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[2024] QCA 76
General information, not legal advice.
Court of Appeal (Qld)
2024-05-07
Morrison JA and Fraser AJA and Williams J
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Queensland Racing Integrity Commission v Endresz; Racing Queensland Board v Endresz [2024] QCA 76
PARTIES: In Appeal No 769 of 2023: / QUEENSLAND RACING INTEGRITY COMMISSION / (appellant) / v / ALLAN PAUL ENDRESZ / (first respondent) / EZYBONDS (PACIFIC) / (second respondent) / JEFFREY SIMPSON / (third respondent) / ROBYN SIMPSON / (fourth respondent) / RACING QUEENSLAND BOARD / (fifth respondent) / In Appeal No 776 of 2023: / RACING QUEENSLAND BOARD / (appellant) / v / ALLAN PAUL ENDRESZ / (first respondent) / EZYBONDS (PACIFIC) / (second respondent) / JEFFREY SIMPSON / (third respondent) / ROBYN SIMPSON / (fourth respondent**)** / QUEENSLAND RACING INTEGRITY COMMISSION / (fifth respondent)
FILE NO/S: Appeal No 769 of 2023 / Appeal No 776 of 2023 / SC No 6122 of 2021
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT: Supreme Court at Brisbane – [2022] QSC 262 (Burns J)
DELIVERED ON: 7 May 2024
DELIVERED AT: Brisbane
HEARING DATE: 7 February 2024
JUDGES: Morrison JA and Fraser AJA and Williams J
ORDERS: Dismiss the appeals in Appeal Nos 769 of 2023 and 776 of 2023.Refuse the applications by the Commission in Appeal Nos 769 of 2023 and 776 of 2023.In both appeals, the parties have leave to make submissions about costs in accordance with the Practice Direction.
CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – EXCLUSION OF PROCEDURAL FAIRNESS – EFFECT OF RIGHT OF APPEAL – where the appellants are statutory bodies responsible for, among other things, making decisions about disciplinary matters relating to thoroughbred racing – where a prohibited substance was detected in a sample taken from a racehorse following its running in a race – where the racehorse was disqualified pursuant to the Australian Rules of Racing (“AR”), which form a contract between all parties to a race – where the owners of the racehorse (the first to fourth respondents in both appeals) were not provided with notice of the hearing nor an opportunity to be heard – where the primary judge found that, although the ARs include a provision relating to a right of appeal, upon their proper construction, the provision did not apply to the owners in the present case – where the primary judge therefore implied a term into the contract which required the appellants to afford the owners procedural fairness – whether the primary judge was correct to find that, on their proper construction, the ARs did not confer a right of appeal on the owners – whether, notwithstanding the possibility that the owners had a right of appeal, the appellants still had an obligation to afford the owners natural justice at first instance / Racing Act 2002 (Qld), s 113(3) / Racing Integrity Act 2016 (Qld), s 240, s 241, s 242, s 243 / Statutory Instruments Act 1992 (Qld), s 9 / Calvin v Carr [1980] AC 574; [1979] UKPC 1, distinguished / Commissioner of Police v Tanos (1958) 98 CLR 383; [1958] HCA 6, applied / Dickason v Edwards (1910) 10 CLR 243; [1910] HCA 7, considered / Lewis v Sergeant Riley (2017) 96 NSWLR 274; [2017] NSWCA 272, applied / McClelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759; [2002] NSWSC 470, considered / Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50, applied / Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1; [2012] HCA 46, considered / R v Brewer; Ex parte Renzella [1973] VR 375; [1973] VicRp 36, applied / Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22, applied
COUNSEL: O P Holdenson KC, with P H Nevard, for the appellant in Appeal No 769 of 2023 and for the fifth respondent in Appeal No 776 of 2023 / R J Anderson KC for the appellant in Appeal No 776 of 2023 and for the fifth respondent in Appeal No 769 of 2023 / P J Dunning KC, with K A McGree, for the first to fourth respondents in Appeal No 769 of 2023 & Appeal No 776 of 2023
SOLICITORS: Minter Ellison for the appellant in Appeal No 769 of 2023 and for the fifth respondent in Appeal No 776 of 2023 / Clayton Utz for the appellant in Appeal No 776 of 2023 and for the fifth respondent in Appeal No 769 of 2023 / Gadens for the first to fourth respondents in Appeal No 769 of 2023 & Appeal No 776 of 2023
MORRISON JA: I agree with the reasons of Fraser AJA and the orders his Honour proposes.
FRASER AJA: The Racing Queensland Board and the Queensland Racing Integrity Commission appeal against a declaration ordered by the primary judge in favour of the owners of a racehorse that the disqualification by the Commission of the horse from its first placing in a race is void and of no effect.
The circumstances out of which the litigation arose are summarised in the primary judge’s reasons for judgment:
“[1]There was a thoroughbred race meeting at the Gold Coast on 11 January 2020. A gelding by the name of Alligator Blood was entered in Race 6. He finished in first place and was declared the winner. The prize money payable to a syndicate comprised of his owners was considerable – almost $1 million – although nothing was paid pending analysis of a urine sample collected from the horse following the race.
[2]That seems to have taken some time but within a couple of months it was publicly announced that a prohibited substance had been detected in the post-race sample. In due course, the trainer was charged with a contravention of the governing rules for bringing a horse with a prohibited substance to a racecourse for the purpose of participating in a race.
[3]A stewards’ inquiry into that charge was “finalised” after a hearing on 23 July 2020. The trainer was found guilty, fined $20,000 and, by force of the governing rules, the horse was disqualified from the race. In the result, the placings for the race were “amended” and the prize money that would otherwise have been payable to the owners was lost.
The owners were not given any formal notice of the stewards’ inquiry or the hearing of the charge against the trainer, let alone afforded an opportunity to be heard by the stewards, and complain that they should not have been kept out of these processes given the potential impact on them if their horse was disqualified. They maintain that they have been denied natural justice and ask the court to declare that the disqualification is void and of no effect for that reason.
On the other hand, the respondents, each of whom was concerned in one way or the other with the management and administration of the race in question, argue that the governing rules sufficiently afforded natural justice to persons who might be affected by the stewards’ inquiry. They contend that this required the stewards to deal in the first instance with the trainer in his personal capacity and as representative of the owners and, thereafter, the interests of the owners were protected by the existence of a full right of appeal against the disqualification.
The central question for determination therefore is whether the stewards ought to have afforded natural justice to the owners, that is to say, by providing the owners with notice of the hearing and an opportunity to be heard.”
[4]The race was conducted under the Australian Rules of Racing (“AR”).1 The AR were made by Racing Australia Ltd, a company limited by guarantee. As the primary judge held, the AR embody a contract: they include a “standing offer to persons intending to participate in the industry to the effect that, if they choose to participate, then they are agreeing to be bound to comply with the prescribed rules” and the AR “therefore create contractual rights and obligations and apply to all races held under the management or control of the Board.”2
[5]The AR also have a public character, both because public bodies exercise statutory functions under the rules and because rules of racing made under statute supplement and confirm at least some of the rules in the AR. The primary judge explained that the Racing Queensland Board (“Racing Queensland”) was established by the Racing Act 2002 (Qld)3 “as the control body for, relevantly, thoroughbred racing in Queensland” and because of its statutory authority “is recognised by Racing Australia Limited, a company limited by guarantee, as the principal racing authority for Queensland and, like its controlling counterparts in the other States and Territories of Australia, [Racing Queensland] agreed to abide by (and enforce) a national regulatory scheme, that is to say, the Australian Rules of Racing”.
[6]The primary judge also explained that the Queensland Racing Integrity Commission (“the Commission”) is established by the Racing Integrity Act 2016 (Qld) and its functions include: “licensing animals and participants; conducting investigations into breaches of the [Racing Integrity Act] as well as the Racing Act 2002 (Qld); overseeing the integrity of race meetings, including matters preliminary to race meetings; managing the testing of things, including developing or adopting procedures about the way things for analysis are to be taken and dealt with; and making decisions about disciplinary matters” (footnotes omitted). Those functions comprehend making decisions of the kind made by the stewards in this case. The stewards are appointed by the Commission.
The primary judge held:It is an implied term of the contract created by the AR that the stewards are obliged to observe the principles of natural justice by providing notice of their hearing to the owners and an opportunity to be heard before any findings were made.The stewards’ hearing was flawed because they did not provide to the owners that required notice of the stewards’ hearing or an opportunity to be heard.A consequence of that procedural breach is that the disqualification of the owners’ horse resulting from the stewards’ findings was void.
One of the steps in the primary judge’s reasoning for holding that the AR contain the implied term in (a) is that, upon the proper construction of the rule which creates rights of appeal against penalties imposed by the stewards, that rule does not confer upon the owners a right to appeal against the disqualification of their horse from the race. Racing Queensland and the Commission contend that the primary judge erred in holding that the owners do not have such a right to appeal and, for that reason, erred in finding that the AR include the implied term. The owners submit that the primary judge’s analysis is correct. They also contend that, if, contrary to the primary judge’s conclusion, the AR give them a right to appeal from the disqualification, that does not exclude the stewards’ obligation to afford the owners natural justice at first instance.
The provision under which the horse was disqualified is rule 240(1). Rule 240, which is in Part 11 of the AR, provides:
“(1)Subject to subrule (3), if a horse is brought to a racecourse and a prohibited substance on Prohibited List A and/or Prohibited List B is detected in a sample taken from the horse prior to or following its running in any race, the horse must be disqualified from any race in which it started on that day.
(2)Subject to subrule (3), if a horse is brought to a racecourse for the purpose of participating in a race and a prohibited substance on Prohibited List A and/or Prohibited List B is detected in a sample taken from the horse prior to or following its running in any race, the trainer and any other person who was in charge of the horse at any relevant time breaches these Australian Rules.
(3)If:
(a)testosterone (including both free testosterone and testosterone liberated from its conjugates) above the mass concentration set out in paragraph 7(a) or (b) of Schedule 1, Part 2, Division 3 (as applicable); or
(b)hydrocortisone above the mass concentration set out in paragraph 6 of Schedule 1, Part 2, Division 3,
is detected in a sample taken from a horse prior to or following its running in any race, a PRA or the Stewards retain a discretion to find that a breach of subrule (1) or (2) has not been committed if, on the basis of scientific and analytical evidence available to them, they are satisfied that the level in the sample was of endogenous origin and/or as a result of endogenous activity.”
“(1)Subject to subrule (2) and the Rules, a person to whom a decision relates may appeal to a PRA in respect of:
(a)a penalty imposed by a PRA or the Stewards; or
(b)a restriction imposed by a PRA or the Stewards in relation to a horse in which the person has an interest.
(2)There is no right of appeal against a decision of the Stewards in relation to:
(a)a protest against placed horses arising out of an incident or incidents occurring during the running of a race;
(b)a restriction imposed on a horse which provides that the horse is required to pass a specified trial, test or examination;
(c)the eligibility of any horse to run in any race;
(d)a declaration under AR 204(1).”
It is useful first to discuss four aspects of rule 280(1).
First, rule 280(1) creates a right to appeal to a “PRA”. The definition of “Principal Racing Authority (PRA)” in rule 2 of the AR identifies such an entity in each of the States and Territories. An effect of the definition is that the PRA in Queensland is Racing Queensland, but the definitions of words and phrases in rule 2 apply in the interpretation of the AR “unless the context requires otherwise”. The statutory functions of the Commission encompass the role given to the PRA by rule 280(1). It is common ground amongst the parties that the Commission, rather than Racing Queensland, must be regarded as the PRA for the purposes of that rule.
Secondly, the ordinary meaning of “person” in rule 280(1) encompasses each individual owner of the horse, and the inclusive definition of “person” in rule 2 expressly includes any “Syndicate” which owns a horse. The definition of that word includes a combination of more than one but no more than 20 persons. In this case, one of the owners, Mr Endresz, is the manager of a Syndicate constituted by the owners.
Thirdly, the owners fulfil the stipulated standing requirement for an appeal in respect of a disqualification of their horse that they are persons “to whom a decision relates”. The nature of the stewards’ decision is in issue, but they certainly decided at least that the conditions expressed in rule 240(1) were fulfilled. The owners contend that, upon the stewards making that decision the rule operated automatically to disqualify the horse. Racing Queensland and the Commission contend that the stewards made that decision and the stewards also imposed the mandatory penalty of disqualification of the horse in the exercise of powers conferred upon them by preceding rules of the AR. Upon either view, the necessary relationship between the owners and the decision is established by the circumstances that each of the conditions expressed in rule 240(1) which the stewards decided was satisfied (notably including the condition that a prohibited substance was detected in a sample taken from the horse) directly concerns the owners’ horse, and the consequentially mandatory penalty was disqualification of the owners’ horse. The existence of the necessary relationship between the owners and the stewards’ decision is put beyond any shadow of doubt by the combined effect of those circumstances and the additional circumstances that, although the owners’ horse initially appeared to become entitled to a prize of $978,945.56 upon it being placed first in the relevant race,4 the subsequent disqualification of the horse deprived the owners of what otherwise would have been their entitlement to that substantial prize.5
“When an appeal has been instituted against a disqualification or suspension imposed under these Australian Rules, the PRA concerned and any persons holding powers delegated by a PRA under AR 15(d) may, on terms they think fit, suspend or stay the operation in whole or in part of any restrictions upon disqualified or suspended persons and disqualified horses until the determination of the appeal.”
Accepting that this provision refers to the effect of disqualifications under rules other than rule 240(1), that does not support a construction of rule 280(1) which would exclude an appeal from a disqualification of a horse under rule 240(1). In the first place it is difficult to see how a rule governing the circumstances in which a stay can be granted pending appeal could narrow what is otherwise the proper construction of the rule creating the right of appeal. It is also wholly unsurprising that rule 282 does not confer a power to stay a disqualification under rule 240(1) itself, in circumstances in which any such disqualification necessarily must have taken effect before a stay could be granted.
It is necessary next to discuss the primary judge’s conclusion that rule 280(1) could not confer a right of appeal upon an owner when the owner does not have standing to seek review under Chapter 6 of the Racing Integrity Act. Section 242 in Chapter 6 of the Racing Integrity Act conditions the right of a person to apply for a review of, or an appeal against, an “original decision” on there having been an “internal review” of that decision. Section 243(1) provides that an “interested person for an original decision may apply to the commission for an internal review of the decision”. The same section requires the application to be in an approved form, to include enough information to enable the Commission to decide the application, and (subject to the power of the Commission to extend time for making an internal review application) to be made to the Commission within 14 days after the day the person is given an information notice about the decision or, if no such notice is given, the day the person otherwise became aware of the decision. The expression “interested person” in s 243 is defined in s 241 in terms which are not submitted to comprehend any owner of a horse which has been disqualified from a race.
Section 241 provides:
“An interested person for an original decision is—
(a)if the original decision is a decision to seize or forfeit an animal or other thing—
(i)a person who has been given, or is entitled to be given, an information notice about the decision; and
(ii)if the decision relates to an animal—the person in charge of the animal; or
(b)if the original decision is a decision other than to seize or forfeit an animal or other thing—
(i)for a decision about the grant or refusal of a licence—the applicant for the licence; or
(ii)for a decision to give an animal welfare direction—
(A)a person who has been given, or is entitled to be given, an information notice about the decision; and
(B)the person in charge of the animal the subject of the animal welfare direction; or
(iii)for a decision prescribed by regulation—the person prescribed by regulation for the decision; or
(iv)otherwise—the licence holder adversely affected by the original decision.”
(It is not submitted that any regulation under (b)(iii) prescribed a decision under rule 240(1) of the AR or in regulation identified a person who might be regarded as an “interested person” for such a decision).
“(a)refuse to grant or renew a licence;
(b)take disciplinary action relating to a licence;
(c)censure the holder of a licence;
(d)take an exclusion action against a person;
(e)impose a monetary penalty on a person;
(f)impose any other non-monetary penalty on a person;
(g)seize, under this Act or a warrant, an animal or other thing, unless the seizure was in a circumstance mentioned in section 184(1)(a) or (b);
(h)forfeit, under section 187(1), an animal or other thing;
(i)give an animal welfare direction;
(j)another decision prescribed by regulation*.*”8
Disqualification of a horse under rule 240(1) of the AR is not an “original decision”. Whilst disqualification of a horse from a race or races is a “penalty” for the purposes of the AR, a disqualification of a horse under rule 240(1) cannot be regarded as a monetary or non-monetary penalty “on a person” in terms of paragraphs (e) or (f) of the definition of “original decision”. No party contends that the disqualification of the owners’ horse in this case is an “original decision”.
The owners rely upon section 113(3) of the Racing Act. Section 113(3) provides:
“If there is an inconsistency between any of the following (each an instrument) and a control body’s rules of racing, the instrument prevails to the extent of the inconsistency –
(a)this Act;
(b)the Racing Integrity Act;
(c)a policy of the control body;
(d)if [the Commission] has a standard about a matter to which the rules of racing relate – the standard.”
“Regulations made under s 50410 must be ‘not inconsistent with’ the Migration Act. Even without that expressed constraint delegated legislation cannot be repugnant to the Act which confers the power to make it. Repugnancy or inconsistency may be manifested in various ways. An important consideration in judging inconsistency for present purposes is ‘the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned’. A grant of power to make regulations in terms conferred by s 504 does not authorise regulations which will ‘extend the scope or general operation of the enactment but [are] strictly ancillary’. In considering whether there has been a valid exercise of the regulation-making power ‘[t]he true nature and purpose of the power must be determined’.”
Section 113(3)(b) of the Racing Act does not have direct application to the AR. The only “rules of racing” of relevance in this matter are the “Local Rules (Thoroughbred Racing)”.11 The Local Rules are a statutory instrument,12 having been made by Racing Queensland as an aspect of its function as a “control body” for the thoroughbred racing code13 and in the exercise of its statutory power to make “rules of racing”.14 Unlike the Local Rules, the AR are not made by Racing Queensland. They are not “a control body’s rules of racing” or a statutory instrument. That is so even though the Commission and Racing Queensland exercise aspects of their public functions in fulfilling roles they have consensually assumed under the AR.
It is arguable that the Local Rules incorporate rules 240 and 280 of the AR as provisions of the Local Rules, and in that indirect way have the effect of a statutory instrument.15 Whether or not that is the case, however, the real question is whether the identified provisions of the Racing Integrity Act are inconsistent with the creation by rule 280(1)(a) of a right by owners of a horse to appeal to the Commission in respect of the disqualification of the horse under rule 240(1). Neither a contractual right nor a right under a statutory instrument can survive if the right is inconsistent with a valid statute of the State. Whether there is any such inconsistency is a question of statutory construction. In that exercise, assistance may be derived by analogy from Gleeson CJ’s explanation in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom16 about the process of construction involved in deciding whether there is any inconsistency between different powers under the same Act:
“…[t]he provisions of s 501(2), on the one hand, and ss 200 and 201 on the other, are not repugnant, in the sense that they contain conflicting commands which cannot both be obeyed, or produce irreconcilable legal rights or obligations. They create two sources of power, by which a person in the position of the respondent may be exposed, by different processes, and in different circumstances, to similar practical consequences. There is nothing novel, or even particularly unusual, about that. It does not of itself mean that only one source of power is available. If, however, by reason of the apparent exhaustiveness with which one provision, or group of provisions, dealt with the position of a person such as the respondent, there were an incompatibility of a kind that required a conclusion that only one provision or group of provisions was intended to apply, then that would be a reason for accepting the respondent's contention. Again, if one provision, or group of provisions, were directed with particularity to the case of a person such as the respondent, and the other were merely of general application, the same could be said.”
That analysis is consistent with the first four sentences in the quoted passage from French CJ’s judgment in Plaintiff M47/2012 upon which the owners rely. The last two sentences are directed to the validity of subordinate legislation and the owners accept that rule 280 of the AR does not take effect as subordinate legislation, even if it does take effect as a statutory instrument.
In Lewis v Sergeant Riley,17 Basten JA invoked Gleeson CJ’s analysis when explaining why there was no inconsistency or repugnancy between different statutory provisions of the same legislature, each of which conferred a right of appeal on a person who was the subject of a particular kind of order. The owners’ argument for inconsistency is weaker in this case, in which the decisions against which internal review may be sought under the Racing Integrity Act do not include the decision in respect of which the owners may bring an appeal under rule 280(1) of the AR.
No provision of the Racing Integrity Act expressly invalidates the right of appeal given by rule 280(1)(a) or any right of appeal under the AR. Upon the face of the AR and the Racing Integrity Act, there is no structural or linguistic inconsistency between them. The overall effect of those provisions is simply that, in circumstances in which the Racing Integrity Act does not confer upon the owners a statutory right of internal review of the disqualification, the Commission has used its statutory powers to enter into contracts or agreements and to do anything else necessary or convenient for its functions by agreeing, or at least facilitating an agreement amongst the other participants, that the owners of horses disqualified under rule 240(1) have a contractual right of appeal under rule 280(1).
Whilst the Act and AR confer rights of the same general nature – an internal appeal to the same body – they confer those rights upon differently described classes of people in respect of differently described decisions. There may be invalidating inconsistency, at least in some cases, where there is an overlap between decisions under the AR amenable to appeal and decisions under the Act amenable to review, and between classes of persons entitled to rights of appeal under the AR and rights of review under the Act. There is no overlap of either kind in relation to the right of the owner of a horse to appeal in respect of the disqualification of the horse under rule 240(1). There is also no indication in the Racing Integrity Act that the rights it confers to apply to the Commission for an internal review of an original decision exhaustively deal with all rights to appeal to the Commission or with all classes of persons who may bring some such appeal. It cannot be said that the relevant provisions of the are directed with such specificity to the rights of persons in the position of the owners as to suggest any incompatibility between those provisions and the right to appeal to the Commission under rule 280(1). Nor does anything else in the Act justify a conclusion that there is an inconsistency between that Act and the right of appeal conferred upon the owners by rule 280(1)(a) of the AR.
“In Australia, the preferable view is that natural justice comes to operate in private clubs and associations by the rules of those private organisations being construed on the basis that fair procedures are intended, but recognising the possibility that express words or necessary implication in the rules could exclude natural justice in whole or part. The judgments in Dickason v Edwards support that view. Further, in Australian Workers’ Union v Bowen (No 2) (1948) 77 CLR 601 the statement of O'Connor J in Dickason v Edwards to that effect … was approved by Latham CJ at 617,28 and also by Dixon J (with whom Starke J agreed) at 631. Williams J at 63829 said:
‘But the principles of natural justice cannot override the express provisions of the rules, and it could not be “contrary to the essence of justice” for the executive council honestly and bona fide to exercise all its powers and duties under the rules’.”
It may remain an open question whether the common law informs the construction of legislation in an analogous way where a public official exercising legislative power embarks upon an adjudication potentially affecting the interests of an individual, or whether the common law instead directly imposes an obligation to observe natural justice unless it is excluded by the legislation.30 In the case of domestic tribunals, support for something akin to the second approach may be derived from the circumstance that this aspect of the common law applies not only in relation to contractually enforceable obligations but also in the absence of an enforceable consensus (at least where a recognised right may be prejudiced by an adjudication).31 In this case, however, there is a contractually enforceable consensus; no ground of appeal challenges the primary judge’s finding that the AR create contractual rights and obligations applicable in the relevant race. It does not seem to me that a preference for one legal theory over the other would produce a different result, but having regard to the authority discussed in the preceding paragraph it is appropriate to adopt the approach that the common law informs the construction of a contractually enforceable authority to adjudicate. To take into account the legal milieu in which a contract is made in this way is a conventional approach to contractual construction.
The Commission and Racing Queensland argue that the AR, construed as a whole, appropriately provide natural justice to the owners of horses disqualified under rule 240(1) by the dual mechanism of (1) providing to the trainer and any other person in charge of the horse at the relevant time an opportunity to be heard in response to a charge of a breach of rule 240(2) of the AR and (2) providing the owners with a full right of appeal on the merits under rule 280(1)(a).
As to the first limb of the argument, reliance is placed upon the provisions of the AR that make it mandatory for owners of a horse engaged in racing regulated by the AR to engage a trainer, and provisions that only horses trained by licensed trainers can run in a race, the trainers are responsible for bringing the horse to the course and ensuring that it starts in the race, and horses must be stabled at the licensed trainer’s registered stable address in the ordinary course. It is submitted that in these circumstances, only the trainer, or another person in charge of the horse, would be capable of giving relevant evidence at an inquiry into the condition of the horse and, provided such persons are afforded procedural fairness, it would be otiose to imply a separate requirement for procedural fairness to be afforded to owners. That conclusion is not justified. The owners have a distinct interest in opposing a disqualification under rule 240(1). No rule indicates that trainers should be regarded as representing an owner’s interest in relation to rule 240(1). The mere fact that the conditions expressed in rule 240(1) are amongst the conditions expressed in rule 240(2) does not deny that an owner has a material interest in being heard in opposition to a disqualification of the owner’s horse.
“Races are run at short intervals; bets must be disposed of according to the result. Stewards are there in order to take rapid decisions as to such matters as the running of horses, being entitled to use the evidence of their eyes and their experience. As well as acting inquisitorially at the stage of deciding the result of a race, they may have to consider disciplinary action: at this point rules of natural justice become relevant. These require, at the least, that persons should be formally charged, heard in their own defence, and know the evidence against them. These essentials must always be observed but it is inevitable, and must be taken to be accepted, that there may not be time for procedural refinement. It is in order to enable decisions reached in this way to be reviewed at leisure that the appeal procedure exists…”.
The chronology in the extract from the primary judge’s reasons in the first section of these reasons reveals that there was no urgency in relation to the decision under rule 240(1). The exigencies of racing do not require such an extensive truncation of the principles of procedural fairness as to disregard even the basic requirement of proper notice and an opportunity to be heard.
The parties also framed submissions about the sufficiency of the right of appeal to afford natural justice with reference to McHugh J’s analysis in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah.35 In that case, which concerned the significance of a right of appeal in the context of the exercise by a public official of a statutory power, McHugh J observed that “the insistence by this Court of ‘plain words of necessary intendment’ to exclude the rules of natural justice has led courts to reject the view that a right of appeal might provide an answer to a complaint that procedural fairness was denied in relation to an initial determination.”36 That approach was not endorsed by McHugh J, who observed that “the presence or absence of certain factors can often be relevant in determining whether such a right does exclude or limit the rules of natural justice”. The factors to which McHugh J referred should not be weighed in the balance as though natural justice at the first instance hearing under rule 240(1) is to be afforded or denied according to the way in which the balance of the factors tip the scales. Rather, those factors are amongst the matters to be taken into account in the conventional exercise of construing the relevant instrument, in so far as those factors are relevant in that exercise.37 I refer to those factors in the following paragraph.
The circumstances that the racing participants’ agreement in the AR includes the right of appeal in rule 280(1), and that such an appeal provides for a full hearing afresh on the merits, if considered alone, supply substantial support for the conclusion that the stewards were not obliged to observe the principles of natural justice before making a determination under rule 240(1) of the AR, but they are not necessarily determinative.38 The combination of other factors is so strongly opposed to such a conclusion as to require its rejection:The significance of the right of appeal is reduced by the facts that the appeal is an internal review of a decision by stewards appointed to the Commission to unidentified employees or delegates of the Commission, and that no processes for appeal are prescribed or otherwise identifiable.More importantly, a decision by the stewards to apply rule 240(1) has immediate and substantially adverse consequences for the owner of the disqualified horse – a disqualification, which the AR describes as a “penalty”, upon the basis that the horse has a prohibited substance in its system and, for that reason, the loss of prize money to which the owner otherwise was entitled upon the horse being adjudged as a placegetter in the race. The finality, immediacy, and significance of the adverse consequences for the owner, are matters of importance in favour of natural justice being afforded under rule 240(1), notwithstanding the right of appeal.The same conclusion is supported by the fact that, although the hearing was not itself in public, the report of the stewards’ inquiry was immediately published on the Commission website, thereby rendering the decision analogous to a decision made in public.Also important is, as I have discussed, the absence of any apparent urgency in making a decision under rule 240(1), and the circumstance that, as appears to be accepted by all parties, a hearing is in any event required for the purposes of rule 240(2).The structure of the AR also supports the owners’ case. The rules provide for both a first instance hearing and an appeal for the trainer charged with a breach of the rules under rule 240(2) but, according to the argument for the Commission and Racing Queensland, even though the owners have a substantial interest in opposing disqualification of their horse under the closely related rule 240(1) and they have a right of appeal, they do not have a right to be heard at first instance.The argument against the owners is also difficult to reconcile with the effect of rule 159(9) described in [19] of these reasons.
It is agreed that the relevant version of the AR is that which was in force on 1 April 2020. ↩
Quoting from Commissioner of Taxation v Racing Queensland Board (2019) 374 ALR 241 at 262 [92]. ↩
References in these reasons to the Racing Act are to the reprint of that Act current as at 13 February 2020, unless the contrary is indicated. ↩
By rule 214(1), “[p]lacings in a race are to be determined by the Judge occupying the Judge’s box at the time the horses passed the winning post”. ↩
Rule 274, which operated upon the horse being disqualified under rule 240(1), provides that “[i]f a horse is disqualified from a particular race, or for anything occurring in a race, the prize or money (including any proportion the horse’s rider would have been entitled to) is to be awarded as though that horse had not started in the race”. ↩
In addition, if rule 240(3) applies, rule 240(1) will not operate if the stewards exercise the discretion under the former rule to find that “a breach of subrule (1) … has not been committed”. That discretion was not enlivened upon the stewards’ findings in this case. ↩
In addition, relevant powers, including a power described as an adjudication, are confirmed by the Local Rules mentioned in footnote 15 of these reasons. ↩
Section 240(2), which lists particular decisions that are excluded from the definition of “original decision”, is not relevant for present purposes. ↩
(2012) 251 CLR 1 at [54]. Citations have been omitted from the quote. ↩
(1958) 98 CLR 383
(1910) 10 CLR 243
(2017) 96 NSWLR 274
(2002) 191 ALR 759
(2006) 228 CLR 566
(2012) 251 CLR 1
(2001) 206 CLR 57
(1948) 77 CLR 601
(2019) 374 ALR 241
(2014) 253 CLR 169
(2002) 55 NSWLR 381
(2010) 243 CLR 319
(1976) 135 CLR 616
(2014) 88 NSWLR 594
Fourthly, an appeal seeking to challenge the disqualification of the horse would be an appeal “in respect of … a penalty” in terms of rule 280(1)(a). The term “penalty” is defined to include “disqualification”. The definition of the latter term provides that it includes the adoption or confirmation in accordance with the AR of “any disqualification”. That definition does not articulate what is a disqualification, but that does not matter here. The word “disqualified” in rule 240(1) characterises the result of the application of that rule as a disqualification. The definition of “penalty” therefore requires that disqualification to be regarded as a “penalty” for the purposes of rule 280(1), subject only to the context requiring otherwise. The owners referred the Court to other rules, many of which are discussed in these reasons, but I have not found anything which indicates, much less requires, that the definition of “penalty” should not be applied in rule 280(1).
The primary judge gave three reasons for rejecting the submission made by the Commission and Racing Queensland that the owners had a right of appeal under rule 280(1). The first reason is that the disqualification was not “imposed” by the stewards within the meaning of rule 280(1)(a), but was instead brought about by the operation of the AR. The primary judge observed that “the moment the stewards found that a prohibited substance was detected in the sample taken from the horse following the race, the disqualification was automatically effected by [rule] 240”. The second reason is that Part 11 of the AR commences with the provision in rule 239 that, “[w]ithout limiting any other rules or powers under these Australian Rules, if a person breaches any rule in this Part 11 the person may be penalised by a PRA or the Stewards.” The primary judge considered that, although penalties could be imposed on persons, including a syndicate of owners, the power does not extend to horses. The primary judge observed that “the stewards’ power under [rule] 240(1) is limited to making findings about whether a horse was brought to a racecourse for the purpose of participating in a race and whether a prohibited substance was detected in a sample taken from that horse”; if such findings are made, “a disqualification will result through operation of the rule … nothing will have been imposed by the stewards”. Thirdly, the primary judge concluded that rule 280(1) could not confer a right of appeal when the owner does not have standing to seek review under Chapter 6 of the Racing Integrity Act; the existence of such a right of appeal would give rise to an inconsistency in relation to which the statutory provisions for review under the Racing Integrity Act would prevail pursuant to s 113(3) of the Racing Act.
It is convenient to commence the analysis of the issues raised by the parties’ extensive arguments by construing the text of rule 240(1) with reference to the context of other relevant provisions of the AR.
Rule 240(1) expresses five factual conditions upon which its operation depends:6The horse is brought to a racecourse.The horse started a race on that day.A sample is taken from the horse prior to or following its running in any race.A prohibited substance is detected in that sample.That prohibited substance is on the Prohibited List A or Prohibited List B (or both).
The question whether those conditions are fulfilled cannot be answered without a decision being made after a factual inquiry. It is to be expected that (a) and (b) will rarely, if ever, be contentious, but the other conditions plainly require an inquiry and decision; as the Commission submitted, various issues may arise about (c)–(e), including whether the sample ultimately analysed was uncontaminated and unadulterated between collection and testing. The need for a decision after a factual inquiry is reinforced by rules in Part 12 of the AR about sample analysis and facilitation of proof. In particular, the effect of rule 259(1)–(6) is that, if each of two different official racing laboratories to whom the PRA or the stewards have provided different portions of the same sample taken from a horse, detect upon analysis of the portion the same prohibited substance, and that substance is not detected and quantified in any control of the relevant sample, then the laboratories’ certificates of analysis will constitute prima facie evidence that the relevant sample contains a prohibited substance. The potentially substantial character of the inquiry and the adjudicative character of the decision required for any application under rule 240 are manifested by that provision and by rule 259(9), which makes it plain that such an inquiry and decision are as necessary for the application of rule 240(1) as they are for the application of rule 240(2). Rule 259(9) provides that subrules (1)–(8) do not preclude a PRA or the stewards “from charging a person with breaching these Australian Rules and/or establishing … (c) that a horse had at a particular time a prohibited substance in its system … in ways other than through relying on the prima facie evidentiary effect of two Certificates of Analysis which is stated in subrule (6)”.
Rule 240(1) assumes that some person is, or persons are, empowered to make and will make the necessary factual inquiry, consider the results of the inquiry, and take any appropriate action, including the adjudication required by that rule. The rule itself – like rule 240(2) in this respect – does not identify the person or persons who are to perform those functions. Reference to the context in which rule 240(1) appears is necessary to identify the relevant person or persons. The result of taking the context into account is unsurprising; consistently with the roles assigned to the stewards by rules 240(3) and 259, when rule 240(1) is read together with provisions in Part 3 of the AR conferring far-reaching and diverse powers upon the stewards, it is the stewards who are to do all that is required to be done for any application of rule 240(1).
Part 3, which is devoted to the role and powers of stewards, relevantly confers the following powers upon them:7“to take (or cause the taking of) a sample from a horse and to make (or cause to be made) any testing or analysis to determine whether any prohibited substance is present in the system of the horse” (rule 20(c)). (The same power is also conferred upon the stewards under a different rule, save that this power is expressed to be “in relation to investigations and inquiries” (rule 22(1)(g)); and“to investigate and/or inquire into any matter in connection with racing, including without limitation …any matter in connection with any race meeting” (rule 22(1)(a)(i)), “to hear and make a determination in relation to any matter in connection with racing” (rule 22(1)(b)(i)), and “to take any action the Stewards deem necessary in respect of any horse involved in any investigation or inquiry conducted under subrule (l)(a) or (b)” (rule 22(1)(c)).
It is to be emphasised that the powers which rules 20 and 22 give to the stewards in racing matters are not confined to taking samples from horses, testing and analysing those samples, conducting inquiries and investigations about those and other matters, and making findings about the results of those actions. The rules also confer powers upon the stewards to make a “determination” in relation to any matter in connection with racing and to take “any” action found by the stewards to be necessary in respect of any horse involved in any inquiry conducted by the stewards into any matter in connection with racing.
Rules 20 and 22 should not be read down by reference to the express powers given by the AR to impose a penalty for breach of the rules. In Part 3, the relevant provision is rule 24. It provides that “[w]ithout limiting any other Stewards’ powers, the Stewards have the following powers in relation to disciplining and/or penalising … (a) to penalise any person who breaches the Rules; and … (b) to publish any penalty or restriction imposed or any decision made in the exercise of their powers, performance of their functions or carrying out of their duties.” Presumably it was thought necessary to express the power in (a) because a power to penalise for breach otherwise might not have been found by implication or within a more generally expressed rule. The same consideration is not applicable in relation to disqualification of an owner’s horse under rule 240(1). Whilst that remedy is apt to produce financial and other prejudicial effects for the owner of the disqualified horse, it is not a penalty imposed upon the owners for any breach of the AR. In any event, the opening qualification in rule 24 unambiguously precludes reliance upon it to read down the powers given to stewards by rules 20 and 22. Upon the plain words of rules 20 and 22, they comprehend a power to disqualify a horse where the stewards consider that is required in consequence of findings they make in any matter in connection with racing.
When rule 240(1) is read as a whole and with those powers of the stewards in mind, the statement that “the horse must be disqualified” is readily understood as a command to the stewards that, if they find that the conditions expressed in the rule are satisfied, they must exercise their power to disqualify the horse. It would be surprising if rule 240(1) was instead intended to be self-executing, such that disqualification of a horse from a race in which it had started would occur without the stewards imposing it, and without the disqualification being in writing or otherwise expressed; at best, a record of it could be made after it had occurred. If that was intended, it is to be expected that it would be clearly expressed in the rule, such as by a statement to the effect that “the horse is disqualified”. No expression to that or similar effect is to be found in the rule. The more natural meaning of the words “the horse must be disqualified” when understood in their context is, as I have indicated, as a command to the stewards to disqualify the horse.
The primary judge referred to the first provision in Part 11, rule 239. It provides that “[w]ithout limiting any other rules or powers under these Australian Rules, if a person breaches any rule in this Part 11 the person may be penalised by a PRA or the Stewards”. Curiously, rule 240(3) refers to “a breach of subrule (1)”, but, unlike each of the following rules in Part 11, rule 240(1) is incapable of being breached by the owners of a horse and breach of that rule is not a criterion of its operation. In any event, the opening words of rule 239 preclude reliance upon it either to read down the stewards’ powers under the rules in Part 3 and rule 240(1) or to confine the scope of rule 280(1).
The owners refer to examples of other rules which apply in different circumstances, and which confer upon the stewards powers to impose disqualifications of various kinds which differ from a disqualification under rule 240(1). As I have mentioned, the definitions in rule 2 of the AR are expressed to apply unless the context requires otherwise. The mere fact that those other rules expressly empower or require stewards to impose a penalty in very different circumstances – in most cases, for breach of a rule – is not a justification either for departing from the unambiguous definition of penalty or for excluding the power to disqualify a horse from the broad scope of the stewards’ powers under rules 20 and 22.
Upon what I respectfully consider to be the better construction of rule 240(1), it is one of the many functions of the stewards to impose the disqualification which is made mandatory upon the stewards finding that the conditions in the rule are satisfied. The thorough analysis of the AR conducted by the parties in their outlines of argument and at the hearing of the appeal persuades me that nothing in those rules is inimical to that construction.
The report of the stewards’ inquiry conforms with that construction of rule 240(1). The parties’ agreed statement of facts records that “the Stewards of the Commission finalised an inquiry into the results of analysis that a prohibited substance, Altrenogest, was detected in a post-race urine sample collected from Alligator Blood following the Race”. The stewards’ report recites the terms of rule 240(2) of the AR, describes the charge against the trainer in terms which reflect that subrule, records that the trainer pleaded not guilty and made submissions in defence of the charge, expresses satisfaction that the evidence substantiated the charge, and records that the trainer was found guilty of the charge. After discussing issues about, and deciding, the penalty for what the stewards found to be a breach by the trainer of rule 240(2), the report records the stewards’ determination of the penalty imposed upon the trainer and that the trainer was advised of his right to apply for internal review of that decision under Chapter 6 of the Racing Integrity Act.
The stewards’ decision that the evidence substantiated the charge under rule 240(2) amounted to a decision that the conditions expressed in rule 240(1) were fulfilled, since each of the conditions expressed in subrule (1) are also expressed in subrule (2). The stewards’ report concludes that “in accordance with Australian Rule of Racing 240(1) the horse Alligator Blood was disqualified from its 1st placing in the above-mentioned race and the placings amended as follows…”. Under that statement is a list identifying the horses’ places in the race in order from 1st to 10th, upon the footing that the owners’ horse was excluded from the race. It will be apparent that the list of substituted placings in the race described in that conclusion accords with the effect that rule 274 gives to a disqualification under rule 240(1). The stewards’ expression of that disqualification conforms with what I have concluded is the proper construction of rule 240(1).
Upon that construction of rule 240(1), the stewards’ expression of the disqualification of the horse amounts to a penalty imposed by the stewards within the meaning of rule 280(1).
I would add that the preferable construction of rule 280(1) appears to be that the penalty of disqualification was in any event “imposed by” the stewards, even if it is right to say that their role was limited to making findings about the conditions expressed in that rule. A conclusion that the disqualification was automatically and immediately effected by rule 240(1) upon the stewards finding that the conditions were satisfied may be expressed with equal accuracy as a conclusion that the stewards’ finding was the sole cause of that immediate disqualification. It is a short step from there to treat the stewards as having “imposed” that penalty for the purposes of rule 280(1). That may involve something of a departure from what I understand to be the ordinary meaning of “imposed” in similar contexts, but contextual matters support the taking of that small step: the owners are very clearly persons to whom the disqualification relates within the meaning of that rule; they have an obvious and potentially substantial interest in opposing the disqualification; a subsequent section of these reasons explains my conclusion that the owners should be heard before any adjudication under rule 240(1); and the AR are not drafted with such precision as to make it seem likely that a reasonable person participating in the racing industry under those rules would understand the words “imposed by a PRA or the Stewards” to exclude a disqualification under rule 240(1).
The owners repeat an argument they advanced in the Trial Division that, if the language of rule 280(1)(a) comprehends an appeal by the owners against a disqualification under rule 240(1), rule 280(2)(c) makes it plain that there is no such right of appeal. The effect of the argument is to equate retrospective disqualification of a horse under rule 240(1) with a decision of the stewards relating to the eligibility of the horse to run in the relevant race in terms of rule 280(2)(c). It is apparent, however, that rule 240 in Part 11 of the AR codifies the circumstances in which a horse must (rule 240(1)) or may (rule 240(3)) be disqualified from a particular race or races on account of the circumstances described in those rules, whereas rules 76–86 of Part 5 of the AR exhaustively catalogue the different circumstances in which a horse is ineligible to run in a race. Confining the scope of rule 280(2)(c) to decisions of the stewards in relation to the rules in Part 5 expressly directed to eligibility also appropriately reconciles the right of appeal given by s 280(1)(a) against a penalty of disqualification of a horse under rule 240(1) with the exclusion of any right of appeal against a decision of the stewards in relation to the eligibility of any horse to run in any race.
The owners also refer to rule 282. It provides:
The owners argue that a Standard dated 1 July 2017 made by the Commission under s 58(1)(b) of the Racing Integrity Act “makes unambiguous that, in Queensland, the rules of racing are read subject to and in conformity with the functions and powers of [the Commission] and [Racing Queensland] under the [Racing] Integrity Act and Racing Act respectively”. The language of the Standard makes it clear, however, that it has no impact upon any right created by the rules of racing to which it applies; clause 7.2 states that “[t]he Standard does not affect the rights and liberties provided to persons under the Rules of Racing” and the limited impact of the Standard is made clear by the statement in clause 7.1 that it “relates to the functions and powers of the relevant statutory bodies, Racing Queensland and the Queensland Racing Integrity Commission, as to who will be responsible for exercising functions and powers under the Rules of Racing”.
For those reasons, I would hold that, upon the proper construction of the AR, the owner of a horse has a right to appeal under rule 280(1)(a) against a decision under rule 240(1) that the horse is disqualified from the race or races described in the latter rule.
The next issue in the appeals is whether the stewards’ obligation to observe the principles of natural justice before embarking upon an adjudication under rule 240(1) is excluded by the AR. I express the issue in those terms because, although the Commission and Racing Queensland made submissions to the contrary effect, I consider that the obligation to afford natural justice was clearly attracted by rule 240(1) unless that obligation was excluded by some other provision.
Upon that topic, Commission and Racing Queensland rely upon the primary judge’s conclusion that a term requiring the stewards to afford natural justice to the owners could not be implied unless “the enjoyment of the rights conferred by the contract would or could be rendered nugatory, worthless, or, perhaps, be seriously undermined” or “deprived of its substance, seriously undermined or drastically devalued”18 if such a term is not implied. Many submissions were addressed to the question whether the primary judge erred in concluding that this requirement of necessity was satisfied. I have considered those submissions in so far as they are relevant to the construction of the AR, but I do not accept that the requirement of necessity is applicable. The primary judge’s reason for imposing that requirement is that, if the term is implied in the AR, it would be implied in all contracts falling with the same class, but in my respectful opinion, this case does not raise for decision a novel question upon that topic.
As was submitted for Racing Queensland, the rights conferred by the AR upon the owners of horses are limited, but those rights include the opportunity to participate on terms, through ownership of horses, in the spoils of the racing industry, by becoming entitled to a share in the prize money earned by the owners’ horse. Whether (as I would hold) the decision required for application of rule 240(1) comprehends the imposition of disqualification, or whether the required decision is confined to finding that the conditions expressed in the rule are satisfied, when the Commission, acting by its stewards, embarks upon the decision-making process required under rule 240(1), it embarks upon an adjudication of a judicial character in the exercise of authority conferred upon it by the AR19 in circumstances in which a decision adverse to an owner is apt to prejudice the value of the owner’s contractual entitlements.
Subject only to the question of whether natural justice is excluded by other provisions of the AR, those circumstances attract what Dixon CJ and Webb J described in Commissioner of Police v Tanos20 as the “deep-rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard”. As the primary judge expressed the principle, citing Dickason v Edwards21 and R v Brewer; Ex parte Renzella22 (a case involving the jurisdiction of stewards under rules of racing), “when interpreting the rules conferring that jurisdiction [to proceed in a quasi-judicial way], there is always to be read into them the underlying condition that any such proceedings be conducted in accordance with fundamental principles of natural justice”.
There is a well-known distinction between the existence of an obligation to observe the principles of natural justice and the content of those principles. The principles are flexible and context-dependant. In relation to racing decisions made by stewards under schemes of the kind in force in this case, the required content of natural justice is necessarily very much less sophisticated than is required in judicial hearings. That is a corollary of rules which confer such wide-ranging powers upon the stewards as to vest in them the functional equivalent of many roles separately performed in the criminal justice system by police, the prosecutor, Crown witnesses (including eyewitness and expert witness), the trial judge, and the jury. The right to natural justice may be fulfilled in an informal fashion; it would be wrong to encourage unnecessary formality or technicality in a stewards’ inquiry and the courts should be cautious about intruding into that field at all. Even so, unless the obligation to afford natural justice is altogether excluded by the regulatory scheme, considered in the circumstances in which it operates, no basis appears for departing from the primary judge’s conclusion that the owners are at least entitled to notice of hearing and an opportunity to be heard before the stewards embark upon the adjudication required for the application of rule 240(1) of the AR. The requirement that, despite the multi-faceted roles of racing stewards, they must comply at least with that core aspect of natural justice when acting in a quasi-judicial capacity is by no means unprecedented,23 although none of the decisions cited by the parties address the particular issue that arises in this case.
Because I would hold that the owners do have a right to appeal under rule 280(1), it is necessary to consider afresh the question whether natural justice in relation to rule 240(1) is excluded altogether. It is submitted for the Commission and Racing Queensland that provisions of the AR do have such an effect. Their central proposition is that natural justice in the application of rule 240(1) is intended to be afforded only by exercise of the right of appeal under rule 280(1).
The argument turns upon the proper construction of the AR in the circumstances in which those rules apply. In a similar context, Adam J observed in R v Brewer; Ex parte Renzella24 that the applicable principles “operate to raise a presumption in aid of construing the rules so that if the construction be reasonably open, the rules will be read as not intended to depart from the requirements of natural justice further than necessary”. That statement is derived from O'Connor J’s observation in Dickason v Edwards25 that “[i]t is upon a party who wishes to shut out the implication of that basic condition [that the proceedings shall be carried on in accordance with the fundamental principles of common justice] to show that the rules expressly or by necessary implication negative the implication of its existence”. Similarly, Isaacs J considered that a finding that the rules of a domestic tribunal waived what otherwise would be a requirement of justice could be sustained only by “some distinct and express or necessarily implied provision in the contract”.26 Furthermore, as Campbell J observed in McClelland v Burning Palms Surf Life Saving Club:27
Furthermore, the interests of the owner of a horse may not necessarily align with the interests of the trainer or other person in charge of the horse. In any event, the circumstance that the trainer or other person in charge of the horse may have the same interest as the owner does not deny that the owner has an interest in being heard before any application of rule 240(1). That is so, whether or not the owner is in a position to give relevant evidence at such an inquiry. It cannot be concluded that no owner will be in such a position. An owner who is not able to give relevant evidence may still be able to argue that the “prima facie evidentiary effect” of certificates of analysis obtained by the stewards is insufficient to justify a finding that the express conditions of rule 240(1) have been satisfied.
Contrary to another submission for the Commission, it is not the case that rule 240(1) may be applied only in a case in which the trainer or other person in charge of the horse is found guilty of the breach described in rule 240(2). These are separate provisions. The stewards have jurisdiction to make a decision under rule 240(1) whether or not a charge is brought against the trainer or other person in charge of the horse under rule 240(2). Nor does there appear to be any particular difficulty occasioned by allowing the owner of a horse which might be disqualified under rule 240(1) to attend and be heard together with the trainer or other person charged under rule 240(2) for such part of the hearing as concerns the matters common to both provisions.
The Commission went so far as to submit that a construction under which the owners were entitled to any form of natural justice under rule 240(1) might involve the owners being present at and participating into what was akin to a prosecution of the trainer. The analogy with a prosecution is manifestly unsustainable. The Commission also raised the spectre of participation with the trainer or other person in charge of the horse, not only of the owner of the horse potentially to be disqualified under rule 240(1), but also of the jockeys and trainers of all horses that placed lower in the race than the horse which might be disqualified. An owner of a horse which might be found to have a prohibited substance in its system has a more direct interest in any application of rule 240(1) than do the owners, trainers or jockeys of other horses in relation to which the relevant interests concern only a potential award or increase of prize money. A decision in this case that the owners have such an interest as attracts the obligation to afford natural justice does not amount to a decision that any other participants in the race also have such an interest. It is also not difficult to contemplate procedures the stewards might adopt to ensure that all those with a sufficient interest are given prior notice and an opportunity to be heard without rendering the process unmanageable. Procedures of that kind used in the courts doubtless could be adapted for the more informal context of a stewards’ inquiry.
Racing Queensland relies upon the provisions concerning sample analysis and facilitation of proof in rule 259(8) and (10). Rule 259(8) provides that if a certificate of analysis states that a prohibited substance was detected in a sample, the PRA or the stewards which receive the result must communicate that to the trainer of the relevant horse as soon as reasonably practicable. Similarly, rule 259(10), which concern analyses by the PRA or the stewards of a sample they have retained for their own purposes, provides that if an “internal analysis” is used to prosecute a breach of the AR, the PRA or the stewards must communicate the results of that analysis to the person or persons “the subject of the prosecution”. Neither rule makes a similar provision in favour of the owner of a horse. The omission of an express obligation to provide the certificate to the owners as soon as reasonably practicable is not necessarily inconsistent with an obligation to provide them to the owners in sufficient time to ensure that the owners can properly take advantage of their right to be heard at first instance. To treat that omission as an indication that the owners are not entitled to natural justice also seems difficult to reconcile with the structure of the rules to which I have referred and with other provisions of rule 259 (discussed in [19] of these reasons), which make the certificates only prima facie evidence of their content and contemplate their use both in a charge of breach of a rule (such as under rule 240(2)) and where (such as under rule 240(1)) the stewards seek to establish “that a horse had at a particular time a prohibited substance in its system”. Furthermore, a possible explanation for the provisions in rule 259(8) and (10) is that the trainer, as the person directly responsible for the care of the horse, has a compelling interest in being given these certificates as soon as practicable, regardless of their significance in a forensic context.
The Commission submits that the requirement in rule 259 for analysis of separate portions of a sample taken from a horse by two separate laboratories is sufficient to do natural justice in relation to issues whether the analysis detected a prohibited substance and whether such a substance was detected at a specified concentration threshold. The submission cannot be accepted. It is inconsistent with the “prima facie evidentiary effect” of the two certificates of analysis expressed in rule 259(6) and (9). The quoted expression implies that the effect of the certificates may be extinguished or weakened, including by material supplied by an adversary.
As to the second limb of the argument concerning the significance of the right of appeal, the Commission and Queensland Racing contend that the nature of the appeal provided under rule 280(1) is a full appeal on the merits, in which no weight is afforded to the original conclusion of the stewards. They submit that an appeal against the penalty of disqualification alone would be futile, given that the penalty is mandatory. I would accept that this circumstance supports the proposition that rule 280(1) allows an appellant to challenge the underlying factual basis upon which stewards found that the conditions expressed in rule 240(1) were satisfied. The provisions in rule 232(h) and (i) which prohibit a person from refusing or failing to attend or give evidence at an appeal when directed or requested to do so by a PRA or the stewards, and prohibit a person from giving false or misleading evidence at an appeal, point in the same direction. The absence of any restriction upon the admission of evidence at the appeal is an indication that a full hearing upon the merits is intended. As was also submitted for the Commission and Racing Queensland, the facts that in an inquiry about rule 240(1) the stewards may not be bound to apply the rules of evidence or give reasons for their decision32 are consistent with the appeal being a hearing upon the merits afresh. In those circumstances, and particularly because the so-called “appeal” is in substance a review by the Commission of its own decision made by its stewards, rule 280 should be construed as providing for a full hearing upon the merits in which no weight is given to the first instance decision of the stewards.
The Commission applied for leave to adduce additional evidence in the appeal to prove that there remains available for testing a portion of the sample taken from the horse by the stewards. The owners did not make a submission or seek to adduce evidence that any relevant evidence available at the time of the disqualification might have been lost since then. It is appropriate for present purposes to proceed upon the assumption that up to this time the owners have not been prejudiced in that respect by the delay since the stewards’ original decision. I would refuse the Commission’s application on the ground that it is unnecessary.
The Commission and Racing Queensland rely upon statements in decisions such as Calvin v Carr33 to the effect that natural justice may be regarded as adequately provided in circumstances in which, although natural justice may not be afforded at a stewards’ hearing, there is an opportunity for an appeal in which a person adversely affected by a decision of the stewards may have a full hearing. Underlying what was said by the Privy Council in Calvin v Carr about the significance of an availability for an appeal is an understanding that there may not be time for “procedural refinements” at a stewards’ hearing. The Privy Council observed:34
The finding I would make is that the AR confer upon the owners both a contractually enforceable entitlement to natural justice as a condition of any application of rule 240(1), as found by the primary judge and, contrary to the primary judge’s conclusion, a right of appeal under rule 280(1) in respect of a disqualification of their horse under rule 240(1).
The Commission and Racing Queensland argue that if the Court forms that view it nonetheless should set aside the declaration made by the primary judge as an exercise of discretion. There is authority that the existence of a right of appeal may be a discretionary reason to withhold relief in the exercise of a court’s supervisory jurisdiction, notwithstanding the existence of breach of a duty to accord procedural fairness at first instance.41 For present purposes it is convenient to assume that the Court has a discretion of the nature advocated by the Commission and Racing Queensland in relation to the breach found by the primary judge of the owners’ contractually enforceable right to natural justice.
The circumstances described by the primary judge, in which the owners were kept in the dark about an imminent adjudication by the stewards under rule 240(1) in which the owners had a substantial interest, provided a compelling case for declaratory relief. Leaving intact the declaration ordered by the primary judge is appropriate in circumstances in which;the owners are entitled to natural justice at first instance and to an appeal;Queensland Racing and the Commission maintained at first instance and again in their appeals their stances that the owners did not have the right to be heard at first instance;setting aside the declaration would deprive the owners of an appropriate remedy for the denial of one of those rights;the right of appeal has not been exercised; andbecause the Court has not been informed about how the appeal panel will be constituted or about the processes of appeal that will be adopted, the Court cannot conclude that the denial of natural justice at first instance will necessarily be cured by an exercise of the right of appeal.
I propose the following orders:Dismiss the appeals in Appeal Nos 769 of 2023 and 776 of 2023.Refuse the applications by the Commission in Appeal Nos 769 of 2023 and 776 of 2023.In both appeals, the parties have leave to make submissions about costs in accordance with the Practice Direction.
WILLIAMS J: I have read the reasons of Fraser AJA and agree with those reasons and proposed orders.
Section 504(1) of the Migration Act 1958 (Cth) authorised the Governor General to make regulations “not inconsistent with” that Act prescribing all matters required or permitted to be prescribed or which were necessary or convenient to be prescribed for carrying out or giving effect to the Act. ↩
It is common ground that the Local Rules dated 16 December 2019 contain the relevant rules of racing applicable at the time of the race and subsequent relevant events in this case. ↩
Racing Act, s 101. ↩
Racing Act, s 7. ↩
Racing Act, ss 111(2) and 112(5). ↩
See the interpretative provision at the commencement of the Local Rules, and LRs 1, 2, 21A, and the first sentence of LR100(7). ↩
(2006) 228 CLR 566 at [2]. Internal citations have been omitted. ↩
(2017) 96 NSWLR 274 at [21]. ↩
Quoting from Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at 189 [29]. ↩
The Commission may also be empowered to perform that function by rules incorporated in the Local Rules, but it is not necessary to decide that issue. ↩
(1958) 98 CLR 383 at 395. ↩
Dickason v Edwards (1910) 10 CLR 243 at 255. The primary judge cited a passage in the judgment of O'Connor J. The judgments of Griffith CJ at 250 and 251, and Isaacs J at 258-259 and 263 are consistent with that passage. ↩
[1973] VR 375 at 379. ↩
See, for example, Calvin v Carr [1980] AC 574 in relation to disciplinary proceedings. ↩
[1973] VR 375 at 380, referring to Dickason v Edwards (1910) 10 CLR 243 and Evan v Winterbottom (1945) 47 WALR 79. ↩
(1910) 10 CLR 243 at 255. ↩
Dickason v Edwards (1910) 10 CLR 243 at 262. ↩
[2002] NSWSC 470 at [97]. ↩
See also at 605. ↩
See also at 634. ↩
See Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381 at [1] – [17] and Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 at [74]. ↩
See Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163 at [398]–[399] (Colvin J). ↩
See Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 622. ↩
[1980] AC 574. ↩
Calvin v Carr [1980] AC 574 at 596-597. ↩
(2001) 206 CLR 57 at [146]. ↩
(2001) 206 CLR 57 at 99 [146]. Internal citations have been omitted. ↩
Compare the approach in a case involving statutory construction which was endorsed by Leeming JA (with whose reasons McColl and Macfarlan JJA agreed) in Day v Harness Racing New South Wales (2014) 88 NSWLR 594 at 619 [127]. ↩
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 100-101. ↩
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 99, 101-102. ↩
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 100. ↩
See, for example, Day v Harness Racing New South Wales (2014) 88 NSWLR 594 at 619 [125]; Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163 at [8] (Rares ACJ). ↩