MATTER :An application for an Order Nisi for Writs of Certiorari and Prohibition against JOHN ZUCAL, MATTHEW SKIPPER, LOU AUSTIN, the WESTERN AUSTRALIAN TROTTING ASSOCIATION and RACING AND WAGERING WESTERN AUSTRALIA; Ex parte LINDSAY BRETT HARPER, applicant

BETWEEN: JOHN ZUCAL, RWWA CHAIRMAN OF STEWARDS
First Appellant
MATTHEW SKIPPER, WATA CHIEF STEWARD
Second Appellant
LOU AUSTIN, WATA DEPUTY CHIEF STEWARD
Third Appellant
WESTERN AUSTRALIAN TROTTING ASSOCIATION
Fourth Appellant
RACING AND WAGERING WESTERN AUSTRALIA
Fifth Appellant
AND
LINDSAY BRETT HARPER
Respondent

FILE NO/S :CIV 1550 of 2004

BETWEEN :LINDSAY BRETT HARPER
Applicant
AND
JOHN ZUCAL, RWWA CHAIRMAN OF STEWARDS
First Respondent
MATTHEW SKIPPER, WATA CHIEF STEWARD
Second Respondent
LOU AUSTIN, WATA DEPUTY CHIEF STEWARD
Third Respondent
WESTERN AUSTRALIAN TROTTING ASSOCIATION
Fourth Respondent
RACING AND WAGERING WESTERN AUSTRALIA
Fifth Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :SIMMONDS J
File No  :CIV 1550 of 2004

Catchwords:

Prerogative writs - Certiorari and prohibition - Return of orders nisi - Alleged assault of person by harness racing identity - Whether stewards had jurisdiction to make inquiries into alleged assault under r 181 Rules of Harness Racing 1999 (WA) ("Rules") - Consideration of r 231 and r 243 of the Rules - What is behaviour "which is detrimental to" harness racing industry for the purpose of r 243 - Respondent suspended under r 183 of the Rules from training or driving in races pending outcome of inquiry - Whether primary Judge should have stayed the decision of the stewards to suspend the respondent - Test for grant of stay - Notice requirements in ex parte applications

Civil practice and procedure - Notice of ex parte applications - When required

Legislation:

Australian Cricket Board's Code of Behaviour

Australian Jockey Club Act 1873 (NSW)
Australian Rules of Racing
Racing and Wagering Western Australia Act 2003 (WA), s 35(1)(a), s 35(1)(b), s 45, s 45(b)
Racing Penalties (Appeals) Act 1990 (WA), s 13(1), s 17(7)
Rules of Harness Racing (Qld)
Rules of Harness Racing 1999 (WA), r 2, r 14, r 15, r 15(b), r 181, r 183, r 231, r 243
Rules of Harness Racing 2004 (WA)
Rules of the Supreme Court 1971 (WA)
The Victorian Racing Club Act 1871 (Vic)

Western Australian Trotting Association Act 1946 (WA), s 7(2), s 8

Result:

Leave to appeal granted
Orders nisi discharged
Appeal upheld; order of primary Judge imposing a stay to be set aside

Category: A

Representation:

FUL 62 of 2004

Counsel:

First Appellant               :     Mr R J Davies QC & Mr D C Doherty
Second Appellant          :     Mr R J Davies QC & Mr D C Doherty
Third Appellant             :     Mr R J Davies QC & Mr…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Zucal v Harper

Details

AGLC: Zucal v Harper [2005] WASCA 76
Case: [2005] WASCA 76
Decision Date: 15 APRIL 2005

CaseChat Overview and Summary

The case of Zucal v Harper involved a dispute arising from the alleged assault of a person by a harness racing identity. The matter was heard in the Supreme Court of Western Australia, where the respondent, Harper, was subject to an inquiry into the alleged assault under Rule 181 of the Rules of Harness Racing 1999 (WA). Harper was subsequently suspended from training or driving in races pending the outcome of the inquiry. Zucal sought prerogative writs of certiorari and prohibition against Harper and others, challenging the jurisdiction of the stewards to make inquiries and the validity of the suspension order.

The primary legal issues for the court to determine were whether the stewards had the jurisdiction to conduct inquiries into the alleged assault under Rule 181 of the Rules, and whether the suspension order was lawful. The court also had to consider the interpretation of Rules 231 and 243, particularly in relation to what constitutes behaviour "which is detrimental to" the harness racing industry. Another issue was whether the primary judge should have stayed the decision of the stewards to suspend Harper, and what the test for the grant of a stay in such circumstances would be. Additionally, the court needed to address the notice requirements in ex parte applications.

The court found that the stewards did have jurisdiction to make inquiries into the alleged assault, and that the suspension order was valid. The court held that behaviour detrimental to the harness racing industry for the purpose of Rule 243 includes actions that could bring the industry into disrepute or undermine public confidence. The court also concluded that the primary judge did not err in refusing to stay the decision of the stewards, as the test for the grant of a stay was not satisfied. Finally, the court determined that notice of ex parte applications is not always required, depending on the circumstances of the case.

In conclusion, the court dismissed Zucal's application for prerogative writs, finding that the stewards' inquiries and the suspension order were both lawful. The court also clarified the interpretation of Rules 231 and 243, and the test for the grant of a stay in such circumstances. The notice requirements in ex parte applications were also addressed, with the court holding that notice is not always necessary.

Orders