In Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381 at [263] Mason P stated:
"The present case involves examination of a proposal which … was capable of affecting a very broad number of persons and institutions in what may broadly be termed a matter of town planning overlaid with political issues. Such tasks do not usually attract the principles of procedural fairness at all, although they may do so as regards particular interests of particularly affected and identifiable persons … ."
73 Vanmeld Pty Ltd involved the promulgation of a local environment plan under the Environmental Planning and Assessment Act 1979 (NSW). The majority (Meagher and Powell JJA) held that compliance with the statutory scheme was sufficient to satisfy the requirements of procedural fairness. In South Sydney City Council, the Court was concerned with consultation with parties who might be affected by a recommendation of the Boundaries Commission, operating under the Local Government Act 1993 (NSW). Again, the statutory context was of importance. In any event, the broadly stated principles derived from the passages relied upon by the Appellant are not directly applicable in the present case. It became apparent early in the Appellant's deliberations that, although various other cost-saving devices were contemplated, to make savings in the order of $3.5 million in a financial year required reductions in prize money payable at TAB club meetings, a reduction in the number of race meetings conducted, or a combination of those two approaches. Once a reduction in the allocation of dates was identified as a real possibility, the parties who would be most directly affected were readily identified as the twelve TAB clubs. Consultation with those clubs was required prior to any operative decision being taken but, even assuming such a decision was taken on 14 March 2006, consultation took place. Accordingly the issue in dispute must depend upon the factors identified at [66] above.
74 It is logical to deal first with the complaints that a particular outcome was not identified for the purposes of the consultations, namely that individual clubs might be at risk of losing their allocation of racing dates and, secondly, that the criteria upon which such a decision might be taken were not identified. It is only when the force of these complaints has been considered that it is possible to deal with the broader question of whether the clubs were given an adequate opportunity to present their views.
75 To an extent, Cessnock's submissions sought to force the Appellant into a narrow passage between the Scylla of consulting without having formulated a proposal and the Charybdis of formulating a proposal without adequate consultation. However, the obligations of procedural fairness must be assessed against the practical realities, in particular circumstances. As Gleeson CJ noted in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37], in relation to the content of procedural fairness, "the concern of the law is to avoid practical injustice".
76 Further, it is important to bear in mind that the process of allocating racing dates was being driven by the need to cut expenditure. Nevertheless, at the end of the day the determination now under challenge, made in exercise of a statutory function, was the allocation of dates on which greyhound races may be conducted, pursuant to s 9(2)(d) of the Greyhound Racing Act. The purpose of the consultations undertaken in January and February 2006 involved a recognition that the need to make substantial cuts in funding could affect the number of race dates allocated. That was clearly understood, no later than the meeting of 24 January between officers of the Appellant and the TAB clubs, referred to at [23]-[25] above. It will be recalled that the report of the meeting noted that Richmond and the NCA had argued that there needed to be a reduction in the number of meetings and that "this could only be achieved by not allocating TAB race dates to all existing TAB clubs in FY07": at [25] above. Furthermore, the meeting between the Appellant and the TAB club representatives on 28 February expressly addressed "not allocating race dates to selected venues" as one of three options. The option may have been one which was considered, at least by clubs under threat of such a loss, as unacceptable and as unlikely to be adopted. Nevertheless, the evidence demonstrates that it was a matter under consideration and was the subject of consultation, for a period of at least six weeks prior to the 14 March meeting of the Appellant. The contention that the Cessnock Club was not on notice that such a possibility was being considered and did not have a reasonable opportunity to address it, prior to 14 March, is difficult to accept.
77 The primary judge dealt with this issue at [67]-[74]. Having reached a conclusion that there was procedural unfairness prior to the decisions of 14 March, his Honour then found further material in support of that conclusion in the steps taken prior to the meeting on 20 February 2006 at which members of the Appellant passed a resolution committing it to a reduction of 104 meetings for the forthcoming year. That decision was also, as his Honour held, "made in circumstances of a denial of natural justice" to the Cessnock Club: at [85]. However, no relief was sought in relation to that resolution, nor was any order made in relation to it. It thus appears to have been treated as an incidental finding giving support to the view his Honour expressed in relation to the decisions taken on 14 March.
78 His Honour's reasoning appears to have a number of cumulative elements. First, he noted the financial health and possibly the continued existence of the Cessnock Club, depended on the allocation of racing dates: at [67]. Secondly, he noted the significant number of alternatives to the course ultimately taken by the Appellant: at [68]. That consideration was relied on, it would seem, not to illustrate the difficulty of the task facing the Appellant, but the difficulty of the task facing a club under threat in mustering its arguments against one particular course of action. Thirdly, that factor was said to be exacerbated by the likely conflict of interest between clubs and the strategic decisions which each would be required to make: at [69]. A fourth matter identified was the need for each club to gain and consider information about the others: at [70]. It was a combination of these considerations which led his Honour to think that the opportunity for the Cessnock Club to do justice to its own situation was "unrealistic".
79 The first step in addressing a question of procedural unfairness is to identify the decision reached which was said to be tainted by such unfairness. There was no discussion in the judgment below as to whether the decisions taken on 20 February and 14 March, which his Honour thought procedurally unfair and, at least in relation to the latter, which his Honour was minded to set aside - see [74] - were indeed operative decisions affecting the rights or interests of the Cessnock Club. The operative decision would seem to be that of 15 May 2006, declining to allocate dates for race meetings in favour of the Cessnock Club in the coming financial year. Because this decision was not taken in a vacuum there were numerous resolutions passed by the Appellant at meetings leading up to the meeting of 15 May. Some no doubt affected in a practical sense the result achieved on 15 May, but it does not follow that they affected, in a legal sense, the rights and interests of the Cessnock Club. This may be tested by asking whether the earlier resolutions were preconditions to the resolution of 15 May or otherwise necessarily affected its validity. The answer to that question is straightforward: they were not and did not. The Appellant could at any stage prior to 15 May have rescinded, varied or simply not acted upon those resolutions. This conclusion is not an abstract matter of legalities. A reading of the minutes of the Appellant's meetings demonstrates that there was considerable uncertainty as to what course to take and that, as late as 7 March, the members were unable to agree on the proper course. So much is demonstrated by the decision of 20 February not to reduce the race prize money, followed by a different decision on 7 March and a rescission of the new decision on 14 March.
80 That conclusion leads to a second reason why there was error in seeking to assess procedural unfairness as at particular stages of the process. Resolutions of administrative bodies are not to be equated with orders, even interlocutory orders, of courts or tribunals. The fact that members of the Appellant were all (bar the chairperson) intimately involved in the industry, may suggest, as a practical matter, that in adopting a particular approach (even if contentious) they were likely to be aware of its impact on various operators in the industry and their likely concerns. On the other hand, there was no suggestion that they would not have changed their minds if presented with fresh material suggesting that the course upon which they were embarked would lead to consequences which were not in the public interest or were not in the interests of the industry as a whole. Accordingly, there is no reason to conclude, either in legal or practical terms, that resolutions passed in February or March of 2006 predetermined the outcome on 15 May. Thus, so long as the Cessnock Club had a reasonable opportunity to put its case, in defence of its own interests, or in support of some general reshaping of the proposals put forward by the Appellant, prior to 15 May, it would be difficult to conclude that there had been procedural unfairness. It was not contended, on the part of the Cessnock Club, that any decision actually taken by the Appellant was manifestly unreasonable, in a sense which would have involved a challenge to its legal validity.
81 One other factor of importance in considering the challenge to the resolution of 14 March was the timetable within which the Appellant was operating. The critical source of funds for the TAB clubs was TAB Limited, the amount obtained by the Appellant depending upon the volume of bets placed upon particular race meetings where the TAB totalizator operated. In addition, betting activity depended upon the broadcasting of races and indeed the revenue shortfall was understood by the industry to have resulted largely from a dispute between two television broadcasters, Sky Channel and TVN. The fixing of race dates for a particular financial year needed to occur well before the start of that year. That fact was well understood in the industry and no complaint is made that the Appellant failed to act in a timely fashion in determining the allocation of race dates for the financial year commencing on 1 July 2006. Pursuant to commercial agreements involving TAB Limited and the various racing entities, the Appellant was required to present TAB Limited with a final calendar of race dates, by 28 February 2006, for the ensuring financial year. That date was put forward, by agreement with TAB Limited, to 15 March. The original timetable proposed by the Appellant on 24 January complied with that altered deadline. However, with the apparent agreement of TAB Limited, the period was further extended, ultimately to mid-May. Nevertheless, it was self-evident in the interests of all parties operating within the industry, including the Cessnock Club and the Appellant, that the allocation of race dates should be determined as expeditiously as possible. It followed that the time available for consultations was by no means open-ended and was, indeed, essentially limited to a period of four months. The Cessnock Club did not submit otherwise.
82 There are other aspects of the circumstances which operated during those four months which needed to be taken into account in assessing fairness to the clubs and particularly the Cessnock Club. First, although his Honour was at pains to note the complexity of the possible combinations of reduction in expenditure and the many factors which could affect the decision-making process, these matters should not be viewed in the abstract. The Cessnock Club was one with a long involvement in the greyhound racing industry and, it may be inferred from the material contained in the papers before the Court, it well understood how the industry operated, including which race meetings provided the greater source of revenue and where the greater elements of cost lay. It did not submit otherwise. Further, when the occasion arose, it was able to present with some force the special features of the Cessnock Club's track and facilities which justified a continued allocation of race meetings. Nor did it suggest that the decision to source the reduction of 104 meetings to the Hunter and south coast regions was manifestly unreasonable or that the decision was made without reference to relevant considerations or was based on irrelevant considerations. Furthermore, it seemed to have no doubt that, within the Hunter region, there were substantial reasons why the allocation to The Gardens would not be cut, so that the real contest lay between it and the Maitland venue. Although Cessnock made demands for all of the information which was available to the Appellant in the course of the decision-making process, its ultimate complaint was that it was not made aware of the criteria upon which the Appellant acted. In the course of the proceedings in this Court, there was no attempt to identify any particular information of which it was not aware, which could properly have been released to it, and which might have affected the submissions it made. In any event, as will be discussed further below, no legal obligation to provide information was established.