Walker v Racing New South Wales

Supreme Court of NSW|2021-08-13|Before: Commission J

Judgment

HER HONOUR: This is a judicial review of a decision of Racing New South Wales.
By summons filed 26 July 2021, the plaintiff relevantly seeks: 1. A declaration that the first defendant's direction, that the plaintiff immediately stand down as Chairperson of the Mudgee Race Club as a condition of the first defendant lifting its purported suspension of the Mudgee Race Club on 22 March 2021, was invalid and of no effect ("the first decision"). 2. An order that said direction be set aside for want of the first defendant's compliance with s 29C(3) of the Thoroughbred Racing Act 1996 (NSW). 3. A declaration that the 'show cause notice' issued by the first defendant on 8 July 2021 is invalid and of no force and effect by reason of its non-compliance with s 14AA of the Thoroughbred Racing Act 1996 (NSW) ("the second decision"). 4. An order that the 'show cause notice' issued by the first defendant on 8 July 2021 be set aside. 5. An order that the first defendant, its servants and agents be restrained from conducting any show cause hearing upon the basis of the "show cause notice" purportedly issued by the first defendant on 8 July 2021 (including that set down for 3 and 4 August 2021) or otherwise. 6. An inquiry as to damages.
The plaintiff is Colleen Walker. The first defendant is Racing New South Wales ("Racing NSW"). The second defendant is Mudgee Race Club. By consent, the second defendant filed a submitting appearance. The parties relied upon a joint court book ("CB").

Relevant legislation

The relevant sections of the Thoroughbred Racing Act 1996 (NSW) are as follows: 13 Functions of Racing NSW (1) Racing NSW has the following functions - (a) all the functions of the principal club for New South Wales and committee of the principal club for New South Wales under the Australian Rules of Racing, (b) to control, supervise and regulate horse racing in the State, … (e) such functions as may be conferred or imposed on Racing NSW by or under the Australian Rules of Racing or any other Act, 14 Powers of Racing NSW (1) Racing NSW has power to do all things that may be necessary or convenient to be done for or in connection with the exercise of its functions. (2) Without limiting subsection (1), Racing NSW has power to do the following- … (b) register or licence, or refuse to register or licence, or cancel or suspend the registration or licence of, a race club, or an owner, trainer, jockey, stablehand, bookmaker, bookmaker's clerk or another person associated with racing, or disqualify or suspend any of those persons permanently or for a specified period, (c) supervise the activities of race clubs, persons licensed by Racing NSW and all other persons engaged in or associated with racing, … (w) take such steps and do such acts and things as are incidental or conducive to the exercise of its powers and the performance of its functions". 14AA Registration and licensing functions of Racing NSW - general (1) Racing NSW is to exercise its registration and licensing functions so as to ensure that any individuals registered or licensed by Racing NSW are persons who, in the opinion of Racing NSW, are fit and proper persons to be so registered or licensed (having regard in particular to the need to protect the public interest as it relates to the horse racing industry). … (4) In this section - … registration and licensing functions means the functions referred to in section 14(2)(b). 22 Committees (1) Racing NSW may establish committees to assist it in connection with the exercise of any of its functions. (2) A person may be appointed to be a member of such a committee whether or not the person is a member of Racing NSW. (3) The procedure for the calling of meetings of a committee and for the conduct of business at those meetings is to be as determined by Racing NSW or (subject to any determination of Racing NSW) by the committee. 24 Delegation of functions (1) Racing NSW may delegate to an authorised person or body any of its functions, other than this power of delegation. (2) A delegate may sub-delegate to an authorised person or body any function delegated by Racing NSW if the delegate is authorised in writing to do so by Racing NSW. (3) In this section, authorised person or body means - (a) the Chief Executive or any other member of Racing NSW, or (b) a committee of Racing NSW or any member of such a committee, or (c) a race club or racing association. 29C Sanctions for non-compliance by race club with conditions, minimum standards and directions (1) Racing NSW may impose any sanction authorised by this section on a registered race club that Racing NSW is satisfied has - (a) failed without reasonable excuse to comply with a minimum standard set under section 29A, or (b) failed without reasonable excuse to comply with a direction given to the race club under section 29B, or (c) failed without reasonable excuse to comply with a condition of the registration of the race club (other than a minimum standard set under section 29A). (2) Each of the following sanctions is a sanction that Racing NSW may impose under this section - (a) a public admonishment of the race club, (b) a requirement that the race club pay to Racing NSW a civil penalty of up to 50 penalty units (or up to 100 penalty units if the contravention or failure is the second or a subsequent contravention or failure for which a civil penalty has been imposed on the race club under this section), (c) suspension or cancellation of the race club's registration. (3) Racing NSW is not to impose a sanction under this section without first giving the registered race club concerned notice in writing of the proposed sanction and a reasonable opportunity to be heard and to make submissions about the matter. (4) Subsection (3) does not apply in respect of the imposition of a sanction if Racing NSW is satisfied that the sanction must be imposed as a matter of urgency because the contravention or failure concerned poses a significant threat - (a) to public health or safety, or (b) to the financial wellbeing of the horse racing industry as a whole in New South Wales…

Relevant guidelines

The relevant sections of the Australian Rules of Racing are as follows: 13 Licensing and registration Without limiting any other PRA powers, a PRA has the following powers in respect of licensing and registration: (a) to license riders, trainers and other persons on terms and conditions as it thinks fit, (b) to register Clubs, race meetings, owners, companies, bookmakers, horses, riders, trainers and their employees or contractors and other persons on terms and conditions as it thinks fit; and c) at any time to suspend, vary or revoke any licence or registration (or the terms of any licence or registration) without giving any reason…" 14 Functioning of race meetings and Clubs Without limiting any other PRA powers, a PRA has the following powers in respect of licensing and registration: (a) to appoint or approve the appointment by any Club of any official, deputy, or assistant official

Extension of Time

The first issue to be determined is whether Ms Walker should be granted an extension of time to file her summons for judicial review. Uniform Civil Procedure Rules 2005 (NSW) ("UCPR) 59.10 is as follows: 59.10 Time for commencing proceedings (1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision. (2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1). (3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following-- (a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, (d) any relevant public interest. (4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings. (5) This rule does not apply to any proceedings in which the setting aside of a decision is not required.
There are two decisions in relation to which the plaintiff is seeking judicial review. The first decision is to suspend the club on 18 March 2021 and the subsequent direction by Racing NSW that the plaintiff stand down as the Club's chairperson. The second is the notice to show cause on 8 July 2021. It is only the first of these two decisions that requires the granting of an extension of time.
On 18 March 2021, the decision to suspend the Club was made ("the first decision"). On 27 July 2021 the Summons was filed. Pursuant to UCPR 59.10(1), proceedings for judicial review must be commenced within 3 months of the date of decision. Therefore, the application for leave is out of time by a period of just over four weeks.
The plaintiff made no written submissions regarding the delay in filing the summons, however the matter was addressed in oral submissions which can be summarised as follows.

The plaintiff's submissions

Although this is by no means intended as a criticism, the fact of delay was not raised when the summons was filed, nor when the matter was before the Duty Judge on the first occasion, nor before a different Duty Judge on the second occasion.
All of the issues relating to the matter, being the suspension of the club and the imposition of the condition that Ms Walker step down, have been fully ventilated both in evidence and written submissions of both parties, so that all the relevant facts and legal consequences attendant upon that issue are all before the Court and have already been made the subject of submissions.
There is no apparent prejudice to the first defendant from the four or five week delay if the application for leave is to be granted. It is not easy to conceive of any prejudice that might be suffered by Racing NSW. Conversely, if the application for leave is denied there is an obvious prejudice to the plaintiff. What the Court may otherwise regard as an invalid decision is peremptorily imposed.
Finally, the strength of the plaintiff's case is an important consideration. If it were a weak case there would be a need for a more satisfactory explanation for the delay, but on the basis of Tomko v Palasty [2007] NSWCA 369 ("Tomko") (applied in Gazecki v McCabes Lawyers [2020] NSWCA 98 [19]) if the explanation for the delay is less than satisfactory, then the merits of the case become more relevant and the plaintiff's case is a strong one.

The first defendant's submissions

The plaintiff seeks to impugn the purported decision by Racing NSW to direct her to stand down from her position as Chairperson of the Club on 22 March 2021. The plaintiff has filed her application for judicial review out of time.

Resolution

Pursuant to UCPR 59.10(1), proceedings for judicial review must be commenced within 3 months of the date of decision. The first decision to suspend the Club which is sought to be challenged by the plaintiff was made on 18 March 2021. Therefore the three month period during which proceedings for judicial review may be commenced expired approximately a month before the summons was filed on 26 July 2021. Judicial Ground 1 has been brought out of time and the plaintiff requires leave. The Court may at any time extend the time for commencing proceedings (UCPR 59.10(2)). The second decision was made on 8 July 2021.
UCPR 59.10(3) sets out a non-exhaustive list of matters that this Court must take into account in considering whether to extend time.
The first and the second grounds of the judicial review are intertwined. The plaintiff has an interest in challenging the decision to suspend the Club as it has led to her loss of her position as Chairman. If leave is granted, the first defendant is unlikely to be prejudiced in a significant way as this is not matter where they have lost an opportunity or right to raise a particular issue due to the passage of time. Conversely the plaintiff is likely to be prejudiced in a material way if leave is refused. The plaintiff became aware of the decision as it was made, and it remains unclear why no explanation for the delay has been offered.
As the two grounds of judicial review are intertwined and Racing NSW has not suffered any real prejudice, I grant an extension of time to file the summons to 26 July 2021.

Grounds of judicial review

The two grounds of judicial review concern two main topics. They are: 1. the direction by Racing NSW that the plaintiff stand down as chairperson of the club on 22 March 2021 was invalid and should be set aside ("invalid suspension"). 2. Racing NSW's notice, requiring the plaintiff to show cause that Racing NSW should not determine that she was not a fit and proper person to hold office was not in compliance with s 14AA of the Thoroughbred Racing Act 1996 (NSW) and was therefore invalid ("show cause notice").

The plaintiff's submissions

Pursuant to s29C(1) of Thoroughbred Racing Act 1996 (NSW) ('the Act") Racing NSW is permitted to suspend a club's registration if it is satisfied that the club has failed to comply with a minimum standard, direction or condition of its registration.
Where an Act contains general powers and a specific power which go to the same subject matter, the specific power prevails and the general power is superseded by the specific power in terms of operation (T p31 at 4-8): see: Anthony Hordern and Sons Limited v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; Leon Fink Holdings v Australian Film Commission (1979) 141 CLR at 672; David Grant & Co v Westpac (1995) 184 CLR 265.
The other powers under the Act upon which the first defendant is relying to assert the suspension is valid, are such general powers which should give way to the specific power in s 29C in accordance with the principle cited in the authorities above.
There are two reasons why the suspension of the Club was invalid. They are: 1. Sections 29C(1) and (2)(c) of the Act authorise suspension of a club's registration only where Racing NSW is satisfied that the club has, without reasonable excuse, failed to comply with a standard, direction or condition of registration. However, in this case Racing NSW was not, and it could not have been, so satisfied of the Club's failure to comply because in the very same letter of 18 March 2021 notifying suspension, Racing NSW confirmed that its Stewards were only then commencing their investigation and inquiry. Even if one were to assume that Mrs Walker's conduct could constitute conduct of the Club, plainly Racing NSW could not have been satisfied of any of the matters as to which its Stewards were only at the same time opening their investigation; and 2. Section 29C(3) of the Act expressly imposes a pre-condition upon suspension, namely that Racing NSW is not to impose a suspension without first giving the club written notice of the proposed suspension and affording it a reasonable opportunity to be heard and to make submissions. Here, it is not disputed that the Club was given no formal notice before its registration was suspended on 18 March 2021. Further, Racing NSW did not provide any opportunity for the Club to be heard and to make submissions about the suspension before it was imposed. Given these pre-conditions were not met; the suspension itself filed and was invalid.
It follows that as the suspension itself was invalid, the "lifting" of the suspension on 22 March 2021 and the attached conditions (including Racing NSW's requirement that the plaintiff stand down) were equally invalid.
Any suggestion that the plaintiff's withdrawal from Club operations was "voluntary" or agreed to by her ought be rejected because upon any reasonable understanding of the events which occurred, Racing NSW unilaterally imposed its embargo upon the plaintiff's participation in the racing industry as a condition of the Club's reinstatement. It should properly be seen as such. Even now, as far as Racing NSW is concerned, the embargo continues.

The first defendant's submissions

The plaintiff first contends that a direction by Racing NSW that she stand down as Chairperson of the Club on 22 March 2021 was invalid and should be set aside.
There are two reasons why relief sought in orders 4 and 5 of the summons should not be granted, namely that no direction was given to the plaintiff to stand down at all and that if it is relevant to consider the legality of the suspension of the Club on 18 March 2021, that suspension was valid and lawful.

No direction given to the plaintiff

The plaintiff challenges a purported "direction" to her on 22 March 2021 that she stand down as Chairperson of the Club. The plaintiff describes this as "a ban on Mrs Walker's participation in the operations of the Mudgee Race Club." However, no such direction or ban was given or made by Racing NSW, and there is therefore nothing to set aside.
Rather, Racing NSW suspended the Club, but stated that it would lift that suspension if the plaintiff stood down and had no involvement in the operations of the Club while the investigation was continuing. The Club accepted that condition.

The suspension of the Club on 18 March 2021

The plaintiff submitted that the suspension of the Club was invalid by reason of the failure of Racing NSW to comply with s 29C(3) of the Act. Before considering this section, it is necessary to outline Racing NSW's powers of suspension in the Act and under the Australian Rules of Racing (the Rules of Racing) more broadly.
Section 14(1) of the Act provides that Racing NSW "has power to do all things that may be necessary or convenient to be done for or in connection with the exercise of its functions". Without limiting subsection (1), s 14(2)(b) empowers Racing NSW to suspend a race club "permanently or for a specified period". Similarly, s 14(2)(c) of the Act empowers Racing NSW to "supervise the activities of race clubs". Section 14(2)(w) of the Act further provides that Racing NSW also has the power to "take such steps and do such acts and things as are incidental or conducive to the exercise of its powers and the performance of its functions."
The "functions" of Racing NSW referred to in s 14(1) of the Act are set out in s 13 of the Act. These include, pursuant to s 13(1)(e) of the Act, such functions as may be conferred on Racing NSW by the Rules of Racing. "Functions" include "power, authority or duty" (s 3 of the Act). It follows that the "functions" of Racing NSW include the powers conferred on Racing NSW by the Australian Rules of Racing.
AR 13(c) of the Rules of Racing confirms that, without limiting any of its other powers, Racing NSW has in respect of licensing and registration the power to "at any time suspend, vary or revoke any licence or registration (or the terms of any licence or registration) without giving any reasons".
On their ordinary meaning, these powers encompass both (a) the power to suspend a club on an interim basis pending an investigation and inquiry; and (b) the power to impose a final sanction on a club following a finding of wrongdoing in the form of a suspension.
Final sanctions imposed on race clubs are addressed, at least in part, in s 29C of the Act.
As is evident from the section, the powers in s 29C(2) are only engaged where Racing NSW reaches one or more of the states of satisfaction identified in s 29C(1). Each of these requires that Racing NSW be satisfied that the Club has "failed without reasonable excuse" to do certain things, such as comply with the conditions of its registration. Racing NSW must be satisfied that the Club has "failed" to do something. It is for this reason that s 29C is styled as being concerned with "sanctions", i.e. a penalty for disobedience of some rule or prohibition.
Because s 29C of the Act is concerned with final sanctions following a finding of wrongdoing, it makes sense that it is at this stage that the obligation of procedural fairness, codified by s 29C(3) is imposed. As was explained by the Minister for Gaming and Racing when s 29C was introduced (by the Throughbred Racing Amendment Act 2008 (NSW)), "[t]he imposition of sanctions is subject to safeguards including the right to make a submission and the right of review on procedural fairness grounds".
In assessing whether procedural fairness has been afforded "where a decision-making process involves different steps or stages before a final decision is made", the requirements of natural justice are satisfied if "the decision-making process, viewed in its entirety, entails procedural fairness": see Ainsworth v Criminal Justice Commission (1991) 175 CLR 564 at 578 per Mason CJ, Dawson, Toohey and Gaudron JJ. Thus, natural justice requirements generally apply to decisions that are final in nature, rather than to preliminary steps such as an interim decision or the commencement of an investigation: Re Minister for Immigraiton and Multicultural Affairs and Another Ex Parte Miah (2001) 206 CLR 57 at [146] per McHugh J. For example, procedural fairness does not extend to require that a proposed defendant be afforded an opportunity to put submissions in relation to a decision to institute a prosecution or a like proceeding, such as a disciplinary proceeding: see e.g. ASIC v Plymin and Ors (No 3) [2002] VSC 358 at [24] per Mandie J.
The approach adopted by the legislature in imposing the obligation to give notice, and a reasonable opportunity for the club to respond, in s 29C(3) of the Act before a final sanction is imposed, rather than at a preliminary stage, accords with these general principles.
It is obvious that the decision to suspend the Club on 18 March 2021 was not the imposition of a final sanction following a finding of wrongdoing pursuant to s 29C. At that time, Racing NSW had not formed a state of satisfaction that the Club (or the plaintiff) had done anything wrong (as noted in the plaintiff's submissions at [16.1]). Rather, the Club was suspended because Racing NSW had "opened an investigation and inquiry into your [i.e. the plaintiff's] alleged behaviour towards Racing NSW staff". The suspension was to be in place "while that investigation and inquiry takes place".
This was therefore an interim suspension pending investigation, not a suspension imposed as a punishment or sanction in light of a finding by Racing NSW that the Club had failed, without reasonable excuse, to comply with the requirements of s 29C(1) of the Act. An interim suspension pending investigation (and without any finding of fault) is not something that involves a finding of breach or the imposition of a penalty: see, e.g. De Belin v Australian Rugby League Commission Limited [2019] FCA 688 at [77] per Perry J.
As a result, s 29C(3) has no application to the present case.
The Club itself recognised at the time the interim suspension pending the investigation was put in place that, far from the suspension being contrary to procedural fairness, it was consistent with such requirements. As the Club said in its letter of 23 March 2021 (in which it stated that the plaintiff was standing aside from the Club pending the investigation), "the committee would like to see the issue resolved as soon as possible but understands that it must be done in a manner that provides procedural fairness to all involved". As noted above, the plaintiff's solicitors were consistent, in the period that followed, in seeking to ensure that the rules of natural justice and procedural fairness were followed.

Resolution

On 22 March 2021 the first defendant wrote to the Club offering to lift its suspension if: "1. Mrs Colleen Walker immediately stand down as Chairman of MRC pending [the] investigation and inquiry and has no involvement whatsoever in any of the operations of MRC during that period." (CB 26)
The plaintiff describes this in her written submissions at [1] as "a ban on Mrs Walker's participation in the operations of the Mudgee Race Club."
At [18] of her written submissions the plaintiff writes: "Any suggestion that the plaintiff's withdrawal from Club operations was "voluntary" or agreed to by her ought be rejected - upon any reasonable understanding of the events which occurred, Racing NSW unilaterally imposed its embargo upon the plaintiff's participation in the racing industry as a condition of the Club's reinstatement. It should properly be seen as such. Even now, as far as Racing NSW is concerned, the embargo continues." (CB 231-232)
However, by letter to Racing NSW on 24 March 2021 Mr J. Kennedy of Hall Payne Lawyers, acting for the plaintiff writes: "[4] Our client has voluntarily agreed to stand down from her position, not attend the MRC racecourse and not have any involvement in the MRC, while the Stewards process occurs. This is yet another example of her putting the best interests of the MRC first, above her own." [my emphasis added] (CB 62)
The submission that the plaintiff did not voluntarily stand down from her position fails, as by her own admission she voluntarily agreed to stand down from her position.
Regardless of whether the 24 March 2021 letter accurately describes the fact of the matter, or whether the plaintiff felt she had no choice but to step down, it is not correct in my opinion to describe the condition that the plaintiff stand down in order for the Club's suspension to be lifted as a 'unilaterally imposed embargo' or a 'ban'. Rather Racing NSW, in response to the Club's request on 19 March 2021 that "… Racing NSW reassess and determine what measures MRC must put in place enabling immediately if it is to operate under normal conditions without suspensions" (CB 25) indicated they were prepared to lift the Club's suspension if the plaintiff stood down. The club explicitly accepted this condition on 23 March 2021 (CB 66). It was at all times open to the Club to refuse this condition and remain suspended pending the outcome of the inquiry.

The suspension of the Club

The plaintiff submitted that s 29C is the only section of the Act under which the first defendant could have validly suspended the club, and as the suspension of the Club was invalid by reason of Racing NSW's noncompliance with ss 29C(1) and (2)(c) or 29C(3) of the Act, the lifting of that suspension and the attached condition that the plaintiff stand down was equally invalid.
The club was registered. In order for the powers under s 29C of the Act to be enlivened, Racing NSW must first be satisfied that a registered race club has failed without reasonable excuse to: a) comply with a minimum standard set under s 29A, b) comply with a direction given to the club under s 29B, or c) comply with a condition of the registration of the race club (other than a minimum standard set under s 29A). By reason of logical necessity, Racing NSW could not have been satisfied of any of these matters at the time of the Club's suspension as the suspension was imposed before the completion of the investigation.
The powers conferred by s 29C of the Act are not the only powers available to Racing NSW under the Act. Pursuant to s 14(2)(b) Racing NSW has the power to "… register or licence, or refuse to register or licence, or cancel or suspend the registration or licence of, a race club…", and pursuant to s 14(2)(w) Racing NSW has the power to "take such steps and do such acts and things as are incidental or conducive to the exercise of its powers and the performance of its functions."
Further pursuant to s 14(1) of the Act Racing NSW has power to do all things that may be necessary or convenient to be done for or in connection with the exercise of its function. Pursuant to 13(1)(b) of the Act Racing NSW has "such functions as may be conferred or imposed on Racing NSW by or under the Australian Rules of Racing or any other Act." Relevantly rule 13(c) of the Australian Rules of Racing, empowers Racing NSW to "… suspend, vary or revoke any licence or registration (or the terms of any licence or registration) without giving any reason."
The relevant question is therefore whether the requirements of s 29C of the Act were required to be met for the Club's suspension to have been validly made, or whether Racing NSW could validly exercise a power of suspension under s 14 of the Act or the Australian Rules of Racing.
The plaintiff suggests that as the powers under s 14 of the Act and in the Australian Rules of Racing are general powers which go to the same subject matter as the specific power in s29C of the Act, they are superseded by s29C in terms of operation. I am not agree. s 29C of the Act is concerned with the imposition of a sanction on a club following Racing NSW's satisfaction that the club has not complied with conditions of their registration, minimum standards imposed by s29A of the Act or directions given to the club pursuant s29B of the Act. The sanctions imposed in s29C of the Act are penalties imposed for disobedience, whereas the other powers of suspension are not framed in the same manner.
I do not agree, that what s 29C of the Act permits (namely the imposition of a sanction following non-compliance) is sufficiently similar to that which is permitted pursuant to s 14 of the Act so as to have the effect of preventing the more general power in s 14 from operating without the qualifications and conditions imposed upon s 29C. Where serious allegations have been made against a person in a club's administration, it would be absurd if Racing NSW were left incapable administering any interim or interlocutory relief and rather had to first conduct an enquiry under s 29C(1) of the Act before being able to take any action. The plaintiff's interpretation would mean that in, an urgent situation, Racing NSW could not take immediate action.
This reading of the legislation is supported by the preliminary powers given to Racing NSW, which include specific powers to suspend any licence or registration without giving reasons pursuant to AR 13, which would obviously include even before an adjudication of failure contemplated by s29C of the Act.
As to the plaintiff's concerns about the procedural fairness of a decision made in this manner, the requirements of natural justice are satisfied if "the decision-making process, viewed in its entirety, entails procedural fairness": see Ainsworth v Criminal Justice Commission (1991) 175 CLR 564 at 578. As the decision made by Racing NSW is an interim decision, made at the commencement of an investigation rather than one that is final in nature, I am satisfied that the requirement for procedural fairness will be satisfied if applied to any final decision made by Racing NSW: see Re Minister for Immigraiton and Multicultural Affairs and Another Ex Parte Miah (2001) 206 CLR 57 at [146].
This ground of judicial review fails.

The plaintiff's submissions

In its Notice and covering letter, Racing NSW identifies the precise basis upon which Mrs Walker is required "to show cause as to why Racing NSW should not determine that you are not a fit and proper person to hold the position of an official of a NSW Race Club...". That requirement and the Notice itself are squarely founded upon the "registration and licensing functions" contained in s14AA.
Pursuant to s 14AA(1) of the Act, Racing NSW must only exercise its registration and licensing functions (identified in s14(2)(b)) so as to ensure that individuals registered or licensed by Racing NSW are persons who, in the opinion of Racing NSW, are fit and proper persons to be so registered or licensed. This Notice, on the other hand, speaks, not to the question of registration or licensing of a person (as s14AA does), but is instead addressed to fitness to be an official of the Club.
Properly construed, s14AA of the Act permits an inquiry and determination as to a person's fitness and propriety only for the purpose of that person's registration or licensing by Racing NSW.
However, the plaintiff Mrs Walker has not been, and is not, an individual registered or licensed by Racing NSW. Nor are other members of race club committees. Racing NSW has adduced no evidence that Mrs Walker's name has ever been entered in any register, nor that any register of club committee members even exists.
While the Club has itself long been registered (its Application for 2021 is in evidence), Mrs Walker and the Club's other committee members have never been registered or licensed in their own right. Mrs Walker has never applied to be registered or licensed nor ever been informed that she was registered or licensed. The fact that a club's application form is signed by committee members who agree to abide by conditions of a club's registration does not carry with it an implication that those members are themselves registered persons (even when resignation or appointment of committee members is notified to Racing NSW, that could amount only to notification to the racing authority and not to registration under the Act). It is still the club which is registered.
Section 14AA of the Act was not a source of power for the issue of a show cause notice such as the Notice; and the Notice (and any process based upon it) was and is invalid and of no effect.
Moreover, Racing NSW may not, in order to justify its Notice, have resort to its general functions and powers under ss13 and 14 of the Act. Section 14AA provides a specific power to determine the fitness of a person but only where that person is registered or licensed. Where a statute confers an unqualified general power and also a special power subject to limitations and qualifications (and it appears that s14AA was inserted for that very purpose), the general power may not be exercised to do that which is the subject of the special power: Anthony Hordern and Sons Limited v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7; Leon Fink Holdings Pty Limited v Australian Film Commission (1979) 141 CLR 672 at 678; Grant & Co Pty Limited v Westpac Banking Corporation (1995) 184 CLR 265 at 276.

The first defendant's submissions

Section 14AA of the Act conditions the exercise of Racing NSW's registration and licensing functions. However, s 14AA does not "contain" those functions. Rather, Racing NSW's "registration and licensing functions" are set out in s 14(1) and (2) of the Act.
An official of a race club is a "person associated with racing" for the purposes of s 14(2)(b) of the Act. In the plaintiff's submission to the Racing NSW inquiry, the plaintiff stated that she "is an Official and, in accordance with AR 3, is bound by the Rules [of Racing] on the basis that she is a person who takes part in matters or race meetings coming within the Rules" (plaintiff's submissions at [6]). Further, Racing NSW's powers under the Act include those set out in the Australian Rules of Racing. Pursuant to the Australian Rules of Racing 14(a), those powers include "to appoint or approve the appointment by any Club of any official, deputy, or assistant official".
It follows that Racing NSW has the power to register or licence officials of race clubs, and to refuse to register or licence an official of a race club.
The Act does not provide a definition of "register" or "licence" or prescribe what form such registration or licensing is to take. As a result, those words are to be given their ordinary meaning.
To "register" means to enter information formally in a book, record or list.
To "licence" means to give someone formal permission to do something. In Federal Commissioner of Taxation v United Aircraft Corporation (1943) 68 CLR 525 Latham CJ said at 533: "A licence provides an excuse for an act which would otherwise be unlawful as, for example, an entry upon a person's land, or the infringement of a patent or copyright. It is an authority to do something which would otherwise be wrongful or illegal or inoperative."
All race clubs are obliged to be registered with Racing NSW, and as a consequence the Club has been registered with Racing NSW for many years. Race clubs are also "licensed", in the sense that if they are not registered, they are not permitted to act as race clubs and it would be wrong and unauthorized for them to do so. There does not appear to be any dispute about this: PS, [24].
When race clubs apply for registration, they fill out a registration application form. A copy of the pro forma application currently in effect is at Exhibit PTS-1, pp. 140-146. A copy of the Club's most recent completed application form is at Exhibit JK-1, pp. 1-9.
The registration form provides as follows (adopting the page numbering in Exhibit JK-1): 1. The club must identify the Chairperson's name and contact details (p. 1). The Club's most recent application named the plaintiff as its Chairperson. 2. The club must identify the club directors and committee members, including the Chairperson (p. 2). Those individuals must then sign the registration form. The Club's most recent application form named the plaintiff as Chairperson and the plaintiff signed the form as required. 3. The "Lodgement Requirements" on p. 3 require clubs to provide a copy of the "Board resolution acknowledging that they agree to be bound by all the conditions of race club registration and acknowledge the Racing NSW Guidelines for Directors of NSW Thoroughbred Racing Clubs." 4. The "Conditions of Registration" on p. 3 provides that the registration of race clubs with Racing NSW is subject to "the Race Club and its Directors and Officers being bound by the following conditions", which include "Adoption of, and adherence to the Model Code of Conduct for Directors and Staff, as prescribed by Racing NSW". Clubs and officials are also obliged to notify Racing NSW "of any changes to membership of the Board/Committee of the Race Club or in the position of Chief Executive/Secretary of the Race Club within ten days of a change occurring". 5. The "Requirements for Race Clubs Regarding Directors and Officers" on p. 5 provide that directors and officers are not to be persons who fall within the various categories there set out. The person filling out the form (which, in relation to the Club, was the plaintiff) is required to declare that none of the Club's directors or officers fall into these categories. If clubs have directors or officers falling into certain of these categories, they must make a separate written application to Racing NSW for approval. 6. The "Requirements for Race Clubs Regarding Directors and Officers" on pp. 5 and 6 go on to require that the club committee adopt a suitable Code of Conduct and that this is "recognised and adhered to by all directors and officers". The person filling out the form (which, in relation to the Club, was the plaintiff) must declare that the club's committee has "adopted, and practices the Model Code of Conduct for Committee/Board Members from the Racing NSW Guidelines for Directors Manual". It must also be confirmed that "[t]he Club Committee has considered the matter of the conditions of race club registration contained in this document and resolved to be bound by these for conditions 2021, with a copy of the resolution included in this renewal application". 7. There is then a final declaration on p. 7. This must be signed by the person filling out 13 the form, which in relation to the Club was the plaintiff. It states: "Declaration: I declare that the above conditions and requirements are met and that the conditions and requirements contained in this application have been drawn to the attention of the Directors and Officers of the Race Club, who agree to be bound by the above conditions under which the registration will be granted. I further declare that the information included herein has been provided in good faith and to the best of my knowledge is fully accurate".
Attached to the Club's most recent application form was a "Committee Resolution" dated 17 November 2020, signed by the plaintiff, which stated that "The Committee/Board of the MUDGEE RACE CLUB INC agree to be bound by all the conditions of race club registration and acknowledge the Racing NSW Guidelines for Directors of NSW Thoroughbred Racing Clubs".
The Guidelines for Directors of NSW Thoroughbred Racing Clubs (which the officials of race clubs agreed to be bound by upon registration) "set out the duties and responsibilities and the common standards of conduct for all Directors of NSW Race Clubs" (at [1]). These duties are then set out in particular detail throughout the Guidelines.
When race clubs apply for registration, therefore, it is evident that its officials are also required to identify themselves and to personally commit to the various requirements set out in the form. Those officials expressly agree to be bound by those requirements. If those officials do not do this, or do not meet certain requirements set by Racing NSW, then they will not have approval to act as officials of a race club, and cannot do so. When the officials of a race club change, Racing NSW must be notified of this fact. Pursuant to this requirement, over the years the Club has notified Racing NSW on a number of occasions when its officials have changed.
By this means, the names and details of officials of race clubs are required to be formally entered in the records of Racing NSW. Those officials are therefore "registered". In addition, or alternatively, it would be wrong or unauthorized for officials to act as such without this being done and without Racing NSW's approval. Those officials are therefore "licensed".
The plaintiff suggests that it is necessary for Racing NSW to produce some separate "register of club committee members" on which the plaintiff's name is contained (see plaintiff's submissions at [23])]. It is not clear precisely what this is said to require. If it refers to some collection of records or information, then this exists as the totality of the registration forms of race clubs in which the names of officials are contained, which are held in the records of Racing NSW. In any event, there is no such condition on Racing NSW's statutory powers. Officials must be "registered" in the sense of their names being entered in the records of Racing NSW. This has been done in precisely the same way for officials as it has been done in relation to clubs, i.e. by inclusion of the relevant details in the club registration form. It is noted that there is no dispute that clubs have been "registered" for the purposes of the Act.
By the show cause notice, Racing NSW is seeking to determine whether the plaintiff is a fit and proper person to act as an official of a race club. If she is not, she should not be registered or licensed by Racing NSW. Racing NSW is therefore discharging its registration and licensing functions, in a manner consistent with s 14AA of the Act.
Even were it not the case that officials of race clubs were licensed or registered by Racing NSW, that would not mean that Racing NSW had no power to control whether or not those individuals were allowed to act as officials of race clubs. Racing NSW has the power under s 14(2)(c) "to supervise the activities of race clubs, persons licensed by Racing NSW and all other persons engaged in or associated with racing" and under s 14(2)(k) to "prohibit a person from attending at or taking part in a race meeting". Such specific powers are consistent with Racing NSW's general powers in s 14(1) of the Act to "do all things as may be necessary and convenient to be done for or in connection with the exercise of its functions". These powers would plainly extend to prohibiting certain individuals from acting as officials of race clubs, if they were not fit and proper persons to do so. That is surely the core function of supervising the activities of such persons.
The plaintiff contends that Racing NSW cannot determine the fitness or propriety of a person who is not registered and licensed at all. (see the plaintiff's submissions at [26]). This is said to be on the basis that s 14AA of the Act provides a "specific power to determine the fitness of a person but only where that person is registered or licensed". This proceeds from a misconstruction of s 14AA. That section does not contain a power at all. Rather, it prescribes how Racing NSW's registration and licensing functions (contained in ss 13 and 14 of the Act) are to be exercised. As a result, the principles about general and specific powers on which the plaintiff relies have no application.
In any event, there is nothing in the text, context or purpose of the Act which would suggest that s 14AA operates to restrict in any way Racing NSW's other powers, or the manner of their exercise. Rather, the effect of s 14AA is to ensure that when Racing NSW exercises its registration and licensing functions, it holds persons to a particular (exacting) standard. The standards to be applied to other persons are more flexible, but that does not mean that Racing NSW is not entitled, if it so chooses, to adopt a standard of fitness and propriety.
In addition, as noted above Racing NSW has the express power under the Australian Rules of Racing 14(a) to approve the appointment of any official of a race club. The plaintiff does not address this power at all. On its plain terms, it permits Racing NSW to approve (or not approve) officials of race clubs. Substantively, that amounts to a power to license. If, nonetheless, it were held that the power of approval did not render people so approved "licensed", the fact of the power's existence is undeniable. It justifies the exercise of power in this case.
Racing NSW respectfully submits that it is clear that its licensing and registration functions extend to officials of race clubs. But even if they do not, it retains power to regulate the conduct of such individuals in any event. Even if otherwise justified (which it is not), the relief sought by the plaintiff in relation to s 14AA of the Act therefore has no utility.

Resolution

Pursuant to s 14AA, Racing NSW is able to exercise its registration and licensing functions so as to ensure that any individuals registered or licensed by Racing NSW are persons who, in the opinion of Racing NSW, are fit and proper persons to be so registered or licensed. s 14AA(4) provides that 'registration and licensing functions' means the functions referred to in section 14(2)(b) of the Act.
Section 14(2)(b) provides that Racing NSW has the power to register or licence, or refuse to register or licence, or cancel or suspend the registration or licence of, a race club, or an owner, trainer, jockey, stablehand, bookmaker, bookmaker's clerk or another person associated with racing, or disqualify or suspend any of those persons permanently or for a specified period. [my emphasis added]
The relevant question is therefore whether the plaintiff is a person who is relevantly registered or licenced.
On 14 January 2021, Racing NSW confirmed the Club's registration for 2021. When the club applied for registration, the plaintiff was required to identify herself and personally commit to be bound the various requirements set out in the form in her capacity as chairperson. If the plaintiff did not do this, then she would not have approval to act as an official of the Club, and could not do so.
It is a "key condition" of race club registration that committee members do not hold a licence with Racing NSW (CB. 222), therefore the question of whether the plaintiff is a person who is licenced for the purposes of the Act can be put to one side and only the plaintiff's registration will be considered.
In Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490, the objects of statutory construction is discussed at [69] and [78]: "[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'… … [78] However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction56 may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." (Citations omitted)
The term 'register' is not defined in the Act or in the Australian Rules of Racing, and should therefore be given its ordinary meaning. While I accept the plaintiff's oral submission that the Macquarie Dictionary definition pointed to by the first defendant is merely one of some twenty-four, of those definitions only four are concerned with the type of registration we are dealing with in this matter. They are: 1) (noun) a book in which entries of acts, occurrences, names or the like are made for record; 2) any list of such entries; a record of acts, occurrences, etc; 3) an entry in such a book, record or list; and … 13) (verb) to enter or to have entered formally in a register.
There are various other definitions concerned with mechanical devices, photography, printing, music etc which are obviously not applicable. The definition of registered being 'to have been entered formally in a book record or list' is applicable. The registration would include an electronic record or list.
A copy of the Club's most recent completed application form is at Exhibit JK-1, pp 1-9 (CB 15-21). The fact that it is the Club's application for registration does not mean that it should be understood as excluding it from the having the character of registering the plaintiff. The enquiry should be concerned with substance rather than form.
There are a number of things the club must do, and this includes certifications the club, and its committee members to be given in order for the Club's registration to be granted. These are set out in this judgment above at [96].
The plaintiff has suggested that the first defendant has not provided any evidence to suggest a record is kept of registered chairpersons or registered committee members, and as such they cannot be said to be registered. I do not agree the record as described by the plaintiff is required for the plaintiff to be considered registered. Through the registration of the club, the plaintiff's name and details were required to be formally entered in the records of Racing NSW. It is my opinion that the plaintiff was therefore relevantly "registered" for the purpose of s14AA of the Act, and the show cause notice was issued validly. This ground of judicial review fails.

Result

The plaintiff's claim for judicial review fails.
The plaintiff's summons filed 26 July 2021 is dismissed.

Costs

Costs are discretionary. Normally costs follow the event. The plaintiff is to pay the first defendant's costs on an ordinary basis.

The Court Orders: 1. The plaintiff's summons filed on 26 July 2021 is dismissed. 2. The plaintiff is to pay the first defendant's costs on an ordinary basis.

Amendments 24 September 2021 - Second defendant added. 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: 24 September 2021

Throughbred Racing Amendment Act 2008(NSW)

At a glance

Court

Decision date

Before

Source

Judgment (22 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (12)