Stollery v Greyhound Racing Control Board

Stollery v Greyhound Racing Control Board - [1972] HCA 53 - HCA 1972 case summary — Zoe

[15]

According to the minutes, Mr. Smith was asked by the chairman of the Board after the appellant had withdrawn whether he wished to take any further part in the deliberations of the Board with regard to the matter before it: to which inquiry Mr. Smith gave a negative reply. However, Mr. Smith remained during the Board's deliberations, perhaps at his place at the board table as a member of the Board, though there is no specific evidence on this point. After conferring amongst themselves the other members of the Board resolved that the appellant be charged under r. 21 (2) (c) (iii) (a) that he "being a bookmaker registered with the Board did an act which in the opinion of the Board was detrimental to the proper control and regulation of greyhound racing in that on 20th July 1971, he did cause to be handed to Mr. N. Smith, the Manager of the N.S.W. Greyhound Breeders, Owners and Trainers Association Ltd. (Harold Park), a sum of money to wit $200.00". Thereupon the appellant was recalled into the board room and the charge was read to him, Mr. Smith still being present. The appellant was informed that he could have an adjournment to consider the matter and that he could have counsel to assist him. However, the appellant said he wished the matter to be decided that day and pleaded not guilty to the charge. The appellant was then told by the chairman that it was for him to raise a reasonable doubt in the mind of the Board as to whether what had been done "was not detrimental to the proper control of greyhound racing". The appellant addressed the Board asserting his innocence of any attempt to do anything detrimental to the interests of greyhound racing and called attention to his long association with the sport. Though the appellant then withdrew from the Board, Mr. Smith still remained with the Board, which is recorded as having then conferred. Thereafter it was resolved by the members of the Board, other than Mr. Smith, that the appellant be found guilty as charged and that he be "disqualified for twelve months as from this date".

[21]

I find little need to discuss the law at any length. We are, of course, not concerned here, and indeed we would have no power, to review the decision of the Board as to whether or not the appellant had committed an act which was detrimental to the business of greyhound racing. We are not concerned with the appellant's guilt or innocence in that connexion. What we are concerned with is the regularity of the proceedings of the Board in which he was found guilty of doing an act as charged. In my opinion, it is of the utmost importance that tribunals such as the Greyhound Racing Control Board should conduct their proceedings with scrupulous adherence to the requirements of natural justice. What is required to satisfy these principles no doubt depends very largely on the nature of the matter in hand and the circumstances in which the hearing takes place. Mr. Wood, who argued the case for the appellant, gave the Court the benefit of a useful review of a number of decided cases. Some of these cases related to bias in a person participating in the decision of a tribunal and others, such as Dickason v Edwards [1] in this Court, were instances of a disqualified member of a tribunal officiating but not participating in the tribunal's deliberation or decision. I append a list of the cases cited in argument but I find no need to discuss them in these reasons. It suffices, in my opinion, for the disposal of this application to refer to and cite from R. v Sussex Justices; Ex parte McCarthy [2] . In that case, a deputy clerk, who was a member of the firm of solicitors acting for a person concerned in the collision of motor vehicles out of which the action arose, acted as clerk to the justices and retired with them, as would be the right of the clerk, when they adjourned to consider the case. He did not take part in the deliberations or offer the justices any advice whatever. However, on an application for certiorari, the resulting conviction by the justices was set aside on the ground that there had been a departure from the requirements of natural justice. Giving judgment, Lord Hewart L.C.J. had this to say [3] :

[22]

It is clear that the deputy clerk was a member of the firm of solicitors engaged in the conduct of proceedings for damages against the applicant in respect of the same collision as that which gave rise to the charge that the justices were considering. It is said, and, no doubt, truly, that when that gentleman retired in the usual way with the justices, taking with him the notes of the evidence in case the justices might desire to consult him, the justices came to a conclusion without consulting him, and that he scrupulously abstained from referring to the case in any way. But while that is so, a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. Speaking for myself, I accept the statements contained in the justices' affidavit, but they show very clearly that the deputy clerk was connected with the case in a capacity which made it right that he should scrupulously abstain from referring to the matter in any way, although he retired with the justices; in other words, his one position was such that he could not, if he had been required to do so, discharge the duties which his other position involved. His twofold position was a manifest contradiction. Lush J. added [1] : It must be clearly understood that if justices allow their clerk to be present at their consultation when either he or his firm is professionally engaged in those proceedings or in other proceedings involving the same subject matter, it is irrelevant to inquire whether the clerk did or did not give advice and influence the justices. What is objectionable is his presence at the consultation, when he is in a position which necessarily makes it impossible for him to give absolutely impartial advice. I have no doubt that these justices did not intend to do anything irregular or wrong, but they have placed themselves in an impossible position by allowing the clerk in those circumstances to retire with them into their consultation room. As in that case, so in this the continued presence of a disqualified person is fatal to the validity of the decision taken as the result of deliberations in his presence. Also it seems to me that, had Mr. Smith been asked by the Board for his opinion as to whether what had happened was likely to be detrimental to the control and regulation of the sport, he would not have been in a position to have offered entirely objective and unbiased advice. 1. (1910) 10 C.L.R. 243. 2. [1924] 1 K.B. 256. 3. [1924] 1 K.B., at pp. 258-259. 4. [1924] 1 K.B., at pp. 259-260.

[66]

The Court of Appeal considered that if Mr. Smith was disqualified from sitting on the Greyhound Racing Control Board ("the Board") when it came to deliberate on the question whether the appellant was guilty of any act which in the opinion of the Board was in any way detrimental to the proper control and regulation of greyhound racing, natural justice would require the decision of the Board, reached when Mr. Smith was present, to be set aside. This view was correct. It is true that the Board is not a regular judicial tribunal and that it has been doubted whether the principles which require the decision of a tribunal to be set aside if a member who was interested or biased was present when the decision was reached apply with the same strictness to the case of administrative bodies: Reg. v London County Council; Re Empire Theatre [1] ; Reg. v Huggins [2] . However, when the Board is adjudicating as to whether a bookmaker should be found guilty of conduct that may result in his disqualification, it is making a decision which may have a serious effect on the rights and livelihood of the person whose conduct is called in question. Rules conferring jurisdiction of that kind must be construed as requiring that the proceedings should be carried on in accordance with the principles of natural justice, unless an intention to exclude those principles plainly appears: Australian Workers' Union v Bowen [3] ; Wiseman v Borneman [4] . No such intention appears in the rules of the Board; on the contrary, those rules required "due inquiry" in the present case - r. 21 (2) (c) (iii). The principles of natural justice are not rigid or technical. "The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth": Russell v Duke of Norfolk [5] . It is, however, clear that it would not be in accordance with the principles of natural justice for a person who was in truth the accuser to be present as a member of the tribunal when the charge which he had promoted was heard, even if he took no actual part in the proceedings: Reg. v London County Council; Ex parte Akkersdyk [1] ; Dickason v Edwards [2] . The very presence of a person who has brought forward a complaint may, even unconsciously, inhibit the discussions and affect the deliberations of the other members of the tribunal.

At a glance

Court

Decision date

Before

Source

Judgment (71 paragraphs)

Parties