New South Wales Supreme Court CITATION : Waterhouse v Racing Appeals Tribunal [2002] NSWSC 1040 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4585/02 HEARING DATE(S) : 31/10/02 JUDGMENT DATE : 31 October 2002 Robert William Waterhouse (P) PARTIES : Racing Appeals Tribunal (D1) Thoroughbred Racing Board of New South Wales (D2) JUDGMENT OF : Young CJ in Eq P L G Brereton SC (P) COUNSEL : S Rushton SC and J D Smith (D2) (1st defendant submits) SOLICITORS : Jeffreys & Associates (P) Watson Mangioni (D2) CATCHWORDS : PROCEDURE [77]- Stay- Inherent power- Court exercising supervisory jurisdiction- Inferior tribunal's order- Argument in appeal- Virtually concluded- No right to work involved- Stay granted. McKinnon v Grogan [1974] 1 NSWLR 295 CASES CITED : P v Sexton (Studdert J, 6.7.1993, unreported) Petrou v Roads & Traffic Authority of NSW (Young J, 30.5.1991, unreported) DECISION : Stay granted. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION YOUNG CJ in EQ Thursday 31 October 2002 4585/02 –WATERHOUSE v RACING APPEALS TRIBUNAL & ANOR JUDGMENT 1 HIS HONOUR: This Court is currently hearing an application for declaratory or prerogative relief in respect of the decisions of the Racing Appeals Tribunal and the Appeals Panel of the New South Wales Thoroughbred Racing Board affecting the plaintiff. The argument has taken place for most of the day and some very serious questions have been posed for the Court's determination. To do justice to those arguments and to make sure no one can accuse me of looking at this matter too lightly and overlooking arguments, and because counsel for the second defendant wishes further time to put in additional submissions (quite justifiably), the Court is not in a position to give judgment now and I believe that for all practical purposes it will probably be another two weeks before it does. 2 In these circumstances counsel for the plaintiff has requested that I grant a stay of the Tribunal's decision to disqualify the plaintiff until judgment is delivered. 3 The grounds of appeal could be put under four heads. If some or all of those heads succeed, the result will be that the order for disqualification against the plaintiff/bookmaker for nine months from 16 August 2002 will be completely removed. If some of the grounds of appeal do not succeed, that disqualification will go, but the decision of the Panel that there be a suspension for nine months will not be displaced by the Tribunal's decision and will thus constitute the appropriate order of the Racing Authority. 4 There are two more possibilities. One is that there be an order setting aside the decisions and the matter be remitted. The fourth possibility is of course that the appeal will fail completely. 5 I have particularly been impressed with the arguments of Mr Brereton SC for the plaintiff that the learned member of the Tribunal misunderstood the nature of the appeal before him and that even if his view of the nature of the appeal was correct, it was incumbent upon the Tribunal to warn the plaintiff that the Tribunal was giving serious consideration to increasing the penalty imposed by the panel. 6 I have not reached a firm conclusion on this as Mr Rushton SC for the second defendant has put up some weighty arguments to the contrary and I will, of course, read the cases again and thoroughly evaluate both Mr Rushton's argument and Mr Brereton's for the plaintiff. But at the moment my view is that Mr Brereton's argument may well succeed. It is with no disrespect to him to say that at present his other arguments do not find much favour with me. 7 Accordingly, I have reached the position where I may well give some relief, but only relief which would reinstate the suspension rather than the disqualification. 8 I repeat again, in case there is any misunderstanding, it is quite possible after a full consideration I will come to one of those four results, that is, to allow the appeal, dismiss the appeal, reinstate the order for suspension or send the case back to the Tribunal. That is where my feeling is at the moment. 9 Having reached that view, the question is whether a stay should be granted. Any stay that may be granted will have to be on the basis that the suspension is in force but not the disqualification. I have been referred to a series of cases in the medical area such as P v Sexton, Studdert J, 6 July 1993, unreported, where the court has made it clear it has inherent power to grant stays in certain circumstances. I refer also to my own decision in Petrou v Roads & Traffic Authority of NSW, 30 May 1991, unreported. Indeed, Mr Rushton concedes the power. 10 However, the illustrations where the power to stay has been utilised to date have been cases where the right to work has been involved and particularly in the medical profession, where not only was the right to work of a doctor involved, but also the public interest in that there was need for the personal relationship between doctor and patient to be continued in the interests of the patients and the public. Neither of those factors is involved in the instant case. The right to work is not involved because, as I understand it, as a suspended person the plaintiff will not be permitted to work in the racing industry. The only effect will be that he can attend race meetings rather than, under the disqualification, being prohibited from so attending. 11 It is clear that that prejudice is not as great as the prejudice in the medical cases. However, there are some decisions of this Court in cases involving expulsions from clubs such as McKinnon v Grogan [1974] 1 NSWLR 295, 298 where judges have held that in present day Australia the right to attend a leagues club or sporting event is a right that is valued by most Australians, even though it may not be, strictly speaking, in the nature of a proprietary right. 12 Mr Brereton puts that no harm can be done to the defendants by granting such a stay. Mr Rushton disagrees with this and says that to allow this person, who has been the subject of the Tribunal, to be on the race track would undermine the whole authority of the disciplinary system within the racing industry. 13 With respect, that is putting the matter far too highly. Most judicial officers and administrators realise that there is usually a layer of appeal above them and that if the contrary order is made by the appellate court or authority, that really upholds the whole system of justice rather than in any way being a criticism or undermining the orders that have been made at lower levels in the hierarchy. 14 Accordingly, although it is a borderline case, it seems to me that it is probably appropriate to stay the disqualification until I give my decision in this case, on the basis that the plaintiff undertakes to the Court that he will treat himself as a suspended person under the order of the Panel for that period. ************************ Last Modified: 11/06/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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