Lewin v Racing NSW ABN 86281604417

Supreme Court of NSW|2018-02-16|Before: Rothman J

Solicitors: Beazley Boorman Lawyers (Plaintiff) Racing NSW (First Defendant) Crown Solicitor's Office (Second and Third Defendant) File Number(s): 2017/272666

Principles of construction of the Act

The principles of statutory construction are well known and oft repeated. The application of those principles can often be difficult.
The words of a statute must be construed in the context of the statute as a whole, discerning, to the extent possible, the purpose of the statute and the purpose of the terms to be construed from the words used.
The task of the Court is not to seek to discover the "subjective" intention of the legislature, but to construe the words of the statute in a manner that accords with the purpose thereof.
In interpreting a statute, the Court seeks to achieve, where possible, the purpose of that statute and, in the case of different provisions, to achieve harmonious goals: see Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70], [78] (per McHugh, Gummow, Kirby and Hayne JJ).
Ordinarily, however, the legal meaning to be ascribed to a provision will correspond with the ordinary and grammatical meaning of the provision. One of the circumstances in which the ordinary and grammatical meaning of the words is qualified, is where the consequence of such a grammatical construction would be inconsistent with another provision of the statute, or inconsistent with the legislative purpose obtained from a reading of the entire statute. The provisions of the Act must be construed bearing in mind the foregoing principles of construction.

"In Accordance with"

The phrase "in accordance with" must, like all phrases, be construed in the context in which it is found. If one were to take dictionary definitions as being an appropriate starting point, the Oxford English dictionary defines "in accordance with" as meaning, relevantly, "in conformity to". The Australian Concise Oxford Dictionary gives the phrase the meaning "in a manner corresponding to", which is marginally different from that provided by the Oxford English Dictionary.
The issue agitated in these proceedings is not wholly novel. The phrase "in accordance with" was, in the context of reg 98(1)(a) of the Regulations promulgated pursuant to the Industrial Relations Act 1988 (Cth), defined to mean "in complete agreement with": La v Federated Furnishing Trade Society of A/asia (Re LA) (1993) 41 FCR 151 at 158, in which Gray J took the view that "in accordance with" meant "in conformity with", albeit in a regulation that was considered to be mandatory and used the term "must".
In New South Wales, the Court of Appeal, in Ex parte Currie; Re Dempsey (1968) 70 SR(NSW) 1; 88 WN (Pt. 2) 193, had occasion to look at the meaning of the term "in accordance with" where an appeal was required to be made "in accordance with" the regulations. On its face, such a circumstance is significantly similar to the circumstances with which the Court must now deal.
It is necessary to explain, in short form, how the issue arose. The Liquor Act 1912 contained a right of appeal that was granted under s 170(5)(b) "in accordance with regulations made under this Act". Section 170(5)(b) and s 5(12)(a) of the Liquor Act 1912 were amended to allow for a court to be constituted in a particular way.
Unfortunately, at the time that the statute was amended, no amendment was made to the regulations, as a consequence of which the express provisions in the statute allowing an appeal to a court constituted in a particular way were not reflected in the regulations and an appeal to such a constituted court would not be an appeal contemplated by the regulations.
The Court of Appeal held that the provision that the appeal be taken "in accordance with regulations made under this Act" were provisions that required the appeal to be taken in the "manner and procedure" for which the regulations provided. Further, the Court made clear that the terms of the regulations could not override or restrict the right of appeal granted by the statute itself.
Wallace P maintained that "the object and scope of the regulation-making power were to provide manner and procedure of the appeal, not to name the constitution of the court or to amend or overrule the Act. The phrase 'in accordance with regulations made under this Act' appearing in the section cannot be given be the unduly wide construction required by this argument."
In the joint judgment of Jacobs and Holmes JJA, the Court said: "The words 'in accordance with regulations made under this Act' do not cut down or limit the right of appeal, but merely indicate that the procedure which is provided for towards the end of the paragraph must be followed before the privilege of appeal can be exercised. They are not words appropriate to enable the regulation-making authority to exclude the competency of a court constituted in accordance with the paragraph itself and with the provisions of s 5(12)(a).": Ex parte Currie, supra, at 200.
As earlier stated, the provisions of s 15 are not to be read in isolation from the remainder of the Act and any tension, or seeming contradiction, should be resolved by construing the Act in a manner which gives rise to harmonious goals. It is necessary to refer to the provisions of s 18 of the Act, recited above.
The provisions of s 18(1) of the Act allow regulations to be made or promulgated "for or with respect to appeals" to the Tribunal under the Act with respect to the procedures to be followed; the suspension of a decision appealed against; the payment of fees and costs in respect of appeals; and any matters incidental to or connected with appeals. It would be difficult to construe s 18(1) of the Act in a manner which gave rise to a power to promulgate regulations restricting all appeals or some appeals under s 15(1)(d) of the Act.
On the other hand, s 18(2), which commences with the words "without affecting the generality of subsection (1)", allows regulations to be promulgated that "prescribe classes of matters in respect of which appeals may not be made" under the Act or prohibit appeals except in respect of prescribed classes of matters: pars (a) and (b) of s 18(2) of the Act.
It is not readily apparent that, read having recourse to s 15 of the Act, the provisions of s 18(1) of the Act would give rise to the capacity to promulgate regulations that would touch on classes of matters that may be the subject of appeal, or proscribing appeals except for specified classes of matters. On the other hand, s 18(2) of the Act, leaving aside context for the moment, would provide that capacity.
It is, therefore, necessary to enquire, in construing s 18(2) of the Act, as to the purpose and utility of the words "without affecting the generality of subsection (1)". Those words are plainly intended to ensure that nothing in s 18(2) of the Act impinges on the capacity to promulgate regulations under the broadest available interpretation of s 18(1) of the Act.
On the face of it, the provisions of s 18(2) of the Act seem to depend upon the proper construction of the term "classes of matters". The term "matters" can mean a justiciable controversy, as it does in the Constitution.
However, as the High Court as pointed out, that Constitutional meaning is not always appropriate: Re Judiciary Act 1903-1920 & in Re Navigation Act 1912-1920 (1921) 29 CLR 257 at 264-266; [1921] HCA 20, where the High Court (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ) differentiated the meaning of the word "matter" between s 75 and s 76 of the Constitution and, in s 76, held it did not mean a justiciable controversy, but the subject matter for determination in a legal proceeding. See also Melbourne Home of Ford Pty Ltd v Trade Practices Commission (1979) 36 FLR 450; 5 TPC 26 at 47; WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175; 30 ALR 559 at 565; [1980] FCA 79, per Brennan J.
Historically, the term "matter" referred to classes of proceedings differentiated by the manner of commencement, such as a proceeding in a court that is not in a cause. None of those meanings are as broad as the term "justiciable controversy", which is the meaning ascribed to the term in s 75 of the Constitution.
Further complication arises from the manner in which the power to promulgate regulations is expressed. Regulations may be made in relation to "classes of matters": s 18(2) of the Act. Section 23 of the Act does not seem to augment or qualify, in any relevant respect, the power to promulgate regulations, except that the power to promulgate is expressed as being a power to promulgate regulations "not inconsistent with this Act".
The last mentioned phrase, on one view, would be unnecessary, as no regulations could be promulgated that were inconsistent with the Act. Nevertheless, whether the impugned regulations are "inconsistent" with the Act depends upon the interaction and proper construction of ss 15 and 18 of the Act respectively.
Class, in the relevant sense, ordinarily means a set or group of persons or things differentiated by some common feature; a category. Thus, a class-action is an action by a group of persons who have the same or relevantly indistinguishable claim, at least in the substantive sense. A group of creditors may be a class because they share the claim against a company of precisely similar legal character. Similarly, a gift to a class is a gift to a set of persons fulfilling or possessing one common characteristic e.g. children of a particular person; holders of a particular office; et cetera.
Returning to the construction of the Act, s 15 grants to all aggrieved persons a right of appeal, in accordance with the regulations, against a decision of Racing NSW. The provisions of s 18(2) then allow the regulations to prescribe classes of matters in which appeals may not be made under the Act, defining them either by listing those in which an appeal may not be made or listing those in which an appeal may be made as an exception to an overriding prohibition on appeals.
The terms of s 18(2)(b), if interpreted broadly, could be utilised to be the antithesis of the right granted in s 15 of the Act. If "classes of matters" could be confined to, for example, "appeals by Racing NSW" and otherwise providing that no appeals may be made under this Act, then the terms of s 15(1)(d) would be wholly otiose. The terms of s 18(2)(b) cannot be given such a broad interpretation.

Submissions

In essence, after pointing out that the Licensing Committee prepared a memorandum, dated 10 August 2017 for the Chief Executive, on which the Chief Executive acted in refusing the application for renewal of a Bookmakers' Licence, the plaintiff points out that they seek to appeal the refusal decision to the Racing Appeals Tribunal, constituted by s 5 of the Act. It is said by the defendants that the plaintiff is precluded from appealing the decision because of the operation of reg 5(2) which does not allow for, or, excludes, an appeal from a decision to refuse to renew a licence of any person under the rules.
The plaintiff submits that s 15(1)(d) confers on the plaintiff, as a person aggrieved by a decision of Racing NSW, a right of appeal and, by the terms of reg 5(2), which purports to limit the right of appeal under s 15(1)(d) of the Act, such an appeal is precluded.
The plaintiff submits that precluding an appeal right granted by the Act under s 15 is not a valid exercise of the regulation making power in s 18 of the Act (or s 23 of the Act).
The plaintiff relies upon the dicta of Handley JA in New South Wales Thoroughbred Racing Board v Waterhouse (2003) 56 NSWLR 691 at 695, [10]; [2003] NSWCA 55 in which his Honour considered similar provisions and commented that, in his view, while it was "arguable, that … the regulation could restrict the classes of matters which could be the subject of an appeal, it could not prevent all appeals by a person aggrieved as the present regulation purports to do in the case of the Board."
In the alternative, the plaintiff submits that, in reality, for a person who has and has had for some period a licence as a Bookmaker, the refusal to renew that licence on the basis of a finding that the person is not a fit and proper person is, in substance, a decision to cancel a licence and capable of being appealed even under the provisions of regs 5(2)(b) and (c)
The plaintiff refers to Local Rule 51, which is in the following terms: "LR 51. (1) Any person seeking a licence, permit, registration, transfer or indentureship as provided by the Rules must apply to the Board on such form as the Board may from time to time direct. Any such application must be accompanied by the prescribed fee. (2) The Board may grant any licence or permit upon such terms and conditions and for such period and for such locality as they may see fit, and may refuse to grant any such licence or permit without assigning any reason for such refusal, and may at any time cancel or suspend or vary without giving any reason any such licence registration or permit before the termination of the period for which such licence or permit was granted. (a) It is a condition of any Licence that the licensee must notify Racing NSW within 14 days if the licensee is: i) charged with a criminal offence, or ii) convicted of a criminal offence, or iii) made bankrupt or becomes the subject of a court judgement [sic] requiring payment to a racing industry participant or provider (b) Any licensee who fails to comply with sub rule (a), or fails to comply with the other terms and conditions of their licence may be penalised, may have his or her licence suspended, varied or revoked and/or be stood down from his or her licensed rights and/or privileges. [subrule amended 1.11.17] (3) Under the powers of AR 7(o) and AR 7(p), the Board delegates for the time being and under such conditions as they may from time to time impose, the function of licensing as provided for by this rule to the Racing NSW Licensing Committee. [subrule amended 18.6.08] (4) The holder of a licence, permit or registration must immediately notify the Board in writing any change of address. (5) Unless otherwise determined all licences, permits and registrations expire on the 30th day of June each year, excepting Forepersons, Stablehands & Bookmaker's Clerks licenses which expire on the 31st day of October each year. [subrule amended 18/6/08] (6) Any person who has had an application for a licence or registration refused, or had a license or registration cancelled or revoked, must not make a further application, or reapply for a license or registration that has been cancelled or revoked, until the expiration of 12 months from the date of such refusal, cancellation or revocation. The Board may however in its discretion reduce the said period. [subrule added formally LR 53] [amended 1.4.17]"
Relying on the terms of the above recited Local Rule, the plaintiff submits that the power to grant a licence is conferred by the same rule that confers the power to "cancel" or "suspend" such licence which three powers constitute licensing functions of Racing NSW.
It is further submitted that the distinction drawn between cancellation and suspension, on the one hand, and the power to grant, on the other, is an "irrational gap". This submission is based upon the proposition that the basis for the refusal to renew and the basis for revocation and suspension are identical, as is the effect on a licensed bookmaker whose business is affected by the refusal to renew.
The plaintiff refers to the refusal as a "refusal to grant a licence", but in reality, on the evidence, this is a refusal to renew the licence, which conceptually may, and probably is, different from a refusal to grant. This is a matter that will be discussed later in these reasons.
Racing NSW, in its submissions, referred the Court to the provisions of s 18 of the Act and submits that the terms of reg 5(2) are squarely within that which is permitted by way of regulation under s 18(2) of the Act. This express authorisation by the terms of s 18(2)(b) of the Act is an express legislative intent inconsistent with the plaintiff's submission that s 15 of the Act grants an unqualified right of appeal that is incapable of being qualified by regulations.
As a consequence of the promulgation of s 18 of the Act, Racing NSW submits that the phrase "in accordance with the regulations" must be construed in a way, which renders ss 15 and 18 of the Act as achieving harmonious goals. According to the submission of Racing NSW, the right of appeal conferred by s 15 of the Act "inherently contemplates that the regulations might limit a right of appeal to certain prescribed classes of matters".
Racing NSW submits, that in relation to the comments of Handley JA in New South Wales Thoroughbred Racing Board v Waterhouse, supra: the comments are expressly obiter dicta; Handley JA does not express a firm view, but only that the proposition is arguable; even so, Handley JA accepts that a regulation could restrict the classes of matters which could be the subject of an appeal; and Handley JA did not refer to the effect and construction of s 18 of the Act on the arguable proposition otherwise identified.
Further, Racing NSW submits that a refusal to grant a licence is not a revocation of a licence and there is nothing irrational about the distinction between the revocation of an existing licence and a refusal to grant a licence. The decision of Racing NSW "cannot sensibly be characterised as a decision to revoke" according to Racing NSW.
The submission as to the rationality of a distinction between revocation, and refusal to grant a licence, is supported by reference to the provisions of s 14(2)(b) of the Thoroughbred Racing Act 1996, which, in the submission of Racing NSW, distinguishes between the power to refuse to license and to cancel or suspend the licence. Further, in that submission, more comfort can be gained from the provisions of s 14AA of the Thoroughbred Racing Act which prescribes that Racing NSW must exercise its registration and licensing functions "so as to ensure that any individuals registered or licensed by Racing NSW are persons who, in the opinion of Racing NSW, are fit and proper persons to be so registered or licensed"
Rules have been promulgated dealing with that subject matter and those rules, it is said, distinguish between a discretionary power to license or refuse to license compared with the power to suspend, vary or revoke a licence. Racing NSW relies upon the terms (or a summary of the terms) in Local Rule 51. The Court has already recited the relevant part of that Local Rule.
Racing NSW admits that there is a power to appeal a revocation or suspension of a licence, but not a refusal to grant a licence, but submits, contrary to the submission of the plaintiff, that the "gap" is not irrational. The submission asserts that there is "nothing irrational in a regulation treating a decision to take away an existing licence as different from, and more serious than, a decision to refuse to grant a new licence".
The second defendant, the Minister for Racing, submits to any order of the Court save as to an order for costs.
The State of New South Wales supports the submission of Racing NSW. The State of New South Wales relies, also, on the express terms of s 18(2) of the Act authorising cl 5(2)(b) of the Regulations.
Further, the State of New South Wales submits, in relation to the comments of Handley JA in New South Wales Thoroughbred Racing Board v Waterhouse, supra, that, those comments, at their highest, suggest that, it is arguable that s 18(2) or Regulations could not prevent "all appeals" by a person aggrieved and submits that the terms of cl 5 of the Regulations does not prevent "all appeals" but restricts appeals to the classes of matters prescribed in the Regulation.
In its oral submissions, the State of New South Wales developed the final submission of its written submissions to the effect that there is nothing irrational in differentiating between the revocation or cancellation of a licence, on the one hand, and, on the other hands a failure to renew a licence. All areas of the law, or most of them, differentiate between such conduct. A contract that expires on a date certain and is thereby terminated is in a totally different position from a contract that is determined or repudiated, was one of the prime examples utilised.

Consideration

In many respects, s 15 of the Act is not the most relevant aspect of the controversy between the parties. Were s 15 of the Act a stand-alone provision, without the promulgation of s 18 of the Act, the issue would be easily resolved in favour of the plaintiff. Without more, the words "in accordance with the regulations" would not allow regulations that diminish the right of appeal granted by the Act.
It is therefore necessary to concentrate on the provisions of s 18 of the Act and the conduct of Racing NSW. As earlier stated, the provisions of s 18 of the Act could not allow a regulation that described a class (either by nominating the class or by excluding all except the class) that prohibited appeals under s 15(1)(d) of the Act. Such would not be consistent with the Act.
Further, the total exemption of any appeal under s 15(1)(d) of the Act cannot be the only proposition that is exempted. One must seek to construe s 18 of the Act together with s 15 of the Act so as to achieve harmonious goals. The grant of a right in one provision, while another provision allows delegated legislation to abrogate that right in a substantial manner, cannot be the achievement of harmonious goals.
Thus far little attention has been directed at the provisions of the Thoroughbred Racing Act. It is the Thoroughbred Racing Act that establishes Racing NSW (s 4 of the Thoroughbred Racing Act) and establishes its functions (s 13 of the Thoroughbred Racing Act) and its independence from Government (s 5 of the Thoroughbred Racing Act).
As a matter of history, Racing NSW became the controlling body for thoroughbred racing in New South Wales and supplanted the club formerly known as the Australian Jockey Club. The functions granted to Racing NSW are, as earlier stated, those prescribed by s 13 of the Thoroughbred Racing Act, which, relevantly, is in the following terms: "13 FUNCTIONS OF RACING NSW (1) Racing NSW has the following functions: (a) all the functions of the principal club for New South Wales and committee of the principal club for New South Wales under the Australian Rules of Racing, (b) to control, supervise and regulate horse racing in the State, (b1) such functions in relation to the business, economic development and strategic development of the horse racing industry in the State as are conferred or imposed by this Act, (c) to initiate, develop and implement policies considered conducive to the promotion, strategic development and welfare of the horse racing industry in the State and the protection of the public interest as it relates to the horse racing industry, (d) functions with respect to the insuring of participants in the horse racing industry, being functions of the kind exercised by the AJC on the commencement of this section, and such other functions with respect to insurance in the horse racing industry as may be prescribed by the regulations, (e) such functions as may be conferred or imposed on Racing NSW by or under the Australian Rules of Racing or any other Act, (f) such functions with respect to horse racing in New South Wales as may be prescribed by the regulations. (2) The functions of Racing NSW are not limited by the Australian Rules of Racing and are to be exercised independently of Racing Australia Limited. (3) The AJC ceases to have the functions that are solely the functions of the principal club for New South Wales or committee of the principal club for New South Wales under the Australian Rules of Racing. (4) In this section: 'AJC' means the club known as the Australian Jockey Club as referred to in the Australian Jockey Club Act 1873 on the commencement of this section."
Over and above the functions prescribed by s 13, Racing NSW is granted powers by s 14 of the Thoroughbred Racing Act, which, again relevantly, is in the following terms: "14 POWERS OF RACING NSW (1) Racing NSW has power to do all things that may be necessary or convenient to be done for or in connection with the exercise of its functions. (2) Without limiting subsection (1), Racing NSW has power to do the following: (a) investigate and report on proposals for the construction of new racecourses, and inspect new racecourses or alterations or renovations to existing racecourses, (b) register or licence, or refuse to register or licence, or cancel or suspend the registration or licence of, a race club, or an owner, trainer, jockey, stablehand, bookmaker, bookmaker's clerk or another person associated with racing, or disqualify or suspend any of those persons permanently or for a specified period, (c) supervise the activities of race clubs, persons licensed by Racing NSW and all other persons engaged in or associated with racing, (d) inquire into and deal with any matter relating to racing and to refer any such matter to stewards or others for investigation and report and, without limiting the generality of this power, to inquire at any time into the running of any horse on any course or courses, whether or not a report concerning the matter has been made or decision arrived at by any stewards, (e) allocate to registered race clubs the dates on which they may conduct race meetings, (f) direct and supervise the dissolution of a race club that ceases to be registered by Racing NSW, (g) appoint an administrator to conduct the affairs of a race club, (h) register and identify galloping horses, (i) disqualify a horse from participating in a race, (j) exclude from participating in a race a horse not registered under the Rules of Racing, (k) prohibit a person from attending at or taking part in a race meeting, (l) impose a penalty on a person licensed by it or on an owner of a horse for a contravention of the Rules of Racing, (m) impose fees for registration of a person or horse, (n) require registered race clubs to pay to it such fees and charges (including fees for registration of a race club) as are required for the proper performance of its functions, calculated on the basis of criteria notified to race clubs by Racing NSW, (o) consult, join, affiliate and maintain liaison with other associations or bodies, whether in the State or elsewhere, concerned with the breeding or racing of galloping horses, (p) enter into contracts, (q) acquire, hold, take or lease and dispose of real and personal property whether in its own right or as trustee, (r) borrow money, (s) order an audit of the books and accounts of a race club by an auditor who is a registered company auditor nominated by Racing NSW, (t) scrutinise the constitutions of race clubs to ensure they conform to any applicable Act and the Rules of Racing and that they clearly and concisely express the needs and desires of the clubs concerned and of racing generally, (u) publish material, including periodical publications, to inform and keep informed the public concerning matters relating to racing, whether in the State or elsewhere, (v) undertake research and investigation into all aspects of the breeding of horses and of racing generally, (w) take such steps and do such acts and things as are incidental or conducive to the exercise of its powers and the performance of its functions."
As can be seen from the terms, particularly of s 14(2) of the Thoroughbred Racing Act, the powers granted to Racing NSW include the power to "register or licence [sic] or refuse to register or licence [sic], or cancel or suspend the registration or license [sic] of … a bookmaker … or another person associated with racing, or disqualify or suspend any of those persons permanently or for a specified period".
There is no specific provision allowing for the renewal of a licence. Nevertheless, Racing NSW would have the power to renew a licence.
By the provisions of s 14AA of the Thoroughbred Racing Act, Racing NSW is required to exercise its "registration and licensing functions so as to ensure that persons licensed are 'fit and proper persons to be registered or licensed'". Further s 14A of the Thoroughbred Racing Act also applies to the licensing of bookmakers, but imposes no condition or grants no power relevant to the current proceedings, except that the power granted to Racing NSW is a power to "suspend or cancel" a bookmaker's licence if not satisfied of a particular condition and, again, there is no power granted "not to renew".
One must then turn to the relevant rules of Racing NSW. By Australian Rule 7 a Principal Racing Authority (in this case Racing NSW) shall "in furtherance and not in limitation of all powers conferred on it or implied by these Rules, have power, in its discretion … to license jockeys, trainers and others on such terms and conditions as it shall think fit, and at any time to suspend, vary or revoke any such license [sic] without giving any reason therefore [sic]". Again, there is a power to license bookmakers (assuming without deciding that they are covered by the term "others" in the above rule), but no power to refuse renewal.
Local Rule 51(1), applicable to Racing NSW, refers to persons "seeking a license [sic], permit, registration, transfer or indentureship as provided by the Rules must apply to the Board on such form as the Board may from time to time direct" and accompanying such application with the prescribed fee. As a consequence of such an application, the Board may "grant any license [sic] or permit upon terms and for such period" and may "refuse to grant any such licence [or permit" and may "at any time cancel or suspend or vary … such licence or permit": LR 51(2).
The provisions of LR 51(5) provide that "unless otherwise determined all licences, permits and registrations expire on the 30th day of June each year". Further, LR 51(6) provides that a person who has had an application for a licence or registration refused or had a licence or registration cancelled or revoked is unable to make a further application "or reapply" for a licence or registration that has been cancelled or revoked until after 12 months from the date of such "refusal, cancellation or revocation".
Apart from the plaintiff's submission that the provisions of reg 5 are ultra vires, to the extent that they disentitle the plaintiff from exercising the right of appeal said to be granted by s 15 of the Act, the plaintiff submits that the terms of the Thoroughbred Racing Act (and to a lesser extent the Rules) show that the refusal of a licence and the revocation or suspension of a licence are treated in the same manner. Racing NSW submits that such submissions are wrong and suggests, from the terms of s 14(2)(b) of the Thoroughbred Racing Act, that the act of registering or licensing is a different concept, under the paragraph, from the concept of cancelling or suspending registration or a licence.
The difficulty with the submission of Racing NSW is that, to the extent that the act of registering or licensing is treated as a different concept to cancellation or suspension of the registration or licence of a bookmaker, as a result of the wording of s 14(2)(b) of the Thoroughbred Racing Act, the concept of "refusing to register or licence [sic]" is also treated as a different concept.
The submission, by the State of New South Wales and by Racing NSW, that the concepts of termination of a right and the grant of a right for its renewal are treated in law as different, is extremely powerful.
Nevertheless, both the Thoroughbred Racing Act and the Act are statutes in pari materia, of the same legislature and, to the extent possible, also ought to be construed in a way that assumes the legislature was seeking to achieve harmonious goals. The legislature has granted to Racing NSW the power to license and to register and has granted to an aggrieved person the power to appeal from decisions of Racing NSW.
Further, the legislature has provided to Racing NSW the power to revoke (however described) a licence or registration, once granted, and has granted an appeal from such a decision of Racing NSW. The latter is not excluded from an appeal granted under s 15 of the Act, by regulations purportedly made pursuant to the terms of s 18 of the Act.
If Racing NSW, exercising powers conferred by the legislature, came to a conclusion that a person was not a fit and proper person to hold a licence, such a conclusion would be subject to judicial review if there were not otherwise an appeal. The purpose of an appeal mechanism is to protect persons disadvantaged by a decision of Racing NSW and to allow them an avenue to test conclusions or conduct by which they are aggrieved.
However, the statement that a decision not to grant a licence or not to grant registration may be the subject of judicial review, does not answer the question whether the conduct of Racing NSW is the subject of appeal. In my view, one of the answers to that question lies in an understanding of the term "classes of matters" when read in light of the functions of Racing NSW, the rules by which it operates and a proper construction of reg 5(2) of the Regulations, assuming, for present purposes, that a refusal to review is not described in the Regulations.
As already stated, the term "classes of matters", in the context of s 18(2) of the Act, refers to classes of subject matter that may be the subject of appeal to the Tribunal. The Tribunal has jurisdiction to hear appeals in relation to thoroughbred racing and greyhound racing.
Section 18 of the Act is in Div 3 of Pt 3 of the Act. Part 3 deals with appeals to the Tribunal and Div 3 deals with "procedure and regulations relating to appeals". As appeals can be taken under either s 15 or s 15A of the Act, the expression "classes of matters" are matters of commonality to all appeals. For example, the regulations might prevent, other than by leave, an appeal on the basis of the manner in which the Tribunal obtained material upon which it relied; or, if it be different, a breach of the rules of evidence (assuming they were applied). Such a class of matter would apply to both appeals under s 15 and appeals under s 15A.
Some comfort is given to that conclusion by the use of the words "without affecting the generality of subsection (1)" in the preamble to s 18(2). The terms of s 18(1) of the Act deal with procedures on appeal, including the state of any decision against which an appeal has been taken, the payment of appeal fees and costs and other matters incidental or connected with the appeals. It does not deal with the original decision.
By the terms of s 18(2) and without the commencing phrase, s 18(1) would have been confined to deal with procedures. For example, under the ordinary construction of the provisions of s 18(1)(a), which refers to "the procedures to be followed … in connection with" an appeal, regulations could provide for an application for leave to appeal in relation to certain subjects e.g. costs, penalty for minor infringements and inconsequential decisions.
The term, in s 18(2) of the Act, "without affecting the generality of subsection (1)", which governs the operation of s 18(2), makes clear that even though, a class of matters has been prescribed in which the right to appeal has been rendered subject to leave to appeal, the provisions of s 18(1)(a) are not affected. In other words, s 18(2) also deals with procedures and manner and form requirements.
The foregoing is but one example. Nevertheless, because the provisions of s 18(1) deal with the procedure of appeals, and the provision (s 18) is in a division of Pt 3 that deals with procedures and regulations relating to appeals, a proper construction of s 18(2) of the Act is that regulations may be made prescribing classes of matters (affecting all appeals) that, by the nature of the subject matter, are excluded from the appeal process or are such as to require leave to appeal. Once more, that class could include the award of costs; the amount of any penalty; a decision to issue a warning; or any other insubstantial or appropriate class.
Further, the prescription of a "class of matter" is not the prescription of a "class of appeal"; it does not relate to the body from which an appeal emanates, but to the subject matter of the appeal.
Secondly, the defendants' submissions in relation to the proper construction of reg 5 are not adequately informed by the structure of the rules and the functions of Racing NSW, as earlier described in s 13 and s 14 of the Thoroughbred Racing Act. By s 14(2)(b) of the Thoroughbred Racing Act, over and above the power to do all things necessary or convenient for the exercise of its functions, Racing NSW has power to register or license, or refuse to register or license, or cancel or suspend the registration or licence of a bookmaker or disqualify or suspend bookmakers permanently or for a specified period.
Interestingly, s 14AA(1) of the Thoroughbred Racing Act requires Racing NSW to exercise its registration and licensing functions such that persons that are registered or licensed are, in the opinion of Racing NSW, fit and proper persons and, specifically, such persons may not be or remain registered or licensed if convicted of an offence that is, in the opinion of Racing NSW, such as to render the person unfit.
If one then examines the terms of AR 7, summarised above; and LR 51, recited above; the Act; the Thoroughbred Racing Act; and the Rules all have a consistent and harmonious operation.
One must commence with the proposition that s 15 of the Act grants a right of appeal to an aggrieved person against decisions of Racing NSW. Section 18 grants the power in the Minister to promulgate regulations that may prescribe classes of matters for which an appeal may not be made.
Whether or not the provisions of s 18(2) relate generally across all appeals or whether they can relate to appeals under the various paragraphs of s 15 and s 15A, does not affect the following analysis.
Regulation 5(2) of the Racing Appeals Tribunal Regulation 2015 (NSW) allows an appeal under s 15(1)(d) of the Act "only" in respect of a decision then specified. The specified decisions include: disqualification; warning off; suspension of a licence, right or privilege granted under the rules; revocation of a licence under the rules; imposition of a fine equal to or greater than $200; or the disqualification of a horse (the latter being irrelevant).
When one then goes to the Thoroughbred Racing Act and the provisions of s 14, the only time the word "disqualify" is used is in s 14(2)(b) and is used as a result of one of the earlier powers in that paragraph. That is, the powers of Racing NSW include registration, refusal of registration, cancellation of registration and Racing NSW is entitled to disqualify or suspend any of the persons who have been registered or licensed either permanently or for a specified period. The remainder of the Act seems to refer to suspension or cancellation of a licence, but not disqualification.
Further, AR 7 allows Racing NSW to license bookmakers (again assuming bookmakers are included in the term "others") and LR 51 allows the person to seek a licence or registration and in order to do so to apply to the Board on such form as the Board directs, together with the prescribed fee.
That application may be treated in the following ways: it may be granted (with or without terms and conditions) for such period and locality as is appropriate or the Board may refuse to grant any such licence or permit, without assigning any reason, and may at any other time cancel or suspend or vary without any reason. Again, there is no power, expressly, in LR 51 that refers to disqualification. Nor is there reference to renewal of a licence.
By LR 51(5) all relevant licences and registrations expire on the 30 June in each year. Local Rule 51(6) is the only relevant occasion upon which the rules refer to an applicant's capacity to "reapply" and is included there for the purpose of preventing any further application for a licence or registration that has been cancelled or revoked. The wording of LR 51(6) requires further comment.
A number of different circumstances are described. The first of them is where an application has been refused (situation one). The second situation is where the licence or registration has been cancelled or revoked (situation two).
The remedy for situation one in LR 51(6) is that the applicant may not "make a further application". The remedy for situation two is that the applicant may not "reapply for a licence or registration that has been cancelled or revoked". There is a limit to the time at which such a restriction applies. And the calculation of the date is from the date of the "refusal", "cancellation or revocation".
In other words, a proper construction of the statutes, bearing in mind the need, if possible, to achieve harmonious goals, together with the regulations and the rules of Racing NSW brings one to the conclusion that there are three different circumstances.
First, a person who has never been registered or licensed may apply for a registration or licence. Presumably, there is a form for that purpose and the form must be used: AR7 and LR51; see [91] above.
Secondly, a person who is the holder of a current licence may have that licence revoked or cancelled (or suspended), during the time period for which the licence otherwise operates.
The third situation, is the situation that is before the Court. This is a situation in which a person is and has been licensed and does not apply for a licence or registration, but applies for renewal of the licence or registration.
The form prescribed by Racing NSW is different than the form for an application and is described as a renewal. A decision is then taken by Racing NSW not to allow the renewal of the licence for a period beyond the period in which it would otherwise expire. Properly understood, such a decision is a decision to "disqualify" a person who has hitherto been "qualified" for a licence. There are, or may be, other circumstances which would be described as a disqualification, but there is no reason to read down the term "disqualify" to exclude this circumstance.
In those circumstances, and on that construction, the provisions of reg 5 of the Racing Appeals Tribunal Regulation do not permit an appeal to the Tribunal for a person who is not licensed but is refused a licence. Such a refusal would not be classified as "disqualification". Yet, a person who is currently licensed and, for example, is refused the ability to renew that licence, on the basis that the person is now thought to be not fit and proper has been "disqualified" from holding a licence and renewing the licence.
Such a construction also accords with the proper construction of AR 7A of the "Australian Rules" applicable to Racing NSW. Australian Rule 7A allows Racing NSW, being the Principal Racing Authority, in its absolute discretion, to "refuse to grant any licence" to a person who has been the subject of a disqualification.
On the foregoing basis, the Court is of the view that the plaintiff has been "disqualified" and has a right of appeal to the Tribunal, assuming the validity of the regulations, under the provisions of reg 5(2)(a) of the Racing Appeals Tribunal Regulation.
In the alternative, although it is unnecessary finally to reach a conclusion on the question, the provisions of reg 5, insofar as they deal differently with appeals under s 15(a),(b), and (c) from appeals under s 15(1)(d) and s 15A of the Act, is not a prescription of a "class of matter" in respect of which appeals may be made, being the subject matter of appeals, generally, undifferentiated by the nature of the appeal.
The Court makes the following orders: 1. Declaration that, on the proper construction of the Racing Appeals Tribunal Act 1983 and the Racing Appeals Tribunal Regulations 2015, the plaintiff has a right to appeal under s 15(1)(d) of the Racing Appeals Tribunal Act 1983; 2. The first and third defendants shall pay the plaintiff's costs of and incidental to the proceedings; 3. Any party may apply for a different or special order as to costs by filing at the email address of the Associate to the Court a submission to that effect within seven days and any other party affected by any such application may reply to that submission in writing in a further seven days. The written submissions should be no more than five pages (not including any document on which any party seeks to rely).

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 March 2018

Industrial Relations Act 1988(Cth)

Racing Appeals Tribunal Regulation 2015(NSW)

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