Michael Christie v Agricultural Societies Council of NSW Ltd

The proceedings

1. These proceedings were commenced by an urgent ex parte application before Stevenson J sitting as Duty Judge on 2 April 2015. Mr Christie wished to participate in an equestrian event at the Sydney Royal Easter Show on 4 April 2015, but had been informed by the Royal Agricultural Society of NSW that because of the Decision he would not be permitted to compete. His Honour granted an interlocutory injunction which had the effect of rendering the Decision temporarily inoperative.
2. On 13 April 2015, Lindsay J sitting as Duty Judge extended the injunction by consent until further order. The proceedings were then expedited by order of Sackar J on 12 June 2015 and came before me for hearing on 16 July 2015. Mr A.T. Schlicht of Counsel appeared for Mr Christie. Mr L. Gor of Counsel appeared for the ASC.

The Facts

1. The relevant facts were not in dispute either at the Hearing or before this Court.
2. Mr Christie is a professional horse trainer, rider and instructor whose ability to compete in equestrian events is an element of how he derives his living.
3. The ASC is an unlisted public company limited by guarantee registered under the Corporations Act 2001 (Cth) on 19 May 2011. It is a not for profit organisation whose constitution states that the purpose of the ASC is to provide support services to member show societies and related groups in order to assist them in their contributions to the fabric of their communities and for the pursuit of excellence in primary production and related activities.
4. The ASC does not conduct agricultural shows and it was not responsible for the conduct of the Show. The Wagga Wagga Show Society Inc was responsible for the Show and was one of approximately 195 agricultural show society members of the ASC at the time.
5. In early 2013, at the request of its members, the ASC started providing a random blood testing service for their benefit. That service is provided through the Committee. The Committee operates in accordance with a set of written rules promulgated by the ASC (the "Rules"). Those parts of the Rules relevant to these proceedings are set out in Schedule A to these reasons. Significant features of the Rules include: 1. For the purposes of a particular inquiry, the Committee must consist of at least three members. 2. The Committee is not bound by the rules of evidence and is entitled to conduct an inquiry with a minimum of formality and in such manner as it thinks fit. 3. No one is entitled to be legally represented before the Committee. 4. The Rules deem that at any event, the Competitor, the Owner and the Attendant of any horse in which a prohibited substance is detected are in breach of the Rules. 5. In respect of a Level 2 offence (which this was found to be) the Rules prescribe a minimum penalty for a first offence of a $500 fine, 12 month suspension, loss of award and loss of official position. The Rules also confer discretion as to what combination (if any) of the horse, the Competitor, the Attendant or the Owner could be suspended.
6. At all material times, Mr Capp was the chairman of the Committee.
7. Unbeknown to Mr Christie, in the days leading up to the Show Ms Cullen had administered the Substances to the Horse. The Substances were phenylbutazone and promazine sulphoxide. One is a sedative which has the effect of relaxing the animal and the other is a pain killer used to reduce swelling and discomfort. There was no dispute before the Committee or this Court that each of the Substances was a "prohibited substance" under the Rules.
8. The program for the Show contained this notification at the top of each page for each event: Drug testing may be carried out at this show. Any competitor found to have breached the ASC Disputes and Disciplinary Regulations will be investigated by the ASC Disciplinary Committee.
9. Mr Capp was the sole ASC official at the Show. Immediately after the Horse won its event, Mr Capp selected the Horse to be swabbed. Thereafter, every step in pursuing the matter up to and including the conduct of the Hearing was undertaken, overseen or procured by Mr Capp: 1. Selecting the Horse for testing. 2. Observing the swabs being taken by a veterinarian. 3. Taking custody of the samples. 4. Sending the samples to the laboratory and receiving the results. 5. Liaising with the laboratory when Mr Christie requested a second analysis. 6. Forming the view that there was an issue to go to the Committee. 7. Corresponding with Mr Christie or his solicitors (including typing the correspondence himself). 8. Selecting the Committee members, convening the Committee, liaising with its members and providing them with relevant materials. 9. Chairing the Committee at the Hearing, participating in the Hearing and the Committee's deliberations. 10. Writing to Mr Christie formally to inform him of the Decision. 11. Notifying Mr Christie's suspension to the ASC's member show societies and to the Royal Agricultural Society of NSW.
10. Laboratory analysis of the swabs taken from the Horse established the presence of the Substances.
11. In anticipation of the Hearing, on 3 March 2015 Mr Christie's solicitors wrote to Mr Capp with questions including "Please advise the names of the Panel Members that will comprise the Committee Panel for the hearing". By letter dated 9 March 2015, Mr Capp responded to that question: "The members of the Panel will consist of not less than three and not more than seven. They will all be Directors of the Board of the ASC and will be introduced to Mr Christie on the day".
12. The Hearing was conducted on 24 March 2015. The Committee comprised Mr Capp as chairman and members Mr J Stevenson, Mr G Shields and Ms S Sharp. Mr Christie appeared for himself, reading from a submission prepared by his solicitors. Ms Cullen appeared supported by her husband, Mr Rod Cullen.
13. Ms Cullen submitted a letter dated 23 March 2015 to the Committee which included (sic): I would like to make the following acknowledgements and submissions to the Council. 1. I acknowledge administering sulphoxide phenylbutazone to Royalwood Black Swan on or about Monday 29th September 2014 due to the horse displaying an elevated temperature. 2. I acknowledge administering Promazine to Royalwood Black Swan on or about Thursday October 2 in order to clip the horse and pull its tail. 3. I did believe that both drugs would be clear of the horses system in order for it to be shown at Wagga Wagga Show on Friday October 3. At no stage were either of these drugs administered to improve or enhance the horse at the show and as evidenced my Mr. Capp's comments on the day there was clearly no benefit to the horse in the competition ring. …
14. After hearing from Mr Christie and Ms Cullen, the Committee retired to consider whether or not there had been a breach of the Rules. The Committee returned to the hearing room and Mr Capp informed those present that the Committee had come to the view that a breach of the Rules had occurred. The Committee then invited submissions on penalty. A complete transcript of the hearing was tendered in these proceedings. The transcript of the balance of the hearing concerning penalty and the Committee's decision (summarised in paragraphs [5] and [6] above) is reproduced in Annexure B.

Question 1: is the Decision justiciable?

1. The Committee is a private or domestic tribunal, that is to say it is not established by statute but operates under private law arrangements which may be contractual or something else. The ASC submitted that the Decision was private in character and was legally binding on no one, other than perhaps through private arrangements. That private character was not lost even if Mr Christie demonstrated the Decision could adversely affect his livelihood. Taking all of these matters into account the Decision was, so it was submitted, not justiciable under the common law of administrative review.
2. The ASC's submission is not sustainable by reason of the decision of the New South Wales Court of Appeal in Mitchell v Royal New South Wales Canine Council Ltd [2001] NSWCA 162; (2001) 52 NSWLR 242 ("Mitchell"). In that case, the appellant was a member of the respondent. The latter's disciplinary committee had found the appellant guilty of misconduct.
3. Dealing with the Court's jurisdiction to intervene, Ipp A-JA (with whom Mason P and Stein JA agreed) said: 34 The jurisdictional basis of the exercise of the court's discretionary power to intervene in the affairs of voluntary tribunals has long been recognised. The discretion will more readily be exercised where (as in the present case) a person's livelihood substantially depends upon membership of the association. 35 Despite the long-standing recognition of the court's power to intervene, there is no unanimity as to its source and it has been explained on varying grounds. 36 Generally, the power is ordinarily regarded to be derived from consensual arrangements or contracts between the members of the association concerned: see Scandrett v Dowling (1992) 27 NSWLR 483 at 504 to 505 and at 507 per Mahoney JA. Once it is established that a decision is in breach of the arrangements or contract between the parties, a provision that the decision is final will not prevent the court from intervening. 37 It has further been held that, in certain circumstances, the court has power to intervene, irrespective of the terms of any contract that may be applicable. In Australian Football League v Carlton Football Club Limited [1998] 2 VR 546, Tadgell JA (at 552) observed: "I do not think it is satisfactory to regard a tribunal's obligation to act, for example, honestly and in good faith, as depending on any implication of a contractual term ... it goes against the grain to say that an obligation to act honestly and in good faith should be a matter of implication of a term of ... a contract .... The law does not countenance the establishment or the existence of any body for the purpose of its acting dishonestly or without good faith. Rather than implying a term that a body will act honestly and in good faith the law axiomatically assumes that that will be done: the body has no option that depends on the presence or absence of an implied term. At least, therefore, the legal obligation of a body to act honestly and in good faith goes hand in hand with an obligation to accord procedural fairness, but it may go further. The courts ought, I should think, in cases where they assume jurisdiction to interfere with decisions of domestic tribunals at all, to treat the power which any domestic tribunal may exercise as exercised defectively unless exercised honestly and in good faith." 38 In the course of his extensive discussion of the topic, Tadgell JA said (at 550): "Statutes aside, the courts have been disposed to interfere in a limited way with decisions of private or domestic tribunals in order to protect private rights that have been adjudged to deserve protection, including rights in property. The concept of property has been broadly interpreted for this purpose and, in cases within that category, I believe that there is no decision of a private or domestic tribunal with which the courts will refuse to interfere if interference be considered necessary for the attainment of justice".
4. The ASC sought to distinguish the application of Mitchell and the Victorian Court of Appeal's decision in Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546 ("AFL") on the basis that the appellant in Mitchell was a member of the respondent and in AFL because all three parties (the AFL, the Carlton Football Club and the player concerned) were in a contractual relationship. In this case Mr Christie was not in a contractual relationship with the ASC.
5. The Court does not accept that to focus on such matters is a valid point of distinction. The principle guiding whether or not a court will interfere in a decision of a domestic tribunal demonstrated by cases such as Mitchell and AFL requires an examination of the nature or quality of the effect of the decision on someone such as Mr Christie rather than analysing the legal framework for how the decision was made or can be enforced. The cases demonstrate that the effect of a decision will have the necessary quality to enliven the Court's jurisdiction if, for example, the Court is satisfied that it will have an effect on private legal rights such as rights in property or adverse financial or reputational impact on someone, particularly insofar as their livelihood is concerned. The categories of the necessary quality of the impact of the decision are not closed. However, the emphasis in the authorities on interference with matters such as property rights or livelihood suggests that the Court's jurisdiction is unlikely to be engaged where the impact of a decision is de minimis or gives rise merely to personal inconvenience or distress.
6. It is true that in this case Mr Christie had no contractual relationship with the ASC. He was not a member of either the Wagga Wagga Show Society Inc or the ASC. Furthermore, it was not suggested by anyone that the ASC had a legally enforceable mechanism to ensure that decisions of the Committee were given effect by the ASC's member societies or anyone else. But the fact that the mechanism for enforcing the Decision was voluntary does not, having regard to cases like Mitchell and AFL, take the Decision outside of the scope of the Court's power to review it. There is no evidence to suggest that the Decision would not be enforced. On the contrary, there was evidence that the Decision, again through voluntary arrangements, would have a real impact on Mr Christie. This was because the Royal Agricultural Society of NSW, while not a member of the ASC, had a reciprocal arrangement with the ASC whereby each would enforce the other's disciplinary findings. The adverse effect of that voluntary, reciprocal arrangement on Mr Christie is why the proceedings were first commenced (see paragraph [8] above).
7. There was no dispute that the Decision had the capacity adversely to affect Mr Christie's ability to earn his livelihood. The adverse effect was potentially both financial and reputational. That having been established, and applying the principle in Mitchell, the Court concludes that the Decision is justiciable.
8. The answer to Question 1 is "yes".

Question 2: If "yes" to question 1, does Wednesbury unreasonableness apply to decision of the Committee?

1. In Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229-30 Lord Greene MR (with whom Somervell LJ and Singleton J agreed) set out what has become the eponymous test for unreasonableness in administrative law ("Wednesbury unreasonableness") (emphasis added): It is clear that the local authority are entrusted by Parliament with the decision on a matter which the knowledge and experience of that authority can best be trusted to deal with. The subject-matter with which the condition deals is one relevant for its consideration. They have considered it and come to a decision upon it. It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming, and, in this case, the facts do not come anywhere near anything of that kind. I think Mr. Gallop in the end agreed that his proposition that the decision of the local authority can be upset if it is proved to be unreasonable, really meant that it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether. If it is what the court considers unreasonable, the court may very well have different views to that of a local authority on matters of high public policy of this kind. Some courts might think that no children ought to be admitted on Sundays at all, some courts might think the reverse, and all over the country I have no doubt on a thing of that sort honest and sincere people hold different views. The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another. It is the local authority that are set in that position and, provided they act, as they have acted, within the four corners of their jurisdiction, this court, in my opinion, cannot interfere.
2. The ASC submitted that the Wednesbury unreasonableness principle does not apply to domestic or private tribunals such as the Committee. That submission was based upon a dictum of Dixon J (as his Honour then was) in Australian Workers Union v Bowen No 2 (1948) 77 CLR 601 at 628 ("Bowen") (citations omitted; emphasis added): It is important to keep steadily in mind that we are dealing with a domestic forum acting under rules resting upon a consensual basis. It is a tribunal that has no rules of evidence and can inform itself in any way it chooses. Members may act upon their own knowledge and upon hearsay if they are satisfied of the truth of what they so learn and if they give the member whom they are dealing a proper opportunity of answering a charge and defending himself. The tests applied to juries' verdicts, namely, whether there was evidence enabling a reasonable man to find an affirmative or whether upon the evidence the finding was unreasonable, have no place in the examination of the validity of such a domestic tribunal's decisions. But the tribunal was bound to act honestly, that is to say it must have an honest opinion that what the member before it did amounted to misconduct and its decision must be given in the interests, real or supposed, of the body it represents and not for an ulterior or extraneous motive.
3. The ASC submitted that Bowen remains good law which had not been questioned by the High Court. Attention was drawn to what was submitted to be its application in courts of first instance.
4. In Shepherd v South Australian Amateur Football Inc (1987) 44 SASR 579 at 584, Cox J said, after citing Bowen earlier in his reasons (citations omitted): There are reported cases in which the Wednesbury Corporation test has been applied, in England and Australia, to strike down the decision of a public authority on the ground that it was so unreasonable that no reasonable authority could have formed it … however, I was not referred to any case, and I have not been able to find one for myself, in which the principle has been applied to a voluntary association.
5. The ASC also drew attention to the decision of Davies AJ in Hewett v Royal Volunteer Coastal Patrol [2001] NSWSC 1140, where his Honour said: 14 However, on the issue of reasonableness, the authorities are clear that, if a council or a committee has power to act in certain circumstances, it is not for the court to substitute its own view as to what the council or committee ought to have done. In Dawkins v Antrobus (1881) 17 ChD 615, Jessel M R declined to intervene in an expulsion case although, in the course of his reasons, his Lordship said, at p 624, "... I cannot, as far as I am concerned, imagine how this single act could be injurious to the character and interests of the club". His Lordship concluded that he could not impute legal malice to the committee and went on to say:- I do not feel that it would be right to say that the committee were so unreasonable as to act entirely without reasonable and probable cause, or so corruptly biased and unfair as to knowingly state that to be their opinion which was not their opinion, fairly arrived at so far as their light and information enabled them to arrive at an opinion adverse to Colonel Dawkins. 15 An appeal was disallowed by James, Brett and Cotton LLJ. At p 629, James LJ said:- Unless we can say that their decision that such conduct would be injurious to the character and interests of the club was so manifestly absurd and so manifestly idle that it could only have been a false pretence to cover something else, and therefore was, in fact, fraudulently put forward for the purpose of giving effect to some preconceived notion of removing him without just cause - for which I can see no ground or foundation whatever - we have no right to sit in judgment on their decision. 16 At p 636, Cotton LJ expressed the question in these terms:- The substantial question remains, namely, has it been made out that what was done was not in the fair exercise of the power given by the rule, and that it was done, not bona fide or honestly, but maliciously, or that there was a denial of natural justice? 17 In Paton v Sydney Press Club (1940) 57 WN(NSW) 57, Jordan CJ, expressing the judgment of the Court, rejected the contention that it was for the Court to examine whether it was unreasonable for the board of the corporation to form the opinion which it did. His Honour said, at p 58:- In such a case, the question whether the Board's decision is unreasonable becomes relevant only where the reason which it states for its opinion can be regarded as so obviously absurd that it may be inferred that it was not really of the opinion at all. An opinion which is sought to be supported only by an obvious absurdity may fairly be regarded as never having existed." His Honour cited from the judgments of James LJ and Cotton LJ in Dawkins v Antrobus. 18 Recent authorities have proceeded along the same lines. In Australian Workers' Union v Bowen [No. 2] [1948] HCA 35; (1948) 77 CLR 601, Dixon J said, at p 628:- Members may act upon their own knowledge and upon hearsay if they are satisfied of the truth of what they so learn and if they give the member with whom they are dealing a proper opportunity of answering the charge and defending himself. The tests applied to juries' verdicts, namely, whether there was evidence enabling a reasonable man to find an affirmative or whether upon the evidence a finding was unreasonable, have no place in the examination of the validity of such a domestic tribunal's decisions. But the tribunal is bound to act honestly, that is to say it must have an honest opinion that what the member before it did amount to misconduct and its decision must be given in the interests, real or supposed, of the body it represents and not for an ulterior or extraneous motive (cf. Maclean v The Workers' Union (1929) 1 Ch D 602, at pp 620-627; Stuart v Haughley Parochial Church Council (1935) Ch 452, at p 462; (1936) Ch 32; Lamberton v Thorpe (1929) 141 LT 638." 19 In Malone v Marr (1981) 2 NSWLR 894 at 899, Holland J said:- As I have tried to make clear, it is not the court's function to decide whether the plaintiff's statements to the press were or were rightly to be regarded as prejudicial to the interests or welfare of the club. That was for the committee to decide. Expressly, I do not decide that; but I do decide that the plaintiff's conduct complained of was capable of being considered to be prejudicial to the club's interest and welfare. 20 More recently, Burchett J reviewed the authorities in Whittle v Australian Miniature Pony Society Incorporated [1995] FCA 1267; (1995) 57 FCR 252. His Honour expressed like views to those which I have set out above.
6. Mr Christie submitted that Dixon J's dictum in Bowen was not inconsistent with the application of Wednesbury unreasonableness. Furthermore, he argued that two Victorian Court of Appeal decisions - AFL and Cromwell Property Securities Limited v Financial Ombudsman Service Limited [2014] VSCA 179 (special leave refused (2015) HCA Trans 027; 13 February 2015) ("Cromwell") - supported the proposition that Wednesbury unreasonableness could be applied to decisions of domestic tribunals.
7. Because the consideration of these arguments requires a detailed examination of the authorities to which reference has been made, it is convenient to state the Court's conclusions at the outset: 1. The law in Australia is to be found in the decision of the High Court in Dickason v Edwards (1910) 10 CLR 243 ("Dickason"). It is that a court will interfere in the decision of a domestic tribunal where no reasonable person could have reached the relevant decision or no reasonable person could have honestly reached the relevant decision. If there is any difference in practice or principle between those two expressions of the test (which I doubt) it is not necessary to resolve that question in this case because the application of either in their terms gives the same result. 2. The Wednesbury unreasonableness test is either identical to or completely consistent with the law as expounded in Dickason. It therefore may be applied to the decisions of domestic tribunals in Australia. 3. The decision of the High Court in Bowen does not preclude the application of the unreasonableness test in Dickason or Wednesbury to domestic tribunals because: 1. Dixon J's dictum is not inconsistent with and does not exclude a test to the effect that the decision was so unreasonable that no reasonable decision maker could have made it; or 2. If Dixon J's dictum is correctly understood as excluding unreasonableness in favour of a test of honesty in the context of domestic tribunals, then it is not a majority decision of that court and therefore not binding. 1. In both the Victorian Court of Appeal decisions of AFL and Cromwell, all parties conceded that Wednesbury unreasonableness applied to domestic tribunals so the point did not arise for formal determination. However, the court did not suggest those concessions were wrongly made and obviously proceeded on the basis that they were correct. Those concessions and the court's approach support the correctness of the conclusion expressed in sub-paragraph [38(2)] above. 2. The conclusion in Shepherd was obiter dicta or wrong and, in any event, is not binding on this Court. 3. The question of the application of Wednesbury unreasonableness to domestic tribunals did not arise for determination in Hewitt and Davies AJ's conspectus of the authorities casts no light on the question.
8. Obviously enough, Bowen antedates Wednesbury. It is therefore necessary, for the sake of clarity, to avoid shorthand tags and identify the principles concerned. Wednesbury concerned the exercise of a power by a local government authority conferred upon it by statute to act as a licensing authority in relation to cinemas. The case stands for the proposition that the Court will interfere with a decision if it comes to the conclusion that the decision is so unreasonable that no reasonable body could have made it and that to meet that test "something overwhelming" is required. The ASC's argument is that Bowen prevents a principle to that effect being applied to domestic tribunals in Australia.
9. The starting point to analyse the ASC's argument itself antedates Bowen and is to be found in the decision of the High Court in Dickason. In that case Mr Dickason was a member of a friendly society in Victoria called the Ancient Order of Foresters of the United Melbourne District. The judgment of the High Court decorously avoids reciting the detail of the facts. However, recourse to the judgment at first instance (Dickason v Edwards [1909] VLR 403) discloses that Mr Dickason "in a state of excitement" said to the District Executive "You and the whole of the District executive officers are a dirty, mean, low, lousy lot of mongrels, and I say it to your face". Additionally, Mr Dickason is said to have referred to the District Chief Ranger of the Order as a "bloody mongrel". Those and other utterances led to Mr Dickason being charged with "conduct calculated to bring disgrace upon the Order". A District Judicial Committee of the Order, at which the District Chief Ranger was present and presided as chairman, found the charges proven and expelled Mr Dickason.
10. There is no doubt the District Judicial Committee was a domestic tribunal. Neither the first instance nor appellate reports of the case recite a rule in relation to the Committee specifying whether or not it was bound by the rules of evidence. However a reported rule that "this Committee shall have full power to call for all papers, books, and documents or other evidence they may consider necessary for a fair and impartial investigation" suggests that it was not so bound, but there is no evidence expressly to that effect.
11. The decision of the High Court was that the Committee's decision was vitiated because the District Chief Ranger presided over the Committee, even though he took no active part. It was sufficient that because he was the object of one of Mr Dickason's outbursts, he had a personal interest in the outcome and should not have sat. What is not often noted is that the High Court also considered argument that Mr Dickason's conduct could not, on any view, meet the description of being "calculated to bring disgrace upon the Order". What is significant for present purposes is that two of the three judgments accepted that the Court would not embark upon an analysis of that submission on the merits but would only interfere if the relevant characterisation of the conduct was so unreasonable that no reasonable person could have come to the conclusion that the relevant test had been satisfied.
12. Griffiths CJ (at 249) introduced the concept of reasonableness but did not develop it further: Various objections were taken to the validity of this so-called expulsion. It was first contended that the charge itself did not show conduct calculated to bring disgrace upon the Order. It appeared, as I have said, that the charge was of using terms of vulgar abuse concerning members of the Order and, apparently, in the presence of members of the Order. I think it is open to the Court to review the decision on that ground. It was suggested that the word "adjudged" in rule 86 leaves it to the absolute and uncontrolled opinion of the Committee to say whether the conduct complained of is "calculated to bring disgrace on the Order". But I think the true test is this, that the conduct must be such that reasonable men might think it was likely to bring disgrace on the Order. Opinions may differ in this case as to whether the conduct alleged was calculated to bring disgrace upon the Order. For my part I have not hesitation in saying … that I do not see anything in the language from which, under the circumstances, I should conclude that the conduct of the plaintiff was calculated to bring disgrace upon the Order. Whether a reasonable man could draw a contrary inference is another matter, upon which I do not feel called on to express any definite opinion.
13. O'Connor J said (at 254-255; emphasis added); A number of grounds have been relied upon in support of the plaintiff's right to succeed in this action, but I do not think it necessary to refer to more than two of them. It was contended that the conduct of the plaintiff as proved was not such that the District Judicial Committee could under rule 86 lawfully come to the conclusion that it was calculated to bring disgrace on the Order. I agree that it is open to the Courts to review the decision of a committee such as this on a question of that kind. The only ground, however, upon which the Courts could interfere is that no reasonable man could come to the conclusion that the facts proved amounted to the offence charged under the rules. Now what may be conduct calculated to bring disgrace on the Order is a matter peculiarly for the members of the Order themselves. There is a certain standard of conduct which necessarily obtains in the Order. Nobody can judge as well as they can what would or would not be a disgrace to the Order, and I think it may be taken generally that if the Committee honestly came to the conclusion that the conduct complained of was calculated to bring disgrace on the Order, and that conclusion is neither absurd or unreasonable, the Court would be loath to interfere. Although I agree with the learned Chief Justice that I should find a difficulty in saying, expressing my own opinion, that the plaintiff's conduct was of the character referred to in the rules, at the same time I see no ground for interfering with the view taken by the District Judicial Committee.
14. The third judge constituting the High Court was Isaacs J, who said (at 257-258; emphasis added): With regard to the first point, as to whether the conduct complained of was such as to fall within the rules, if it were necessary to say anything about it I am of the opinion that it was capable of being considered by the tribunal to be such conduct as was calculated to bring disgrace on the Order. I think that, although the Court has an undoubted right to review the finding in one sense, it has only to see whether the finding was arrived at in accordance with the rules, without any departure from the principles of natural justice, and bona fide. If those conditions are applied with, then I think that, so long as the finding is one which the Court finds it impossible to designate as one at which no reasonable man could honestly arrive, the Court cannot review it. In this case it is not necessary to say anything more on that point, but I should be very far from suggesting that language of this kind addressed to, or spoken of, one of the governing bodies of this Order, was not calculated to bring disgrace on the Order.
15. It follows from this analysis of Dickason that the case stands for the proposition that the Court will not embark on a merits review but will interfere with a decision of a domestic tribunal if the Court is satisfied that no reasonable person could have come to the conclusion which the tribunal did. Whether there is any difference in practice or principle between the formulations of O'Connor J and Isaacs J it is not necessary to decide in this case because the outcome is the same whichever is applied. I would only record my doubt that there is any real difference between the two because in the context of decision makers I suggest reasonableness incorporates honesty and vice versa: a dishonest but reasonable decision maker is not something the law would postulate.
16. Against that background it is then necessary to consider the decision in Bowen. There are four reasons, which will be demonstrated by reference to various parts of that decision, why the Court has concluded that Dixon J's dictum does not prevent an unreasonableness test of the kind postulated in Dickason and Wednesbury being applied to decisions of domestic tribunals: 1. The case was not argued in the High Court by reference to a submission that the decision to expel Mr Bowen and others from the union was unreasonable in the sense that no reasonable body could have reached that conclusion. There were two prongs to the argument in the High Court. The first focused firmly on the bona fides of the decision, which necessarily required the Court to view the problem through the lens of whether or not the decision had been honestly reached in fact. The second prong in the argument before the High Court, and for which the case is usually cited, is, like Dickason, that the decision was vitiated because a person who is in effect the prosecutor took part in it. 2. Each of the substantive judgments cites Dickason with approval, albeit not those passages to which I have referred because, for the reason given in the previous sub-paragraph, it was not necessary for the High Court to revisit them given how Bowen was argued. However, there is nothing in any part of the judgment in Bowen to suggest that any member of the bench in that case disagreed with anything that had been said in Dickason. 3. Third, the dictum of Dixon J upon which the ASC relies (see paragraph [33] above) is correct in its terms given the emphasis it places upon a tribunal such as that in Bowen not being bound by the rules of evidence. It is implicit in the contrast drawn by Dixon J with juries' verdicts that juries are bound to proceed upon facts properly proven in accordance with the rules of evidence. It is therefore unsurprising for his Honour to observe that the tests applied to overturning juries' decisions - which necessarily focus upon the evidence before the jury - are inapplicable to a domestic (or any other) tribunal that is not bound by the rules of evidence. That says nothing about the applicability of a test examining - and necessarily focusing upon the decision - whether a decision was so unreasonable that no reasonable decision maker could have made it. Putting it another way, to ask "whether upon the evidence a finding was unreasonable" is a different question to whether or not a decision was so unreasonable that no decision maker could have made it. A court could find that by reference to the evidence before it a particular finding was unreasonable, but it does not follow that such a finding must necessarily be a finding that was so unreasonable that no reasonable decision maker could have made it. The latter involves a much more significant hurdle. 4. Alternatively to (3), Dixon J's reference to the inapplicability of tests of reasonableness was obiter dicta because that was not how Bowen was argued.
17. The nature of the case and the way in which that part of it was argued appears in the judgment of Latham CJ (at 606; emphases supplied except in the penultimate sentence): The rules provide in rule 13, first for expulsion in certain cases by a district committee or branch executive of the union with an appeal to the succeeding Convention of the union. Secondly, under the heading of "Misconduct" it is provided that any meeting of the Executive Council or Branch Executive or District Committee may dismiss from membership any member of the union who in its opinion is guilty of misconduct, provided that at least twenty-one days' notice of the investigation is given. The Executive Council acted under this rule in expelling the applicants. They were given more than twenty-one days' notice of investigation. The charges were preferred in writing. They were given full opportunity to answer the charges and did answer them at considerable length. The rules provides that a member may be dismissed who, in the opinion, of the Executive Council, is guilty of misconduct. There is no doubt that in fact the Executive Council did form this opinion. If the rule had provided that a person who was guilty of misconduct could be expelled (without the express reference to the opinion of the adjudicating body) there would have been room for an argument that the decision of whether particular behaviour amounted to misconduct was not committed to that body but that it could be independently examined in a court. The terms of the rule, however, do not leave room for such an argument and the only question (so far as the terms of this rule are concerned) is whether the Executive Council was really, i.e. bona fide, of opinion that the applicants had been guilty of misconduct. There is no evidence of any lack of bona fides in the ordinary sense of that term …
18. Significantly for present purposes, in a later part of his judgment, Latham CJ appears to accept that an analysis of the reasonableness of the decision could demonstrate that the relevant rules had not been observed but again emphasised that the case had been argued in terms of good faith. The learned Chief Justice said (at 609): … Evidence was directed only to the complaint made, namely, not that the organisation did not have power to act, but that it did not act bona fide or in accordance with the principles of natural justice. That was the basis of the claim made by the present respondents that the rules (with their underlying requirements of natural justice and bona fides) had not been observed, and it was upon this ground, and this ground only, that they asked directions that the rules should be observed by maintaining them in their rights as members, rights of which they contended, they had been unjustly deprived by a mala-fide decision. The learned judge held that "no proper ground of misconduct" had been shown to exist. I read this statement as meaning that the evidence did not show that the members who had been expelled had been guilty of acts or omissions which could be regarded by reasonable men as amounting to misconduct. If this were the case it would mean that the rules were not really observed. It is not the province of the Arbitration Court, or of this Court upon appeal therefrom, to determine whether the Executive Council was right in what it did, but only whether it observed the rules and it acted in good faith …
19. The Chief Justice went on to deal with the reasonableness argument, without ever suggesting that it was an impermissible means of challenging the decision. After setting out the relevant findings, he overturned the trial judge's decision that no proper ground of misconduct had been shown to exist by saying (at 614-615): … In relation to all these matters it cannot, in my opinion, be said that they were not such as reasonable men might regard as amounting to misconduct, that is conduct which was not consistent with observance of the rules of the AWU and with loyalty to the union. Accordingly, in my opinion it should not be held that the expulsion was invalid on the ground the Executive could not as reasonable men honestly reach the conclusion that the respondents had been guilty of misconduct.
20. Latham CJ again seems to draw no distinction between the concept of honesty and reasonableness. At least in the way it is used in these cases, either expressly or implicitly honesty necessarily connotes reasonableness and reasonableness necessarily connotes honesty. In this field of discourse the possibility of an honest but unreasonable decision is not countenanced. Putting it another way, a decision which is unreasonable in the sense that no reasonable decision maker could have made it will lead to the conclusion that the decision was not bona fide or honestly made. This approach reaches the same point as, and is not inconsistent with, Dixon J's dictum.
21. Justice Rich (at 618) expressed himself to be "in general agreement with the reasons given by my colleagues for allowing the appeal". Justice Starke (at 619) agreed with Dixon J.
22. Williams J also approached the matter in a way where honesty and reasonableness were essentially connected. His Honour said (at 634-635; citations omitted; emphasis added): The first question that arises is whether his Honour was right in holding that there was no proper ground of misconduct within r 13 sufficient to warrant the executive council dismissing the respondent from membership. It was for the executive council to form the opinion whether the acts charged constituted misconduct, and in the event of an affirmative opinion, to decide whether the matters brought to its information was sufficient to establish the charges. His Honour could only interfere if he were satisfied that the acts charged were incapable of constituting misconduct within the meaning of the rule, or if he was satisfied that there was no material before the executive council upon which honest men acting bona fide could find that the charges had been established. I am unable to agree with his Honour's finding that there was no proper ground of misconduct under rule 13. His Honour does not specifically state whether he meant that the acts charged were not acts of such nature as the executive council acting honestly and in good faith could consider to be misconduct within the meaning of the rule, or that there was no material before the executive council which honest men acting in good faith could reasonably hold that the charges were established. But it is clear that the acts charged were capable of being considered to be misconduct; it would be difficult to consider otherwise; and I believe that his Honour must have meant that there was no material on which the executive council could honestly and bona fide arrive at the conclusion that the charges had been established.
23. Insofar as Dickason is concerned, it is cited in Bowen by Latham CJ (at 605, 616, 617 and 618), by Dixon J (at 631) and by Williams J (at 640). While none of their Honour's citations of Dickason relate to those passages which I have identified concerning the application of reasonableness to the decisions of a domestic tribunal, there is nothing in the judgment of the High Court in Bowen to suggest that their Honours disagreed with anything in Dickason.
24. Finally, if I am wrong in concluding that Dixon J's dictum does not preclude Dickason or Wednesbury unreasonableness in domestic tribunals or is obiter dicta, then I do not consider that his Honour's view forms part of a majority decision binding upon me. Dixon J's judgment is agreed in by Starke and Rich JJ. On the other hand both Latham CJ and Williams J appeared to invoke concepts of reasonableness. Sir George Rich also agreed with them. Rich J's position of agreeing with all of his brethren means that there is no majority in favour of Dixon J's analysis. The High Court is equally divided.
25. In AFL, the AFL Tribunal had decided that a player, Mr Williams, had breached paragraph 16.9.1 of the Laws of Australian Football by unduly interfering with an umpire. The AFL Tribunal's decision was set aside by the trial judge, who decided that the AFL Tribunal had misconstrued Rule 16.9.1 and made a decision which no reasonable tribunal paying proper regard to the evidence could have reached. The Victorian Court of Appeal allowed, by majority, an appeal from the trial judge. Nevertheless, all three judges appeared to accept that a decision of a domestic tribunal could be interfered with if that decision was one which no reasonable tribunal could have reached. However, each judge expressed that principle in a slightly different way.
26. The judgment of Tadgell JA contains an extensive discussion of when the Court will interfere with a decision of a domestic tribunal (cited in Mitchell at paragraph [26] above). His Honour summarised his understanding of the law to be (at 551-552): … It remains the law, for example, that if a domestic tribunal was designed to inquire into facts, there must be due inquiry: cf. Leeson v General Council of Medical Education and Registration (1889) 43 Ch. D. 366 at 383 per Bowen L.J. The tribunal must do the job it was designed to do and not merely go through the motions of doing it. As Shadwell V.-C. put it, a court may well step in if it can be seen that "The whole thing is a farce...". Hence it has been said that the courts will interfere if the conclusion reached by the tribunal is plainly absurd or unreasonable; or such that no reasonable man could come to the conclusion; or that "no reasonable man could honestly arrive" at it; or that the conclusion was reached in disregard of "one of the fundamental principles of natural justice" or of "common justice": cf. Dickason v Edwards at 254-5 per O'Connor J.; and 257-8 per Isaacs J. The "fundamental principles of natural justice", and "common justice" and the phrase of Shadwell V.-C., "the principles of justice and humanity", all seem to me to mean much the same thing.
27. However, the value of AFL as precedent for present purposes is constrained by the fact that the appellant in that case conceded that the Court could interfere to declare the Tribunal's decision to be of no effect if there was no reasonable basis of fact or law for making it. It was in the context of explaining this concession that his Honour then went on to explain how he saw no inconsistency between the decision of the High Court in Dickason and what Dixon J said in Bowen and expressing his Honour's conclusion that Dickason stood for the proposition that courts may interfere with the decision of a domestic tribunal if no honest and reasonable tribunal could have made that decision. I respectfully adopt his Honour's reconciliation of Dickason and Bowen. It is necessary to set out what his Honour said at length (at 557-558): There was much argument before us about the scope of the rules of natural justice, and whether they are wide enough to warrant interference by the courts with the decision of a domestic tribunal which can be shown to have been reached on a basis of fact or law which cannot support it. In the end, however, the issues of law on which this appeal depends were reduced during argument within quite narrow limits. The appellant conceded that the court could interfere to declare the tribunal's decision of no effect if there was no reasonable basis of fact or law for making it. There was no suggestion of bias or that the tribunal did not make its decision in every respect honestly and in good faith, but counsel for the respondents contended that there was no basis upon which the tribunal could reasonably have concluded that law 16.9.1, correctly interpreted, had been infringed. It is sometimes said that, in considering whether a conclusion was reasonably open to a domestic tribunal, it is appropriate to ask whether there was any evidence upon which a jury might have come to the conclusion: Osgood v Nelson (1872) L.R. 5 H.L. 636 at 651-5 per Lord Colonsay; Lee v Showmen's Guild of Great Britain [1952] 2 Q.B. 329 at 345 per Denning L.J. Alongside this view is to be contrasted the observation of Dixon J. in Australian Workers' Union v Bowen (No. 2) (1948) 77 C.L.R. 601 at 628 that a domestic forum acting under rules resting on a consensual basis is: ... a tribunal that has no rules of evidence and can inform itself in any way it chooses. Members may act upon their own knowledge and upon hearsay if they are satisfied of the truth of what they so learn and if they give the member with whom they are dealing a proper opportunity of answering the charge and defending himself. The tests applied to juries' verdicts, namely, whether there was evidence enabling a reasonable man to find an affirmative or whether upon the evidence a finding was unreasonable, have no place in the examination of the validity of such a domestic tribunal's decisions. At first blush this seems to be not altogether consistent with the dicta in Dickason v Edwards, in which it was acknowledged that the courts can interfere with the decision of a domestic tribunal if it is such that "no reasonable man could come to the conclusion that the facts proved amounted to the offence charged under the rules": per O'Connor J. at 254; or if it depends on a finding "at which no reasonable man could honestly arrive": per Isaacs J. at 258. I would understand these dicta in Dickason v Edwards, however, not to point necessarily to a jury as the touchstone but to indicate that the courts may interfere with a decision of a domestic tribunal if no honest and reasonable tribunal could have made the decision. Dixon J. evidently had it in mind in Bowen's case that the material on which the tribunal in question was entitled to make a decision, or exercise a discretion, was not confined to evidence of a kind that in a court of law would be capable of consideration by a jury. It is the same in this case. A domestic tribunal may in general use information available to it which it is prepared to accept, whether or not it is hearsay or sworn to be true. Indeed, a tribunal might fall into error by following rules of evidence, and thereby depriving itself of information, if its true task is to conduct a broader investigation than adherence to the formal rules of evidence would permit: R. v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 C.L.R. 13. In Maclean v Workers' Union, to which Dixon J. in Bowen's case referred, Maugham J. confessed at 622 that he did "not know how a Court of law is to weigh statements made not on oath and views formed it may be on hearsay allegations". Maugham J. acknowledged, in accordance with authority such as Leeson v General Council of Medical Education and Registration, that, if it could be seen that nothing had been brought before the tribunal which could justify in the minds of honest persons the conclusion reached, that would go to show that the inquiry that the tribunal purported to make had not been a due inquiry; but that was not to authorise a court itself to inquire into the question whether there was evidence upon which the tribunal could reasonably arrive at the finding made. The tribunal might have reached its conclusion by reference to some material of a kind that would not have been receivable as evidence in a court of law; and there might, indeed, have been nothing but material of that kind available to it. The distinction is between, on the one hand, a recognition that there was no information available to the tribunal on which reasonable and honest minds could possibly reach the conclusion reached and, on the other, reviewing the material in order to decide whether the tribunal properly appreciated or treated it - i.e. whether the tribunal reached the right result. The first would be permissible according to the view expressed by Dixon J. in Bowen's case; the second would not. Although the decision in Bowen's case was not unanimous, there having been a division of opinion on the facts, the members of the High Court were at one in the view that a court has no jurisdiction to review the findings of a domestic tribunal for the purpose of examining their correctness. There is, in my respectful view, no reason for supposing that the approach summarised by Dixon J. in that case does not apply in this case, justified as it was by long-established authority.
28. The judgment of Hayne JA (as his Honour then was) focused on the contention that no reasonable person could have come to the conclusion that the AFL Tribunal did when it found that Mr Williams had committed a breach of Rule 16.9.1. That contention reflected the concession made by the AFL. In the course of his reasons, his Honour identified a number of matters which had been the subject of submissions, but which it was not necessary to decide. These included (at 567): Submissions were made to us about what principles could be identified as having been applied by the High Court in Dickason v Edwards (1910) 10 C.L.R. 243 and Australian Workers' Union v Bowen (No. 2) (1948) 77 C.L.R. 601. The appellants contended that Bowen should be seen as qualifying Dickason in some way; the respondents contended that Bowen applied only to tribunals deriving their authority from some consensual arrangement falling short of contract.
29. His Honour then went on to recognise both Dickason and Wednesbury unreasonableness could apply to domestic tribunals (at 568-569): Rule 27.1(d) of the A.F.L. Rules and Regulations provides that "the decision of the Tribunal should be final and binding". In my view that provision does not prevent a player suing for breach of contract if enforcement of the tribunal's decision would constitute such a breach. Likewise, it is not effective to preclude the court applying a general principle of law (if that is its proper characterisation) that enforcement will be restrained of decisions of domestic tribunals that are "absurd" or "unreasonable" (Dickason at 254 per O'Connor J.) or are decisions that "no reasonable man could come to'' (Dickason at 254 per O'Connor J.) or are decisions contrary to "fundamental principles of common justice" (Dickason at 255 per O'Connor J.) or are decisions "at which no reasonable man could honestly arrive" (Dickason at 258 per Isaacs J.) or are decisions for which there is "no evidence" (Lee v Showmen's Guild of Great Britain [1952] 2 Q.B. 329 at 340 per Somervell L.J.) or are decisions affected by "Wednesbury unreasonableness" (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 K.B. 223). (I need not and do not choose between these various expressions.)
30. In his judgment, Ashley AJA noted (at 577) the various concessions made by the AFL, which included that the AFL Tribunal could not make a finding at which no reasonable person could honestly arrive. That led to a further concession which his Honour described as a reworking of an earlier concession, to the effect that if there was "no evidence" to support a finding that a charge had been established, the Court would have jurisdiction to interfere. It was by reference to what his Honour described as the "no evidence" principle that he concluded, in the minority, that there was no material before the AFL Tribunal which permitted it to make the decision which it did. In doing so, his Honour summarised his understanding of the "no evidence" principle to be (at 578-579): There remains, on the other hand, an issue between the parties concerning the content of what I have called the "no evidence" principle (when I refer to "evidence" in this context I use the word in the non-technical sense of relevant information). In this context it was common ground that, at least to some extent, that content is informed by public law cases. In my opinion the principle goes at least this far: that a court may intervene in a case of the present type if there is "no evidence" which supports a decision (Lee), or if a decision may properly be described as being: • perverse: Australian Broadcasting Tribunal v Bond (1990) 170 C.L.R. 321 (Mason J. said at 359 that this "signifies acting without any probative evidence"); • irrational: Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374 at 410; • unreasonable: Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 K.B. 223 at 229-30 per Lord Greene M.R.; • not based in material having rational probative force: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 A.L.D. 33 at 41 per Brennan J.; • such that no reasonable man could (honestly) arrive at: Dickason at 254 per O'Connor J. and at 258 per Isaacs J. A decision will not be based in material having rational probative force if it is founded upon irrelevant material. Obviously enough there is room for overlap between the various descriptions which I have just set out. It is, however, undesirable that I attempt to refine them further.
31. Strictly speaking the Victorian Court of Appeal's decision in Cromwell also does not advance matters further. This is because, like in AFL, the parties to the appeal accepted that, as a minimum, review could be undertaken by the court on grounds of Wednesbury unreasonableness (per Warren CJ and Osborne JA at [63]). The real point for decision was whether the contractual arrangement involved in that case (which related to the resolution of disputes in the financial services sector) had implied into it an obligation to act reasonably (as opposed to the Wednesbury standard of not being so unreasonable that no reasonable decision maker could have made the relevant decision). The majority held that the relevant decision was not unreasonable in the Wednesbury sense and that an obligation to act reasonably could not be implied.
32. Tait JA, in the minority, agreed that the basis for review was the public law standard of Wednesbury unreasonableness. However, unlike the majority, his Honour concluded (at [163]) that the relevant decision was unreasonable in the Wednesbury sense.
33. Insofar as the ASC relies on the decision of Cox J in Shepherd, the Court concludes: 1. His Honour's analysis of the application of Wednesbury unreasonableness to domestic tribunals was, strictly, obiter dicta because, as his Honour indicated, "I do not think I have to decide, at least for the purpose of this rule whether it was "so unreasonable that no reasonable authority could ever have come to it" because I am satisfied that, even if it was, that will not entitle the plaintiff to the relief he seeks" (at 583). 2. While his Honour referred to the dictum of Dixon J in Bowen, his Honour (in my respectful opinion correctly) did not suggest that dictum prevented the application of Wednesbury unreasonableness to domestic tribunals. 3. His Honour was apparently not referred to Dickason. Had he been referred to that decision, it would have been apparent to his Honour that the test applied by the judges in Dickason was not materially different to the Wednesbury unreasonableness test and therefore supported the applicability of a test to that effect in relation to domestic tribunals.
34. Cox J's essential process of reasoning (at 584-585) was that Wednesbury unreasonableness had only been applied in England and Australia to strike down a decision of public authorities and that there was no case in which the case had been applied to a voluntary association. This led to his Honour's conclusion (at 585) that "the history of the jurisdiction, as well as the reported examples of its exercise, show that it is restricted to the supervision of statutory and other public bodies". I respectfully do not agree that his Honour's process of reasoning demonstrates why, as a matter of principle, Wednesbury unreasonableness would not apply to the decisions of domestic tribunals.
35. This Court is not bound by his Honour's decision and I respectfully decline to follow it.
36. Finally, Hewitt does not assist the ASC. The issue before Davies AJ in that case was whether the plaintiff's conduct could constitute conduct prejudicial to the interests of the defendant. His Honour (at [21]-[23]) rejected the submission that it was not open for the defendant's Council to form the view that the plaintiff's conduct was conduct which was prejudicial to the interests of the defendant. There was no submission before his Honour as to the applicability or otherwise of Wednesbury unreasonableness to the decisions of domestic tribunals.
37. Question 2 is answered "Yes".

Question 3: if "Yes" to question 2, was the Decision unreasonable in the Wednesbury sense by reason of any or all of the matters identified in paragraph 26 of the amended statement of claim?

1. Paragraph 26 of the amended statement of claim pleads: By reason of: (a) the failure of the Defendant to prove that the administration of the prohibited substances was a level 2 offence; (b) that on the uncontradicted evidence that both the Plaintiff and Cullen both in writing and orally at the disciplinary tribunal that it was Cullen who solely administered the prohibited substances without the knowledge or authority of the plaintiff; (c) on the uncontradicted evidence the Plaintiff: (i) had proved that the prohibited substances had been administered through no fault or involvement of him; (ii) had proved as to how the prohibited substances had been administered into the system of the horse; no reasonable tribunal could have come to the conclusion that it did in imposing a 12 month suspension.
2. At the hearing before this Court Mr Christie no longer pressed the suggestion that the ASC had failed to prove that the administration of the Substances was a Level 2 offence. He was right to abandon that contention.
3. Mr Christie's submission of Wednesbury unreasonableness must be measured against two features of the Rules. Although the relevant Rules are set out in Annexure A to these reasons, the two rules most pertinent to this stage of the enquiry are reproduced here for convenience: 25. (a) A person must not enter at a show any horse to which a Prohibited Substance has been administered, or permit a horse to which a Prohibited Substance has been administered to compete. (b) The Competitor, the Owner and an Attendant of any horse in which a Prohibited Substance is detected is deemed to be in breach of these rules. … 31. In respect of a Level 2 offence, the suspension may be of the horse concerned and/or the Competitor and/or the Attendant and/or the Owner, as the Committee may in the particular case determine. MINIMUM PENALITES FOR PROHIBITED SUBSTANCE OFFENCES … Level 2 - Use of a Prohibited Substance which could have affected the performance of the horse at the time of competition 1st Offence - $500 fine - 12mths suspension-Loss of Award - Loss of Official Position.
4. In the events that happened there was no doubt that Mr Christie had breached Rule 25(a) by "[permitting] a horse to which a Prohibited Substance has been administered to compete". That breach occurred irrespective of whether or not he knew that the Substances had been administered to the Horse. Any doubt about his being in breach was removed by the deeming provision in Rule 25(b). Nevertheless, the last paragraph of Rule 31 gave the Committee a discretion as to who it should suspend. The essence of Mr Christie's submission of Wednesbury unreasonableness was that, in circumstances where it was clear that he knew nothing of the administration of the Substances to the Horse, it was unreasonable in the Wednesbury sense for the Committee to have exercised its discretion by imposing the 12 month suspension.
5. In its submissions the ASC pointed to a number of reasons why the Decision was reasonable. While that approach is understandable, it invites the Court to engage in a merits review. That invitation must firmly be resisted.
6. A recent and, with respect, helpful exposition of Wednesbury unreasonableness is found in the judgment of the plurality in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, where Hayne, Keiffell and Bell JJ said (citations omitted): 68. Lord Greene MR's oft-quoted formulation of unreasonableness in Wednesbury has been criticised for "circularity and vagueness", as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision − which is to say one that is so unreasonable that no reasonable person could have arrived at it - nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, before Wednesbury was decided. And the same principles evidently informed what was said by Dixon J about review of an administrative decision in Avon Downs Pty Ltd v Federal Commissioner of Taxation, which was decided less than two years after Wednesbury, at a time when it was the practice of the High Court to follow decisions of the Court of Appeal in England which appeared to have settled the law in a particular area. 69. In Wednesbury, Lord Greene MR discussed the various grounds upon which an exercise of statutory power may be abused. His Lordship foreshadowed defining those grounds under a single head of unreasonableness, stating that it was "perhaps a little bit confusing to find a series of grounds set out. Bad faith, dishonesty ... unreasonableness, attention given to extraneous circumstances, disregard of public policy" were all relevant to the question of whether a statutory discretion was exercised reasonably. … 72. The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that "all these things run into one another". Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is "manifestly unreasonable". Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense. … 75. In Peko-Wallsend, Mason J, having observed that there was considerable diversity in the application by the courts of the test of manifest unreasonableness, suggested that "guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion". House v The King holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent. 76. As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
7. The conclusion of their Honours' analysis which has just been quoted invites the Court, where Wednesbury unreasonableness has been raised, to answer the question: does the decision lack an evident and intelligible justification? There can be no doubt that Mr Christie's submission has a strong initial attractiveness. While the Committee could not impose less than the minimum 12 month suspension under the Rules, it nevertheless appears to be harsh and unfair to have suspended him at all (even when discounted in reality by backdating) when Mr Christie was indisputably ignorant of the administration of the Substances. However, to approach the matter in that way is to slide into merits review or replacing the Decision with what the Court might have thought was the just outcome. All of the relevant authorities makes it clear that such an approach impermissible.
8. This potential error will be avoided by focusing on the question of whether the Decision lacks an evident and intelligible justification. The Court is clearly of the view that the Decision does not lack an evident and intelligible justification. The scheme of the Rules in a situation such as this is to deem Mr Christie to have been, irrespective of his ignorance of the administration of the Substance, responsible for the breach. In addition to being the rider, he was the trainer. The Committee clearly took the view that he could not avoid responsibility by pleading ignorance. That approach was not outside the permissible range of how the Committee might exercise its discretion in relation to suspending Mr Christie. That conclusion applies whether or not the Committee's decision in relation to Ms Cullen is also taken into account.
9. A telling way of testing the Court's conclusion is by offering an answer to the rhetorical coup de grace posed by Mr Schlicht in his oral submissions in reply for Mr Christie. Mr Schlicht submitted: The other way of looking at it, your Honour, is from the other end. What less could Mr Christie been involved in to have not incurred a suspension? He could not have been any less involved. We have full admissions from the owner. That is, dare I say it, your Honour, a black and white case.
10. It was within the permissible range of decision making for the Committee to have looked at the matter not by reference to Mr Christie's lack of involvement but rather by reference to the responsibility imposed upon him by the Rules as both the rider and, in practical terms, the trainer. Answering Mr Schlicht's point one could say Mr Christie might have been less involved had he exercised responsibility by asking Ms Cullen before he rode the Horse whether or not she had administered anything to the Horse in the days leading up to the Show. It was open to him to have done so. The matter might have had a very different outcome if, for example, he had asked Ms Cullen that question and she had not told him the truth. To approach the matter in this way is to do no more than demonstrate what the Committee appears to have taken into account, permissibly, that there may have been other things which Mr Christie could have done reflecting his responsibility for the Horse both under the Rules and in reality.
11. I should record that while not pleaded, it was faintly submitted in argument that to the extent the Committee had taken into account that Mr Christie was also the Horse's trainer, it had taken into account an irrelevant matter. The submission was not developed and it is sufficient to say that I do not accept it was an irrelevant consideration, particularly in relation to penalty. It was appropriate to recognise that Mr Christie had a greater connection with and responsibility for the Horse than if he had just been a casual rider.
12. Question 3 is answered "No".

Question 4: If "Yes" to question 3, should the Decision be quashed or set aside?

1. This question does not arise.

Question 5: Alternatively, and if "Yes" to question 1, was there apprehended or actual bias on behalf of Mr Capp by reason of the matters identified in paragraph 27 of the amended statement of claim?

1. Paragraph 27 of the amended statement of claim alleged: 27. Further and/or in the alternative, by reason of the facts that Timothy (aka "Tim") Bruce Lindeman Capp ("Capp"): (a) is and was at all material times the Vice President of the Defendant; (b) is and was at all material times the Chairman of the Defendant's Disciplinary Committee (defined as the Committee in the Rules); (c) is and was at all material times a member of the Executive Committee of Directors of the Defendant; (d) is not a veterinary surgeon; (e) has given opinion evidence that the prohibited substances affect the performance of the horse; PARTICULARS The opinion evidence is contained in paragraphs 5 and 6 of the Affidavit of Capp sworn 21 May 2015 ("the Capp affidavit") and filed in this proceeding. (f) was the official in charge of swabbing and taking of samples at the show and of the horse; (g) was the person who: (i) was involved in the investigation of the use of prohibited substances in the horse; (ii) prosecuted and/or was the moving force in respect of the laying of charges against the Plaintiff; (iii) laid the charges of breach of rules by the Defendant against the Plaintiff; (iv) liaised with the Plaintiff, coordinated and convened the disciplinary hearing; (v) was the presiding Chairman of the disciplinary hearing and heard and determined the proceedings at the disciplinary hearing, including the imposition of penalty against the Plaintiff; (h) had by reason of the above matters a conflict of interest.
2. Mr Capp's role in relation to the investigation and the Hearing is set out in paragraph [18] above. There was no dispute that with the exception of taking the swabs and undertaking the laboratory analysis, Mr Capp personally undertook, oversaw or procured every step in the process from selecting the Horse for testing at the Show through to chairing and conducting the Hearing and participating in making the Decision. In considering this part of Mr Christie's case it is important to record that no submission of actual bias, dishonesty or impropriety was, or could have been, made against Mr Capp. The challenge at this point of the argument depended upon Mr Christie's submission of apprehended bias on the part of Mr Capp by reason of his omni-competent role.
3. Mr Christie's submission was squarely founded on the recent decision of the High Court in Isbester v Knox City Council [2015] HCA 20 ("Isbester"). The issue in that case was whether a decision to destroy a dog taken by a committee of Knox City Council should be quashed because of the substantial involvement of a member of that committee both in the prosecution of civil charges concerning the dog and then in the decision of the committee as to the fate of the dog.
4. In Isbester, the Council officer concerned was one Ms Hughes, who was the Council's Co-ordinator of Local Laws. In paragraphs [3] to [10] of the judgment of the plurality, their Honours set out the facts of Ms Hughes' involvement. In summary, Ms Hughes was clearly the moving force in the preparation and conduct of a prosecution against the dog's owner in the Magistrate's Court and the subsequent convening of a Council committee, on which Ms Hughes sat, to determine whether or not the dog should be destroyed. She gave directions concerning the gathering of evidence before the Magistrate's Court hearing and the provision of further information for the committee hearing. She participated fully in the decision making process of the Council committee and agreed in cross-examination that she had played a major role.
5. The High Court accepted that the relevant principle for apprehended bias was that stated in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344 ("Ebner"), where it was said that "a judge is disqualified if a fair minded observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide".
6. Their Honours explained how the relevant principle was to be applied (citations omitted): 20. The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made. 21. The principle governing cases of possible bias was said in Ebner to require two steps to be taken in its application. The first requires the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. Where it is said that a decision-maker has an "interest" in litigation, the nature of that interest must be spelled out. The second requires the articulation of the logical connection between that interest and the feared deviation from the course of deciding the case on its merits. As Hayne J observed in Jia Legeng, essentially the fear that is expressed in an assertion of apprehended bias, whatever its source, is of a deviation from the true course of decision-making. 22. It was observed in Ebner that the governing principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision-making and decision-makers. It was accepted that the application of the principle to decision-makers other than judges must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making. The analogy with the curial process is less apposite the further divergence there is from the judicial paradigm. The content of the test for the decision in question may be different. 23. How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker. The principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised. The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision.
7. Having come to the conclusion that Ms Hughes "was certainly the moving force" (at [43]), their Honours went on to discuss the type of interest a participant in a decision might have that would lead to disqualification: 44. That leaves for consideration the opinion of the Court of Appeal that the disqualifying interests in Dickason and Stollery were of a kind particularly personal to the persons in question and that such an element is absent in the case of Ms Hughes. 45. It is true that Ms Hughes' role in this matter did not involve her at quite the same personal level as the manager in Stollery, who was subjected to, and affronted by, the alleged bribe; nor was she the target of abuse as in Dickason, which was directed to the District Chief Ranger. It may be accepted that these factors added another dimension to the level of involvement of those persons. It cannot, however, be said that this dimension accounted for the disqualification in those cases. The interest identified in Dickason and Stollery as necessitating disqualification was that of a prosecutor, accuser or other moving party. An interest of that kind points to the possibility of a deviation from the true course of decision-making. 46. A "personal interest" in this context is not the kind of interest by which a person will receive some material or other benefit. In the case of a prosecutor or other moving party it refers to a view which they may have of the matter, and which is in that sense personal to them. The interest of a prosecutor may be in the vindication of their opinion that an offence has occurred or that a particular penalty should be imposed, or in obtaining an outcome consonant with the prosecutor's view of guilt or punishment. It is not necessary to analyse the psychological processes to which a person in such a position is subject. It is well accepted, as the two cases referred to show, that it might reasonably be thought that the person's involvement in the capacity of prosecutor will not enable them to bring the requisite impartiality to decision-making. This is not to equate such a person with a judge.
8. Mr Christie submitted that the level of Mr Capp's involvement in the ASC's disciplinary process in this case was indistinguishable from the level of Ms Hughes' involvement in Isbester which led the High Court to conclude (at [50]) that "a fair minded observer might reasonably apprehend that Ms Hughes might not have brought an impartial mind to the decision …".
9. The ASC sought to meet the submission in two ways. First, as a matter of fact it contended that Mr Christie's characterisation of Mr Capp's role overstated Mr Capp's part in the proceedings. It was submitted that Mr Capp's presence at the Show was a random event and that in everything he did thereafter he was just "doing his job" and that much of what he did was administrative or ministerial. The ASC's second response was that, as a matter of law, successfully to challenge a decision of a domestic tribunal required actual bias to be demonstrated rather than only a reasonable apprehension of bias.
10. The ASC's factual submission can be dealt with in short compass. The fact that Mr Capp was "only doing his job" as chairman of the Committee and that some of what he did was administrative or ministerial in character is not to the point. All of that effort, undoubtedly diligently performed, drove the entire process. There can be no doubt that Mr Capp was the "moving force" and he conceded as much in cross-examination. As the High Court pointed out in paragraph [23] of Isbester (see paragraph [87] above), the hypothetical fair minded observer would be taken to have knowledge of the circumstances leading to the decision including all aspects of Mr Capp's involvement. The Court agrees that his role is factually and legally indistinguishable from that of Ms Hughes in Isbester.
11. The High Court dealt with a similar "only doing her job" submission in relation to Ms Hughes: 48. The Council submitted that the Court should not apply an automatic disqualification if it found that Ms Hughes' involvement gave her a relevant interest, and that the test in Ebner should be applied. It submitted that the test could not be met because (i) even if Ms Hughes had an interest, the primary judge had found as a fact that she did no more than diligently carry out her responsibility; and (ii) the decision was not made by her, but by her superior, Mr Kourambas. The first of these submissions might be relevant to an allegation of actual bias, but provides no answer to one of apprehended bias based on an interest in the decision. The second is relevant to the proposed notice of contention. For the reasons given in Dickason and Stollery, the participation of others does not overcome the apprehension that Ms Hughes' interest in the outcome might affect not only her decision-making, but that of others. The Court of Appeal was correct to approach the question on the basis that she played a material part in the decision. That is so even if Mr Kourambas was responsible as delegate for the decision. 49. The majority reasons in Ebner should not be understood to exclude cases of the kind here in question from the application of the principle by the test there stated. The test directs attention, as a first step in cases where apprehended bias is alleged, to the critical question of the decision-maker's interest. The difference in the application of the test is that in cases like the present one that concern incompatibility of roles, once the interest is identified as one which points to a conflict of interest, the connection between that interest and the possibility of deviation from proper decision-making is obvious.
12. The same reasoning applies to answer the ASC's factual response in this case. There is an additional element which fortifies the Court in the conclusion which it has reached on this point. Among the information which the hypothetical fair minded observer would have to take into account would be the fact that, under the Rules, the Committee only had to comprise three members. It was not a situation where Mr Capp had to sit as a member of the Committee. No principle of necessity could be invoked to justify Mr Capp's participation in the hearing (see the reference to this principle in Isbester (at [35]).
13. The fact that Mr Capp participated in the Hearing when he did not have to would, when taken with the totality of his other involvement in the matter, only reinforce the fair minded observer's reasonable apprehension of the possibility of a lack of impartiality. To adopt the High Court's language of "interest", Mr Capp's interest as moving party might be expressed as an interest in seeing the vindication of the process which he had initiated, overseen and procured at every stage. That is sufficient to give rise to "the possibility of a deviation from the true course of decision making" (Isbester at [45]) so as to warrant the Decision being quashed.
14. The ASC's legal answer to this part of Mr Christie's case was to submit that in the case of domestic tribunals actual bias had to be shown rather than merely establishing a reasonable apprehension of bias. The ASC's written submissions asserted that this proposition was decided in Bowen and had not been overruled by Isbester. Furthermore, it was submitted that Bowen had been applied to this effect in this Court by Ball J in Young v New South Wales Radio Yachting Association Inc [2013] NSWSC 383 ("Young").
15. In neither its written submissions nor in the course of Mr Gor's address was the ASC able to point to a particular passage in Bowen which in terms expressed the proposition that the test for domestic tribunals was one of actual bias. That is unsurprising. As has been demonstrated in the analysis of Bowen set out in paragraphs [47] to [55] above, the case sought to be made in Bowen was one of actual bias or real mala fides. The court was dealing with a submission that apprehended or assumed bias was sufficient. So much is apparent from the judgment of Dixon J, where his Honour said (at 630): The last matter relied upon as invalidating the decisions is of a more serious kind. It is that the Executive and Dougherty were both prosecutors and judges and animated by such intensity of feeling that they were disqualified by bias.
16. Dixon J disposed of that aspect of Bowen in terms that we would today recognise as encompassing an allegation of actual bias (at 361): It is not in accordance with the principles of natural justice to have present as a member of the tribunal a person who has promoted the charge and supports it as the prosecutor or one who is invincibly biased against the accused as a result of his participation in the controversy, and this was the case with Dougherty. If a person disqualified by such considerations sits with a tribunal takes part in the decision, that is enough to vitiate it.
17. Latham CJ acknowledged the possibility of what his Honour referred to as "probable" bias as a vitiating factor. However his Honour did not decide that part of the case by reference to the concept of bias in terms. His Honour said (at 617), "But on this part of the case I prefer to rest my decision upon the fact that the decision of the learned judge was based, not upon any finding of actual or probable bias, but upon the fact that Dougherty was "prosecutor"".
18. Williams J, in assessing the application of the principle that it was contrary to natural justice for a person to be both prosecutor and judge at the same time did analyse it in terms of bias and cited authority to the effect that what he described as "assumed bias" extended beyond the judicial setting (at 639): In Frome United Breweries Co. Ltd. V. Bath Justices (1926) AC 586 at p590, Viscount Cave L.C. said, "My Lords, if there is one principle which forms an integral part of the English law, it is that every member of a body engaged in a judicial proceeding must be able to act judicially; and it has been held over and over again that, if a member of such a body is subject to a bias (whether financial or other) in favour of or against either party to the dispute or is in such a position that a bias must be assumed, he ought not to take part in the decision or even to sit upon the tribunal. This rule has been asserted, not only in the case of courts of justice and other judicial tribunals, but in the case of authorities which, though in no sense to be called courts, have to act as judges of the rights of others." It will be seen that bias need not be proved in fact. It is sufficient if the person who is to sit as judge is in such a position that a bias must be assumed. It is necessary not only that justice should be seen to be done but that it should appear to have been done. It is not therefore necessary to prove bias in fact, it is sufficient if a litigant might reasonably believe that the tribunal was biassed (Cottell v Cottell (1939) 2 All ER 535).
19. Just as Bowen does not stand for the proposition for which the ASC contends, neither does Young. Justice Ball's application of Bowen was, with respect, entirely apt because the allegation in Young was one of actual bias. So much is apparent from his Honour's description of Mr Young's complaint (at [50]): Second, he was not given a fair hearing because Mr Bicknell and Mr Jarvis, in particular, participated in the decision of the Committee in circumstances where they harboured a personal animosity towards Mr Young, where they were involved in some of the events in question so that they were effectively witnesses for the prosecution and where they had prejudged the matter.
20. As with Bowen, the case in Young was not framed in terms of reasonable apprehension of bias. Ball J, after citing Bowen and considering the evidence before him, came to the conclusion (at [60]) that he did "not think that the evidence establishes that Mr Jarvis and Mr Bicknell were "invincibly biased" against Mr Young to use the words of Dixon J". Nothing in Young addresses or supports the ASC's proposition that only actual bias is sufficient to vitiate the decision of a domestic tribunal. Ball J did not have to consider a case of anything less than actual bias.
21. Finally, the Court is unable to discern anything in Isbester which supports the ASC's submission. The judgment of plurality and the concurring judgment of Gageler J addressed the application of the principle concerning reasonable apprehension of bias in entirely general terms. However, in doing so, it should be noted that the plurality made the more nuanced and, with respect, unimpeachable observation at [22] that the content of the test for reasonable apprehension of bias would vary in accordance with the type of the decision and the nature of the decision maker: 22. It was observed in Ebner that the governing principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision-making and decision-makers. It was accepted that the application of the principle to decision-makers other than judges must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making. The analogy with the curial process is less apposite the further divergence there is from the judicial paradigm. The content of the test for the decision in question may be different.
22. Taking this observation of the plurality into account, the Court notes that the ASC's submission did not go beyond the contention that actual bias was required in the case of domestic tribunals. In the light of the authorities to which the Court has referred, that submission is wrong. The ASC did not go on to develop a submission that there was anything about the particular circumstances of the Committee, the Hearing and the Decision that warranted the content of the test differing in some way so as to minimise the scope for the application of the test of reasonable apprehension of bias.
23. Since the ASC's factual and legal challenges to Mr Christie's reliance on Isbester both fail, question 5 is answered "Yes".

Question 6: If "Yes" to question 5, has Mr Christie waived the right to rely on the matters referred to in question 5?

1. In Bowen, Latham CJ adverted to the possibility that a party could waive its objection to a decision maker who might otherwise be disqualified (at 618): An objection of disqualification on the ground of bias may be waived (Dickason v Edwards (1910) 10 CLR (at p 261)). Submission without objection to the jurisdiction, with knowledge of the facts subsequently alleged to establish bias, is prima-facie evidence of waiver.
2. The ASC submitted that because Mr Christie had communicated and dealt with Mr Capp throughout the period from the testing of the Horse up to and including the Hearing, Mr Christie had full knowledge and was aware of all the facts upon which an objection to Mr Capp could be based. It said that, in those circumstances, Mr Christie must be taken to have waived any right to object to Mr Capp participating in the Hearing because Mr Christie raised no objection at the time of the hearing.
3. Mr Christie was correct to take issue with this submission.
4. The issue of waiving a right to object to a decision maker was recently considered by the New South Wales Court of Appeal in Brown Brothers v Pittwater Council [2015] NSWCA 215. McColl JA (Macfarlan JA and Tobias AJA agreeing) said (emphasis added): 142. However, a litigant, particularly one with legal representation, who is aware of the circumstances constituting a ground for objection on the basis of apprehended bias is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier circumstances, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, it will likely be held that such a party has waived the right subsequently to object. 143. The facts which constituted the basis for the reasonable apprehension of bias should have been apparent to those appearing for the appellants once they were aware the withdrawal application was listed before her Honour or, at least, during the hearing. Even if it be accepted that the primary judge was only being asked to form a view about the arguability of the 2007 Consent Orders, the fact her Honour had clearly formed a view about them and Mr Wayne Brown's credit in the 2009 contempt proceedings was sufficient to indicate to the fair-minded lay observer that she may be unlikely to form a different view in the 2011 contempt proceedings. In my view the appellants waived their right to complain about that matter on appeal by failing to object to her Honour continuing to hear the withdrawal application.
5. There was no waiver by Mr Christie in this case for three reasons: 1. Mr Christie's legal advisers were thwarted from the possibility of making an objection because when they inquired of Mr Capp, in writing, who would comprise the Committee, they were expressly denied that information by him (see paragraph [20] above). 2. Mr Christie was legally unrepresented at the Hearing. As is implicit in the extract from McColl JA's judgment in paragraph [108] above, the law will be slower to impart a waiver when, at the time it is said an objection should have been taken, the putative objector did not have legal representation. That proposition is supported by the learned authors in M. Aronson and M. Groves, Judicial Review of Administrative Action, Lawbook Co, 2013 at [7.400], p 486. 3. There is no evidence, and it was not put to Mr Christie in cross-examination, that Mr Christie knew, or might even have thought, that he was entitled to object to Mr Capp participating when Mr Christie arrived at the Hearing to find Mr Capp presiding.
6. Question 6 is answered "No".

Question 7: alternatively and if "Yes" to question 1, was there possible or apprehended or actual bias on behalf of the Committee in respect of penalty by reason of the Committee having pre-determined the question of penalty to be imposed upon Mr Christie prior to Mr Christie having made any submissions?

1. Mr Christie submitted that the transcript disclosed that the Committee had predetermined Mr Christie's penalty such that the Court would find that the Decision should be vitiated on the ground of there being a reasonable apprehension of bias. Mr Schlicht properly eschewed any suggestion that a submission of actual bias was being made.
2. The entirety of the transcript of the Hearing in relation to penalty is reproduced in Schedule B to these reasons. However, it is convenient to reproduce here the short exchange at the outset of that part of the Hearing upon which Mr Christie relies: ROD CULLEN: So first question is there any discretion in those rules? JIM STEVENSON: I think the answer is yes and we took it into consideration. TIM CAPP: Yeah we will take that into consideration yes. GRAHAM SHIELDS: We have taken that into consideration. TIM CAPP: We have taken that into consideration.
3. The ASC submitted that, taking that exchange in context, it is not possible to conclude that there was any predetermination of penalty. The Court accepts the ASC's submission.
4. The fundamental reason for accepting the ASC's submission is that the exchange fastened upon by Mr Christie is remarkably unclear. Mr Cullen's question ".. is there any discretion in those rules?" comes immediately after Mr Capp's introduction where he says: Therefore, I suppose now I offer you the chance to put forward a submission on penalty before we make a decision on what submission of penalty is. So, if you're not familiar with, which I think I sent you information on, that is the standard first offence level 2 for prohibitive substances which may or could have affected the horse in question - so that's what's in the rules, that we can put forward.
5. It is not entirely clear whether Mr Cullen's reference to "discretion in those rules" is limited only to the question about discretion in relation to penalty or also in relation to breach. While a lawyer with an understanding of the Rules would readily appreciate that there was no discretion in relation to breach once it was found that a prohibited substance had been administered to a horse, as is developed further below it must be remembered that everyone involved at the Hearing was not a lawyer. In the Court's view there is a real possibility that at least the beginning of this exchange was at cross purposes.
6. Even if that analysis is wrong and the exchange is confined to a discussion of penalty, the alternation between the past and future tense in relation to taking any discretion into consideration only adds to the confusion.
7. In seeking to understand that exchange in context, it is essential to bear in mind that all those involved were lay people and each of them was in a thoroughly unfamiliar situation. Mr Capp conceded as much a few lines later when he said to Mr Cullen "We are not used to it either". In making these observations I wish to emphasise that no disrespect is intended to any of the participants. Transcripts regularly disclose that even the submissions of the most eloquent counsel and the observations of experienced judges will fall short of the standard of lapidary perfection. It would be reading far too much into the relevant exchange to make a finding of predetermination of penalty.
8. Finally, the Court is fortified in its conclusion by a consideration of the whole of the transcript of the Hearing in relation to penalty and the delivery of the ultimate decision. That consideration precludes any finding of predetermination on the question of penalty.
9. Question 7 is answered "No".

Question 8: If "Yes" to either question 5 and "No" to question 6 or question 7, should the decision by quashed or set aside?

1. Question 5 having been answered "Yes" and question 6 having been answered "No", the answer to this question is "Yes".

Conclusion

1. Neither party submitted there was any material difference between an order quashing the Decision or setting it aside. The Court will make an order that the Decision is quashed (see Isbester at [50] and [71]). The parties will be given an opportunity to address on costs. SCHEDULE A - Christie v Agricultural Societies - ASC Rules (17.5 KB, pdf) , SCHEDULE B - Christie v ASC - 2015-98489 (28.2 KB, pdf) 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: 11 August 2015