Zucal v Harper
[2005] WASCA 76
•15 APRIL 2005
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JOHN ZUCAL, RWWA CHAIRMAN OF STEWARDS & ORS -v- HARPER [2005] WASCA 76
CORAM: STEYTLER P
WHEELER JA
PULLIN JA
HEARD: 10 MARCH 2005
DELIVERED : 15 APRIL 2005
FILE NO/S: FUL 62 of 2004
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 AppellantLOU AUSTIN, WATA DEPUTY CHIEF STEWARD
Third AppellantWESTERN AUSTRALIAN TROTTING ASSOCIATION
Fourth AppellantRACING AND WAGERING WESTERN AUSTRALIA
Fifth AppellantAND
LINDSAY BRETT HARPER
Respondent
FILE NO/S :CIV 1550 of 2004
BETWEEN :LINDSAY BRETT HARPER
Applicant
AND
JOHN ZUCAL, RWWA CHAIRMAN OF STEWARDS
First RespondentMATTHEW SKIPPER, WATA CHIEF STEWARD
Second RespondentLOU AUSTIN, WATA DEPUTY CHIEF STEWARD
Third RespondentWESTERN AUSTRALIAN TROTTING ASSOCIATION
Fourth RespondentRACING 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 D C Doherty
Fourth Appellant : Mr R J Davies QC & Mr D C Doherty
Fifth Appellant : Mr R J Davies QC & Mr D C Doherty
Respondent: Mr M J McCusker QC & Mr D P Sheales
Solicitors:
First Appellant : Freehills
Second Appellant : Freehills
Third Appellant : Freehills
Fourth Appellant : Freehills
Fifth Appellant : Freehills
Respondent: Mark Andrews & Associates
CIV 1550 of 2004
Counsel:
Applicant: Mr M J McCusker QC & Mr D P Sheales
First Respondent : Mr R J Davies QC & Mr D C Doherty
Second Respondent : Mr R J Davies QC & Mr D C Doherty
Third Respondent : Mr R. J Davies QC & Mr D C Doherty
Fourth Respondent : Mr R J Davies QC & Mr D C Doherty
Fifth Respondent : Mr R J Davies QC & Mr D C Doherty
Solicitors:
Applicant: Mark Andrews & Associates
First Respondent : Freehills
Second Respondent : Freehills
Third Respondent : Freehills
Fourth Respondent : Freehills
Fifth Respondent : Freehills
Case(s) referred to in judgment(s):
Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153
Colman v Miller [1906] VLR 622
Evan v Winterbottom (1945) 47 WALR 79
Farrell v Western Australian Turf Club Stewards; Racing Penalties Appeal Tribunal (WA); 22 December 1997
Gudgeon v Black; Ex parte Gudgeon (1994) 14 WAR 158
Harper v Racing Penalties Appeal Tribunal of Western Australia (1995) 12 WAR 337
Maund v Stewards of the South Australian Jockey Club; Racing Appeals Tribunal of South Australia; 15 June 1990
Maynard v Racing Penalties Appeal Tribunal of Western Australia (1994) 11 WAR 1
Stampalia v The Racing Penalties Appeal Tribunal of Western Australia [1999] WASC 7
Stephen v Naylor (1937) 37 SR (NSW) 127
Thomas A Edison Ltd v Bullock (1912) 15 CLR 679
Tooth & Co Ltd v The Council of the City of Parramatta (1955) 97 CLR 492
Turner v Queensland Harness Racing Board Stewards; Queensland Racing Appeals Authority; 11 September 1997
Zielke v South‑East Queensland Racing Association Appeals Committee; Queensland Racing Appeals Authority; 31 January 1997
Case(s) also cited:
Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501
Buckley v Tutty (1971) 125 CLR 353
Caddigan v Grigg [1958] NZLR 708
Commissioner of Police v Gordon [1981] 1 NSWLR 675
Hill v King (1993) 31 NSWLR 654
Knuckey v Smith, unreported; SCt of WA (Walsh J); Library No 870749; 23 December 1997
Lee v Showmen's Guild of Great Britain [1952] 2 QB 329
Malone v Marr [1981] 2 NSWLR 894
Project Tile Fixing Pty Ltd v Lane, unreported; SCt of WA (Malcolm CJ, Franklyn, Walsh JJ); Library No 980223, 10 March 1998
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100
R v Epping and Harlow General Commissioners; Ex parte Goldstraw [1983] 3 All ER 257
R v Hillingdon London Branch Borough Council; Ex parte Royco Homes Ltd [1974] QB 720
Tucket v Auckland Racing Club [1956] NZLR 1
STEYTLER P: This case comes before the Court by way of two separate routes. The first is by way of the return of orders nisi made on 27 April 2004 for the issue of writs of certiorari and prohibition. The second is by way of an application for leave to appeal against orders made by the primary Judge on that day. Because there will otherwise be confusion (the applicants in the leave to appeal proceedings being respondents in the order nisi proceedings), I propose to refer to the first three applicants for leave to appeal as "the Stewards", to the fourth and fifth applicants for leave to appeal as "the WATA" and "RWWA" respectively and to the respondent to the application for leave to appeal (the applicant in the order nisi proceedings) as "Harper".
Events Leading to an Inquiry
On 17 January 2004 a newspaper article appeared in "The West Australian" newspaper under the heading "Bikies threat to trots". It reported that the son of a well‑known racehorse trainer had been "brutally beaten by bikies and a trotting identity, sparking fears that bikies are moving in on the trotting industry". It also reported, amongst other things, that police sources had said that the beaten man had been "lured to a semi‑rural property … after the trotting identity reported having $70,000 stolen from his safe".
This led to the institution, by the Stewards, of an investigation. It was conducted by a racecourse investigator attached to RWWA, Mr P O'Reilly. The investigation revealed that the man who was reported to have been beaten was a farrier, Mr Adrian Taylor ("Taylor"). It also revealed that Harper was the "trotting identity" mentioned in the report and that the "semi‑rural property" belonged to him. Harper is a trainer and driver of horses used for harness racing.
The Stewards' Inquiry
Faced with the results of the investigation, the Stewards decided to conduct an inquiry under r 181 of the Rules of Harness Racing 1999 (WA) ("the Rules"). That rule reads as follows:
"The stewards may, and when directed by the Controlling Body [RWWA] shall, conduct inquiries or investigations in such manner as they think fit into any occurrence or matter at or arising out of or connected with a meeting, race or event, or into any aspect of the harness racing industry, or into anything concerning the administration or enforcement of these rules."
The inquiry commenced on 22 January 2004. At its outset, the Chairman of the Stewards informed each of Harper and Taylor that the Stewards considered the matter to be serious and that the evidence to be led might result in the laying of a charge or charges under the Rules. The Stewards then heard evidence from a number of witnesses, including Taylor.
In his evidence, Taylor said that he and Harper had "become good mates". He said that he had done gardening work for Harper at his stables "on and off for two years". He did this on two or three days each week and was paid $12 to $15 an hour. He said that he had also shod horses for Harper.
Taylor said that on the night of 29 December 2003 he was telephoned by Harper. Harper told him that his safe had been broken into and that he wanted Taylor to come round to his house. Taylor drove there with his brother Drew, but dropped Drew off shortly before driving into Harper's driveway. When he arrived at Harper's house, Harper opened the door and someone "grabbed" Taylor. Apart from Harper, Taylor said, there were initially three other men present. These were joined, a little later, by two others. Taylor said that he was taken into the garage of the house and struck with an iron bar around the knees, in the kidneys, around the face and on the bottom of his feet. Throughout the duration of this assault, Harper asked Taylor where the stolen money was. Taylor said that Harper kicked him during the course of his interrogation. He said that he was also doused with liquid which was poured out of a 20‑litre jerry can. He said that the assault continued for some 45 minutes, after which time his mother arrived at the house.
Taylor said that, as a result of the assault, he required stitches in the top of his head. He also had a badly swollen ear and severe bruising around both kidney areas and on his right knee. He had a hole in the side of one of his feet. The bottom of his feet were left "purple" by the assault and he was forced to sit in a wheelchair for "a couple of days".
Taylor's father, Mr Robert Taylor, a licensed racehorse trainer, also gave evidence. He told the Stewards what he knew of events on the night of 29 December 2003. He said that he saw his son that night, after the assault, and that he was "an absolute mess". He took his son to hospital and telephoned the police.
Harper was invited to comment on what he had heard from these two witnesses (he had been present throughout the proceedings). He declined to do so, on the basis of legal advice received by him. However, he said that he had never assaulted anybody and, in particular, that he had never assaulted Taylor.
Taylor's mother, Mrs Patricia Taylor, was then invited to give evidence. She said that on the night of 29 December 2003 she received two telephone calls from her son. On the first occasion he said only, "Drew, I'm on my way home." On the second he said, "Drew, I'm on my way home from Lindsay's." (Adrian Taylor later explained that he was given access to a telephone by Harper because Harper wanted him to persuade his brother to come to the house where, he said, Harper proposed to assault him also. Taylor said that he had, instead, telephoned his mother, hoping that she would realise that something was amiss). After receiving the second telephone call, Mrs Harper drove directly to Harper's house. She parked in the driveway. After a while, she saw a person walking towards her. She drove her car towards that person and recognised him as Harper. She asked him where her son was. He told her that Taylor had "gone for a ride with a couple of guys". Mrs Taylor told Harper that she did not believe him. She drove past him and stopped outside the house. She put her hand on the car horn for five minutes. At the end of that time the main door opened and her son came out, limping and crying. Harper was behind him. She said that Harper said to her, "It didn't happen here." She took her son home, before accompanying him to the hospital. She said that he had blood around his mouth, on his head and on his neck. At the hospital she saw red marks on his back and side. He had a "huge big egg" on the side of his face. She believed that his legs and feet were broken.
After Mrs Taylor had given evidence, the proceedings were adjourned. The Stewards had by then formed the opinion, based on the evidence already received, that the matter was one of grave concern and that, having regard for the "image and welfare of the industry", r 183 of the Rules should be invoked. That rule provides that:
"Pending the outcome of an inquiry, investigation or objection … the Stewards may direct one or more of the following -
(a)that a horse shall not be nominated for or compete in a race;
(b)that a driver shall not drive or otherwise take part in a race;
(c)that the horses of certain connections shall not be nominated for or start in a race;
(d)that a licence or any other type of authority or permission be suspended."
The Stewards told Harper that, pending resolution of the matter, he would not be permitted to drive in any harness race or to nominate any horse trained by him to compete in a race. He was also told that no nomination would be received from any horse in which he had an ownership interest. I will henceforth refer to these interim disqualifications as Harper's "suspension".
The inquiry resumed on 1 April 2004. On this occasion Harper was represented by a barrister, Mr Damian Sheales. Mr Sheales contended, on Harper's behalf, that the Stewards lacked jurisdiction to continue the hearing. He said that r 181 empowered the Stewards only to conduct an inquiry into any occurrence or matter at or arising out of or connected with a meeting, race or event, or into any aspect of the harness racing industry, or into anything concerning the administration or enforcement of the Rules, and that an alleged assault on a person unconnected with the harness racing industry was none of those things.
The Stewards ruled against him. The Chairman, after a brief adjournment to consider Mr Sheales' submissions, said:
"In considering your submissions, we see the following as pertinent.
1)Licensed persons are bound by the Rules of Harness Racing.
2)Licensed persons are expected to conduct themselves properly.
3)The alleged incident took place on training premises licensed by WATA and Racing and Wagering Western Australia.
4)The image, welfare and integrity of the trotting industry is highly significant. We have considered the Harness Rule of Racing 181 and believe that it is entirely appropriate that the Stewards continue with their inquiries into the report received from Mr O'Reilly."
The inquiry then continued. Taylor was extensively cross‑examined by Mr Sheales. He also supplemented the evidence which he had earlier given. He mentioned, amongst other things, that he had spoken to the police and that he had, on two occasions, been advised not to go ahead with a complaint because of fears for his safety. Patricia Taylor also gave additional evidence. She, too, was cross‑examined by Mr Sheales. Each of Taylor, Patricia Taylor and Robert Taylor volunteered evidence to the effect that attempts had been made to bribe them not to give evidence before the Stewards.
Harper, who continued to deny any wrongdoing, also gave evidence. He said that he had not had a close relationship with Taylor, who had done some gardening for him until November 2003. He said that he had discovered that Taylor was using drugs and, as a consequence, he told Taylor to collect his tools and leave. He said that he suspected that Taylor had stolen $70,000 from his safe on 19 December 2003. He acknowledged speaking to Taylor on the telephone on the night of 29 December 2003 (although he said that it was Taylor who had telephoned him). However, on the advice of his counsel he declined to answer any questions with respect to events on that night, other than to volunteer that he had not assaulted Taylor.
Once this additional evidence had been heard, and after Mr Sheales had taken the opportunity of making submissions to the Stewards, the Stewards formally charged Harper with contraventions of Rules 231 and 243. He was told that the Stewards believed that he had "a charge to answer" under each of those rules. He was invited to plead to each charge. He did so by pleading not guilty.
The two rules read as follows:
"231Assault and Interference
A person shall not assault, abuse or otherwise interfere improperly with anyone employed, engaged or participating in the harness racing industry or otherwise having a connection with it.
…
243Behaviour Detrimental to the Industry
A person employed, engaged or participating in the harness racing industry shall not behave in a way which is detrimental to the industry."
The Stewards were invited, by Mr Sheales, to lift Harper's suspension, pending determination of the charges. They declined to do so, saying that it was in the interests of the harness racing "industry" that the suspension be continued.
The Proceedings in the Supreme Court
By notice of originating motion dated 23 April 2004, Harper applied to the Supreme Court for prerogative relief. He sought four substantive orders. The first was an order nisi for the issue of a writ of certiorari to quash the decision of the Stewards made on 1 April 2004 to the effect that they had jurisdiction to continue the inquiry commenced by them on 22 January 2004. The second was an order nisi for a writ of prohibition prohibiting the Stewards from continuing their inquiry, on the ground that they lacked the jurisdiction to do so. The third was an order nisi for the issue of a writ of certiorari to quash the decision of the Stewards made on 1 April 2004 refusing Harper's application for the lifting of his suspension. Once again, Harper relied upon what he saw as an absence of jurisdiction on the part of the Stewards to continue the inquiry. The fourth order sought was one staying the suspension, pending determination of Harper's application by the Full Court.
The application was heard on 23 April 2004. No notice of it was given to the Stewards, the WATA or RWWA. The primary Judge, having heard submissions from Mr Sheales on behalf of Harper, made orders in the terms sought, save that the orders nisi were made returnable before a single Judge of the Court (Harper had, in the originating motion, asked that they be made returnable before the Full Court).
By notice of motion dated 14 May 2004 the Stewards, the WATA and RWWA, sought leave to appeal against the orders made by the primary Judge. They advanced two grounds of appeal. The first ground was to the effect that the orders nisi should have been made returnable before the Full Court, given the important issues which they raised. The second ground was to the effect that the order granting a stay of the Stewards' decision to suspend Harper had not been justified, for three reasons. The first reason was that no special circumstances had been present. The second was that the stay had unnecessarily interfered with the ability of the Stewards to control the participation of licensed persons in the harness racing industry. The third was that Harper's application for prerogative relief had "very little prospect of success".
On 2 June 2004 the primary Judge ordered that "the application for leave be heard together with the appeal and the Order Nisi to show cause by the Full Court constituted by three Judges".
The return of the orders nisi and the application for leave to appeal were heard by this Court on 10 March 2005. At the conclusion of argument, the Court unanimously ordered that leave to appeal should be granted in respect of ground 2, that the appeal on that ground should be allowed and that the order of the primary Judge imposing the stay should be quashed. The Court said that it would give reasons for that decision in due course. The Court otherwise reserved its decision with respect to the return of the orders nisi and the balance of the appeal.
The Issues
As will be apparent from what I have said, there were three issues which fell for decision. They were as follows:
(a)Should the orders nisi have been made returnable before the Full Court (now the Court of Appeal)?
(b)Was the subject matter of the continued inquiry beyond the jurisdiction of the Stewards?
(c)Should the primary Judge have stayed the decision of the Stewards to suspend Harper pending determination of the inquiry?
Because the first of those questions became moot upon the making of the orders on 2 June 2004, it is unnecessary to give it further attention. I will consequently deal only with the second and third questions.
The Jurisdictional Issue
Before answering the jurisdictional question, it is necessary to place it in context by examining part of the legislative scheme applicable to the harness racing industry.
Until 1 August 2003, the WATA regulated the harness racing industry in Western Australia. However, on that day the Racing and Wagering Western Australia Act 2003 ("the RWWA Act") came into operation. Section 35 of that Act conferred upon RWWA the functions, amongst others, of controlling, regulating and supervising racing in Western Australia (s 35(1)(a)) and of fostering the development, promoting the welfare and ensuring the integrity of thoroughbred racing, harness racing and greyhound racing, in the interests of the long‑term viability of the racing industry in Western Australia (s 35(1)(b)). Section 45 of the RWWA Act provides that RWWA may make rules of racing with respect to the control, regulation and supervision of, inter alia, harness racing that are required or permitted by the Act to be made or that RWWA considers necessary or convenient for the performance of its functions and the exercise of its powers. Until 1 August 2004, RWWA was content to leave in place the then existing Rules of Harness Racing (being the Rules to which I have been referring and which were applicable in this case) as amended from time to time. On that day, new RWWA Rules of Harness Racing (which are not presently relevant) came into effect.
Being delegated legislation, the new rules bind those to whom they are addressed by force of the RWWA Act. That was not the case with their predecessors. In Maynard v Racing Penalties Appeal Tribunal of Western Australia (1994) 11 WAR 1, the Court (Seaman, Ipp and Wallwork JJ) characterised the relationship between members of the racing industry and the rules applicable to that industry as being contractual. Similarly, in Harper v Racing Penalties Appeal Tribunal of Western Australia (1995) 12 WAR 337 at 346, Anderson and Owen JJ (with whom Malcolm CJ and Kennedy and Franklyn JJ were in agreement) considered that the Rules of Harness Racing (then described as the Rules of Trotting) were intended to have coercive effect consensually or contractually and not by legislative force. The Rules of Trotting then, of course, had a provenance different to that of the rules which have since been promulgated. Section 7(2) of the Western Australian Trotting Association Act 1946 ("the WATA Act") allowed for the creation of by‑laws that were "necessary or convenient for carrying out or generally giving effect to the purposes of the Act". The by‑laws so created took effect as delegated legislation. By‑law 59 in turn empowered the Committee of the Western Australian Trotting Association Inc to make rules of racing by which all persons participating in the industry were to be "absolutely bound". It provided, inter alia, that:
"Every person who owns, leases, trains, rides or drives a horse or has any share, interest, or part in the nomination, ownership, lease or training of a horse and every other class of person who purports to be referred to in and dealt with by any Racing Rule made under this by‑law shall be absolutely bound thereby, whether the same is or is not irregular or is or is not ultra vires of the Committee."
The Rules of Trotting were made pursuant to that by‑law. As was pointed out by Anderson and Owen JJ in Harper (at 346), the penalties provided for in those rules in many instances exceeded those which, by s 8 of the WATA Act, might be provided for by the by‑laws themselves. Also, r 2 of the Rules of Trotting provided that any person, club or other body who took part in any matter coming within the rules was to be deemed to have consented to be bound by them.
Now, pursuant to s 45(6) of the RWWA Act:
"Rules of racing [which, as I have said, may by s 45(1) be made with respect to the control, regulation and supervision of harness racing] apply to, and are binding on -
(a)RWWA, the board, directors, stewards and other officers, employees and agents of RWWA;
(b)racing clubs and their managing bodies, members, officers, employees and agents;
(c)persons having the management and control of racecourses or trial tracks and their employees and agents;
(d)trainers, owners and lessees of horses or greyhounds and their employees and agents;
(e)bookmakers, bookmakers' managers and bookmakers' employees who hold licences under the Betting Control Act 1954 and who accept wages at racecourses;
(f)jockeys, drivers, stablehands, attendants and all other persons participating in, or associated with the keeping, training and racing of horses or greyhounds; and
(g)all persons attending race meetings or trials or wagering at race meetings."
Reverting to the Rules which apply in this case, these make provision for the appointment of Stewards (r 14) and also for their powers (r 15). Amongst the Stewards' many powers enumerated in r 15 is a power "to entertain and determine all matters under question or in dispute … concerning the meaning or application of these rules, or concerning any aspect of the harness racing industry" (r 15(b)). I have earlier quoted the provisions of Rule 181 under which the inquiry was conducted in this case.
Before leaving the relevant aspects of the legislative scheme, I should mention the Racing Penalties (Appeals) Act 1990 (WA), which created the Racing Penalties Appeal Tribunal of Western Australia. Section 13(1) of that Act gives a right of appeal, to the Tribunal, to any person aggrieved by a determination or finding of RWWA, or of a steward, or of a racing club or committee, imposing any suspension or disqualification, whether of a runner or a person, or imposing a fine, or which results in a warning‑off, or in relation to any other matter where the Tribunal gives leave to appeal.
That brings me to a consideration of Rule 243.
I have said that that rule provides that a person employed, engaged or participating in the harness racing industry shall not behave in a way which is detrimental to the industry. Senior Counsel for Harper contends that, for this rule to have any application, the person concerned must not only be employed, engaged or participating in the harness racing industry, but his behaviour which is detrimental to the industry must also be connected, in some way, with the harness racing industry. He submitted that, were the position otherwise, the jurisdiction of the Stewards would be unreasonably wide. By way of example, he said, they would, in effect, be able to conduct a trial of alleged criminal conduct in circumstances in which they lack the requisite qualifications and are not subject to any of the requirements imposed upon, or safeguards implemented by, the courts. His contention is that the requisite connection is lacking in this case, the alleged behaviour having related to a private matter. Senior Counsel for the Stewards, the WATA and RWWA contends, on the other hand, that this is too narrow an interpretation of the rule and that it is enough, for the rule to apply, that one of the persons described in the rule has behaved in a way which is detrimental to the harness racing industry, regardless of the circumstances of the behaviour.
The parties were able to find little of assistance in the decided cases. However, we were referred to four decisions given by racing tribunals of one kind or another. All but one of them (the third of the Tribunal decisions discussed below) turned upon the terms of the then provisions of r 175A of the Australian Rules of Racing, as follows:
"Upon complaint being made to the stewards that a licensed person has either within or outside the boundaries of a racecourse been guilty of conduct contrary to the policy, or prejudicial to the interest, or welfare, or image of racing, the stewards shall have power to deal with such complaint …".
The first of the four decisions is that of Maund v Stewards of the South Australian Jockey Club; Racing Appeals Tribunal of South Australia; 15 June 1990. In that case a charge was laid against the appellant, Maund, as follows:
"Being at the stables of R.B. Morgan in the employee's accommodation room … you Dean Maund assaulted apprentice R. Kearny on what we believe to be Monday, 19 March 1990."
The ensuing hearing took place before Mr Justice B C Stanley, the then President of the South Australian Racing Appeals Tribunal. In his judgment, he said:
"I … believe that in line with the reasoning which found favour in Coleman [sic] v. Miller 1906 VR 623 [sic] and the American case of the State Racing Commission v. Robertson 172 North Eastern Report [sic] 2nd Series 628 that a provision such as:
'A licensed person who was either within or outside the boundaries of a racecourse being guilty of conduct contrary to the policy or prejudicial to the interest or welfare or image of racing'
may be too broad and indefinite to impose liability for conduct not having a direct relationship to racing.
I think that is the same approach that emerges from the decision of the Privy Council in Stephen v. Naylor 1937 NSW State Reports 127 that is: the conduct to be punishable must be shown to be conduct which bears a direct relationship to the person's occupation as a jockey or a licensed person."
However, Stanley J went on to say, a little later in his judgment, that:
"It may well be that an assault by a licensed person within or outside the boundaries of a racecourse can be shown to be contrary to the policy or prejudicial to the interest or welfare or image of racing but every assault that may be committed by a licensed person does not automatically fall within that rule. In the instant matter no such criteria were ever specified let alone found by the stewards. I am not prepared to hold that an assault by a licensed person is per se a breach of this rule.
Doubtless there are circumstances where an assault by a licensed person could be properly held to infringe the rule, but here I am left to conjecture as to the precise manner in which it is claimed that the conduct by the appellant breached that rule. I can only surmise that the stewards considered, and in my view wrongly so, that any proven assault by a licensed person meant that that person had breached this particular rule."
It is consequently plain enough, from the judgment of Stanley J, that his decision turned on the particular facts of the case before him and that he contemplated that, in an appropriate case, an assault by a licensed person outside the boundaries of a racecourse could properly be held to infringe the rule. However, he seems to have considered that the conduct, if it was to fall within the rule, must have had a direct relationship to racing.
The first of the two Australian cases to which Stanley J referred, that of Colman v Miller [1906] VLR 622, is of little assistance. It dealt with by‑laws made in respect of bookmakers under The Victoria Racing Club Act 1871. The Court held that, in order to be valid, those by‑laws, as with any other by‑laws interfering with private rights, must be reasonable and certain: at 625, per Hodges J, 630, per Hood J, and 632, per Chomley J.
The second Australian case referred to by Stanley J, that of Stephen v Naylor (1937) 37 SR (NSW) 127, turned in part upon the meaning of a by‑law made under the Australian Jockey Club Act 1873 (NSW). The by‑law, IX(4), provided that, amongst a category of persons who should not be admitted into any of the divisions of a racecourse, was "Any person who in the opinion of the Committee, is not a desirable person to be admitted". The matter came ultimately before the Privy Council which held (at 140) that the words "to be admitted", in their natural meaning, conveyed that "the undesirability in question is undesirability with regard to the consequences and effect of the presence in question upon the racecourse" and, hence, that reference to moral character or qualities unconnected with racing and racecourses was not intended or conveyed by the by‑law.
The second of the four Racing Tribunal decisions to which we were referred is that of Zielke v South‑East Queensland Racing Association Appeals Committee; Queensland Racing Appeals Authority; 31 January 1997. In that case Mr Zielke, a licensed trainer, assaulted a produce merchant with a cricket bat after being issued with a letter of demand in respect of unpaid accounts. He was charged under r 175A of the Australian Rules of Racing. The material part of the Racing Appeals Authority's judgment was expressed as follows:
"In cases like this … this Tribunal is heavily influenced by the fact that if an assault occurred outside the confines of the course, it is matter for the police and within the jurisdiction of the Civil Courts of the State, and although Mr Harding has made a good case for intervention by the Stewards, the Tribunal takes the view that matters such as this outside the racecourse with tenuous connection to racing are better left to the proper authorities. It is our view that the Rule certainly allowed the Stewards to inquire into Zielke's conduct but the question remains whether a penalty should have been imposed in the circumstances.
This requires a determination in [sic] the second point regarding the interest, welfare, and image of racing. The Tribunal is of the view that the incident was not really a racing related matter. The people involved did have connections with the industry and Zielke was licensed but it is hard to accept that conduct of this type outside a racecourse really has sufficient nexus to the industry of Racing to impact on its interest, welfare or image. On this issue this Tribunal is not satisfied.
That is not to say that the charge if proven in a court of competent jurisdiction followed by a conviction might not be relevant to whether Zielke is a fit and proper person to hold a licence."
This rather equivocal decision seems to me to be of little assistance. It appears to support the proposition that an inquiry was appropriate but that no penalty should have been imposed because the Tribunal was not satisfied that Zielke's behaviour had any sufficient consequence as regards the interest, welfare or image of the racing industry.
The third tribunal decision is Turner v Queensland Harness Racing Board Stewards; Queensland Racing Appeals Authority; 11 September 1997. This case turned upon Rule 416(c) of the Rules of Harness Racing (Qld), which was said by the Racing Appeals Authority to be not substantially different to r 175A of the Australian Rules of Racing. The Authority was called upon to deal with an "altercation", between licensed "trainer/drivers" at the Rocklea Paceway, which appeared to the Authority to provide grounds for both civil and criminal proceedings. The Authority found (applying Stephen v Naylor) that, having regard to a time lapse of more than three months since the incident "and … to the technical difficulty of associating the directness of the dispute with the person as a licensed person", an appeal against a fine imposed by the Stewards should be allowed.
The fourth Tribunal decision is that of Farrell v Western Australian Turf Club Stewards; Racing Penalties Appeal Tribunal (WA); 22 December 1997. In that case four licensed apprentice jockeys and one licensed trainee apprentice had thrown foodstuffs out of the window of a car at a person riding a bicycle. One of them, Farrell, was charged under r 175A of the Australian Rules of Racing. In his appeal, Farrell contended that the incident had occurred outside the geographical confines of the racecourse and that it was not a racing related matter. He said that the conduct complained of had no sufficient nexus to the racing industry and therefore could not be "prejudicial to the image … of racing" and that the police and the courts were the appropriate authorities to deal with the matter. The Tribunal, in a judgment given by its Acting Chairperson, Mr P Hogan, decided that it did not matter that the conduct had occurred outside the geographical confines of a racecourse. He said that there was no requirement under the rule that the incident be "a racing related matter". Nor, in his opinion, did it matter that the incident might have been dealt with by the police and the courts. As to the contention that the conduct complained of had no sufficient nexus to the racing industry, he found that there must be some connection to racing in order to attract the operation of the rule, but that this was "simply an application of the facts to the Rule". He said that there was, on the facts, a sufficient connection to the racing industry, given that there were five licensed persons together in the vehicle and that the incident occurred in Belmont, in which suburb the racecourse had been situated.
In the end, it seems to me that Rule 243, as with all rules, must be construed in accordance with the ordinary meaning of the words used, but taking into account its context, nature and purpose.
The words "detrimental to the industry" are wide and imprecise. However, they undoubtedly import a requirement of some injury to the industry itself, rather than merely to the reputation of the person engaging in the behaviour in question. The rule is similar, in that respect, to the rules of other sporting bodies. So, for example, in Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 166, Hunt J considered the Australian Cricket Board's Code of Behaviour, which included a paragraph to the effect that "Players must not indulge in conduct detrimental to the game". Hunt J said that that obligation was "clearly limited by its general context to conduct which is of that quality because it causes injury to the game by being known to the public".
That said, in a sport such as harness racing, involving public participation through betting on races, there is plainly a need for those administering the sport to maintain public confidence in its integrity and standards. If a person who is prominent in the harness racing industry engages in conduct which has the potential for being made public and which, if made public, will cause people to lose confidence in his or her integrity or standards (even if the conduct is unconnected with the racing industry), then it may very well be the case that that conduct will, as a consequence, have a flow‑on effect as regards the manner in which the harness racing industry itself is perceived. There is consequently no justification for giving Rule 243 a narrow construction of the kind contended for. If a participant in the harness racing industry has a high profile in that industry, as Harper seemingly does, then misconduct by that person which is public, or which has the potential to become so, may, depending upon its nature and seriousness, have a detrimental effect, if only by association, on the industry itself. The question whether it has that capacity is, in each case, one of fact and degree.
Senior Counsel for Harper, in urging upon us the narrow construction, sought to place some reliance upon the fact that, by Rule 90, the Controlling Body has the exclusive power to grant licences. He relied especially upon the fact that, under Rule 90(5)(a), either the Controlling Body or the Stewards may suspend or cancel a licence for breach of a term or condition of the licence but, under Rule 90(5)(b), only the Controlling Body may suspend or cancel a licence upon the ground that a person is not a fit and proper person to be associated with harness racing. He also mentioned that, by Rule 267, it is for the Controlling Body to decide whether or not to disqualify a person who is convicted of a crime or offence. He submitted that the Rules should consequently not be read as contemplating that the Stewards should be permitted to impose a suspension merely on suspicion of the commission of an offence.
I cannot accept this submission. The fact that the Controlling Body is responsible for licensing and for disqualifications in the case of persons convicted of crimes or offences, or in the case of those who are not fit to be associated with harness racing, does not detract from, or diminish in any way, the responsibility of the Stewards to inquire into and deal with infractions of the Rules, including, under Rule 243, behaviour (that may or may not amount to the commission of a crime or an offence) which is detrimental to the harness racing industry.
Finally, in this regard, it should not be forgotten that in this case all that the Stewards have so far done is to conduct an inquiry and lay charges. At the time when the inquiry commenced, and was continued, it was unclear what would be the circumstances found. At this stage, it is still unclear what facts may emerge in the course of the hearing in respect of the charges brought.
What is plain, though, is that there are allegations of a brutal and pre‑meditated assault, which must necessarily have had some potential to become publicly known (as it did), conducted upon a young man who had worked on licensed training premises owned by Harper, in circumstances in which that assault is said to have been carried out by a group of persons (the nature of whose association with each other and with Harper is as yet unclear) on Harper's licensed training premises and with his active participation and support. There is also the allegation by Mrs Taylor that Harper attempted to have her participate in a cover‑up of the fact that the assault had taken place on his premises. Moreover, there are, as I have said, allegations of an attempt to bribe those who were to give evidence to the Stewards about the assault, in circumstances which have yet to be fully revealed.
Whether any of these allegations will be proved remains to be seen. It also remains to be seen whether, after full investigation of Harper's alleged conduct (including the circumstances in which it is said to have been engaged in) and of his degree of prominence in the industry, any behaviour which he is found to have engaged in was such as to be detrimental to the harness racing industry. However, it seems to me that there was, and is, at least some potential for a finding of this last kind. That was enough to give the Stewards jurisdiction to embark upon their inquiry. It is also enough to give them jurisdiction to hear the charge which they have laid under Rule 243.
Similar considerations apply to the charge which has now been brought under Rule 231. There is no doubt, if Taylor's evidence is believed, that he was assaulted. Consequently, the questions which will fall for decision under Rule 231 are those of whether Taylor should be believed and, if so, whether Harper was, in one way or another, a party to the assault and whether Taylor was, at the time, "employed, engaged or participating in the harness racing industry" or had otherwise "a connection with it". The existing evidence in this last respect seems to establish that Taylor had been doing some gardening work for Harper at his stables, that he sometimes shod horses which raced in the harness racing industry and that he is the son of a licensed trainer (albeit, seemingly, one in the horse racing industry). What other facts, if any, will emerge that connect him with the harness racing industry remains to be seen, as does the answer to the question whether those facts, taken together with already known facts, are such as to establish a connection between him and the harness racing industry which is sufficient for the purposes of the rule. However, in my opinion the Stewards had the jurisdiction to embark upon, and to continue, their inquiry. They also have the jurisdiction to consider whether or not the charge which has now been brought under Rule 231 should be found to be proved.
Should the Primary Judge have Stayed the Decision of the Stewards?
As to the stay which was ordered by the primary Judge, I have mentioned that the Court concluded, on 10 March 2005, that it should not have been granted.
All parties accepted that the test for the grant of a stay in a case of this kind is that identified by Owen J in Stampalia v The Racing Penalties Appeal Tribunal of Western Australia [1999] WASC 7, namely, whether or not the applicant has demonstrated that "there are special circumstances sufficient to satisfy the Court that it is just and reasonable to order a stay so as to preserve the subject matter and integrity of the litigation". Owen J had earlier said (at [9]) that the phrase "preserving the subject matter of the litigation" is to be understood in a very broad sense (in that case the subject matter of the litigation was a challenge to the disqualification of a trainer for 12 months).
The special circumstances found by the primary Judge in this case appear to have been that Harper derives his livelihood from his licensed activities and that his livelihood would necessarily be jeopardised if he was unable to continue with them. The Stewards were aware of Harper's position in this respect and had formed the opinion, as a specialist body empowered by statute to regulate the harness racing industry (in Evan v Winterbottom (1945) 47 WALR 79 at 85 Stewards were described by Dwyer J as "functionaries of a very special character appointed for their knowledge of racing"), that the need to preserve the integrity, or public image, of that industry outweighed any financial hardship on his part. In my respectful opinion no basis was shown for upsetting that specialist body's exercise of discretion to make an interim order of this kind. Nothing had been put up which demonstrated that they had overlooked a relevant consideration, or taken into account any irrelevant consideration, or that their exercise of discretion had otherwise miscarried. While it was suggested that they lacked jurisdiction to continue their inquiry and to consider the charges laid, that argument was not, in my opinion, a strong one, even on a prima facie view, for the reasons which I have given.
Still less, in my respectful opinion, should the Stewards' exercise of discretion have been interfered with in circumstances in which they had been given no notice of the application for a stay of Harper's suspension. The submission was made to us that, because the Rules of the Supreme Court1971 (WA) empower the making of applications of this kind ex parte, there was no need to give any notice to the Stewards, or to the other interested parties. I cannot stress strongly enough that this is not the case. The process of applying ex parte exists in order to enable a party to come before the Court quickly and simply and in order to allow for the fact that it may be impractical or otherwise inappropriate to give notice to affected parties of the subject matter of the application as, for example, where there is the risk of imminent damage or where the giving of notice may defeat the very purpose of the application. However, it has long been accepted that "There is a primary precept governing the administration of justice, that no man is to be condemned unheard; and therefore, as a general rule, no order should be made to the prejudice of a party unless he has the opportunity of being heard in defence": Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 at 681, per Isaacs J; and see also Spry, Equitable Remedies, 6th ed, (2001) at 511. Isaacs J went on to say, in Bullock, (ibid):
"But instances occur where justice could not be done unless the subject matter of the suit were preserved, and, if that is in danger of destruction by one party, of if irremediable or serious damage be imminent, the other may come to the Court, and ask for its interposition even in the absence of his opponent, on the ground that delay would involve greater injustice than instant action. But, when he does so, and the Court is asked to disregard the usual requirement of hearing the other side, the party moving incurs a most serious responsibility."
In this case that "most serious responsibility" was not discharged. There was no justification for the failure to give notice to the Stewards and to the WATA and RWWA. Had notice been given, those persons or entities would have been able to put their perspective on matters to the primary Judge. They would also have been able to dispel any misconceptions (no doubt honestly created) arising out of the submissions made on behalf of Harper. So, by way of example, the primary Judge was told, as regards a matter which bore upon the exercise of his discretion (see Tooth & Co Ltd v The Council of the City of Parramatta (1955) 97 CLR 492 at 498 ‑ 499 and Gudgeon v Black; Ex parte Gudgeon (1994) 14 WAR 158 at 178 ‑ 179, per Malcolm CJ, with whom Nicholson and Pidgeon JJ were in agreement), that there was no right of appeal against the decision of the Stewards until the inquiry had ultimately been determined. That was not correct. I have already referred, in that respect, to the provisions of s 13(1) of the Racing Penalties (Appeals) Act which, at least, give a right of appeal by leave (I would leave for another day the question of whether or not interim orders of the kind made under rule 183 in this case amount to a suspension or disqualification for the purposes of s 13(1)(a)). Moreover, s 17(7) of that Act empowers the Tribunal, upon or prior to the hearing of an appeal, to direct, amongst others, the Stewards to suspend the operation of any order or penalty imposed, in relation to which there is a right of appeal, pending the determination of the appeal.
I am consequently satisfied, for all of these reasons, that the primary Judge erred in imposing the stay. That is why I joined in the making of the orders which set it aside.
Conclusion
It follows, from what I have said, that the orders nisi should be discharged, that leave to appeal should be granted, that ground 2 of the grounds of appeal should be upheld and, as we have already ordered, that the order imposing the stay should be set aside.
WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Steytler P. I agree with those reasons and have nothing to add.
PULLIN JA: I have had the advantage of reading in draft the reasons for decision of Steytler P. I agree with those reasons and have nothing to add.
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