Queensland Trotting Board v McLean [1972] HCA 13; (1972) 125 CLR 488 (25 February 1972)

HIGH COURT OF AUSTRALIA

QUEENSLAND TROTTING BOARD v. McLEAN [1972] HCA 13; (1972) 125 CLR 488

Inferior Tribunals

High Court of Australia
Barwick C.J(1), Owen(2) and Walsh(3) JJ.

CATCHWORDS

Inferior Tribunals - Trotting Board - Disqualification by stewards - Appeal to Board - Denial of natural justice on appeal - Prohibition - Certiorari - Whether Board can delegate function of hearing appeals - Whether appeal committee may include members who are not members of Board - Racing and Betting Acts Amendment Act, 1967 (Q.).

HEARING

Melbourne, 1972, February 25. 25:2:1972
APPEAL from the Supreme Court of Queensland.

DECISION

February 25.
BARWICK C.J. The respondents, the owner and driver of a horse in a race conducted on 15th September 1971 by the Albion Park Trotting Club, Queensland, were disqualified for a period of twelve months by the stewards of that club. (at p489)

2. They appealed to the Queensland Trotting Board pursuant to the Rules of Trotting. The committee of that Board, which I will refer to in what I am going to say as "the committee", all of the members of the committee participating, dismissed the respondents' appeal. (at p489)

3. The respondents sought of the Supreme Court prohibition to restrain the Board from further proceeding upon its decision to dismiss the respondents' appeal, and upon the disqualification of the respondents by the stewards. (at p490)

4. The Supreme Court was satisfied that the committee in hearing the appeal had denied the respondents natural justice. This opinion was founded upon evidence that the members of the committee in viewing films, one of the race in question and another of a race held on the prior week, allowed the chief steward of the Trotting Club to point out features of the film and perhaps otherwise to speak to them in the absence of the respondents. (at p490)

5. The Board now seeks the Court's special leave to appeal against the grant by the Supreme Court of a writ of prohibition against the Trotting Board, both in respect of its own decision and in respect of the stewards' disqualification, on two grounds: first, that the Supreme Court was in error in concluding that there had been a denial of natural justice and, second, that it had no authority to grant prohibition to restrain the committee or the Board from enforcing the disqualification by the stewards. (at p490)

6. I would not grant special leave to appeal on the first of these grounds as in my opinion there are no special grounds for doing so. But I would grant special leave to appeal on the second ground which in my opinion involves an important question of law. (at p490)

7. The Supreme Court granted prohibition in respect of the stewards' decision because their Honours who constituted the Full Court thought that there were no persons other than the members of the committee who could hear the respondents' appeal in conformity with the Rules of Trotting. (at p490)

8. Hart J., with whom the other members of the Court agreed, said this:

"If the rules provided for an alternate appeal committee
we could order a rehearing before that committee. But this
not being so, there is no tribunal which can properly hear the
appeal. If we remitted the matter to the Board justice would
not appear to be done . . ."
Honour continued:

"As the applicants should not lose their rights because of
a defect in the Board I am of opinion we should make the
order requested and prohibit the Board from implementing or
carrying into effect both its own decision and that of the
stewards."

In my opinion the appropriate prerogative writ in the case of a decision such as that made by the committee in this case, resulting from a hearing in which natural justice has been denied, is certiorari to quash and not prohibition to restrain further action upon the decision. Certiorari to quash would displace the decision and leave the appeal in this case on foot and unheard. (at p491)

9. The basis of the Supreme Court's prohibition of the enforcement of the stewards' disqualification seems to have been that only the members of the committee could lawfully hear the appeal and that they could not do so without that hearing being in breach of natural justice. (at p491)

10. I have no present need to discuss whether or not this was a justifiable ground for the order made, for we have heard argument on a submission of which the Supreme Court did not have the advantage, namely, that in accordance with the Rules of Trotting, which were before the Supreme Court, the Board can delegate the hearing of an appeal to a sub-committee which need not be composed of its own members. Of course, that submission disposes of the ground on which the Supreme Court acted in granting prohibition to restrain the enforcement of the stewards' disqualification. (at p491)

11. The submission has been fully debated before us as if on appeal. It has been submitted on the other hand, by the respondent to this application, that on the authority of cases such as Vine v. National Dock Labour Board (1957) AC 488, it is not legally possible for a body such as the Board to delegate what counsel called its "judicial functions". (at p491)

12. The Rules of Trotting themselves provide for the delegation of any of the Board's powers to a sub-committee, either of its own members or of any other persons as it may think fit. See r. 22 (m). Further, the rules contemplate that there can be an appeal committee to hear appeals. It may well be that the reference to an appeal committee contemplated a standing committee. Rule 119 expressly provides an alternative method of hearing an appeal, namely, by the committee or by an appeal committee. Throughout Pt XIV, which provides for the conduct of appeals, these alternatives are kept open. (at p491)

13. The definition of "appeal committee", if one were set up, contains no limitation of the personnel of the committee to members of the committee of the Board, and r. 122, whatever else it might mean, at least contemplates that the appeal committee so appointed may have members who are not members of the committee. Having regard to these provisions, I can find nothing in the Rules nor in the Racing and Betting Acts Amendment Act, 1967 (Q.) which requires the conclusion that the function of hearing appeals such as that lodged by the respondent is exclusively committed to the Board itself, that is to say exclusively to the members of the committee. (at p492)

14. Further, in my opinion, the Board is not confined in delegating its powers to hear appeals to the appointment of a standing committee to hear appeals. The express power of delegation of any of the Board's powers includes, in my opinion, the power of hearing an appeal. Thus I conclude that the Rules of Trotting contemplate that there may be a delegation of the power to hear appeals, either to a standing committee or to an ad hoc committee. I do not understand that such decisions as that in Vine v. National Dock Labour Board (1957) AC 488 require the conclusion that even under an express power of delegation there can be no delegation of any power which for its exercise requires that natural justice be accorded. (at p492)

15. I am of opinion that the Board is not limited to a delegation of its function to hear an appeal to the appointment of a standing committee to hear appeals, and that the Board may establish a committee to hear the respondents' appeal. (at p492)

16. Accordingly, without expressing any opinion whether the committee itself may hear that appeal, in my opinion, the order made by the Supreme Court for prohibition to restrain the Board from enforcing the stewards' disqualification ought not to have been made. (at p492)

17. In my opinion, therefore, special leave to appeal should be granted, limited to the points I have discussed. The appeal should be allowed to the extent of substituting certiorari for prohibition so far as concerns the decision of the committee and deleting from the order of the Supreme Court the order for prohibition which relates to the decision of the stewards of the Albion Park Trotting Club delivered on 15th September 1971. (at p492)

18. I would make no order for the costs of this application and appeal, leaving each party to bear its or their own. (at p492)

OWEN J. I agree. (at p492)

WALSH J. I agree. (at p492)

ORDER

Special leave to appeal granted limited to the question whether the Full Court of the Supreme Court of Queensland, having found that the Queensland Trotting Board had acted in breach of natural justice in hearing the appeal of John Edward McLean and Harry Vosilaitis, could grant the orders for prohibition made by it on 14th December 1971.

Appeal allowed. Order of the Supreme Court set aside and in lieu thereof order that a writ of certiorari issue to quash the decision of the Queensland Trotting Board made on 21st October 1971. The Queensland Trotting Board to pay the prosecutors' costs of the application in the Supreme Court.