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Vowell v Steele [1985] VicRp 11; [1985] VR 133 (28 August 1984)

VOWELL v STEELE

SUPREME COURT OF VICTORIA

BEACH J

16, 17, 28 August 1984

Beach J: The applicant, Richard William Webb Vowell, is a licensed trainer and owner of the horse, "Triple Toss". On 26 February 1983 the horse ran unsuccessfully in the Bond Handicap at Caulfield. The horse was ridden by P Jarman.

The applicant was dissatisfied with the way in which the jockey rode the horse and complained to the stipendiary stewards that the jockey had failed to follow the instructions he had given him. The stipendiary stewards held an enquiry into the complaint, at which enquiry they heard evidence from the applicant and the jockey and viewed a film of the race. At the conclusion of the enquiry the stipendiary stewards announced that they could not take any exception to the manner in which the jockey had ridden the horse and believed he had endeavoured to carry out the instructions given him.

In due course the applicant sought to appeal against that decision to the committee of the Victoria Racing Club pursuant to the provisions of r4(a) of the Local Rules of Racing of the Victoria Racing Club. That rule states:--

"Subject to the proviso hereunder any person aggrieved by the decision of the Committee of any registered club of any stewards, whether Honorary or Stipendiary, may appeal to the Committee of the Victoria Racing Club if he shall, within four days after the decision has been given by such committee or the stewards, lodge a notice in writing of such appeal with the Committee of the Victoria Racing Club. The notice must be accompanied by a deposit of $100. The said Committee shall, as soon as practicable, notify the committee of the local club concerned, or stewards, that the appeal has been lodged. The person aggrieved may, if he thinks fit, on the day of the race, if such decision relates to a race, lodge such notice and deposit with the stewards who shall forthwith forward the same to the Committee of the Victoria Racing Club. If the appeal be not forthwith proceeded with, the said deposit may be forfeited and paid into the VRC. Benevolent Fund. Provided that there shall be no appeal against the decision of the stewards in connection with any protest or objection against placed horses arising out of any incident or incidents occurring during the running of the race."

When the appeal came on for hearing on 28 April 1983, counsel for the jockey submitted that the applicant was not a person aggrieved within the meaning of the rule and that it was not competent for the committee to entertain the appeal.

The committee upheld that submission and refused to hear the appeal.

On 19 September 1983 the applicant obtained an order for review of the committee's decision pursuant to the provisions of  s3  of the  Administrative Law Act 1978  on the following grounds:--

"a. That the respondents erred in law in determining that it was not open to them to hear and determine the appeal.

"b. That the respondents erred in ruling that the applicant did not have sufficient interest in the appeal.

"c. That in refusing to hear or inspect the evidence that the applicant desired to place before the Committee, it acted in such a manner so as to deny the applicant a proper hearing.

"d. That they should have held that the applicant was a person aggrieved by the decision of the stewards.

"e. That the Committee failed to exercise its discretion under the Australian Racing R7 in a proper manner."

When the matter was argued before me, it was contended by counsel for the respondents that the provisions of the  Administrative Law Act  do not apply to the decision of the committee because that decision was not a decision within the meaning of the Act.

 S3  of the  Administrative Law Act  states:--

"Any person affected by a decision of a tribunal may make application (hereinafter called an application for review) to the Supreme Court or a Judge thereof for an order calling on the tribunal, or the members thereof (hereinafter called an order for review) and also any party interested in maintaining the decision to show cause why the same should not be reviewed."

It was conceded by counsel for the respondents that the committee of the Victoria Racing Club is a tribunal within the meaning of the section.

The following definition of decision appears in  s2  of the Act:--

"Decision' means a decision operating in law to determine a question affecting the rights of any person or to grant, deny, terminate, suspend or alter a privilege or licence and includes a refusal or failure to perform a duty or to exercise a power to make such a decision."

The argument advanced by counsel for the respondents was that the decision of the committee not to hear the appeal was not a decision which had any operation in law. He contended that the words "operating in law" limited the type of decision which could be reviewed pursuant to the provisions of the Act to decisions of tribunals made under statutory or subordinate legislation. In the present case, the committee of the Victoria Racing Club was not a tribunal acting under statutory or subordinate legislation but was a domestic tribunal whose jurisdiction was founded on consensual acceptance by those engaged in the various activities connected with horse racing.

In support of that proposition, counsel for the respondents pointed to the fact that the  Administrative Law Act  does not extend the jurisdiction of the Court, it simply empowers the Court to select from the several alternatives set out in  s7  of the Act, the remedy appropriate in the particular case, on the material adduced, and having regard to the grounds stated in the order for review.

That this is so is clear from the decision of the Full Court in Monash University v Berg [1984] VicRp 30; [1984] VR 383. That was a case in which a party to a private arbitration sought to challenge the award of the arbitrator by means of an order for review pursuant to the Act. In dealing with the purpose of the  Administrative Law Act , the Court said, at p. 388: "There can be little doubt that the principal purpose of the passage of the  Administrative Law Act 1978  was to eliminate the complexities which attended applications to the Court for the grant of prerogative writs and similar remedies directed to tribunals or other bodies charged with the performance of public acts and duties. In England the comparative procedure for judicial review of administrative tribunals was provided in 1977 by 0.53 of the RSC (Eng.) and followed on the recommendation of the Law Commission in their Report on Remedies in Administrative Law. The Order has received statutory confirmation in s31 of the Supreme Court Act 1981 (Eng.). Its effect has been recently reviewed by Lord Diplock in O'Reilly v Mackman [1982] 3 All ER 1124, esp. at pp. 1130-3. It should be noted that at the outset his Lordship drew the vital distinction between private law and public law, which in our opinion is important in the present case: see also Cocks v Thanet District Council [1982] 3 All ER 1135.

"When referring, at ([1982] 3 All ER 1135) p. 1128, to the importance of the Northumberland Compensation Appeal Tribunal case his Lordship said: 'What was there rediscovered was that the High Court had power to quash by an order of certiorari a decision of any body of persons having legal authority (not derived from contract only) to determine questions affecting the right of subjects.' (Emphasis ours.) The words within the brackets are important in the present case.

"It was sought by the  Administrative Law Act 1978  to introduce a single form of application to review decisions of administrative tribunals, namely an application for review to the Supreme Court:  s3.  On the return of the order for review, the Court is given power to grant such remedy as on the material adduced and the grounds set out it might have granted on the return of an application for any prerogative writ or in an action for quo warranto or in an action for a declaration of invalidity in respect of the decision, or for an injunction to restrain the implementation thereof:  s7. 

"In our opinion,  s7  does not intend to empower the Court to grant new remedies; nor does it do so. It simply empowers the Court to select from the several alternatives set out in the section, the remedy appropriate in the particular case, on the material adduced and having regard to the grounds stated in the order for review.

"Nor does the section enable any person affected by a decision of a tribunal to obtain a remedy which was not formerly available.

"The section emphasizes the limits of the Court's power by concluding with the words: 'but shall not exercise any other jurisdiction or power or grant any other remedy.'

"S3 and s7 of the Act eliminate procedural technicalities which attended the machinery of the prerogative writs and their applicability to administrative tribunals exercising quasi-judicial powers, by absolving the applicant from the need to select the remedy appropriate in the circumstances of the particular case. But, on the return of the order to review, the Court must decide what that appropriate remedy might be, in all the circumstances. The applicant is not--as often was the case--caught between two stools. If there is a remedy appropriate on the material adduced and on the grounds of the order for review then he is entitled to it.

"Thus, as certiorari and prohibition did not go to a private arbitrator before the  Administrative Law Act 1978  was passed, they do not go to him after it was passed."

What was contended by counsel for the respondents was that the decisions of the committee of the Victoria Racing Club were derived from contract only and that being so, certiorari and prohibition did not lie in respect of them. In that regard it was said the decisions of the committee were in a category similar to the decisions of the disputes committee of the National Joint Council for the Craft of Dental Technicians, decisions which were considered in a similar connection by the Court of Appeal in R v National Joint Council for the Craft of Dental Technicians (Disputes Committee); Ex parte Neate [1953] 1 QB 704.

In dealing with the question as to whether or not prerogative writs could be issued directed to that disputes committee, Lord Goddard CJ said, at ([1953] 1 QB 704) pp. 706-8: "In this case Mr. Bax obtained leave to move for orders of certiorari and prohibition directed to a body called the Disputes Committee of the National Joint Council for the Craft of Dental Technicians. I think possibly that the court giving leave may have thought at the time that the National Joint Council by reason of its name was a statutory body, but as soon as the court saw the papers in this matter it occurred to them to inquire about the constitution of this body because, unless there is a body set up by statute and which has duties conferred on it by statute so that the parties are bound to resort to it, it appeared to the court that it would be a very novel proceeding indeed if we issued these prerogative writs to it. It turns out that this committee are merely arbitrators appointed under an ordinary submission to arbitration contained in an indenture of apprenticeship."

... "But the bodies to which in modern times the remedies of these prerogative writs have been applied have all been statutory bodies on whom Parliament has conferred statutory powers and duties which, when exercised, may lead to the detriment of subjects who may have to submit to their jurisdiction. Where a statute, for instance, gives power for the compulsory acquisition of land, and an arbitrator is set up by Parliament to assess the compensation, or where, as in Rex v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171, the tribunal were a body on whom a great many powers had been conferred by Act of Parliament, it is essential that the courts should be able to control the exercise of their jurisdiction strictly within the limits which Parliament has conferred upon them. But that is quite a different thing from saying that an arbitrator can be controlled by this court by means of an order of certiorari or prohibition because, although the arbitrator is going to settle the dispute between the parties, in one sense he is the antithesis of a court. A person goes to arbitration because he does not want to go to the court. Therefore, he sets up his own private judge to decide the case, but the arbitrator is not deciding it as a judge, he is deciding it as an arbitrator and procedural rights and all matters relating to procedure are to be found in the Arbitration Act, 1950.

"Prohibition is a writ which lies from a superior court to an inferior court, Certiorari lies to bring up the decision or record of the inferior court to this court with a view to it being quashed. It is granted and directed to one of the inferior courts, such as magistrates' courts and county courts and it has been extended to the various bodies which have been entrusted by Parliament with duties partly of an administrative character and partly of a judicial character in some cases, but cases in which subjects may be affected by their decisions. There is no instance of which I know in the books where certiorari or prohibition has gone to any arbitrator except a statutory arbitrator, and a statutory arbitrator is a person to whom by statute the parties must resort.

"For these reasons, I think that it would be a great departure from the law relating to prerogative writs if we were to apply these remedies to an ordinary arbitrator, whether the arbitrator is a single arbitrator or a body of men who are called a council. For these reasons, I am of the opinion that we must dismiss these applications on the ground that they are wholly misconceived."

Is the committee of the Victoria Racing Club a body set up by statute and which has duties conferred on it by statute so that the parties are bound to resort to it?

The short answer to the question posed is, no.

Whilst the Victoria Racing Club Act 1871 provides that the members of the Victoria Racing Club may sue or be sued in the name of the chairman for the time being of the committee of the Club, that the committee of the Club may make by-laws, regulating the election admission and expulsion of members of the Club and that the committee of the Club may make by-laws prescribing the scale of tolls and charges to be levied or taken for admission to any land for the time being vested in the chairman, no duties are conferred upon the committee concerning the Rules of Racing and the Rules of Racing are not given any statutory effect.

Similarly, although there is reference to the Victoria Racing Club in the Racing Act 1958 (see in particular s11, s19, s24 and s34) there is nothing in that Act which confers duties upon the committee concerning the Rules of Racing.

The situation concerning the committee of the Victoria Racing Club may be contrasted with the situation which exists concerning the Victorian Trotting Control Board, now the Harness Racing Board, the Victorian Greyhound Racing Board, the Australian Jockey Club, the Queensland Turf Club and various other sporting bodies in Australia where the board is set up by statute or the jurisdiction of the board, or club, is reinforced by statute. Such bodies clearly make decisions which operate in law. In that regard see the decision of O'Bryan J in Robbins v Harness Racing Board [1984] VicRp 55; [1984] VR 641, a decision dealing with the Victorian Harness Racing Board; the decision of the Privy Council in Calvin v Carr [1979] UKPC 1; [1980] AC 574; [1979] 2 All ER 440, a decision dealing with the Australian Jockey Club, and the decision of the Full Court of Queensland in R v Wadley; Ex parte Burton [1976] Qd R286, a decision dealing with the Queensland Turf Club.

But that is not the situation so far as the Victoria Racing Club is concerned. Its jurisdiction to hear appeals from decisions of the stipendiary stewards is not reinforced by statute. Its jurisdiction to do so, is founded solely on consensual acceptance by those engaged in the various activities connected with horse racing. It is a private arbitral body which derives its jurisdiction from contract. There is no legislation which imposes upon it an obligation to comply with the Rules of Racing. The Rules of Racing which it administers bind not by force of statute, but by force of contract. It exercises its functions according to the Rules of Racing not according to statute. Its decisions, therefore, are not decisions which operate in law.

My opinion, therefore, is that this application for relief pursuant to the provisions of the  Administrative Law Act  is misconceived and the order for review must be discharged.

I order that the order for review be discharged with costs to be taxed including reserved costs and paid by the applicant.

Order discharged.

Solicitors for the applicant: GA Hardy and Co.
Solicitors for the respondents: Purves and Purves.