Heatley v Tasmanian Racing & Gaming Commission [1977] HCA 39

High Court of Australia Barwick C.J. Stephen, Mason, Murphy and Aickin JJ. Heatley v Tasmanian Racing & Gaming Commission [1977] HCA 39

ORDER Application for special leave to appeal granted. Appeal allowed. Order of the Full Court of the Supreme Court of Tasmania set aside and in lieu thereof order that the application for a writ of certiorari be granted. Matter remitted to the Supreme Court of Tasmania there to be dealt with according to law. Respondents to pay applicant's costs of the application to this Court, of the appeal to the Full Court of the Supreme Court of Tasmania, and of the application before Chambers J.

Cur. adv. vult.

The following written judgments were delivered:—

July 7 Barwick C.J.

The applicant for special leave was served with a notice given under the powers conferred on the Tasmanian Racing and Gaming Commission ("the Commission") by s. 39 of the Racing and Gaming Act, 1952 Tas. ("the Act") requiring him to refrain from entering any racecourse in the State of Tasmania during the currency of the notice which was stated to be until its rescission by the Commission. No notice of an intention to issue and serve the abovementioned notice was given to the applicant. The grounds upon which it was given were not stated, nor was any opportunity afforded to the applicant to make any representation prior to its issue. The question is whether, upon its proper construction, the power granted by s. 39 of the Act is qualified by the necessity to observe the requirements of natural justice before the notice is served.

I have recently attempted to state the effect of the case law on the basis on which the courts require that a statutory authority, having power to affect a citizen in his rights or property, is bound to hear him before exercising the granted power. In Twist v. Randwick Municipal Council [34] , I described the action of the court when deciding that the repository of the power was so bound to observe natural justice as a process of supplementing the legislation where the court was of opinion that such a course was not inconsistent with the terms of the statute. More recently, in Salemi v. MacKellar [No. 2] (Salemi's Case) [1] , I have emphasized that the court's function in this connexion is to construe a statute by which the power is granted and to educe the qualification of the power by construction of the statute. The court thus, if it is of opinion that the statute properly construed does require, though not expressly but implicitly, the observance of natural justice, does supplement the express language of the statute by effecting the qualification of the grant of power.