Meyers v Casey [1913] HCA 50

Meyers v Casey [1913] HCA 50 - HCA 1913 case summary — Zoe

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diction of the stewards to deal with his conduct. He appealed to the committee in respect of himself as well as the horse. He was not bound to include himself if he desired to appeal where there was authority given to disqualify, and to seek other redress where there was none. He says: "I. . . appeal to the committee of the Victoria Racing Club against the decision . . . disqualifying me and my racehorse Blackpool," and as one of his grounds of appeal he says: "I am not guilty of the charge alleged," and the only other ground is that the decision was against the evidence. He invoked this tribunal on appeal equally in the two separable parts of the case. He gave the committee authority to decide as to the two without distinction, for he placed the two on precisely the same footing. Under rule 33 (d), the powers of the committee are wide enough to enable them to decide whether the stipendiary stewards as their subordinate tribunal had or had not juris- diction. They were not invited to do so. he power to appeal and the jurisdiction to hear appeals are not in such a case as this to be read according to any nice distinction between strictly appellate and strictly corrective jurisdiction. This is the case, not of a constitution, but of a contract. It is not to be thought of that under rules like these, of contractual effect, there was an intention to exclude an appeal against an actual decision involving an excess or defect of jurisdiction because the rules failed to use terms applicable solely to the corrective jurisdiction of the superior Courts. The committee, then, had jurisdiction to "quash or set aside" the punishment awarded by the decision of the stewards, or on the other hand, to "confirm" it, and they have confirmed it. I think, therefore, that their decision is within rule 33 (7), and is final. 'That was his agreement. More than this, he wrote by his solicitors, six days after the dismissal of the appeal by the committee, a letter to the secretary which shows that after consulting the solicitors he continued to rely solely on his complaint that he was innocent of the offence charged against him. he letter represents him as feeling " very strongly aggrieved at the decision of your committee in dis- missing the appeals and indorsing the decision of the stipen- diary stewards," and as contending "that the evidence adduced

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were wrong in their decision." It was not until the following February, upon the bringing of this action, that he questioned the legality of his disqualification on the ground of jurisdiction. Jn the case of Dawkins vy. Antrobus (1) the plaintiff sued the trustees and committee of a club claiming a declaration that a resolution purporting to expel him from the club was invalid, and an injunction restraining the defendants from excluding him from the club, and from interfering with him in the enjoy- ment of the use of the building and property. I do not cite this ease with relation to the plaintiff's club membership. But it is applicable to his contract to abide by the racing rules as much as to a member's contract to abide by the rules of a social club. Brett LJ. said (2) that in such cases "The only question which a Court can properly consider is whether the members of the club, under such circumstances, have acted ultra vires or not, and it seems to me the only questions which a Court can properly entertain for that purpose are, whether anything has been done which is contrary to natural justice, although it is within the rules of a club - in other words, whether the rules of the club are contrary to natural justice; secondly, whether a person who has not condoned the departure from them has been acted against contrary to the rules of the club; and thirdly, whether the decision of the club has been come to bond fide or not." The first and third of these questions do not arise in the present ease. But I am clearly of opinion that the plaintiff fails to answer the test of the second question. He has been acted against contrary to the rules of the club; but he has condoned the departure from them. After accepting the jurisdiction of the stewards, he went on and emphatically accepted the jurisdiction of the committee by resting his appeal on the ground of insufficient evidence alone. He offered that criterion to the committee, and the committee, accepting it, pronounced against him, Then he wrote by his solicitor to the committee's officer, the secretary, complaining of the decision, not as ultra vires, but as wrong upon the merits. In my judgment, he has concluded himself.

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from a person, the discrimination between " suspicious practices " and other kinds of misconduct is apparent. It appears again in rule 29 (c), in which the committee has again original power to deal with persons for, inter alia, suspicious practices in connection with racing. Rule 219 deals with "corrupt or fraudulent prac- tice or malpractice in relation to racing." Rule 222 speaks of "fraudulent practice in relation to a particular horse belonging to" a person. Rule 226 («) relates to persons guilty of "dis- honest, corrupt, fraudulent, or improper practices on the turf." I mention these instances to show that these distinctions are adopted by those who contract with the committee by way of entering their horses for races under the rules. I think it is for the tribunals of the club to say (subject to appeal to the committee where the stipendiary stewards are the tribunal) whether any ease of wrongdoing on the turf comes within any one of the rules, and if so, which one, and the Courts will not interfere unless a decision in that behalf is so entirely out of reason as to be evidence of mala fides. If they decide that particular mis- conduct, such as "pulling" a horse, comes under a particular head of the category, I more than doubt the power of the Court to interfere. On the other hand, if the stipendiary stewards disqualify a person - e.g., the owner - for conduct on his part for which they have authority to disqualify only a horse and not a person, the larger question of jurisdiction is raised, the person complaining has been dealt with beyond the terms of his con- tract, and it does not preclude him from seeking his redress in the Courts, unless it can be shown either that the defect of authority has been condoned, or that that question is covered by the decision of the domestic tribunal on appeal. In either of these events the person complaining fails, and I think that is the position of the plaintiff here so far as his grievance is in the character of an owner who has entered and run his horse.

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The by-laws relied on by the defendants in this regard are 33, 35, 36 and 37. As to 33, it requires, in my opinion, a finding by the committee itself of malpractice or dishonourable conduct, and after proper preliminaries and by proper methods. By-law 35 requires valid disqualification by the committee of the Victoria Racing Club or by the "stewards of the club." We entertain grave doubts, notwithstanding the repeal of by-law 15, and the amendment of by-law 16, whether "stipendiary stewards" of race meetings answer the description of " stewards of the club" within the meaning of the By-laws. See heading to Part 1 of By-laws, and also by-laws 14 and 17. Racing rule 17 still seems to recognize a distinction between the two kind of stewards, though attempting to give similar, and in some cases equal, powers. However, we do not do more, for it is unnecessary to do more, than leave the question open. In any case the stipendiary stewards acted in the present case for the Moonee Valley Club, and not the Victoria Racing Club. By-law 36 refers to other racing clubs; and if the local club acts upon racing rules 16 and 17, and adopts the stipendiary stewards as the stewards of the local club, probably they would answer the description of "stewards" in by-law 36. In this case the stipendiary stewards' decision, if valid, would bring the appellant within the by-law. But I agree that by-laws 35 and 36 do not themselves create a power of disqualification, or enable anyone to disqualify for suspicious practices. They do not state the conditions or methods of disqualification, and I agree with the view presented in the argument that they assume, as a condition of the operation of the by-laws by way of expulsion, that under some existing power found elsewhere disqualification or warning off has validly taken place. But I reserve, for the reasons already stated, my opinion us to whether such power can be validly given except by means of by-law. By-law 37 is apparently wide enough to operate if the committee had acted upon it. But that is not the case. The By-laws, therefore, in this case do not stand in the appellant's way.

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The other cases I have found since the argument. One is Bickett v. Morris (1). An action was commenced in Scotland by the respondent against the appellant. When the pleadings were closed, the case, according to law, should have been remitted by the Lord Ordinary to the Jury Court for trial. Instead of doing so, he, by consent of both parties, "appointed the proof to be taken by commission," and decided the facts himself in favour of Bickett. Then Morris appealed to the Inner House, the appel- late Court, who reversed the Lord Ordinary. From that decision Bickett appealed to the House of Lords, and on behalf of the respondent it was objected by Sir Rowndell Palmer A.-G. that the appeal was incompetent. He argued that the Court below - that is, the Lord Ordinary - had no right to decide without a jury. He said (2) : - "They, therefore, did not act judicially, but as arbitrators." To that Lord Westbury replied: - * But you appealed from the Lord Ordinary to the Inner House." In giving judgment, Lord Chelmsford L.C. said it was unnecessary to decide whether after consenting to the commission the parties had precluded themselves from appealing to the Inner House. But while leaving that undecided, he proceeded to say this (3): - "The pursuers, having failed before the Lord Ordinary, them- selves carried the cause into the Inner House by reclaiming note, thereby asserting their right to appeal from the Lord Ordinary's interlocutor. Having obtained from the Court of Session an interlocutor reversing the interlocutor of the Lord Ordinary, it would be opposed to every notion of propriety and justice if the pursuers could successfully resist the defender's right to question the interlocutor upon the ground of incompetency. By taking the step of appealing to the Inner House, the pursuers, in my opinion, have precluded themselves from objecting that the interlocutor pronounced in their favour is not subject to all the consequences of other interlocutors, and therefore appealable to this House." Lord Westbury said (4): - 'My Lords, upon the question of competency, it must be understood that the decision of your Lordships proceeds upon its being personally incompetent to the respondents to raise that objection."

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In Dines v. Wolfe (3) it was held by the Judicial Committee on the construction of the agreement and the rules of the Jockey Club which it referred to, that the finding of the jury was wrong, and that a new trial was properly granted. That case has been referred to by my learned brothers to support the view they take that the appeal to the committee by the plaintiff bars his right to take proceedings in the Courts, and that he is bound by the decision of the committee. I do not see anything in the case that enables me to take that view. The plaintiff in Dines's Case (3) agreed to run a match with his horse Kyogle with Mr. Doyle's Traveller, distance three miles, one event, weight for age, the match to be run under the Australian Jockey Club Rules. The race was run on 16th April. No objection was made to Traveller until after he won the race. The plaintiff then wrote to the stewards (letter dated 16th April), protesting against Traveller being declared the winner, on the ground that he started as a four-year-old, when he was a five-year old. He also enclosed £5. Under the Australian Jockey Club Rules that was a question the stewards had power to decide, and they decided it after hearing evidence adduced by both parties. The plaintiff brought an action to recover the amount of the stake, £1,000, paid over by the stakeholder to the defendant as owner of Traveller. The jury returned a verdict for plaintiff. The Court granted a new trial. The plaintiff appealed to the Privy Council, and the Privy Council dismissed the appeal. In delivering the judgment, Lord Chelmsford said (4): - " Now, if the race were actually run, it is quite clear that the plaintiff cannot be entitled to recover back his stakes. The plaintiff, how- ever, says that the race was the subject of an agreement, and that the race was not run according to that agreement." Later on his Lordship said (5): - * The plaintiff agreed to run the race according to the rules; . . . the agreement incorporates the rules of the Jockey Club." Counsel for defendants attached

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to, And yet in par. 18 it is stated that upon the hearing of that appeal (when another charge was being considered) it was proved to the satisfaction of the committee that the plaintiff had been guilty of other charges (to which his attention had not been directed at all), namely, such improper conduct as the committee considered prejudicial to or subversive of the purposes of the club, and also that he had been guilty of malpractice in connec- tion with racing. The learned Chief Justice of this Court, in the case of Scott Fell v. Lloyd (1), commented very strongly on a somewhat similar proceeding, namely, the conviction of a man - on a charge his attention had not been directed to - at the hear- ing of a different charge. The learned Chief Justice said: - "This was the only charge of misdemeanour made against him in the report. . . . He" (the bankrupt) "was cross-examined at great length with a view, I suppose, of proving that he was guilty of that misdemeanour. Then, when the evidence was closed, counsel for the bankrupt addressed the Registrar, and counsel for the Official Assignee then made a speech in reply, and in the course of that speech accused the bankrupt, for the first time, of several other misdemeanours which, it was said, could be gathered from his cross-examination. When I heard that stated in the opening of this appeal, it struck me as something very strange. A man who is cross-examined in the witness-box on a particular issue before the Court, has his mind directed to that issue, and to the facts relevant to it. Facts are elicited in his eross-examination which, it is said afterwards, are relevant to an entirely different issue, and which, if unexplained, would suggest that he was guilty of some other offence. I said during the argument of counsel that I hope that that is not the practice of the Supreme Court of New South Wales in Bankruptcy. 'There is nothing more unfair than to accusé a man of one piece of misconduct and to examine him upon that, and then, when his mind has been directed to that subject, to pick out from what he has said some statement which, if not explained, and which there was no reason to explain under the circumstances, would tend to suggest that he had been guilty of some other offence to which his mind was not directed. I am not suggesting that, if out of

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Judgment (260 paragraphs)

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