Heatley v Tasmanian Racing & Gaming Commission - [1977] HCA 39 - HCA 1977 case summary — Zoe

CTHHCA

Heatley v Tasmanian Racing & Gaming Commission

[1977] HCA 39

High Court of Australia|1977-07-01|Before: Aickin JJ, Chambers J

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Source facts

Court

High Court of Australia

Decision date

1977-07-01

Before

Aickin JJ, Chambers J

Source

Original judgment source is linked above.

Judgment (99 paragraphs)

[1]

High Court of Australia Barwick C.J. Stephen, Mason, Murphy and Aickin JJ. Heatley v Tasmanian Racing & Gaming Commission [1977] HCA 39

[2]

ORDER Application for special leave to appeal granted. Appeal allowed. Order of the Full Court of the Supreme Court of Tasmania set aside and in lieu thereof order that the application for a writ of certiorari be granted. Matter remitted to the Supreme Court of Tasmania there to be dealt with according to law. Respondents to pay applicant's costs of the application to this Court, of the appeal to the Full Court of the Supreme Court of Tasmania, and of the application before Chambers J.

[3]

The applicant for special leave was served with a notice given under the powers conferred on the Tasmanian Racing and Gaming Commission ("the Commission") by s. 39 of the Racing and Gaming Act, 1952 Tas. ("the Act") requiring him to refrain from entering any racecourse in the State of Tasmania during the currency of the notice which was stated to be until its rescission by the Commission. No notice of an intention to issue and serve the abovementioned notice was given to the applicant. The grounds upon which it was given were not stated, nor was any opportunity afforded to the applicant to make any representation prior to its issue. The question is whether, upon its proper construction, the power granted by s. 39 of the Act is qualified by the necessity to observe the requirements of natural justice before the notice is served.

[45]

The common law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power is both fundamental and universal: see Cooper v. Wandsworth Board of Works [14] and R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920) Ltd. [15] . But the legislature may displace the rule and provide for the exercise of such a power without any opportunity being afforded the affected person to oppose its exercise. However, if that is the legislative intention it must be made unambiguously clear. In the event that the legislation does not clearly preclude such a course, the court will, as it were, itself supplement the legislation by insisting that the statutory powers are to be exercised only after an appropriate opportunity has been afforded the subject whose person or property is the subject of the exercise of the statutory power. But, if the legislation has made provision for that opportunity to be given to the subject before his person or property is so affected, the court will not be warranted in supplementing the legislation even if the legislative provision is not as full and complete as the court might think appropriate. Thus, if the legislature has addressed itself to the question whether an opportunity should be afforded the citizen to be relevantly heard and has either made it clear that no such opportunity is to be given or has, by its legislation, decided what opportunity should be afforded, the court, being bound by the legislation as much as is the citizen, has no warrant to vary the legislative scheme. But, if it appears to the court that the legislature has not addressed itself to the appropriate question, the court in the protection of the citizen and in the provision of natural justice may declare that statutory action affecting the person or property of the citizen without affording the citizen opportunity to be heard before he or his property is affirmed is ineffective. The court will approach the construction of the statute with a presumption that the legislature does not intend to deny natural justice to the citizen. Where the legislation is silent on the matter, the court may presume that the legislature has left it to the courts to prescribe and enforce the appropriate procedure to ensure natural justice. In my opinion, this statement of relevant principle is in accord with the authorities, including particularly the case of Wiseman v. Borneman [16] . The particular circumstances of that case bear no resemblance to the present case because there is no real similarity in the nature of the legislative provisions. It is plain that each statute must be separately examined as a whole and that, as Barwick C.J. said, "There is no rule which can provide in every case an answer by its mechanical application" [17] . 1. (1863) 14 C.B. (N.S.) 180, at pp. 189, 194-195 [143 E.R. 414, at pp. 418, 420]. 2. (1912) 14 C.L.R. 1, at p. 15. 3. [1964] A.C. 40. 4. (1976) 136 C.L.R. 106. 5. (1976) 136 C.L.R., at pp. 109-110. 6. (1863) 14 C.B. (N.S.) 180 [143 E.R. 414]. 7. [1924] 1 K.B. 171, at p. 205. 8. [1971] A.C. 297. 9. (1976) 136 C.L.R., at p. 111.

[47]

For it is a deep-rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard. In Cooper v. Wandsworth Board of Works [19] Byles J. said that a long course of authority established "that, although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature" [20] . The older authorities ever recur to the lines from Seneca's Medea which apparently were introduced into the subject by Boswel's Case [21] : Quicunque aliquid statuerit, parte inaudita altera, Aequum licet statuerit, haud aequus fuerit; cf. Bonaker v. Evans [22] ; In re Hammersmith Rent-Charge [23] . The general principle has been restated in this Court with a citation of authority in Delta Properties Pty. Ltd. v. Brisbane City Council [24] . It is hardly necessary to add that its application to proceedings in the established courts is a matter of course. But the rule is subject to a sufficient indication of an intention of the legislature to the contrary. Such an intention is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment. In the present statute no such evidence of a contrary intention is discoverable. But it is in a broad sense a procedural matter and while the general principle must prevail it is apparent that exceptional cases may be imagined in which because of some special hazard or cause of urgency an immediate declaration is demanded. 1. (1958) 98 C.L.R. 383, at pp. 395-396. 2. (1863) 14 C.B. (N.S.) 180 [143 E.R. 414]. 3. (1863) 14 C.B. (N.S.), at p. 194 [143 E.R., at p. 420]. 4. (1583) 6 Co. Rep. 48 b, at p. 52 (a) [ 77 E.R. 326, at p. 331]. 5. (1850) 16 Q.B. 162, at p. 171 [117 E.R. 840, at p. 844]. 6. (1849) 4 Ex. 87, at p. 97 [154 E.R. 1136, at p. 1140]. 7. (1955) 95 C.L.R. 11, at p. 18.

[79]

Under s. 39 the Commission is given power to order such a person to stay away from a specified racecourse or all racecourses for a specified or an indefinite period and the service of such a notice on him at a racecourse makes it an offence to remain thereon. It is also true to say that any member of the public has a legitimate expectation that upon payment of the appropriate charge he will be admitted to racecourses. They are in a practical sense "open to the public" and indeed by anouncements and advertising their owners invite and seek to encourage the public to attend. This is not an expectation that the Commission will act in some particular way but an expectation by members of the public that they will be able to enjoy the right or liberty granted to them by the owner to go onto the racecourse, i.e. that they will be permitted to enter along with other members of the public in response to the owner's implied invitation. That expectation exists by reason of the nature of the premises and the fact that members of the public are invited to attend and freely admitted on payment of a stated charge. The fact that the owner may eject them even in breach of contract, though no doubt known to some racegoers, does not detract from that expectation, nor does the fact that the owner may refuse to admit any particular person without giving any reason. Section 39 (3) provides as it were an overriding exception or control which sets aside those rights and expectations. If an appropriate order is made it destroys the right of the member of the public presently upon a racecourse to remain there and if it is made at a time when he is not on a particular racecourse then it destroys his expectation of being entitled on payment of the appropriate charge to enter on the next appropriate occasion. If, like the present order, it is expressed in general terms in respect of all racecourses (including dog-racing courses) and for an indefinite period in the future, it puts the addressee at the disadvantage of being deprived of the opportunity available to all other members of the public of going upon such racecourses on payment of the usual charge. It is of course only an opportunity or an expectation and not a legally enforceable right in the sense that the individual member of the public cannot insist upon entering or remaining contrary to the will of the owner, though they may of course be entitled to damages for breach of contract and in that sense have some enforceable right.

[89]

The judgments of the majority in the Court below err in my opinion in placing too much emphasis upon the administrative and non-judicial character of the Commission and its functions and in drawing from the presence in other parts of the Act of express procedures with respect to hearings and the like in relation to the licensing of bookmakers, clubs and racecourses, an inference that where other powers are given to the Commission no such requirements are to be implied. That approach appears to me to be contrary to the principles as stated in Twist's Case [34] and as stated in the joint judgment of Dixon C.J. and Webb J. in Commissioner of Police v. Tanos [35] . This is especially so when one bears in mind the history of this legislation and the separate origins of the various sets of provisions. Such an approach is one likely to be fraught with difficulty and danger. It is perhaps an over simplification to regard that process of reasoning as an application of the maxim expressio unius est exclusio alterius but it nonetheless has the same kind of dangers and calls for the same kind of caution as does the use of that maxim. The fact that in provisions dealing with one topic, e.g. bookmakers, one finds that the legislature lays down a procedure for giving grounds of proposed action and providing an opportunity for hearings and legal representation before action is taken, may be a basis for concluding that, where in relation, e.g. to the initial granting of licences to bookmakers, no such provision is made, there is no requirement to comply with the principles of natural justice in the exercise of that particular power. It is quite another thing to infer from the fact that provision is made for hearings in relation to the three kinds of licensing to which I have referred and that none is made in respect of the power to order persons to refrain from entering upon a racecourse, either for a specified meeting or indefinitely in respect of all racecourses in Tasmania, but the legislature has intended to exclude the principles of natural justice. It does not appear to me that there is any safe basis for inferring from such provisions that the legislature was dealing exclusively with the subject of the obligation of the Commission to adhere to the principles of natural justice and that accordingly they were not applicable elsewhere. It cannot in my opinion be said that such intention "satisfactorily appears from express words of plain intendment".

[93]

Even if the Board is bound in law to act "in the spirit and with the sense of responsibility of a tribunal whose duty is to mete out justice" (to quote Lord Haldane's words in Local Government Board v. Arlidge [37] ) it does not follow (and his Lordship proceeded immediately to say so) that the procedure of each such tribunal must be the same: "what that procedure is to be in detail must depend on the nature of the tribunal" [37] . And notwithstanding what Lord Loreburn said in Board of Education v. Rice [38] about "always giving a fair opportunity to those who were parties in the controversy to correct or contradict any relevant statement prejudicial to their view" [39] , the books are full of cases which illustrate both the impossibility of laying down a universally valid test by which to ascertain what may constitute such an opportunity in the infinite variety of circumstances that may exist, and the necessity of allowing full effect in every case to the particular statutory framework within which the proceeding takes place. By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject-matter: cf. Ridge v. Baldwin [40] . As Tucker L.J. said in Russell v. Duke of Norfolk [41] , in a passage approved by the Privy Council in University of Ceylon v. Fernando [42] , there are no words which are of universal application to every kind of inquiry and every kind of tribunal: "the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth" [43] . What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances. 1. (1963) 113 C.L.R. 475, at pp. 503-504. 2. [1915] A.C. 120, at p. 132. 3. [1915] A.C. 120, at p. 132. 4. [1911] A.C. 179. 5. [1911] A.C., at p. 182. 6. [1964] A.C. 40, at p. 73. 7. [1949] 1 All E.R. 109. 8. [1960] 1 W.L.R. 223, at p. 231; [1960] 1 All E.R. 631, at p. 637. 9. [1949] 1 All E.R., at p. 118.

[94]

It would not I think be in accordance with the requirements of natural justice to meet an emergency situation by an order such as was made in the present case, that is, an order made without notice and without opportunity to make representations, but which has the effect of excluding the applicant from all racecourses in Tasmania for an indefinite period. That which is truly an emergency situation can properly be dealt with by short-term measures which are themselves sufficient and appropriate to cope with such an emergency - see the passage from Commissioner of Police v. Tanos [44] quoted above. If one postulates such a person as the Solicitor-General contemplated in argument, i.e. one engaged in doping, bribery and rigging of races, it may, in circumstances of likely immediate detriment to the public, be appropriate for the Commission to issue a warning-off notice without notice or stated grounds but limited to a particular meeting or meetings over a short period of time, coupled with a notice that the Commission proposed to make a long-term order on stated grounds and giving an opportunity for the person concerned to make representations on the matter to the Commission. There would then be a true opportunity for the person affected to bring forward any material to the Commission which he thought helpful to him and to seek to disabuse the Commission of any misapprehensions which he thought it entertained. Courts may issue ex parte injunctions and that involves an order affecting the rights of defendants without giving them an opportunity to be heard. The power is of course used sparingly and is always so exercised that the earliest practicable opportunity is given to the defendants to appear before the court to urge that the order be rescinded. No one has ever doubted that that is a proper exercise of judicial power in accordance with all the requirements applicable to a court properly so called. By way of analogy emergency situations could be similarly dealt with by the Commission, cp. the observation of Lord Wilberforce in Wiseman v. Borneman [45] . There is no basis in my opinion for saying, as was submitted by the Solicitor-General, that the public interest requires that a person being warned-off should not be accorded an opportunity of speaking in his own defence. That opportunity can readily be provided without endangering the public interest in any way.