Glenn Smith v Royal NSW Canine Council Ltd - [2010] NSWSC 1134 - NSWSC 2010 case summary — Zoe

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Glenn Smith v Royal NSW Canine Council Ltd

[2010] NSWSC 1134

Supreme Court of NSW|2010-08-02|Before: Commission J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2010-08-02

Before

Commission J

Catchwords

Judicil review - Domestic Tribunal - Dog Show in Bega - Procedure fairness - Applicability of Companion Animals Act

Source

Original judgment source is linked above.

Catchwords

Judicil review - Domestic Tribunal - Dog Show in Bega - Procedure fairness - Applicability of Companion Animals Act

Judgment (61 paragraphs)

[1]

Background facts 9 Mr Smith is the owner of the Rottweiler dog registered as CH Gelderland Fast N Furious. The dog's pet name is Swanee and he is about 29 months old. 10 Mr Smith and his wife Margaret have had a long involvement with dogs. Mr Smith acquired his first Rottweiler in 1988 and has been involved with that breed continuously for the last 22 years. Since he commenced showing Rottweilers, he has achieved Grand Championship status with one male and two female dogs. Swanee is currently the Smiths' only show dog. It is Mr Smith's opinion that Swanee was well on track to gaining his Grand Championship status. Up until 6 February 2010 the Smiths had exhibited Swanee at dog shows on the majority of weekends. They enjoy this hobby immensely. 11 On 4 February 2010, Swanee began experiencing very bad diarrhoea. Mr Smith administered Imodium tablets to him. Unsurprisingly, Swanee did not appreciate this.

[2]

The Club decision 6 February 2010 12 On the weekend commencing 5 February 2010, the Club was conducting three dog shows under a panel of three judges. Swanee was entered in an All Breeds Championship Show held on 6 February 2010. This show was judged by Ms Yanina Smith (no relation to Mr Smith). 13 Swanee had been given an Imodium tablet on the morning of 6 February 2010 and another about 30 minutes before he entered the ring. At about 10.15 am Mr Smith presented Swanee for examination by the judge. The judge, Ms Yanina Smith, asked about Swanee's age and examined his dentition. It is from this stage onwards that accounts of what then took place diverge. 14 Mr Smith contended that Swanee merely jerked his head to the left and out of Mr Smith's clasp, and that any contact between Swanee and the judge was purely accidental and not a show of aggression. In his statement dated 6 February 2010 Mr Smith stated: "The judge wished to examine [Swanee's] head with his mouth closed - he was panting and had his mouth open - I commented to the judge about him 'smiling'. In order for the judge to examine his head without him panting - I forced the dogs mouth closed and held his muzzle whilst she touched the side of his head. He objected to being touched whilst I was forcing his mouth closed. I believe I put him on the defensive. In his defence, for the last two days he had been experiencing very bad diarrhoea - I have been forcing Imodium tablets down his throat to which he has been objecting - he had been given a tablet earlier in the day and another tablet shoved down his throat about 30 minutes before entering the ring - he has been objecting to me opening his mouth, forcing the tablet down his throat and then holding his mouth closed until he swallowed the medication .

[37]

(f) The Show Committee shall advise in writing, on the day , the person who appears to be responsible for the care and control of an aggressive dog of its declaration as such. (g) Forthwith upon the Show Committee declaring a dog to be an aggressive dog: (i) the owner, exhibitor or handler responsible for the dog shall forthwith remove the dog from the showground; (ii) the dog shall ipso facto be disqualified from further exhibition at the show in question or at any other show. During the period of such disqualification the dog shall not be allowed to enter or remain upon any showground. (h) In the event that the Show Committee declares a dog to be an aggressive dog, then no later than within the next 5 working days after the incident the affiliate shall provide the Manager with a written report of the incident and the Show Committee's decision and shall include with that report a copy of all statements in writing concerning the incident, the Minutes of the Show Committee Meeting, the advice referred to in (f) above, relevant catalogue pages and any other relevant documents. (i) Within 2 calendar months of receipt of the report referred to in (h) the Board of Directors shall consider the report and if satisfied that the dog is likely to constitute a danger to persons, other dogs or property at any show, may suspend or disqualify or otherwise debar that dog from being an exhibit, or may impose such conditions in relation to the exhibition of that dog, and in either event for such period as the Board of Directors considers appropriate. … (m) For the purpose of this Regulation 14.10, 'show' includes any trial, parade, picnic day, event or other activity in which a member participates with a registered dog. … … PART XII INTERPRETATION " Show Committee " means the person responsible for the organisation and running of the Show in question but for the purpose of Regulations Part II Show Section 14 only shall mean the President of the Affiliate concerned and the Show Manager and the Show Secretary appointed by the Affiliate or the Committee of the Affiliate in respect of the show concerned. For the purpose of Regulations Part II Section 14 a meeting of the Show Committee comprising the President, the Show Manager and the Show Secretary shall require all three such persons thereof to be present in person. However, if the same person represents two of these positions as aforesaid than an additional person shall be appointed by the Affiliate for the purpose of this Regulation. … If any member of the Show Committee is interested in any way, personally, or through family, or ownership of animals involved, in any matter before the Show Committee, that member must stand down and be replaced by a different person from the Affiliate or Agricultural Association, as appropriate. …" 34 Dogs NSW has also published "Guidelines for Show Committees When Dealing with Aggressive Dogs" ("the Guidelines"). The Guidelines read, relevantly: "If an incident occurs at a show the Regulations require your Show Committee to, immediately it is reported, conduct an investigation. The Show Committee must be of at least three people and include at least the President, the Show Secretary and the Show Manager if one exists (and it should) must also attend. NOTE it is a minimum of three people.

[38]

The Chairman shall initiate the investigation with the following statement: "This investigation is to examine an alleged incident that the dog "……" acted aggressively in that it ………… Should the incident be proved then the dog "……" shall be declared "Aggressive" which will mean that the dog shall be removed from the Showground immediately, and must not be exhibited again until the matter is dealt with by Dogs NSW. If no advice is received from Dogs NSW within 2 months, then the owner may make application to Dogs NSW to have the suspension removed. The Chairman shall introduce all parties at the investigation and in particular the members of the Show Committee. The Chairman should seek a written statement concerning the incident from the complainant before starting the investigation. The statement must be made available to the owners and/or handlers of the dog so they may prepare a defence and question the statement during the investigation. The owner and/or handler of the dog should be advised to make a written statement and this statement must be made available to the complainant. …The owner or person responsible for the dog must be in attendance at all times and must be allowed to question witnesses, make statements, and generally defend the dog. He/she may be excused whole the Show Committee deliberates its decision. The Show Committee must take into account any provocation which occurred. … Once the Show Committee has heard all the available evidence it must make a judgement as to whether the dog was aggressive or not, if not all parties must be advised of the reason for the decision and a report submitted to Dogs NSW. If it is decided that the dog is to be declared aggressive, the Aggressive Dog Declaration form must be completed and a copy of this, along with all documentation, and Minutes of the Inquiry must be sent to Dogs NSW within five days. The owner of the dog must be advised then and there, it is not adequate to write to them later. … (emphasis in original)

[41]

(c) has displayed unreasonable aggression towards a person or animal (other than vermin) …" 39 Section 36 sets out the obligations of a dog owner whose dog has been declared dangerous. These include measures to muzzle, secure and confine the dog. An owner who fails to discharge these obligations may have his or her dog seized. The Local Court also has powers pursuant to ss 44 and 45 to declare that a dog is dangerous and having made that declaration a court has power under ss 47 and 48 to make control and destruction orders. Section 93 provides the Supreme Court with summary jurisdiction to deal with proceedings for an offence under the Act. There is a similar procedure in India, such as that set out in s 191-BA of the Goa Municipalities Act. For further discussion of the procedure in India, see People for Elimination of Stray Troubles (Pest) & Anr v State of Goa and Ors [2003] INGAHC 1. 40 Section 96 confers power on the Governor to make regulations in relation to (inter alia) fees for registration certificates, the number of "restricted" dogs a person may own, and the training and accreditation of assistance animals. The scope of the regulation-making power does not envisage the making of regulations in relation to the exhibition of dogs at dog shows. I accept that there are provisions in the Companion Animals Act that define what constitutes a dangerous dog and put in place a procedure by which dogs can be declared dangerous. But this procedure is not intended to regulate the behaviour of dogs and their owners at dog shows. It is my view that there is no inconsistency between the Companion Animals Act and the Dogs NSW Regulations. Accordingly, this ground of review fails. Ground 2: Procedural Fairness 41 Mr Smith submitted that the decision of each defendant was arrived at in breach of the 'fair hearing' rule. 42 Aronson, Dyer and Groves state (Judicial Review of Administrative Action (4th ed) Thomson Reuters Australia at 403: "In broad terms [the rules of natural justice] require that persons be afforded a fair and unbiased hearing before decisions are taken which affect them." 43 In Kioa v West [1985] HCA 81; (1985) 159 CLR 550 the High Court held that the duty to accord natural justice is a duty to act fairly. This normally involves a duty to apprise the affected person of the nature of the charge and of the date and time fixed for hearing so that the person is given a reasonable opportunity to meet that case and to advance his or her own. Brennan J (as he then was) stated (at 628): "A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interest which the repository of the power proposes to take into account in deciding upon its exercise." 44 Mason J (as he then was) stated in Kioa that the law had now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. Procedural fairness as a notion is a flexible obligation to adopt fair procedures, which are appropriate and adapted to the circumstances of the particular case (584-585). 45 I accept that the Dogs NSW decision affects Swanee's chance of becoming Grand Champion and that Mr Smith would be entitled to prize money if Swanee had won any of the dog shows in which, owing to his suspension, he could not compete. 46 Mr Smith submitted that the Club failed to observe the Regulations and Guidelines in that the "rules for fair hearing" were not observed during the Bega Show Committee Inquiry. Mr Smith contended that during the Inquiry "no Chairperson was identified or identifiable" and that the "Club President was not present", that there was "no opening announcement made" and that "no members of the Show Committee were introduced" to him. Mr Smith submitted that: "The statement from the complainant was only made available to me to read after the Show committee had made its decision. Therefore it was not available to me, as required, to enable me to 'prepare a defence and question the statement during any investigation'…

[48]

Mr Smith was allowed to read all reports, and the report form was explained to him and signed." 48 Mr Smith submitted that the most fundamental breaches of process were firstly, the wrong composition of the Committee; secondly, its failure to serve him with the complainant's (Ms Yanina Smith's) statement prior to the commencement of the hearing, and the consequent denial of the chance to question her, to receive witness statements and to generally defend and otherwise prepare his case; and finally, a purported finding that the dog "grabbed" Ms Yanina Smith when that description was not within the wording of the charge, being Ms Yanina Smith's statement. 49 In Maloney v NSW National Coursing Association at 171 Glass JA (with whom Hope and Hutley JJA agreed) considered that the requirements of natural justice were somewhat different where domestic tribunals were concerned. His Honour elaborated on the reasons why this was so. " In the administration of justice by courts proper, and those acting in a similar capacity, public policy requires that there should be no doubt about the purity of that administration: Allinson v. General Council of Medical Education and Registration , per Lord Esher M.R. The rules being enforced have no consensual basis. The parties have not chosen the tribunal. The judges and those being judged are drawn from two groups of people so numerous and so placed in relation to each other that it is not only desirable, but also eminently feasible, to insist that the former should be purged of all bias towards the latter, whether real or apprehended. Domestic tribunals are usually established in circumstances which are radically different. The members, generally speaking, have agreed to abide by a set of rules and the authority of a committee to enforce them, if necessary by expulsion. The committee members cannot, in the nature of things, divest themselves of the manifold predilections and prejudices resulting from past associations with members. Apprehension of bias could be generated in all kinds of ways. If it was a disqualifying consideration, the enforcement of the consensual rules would be largely unworkable. There may be some circumstances where a suspicion of bias would operate to disqualify a member of a domestic tribunal. But generally speaking it does not so operate and, in particular, it cannot operate with respect to tribunals such as that set up by Art. 10 in the articles of the defendant association … … A domestic tribunal obliged by the general law to observe the minimum requirements of justice must give notice of the charge being preferred, extend an adequate opportunity to present a defence and concede all the other incidental safeguards of a fair trial which are covered by the audi alteram partem principle. Nothing less than a clear dispensation in the rules could exclude these requirements. Similarly with respect to the disqualification attaching to a party who is in the position of a litigant qua the party charged, as Mr. Bell was, or whose mind is imbued with actual bias with respect to the issues to be judged or the member to be tried. But for reasons already given I am of opinion that suspected bias on the part of a member of a domestic tribunal such as the committee of the defendant association does not disqualify him, even if there be no rule which expressly, or by implication, so provides." (footnotes omitted) 50 The defendants accept that there is an implied duty to accord procedural fairness in the present case. The question is whether the content of that duty is reduced and if so, to what extent. The defendants submitted, and I accept, that the content of the duty was affected by, firstly, the urgency of the case, secondly, the fact that the matter was an Inquiry rather than inter partes litigation, and finally, the fact that the Club decision fell within the broader decision-making process culminating in the Dogs NSW decision. 51 It is plain that circumstances of urgency may mitigate the requirements of procedural fairness in a particular case (see, eg, White v Redfern (1879) 5 QBD 15; Hodgens v Gunn; Ex parte Hodgens [1990] 1 Qd R 1). 52 It was Mr Smith's argument that as Swanee had been safely confined to the Smiths' van after the incident, there was no urgency such as to justify any departure from the normal rules of procedural fairness. 53 However, the Regulations reflect the urgency of circumstances in which a dog is or may be declared aggressive. They require much to occur immediately after the incident has occurred. As Ms Yanina Smith formed the view that Swanee bit her, she was obliged under Clause 14.10(b) to report the incident to the Bega Show Committee as soon as possible after the incident. Upon receipt of the incident report, the Bega Show Committee was required to meet as soon as practicable on that day to consider the matter. 54 I am of the view, notwithstanding Swanee's confinement after the incident, that there was a considerable degree of urgency to the situation which would have reduced the requirements of procedural fairness in the Bega Show Committee's decision-making process. If the Bega Show Committee was not aware that Swanee had been confined, the urgency would have been more acute.

[49]

The decision-making scheme 55 The content of the hearing to be afforded by a preliminary decision-maker may be reduced on the basis that the preliminary decision operates only temporarily, pending the conduct of a hearing that may result in a decision with longer term operation (Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 513-6; Ex parte Jemielita (1990) 21 ALD 754). 56 Accordingly, where an impugned decision forms one step in a wider administrative process, the entire process should be considered in its entirety in order to determine whether procedural fairness has been afforded (South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378 at 389; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 578). In the present case, it is important to consider the requirements of procedural fairness within the complete context that includes both the Club decision and the Dogs NSW decision. As Aronson, Dyer and Groves note (p 489): "…in some cases at least, a preliminary decision may be considered to form part of a broader decision-making process, so that the provision of a hearing in the latter stages can be treated as satisfying the requirements of procedural fairness, or at least as reducing the content of those requirements at the preliminary stage. The general principle, we suggest, is that this should be permitted only to the extent that any significant adverse effects of the preliminary decision upon a person's interests can be substantially reversed or redressed at a later stage." (footnotes omitted). 57 In the present case, where a person reports that a dog is behaving in an aggressive manner at a dog show, the Regulations give the Show Committee a limited, preliminary function. It is to consider the incident, report and decide whether the dog is aggressive and advise the owner of any such declaration. The Show Committee has five days to send a written report of its decision under clause 14.10(h) to Dogs NSW. The board of directors of Dogs NSW is required to consider the report within two months of its receipt and determine whether to take any of the courses of action set out in clause 14.10(i). If it fails to finally deal with the matter within two months, pursuant to clause 14.10(j) the dog owner may apply for removal of the disqualification and Dogs NSW is to forthwith grant the application or reach a decision within one month, failing which the application for removal of the disqualification is deemed to have been granted. Accordingly, the final exercise of power, which potentially affects the interests of the owner or person responsible for the dog, rests with Dogs NSW.

[51]

Notice of the charge 59 The incident that gave rise to the Club's decision is described in Ms Yanina Smith's statement, in which the complainant stated that when she walked to the side of the plaintiff's dog to finish examining him, the dog "without warning bit [her]." 60 The Dogs NSW Aggressive Dog Incident Report, which was signed by Ms Hine and Mr Smith, described the incident as follows: "After being examined, when the judge moved to the dog's side the dog turned its head and grabbed the judge." 61 The Club provided both the Incident Report and the Bega Show Committee's decision of 6 February 2010 (with annexed written statements) to Dogs NSW. One of the annexed statements, by Mr Mackendar who witnessed the incident, stated: "The (sic) turn it head took her hand n arm." 62 Mr Smith submitted that the variance in the manner in which the incident was described left him "unaware of the precise charge he had to meet… a precision which the fair hearing rule demands." 63 In my view, however, there can be no doubt that the complaint was that Mr Smith's dog without warning "bit" the judge, an action which is also conveyed by the word "grabbed". Realistically, the only way in which a dog can grab a person whilst in a standing posture is by biting the person. I am not satisfied that Mr Smith was at any stage misled as to the nature of the complaint. 64 In most cases, procedural fairness requires that before a decision is made, notice be given to the person whose interests may be adversely affected by the decision. The notice should state the nature of the charge. However whether this requirement applies, and the extent of the requirement to give particulars of the charge, are reduced where a power is to be exercised urgently. 65 The defendants submitted that the extent of the requirement to give particulars of a charge is reduced in the case of an investigative tribunal where considerations of confidentiality and efficient conduct of the investigation apply (R v Gaming Board for Great Britain; Ex parte Benaim and Khaida [1970] 2 QB 417; Glynn v Independent Commission Against Corruption (1990) 20 ALD 214; Dainford Ltd v Independent Commission Against Corruption (1990) 20 ALD 207). It is sufficient if the tribunal advises the person affected of the general nature of the matters to which they should direct their attention. Insistence upon particulars of the charge is impractical and potentially embarrassing to the proper conduct of the inquiry, which is not inter partes litigation, and which must be capable of following the evidence wherever it leads (Bond v Australian Broadcasting Tribunal (No 2) (1988) 19 FCR 494 at 540-9; Glynn v Independent Commission Against Corruption). The person affected by the decision should understand the nature of the inquiry and the matters being investigated so that he or she may make submissions and present evidence directed at any potential adverse findings.

[52]

66 Plainly enough, in circumstances where there is an apparently aggressive dog present at an event at which there are other attendees and other dogs, there is an urgent need for appropriate action to be taken by the designated authority. 67 The Regulations, although not expressly providing for notice to be given to the person responsible for the dog before it makes its report, do provide for the report to be given to the owner once it is prepared. In some circumstances procedural fairness may demand that notice be given ahead of time and for practical purposes it is likely that in most cases this will occur. 68 In the present case Mr Smith was given notice that the Bega Show Committee was meeting to consider a report that his dog was aggressive. In his own account of events, dated 9 February 2010, he states that after the incident, he was approached by Mr Mackendar and informed that Ms Yanina Smith had reported the incident and that he was invited to attend the Inquiry (which he did). Contrary to paragraph 7 of Mr Smith's submissions dated 27 July 2010, I am satisfied that Mr Smith was aware of the charge he had to meet. 69 The duty to accord procedural fairness did not require the Bega Show Committee to give precise particulars of the charge. It was for the Bega Show Committee to ascertain the facts on the basis of the accounts presented to it, and if satisfied that the incident included the dog attacking or attempting to attack a person, make a declaration under clause 14.10(d). Opportunity to be heard 70 Mr Smith submits that he was not given an appropriate opportunity to put forward his version of events prior to the Club making its decision. This is contrary to the evidence of Ms Pam Seabrook, who stated in her report of 6 February 2010 that Mr Smith was given an opportunity to provide his explanation for the incident. 71 Ms Ralphs, in a letter sent to Dogs NSW on 10 March 2010, remarked as follows: "…Verbally Yanina Smith told us her version of what happened as did the witness Jim Mackendar whose evidence supported Ms. Smith's story & then the owner of the dog Mr. Smith spoke, he was quite upset. The problem was then discussed & we decided the dog was going to be declared aggressive. Mr. Smith was informed of the decision verbally. Everyone who had to write a report then sat down in the Secretarys Room & completed their individual reports. After completing his report Mr Smith asked us if he could have his wife write a report which we agreed to. He then left the room to go & get her, returning with her she subsequently wrote her report. All written reports were then given to the Secretary for her to send to Dogs NSW." 72 The Regulations are silent as to the conduct of the Inquiry. However, the Guidelines deal at some length with the nature of the evidence to be received at an Inquiry: "The Chairman should seek a written statement concerning the incident from the complainant before starting the investigation: The statement must be made available to the owners and/or handlers of the dog so they may prepare a defence and question the statement during the investigation. The owner and/or handler of the dog should be advised to make a written statement and this statement must be made available to the complainant. The inquiry must look at all evidence relating to the incident but only to that incident, comments like 'he's been having a go at everything all weekend' or 'he's always like that' are not relevant, and must not be allowed. The person making the report must give evidence as should all witnesses, preferably in writing. The owner or person responsible for the dog must be in attendance at all times and must be allowed to question witnesses, make statements, and generally defend his dog. He/she may be excused while the Show Committee deliberates its decision. … Once the Show Committee has heard all the available evidence it must make a judgment as to whether the dog was aggressive or not, if not all parties must be advised of the reason for the decision and a report submitted to Dogs NSW." 73 The eyewitnesses to the incident included Ms Yanina Smith, Mr Mackendar, Mr Smith and his wife. Ms Hine's report states that: "Reports were obtained from the judge, steward, dog owner/exhibitor, witness and then later wife of exhibitor.

[55]

Composition of the Bega Show Committee 78 Clause 14.10 of the Regulations requires the Show Committee to be comprised of the President, Show Manager and Show Secretary, all three of whom must be present. Where the same person holds two of these positions, an "additional person" must be appointed. This latter provision is not part of the Guidelines. 79 There are varying accounts of who comprised the Inquiry on the morning of 6 February 2010. Ms Hine's report records that, apart from herself (Treasurer and Show Secretary on the day), the attendees were Mr Smith, Ms Ralphs (Chief Steward) and Mr Mackendar (Steward). Ms Ralphs stated on 10 March 2010 that the members of the "Club's Show Committee" were herself (Chief Steward), Ms Linda Quinto (Club President) and Ms Hine (Acting Secretary). Ms Ralphs remarked that Ms Yanina Smith (the complainant), Mr Mackendar and Mr Smith were also present at the Inquiry. 80 Mr Smith stated that "[n]o parties or members of the Show Committee (if present) were introduced. In his document entitled "Legal & Administrative Issues" dated 11 February 2010, he stated: "As well as the judge and the aforementioned ring steward, two women were present. I assume they were members of the 'inquiry'. I do not know their names nor do I know their roles in the 'inquiry'. There were no formalities whatsoever - no introductions so I have no idea who was the chairperson…" 81 In an email dated 25 February addressed to Ms Virginia Gagan-Wilson (Secretariat Coordinator at Dogs NSW), Ms Hine stated: "I am Treasurer of the club and was Show Secretary on the day. We are a very small committee and I was the only committee person present at the inquiry. The club Secretary was running the front counter, which at a show is always busy. The club President had dogs entered in the show, in the Utility ring, the ring that was halted. Other committee members were not present until the evenings obedience trial." 82 It was submitted on behalf of the defendants that, "Whether the Club's Show Committee was comprised of Ms Hine, Ms Ralphs and Mr Mackendar, or was composed of Ms Quinto, Ms Ralphs and Ms Hine, it met the definition and was properly constituted." I do not agree. 83 I am satisfied that the only Committee member present at the Inquiry was the Acting Secretary, Ms Hine. Neither the Show Manager nor the Club President was in attendance. The Inquiry was improperly constituted. The condition precedent to appointing additional persons to comprise the Committee is not activated because the present situation is not one in which one person held dual relevant offices. As a result, the Report it produced may not have been valid under the Regulations. 84 Accordingly, in light of the incorrect constitution of the Bega Show Committee and the failures surrounding the provision and exchange of witness statements, I am of the view that Mr Smith was denied a fair hearing before the Bega Show Committee Inquiry. However, for the reasons that follow, this finding is of no consequence. It may be that where a Club is small in number and the members are involved in carrying out necessary roles on show day, it is not feasible to have the members as set out in clause 14.10 present at an inquiry. If that is the case, consideration should be given to amending that regulation.

[56]

Ground 3: Bias and discrimination 85 Mr Smith submitted that the Bega Show Committee was biased in its conduct of the investigation and in its decision on the basis that Ms Ralphs exhibited at least three of her own German Shepherds at the Club's three dog shows that weekend, Ms Hine showed her Hungarian Vizsla that weekend and Mr Mackendar was Ms Yanina Smith's ring steward. 86 There is no evidence to the effect that either Ms Ralphs' or Ms Hine's dogs were enrolled in any competitions held over the relevant weekend, let alone that their dogs were directly competing with Swanee. Even if there were such evidence, I would not have decided that the Club decision was capable of being challenged on the basis of apparent bias. The remarks of Glass JA in Maloney (extracted above at [48]) are apposite. Further, nothing turns on the fact that Mr Mackendar was Ms Yanina Smith's ring steward: he was not part of the (improperly constituted) decision-making body. Rather, he was a witness who was present in the ring when the incident occurred and thus in a position to provide a witness account. 87 Mr Smith further argued that the Bega Show Committee discriminated against him due to the fact that Swanee was the only Rottweiler amongst those exhibited at the Friday and Saturday shows who had a docked tail. Dogs NSW had previously considered a Statewide ban on the exhibition of dogs with docked tails. However, absent evidence that one or more of the members of the Inquiry were personally opposed to tail docking, this submission is without merit. 88 Mr Smith submitted that the Dogs NSW decision was infected with the bias and discrimination that affected the Club decision. However, because I have found that the claims of bias and discrimination in relation to the Bega Show Committee fail, so too does this submission. 89 Mr Smith further complained that numerous members of the Dogs NSW Show Committee and board of directors, including Mr Tom Couchman, were dog judges. The relevance of this is not apparent to me. There is no evidence capable of suggesting that these persons were more likely to accept Ms Yanina Smith's account for the reason that she too was a dog judge. 90 I have decided that the process leading to the Club decision was deficient in two ways: first, the Bega Show Committee was improperly constituted, and second, Ms Yanina Smith's statement was not provided to Mr Smith in time for him to properly respond to it. These circumstances combined to deny Mr Smith a fair hearing and hence to invalidate the Club decision. 91 Dogs NSW submitted that any defect in the procedure leading to the Club decision was cured by the hearing afforded to Mr Smith in the process leading up to the Dogs NSW decision. I am satisfied that this is correct. 92 Despite the failures in procedural justice that infected the Club decision, Mr Smith was given ample opportunity to be heard in the wake of the events of 6 February 2010, during which time he secured legal representation. His statement of 6 February 2010 was provided to Dogs NSW. On 11 February he sent two emails to Dogs NSW, one containing a statement and the other containing a "List of Legal & Administrative Issues". On 15 February he sent an email to Dogs NSW annexing a further statement. The following day, he provided his comments on the witness statements, copies of which had been provided by the Club. On 11 March 2010 Dogs NSW formally invited Mr Smith to make further submissions within 10 days. This invitation was repeated on 18 March 2010, but on 19 March 2010 Mr Smith's solicitor advised Dogs NSW that he (Mr Smith) did not wish to make further submissions. On 22 March 2010, Dogs NSW advised Mr Smith's solicitor that if Mr Smith changed his mind, further submissions would be accepted by 6 April 2010. Mr Smith made no further submissions. 93 It is my view that the defects in the Club decision were, contrary to Mr Smith's assertion, cured in the hearing provided by Dogs NSW, which really was the 'operative' decision. Dogs NSW afforded due process to Mr Smith (Calvin v Carr [1979] 1 NSWLR 1; [1980] AC 574). The Minutes for the Dogs NSW Show Committee meeting (held 16 February 2010) demonstrate the concern of Dogs NSW to reach a decision only after it had acquired a full understanding of the relevant events and had considered all of the evidence from the relevant witnesses. The Minutes read as follows: " 6.3.1 Receive various copies of emails from Mr Glenn Smith expressing his concerns in relation to the conduct of the Club's inquiry held on 6/2/10 at the Bega Valley Kennel & Obedience Club Inc. DEFER until the next meeting . For the Office : Please write to the Club, as a matter of URGENCY, requesting more detail, in particular, a full chronology of events and at what stage of the inquiry was Mr Smith informed of the decision. This Committee would require the answers from the Club for the next meeting. For the Office : Please also confirm the Representatives of the Club present at the inquiry, ie, was Mr Mackendar in attendance as a witness or as a member of the inquiry panel ." 94 Having analysed the Club decision and the Dogs NSW decision, I am not persuaded that Mr Smith has been denied procedural fairness. He is not entitled to any of the declarations or orders sought. Futility 95 The defendants submitted that it would be futile for this Court to grant relief because the Club decision was replaced by the Dogs NSW decision and the six-month period of disqualification ordered by Dogs NSW expired on 6 August 2010. Accordingly, it was submitted, relief should be refused in the Court's discretion. I agree. Swanee's period of disqualification has expired. Even if Mr Smith was successful in this action, it would be futile to make any order setting aside either the Club decision or the Dogs NSW decision. In any event, Mr Smith accepts that before Swanee can be entered into any further dog shows, Dogs NSW requires that Swanee pass a temperament test. Even if this Court granted the relief sought, it is not in a position to carry out the temperament test.

Glenn Smith v Royal NSW Canine Council Ltd

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