no fault of the Court or the parties. The matter was given an estimate of three days owing in part to the plaintiff’s counsel’s apprehension that Mr V’landys would give evidence and that she would be entitled to cross-examine him. In the event, he did not.

15. In written submissions served on the last working day before the final hearing, the defendants made an unambiguous admission that there had been a denial of procedural fairness. After referring to the interlocutory hearings before Beech-Jones J and Latham J, the submissions continued:

“Since that time, the real issue in the case has been whether, notwithstanding an error by Racing NSW that amounts to a denial of procedural fairness, the Court would grant Ms Webber the relief that she seeks. It is the position of Racing NSW that no relief is appropriate, because the operative period of the decision is long past, and Ms Webber has been permitted to, and is, making a new application for a trainer’s licence in respect of the current period, which is being considered by a fresh committee of Racing NSW without reference to the decision of Mr V’landys under review.”

16. As explained above, the operative period of the licence renewal decision was not “long past” at the time of the hearing before Latham J. It is regrettable that the decision to make the concession now made (that the “admission of fact” found by her Honour amounted to denial of procedural fairness) was not reached more quickly, as the defendants concede it ought to have been: T125.19.

Circumstances in which the licence renewal application was made

17. A great deal of evidence was put before the Court concerning the circumstances in which Ms Webber’s 2016/2017 licence renewal application was made. What follows is a potted history of relevant events.

18. Racing NSW has power under the Thoroughbred Racing Act, ss 14(2)(b) and 14AA, the Australian Rules of Racing, AR 7, and the Local Rules of Racing NSW, LR 51, to perform licensing and registration functions including to register or license, or refuse to register or license, or cancel or suspend the registration or licence of a trainer. Those functions are to be exercised so as to ensure that any individuals registered or licensed by Racing NSW “are persons who, in the opinion of Racing NSW, are fit and proper persons to be registered or licensed (having regard in particular to the need to protect the public interest as it relates to the horse racing industry)”: s 14AA(1) of the Act.

19. The Local Rules provide that, unless otherwise determined, most classes of licence (including a trainer’s licence) expire on the 30th day of June each year: LR 51(5). Accordingly, it was necessary for Ms Webber to apply for renewal of her licence each year.

20. As already noted, Ms Webber had also brought workers compensation claims against Racing NSW and, in accordance with the legislation governing such claims, had to deal directly with Racing NSW as approved insurer in respect of those claims. Ms Webber had during her career as a trainer sustained many injuries, mostly while riding (more accurately, falling) during track work. She claimed that her most serious injury was suffered in October 2012. From that date, she made a series of claims for workers compensation. Her claims were strongly resisted by Racing NSW. Ms Webber claimed that the degree of incapacitation due to her injuries combined with Racing NSW’s prolonged refusal to meet her claims placed her under extreme financial pressure. From early 2014, she became increasingly vocal in her complaints to Racing NSW, and Mr V’landys in particular, concerning the treatment of her claims.

21. In July 2014, Racing NSW admitted liability for a lumbar spine injury but still contested the weekly benefit claimed.

22. During the dispute, Racing NSW had obtained and served a number of surveillance reports. In February 2015, Racing NSW served Ms Webber with a surveillance report that she had been riding a horse at her training stables on several dates that month.

23. Much of that history was known in one form or another to the members of the Licensing Committee and Mr V’landys. As discussed in more detail below, there can be little doubt that events concerning the workers compensation claims informed their assessment of the licence renewal application for the 2016/2017 year.

Ms Webber’s licence renewal application for the 2015/2016 year

24. Before turning to that application, it is relevant to record some of the history of the application for the previous year. In June 2015, Ms Webber submitted her application for renewal of her trainer’s licence for the 2015/2016 training year. The class of licence for which she applied was a “Trainer: Non-Rider” licence which (if granted) ought ordinarily to have been operative from 1 July 2015 to 30 June 2016. The application was considered by Mr V’landys, who had been delegated the power to decide applications of that kind pursuant to s 24(1) of the Thoroughbred Racing Act.

25. At that time, Racing NSW had received a complaint that Ms Webber had failed to pay a trade debt of $990. Upon receipt of the renewal application, Racing NSW raised that complaint with her. Ms Webber contended that her impecuniosity at that time was a direct result of Racing NSW’s ongoing resistance of her workers compensation claims.

26. On 1 July 2015, Ms Webber’s trainer’s licence was renewed for a period of only six months expiring on 31 December 2015 on the following conditions: first, that she commit to a repayment plan of the $990 debt and, secondly, that there be a review by Racing NSW of any further reports of alleged outstanding debts or other evidence of her conducting her business in a manner “not consistent with that expected of a licensed trainer”. Following the review required by the second condition, the licence was extended on the same conditions for the remainder of the season, expiring on 30 June 2016.

27. In the meantime, in January 2016, the Workers Compensation Commission ordered Racing NSW to pay Ms Webber a lump sum in the order of $65,000. The degree of permanent impairment assessed at that time meant that she was also entitled to claim further weekly compensation, which she did. Racing NSW disputed her right to receive ongoing weekly compensation at that time.

28. By the end of February 2016, Ms Webber had received the lump sum payment and had repaid the debt of $990 in full.

Ms Webber’s licence renewal application for the 2016/2017 year

29. On 14 June 2016, Ms Webber applied for renewal of her trainer’s licence for the period from 1 July 2016 to 30 June 2017. On 27 June 2016, she received an email from the Licensing Supervisor, Mr Rudge concerning that application. Mr Rudge wrote, “to properly assess your licence renewal application, we need to understand the extent of [your workplace] injuries and what impact they may have on your ability to perform the labour related tasks that can accompany this role”. The plaintiff was also asked to sign a letter of authority permitting Racing NSW to access “any information and/or documentation relevant to [the] licence renewal”, including medical reports and documents.

30. Ms Webber contends that the determination to review those matters reflected a cynical shift in position on the part of Racing NSW; whereas in the workers’ compensation proceedings it had taken the position that she was overstating her incapacity to work, for the purpose of the licence renewal process the incapacity was taken at face value and relied upon as a concern regarding her fitness to operate as a trainer (even though the class of licence applied for was “Non Rider”).

31. On 30 June 2016, the plaintiff received a letter from Mr Rudge appointing an interview with the Licensing Committee and requiring production of specified financial and medical information. The grounds for the interview and information sought were stated to be: “I advise that Racing NSW has concerns about your capacity to conduct your training operations”. Ms Webber responded by inquiring, amongst other things, why those concerns had not been raised earlier. She asked for a list of agenda items or questions to be addressed at the interview. Racing NSW responded to that letter but did not answer Ms Webber’s questions at that time (they were answered in a subsequent email). The term of her existing licence was extended in the short term.

32. After providing financial and medical information with letters and emails on 13 and 14 July 2016, Ms Webber attended the interview on 15 July 2016.

33. By letter dated 19 July 2016, Racing NSW informed the plaintiff that, following the interview, it had “serious concerns about [her] ability to conduct [her] training operations in a viable manner” and requested production of further financial documents. The nature of the alleged concerns was not particularised. The term of Ms Webber’s existing licence was again extended in the short term.

34. The Licensing Committee then prepared the memorandum dated 25 August 2017 to Mr V’landys setting out the Committee’s reasons for recommending that the licence renewal application be refused. The four matters that had been “particularly relevant” in making that recommendation were as follows:

“1.   Ms Webber’s submissions in support of her application, as well as the position put forward in her 2016/17 Business Plan and her attempts to recover certain debts through the courts. However, the Licensing Committee is of the view that the financial position forecast in the Business Plan is overly optimistic and the likelihood of recovering those debts is low given Ms Webber’s previously unsuccessful attempts to do so.

2.   Ms Webber’s training operations are in an extremely poor financial position. Fasteedious P/L has debts to various suppliers in the order of $61,000 with over 92% of those debts being over 90 days – this is indicative of an insolvent company. Although Fasteedious P/L has receivables totalling around $112,000 approximately 87% of those amounts are over 90 days and it is therefore unlikely that Ms Webber will recover much (if any) of those amounts. Further, given Ms Webber’s training record over a long period of time and the competitiveness of the thoroughbred racing industry, there is little reason to expect a significant increase in training revenue (and certainly not the 40% forecast by Ms Webber in her 2016/17 Business Plan without any proper explanation being provided). The Licensing Committee is of the view that Ms Webber will not be able to trade her way out of the financial position she is in, and it is probably that if she continues to train she will continue to accrue debts with suppliers that extend beyond trading terms, particularly as they compound on existing supplier debts.

3.   Ms Webber regularly engages staff that have not completed the required processes to be licensed (despite those obligations being known to Ms Webber) and are not registered to carry out their duties for Ms Webber. Most recently, this occurred in the case of Stephen McIntyre, who was riding trackwork for Ms Webber on 16 July 2016 at Rosehill when he fell off a galloping horse, causing him to fracture his clavicle. Mr McIntyre was not licensed to ride trackwork and had not passed the required rider safety assessment. The Licensing Committee is of the view that Ms Webber’s disregard for her work health and safety obligations poses an unacceptable level of risk of injury to staff that she engages, as well as others carrying out work at racecourses/training facilities.

4.   Ms Webber advised during her interview that notwithstanding her long history of serious back injuries and being told by doctors not to undertake certain activities (e.g. carrying, lifting, twisting etc), she continues to do so (at times in pain) if her staff are not available at the time to carry out those particular activities. This includes leading horses, legging up jockeys, carrying saddles, saddling horses and loading horses onto floats. The Licensing Committee is of the view that Ms Webber’s disregard for her work health and safety obligations poses an unacceptable level of risk of injury to herself, staff that she engages, as well as others carrying out work at racecourses/training facilities.

35. Mr V’landys adopted the Committee’s recommendation.

36. By letter dated 1 September 2016, Mr V’landys informed Ms Webber of his decision (in the terms set out above). Ms Webber was informed that her extended licence would expire on 2 September 2016.

37. On 5 September 2016, Ms Webber lodged a notice of appeal to the Appeals Panel under LR 106. On 6 September 2016, she received a letter from Racing NSW informing her that she did not have a right to appeal to the Appeals Panel and that her appeal application fee had not been accepted. I will refer to that decision as the second decision.

38. On 8 September 2016, Ms Webber lodged an appeal with the Racing Appeals Tribunal. Again, she received a letter (dated 13 September 2016) informing her of Racing NSW’s opinion that she did not have a right to appeal to the Tribunal and refusing to accept her application fee. I will refer to that decision as the third decision.

Ground 1: procedural fairness

39. The first error alleged in the summons in respect of the licence renewal decision is that Ms Webber was denied procedural fairness. As already noted, Racing NSW concedes that she was. However, the concession was confined to a limited aspect of the allegation and it was contended that, although it followed that the decision was vitiated by jurisdictional error, Ms Webber is nonetheless not entitled to any of the relief sought.

40. The allegation of denial of procedural fairness was set out in detail in the summons at pars 55 to 62 and was the subject of lengthy further particulars provided by letter dated 25 September 2017 (part of Exhibit C). Without derogating from the careful detail of the particulars, the burden of Ms Webber’s complaint may be summarised as follows: that she made her application as an internationally trained and accomplished trainer of thoroughbred horses with a breadth of professional experience; that she had been continually licensed as a thoroughbred trainer in New South Wales since 1994; that in accordance with the provisions of the Thoroughbred Racing Act referred to above, Racing NSW is required to ensure that licensed persons are fit and proper persons to be licensed; that the refusal of a renewal of a licence accordingly carries an imputation adverse to the licensed person’s reputation that they are not a fit and proper person to hold a licence; that a thoroughbred trainer wishing to be licensed in any other jurisdiction would be required to disclose to that licensing authority a refusal to renew a licence in New South Wales; that she had a legitimate expectation that, absent misconduct or a change of circumstances, her licence would be renewed and that she had not been given notice of any charge or any breach of the rules such as to warrant the refusal to renew her licence. Rather, contrary to the usual procedure for annual renewal of a trainer’s licence, she was subject to a review process which linked her inability to pay outstanding debts with what was “expected of a licensed trainer”. That was in circumstances where her inability to pay outstanding debts was directly linked, she contends, to the ongoing resistance to her workers compensation claims by the same decision-maker.

41. Against that background, Ms Webber complained that she was not afforded an opportunity to respond to a number of matters relied upon by the Licensing Committee and adopted by the defendants, as follows (par (54) of the particulars to par (57) of the summons, set out from page 6 of the letter dated 25 September 2017 in Exhibit C):

“a.   The plaintiff’s business plan was overly optimistic

b.   Fasteedious Pty Ltd was insolvent

c.   there was something (unspecified) about the plaintiff’s training record that was adverse

d.   there was something (unspecified) about the plaintiff’s training record that made it unlikely she would realise an increase in training revenue

e.   the plaintiff was likely to accrue debits beyond trading terms

f.   the plaintiff regularly engages staff who have not completed required processes to be licensed and are not registered to carry out their duties for her

g.   the plaintiff had used quite a few unlicensed staff, whereas the staff should have been licensed and the plaintiff knew or should have known they were unlicensed and that so engaging the staff was improper

h.   the plaintiff’s unlicensed staff were Josefine Joensson, Kevin Clark, Abby Coleman, Lisa Mason, Molly Paisley Carruthers

i.   on 16 July 2016 Stephen McIntyre fractured his clavicle while riding for her at Rosehill and he was not licensed to ride trackwork and had not passed the required rider safety assessment

j.   the plaintiff disregarded her work healthy and safety obligations

k.   the plaintiff’s disregard of her work health and safety obligations poses an unacceptable risk to her staff

l.   the plaintiff’s disregard of her work health and safety obligations poses an unacceptable risk to others working at racecourses and training facilities

m.   the plaintiff carried out activities contrary to doctors’ orders

n.   the plaintiff performing particular tasks was in disregard of her work health and safety obligations

o.   the plaintiff performing particular tasks posed an unacceptable risk of injury to herself

p.   the plaintiff performing particular tasks posed an unacceptable risk of injury to her staff

q.   the plaintiff performing particular tasks posed an unacceptable risk of injury to others working at racecourses and training facilities

r.   by implication, there was some physical duties considered to be essential to the status of a licensed trainer that the plaintiff was not capable of performing or performing safely.

42. Ms Webber further contended that there was additional material relied upon by the defendants contained in a number of emails exchanged between Mr V’landys and employees of Racing NSW who were dealing with her workers’ compensation claim during the period in which Mr V’landys was deciding on the plaintiff’s licence renewal application.

43. The tone of the correspondence does not reflect well on Racing NSW in its capacity as an approved workers compensation insurer. On 13 May 2014, the Chief Executive Officer of the NSW Trainers Association (who had been advocating on Ms Webber’s behalf to progress the workers compensation claim) wrote to a number of people, including Mr V’landys, suggesting that Ms Webber had “won her case” and so would be able to repay funds lent to her from the benevolent fund. That prompted an internal inquiry to Mr John Galvin, the General Manager, Workers Compensation, Racing NSW, “Aren’t you on her tail?” Mr Galvin responded with a lengthy email addressed to a number of people, including Mr V’landys, dated 13 May 2014, giving a summary of the plaintiff’s workers’ compensation claim in which he complained that, in the “super sympathetic jurisdiction which is the WCC [the Workers Compensation Commission] the arbitrator indicated that he was prepared to accept her back condition and the need for surgery was substantially attributable to” a training-related injury in 2010. Mr Galvin proceeded to summarise surveillance and witness evidence that Racing NSW had gathered in relation to the plaintiff’s riding practices.

44. Ms Webber submitted that Mr Galvin’s comments in relation to the WCC implied that the plaintiff was untruthful as to the severity of her injuries and that she did not deserve to receive workers’ compensation.

45. In another email sent by Mr Galvin to Licensing Committee members dated 14 May 2015, he provided a further outline of his views of Ms Webber’s workers’ compensation claim, again referring to the workers compensation commission as “the world’s most sympathetic jurisdiction for claimants” and flatly describing Ms Webber as a “liar”.

46. There can be little doubt that information held by Racing NSW concerning Ms Webber’s workers compensation claims informed the approach of the Licensing Committee, in particular prompting the review of her physical fitness to operate as a trainer. So much is plain from the terms of the interview by the Licensing Committee and was in effect accepted in evidence by Mr Sweney, General Counsel of Racing NSW: Tcpt, 17 April 2018, p 76(42).

47. By reference to that material, a further aspect of ground 1 (as particularised in Exhibit C) was the contention that the defendants had regard to allegations, of which she was not informed, that she:

“a.    is a liar

b.    is dishonest

c.    lacked credit

d.    had mis-stated her financial position to the first defendant when under an obligation to tell the truth

e.    sought to dishonestly obtain benefits from the first defendant to which she was not entitled

f.   sought to dishonestly avoid payment of insurance premiums

g.   understated her capacity for work

h.   had made workers compensation claims against the first defendant that were false or grossly or improperly inflated

i.   had unrealistic expectations for the quantum of her workers compensation claim

that some [senior] officers of the first defendant had long held an opinion, of which the second defendant was informed, that the plaintiff could not make a living as a licensed trainer and should give up training and work as an employed hand or in some other occupation.”

48. The defendants’ concession was confined to particulars (f), (g), (h) and (i) set out at [41] above, being the points made in item 3 of the memorandum dated 25 August 2016 from the Licensing Committee to Mr V’Landys (set out above). Although the concession was confined in those terms, it was acknowledged that the error was jurisdictional and that the decision was accordingly invalid from the outset. In those circumstances, the defendants’ submissions did not address the Galvin emails.

49. I do not have any doubt that the tone and content of the correspondence concerning Ms Webber’s workers compensation claim informed the content and scope of the matters the subject of the Licensing Committee’s review. My consideration of that material has left me in no doubt that the procedure by which that review was carried out and the licence renewal decision reached miscarried for want of procedural fairness. For those reasons and on the strength of the defendants’ concession, I am satisfied that the decision refusing to renew Ms Webber’s licence was invalid.

Effect of the defendants’ concession – other grounds

50. The defendants submitted that their concession as to denial of procedural fairness was enough to satisfy the Court that relief may be available; that Ms Webber’s additional grounds could not advance her case any further and that the Court was therefore not required to determine those additional grounds. The submission was put in the following terms: at Tcpt, 17 April 2018, p 128(12):

“…parties come to court seeking relief and the Court has to determine whether the relief is granted or not, but there is no, in my respectful submission, broader principle that courts have to, as a matter of the independent duty of the Court, go through a pleading and answer every allegation. It’s an adversarial process and once a defendant concedes that the plaintiff is entitled to relief there is no issue to be determined…” [emphasis added]

51. If it was meant by that submission (in the words emphasised) to contend that, upon the making of a concession as to a particular jurisdictional error, the court has no authority to determine any other issue raised by an application for judicial review, I disagree. I do not accept that the court’s authority to decide is confined in that way as a matter of legal theory. I would, however, accept that there is good reason for the court in proceedings for judicial review to confine itself to deciding what is necessary in order to determine whether to grant the relief sought.

52. It is accepted that a judge at first instance should, against the risk of error in the primary determination founding the relief granted or refused, ordinarily determine all remaining issues of fact and law relied upon as an alternative basis for granting or refusing a remedy. However, as submitted by Mr Braham SC, who appears with Mr McLeod for the defendants, the need to do so is obviated where there is a concession as to the basis for the relief sought.

53. Mr Braham noted in that context that the Court’s discretion to grant relief upon review of an administrative decision has not historically been informed by the nature of the error that was found to exist. There is a measure of tension between that submission and the position taken by the defendants in the application determined by Latham J. In that application, the defendants submitted:

“…and prerogative relief is discretionary so the circumstances in which even if Ms Heath can persuade you that there has been a denial of natural justice, the circumstances in which she thereby becomes entitled to summary judgment would be narrowed because there is a discretionary question. We have not yet gone into evidence.”

54. However, I acknowledge that that submission was made before Racing NSW accepted that there had been a denial of procedural fairness. With some reluctance, I have come to the conclusion, for the reasons submitted by Mr Braham, that one jurisdictional error is enough and that it is not necessary and arguably not appropriate to determine whether the decision entailed error on any additional ground. As submitted by Mr Braham, that proposition may be tested by considering what legal consequence would be produced in the relationship between the parties if the Court were to discern any additional error in the licensing renewal decision; in circumstances where the operation of the decision is spent and the matter cannot be remitted for determination according to law, the answer must be that there would be none.

55. It was suggested on behalf of Ms Webber in submissions in reply that the determination of the other grounds would have some utility in the plaintiff’s ongoing attempts to obtain a licence. For the reasons submitted by Mr Braham, I do not think that can be right. In reaching that conclusion, I have given careful consideration to the additional grounds of review specified in the summons. I have not been persuaded that the determination of any of those grounds will have utility between the parties in the future.

What relief, if any, should be granted

56. It remains to consider what relief, if any, should be granted in respect of the admittedly invalid decision concerning the expired licence year.

57. The primary relief sought in the summons (so far as it remains relevant) is an order in the nature of certiorari setting the decision aside or, alternatively, a declaration that the decision is invalid.

58. Mr Braham submitted that, although the defendants have conceded a breach of procedural fairness with the consequence that the decision is invalid, there is no utility to any relief and that the principles stated in the authorities would suggest that the Court would not grant any relief. He submitted that an order in the nature of certiorari would not lie in circumstances where the decision is no longer operational. As to the alternative relief sought, Mr Braham submitted that the Court would not grant a “bare declaration”.

59. Ms Heath, who appears for Ms Webber, maintained her application for both forms of relief but with primary emphasis on the application for declaratory relief. At the conclusion of the hearing Ms Heath also foreshadowed an application for a mandatory injunction but it was accepted that any such application would have to be made following the publication of judgment.

60. As to an order quashing or setting aside the decision, Ms Heath submitted that such an order could be made in circumstances where the term for which a licence renewal could have been granted was not confined by the licence year. However, that is the licence period contemplated by the rules. Further, it is the period for which the application was in fact made (according to the form submitted) and to which the decision in fact related. In circumstances in which that decision no longer has any operation between the parties, I do not think it is appropriate to make an order in the nature of certiorari.

61. There is a stronger case for declaratory relief.

62. One may begin with the uncontroversial proposition that the relief sought does not lie as of right but is discretionary. It may be accepted, as submitted by Mr Braham, that, as with any discretionary relief, declaratory relief may be refused where there is no good purpose served by granting it. Mr Braham submitted that, broadly speaking, consideration in the authorities of the circumstances which might attract an exercise of the discretion describe what might broadly be summarised as utility questions. He noted that the court may exercise its discretion to refuse relief if the grant of relief would be futile, citing Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [56]-[58] per Gummow and Gaudron JJ. That is not the only proposition that may be drawn from that judgment. Their Honours acknowledged that such guidance cannot be exhaustive. Certainly, the discussion at [57] and following suggests disapproval of the proposition that relief should be denied according to the nature of the alleged irregularity.

63. Mr Braham further submitted that the Court should not grant a bare declaration. He acknowledged the principles stated by the High Court in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, where it was recognised that, although the decision had no legal effect or consequence, its effect of “blackening the appellants’ reputations” was relevant to their entitlement to declaratory relief. Mr Braham submitted that those principles do not apply in the present case because there has been no report published and any impact of the decision on Ms Webber’s reputation can only be internal.

64. In the circumstances I have recited concerning the coincident treatment of a workers compensation claim and the licence application, I am not persuaded that damage to Ms Webber’s reputation even internally within Racing NSW is irrelevant to this issue. In any event, it is clear on the evidence before me that the decision will have a relevant impact on Ms Webber’s standing in future applications. She tendered copies of application forms from other jurisdictions which make plain that it is likely plain she will, in any future application, have to answer a question concerning any prior refusal of a licence. Absent the relief sought, the answer to that question will be complicated, to say the least, and is likely to have an a real practical impact on the treatment of the application.

56. Mr Braham relied on a number of cases involving licence decisions of expired operation in which the conclusion has been reached that there was no utility in granting declaratory relief. It does not of course follow that there will never be any utility in making a declaration in the case of an expired decision. Such cases always turn on their own circumstances.

57. One decision relied upon by Mr Braham was Perder Investments Pty Ltd v Elmer (1991) 31 FCR 201. That was a case involving a refusal to allow the transfer of a fishing licence. By the time the appeal came before the Court, the licence and the time period in which the appellant could apply for licence renewal had both expired. It was held on that basis that an order setting aside the decision to refuse to transfer the fishing licence would have achieved nothing. If such relief had been granted and the matter remitted for consideration, the decision-maker would have been called upon to make a decision which, even if theoretically favourable to the appellant, could not have resulted in the appellant becoming the holder of a licence: at p 204.

58. Mr Braham acknowledged that Perder was decided before Ainsworth but identified subsequent cases in which the same approach has been taken. In my assessment, however, the critical consideration is the need for Ms Webber to be able to say, in answer to a question by a regulator in another jurisdiction, that she has not been denied renewal of her licence. That is particularly significant where the refusal was necessarily premised on at least an implicit finding as to her fitness and propriety. In the circumstances established on the evidence before me, the invalidity of the decision is not hypothetical.

59. Ms Heath relied in this context on the decision of the High Court in FAI Insurances Ltd v Winneke (1982) 151 CLR 342; [1982] HCA 26. In that case, FAI sought a declaration that the refusal of its application for renewal of approval for carrying on the business of workers’ compensation insurance in Victoria was invalid. FAI had made submissions to the relevant Minister about its application but was not given an opportunity to be heard after it was informed of the reasons for the Minister’s recommendation to refuse a renewal.

60. The Court found that there had been a breach of natural justice. In deciding whether to exercise the discretion to grant a declaration, Brennan J (as he then was) noted that, by the time the matter had come before the High Court, FAI’s application for renewal had expired but that its business had been affected (at p 420). In light of those circumstances, his Honour held that it was appropriate to grant a declaration invalidating the refusal of FAI’s application to ensure that the purported refusal was not taken to be determinative of any future application by FAI for approval as an insurer: and see Gibbs CJ at p 351, Stephen J at p 356, Mason J at pp 372-3 and Aickin J at p 387. Justice Aickin said at p 387 (Mason J agreeing at p 372), after noting that FAI’s application for renewal had expired and that, in that sense, relief could not have an operative effect:

“A further consideration is that courts are generally reluctant to deal with hypothetical questions but the position of the appellant in relation to a fresh application is not a purely hypothetical situation. It is realistic to suppose that a fresh application will be made and it would not be desirable that matters which have been fully litigated in the present proceedings should be re-litigated simply because no immediately effective order could be made.

…

Accordingly, I would regard a declaration in respect of the Minister’s earlier decision as having a sufficient indirect effect to warrant the Court making an order, notwithstanding the fact that it cannot have any direct operation in respect of past events.”

70. For those reasons, I consider it appropriate to make a declaration of invalidity in the present case.

The second and third decisions

71. In light of the defendants’ concession that the first decision entailed jurisdictional error, Ms Webber initially conceded, in turn, that it was not necessary for the Court to determine her challenge to the second and third decisions: Tcpt, 17 April 2018, p 122(5). So far as the third decision was concerned, that was because the Court of Appeal was due to hear an appeal in a case called Lewin concerning the validity and proper construction of the regulation in question. Ms Webber later sought leave to withdraw the concession in so far as it concerned the third decision in case there remained some utility in having a decision on those issues notwithstanding the outcome in the Lewin appeal: Tcpt, 18 April 2018, p 134(28).

72. The appeal has since been determined: Racing NSW v Lewin [2018] NSWCA 93. The effect of the decision is to confirm the position taken by Racing NSW that there is no right of appeal to the Racing Appeals Tribunal in respect of a refusal to renew a licence: at [31]-[35] per Basten JA; Bathurst CJ agreeing at [1]; Macfarlan JA agreeing at [43] with additional reasons. It follows that Ms Webber’s challenge to the third decision must fail and accordingly there is no utility in granting leave to withdraw the concession.

Conclusion

73. For those reasons, I make a declaration that the decision of the defendants given 1 September 2016 refusing to renew the plaintiff’s trainer’s licence for the period expiring 30 June 2017 was invalid.

74. As requested by Racing NSW during the hearing, I will hear the parties as to costs.

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Amendments

30 May 2019 - amendment to title name on coversheet

Decision last updated: 30 May 2019