//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[1979] HCA 27
High Court of Australia
1979-06-21
Aickin JJ, Waddell J, Samuels JJ, Mahoney J
Original judgment source is linked above.
High Court of Australia Barwick C.J. Gibbs, Stephen, Murphy and Aickin JJ. Forbes v NSW Trotting Club Ltd [1979] HCA 27
ORDER Appeal allowed with costs. Order that the judgment of the Supreme Court of New South Wales (Court of Appeal) be set aside and in lieu thereof it be ordered:
(1) That the appeal to that Court be allowed with costs.
(2) That the judgment of Waddell J. be set aside and that in lieu thereof there be granted a declaration that the resolution of the defendant resolving that the plaintiff be forthwith and henceforth excluded from admission to the Harold Park Paceway and Menangle Paceway and any other course which may now or in the future be occupied by or come under the control of the New South Wales Trotting Club Limited is ultra vires and void; and it be ordered that the defendant pay to the plaintiff his costs.
The appellant was the plaintiff in a suit brought in the Equity Division of the Supreme Court of New South Wales for a declaration that a resolution passed by the Committee of the respondent, to the text of which I shall later refer, was ultra vires and void and for consequential injunctive relief: but damages were not claimed for things done in pursuance of the resolution. His suit was dismissed by the primary judge (Waddell J.) His appeal to the Court of Appeal Division of the Supreme Court was, by majority, dismissed (Hutley and Samuels JJ.A., Mahoney J.A. dissenting). His appeal to this Court is brought pursuant to the special leave of this Court.
The appellant is a professional punter, formerly a regular attendant at trotting meetings including, and perhaps principally, those held on the respondent's courses at Harold Park and Menangle, the former in the city area of Sydney and the latter inland some miles from Sydney. Until excluded from its courses by the respondent pursuant to its said resolution, it would seem that the appellant's activities as a punter on trotting events were financially uniformly most successful. Since his exclusion from the respondent's courses, his winnings have seriously diminished, indeed to the point where he has made a loss. The primary judge accepted that his exclusion from the courses, paceways as they are called in the evidence, has resulted in financial disadvantage to the appellant.
The respondent, which is a limited liability company with memorandum and articles of association, is the proprietor of the two properties used as trotting courses or paceways respectively known as Harold Park and Menangle. The objects for which the respondent was established include, according to its memorandum of association, the objects of:
(g) To disqualify suspend fine and bar owners of trotting and pacing horses and such horses bookmakers bookmaker's clerks trainers and drivers and other persons for breaches of the Club's Articles By-Laws Rules and Regulations.
(i) To erect construct maintain and otherwise provide buildings stand accommodation facilities and amenities for Club members and the public bookmakers trainers drivers and other authorised persons and for employees of the Club the Totalizator Agency Board and for other authorised employees with full power to control and supervise the use of same by such persons.
(j) To establish or otherwise obtain training grounds and trotting and pacing Courses at such place or places within the said State as may be determined by the Club and to maintain and improve such grounds in such manner as to the Club may appear necessary or convenient for the objects of the Club.
(m) To enter into any arrangements with any Government or Authority Supreme Municipal local or otherwise or any Company Corporation firm Society Organisation or person which may seem conducive to the Club's objects or any of them and to obtain from any such Government Authority Company Corporation Firm Society Organisation or person any rights privileges and concessions which the Club may consider it desirable to obtain and to carry out exercise enforce and comply with any such arrangements rights privileges and concessions.
The affairs of the respondent are in the management of a committee which consists of a President and Vice-President and seven other committee members, all of the committee being elected annually by a general meeting of members. The committee may do all things which may be done by the club, except only those things which by law or under the articles are required to be done by the club in general meeting. In particular, power is given to the committee to make, amend and repeal rules governing trotting in New South Wales and to administer and carry out any such rules.
By art. 70, it is provided that "All trotting meetings of the Club shall be conducted under the Rules of Trotting as adopted by the Committee of the club on the 24th April 1970 and as may be amended from time to time".
The printed Rules issued by the respondent, as amended to 1st January 1976, are the rules so adopted and operative at times relevant to the present matter. They include the Rules of Trotting as adopted and amended by the Australian Trotting Council and certain local rules.
The respondent is also in New South Wales the controlling body of trotting conducted under the Rules of Trotting: see Pt IV of the Rules. Under these rules, the committee of the respondent as the controlling body could, by resolution, "warn off" a person, thus excluding him from any or all trotting courses in New South Wales or causing his removal therefrom if he should obtain entry to them: r. 28.
The committee of the respondent, on a day when no trotting meeting was being held, passed the following resolution:
That Mr. Douglas Mervyn Forbes be forthwith and henceforth excluded from admission to the Harold Park Paceway and Menangle Park Paceway and any other course or courses which may now or in the future be occupied by or under the control of the New South Wales Trotting Club Limited and that Mr. Douglas Mervyn Forbes be immediately informed in writing of the decision of the Committee.
The appellant was given written notice of the resolution the following day whilst he was present at a trotting meeting at Harold Park. The stewards in charge of the meeting thereupon removed the appellant from those grounds. They did so on a subsequent occasion when the appellant had gained entry to the Harold Park trotting course: see r. 20 (e).
The terms of the respondent's resolution, in so far as it referred to any course "now or in the future under the control of" the respondent, was ambiguous. The respondent claimed that the resolution, properly understood, applied only to courses which it controlled as proprietor, either on freehold or leasehold land, and that it had acted upon the resolution in that sense. It did not take any action on or in consequence of the resolution which the Rules of Trotting would allow to be taken upon a warning off resolution passed by a controlling body: see, e.g., r. 29a, which is a local rule and provides for the dissemination by the respondent of information relating to any person who has been warned off.
It was conceded by the respondent that if the resolution were supportable only as a warning-off resolution of a controlling body under the Rules of Trotting, it would be void for non-observance of the rules of natural justice. The appellant had not been given any notice of the respondent's intention to pass any such resolution or of any reason for which the respondent contemplated making any such resolution, nor had an opportunity been afforded him to oppose the passing of the resolution or to deal with whatever was the respondent's reason for contemplating the passing of the resolution. No doubt the respondent's counsel was moved to make this concession in deference to this Court's decision in Heatley v. Tasmanian Racing and Gaming Commission [23] .
The primary judge, however, regarded the exclusion of the appellant by the respondent as the act of a proprietor of land rather than the act of a controlling body under the Rules of Trotting and therefore valid in so far as it authorized his removal from the respondent's land and had the consequence of denying the appellant any licence in the future to enter any course owned or controlled by the respondent, using the word "controlled" in this context in a proprietorial sense. He also held that, though it was a detriment to what his Honour concluded was the appellant's right to work, i.e. to be a punter, the resolution could not be regarded as an unreasonable restraint of trade or arbitrary or capricious in the relevant sense.
In the Court of Appeal, Hutley J.A. concluded that the appellant, not being a member of the respondent, had no standing to obtain a declaration of invalidity of the respondent's resolution as a result of which he was excluded from the respondent's paceways and that, in any case, any such declaration would be a futility because the appellant had no right of entry into the respondent's paceways.
Samuels J.A. concluded that the resolution of the respondent, which he regarded as having been made by the respondent as a controlling body under the Rules of Trotting and not as proprietor of the land on which the paceways were constructed, was void because the rules of natural justice had not been observed: but he held that a declaration should be refused because the respondent retained its proprietorial right to exclude the appellant from its paceways in the future.
Mahoney J.A., in his dissent, held that a contract existed between the appellant and the respondent derived from the Rules of Trotting which exclusively defined the powers of the respondent in respect of "warning off" which limited, if they did not supplant, the proprietorial rights of the respondent. Further, he appeared to consider that the Rules conferred on the appellant a right of entry to the respondent's courses. He held that the respondent's resolution was a warning off under the Rules and void for non-observance of the requirements of natural justice.
The Supreme Court, both at first instance and on appeal, recognized that a majority of this Court had held that a member of the public had as such no right of entry into or of remaining upon a racecourse as against the proprietor of the land. So much, I think, is clear from the opinions expressed in Heatley's Case [1] and, in any case, in my opinion, a member of the public has no such right. Thus, whether the respondent's resolution be void or not, the appellant, with no other rights than those of a member of the public, cannot insist upon entering or remaining upon the paceways in the ownership or proprietorial control of the respondent. As I think the appellant had no other right, that circumstance alone would, in my opinion, deny the propriety of making the declaration sought by the appellant. In this respect, I agree with what was said by Hutley J.A. and by Samuels J.A.
But the respondent has submitted, and Mahoney J.A. has held, that the appellant does not stand in relation to the respondent as no more than a member of the public. He submits that he has been at all material times, and still is, in a contractual relationship to the respondent which denies the respondent the right to refuse him entry to or to remove him from its paceways, except upon due warning off effected after a hearing, and presumably upon grounds which satisfy the tenents of natural justice. The appellant also submits that, in any case, the resolution of the respondent is only referable to the powers given to the respondent by the Rules of Trotting over and with respect to those who are also "bound" by those Rules, a group which it is said includes the appellant.
The appellant thus answers the proposition that a declaration of invalidity would in this case be a futility by submitting that, by accepting the Rules of Trotting and becoming a controlling body thereunder, the respondent forfeited any proprietorial right to exclude the appellant from or to refuse to admit him to, its grounds. He says that the Rules of Trotting give to those bound by them, or at least to persons in his own situation, a contractual right of entry and of remaining on a course where meetings are being held under those Rules, subject to the power to warn off under and conformably to those rules. He adds, as I have indicated, perhaps unnecessarily from his point of view, that the resolution was made only in exercise of rights derived from the Rules of Trotting.
The whole case for the appellant on this aspect of his appeal is thus built on the meaning and applicability of the Rules of Trotting to which I shall need to give detailed attention.
As I have already mentioned, the Rules of Trotting have been adopted by the Australian Trotting Council and so far as concerns this case appear in printed form by order of the committee of the New South Wales Trotting Club Ltd. - the respondent. At relevant times, these rules had no statutory force. The Australian Trotting Council was at that time a voluntary federal association of bodies interested in trotting (which includes pacing). The rules adopted by that Council are accepted by the bodies conducting trotting in the States of Australia as the rules governing the various aspects of trotting with which they deal. In some respects and in some places, these rules are supplemented by local rules. It is so in the case of New South Wales. To two such local rules it will be necessary to refer.
The learned primary judge described the Rules of Trotting applicable in New South Wales as "a body of rules which all those engaged in the activities of trotting, whether as the proprietor of a course, an owner, trainer, driver or bookmaker, accept either by consent or because there is no alternative. The ultimate sanction of the rules is that a person who breaks them may be excluded from racing, or driving, or betting or attending on any course the proprietor of which adheres to the rules". I accept this description provided the consensual element to which his Honour refers is not regarded as contractual.
Rule 5, assisted by the definitions in r. 1, declares the rules "to apply to and be binding upon", amongst a list of others:
(a) The Chairman, Committee of the Controlling Body.
(b) All Clubs as defined by these Rules and the Committee, members of every such Club.
(i) All persons who shall apply for any Totalisator ticket at any meeting or bet with a registered bookmaker.
(j) All persons who shall apply for admission to or attend any course on which any race meeting is held.
Rule 7 makes the rules applicable to all trotting and pacing races held under the management, control or direction of a controlling authority.
Rule 10 gives to the stewards appointed to officiate at a trotting meeting the whole control of racing at such meeting. They are to ensure that the Rules are observed and enforced in respect of all matters related to racing at such meeting. That rule enumerates a number of particular powers possessed by the stewards.
Rule 20 gives the stewards power to remove from a course, inter alia, (a) all persons required by the rules to be excluded or removed from any racecourse, (d) any persons whose presence they may deem undesirable and (e) all persons warned off by a controlling body or club.
Rules 21 and 29 ensure that a person who has paid entrance money to enter a course does not thereby acquire an irrevocable licence but, if liable to be excluded or removed, may be excluded or removed by the stewards without their being liable for damages in respect of such removal.
"Warned off" is defined in r. 1 to mean "a notice of a decision by resolution issued by a Controlling Body or by a Club prohibiting the person warned therein from entering any course under its control". Here the word "control" may in relation to a controlling body include control exercised otherwise than by reason of proprietorship.
Rule 22, which is a local rule, gives to the committee of a controlling body all the powers conferred by the Rules on stewards, except during the currency of a race meeting.
Rule 25 gives the committee of a controlling body exclusive control and general supervision of trotting within its territory. Rule 28 is in the following terms:
The Committee of the Controlling Body under the hand of an authorised officer thereof may at any time in its or their absolute discretion warn any person off any course or the Committee of a Club may at any time at its absolute discretion warn any person off any course which it controls. The word "controls" is here used, in my opinion, in relation to a club, in a proprietorial sense, though it may possibly be otherwise in relation to the Committee of a controlling body.
Rule 29a, a local rule applicable in New South Wales, gives the controlling body liberty to provide information -
relating to any person who has been excluded from, or warned off any Course occupied by or under the control of the Controlling Body or its agents including the fact that such person has been so excluded, removed or warned off to any person or Club and The New South Wales Trotting Club Ltd. and the Controlling Body and their agents shall not be liable for damages for having provided or published such information.
Rule 354 provides that any person to whom the Rules apply, who is guilty of a breach of the Rules of Trotting, misconduct or misbehaviour, may, in addition to or in substitution for any other penalty provided by the Rules, be suspended or disqualified from training and/or driving on all or any racecourse or training grounds of clubs, i.e. clubs registered under the Rules.
Rule 355 sets out a number of consequences of disqualification, none of which relate to a member of the public or such a member admitted to a course. But sub-r. (f) of this rule provides that for the purpose of that rule, " "disqualification" shall mean and include "warning off" ". It may be that a person warned off could not be or become a member or office bearer of a club.
The appellant submitted that because, on a day on which racing was to take place on a course in New South Wales, the appellant applied for and gained admission to the course, the Rules of Trotting applied to and became binding upon him. As it seems that the appellant had actual knowledge of the Rules, so much may be granted as to the activities of that day on that course, subject to the meaning and operation of the expression "binding upon".
At the same time, the appellant says that the Rules applied to and were binding on the respondent as a controlling body. Because the Rules applied to and bound each, the appellant and the respondent, the conclusion is to be drawn, according to the argument, that by seeking and obtaining admission, or even by seeking unsuccessfully to obtain admission, to a paceway, a contract was formed between the two under which the respondent promised the appellant to abide by the Rules in its relevant dealings with him; and presumably to exercise in relation to him only such powers as the Rules gave. It is next said that the Rules required the respondent not to exclude, by which the appellant means not only not to remove him from but not to refuse him entry to the respondent's grounds, except by virtue of a warning off resolution passed under the Rules after the requirements of natural justice have been satisfied. Thus, the appellant says that, having once been admitted to a trotting course, he has a contractual right indefinitely to enter any trotting course in New South Wales, but in particular to enter both of the courses owned by the respondent, subject to the power to warn off under the Rules.
As a supplementary submission, the appellant says that the same result follows from his membership of other registered clubs of which the Fairfield and District Agricultural and Horticultural Society is one: see r. 5 (c). That Society (a non-proprietary association) is a club registered under the Rules and includes amongst its other activities the conduct of trotting races at its ground in Fairfield. The affairs of the Society are controlled by a council which is elected by the members of the Society in annual general meeting. The privileges of membership of the Society are stated to be (see cl. 25 of its Constitution) the right to attend and vote at the annual general meeting (which includes the capacity to be elected to the council) and at all special general meetings and the right to compete for prizes available for competition by members. The appellant is a member of that Society.
Perhaps it is convenient, first, to rule upon this last submission. In structure it is this: because in conducting trotting meetings the Society, if it is to remain affiliated to the Australian Trotting Council and the other clubs registered under the Rules of Trotting, must conduct those meetings, including the doing or refraining from acts incidental to or associated with the activity of trotting and its conduct, in accordance with the Rules of Trotting and because the Rules are said to be binding upon all members of such a club, all its members are in contractual relationship with the controlling body of trotting in New South Wales under the Rules of Trotting and presumably also with all registered clubs in New South Wales and their members, so that those members by force of the Rules alone have individual contractual rights against the controlling body and presumably against all those clubs and all their members. I need spend no time in discussion of this proposition. Even if the Rules of Trotting create contractual rights and obligations between the controlling authority and the registered clubs - a matter with which I will separately deal - the submission needs only to be stated to be dismissed. It is misconceived and insupportable. Of course, if members of a registered club gain entry to a trotting course, they may be liable to be removed under and in conformity with the Rules. What they do or should not do on that day on that course in relation to trotting and its ancillary activities must conform to the Rules. But this does not mean that this consequence is contractual. By entering the course on the terms of the Rules, the right of removal under the Rules may be said consensually to be conceded. But these consequences flow not from membership of the registered club but from acceptance of entry upon the terms of the Rules. The Rules themselves are not operative to place those upon whom they are said to be binding in contractual relationship to each other.
Rejection of the proposition I have just mentioned means that the appellant's relationship to the respondent depends entirely on his own acts as a member of the public and the consequential impact, if any, upon him and upon the respondent of the Rules of Trotting.
The contest between the parties on this appeal was in reality whether or not the appellant had an individual right of entry to the respondent's courses derived from his own acts and the Rules of Trotting. Generally speaking, the appellant founded himself in this respect on the reasons for judgment of Mahoney J.A.
When, in the Rules of Trotting, a rule is said to be binding upon some person or body, it means, in my opinion, that that person or body, if he or it does or does not do particular things which he or it is by the Rules required to do or refrain from doing, the rule-making body or designated body or person may not allow that person or body to do those acts and may exercise stated powers in consequence of the doing or the omission to do acts which the Rules require to be done. But, again, this is not a contractual consequence. For example, it is said by r. 5 (b) that all clubs conducting trotting meetings are bound by the Rules of Trotting. The Fairfield Society is such a club. Because it is said so to be bound does not mean that the Fairfield Society becomes by the Rules contractually bound in any respect. Of course, if it conducts a trotting meeting and does not conform in so doing to the Rules of Trotting, it may be deregistered and no longer have such benefit as may come to it from being a registered club. A contractual relationship between the club and, for example, a controlling body may derive from acts of both. But the Rules themselves of their own force do not, in my opinion, create any such relationship, nor does the recognition and adoption of those Rules by the club.
Perhaps the matter is better illustrated by reference to a member of the public seeking to enter a course where the Rules of Trotting prevail by reason of their adoption by the proprietor or controller (in a proprietorial sense) of the course. Rules 2, 3 and 5 (j) are apposite to the situation of such a person. As the Rules of Trotting at relevant times were not in the public domain, members of the public are not to be taken to be fixed with knowledge or notice of them. Rules 2 and 3 of themselves cannot fix the member of the public who enters the course with knowledge of the Rules. Such a person enters and remains only on revocable licence, revocable at the will of the proprietor: see Cowell v. Rosehill Racecourse Co. Ltd. [2] . Neither his ignorance nor his knowledge of those Rules will, in my opinion, affect the ability of the proprietor to remove him at will, unless by some provision of which the person who has gained entry can take advantage, the proprietor is precluded from exercising that ability.
Entry with knowledge of the Rules might mean that the entry has been upon those provisions of the Rules which regulate the conduct on the course of the person who has gained entry. But such entry will not, in my opinion, have formed a contract between proprietor and entrant that the proprietor will do or refrain from doing anything which he might otherwise lawfully do. Nor, in my opinion, will the entrant have contracted to do or not to do any specific thing. No more will have occurred than that the one has submitted voluntarily but not contractually to the power or authority of the other given by the Rules. Unless the proprietor of the course had foregone his proprietorial rights, it would be inconsistent with the existence of a revocable licence for the owner of the course to be contractually unable to exercise those rights except in some particular way. Of course, if the proprietor by some act of his own has deprived himself of his relevant proprietorial rights, it may be that entry with knowledge of such a limitation may place a restraint upon the proprietor. Even so, no contract will have been formed between entrant and proprietor. All that will have taken place will have been the grant of a licence revocable only in given circumstances. Whether injunctive relief could be given to such persons in such a case is not a question with which I find it necessary presently to deal. Nor do I need to deal, in order to resolve this case, with the question whether such relief may in any case be obtained by the person having no more than a revocable licence.
It was submitted by the appellant's counsel that a member of the public who did no more than apply for admission without entering the course, by virtue of r. 5 (j), not only became bound by the Rules but actually came into contractual relationship with the respondent in the terms of the Rules. This submission, in my opinion, is quite untenable. It is difficult to give a rational meaning to the assertion that a person who seeks but fails to enter a paceway becomes thereby bound to observe the Rules of Trotting.
But the argument of the appellant went further than to submit that entry into the course with knowledge or notice of the Rules establishes contractual relations between the entrant and the respondent in respect of things done or which could be done on that day or in relation to the events of that day. The appellant claimed that, having once so entered, a continuing contract came into existence so that the respondent became contractually bound, indefinitely as well as I could understand the argument, to admit the appellant to its courses (and presumably so did the owners of all other courses who were "bound" by the Rules). Further, the respondent - and those other course proprietors - became contractually bound to treat or deal with the appellant only in accordance with the Rules of Trotting in connexion with all matters connected with trotting, including his presence on the course. I have failed to find any basis at all for such a conclusion. I do not think that, even for a particular day, there arose a contract, either a so-called unilateral or a bilateral contract, out of the existence of the Rules and the fact of entry with knowledge or notice of the Rules. But even if, contrary to my own view, it did, there would be nothing in that situation to create a contract as to other days.
The appellant submitted that by adopting the Rules and assuming the position of a controlling body thereunder, the respondent now lost the ability to exercise its relevant rights of a proprietor of the land. But it seems to me that the assumption of the position of a controlling body under the Rules does not displace the proprietorial rights of the respondent or create an obligation on the part of the respondent to exercise those rights only subject to such limitations as might apply to a controlling body which had no such proprietorial rights. The Rules themselves have no express term so limiting the rights of a controlling body which is the proprietor of the course. Nor, in my opinion, is there any necessary implication of such a term. In conformity with the view I have already expressed, the assumption of the position of a controlling body under the Rules does not create any contractual right in any person or body to require the respondent to exercise its rights as proprietor of the land only in conformity with the Rules. In my opinion, the respondent's rights as a proprietor of land remained unimpaired by the Rules or their adoption or the assumption of the position of a controlling body.
A further submission much pressed by the appellant ought now to be mentioned. The validity of the respondent's resolution was attacked on the ground that only the stewards could have excluded the appellant at the time he was excluded because of the terms of r. 22, a local rule.
This submission is most difficult to follow. The argument is based on the undoubted fact that, under the Rules of Trotting, the stewards are in sole control of racing at a trotting meeting throughout the whole day on which it takes place (r. 10). Amongst the powers given to the stewards, in addition to the powers to remove from the course all persons required by the Rules to be excluded or removed and all persons who have been warned off by the controlling body or any club, is the power to remove all persons whose presence on the course the stewards may deem undesirable. Therefore it was said that only the stewards could resolve to exclude a person from the course on any particular day. But the resolution of the respondent was not made during the currency of any trotting meeting. Nor was it a resolution to exclude or remove a person whose presence the stewards thought undesirable. Nor was it a resolution relating to any particular day. Thus, it is exceedingly difficult to understand how the power of the stewards in controlling racing on a particular day bears at all on the validity of a resolution of the respondent neither made during the currency of a meeting nor related to a particular day or meeting. Further, it is somewhat incongruous that the rights of the proprietor in his land should be displaced by the fact that stewards are for the space of the day on which racing is taking place in sole charge of the racing and of matters ancillary and incidental thereto. This submission of the appellant should be rejected.
It was submitted, and both Samuels J.A. and Mahoney J.A. held, that the resolution of the respondent was in terms a resolution of a controlling body and not a resolution of a proprietor, assuming for this purpose that the respondent had not foregone its right as a proprietor to exclude persons from its land, persons who had no right to be there. The reason for the submission and the reasons of those judges was basically the use in the resolution of the expression "course or courses which may now or in the future be under the control of" the respondent. Earlier I mentioned the ambiguity of this expression for it is apt to apply to courses which the respondent owns or controls by virtue of some proprietorial right or to apply to courses which as a controlling body it controls, in the sense that that word is used at times in the Rules. But, in relation to the latter of these alternatives, it should be said that under the Rules the controlling body does not control the course itself: it controls the trotting and other associated activities which take place there.
I have formed the clear view that the former of the alternatives is the right meaning of the resolution. I regard the resolution as a resolution of the respondent as a proprietor of the land covering courses which it occupies or which itself controls by virtue of some proprietorial right or tenure. I might add that I do not regard the fact that the respondent did not seek to exercise rights which under the Rules it might have exercised upon passing a warning off resolution as a controlling body as definitive of the nature of the resolution (see, e.g., the terms of r. 29a previously referred to), but I cannot ignore that fact as an encouragement to the adoption of the construction of the resolution which I prefer.
I have already indicated that I do not regard the assumption of the function of a controlling body under the Rules as destructive of the rights of the respondent as proprietor to determine who shall come or remain upon its lands. When the validity of the respondent's resolution is challenged as lacking the antecedent observance of the rules of natural justice, the respondent, in my opinion, may support the resolution by reference to any power it might have had to pass that resolution. Accordingly, not only do I not regard the capacity to warn off under the Rules as destructive of the ability of the respondent as proprietor to decide who shall come or remain upon its land but I hold that the resolution of the respondent may be supported either by the power given by the Rules or by rights derived from the ownership of the land: or, in an appropriate situation, by both powers. In this connexion, it might be remarked that though the respondent may have concurrent powers, it remains a single entity and has no need to specify in what capacity it is making a resolution which might be in exercise of one or other or, for that matter, of both those capacities.
I therefore conclude that the resolution was valid and effective and that, in any case, any declaration of invalidity would be futile and incapable of supporting an injunction in the terms proposed by the appellant or in any terms which would preclude the respondent from refusing the appellant entry into either of its courses in the future or from removing him therefrom should he have gained entry thereto.
On the footing that no contract existed between the parties giving a right of entering or remaining on the respondent's courses, and that the respondent had not foregone its proprietorial powers by becoming a controlling body under the Rules, I would agree with Hutley J.A. in thinking that the appellant had no standing to obtain a declaration of invalidity of the respondent's resolution, a resolution of a company of which he was not a member.
The appellant raised a separate and alternative argument, namely, that the power of the respondent as a controlling body by resolution to warn off a person, including a person who had duly obtained entry to a paceway and who was a punter on trotting races, was itself an unreasonable restraint of trade, void as against public policy, or alternatively, that the resolution of the respondent was itself void as in unreasonable restraint of trade in that it precluded the appellant from successfully punting on trotting races. These submissions lack a factual basis. Neither the existence of the power to warn off nor the resolution of the respondent, if passed in pursuance of the power or by virtue of proprietorship, prevents the appellant from carrying on his business or activity of punting.
The appellant insisted, however, that he had a common law right freely to exercise his activity of punting, which he treated as synonymous with work in a relevant sense. Accordingly, his exclusion from the paceways when attendance thereat was, as he claimed, essential to the success of his punting, if capricious and unreasonable, fell under the reasoning of the Court of Appeal in Nagle v. Feilden [3] .
It seems to me that there are a number of reasons why this submission fails. Apart from the endeavour to extend the decision of the Court of Appeal in Nagle v. Feilden [3] , the submission is unsupported by authority and is, in my opinion, inconsistent with principle. The resolution of the respondent does not prevent the appellant from betting, if being a professional punter is to carry on a trade in any relevant sense. The enforcement of the resolution denies him access to a course or courses: but such access is not indispensable to the pursuit of a punter's activity, though admittedly, in some fashion which apparently had excited the interest of the stewards, the appellant's presence on the course seemed to ensure him uniform success in his gambling.
The doctrines as to avoidance of restraints on trade have been developed so far as trade itself is concerned, upon the public interest, competition in trade being regarded as conducive to its augmentation and efficiency: and, in so far as the doctrine has come to include restraints on employment, it has been grounded on the public interest in the exercise of knowledge and skills, the use of which may conduce to the public benefit. It is most important to emphasize public interest as the mainspring of these doctrines. Even in relation to self-imposed or accepted restraints, where it is in the interest of both parties and not merely of one to impose or accept a restraint, public interest is a factor in determining whether or not the restraint is permissible. To convert the doctrine that, because of the public interest, there should be no unreasonable restraint on employment into a doctrine that every man has a "right to work", is, in my opinion, to depart radically from the tenets of the common law. Yet it was the constant refrain in the appellant's argument on this branch of the case that the resolution of the respondent impinged upon his "right to work". If the expression "ability to work" is used, there is less likelihood of misconception. It is in the public interest that a man should be able to exercise his capacity to work. The law does not enforce a right to exercise that capacity: it does no more than remove the unreasonable impediment upon its exercise.
All that was decided in Nagle v. Feilden was that the appellant before the Court of Appeal had an arguable case based upon the public policy which disfavoured unreasonable restraints upon trade, including the pursuit of a calling. Though views were perhaps strongly expressed by the members of the Court of Appeal, nothing was decided by the Court beyond what I have indicated.
Next, the case dealt with the total exclusion of the then appellant from the calling or occupation of a trainer of horses upon the sole ground of her sex. That appellant thus had a basis for claiming that her exclusion was unreasonable, indeed capricious and arbitrary.
Then the Jockey Club was treated as having the sole governance, amongst other things, of horse-training and thus able to control the entry of persons into that activity: or, put perhaps more relevantly, could prevent the exercise of the capacity to train horses, a capacity which was admitted to exist in that case. This exclusive control was the core of the views expressed by the Lords Justices.
Even if one accepted all that was said in the reasons for judgment in that case - and this is not a case which calls for an examination of all that was then said - none of the elements on which the members of the Court of Appeal founded its remarks are present in this case. The respondent is not in control of betting or of punters: it certainly has no sole governance of it. It has not wholly excluded the applicant from punting, i.e. gambling on horse racing.
Further, it is difficult to conceive that being a successful punter - for, as I have said, there is in any case no restraint here on the appellant's being able to bet - falls within the area of trade or employment with which relevant public interest is concerned in connexion with restraint of trade. It bears no real similarity to racehorse-training, horse racing having peculiar interest for those engaged in the products and sale of bloodstock, a matter in which there is undoubtedly public interest in the sense that expression is used in the law as to restraint of trade. There is thus, as I have indicated, no occasion in this case for an examination of the doctrine which the reasons of the Court of Appeal might suggest.
In my opinion, the conclusion of the primary judge and of the majority of the members of the Court of Appeal was correct. The appeal, in my opinion, should be dismissed.
The appellant, Mr. Forbes, has for over ten years regularly attended trotting races in and around Sydney, and has made a very considerable income from betting on those races. The respondent, The New South Wales Trotting Club Ltd., is the owner of land at Harold Park and Menangle Park on which trotting races are conducted. Until the Trotting Authority Act, 1977, N.S.W. was passed, the respondent was "the controlling body" for New South Wales within the Rules of Trotting applied in that State. On 15th January 1976 the appellant, while attending a trotting meeting at Harold Park, was served by the chief steward of the meeting with a letter written on behalf of the respondent. The letter, which gave effect to a resolution passed by the committee of the respondent on 14th January 1976, was in the following terms:
I wish to inform you that the Committee of The New South Wales Trotting Club Ltd. has resolved that you forthwith and henceforth be excluded from admission to the Harold Park Paceway, the Menangle Park Paceway and any other course which may now or in the future be occupied by or come under the control of The New South Wales Trotting Club Ltd.
You are therefore required to leave this course immediately and not in the future enter upon this or any other course owned, occupied or under the control of The New South Wales Trotting Club Ltd.
The appellant was then asked to leave the course and did so. Some time later he again attended a trotting meeting at Harold Park but was again asked to leave. The appellant's being activities have been prejudiced by his expulsion from the courses - he can, of course, still place bets, but he has been much less successful than before; this, he claims, is because he has lost the benefit of observing for himself the form of the horses and the fluctuations in the betting. He seeks a declaration that the resolution passed on 14th January 1976 is ultra vires and void.
The appellant was not a member of the respondent Club. He was however a member of four other clubs each of which conducts trotting meetings on its own course and does so in accordance with the Rules of Trotting. The rules of one of those clubs, the Fairfield and District Agricultural and Horticultural Society ("the Fairfield Club") have been regarded as typical and will be referred to later in this judgment.
The respondent had no statutory power or recognition, but according to the evidence it controlled trotting in New South Wales by the consent of the government and all of the trotting clubs of that State. Under the Rules of Trotting it had extensive powers. It appointed the stewards who controlled the racing not only on the two courses which it owned but at all trotting meetings to which the rules applied (see rr. 9-16). Its committee had "the exclusive control and general supervision of trotting" within New South Wales (r. 25). One of its powers was to grant or revoke licences or permits to drivers and trainers (r. 27 (b)). However, the power which is of importance for present purposes is that conferred by r. 28 which is in the following terms:
The Committee of the Controlling Body under the hand of an authorized officer thereof may at any time in its or their absolute discretion warn any person off any course or the Committee of a Club may at any time at its absolute discretion warns [sic] any person off any course which it controls. The expression "warned off" is defined in r. 1 to mean "a notice of a decision by resolution issued by a Controlling Body or by a Club prohibiting the person named thereon [sic] from entering any course under its control". A person warned off may be removed from a course by any steward, officer or agent of the body controlling the course or the meeting being conducted thereat and is subject to the same disabilities as attach to a disqualified person (r. 29). The respondent may, without being liable for defamation, inform any person or club of the fact that a person has been warned off (r. 29a). With the approval of the respondent, a committee of a club may exclude from the places under its control certain persons, including "every person who has been warned off any course for corrupt practices" (r. 64). Except in certain cases which it is not relevant to mention, the respondent is required to notify every club or body racing under its jurisdiction of any disqualification imposed on any person within fourteen days after the date of the imposition (r. 333). Subject to an immaterial proviso regarding appeals, no horse in which any person or the husband or wife of any person who has been disqualified has any interest shall "without the permission of the Controlling Body" be entered to start for any race (r. 100), and no person who is disqualified or the wife or husband of any such person shall enter, nominate, train, drive or race any horse during the period of such disqualification "unless otherwise determined by the Controlling Body" (r. 335). Subject again to the effect of an appeal, no person disqualified under the rules shall be eligible to become or remain a member of a trotting club registered under the rules, or a member of the committee, an office bearer or an official of such club, during the period of his disqualification, and his membership or office automatically ceases or is vacated (r. 355), but it is provided by r. 355 (e) that this ineligibility for and cancellation of membership and vacation of office "shall remain in force until the expiration of the term of disqualification, unless the Board shall expressly determine otherwise and notify the Club accordingly". "The Board" appears to mean the Committee of the respondent. In fact none of the consequences of disqualification, except of course exclusion from Harold Park and Menangle Park, seems to have ensued in the case of the appellant. During the hearing at first instance the respondent undertook that it would not regard or act upon the resolution of 14th January 1976 as an exercise of the power given by r. 28 of the Rules of Trotting.
The appellant's case rests on the foundation that the decision to exclude him from the courses under the respondent's control was made in contravention of the requirements of natural justice. It is not in contest, and indeed could not have been contested, that if the respondent was obliged to observe those requirements it did not do so. The appellant was not afforded an adequate opportunity, or any opportunity, to be heard before the resolution was passed to his prejudice. Moreover it was conceded by the respondent before the Court of Appeal, and not disputed before us, that the respondent was required to observe the principles of natural justice in exercising the power given by r. 28. This concession seems to me to have been correctly made. The respondent, although not granted statutory powers, was in fact the body whose function was to control trotting in New South Wales, and trotting is a public activity in which quite large numbers of people take part, whether as spectators or otherwise. Members of the public have the legitimate expectation that they will be given permission to go onto courses when trotting meetings are being held provided that they pay the stipulated charge and provided of course that they are not drunk, disorderly or otherwise unfitted by their condition or behaviour to be admitted. The respondent had power to defeat this expectation by acting under r. 28, and was accordingly required to observe the rules of natural justice: Heatley v. Tasmanian Racing and Gaming Commission [5] . In some cases the person warned off might thereby be prevented from carrying on his occupation or performing the duties of his employment - e.g., if he were a driver or a trainer - and this strengthens the view that the rules of natural justice apply to the exercise of the power.
The question then is whether the resolution of 14th January 1976 was a decision taken under r. 28 and whether the letter of 15th January 1976 was a warning off. If so, those acts were beyond the power given by r. 28 and were void. However, on behalf of the respondent it was submitted that the fact that the respondent was the controlling body of trotting did not make it any less the owner of the land at Harold Park and Menangle Park, or detract from its rights as such owner, that an owner may refuse to admit any person to his land without assigning any reasons and that the principles of natural justice do not apply to the exercise of private rights in respect of property (Heatley v. Tasmanian Racing and Gaming Commission [6] ) and that the resolution was simply a decision by the respondent to exercise its proprietary rights. Alternatively, it was said, the respondent may now exercise its proprietary rights by excluding the appellant - indeed it has indicated that it will do so - and it would therefore be futile to grant relief since the respondent has, quite apart from r. 28, the right to exclude the appellant from the land.
If it matters, there is little doubt that the letter of 15th January 1976 was intended to be a warning off under r. 28. From 1973 onwards the stewards had conducted a number of inquiries into the appellant's betting transactions. On 2nd January 1976 the respondent wrote to the appellant a letter drawing his attention to the fact that the conditions for entry into its trotting courses were displayed upon notices outside each entrance to the course, and setting out the contents of the notices as follows:
Persons are granted a licence to enter this Course only upon the following conditions: -
(a) Such persons agree to be bound by the Rules of Trotting and Rules of Betting of The New South Wales Trotting Club Ltd. and any amendment thereto.
(b) Such persons agree that should they be excluded from, removed from or warned off this Course or any Course occupied by or under the control of The New South Wales Trotting Club Ltd. or its agents, The New South Wales Trotting Club Ltd. shall be at liberty and are hereby authorized to communicate the fact of such exclusion, removal or warning off to any persons, corporations or associations concerned in the promotion or conduct of activities similar to those of The New South Wales Trotting Club Ltd. and servants and its agents shall not be liable for damages for having communicated that fact.
This letter in no way refers to the proprietary rights of the respondent; it is a clear indication that a person wishing to enter the course is subject to the Rules of Trotting, and condition (b) repeats the substance of r. 29a of those rules. The appellant's solicitor thereupon wrote to the respondent seeking a denial "of the rumours and allegations that Mr. Forbes will be refused permission to enter Harold Park or Menangle". To this the respondent's solicitors replied, denying that any rumours had emanated from the respondent or its servants or agents and saying that "whilst it is a matter for Mr. Forbes to decide whether he wishes to enter either of the courses owned by The New South Wales Trotting Club Ltd., should he do so it will be upon the terms set out in the letter to Mr. Forbes from The New South Wales Trotting Club Ltd. and dated 2nd January 1976". In the light of this correspondence it is apparent that the resolution of 14th January 1976 was intended to be an exercise of the powers conferred by the rules, and the only rule conferring any relevant power was of course r. 28.
However the subjective, unexpressed intention of the respondent is not in my opinion important - it is the legal effect, or the expressed intention, of the resolution and the letter of 15th January 1976 that have to be considered. The letter states that what had been resolved was that the appellant be excluded from admission not only to Harold Park and Menangle Park but also to "any other course which may now or in the future be occupied by or come under the control of The New South Wales Trotting Club Ltd." It was submitted that "control" in this passage did not refer to the control exercised by the respondent under the Rules of Trotting and that the phrase was intended to include such courses as might thereafter come under the control of the respondent by virtue of some proprietary or other right. However, the words speak of the present as well as the future, and contrast control with occupation; in the ensuing phrase, "this or any other course owned, occupied or under the control of", the words "under the control" would add nothing if they referred only to control possessed by the respondent as owner or occupier. The word "control" in the letter is quite clearly intended to refer to the control which the respondent has as controlling body under the rules. In other words the respondent resolved to exclude the appellant not only from the two courses which it owned, but from all the courses under its control as controlling body under the Rules of Trotting - in other words, all trotting courses in New South Wales.
It is obvious that the respondent's rights as proprietor of the courses at Harold Park and Menangle Park did not enable it to exclude the appellant from other courses owned by other persons. The respondent, however, contended that the passing of the resolution and the delivery of the letter were supportable as an exercise of its proprietary rights in respect of the two courses of which it was the owner. To accept this argument, it is necessary to hold that those parts of the resolution and letter which referred to the courses under the control of the respondent are severable from the parts which relate to the courses owned or occupied by the respondent. In deciding whether severance is possible, it is necessary, in my opinion, to recognize that the question that now arises is not whether an act whose character is not in dispute may have been validly done under a power different from that which it was in fact intended to exercise. That question might have arisen if the appellant had challenged the legality of his removal from the course on 15th January 1976, but that is not in issue. The crucial question is what was the nature of the act of the respondent whose validity is now in question. Did the respondent, on 15th January 1976, do no more than communicate to the appellant its intention, as owner of Harold Park and Menangle Park, to exclude him from those courses? In other words, was the letter no more than a statement of the intention of a landowner not to permit another to go onto his land? If so, the letter may have had little or no legal significance except as evidence, but the appellant would have no right to challenge its validity, since the respondent was entitled to inform him of its intention, whether it was or was not entitled to carry that intention into effect. But if what was done was in truth a warning off, it cannot be justified by calling it something else. In considering the true nature of what was done it is not permissible to ignore part of the resolution or of the letter which informed the appellant of it. When the whole of the letter is read, it quite clearly amounted to a warning off under the rules. The surrounding circumstances, and the earlier letters, reinforce this conclusion. The resolution was an attempted exercise of the power conferred by r. 28 and was void because the requirements of natural justice had not been observed.
The alternative argument, that a declaration would be futile, or, as was said, "of historical interest only", is supported by two propositions - that the respondent, by virtue of its proprietary rights, can continue to exclude the appellant from Harold Park and Menangle Park and that the other possible consequences of a warning off have not in fact been threatened and in the light of the undertaking given are not likely to occur. I am by no means satisfied that it is correct to say that the warning off has not placed the appellant at any disadvantage apart from his exclusion from Harold Park and Menangle Park. Some of the disabilities which flow from a disqualification, and hence from a warning off, follow automatically unless positive action is taken by the respondent or its committee to avert them; this is so under rr. 100, 335 and 355, as I have already pointed out. The undertaking by the respondent not to regard or act upon the resolution as a warning off would not prevent another trotting club from enforcing those rules and treating the appellant as a disqualified person - indeed any other trotting club would be bound to give effect to the disabilities created by those rules. The respondent could of course give the permission or make the determination necessary to render the disabilities inapplicable, but it has not undertaken to do so. This appears to be enough to dispose of the respondent's alternative argument that a declaration would be futile, but it was not the main issue in the case and for that reason I return to consider the argument based on the respondent's proprietary rights.
In my opinion the rules of trotting limit the exercise by the respondent of its right as landowner to exclude from its courses any person whom it does not choose to admit. The rules apply to all trotting races held under the management, control or direction of the respondent (r. 7). Under the rules, the stewards have "the whole control of racing" at a trotting meeting; their powers commence at 8 o'clock in the morning of the first day of the meeting (rr. 10, 15). By r. 20, the stewards or inspectors have power to exclude and cause to be removed from all places under their control, inter alios -
(d) all persons whose presence the Stewards or the Racecourse inspector or Betting Supervisor may deem undesirable.
(e) all persons warned off its courses by a Controlling Body or by any Club duly registered under these Rules or by any Racing Club.
Rule 21 makes it clear that the stewards' right to remove any person from a racecourse exists notwithstanding that such person has paid to enter it. Rule 22 provides as follows: All the powers conferred on the Stewards of a race meeting may be exercised by the Committee except during the currency of such meeting, and the provisions in this part contained as the Stewards [sic] shall in such case apply mutatis mutandis to the Committee. The effect of these rules is that during the currency of a race meeting the power of exclusion or removal from a course lies with the stewards, not with the respondent, and the stewards may exercise that power only on specific grounds. If a person has been warned off the stewards may of course cause him to be removed. If he has not been warned off, and does not fall within the descriptions contained in pars. (a), (b) and (c) of r. 20 (which I need not set out, because they are not relevant to the present case) the stewards may remove such person only if they (or the racecourse inspector or betting supervisor) deem his presence undesirable. The stewards might, acting honestly and reasonably, deem undesirable the presence of a person notwithstanding that the committee had extended him an express invitation to attend the meeting; equally they would have no power to exclude a person simply because the committee had requested that he be excluded, unless they in fact deemed his presence undesirable. In other words, neither the stewards nor the inspectors or supervisors are bound to defer to the views of the committee that a person who has not been warned off should be excluded from a course. It is not altogether surprising that the rules should fetter in this way the powers of the owner of a racecourse used for trotting. An owner who uses his land to conduct public race meetings owes a moral duty to the public from whose attendance he benefits; if he invites the public to attend for such a purpose, he should not defeat the reasonable expectation of an individual who wishes to accept the invitation by excluding him quite arbitrarily and capriciously. The rules recognize the public nature of the race meeting by placing some restrictions on the rights of the owner of the course. Speaking broadly, the effect of the rules is that on a day on which a race meeting is being held the respondent cannot use its powers by preventing, for no apparent reason, a member of the public who is in a decent condition and behaving properly from entering the course. The control of the course, and the power to exclude people from it, have been conferred temporarily on the stewards, and if the respondent wishes to ensure that an individual is excluded it must take action under r. 28 to warn him off, but it must observe the requirements of natural justice in doing so. This may be put in another way by saying, as Mahoney J.A. said in the Court of Appeal, that the effect of the rules is that, in relation to relevant persons, a power to prohibit entry of the kind which constitutes a warning off may not be exercised in any manner other than in accordance with the rules; the effect of the rules is to impose restrictions upon the manner in which the respondent may exercise its proprietary rights.
On behalf of the respondent it was however submitted that the appellant has no right to enforce the rules of trotting against the respondent. By art. 70 of the articles of association of the respondent it is provided as follows:
All Trotting meetings of the Club shall be conducted under the Rules of Trotting and Rules of Betting as adopted by the Committee of The New South Wales Trotting Club Ltd. on the 24th day of April 1970 and as may be amended from time to time. However, that article does not form part of any contract of which the appellant, who is not a member of the respondent company, can take advantage. The appellant submitted that there was a contractual relationship between the parties which arose from the fact that the appellant was a member of a number of trotting clubs of which the Fairfield Club was one. Put shortly, the appellant's argument was that as a member of the Fairfield Club he was bound by the Rules of Trotting and was therefore in contractual relationship with the respondent which was also bound by the Rules of Trotting. By cl. 3 of the constitution of the Fairfield Club, the constitution of that club binds its members, and by cl. 33 (a) each member is bound to act in conformity with the constitution. Clause 4 provides that the objects of the Fairfield Club shall be, inter alia:
(c) To conduct meetings for trotting races or contests at Fairfield Showground according to the rules of The New South Wales Trotting Club Limited subject to the conditions of the licence issued by the Chief Secretary.
The argument is that the effect of these provisions is that each member of the Fairfield Club is bound to observe the Rules of Trotting. The argument then proceeds to rely on rr. 2 and 5 (b) of the Rules of Trotting which are as follows:
(2) Any person, Club or other Body who takes part in any matter coming within these Rules shall be deemed to have the knowledge that Rules are in existence for the regulation and control of the trotting industry and shall thereby consent to be bound by them
(5) These Rules shall apply to all races and race meetings as defined by these Rules and shall also apply to and be binding on -
(b) All Clubs as defined by these Rules and the Stewards, Committee, members, officials, officers and servants of every such Club.
Assuming that the Fairfield Club is a "Club" within the meaning of these rules, the intended effect of the rules is that any member of the Fairfield Club who takes part in a trotting meeting is deemed to consent to be bound by the rules, and the rules are binding on him. That does not in my opinion mean that there was a contract between each member of the Fairfield Club and the respondent. The rules do not embody a contract between the respondent and an individual member of the Fairfield Club. At most, the member agrees with the Fairfield Club to be bound by the Rules of Trotting, which are then applicable to him.
Alternatively, it was argued on behalf of the appellant that a contract came into being when the appellant obtained admission to Harold Park on 15th January 1976. By r. 5 of the Rules of Trotting the rules are stated to be binding on, inter alios -
(j) All persons who shall apply for admission to or attend any course on which any race meeting is held.
When the appellant paid his money and was allowed to enter the course no doubt a contract was made between himself and the respondent. Since the appellant had been given notice by letter that the grant of a licence to enter the course would be on condition that he agreed to be bound by the Rules of Trotting, I think it may be concluded that the contract that arose when the appellant paid the price of admission and was admitted to the racecourse at Harold Park did include as some of its terms such of the provisions of the Rules of Trotting as were applicable to the situation. It is a short step to hold that the contract properly understood contained an implied stipulation by the respondent not to revoke the appellant's licence except in accordance with the Rules of Trotting. Whether such a negative stipulation would be enforceable by injunction notwithstanding Cowell v. Rosehill Racecourse Co. Ltd. [7] is a question which need not be considered. However, it is difficult to regard the contract which came into existence in those circumstances as one which contained an implied term that the appellant would be granted admission on any future occasion on which he might seek it unless he was properly excluded under the rules. I am therefore not persuaded that the appellant, by attending the course in the past, acquired any contractual right as against the respondent to enforce the Rules of Trotting in future. I do not consider what the situation would be if the appellant applied for admission to a course and was refused. Whether any contract would then come into existence which would include a term that the appellant should be admitted to the course unless he was properly excluded under the rules is a question which might depend on the exact circumstances and should not be answered hypothetically. 1. (1937) 56 C.L.R. 605.
The question however, is not whether the respondent can enforce the Rules of Trotting but whether a declaration would be futile. The fact that the appellant cannot enforce the rules does not mean that they are unenforceable. I can see no reason why a member of the respondent club could not bring proceedings for their enforcement. No argument has been directed to the question whether the authority constituted under the Trotting Authority Act, 1977 could do so. Moreover, there is another important consideration. The respondent has not submitted that the Rules of Trotting are nugatory or illusory. Its submission was that its rights as an owner allow it to exclude the appellant notwithstanding that the provisions of the rules have not been observed. That submission was not correct for the reasons that I have given; if the respondent considers that the appellant is a person who should not be allowed to attend trotting meetings its proper course is to take action under r. 28 and in so doing it must observe the requirements of natural justice. There is no reason to believe that the respondent will in future seek to act on any view established by this Court to be erroneous. It would not be right to assume that a declaration would be ineffective; on the contrary the Court will act in the confident expectation that once the law is declared the respondent will not seek to do anything contrary to it: cf. Eastham v. Newcastle United Football Club Ltd. [8] .
For these reasons I consider that the declaration sought by the appellant would not be futile and ought to be made.
I have had the advantage of reading the reasons for judgment prepared by Aickin J. and agree with the conclusions which he has reached.
The parties to this appeal have treated as common ground that, if what here occurred was the exercise as against Forbes of the power to "warn off", it called for the observance of the rules of natural justice. In so doing the parties have rendered inappropriate any consideration of what significance, if any, may reside either in the tenuous nature of the relationship between Forbes and the Club or in the nature of the injury suffered by Forbes in consequence of the "warning off".
Accordingly it is enough for me to express my general agreement with all that my brother Aickin has said, subject to only one reservation which relates to the precise grounds for rejecting the Club's submission concerning r. 28. It was submitted on its behalf that even if, as I believe to be the case, the resolution complained of by Forbes must properly be regarded as a purported exercise of the power to "warn off" conferred by r. 28, vitiated for want of observance of natural justice, yet the Club's ownership and occupation of its two trotting courses nevertheless enables the resolution to be supported as valid at least in respect of those two courses. I would prefer to base my rejection of this submission upon the second only of the two grounds relied upon by Aickin J., rejecting it for the reason that an ineffective exercise of the power to "warn off" conferred by r. 28 cannot be saved or made good by calling in aid the existence of the quite distinct power of the Club arising not from any rule but simply from its status as owner and occupier of these two courses. No true analogy, such as was sought to be drawn by counsel for the Club, exists between the present case and that of the justification of the dismissal of a servant upon grounds other than those on which the employer in fact acted: nor can support be found for the submission in the passage relied upon from the judgment of Gibbs J. in Reg. v. Conciliation and Arbitration Commission; Ex parte Graham [9] . The present is not a case of the exercise of some specific power or jurisdiction found to be sustainable on grounds other than those in fact relied upon at the time of exercise: it is, rather, a case of the purported (but in fact vitiated) exercise of a particular power which might only be validly exercised, and thus give rise to legal consenquences, if exercised with due regard to the requirements of natural justice. In such circumstances it is nothing to the point that the exercise of some quite different power might have been valid and effective without need to conform to such requirements.
I would allow this appeal and make an order in the terms proposed by Aickin J.
The committee of the New South Wales Trotting Club Ltd. passed a resolution "warning off" the appellant, Mr. Forbes. The committee purported to act as the controlling body of trotting in New South Wales under the Rules of Trotting made by the Australian Trotting Council, a voluntary association, to which the respondent and other trotting clubs in Australia belonged. Under the Rules of Trotting, a warning off prohibits the person from entering any course under the Club's control and a warning off by the respondent is acted on by other trotting clubs in New South Wales. The appellant belonged to other trotting clubs in New South Wales. The appellant applied to the Supreme Court of New South Wales for a declaration that the resolution was invalid, but the application was dismissed at first instance and by the Court of Appeal. He now appeals by special leave.
To be valid, a decision to warn off must be made in accordance with the principles of natural justice (see Heatley v. Tasmanian Racing and Gaming Commission [10] ) which require an opportunity to be heard before the decision is made. The appellant was not given the opportunity to be heard which every person in a civilized society should be accorded in such circumstances.
The respondent contends that its resolution, even if invalid as a warning off, has the same effect as a warning off if it is treated as an exercise of the respondent's rights as owner of the lands. However, because of the provision for reciprocal warnings off, a warning off may have effects much wider than exclusion from the respondent's lands. The resolution, therefore, cannot be treated simply as an exercise of an owner's rights. For that reason, the appeal should be allowed. Even if this were not so, the question would remain whether the respondent was entitled to rely on its private rights, as owner of the lands on which the racecourse was conducted, to arbitrarily exclude the appellant. The respondent contended that it was in the same position as an individual householder with a right to arbitrarily exclude anyone he wished. In my opinion, it is not. As it is not necessary for the decision, I will state my views briefly.
The respondent is not only an owner of land, it is registered under the Gaming and Betting Act, 1912 N.S.W., as amended, to conduct race meetings on the lands and, under the Totalizator Act, 1916 N.S.W., as amended, to permit tote betting on the lands. Because of this, the respondent exercises power which significantly affects members of the public, tens of thousands of whom go to watch the spectacles, many to bet as a hobby, and some, like the appellant, to try to make a living by betting. Many hundreds depend on it for their livelihood in occupations such as bookmaking, training and driving. The functions of the respondent in relation to the conduct of race meetings on its lands are qualitatively different from that of the ordinary householder exercising his private property rights. A householder, exercising his property rights, may do so against the public, and ordinarily this is sensibly regarded as the exercise of a private right and of private power, although the right stems from a public source and is ultimately enforceable through public administrative and judicial authorities. A householder exercising his property rights of exclusion is not in the same position as persons with licences to conduct public halls, restaurants, theatres or racecourses. From early times, the common law has declined to regard those who conduct public utilities, such as inns, as entitled to exclude persons arbitrarily (see White's Case [11] ). However, in Cowell v. Rosehill Racecourse Co. Ltd. [12] , the Court, in my opinion wrongly, dealt with exclusion from a racecourse as if the case were concerned with private rights only. That case differs from the present case in that there the person was removed from one meeting during its course; here the exclusion is from all meetings indefinitely.
When rights are so aggregated that their exercise affects members of the public to a significant degree, they may often be described as public rights and their exercise as that of public power. Such public power must be exercised bona fide, for the purposes for which it is conferred and with due regard to the persons affected by its exercise. This generally requires that where such power is exercised against an individual, due process or natural justice must be observed. There is, of course, legislative and executive powers affecting individuals which traditionally have been treated as not being required to conform to natural justice. There is a difference between public and private power but, of course, one may shade into the other. When rights are exercised directly by the government or by some agency or body vested with statutory authority, public power is obviously being exercised, but it may be exercised in ways which are not so obvious. In my opinion, a body, such as the respondent, which conducts a public racecourse at which betting is permitted under statutory authority, to which it admits members of the public on payment of a fee, is exercising public power. It may not arbitrarily exclude or remove such a person from the lands during a race meeting. It was conceded that there are ample powers to remove persons who misbehave. As the lands in question are used in this public way only during race meetings, the exercise of public power is confined to those times. In so far as the land reverts to a private use from which members of the public are excluded at other times, there is no reason why the respondent's ordinary private rights may not be exercised at those times. Exercise of power to exclude persons not in the position of members of the public, that is, drivers or others who use the racecourse on other days, does not now call for consideration.
It seems to me that the resolution of this case does not depend on the terms of the Club's rules or by-laws. If these purport to exclude natural justice in the making of a decision to warn off or to permit arbitrary exclusion of a person from the lands, then they are to that extent invalid as being contrary to public policy. This result is consistent with the concept of due process which has its roots deep in the common law. The fact that this concept was taken to the American colonies and became the basis of federal and State constitutional guarantees should not obscure its common law nature and its close association with great English constitutional instruments which have become intertwined with the common law. Natural justice and fairness are different ways of expressing the concept or facets of the concept of due process. When one departs from the purely domestic area of householder and from contracts affecting only individuals, into the sphere where there is an accumulation of rights the exercise of which affects the public to a significant degree, then increasingly, requirements of due process are imposed and arbitrary and unreasonable conduct is not permitted. This approach has been taken to monopolies, contracts in restraint of trade, as well as to statutory authorities. It has also been taken to the conduct of trade unions and clubs in dealing with their members. The question is where the line is to be drawn between public power which requires observance of due process and private power which does not. The development of civil rights and liberties is evolutionary (see Home Secretary v. O'Brien [13] ). The stage has been reached where the exercise of power to exclude a person indefinitely from a public racecourse should be treated as public power subject to due process.
The appeal should be allowed. A declaration should be made that the resolution is invalid.
The material facts and documents on which this appeal turns are set out in the judgment of the Chief Justice and I do not repeat them here. The central question is whether the resolution passed on 14th January 1976 by the Committee of the New South Wales Trotting Club Ltd. ("the respondent Club") which was communicated to the appellant in the letter handed to him on 15th January 1976, constituted a "warning off" pursuant to the powers of the Committee under r. 28. The term "warned off" is defined in the Rules to mean "a notice of a decision by resolution issued by a Controlling Body or by a Club prohibiting the person named thereon from entering any course under its control". In my opinion the notice handed to the appellant comes within that definition. I am unable to accept the argument that this notice constitutes no more than a notice by the New South Wales Trotting Club Ltd. as the owner of the premises upon which its two "paceways" are located prohibiting a person from entering on its land. In considering the notice it is necessary to remember that the respondent Club filled two different roles, first, the role of the controlling body for trotting throughout New South Wales, and second the role of a club conducting meetings on two courses on land of which it was the registered proprietor.
As the controlling body for trotting in New South Wales it had all the powers given to a "controlling body" by the Rules of Trotting, including the power to "warn off". It was common ground between the parties that the power to warn off was such that it should be exercised in accordance with the principles of natural justice.
It was argued on behalf of the respondent Club that the purpose of the resolution was to exclude the appellant from its own courses and that it should not be construed as an exercise of the power given by r. 28 of the Rules of Trotting because that power was not effectively exercised for want of compliance with the principles of natural justice. This argument appears to me to involve a misconception. That which is done without compliance with applicable principles of natural justice, in circumstances where the relevant authority is obliged to comply with such principles, is not to be regarded as void ab initio so that what purports to be an act done is totally ineffective for all purposes. Such an act is valid and operative unless and until duly challenged but upon such challenge being upheld it is void, not merely from the time of a decision to that effect by a court, but from its inception. Thus, though it is merely voidable, when it is declared to be contrary to natural justice the consequence is that it is deemed to have been void ab initio. Accordingly, it does not follow from the fact that an act is done without compliance with the principles of natural justice that it must be regarded as no act at all and supportable (if at all) as an effective act only on some other basis. This argument must therefore be rejected.
It was also argued that reliance could be placed upon the analogy with the principle that the discharge of a contract by rescission for breach would still be effective, though reliance was placed upon an inadequate ground, if in fact it turned out that there was some other legitimate ground available for taking the action. This analogy, however, is not applicable because it is concerned with an endeavour to support the doing of a particular act or the exercise of a particular power by reference to alternative grounds, whereas the present question is an endeavour to determine the nature of the power exercised, there being two powers, each with different consequences. In this respect I agree with the judgment of Samuels J.A. The problem arises because the respondent Club has two different capacities, each carrying its own powers and authorities. As a landowner it has the ordinary rights and powers of the owner of land, including the power to refuse admission to the land to such persons as it may choose, and to remove persons therefrom who have no interest in the land, notwithstanding that they may be there pursuant to permission granted under a binding contract. In its capacity as the controlling body for trotting in New South Wales it has the powers and authorities given to it under the Rules of Trotting which include the power to warn off which carries consequences far wider than the confines of its own land and the courses which it operates thereon.
The consequences of a warning off notice are set out, in particular in rr. 20 (e), 29, 29a and 355 and in Pt XXVII generally.
The resolution did not merely exclude the plaintiff from the two paceways operated by the Club, which were expressly named, but also from "any other Course or Courses which may now or in the future be occupied by or under the control of the New South Wales Trotting Club Limited". There were at the time no other courses then occupied by the respondent Club, but there were then other courses under its control. The words "under the control of" are wide and appear to me to be apt in their context to describe all the registered courses in the State of New South Wales because the respondent Club is, as the "controlling authority" in control of all those courses. The expression "controlling body" is defined as meaning "a body of persons which by convention or recognition or an enactment of law is deemed to be in control of trotting in a particular State" and names the respondent Club as the controlling authority for New South Wales. Rules 25-29a set out the principal powers of the committee of a controlling body and r. 25 provides that it shall have "the exclusive control and general supervision of trotting within its territory". Rule 28 gives power to the committee of a controlling body "in its or their absolute discretion [to] warn any person off any course or the Committee of a Club may at any time at its absolute discretion warns [sic] any person off any course which it controls". Rule 29a provides that the controlling body is to be at liberty to provide information relating to any person who has been excluded from, or warned off any course occupied by or under the control of the controlling body including the fact that such person has been so excluded or warned off. Rule 355 provides a number of disabilities of a serious character which flow from warning off including that such person shall not be eligible to become or to remain a member of a trotting club and shall cease to be a member of any club of which he was a member.
The expression "occupied by" is apt to describe a course which is held by the controlling body as owner or under a lease, whereas the term "under the control of" the respondent Club is appropriate to describe courses over which, in its capacity as the controlling body, it has control. In my opinion that is its meaning in the resolution adopted by the committee of the respondent Club on 14th January 1976.
The definition of "disqualify" and "disqualification" in the Rules provides that, in relation to a person, it means "a period of expulsion and unconditional exclusion from the trotting industry applied by the Stewards or Controlling Body so as to absolutely prohibit a person from entering any course during the currency of any trotting meeting or from, entering the stable area of any licensed person and shall also mean prohibition of registrations of changes of ownership of horses". Part XXVII attaches a variety of consequences to disqualification which are additional to those specified in respect of "warning off" under rr. 28, 29 and 29a. Rule 29 makes a general provision that a person warned off shall be subject to the same disabilities as attach to a disqualified person; this in effect duplicates the effect of the definition of disqualification and disqualify in relation to a person.
It is to be noted that under r. 28 the committee of the controlling body has the same authority over every trotting course with respect to warning off as the committee of the club which operates each such course.
It is said however that the respondent Club has in fact not attempted to apply r. 29a and did not circulate the fact of the appellant having been warned off, nor has any club of which the appellant was a member sought to terminate his membership or to exclude him from its course. It does not appear to me, however, that the respondent Club's conduct after it gave what I regard as clearly constituting a warning off notice has any relevance to the proper construction and understanding of the documents themselves. Why they have in fact adopted the course they have does not appear and indeed it could not be relevant.
It follows from what I have said and from the mutual concession that the respondent Club in issuing a warning off notice must comply with the requirements of natural justice and from the fact that it did not in fact comply with those requirements that the resolution of 14th January 1976 must be declared void, its effectiveness having been challenged and indeed not sought to be defended if the resolution and the notice did constitute a "warning off". Ordinarily it would follow that there should be a declaration accordingly.
The trial judge treated the resolution as being supportable as an exercise of the respondent Club's proprietary rights in relation to its own land and accordingly treated the resolution as valid. He also took the view that a declaration of invalidity of the resolution would be of historical interest only and would not resolve any issue between the parties and enable substantial relief to be granted. At the end of his reasons for judgment the trial judge said that the summons should be dismissed on the respondent Club by its counsel undertaking to the Court that it would not regard or act upon the resolution of its committee of 14th January as an exercise of the power given by r. 28 of the Rules of Trotting. The appeal book does not record the giving of any such undertaking, but presumably it was given before judgment was entered.
Prior to the delivery of the judgment the respondent Club applied to the trial judge for leave to re-open its case and to adduce further evidence to the effect that, after the decision had been reserved, the Committee had passed a further resolution which began as follows: "in the exercise of its rights as the registered proprietor of the land on which is constructed the Harold Park Paceway and the Menangle Park Paceway and not in the exercise of any power conferred or purportedly conferred upon the Club by the Rules of Trotting" and went on to exclude the appellant from those premises. The trial judge refused that application, but the fact of the making of it and of the passing of the resolution was brought to the notice of the Court of Appeal and this Court. It may be observed that the passing of that resolution was not accompanied by any rescission of the earlier resolution.
In the Court of Appeal Hutley J.A. took the view that the resolution operated as one based on the proprietary rights of the respondent Club in the land on which its paceways were constructed. He also said that, if he were of the opinion that the resolution could not be so supported, it would not be an appropriate case for a declaration because such a declaration would be futile as the appellant has not and cannot acquire against the will of the respondent Club any right to enter either paceway. Samuels J.A. took the view that the resolution was an exercise of the power with respect to warning off and treated it as void. He concluded, however, that as a matter of discretion no declaration should be made. He referred to the fact that the respondent Club's proprietary rights remain unimpaired and that it might therefore continue to keep the appellant out of its two paceways and that a declaration would not let him in. He referred then to the fact that the Club had not attempted to use the Rules to apply the other consequences of warning off to the appellant and that no other club had made any move against him. He therefore took the view that the making of the declaration would serve no practical purpose and should be refused. Mahoney J.A. took the view that the existence of the power to warn off under the Rules operated to exclude any other right, as such Rules were inconsistent with the retention in the controlling body of a power otherwise to prohibit entry to the courses. Accordingly he took the view that the declaration should be made.
In the light of my conclusion as to the effect of the resolution and notice, the only question which remains is whether as a matter of discretion the declaration should be refused.
It is true that the respondent Club, as the owner of the land on which two paceways are constructed, may, in the exercise of the ordinary rights of a landowner, refuse permission to any person who may wish to enter and may terminate the permission granted to any person who has entered, even pursuant to the terms of a contract, so long as that contract does not confer upon him an interest in the land. The exercise of such a right or power would have the effect of excluding the appellant from the two respondent Club's paceways in New South Wales. The respondent Club has by passing the resolution which it sought to introduce in evidence in the court below after the hearing had been concluded indicated that it was then, and presumably still is, its intention to take whatever steps which would achieve its objective of excluding the appellant. If the resolution of 14th January 1976 stands as apparently valid, the other consequences of warning off and disqualification will still remain operative. The respondent Club has not so far acted in accordance with the powers which it would have, for example, to notify other clubs, and it has evidently undertaken to the Supreme Court not to do so. However, I do not consider that that is sufficient to provide the protection to which the appellant in my opinion is entitled because, under the Rules of Trotting, most of the consequences of warning off are automatic and not discretionary. If they were all discretionary then an undertaking by the respondent Club to the Court not to exercise its powers would provide protection against any action by the respondent Club itself. The difficulty, however, is that under r. 355 (a) the consequence of disqualification (which means and includes warning off) is that the person so warned off shall not be eligible to remain a member of a registered trotting club and ceases to be such a member. If one assumes that r. 355 (e) means that the controlling body is the "Board" there referred to, as I think it must, then the respondent Club being the controlling body has neither determined that the ineligibility of the appellant to be a member of the clubs of which he was a member prior to his disqualification should no longer continue nor has it offered or undertaken to the Court to pass a resolution accordingly. While the disqualification remains in force the automatic prohibition brought into operation by r. 355 (a) continues. Under r. 100 no horse in which any person, or the husband or wife of any person, who has been disqualified has an interest shall without the permission of the controlling body be entered for any race. It appears that in fact the appellant's wife owns one or more horses and that they have not been prevented from racing. It may be that benevolent reading of whatever undertaking was actually given would oblige the respondent Club to grant permission to the appellant's wife under r. 100, but it is certainly not expressed in those terms in the short minutes of the order made by Waddell J.
Moreover, other trotting clubs of which the appellant is a member, or of which he may seek to become a member, would not in any way be bound by an undertaking given by the respondent Club and, although those of which he was a member have continued to treat him as a member, the warning off produced an automatic effect that he was in truth no longer a member. All these disabilities appear to me to be real, whether or not one takes the view that at the present time they are being ignored, and perhaps, unless there is some change in the circumstances, will continue to be ignored. I do not consider that this is sufficient to protect the appellant in the manner which he is entitled to be protected from the consequences of the invalid resolution. I would accordingly make the declaration sought.
In these circumstances it is not necessary for me to deal with the argument in which the appellant sought to rely upon the decision in Nagle v. Feilden [14] and the so called "right to work", and which included reliance on the decision of this Court in Buckley v. Tutty [15] . I think those questions are better left for an occasion which makes it necessary to examine them.
For those reasons I would allow this appeal with costs and order that the order of the Court of Appeal be varied so as to order that the appeal by the appellant to it from the decision of the trial judge be allowed with costs, and that in lieu of the order made by the trial judge there be a declaration that the relevant resolution of the respondent Club was void and of no effect and that the respondent Club pay the costs of the appellant, and that the respondent Club should, if entitled, have a certificate under the Suitors' Fund Act in respect of its costs in the Court of Appeal.
Forbes
NSW Trotting Club Ltd