Michael Christie v Agricultural Societies Council of NSW Ltd (ACN 150 951 670)

Notwithstanding the incursions of urban modernity, agricultural shows are still eagerly awaited annual fixtures in hundreds of communities around Australia. Horse competitions are staples of any show. This case is about what happens when the traditional show confronts the modern problem of horse doping.

Friday, 3 October 2014, was the second day of horse events at the 150th Wagga Wagga Show (the “Show”). On that day the plaintiff, Mr Michael Christie, rode Royalwood Black Swan (the “Horse”) to victory in the Galloway Champion Hack event. Mr Christie was also the Horse’s trainer. The Horse subsequently tested positive for prohibited substances (the “Substances”).

A disciplinary hearing (the “Hearing”) against Mr Christie and the Horse’s owner, Ms Edwina Cullen, was conducted under the auspices of the defendant, the Agricultural Societies Council of NSW Ltd (the “ASC”) on 24 March 2015 by its disciplinary committee (the “Committee”). Every step in the disciplinary process, from selecting the Horse for testing to presiding over the Hearing, was undertaken, overseen or procured by the Committee’s chairman, Mr Tim Capp.

Ms Cullen confessed that she alone had given the Horse the Substances. It was also clear that Mr Christie knew nothing of the administration of the Substances to the Horse until Ms Cullen had told him about it immediately after the event as the Horse was being led away for testing.

In relation to Ms Cullen, the Committee:

There was no doubt at the Hearing that Mr Christie knew nothing of Ms Cullen’s conduct when he rode the Horse. Furthermore, the Committee had discretion under the Rules whether or not to suspend Mr Christie from competition. Against that background, the Committee nevertheless imposed a 12 month suspension from competition on Mr Christie, also backdated to 3 October 2014 (the “Decision”). However Mr Christie was not fined.

Mr Christie challenges the Decision. The parties agreed that these proceedings raised eight questions. Those questions and the Court’s answers are:

These proceedings were commenced by an urgent ex parte application before Stevenson J sitting as Duty Judge on 2 April 2015. Mr Christie wished to participate in an equestrian event at the Sydney Royal Easter Show on 4 April 2015, but had been informed by the Royal Agricultural Society of NSW that because of the Decision he would not be permitted to compete. His Honour granted an interlocutory injunction which had the effect of rendering the Decision temporarily inoperative.

On 13 April 2015, Lindsay J sitting as Duty Judge extended the injunction by consent until further order. The proceedings were then expedited by order of Sackar J on 12 June 2015 and came before me for hearing on 16 July 2015. Mr A.T. Schlicht of Counsel appeared for Mr Christie. Mr L. Gor of Counsel appeared for the ASC.

The relevant facts were not in dispute either at the Hearing or before this Court.

Mr Christie is a professional horse trainer, rider and instructor whose ability to compete in equestrian events is an element of how he derives his living.

The ASC is an unlisted public company limited by guarantee registered under the Corporations Act 2001 (Cth) on 19 May 2011. It is a not for profit organisation whose constitution states that the purpose of the ASC is to provide support services to member show societies and related groups in order to assist them in their contributions to the fabric of their communities and for the pursuit of excellence in primary production and related activities.

The ASC does not conduct agricultural shows and it was not responsible for the conduct of the Show. The Wagga Wagga Show Society Inc was responsible for the Show and was one of approximately 195 agricultural show society members of the ASC at the time.

In early 2013, at the request of its members, the ASC started providing a random blood testing service for their benefit. That service is provided through the Committee. The Committee operates in accordance with a set of written rules promulgated by the ASC (the “Rules”). Those parts of the Rules relevant to these proceedings are set out in Schedule A to these reasons. Significant features of the Rules include:

At all material times, Mr Capp was the chairman of the Committee.

Unbeknown to Mr Christie, in the days leading up to the Show Ms Cullen had administered the Substances to the Horse. The Substances were phenylbutazone and promazine sulphoxide. One is a sedative which has the effect of relaxing the animal and the other is a pain killer used to reduce swelling and discomfort. There was no dispute before the Committee or this Court that each of the Substances was a “prohibited substance” under the Rules.

The program for the Show contained this notification at the top of each page for each event:

Mr Capp was the sole ASC official at the Show. Immediately after the Horse won its event, Mr Capp selected the Horse to be swabbed. Thereafter, every step in pursuing the matter up to and including the conduct of the Hearing was undertaken, overseen or procured by Mr Capp:

Laboratory analysis of the swabs taken from the Horse established the presence of the Substances.

In anticipation of the Hearing, on 3 March 2015 Mr Christie’s solicitors wrote to Mr Capp with questions including “Please advise the names of the Panel Members that will comprise the Committee Panel for the hearing”. By letter dated 9 March 2015, Mr Capp responded to that question: “The members of the Panel will consist of not less than three and not more than seven. They will all be Directors of the Board of the ASC and will be introduced to Mr Christie on the day”.

The Hearing was conducted on 24 March 2015. The Committee comprised Mr Capp as chairman and members Mr J Stevenson, Mr G Shields and Ms S Sharp. Mr Christie appeared for himself, reading from a submission prepared by his solicitors. Ms Cullen appeared supported by her husband, Mr Rod Cullen.

Ms Cullen submitted a letter dated 23 March 2015 to the Committee which included (sic):

After hearing from Mr Christie and Ms Cullen, the Committee retired to consider whether or not there had been a breach of the Rules. The Committee returned to the hearing room and Mr Capp informed those present that the Committee had come to the view that a breach of the Rules had occurred. The Committee then invited submissions on penalty. A complete transcript of the hearing was tendered in these proceedings. The transcript of the balance of the hearing concerning penalty and the Committee’s decision (summarised in paragraphs [5] and [6] above) is reproduced in Annexure B.

The Committee is a private or domestic tribunal, that is to say it is not established by statute but operates under private law arrangements which may be contractual or something else. The ASC submitted that the Decision was private in character and was legally binding on no one, other than perhaps through private arrangements. That private character was not lost even if Mr Christie demonstrated the Decision could adversely affect his livelihood. Taking all of these matters into account the Decision was, so it was submitted, not justiciable under the common law of administrative review.

The ASC’s submission is not sustainable by reason of the decision of the New South Wales Court of Appeal in Mitchell v Royal New South Wales Canine Council Ltd [2001] NSWCA 162; (2001) 52 NSWLR 242 (“Mitchell”). In that case, the appellant was a member of the respondent. The latter’s disciplinary committee had found the appellant guilty of misconduct.

Dealing with the Court’s jurisdiction to intervene, Ipp A-JA (with whom Mason P and Stein JA agreed) said:

The ASC sought to distinguish the application of Mitchell and the Victorian Court of Appeal’s decision in Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546 (“AFL”) on the basis that the appellant in Mitchell was a member of the respondent and in AFL because all three parties (the AFL, the Carlton Football Club and the player concerned) were in a contractual relationship. In this case Mr Christie was not in a contractual relationship with the ASC.

The Court does not accept that to focus on such matters is a valid point of distinction. The principle guiding whether or not a court will interfere in a decision of a domestic tribunal demonstrated by cases such as Mitchell and AFL requires an examination of the nature or quality of the effect of the decision on someone such as Mr Christie rather than analysing the legal framework for how the decision was made or can be enforced. The cases demonstrate that the effect of a decision will have the necessary quality to enliven the Court’s jurisdiction if, for example, the Court is satisfied that it will have an effect on private legal rights such as rights in property or adverse financial or reputational impact on someone, particularly insofar as their livelihood is concerned. The categories of the necessary quality of the impact of the decision are not closed. However, the emphasis in the authorities on interference with matters such as property rights or livelihood suggests that the Court’s jurisdiction is unlikely to be engaged where the impact of a decision is de minimis or gives rise merely to personal inconvenience or distress.

It is true that in this case Mr Christie had no contractual relationship with the ASC. He was not a member of either the Wagga Wagga Show Society Inc or the ASC. Furthermore, it was not suggested by anyone that the ASC had a legally enforceable mechanism to ensure that decisions of the Committee were given effect by the ASC’s member societies or anyone else. But the fact that the mechanism for enforcing the Decision was voluntary does not, having regard to cases like Mitchell and AFL, take the Decision outside of the scope of the Court’s power to review it. There is no evidence to suggest that the Decision would not be enforced. On the contrary, there was evidence that the Decision, again through voluntary arrangements, would have a real impact on Mr Christie. This was because the Royal Agricultural Society of NSW, while not a member of the ASC, had a reciprocal arrangement with the ASC whereby each would enforce the other’s disciplinary findings. The adverse effect of that voluntary, reciprocal arrangement on Mr Christie is why the proceedings were first commenced (see paragraph [8] above).

There was no dispute that the Decision had the capacity adversely to affect Mr Christie’s ability to earn his livelihood. The adverse effect was potentially both financial and reputational. That having been established, and applying the principle in Mitchell, the Court concludes that the Decision is justiciable.

The answer to Question 1 is “yes”.

In Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229-30 Lord Greene MR (with whom Somervell LJ and Singleton J agreed) set out what has become the eponymous test for unreasonableness in administrative law (“Wednesbury unreasonableness”) (emphasis added):

The ASC submitted that the Wednesbury unreasonableness principle does not apply to domestic or private tribunals such as the Committee. That submission was based upon a dictum of Dixon J (as his Honour then was) in Australian Workers Union v Bowen No 2 (1948) 77 CLR 601 at 628 (“Bowen”) (citations omitted; emphasis added):

The ASC submitted that Bowen remains good law which had not been questioned by the High Court. Attention was drawn to what was submitted to be its application in courts of first instance.

In Shepherd v South Australian Amateur Football Inc (1987) 44 SASR 579 at 584, Cox J said, after citing Bowen earlier in his reasons (citations omitted):

The ASC also drew attention to the decision of Davies AJ in Hewett v Royal Volunteer Coastal Patrol [2001] NSWSC 1140, where his Honour said:

Mr Christie submitted that Dixon J’s dictum in Bowen was not inconsistent with the application of Wednesbury unreasonableness. Furthermore, he argued that two Victorian Court of Appeal decisions – AFL and Cromwell Property Securities Limited v Financial Ombudsman Service Limited [2014] VSCA 179 (special leave refused (2015) HCA Trans 027; 13 February 2015) (“Cromwell”) – supported the proposition that Wednesbury unreasonableness could be applied to decisions of domestic tribunals.

Because the consideration of these arguments requires a detailed examination of the authorities to which reference has been made, it is convenient to state the Court’s conclusions at the outset:

Obviously enough, Bowen antedates Wednesbury. It is therefore necessary, for the sake of clarity, to avoid shorthand tags and identify the principles concerned. Wednesbury concerned the exercise of a power by a local government authority conferred upon it by statute to act as a licensing authority in relation to cinemas. The case stands for the proposition that the Court will interfere with a decision if it comes to the conclusion that the decision is so unreasonable that no reasonable body could have made it and that to meet that test “something overwhelming” is required. The ASC’s argument is that Bowen prevents a principle to that effect being applied to domestic tribunals in Australia.

The starting point to analyse the ASC’s argument itself antedates Bowen and is to be found in the decision of the High Court in Dickason. In that case Mr Dickason was a member of a friendly society in Victoria called the Ancient Order of Foresters of the United Melbourne District. The judgment of the High Court decorously avoids reciting the detail of the facts. However, recourse to the judgment at first instance (Dickason v Edwards [1909] VLR 403) discloses that Mr Dickason “in a state of excitement” said to the District Executive “You and the whole of the District executive officers are a dirty, mean, low, lousy lot of mongrels, and I say it to your face”. Additionally, Mr Dickason is said to have referred to the District Chief Ranger of the Order as a “bloody mongrel”. Those and other utterances led to Mr Dickason being charged with “conduct calculated to bring disgrace upon the Order”. A District Judicial Committee of the Order, at which the District Chief Ranger was present and presided as chairman, found the charges proven and expelled Mr Dickason.

There is no doubt the District Judicial Committee was a domestic tribunal. Neither the first instance nor appellate reports of the case recite a rule in relation to the Committee specifying whether or not it was bound by the rules of evidence. However a reported rule that “this Committee shall have full power to call for all papers, books, and documents or other evidence they may consider necessary for a fair and impartial investigation” suggests that it was not so bound, but there is no evidence expressly to that effect.

The decision of the High Court was that the Committee’s decision was vitiated because the District Chief Ranger presided over the Committee, even though he took no active part. It was sufficient that because he was the object of one of Mr Dickason’s outbursts, he had a personal interest in the outcome and should not have sat. What is not often noted is that the High Court also considered argument that Mr Dickason’s conduct could not, on any view, meet the description of being “calculated to bring disgrace upon the Order”. What is significant for present purposes is that two of the three judgments accepted that the Court would not embark upon an analysis of that submission on the merits but would only interfere if the relevant characterisation of the conduct was so unreasonable that no reasonable person could have come to the conclusion that the relevant test had been satisfied.

Griffiths CJ (at 249) introduced the concept of reasonableness but did not develop it further:

O’Connor J said (at 254-255; emphasis added);

The third judge constituting the High Court was Isaacs J, who said (at 257-258; emphasis added):

It follows from this analysis of Dickason that the case stands for the proposition that the Court will not embark on a merits review but will interfere with a decision of a domestic tribunal if the Court is satisfied that no reasonable person could have come to the conclusion which the tribunal did. Whether there is any difference in practice or principle between the formulations of O’Connor J and Isaacs J it is not necessary to decide in this case because the outcome is the same whichever is applied. I would only record my doubt that there is any real difference between the two because in the context of decision makers I suggest reasonableness incorporates honesty and vice versa: a dishonest but reasonable decision maker is not something the law would postulate.

Against that background it is then necessary to consider the decision in Bowen. There are four reasons, which will be demonstrated by reference to various parts of that decision, why the Court has concluded that Dixon J’s dictum does not prevent an unreasonableness test of the kind postulated in Dickason and Wednesbury being applied to decisions of domestic tribunals:

The nature of the case and the way in which that part of it was argued appears in the judgment of Latham CJ (at 606; emphases supplied except in the penultimate sentence):

Significantly for present purposes, in a later part of his judgment, Latham CJ appears to accept that an analysis of the reasonableness of the decision could demonstrate that the relevant rules had not been observed but again emphasised that the case had been argued in terms of good faith. The learned Chief Justice said (at 609):

The Chief Justice went on to deal with the reasonableness argument, without ever suggesting that it was an impermissible means of challenging the decision. After setting out the relevant findings, he overturned the trial judge’s decision that no proper ground of misconduct had been shown to exist by saying (at 614-615):

Latham CJ again seems to draw no distinction between the concept of honesty and reasonableness. At least in the way it is used in these cases, either expressly or implicitly honesty necessarily connotes reasonableness and reasonableness necessarily connotes honesty. In this field of discourse the possibility of an honest but unreasonable decision is not countenanced. Putting it another way, a decision which is unreasonable in the sense that no reasonable decision maker could have made it will lead to the conclusion that the decision was not bona fide or honestly made. This approach reaches the same point as, and is not inconsistent with, Dixon J’s dictum.

Justice Rich (at 618) expressed himself to be “in general agreement with the reasons given by my colleagues for allowing the appeal”. Justice Starke (at 619) agreed with Dixon J.

Williams J also approached the matter in a way where honesty and reasonableness were essentially connected. His Honour said (at 634-635; citations omitted; emphasis added):

Insofar as Dickason is concerned, it is cited in Bowen by Latham CJ (at 605, 616, 617 and 618), by Dixon J (at 631) and by Williams J (at 640). While none of their Honour’s citations of Dickason relate to those passages which I have identified concerning the application of reasonableness to the decisions of a domestic tribunal, there is nothing in the judgment of the High Court in Bowen to suggest that their Honours disagreed with anything in Dickason.

Finally, if I am wrong in concluding that Dixon J’s dictum does not preclude Dickason or Wednesbury unreasonableness in domestic tribunals or is obiter dicta, then I do not consider that his Honour’s view forms part of a majority decision binding upon me. Dixon J’s judgment is agreed in by Starke and Rich JJ. On the other hand both Latham CJ and Williams J appeared to invoke concepts of reasonableness. Sir George Rich also agreed with them. Rich J’s position of agreeing with all of his brethren means that there is no majority in favour of Dixon J’s analysis. The High Court is equally divided.

In AFL, the AFL Tribunal had decided that a player, Mr Williams, had breached paragraph 16.9.1 of the Laws of Australian Football by unduly interfering with an umpire. The AFL Tribunal’s decision was set aside by the trial judge, who decided that the AFL Tribunal had misconstrued Rule 16.9.1 and made a decision which no reasonable tribunal paying proper regard to the evidence could have reached. The Victorian Court of Appeal allowed, by majority, an appeal from the trial judge. Nevertheless, all three judges appeared to accept that a decision of a domestic tribunal could be interfered with if that decision was one which no reasonable tribunal could have reached. However, each judge expressed that principle in a slightly different way.

The judgment of Tadgell JA contains an extensive discussion of when the Court will interfere with a decision of a domestic tribunal (cited in Mitchell at paragraph [26] above). His Honour summarised his understanding of the law to be (at 551-552):

However, the value of AFL as precedent for present purposes is constrained by the fact that the appellant in that case conceded that the Court could interfere to declare the Tribunal’s decision to be of no effect if there was no reasonable basis of fact or law for making it. It was in the context of explaining this concession that his Honour then went on to explain how he saw no inconsistency between the decision of the High Court in Dickason and what Dixon J said in Bowen and expressing his Honour’s conclusion that Dickason stood for the proposition that courts may interfere with the decision of a domestic tribunal if no honest and reasonable tribunal could have made that decision. I respectfully adopt his Honour’s reconciliation of Dickason and Bowen. It is necessary to set out what his Honour said at length (at 557-558):

The judgment of Hayne JA (as his Honour then was) focused on the contention that no reasonable person could have come to the conclusion that the AFL Tribunal did when it found that Mr Williams had committed a breach of Rule 16.9.1. That contention reflected the concession made by the AFL. In the course of his reasons, his Honour identified a number of matters which had been the subject of submissions, but which it was not necessary to decide. These included (at 567):

His Honour then went on to recognise both Dickason and Wednesbury unreasonableness could apply to domestic tribunals (at 568-569):

In his judgment, Ashley AJA noted (at 577) the various concessions made by the AFL, which included that the AFL Tribunal could not make a finding at which no reasonable person could honestly arrive. That led to a further concession which his Honour described as a reworking of an earlier concession, to the effect that if there was “no evidence” to support a finding that a charge had been established, the Court would have jurisdiction to interfere. It was by reference to what his Honour described as the “no evidence” principle that he concluded, in the minority, that there was no material before the AFL Tribunal which permitted it to make the decision which it did. In doing so, his Honour summarised his understanding of the “no evidence” principle to be (at 578-579):

Strictly speaking the Victorian Court of Appeal’s decision in Cromwell also does not advance matters further. This is because, like in AFL, the parties to the appeal accepted that, as a minimum, review could be undertaken by the court on grounds of Wednesbury unreasonableness (per Warren CJ and Osborne JA at [63]). The real point for decision was whether the contractual arrangement involved in that case (which related to the resolution of disputes in the financial services sector) had implied into it an obligation to act reasonably (as opposed to the Wednesbury standard of not being so unreasonable that no reasonable decision maker could have made the relevant decision). The majority held that the relevant decision was not unreasonable in the Wednesbury sense and that an obligation to act reasonably could not be implied.

Tait JA, in the minority, agreed that the basis for review was the public law standard of Wednesbury unreasonableness. However, unlike the majority, his Honour concluded (at [163]) that the relevant decision was unreasonable in the Wednesbury sense.

Insofar as the ASC relies on the decision of Cox J in Shepherd, the Court concludes:

Cox J’s essential process of reasoning (at 584-585) was that Wednesbury unreasonableness had only been applied in England and Australia to strike down a decision of public authorities and that there was no case in which the case had been applied to a voluntary association. This led to his Honour’s conclusion (at 585) that “the history of the jurisdiction, as well as the reported examples of its exercise, show that it is restricted to the supervision of statutory and other public bodies”. I respectfully do not agree that his Honour’s process of reasoning demonstrates why, as a matter of principle, Wednesbury unreasonableness would not apply to the decisions of domestic tribunals.

This Court is not bound by his Honour’s decision and I respectfully decline to follow it.

Finally, Hewitt does not assist the ASC. The issue before Davies AJ in that case was whether the plaintiff’s conduct could constitute conduct prejudicial to the interests of the defendant. His Honour (at [21]-[23]) rejected the submission that it was not open for the defendant’s Council to form the view that the plaintiff’s conduct was conduct which was prejudicial to the interests of the defendant. There was no submission before his Honour as to the applicability or otherwise of Wednesbury unreasonableness to the decisions of domestic tribunals.

Question 2 is answered “Yes”.

Paragraph 26 of the amended statement of claim pleads:

At the hearing before this Court Mr Christie no longer pressed the suggestion that the ASC had failed to prove that the administration of the Substances was a Level 2 offence. He was right to abandon that contention.

Mr Christie’s submission of Wednesbury unreasonableness must be measured against two features of the Rules. Although the relevant Rules are set out in Annexure A to these reasons, the two rules most pertinent to this stage of the enquiry are reproduced here for convenience:

In the events that happened there was no doubt that Mr Christie had breached Rule 25(a) by “[permitting] a horse to which a Prohibited Substance has been administered to compete”. That breach occurred irrespective of whether or not he knew that the Substances had been administered to the Horse. Any doubt about his being in breach was removed by the deeming provision in Rule 25(b). Nevertheless, the last paragraph of Rule 31 gave the Committee a discretion as to who it should suspend. The essence of Mr Christie’s submission of Wednesbury unreasonableness was that, in circumstances where it was clear that he knew nothing of the administration of the Substances to the Horse, it was unreasonable in the Wednesbury sense for the Committee to have exercised its discretion by imposing the 12 month suspension.

In its submissions the ASC pointed to a number of reasons why the Decision was reasonable. While that approach is understandable, it invites the Court to engage in a merits review. That invitation must firmly be resisted.

A recent and, with respect, helpful exposition of Wednesbury unreasonableness is found in the judgment of the plurality in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, where Hayne, Keiffell and Bell JJ said (citations omitted):

The conclusion of their Honours’ analysis which has just been quoted invites the Court, where Wednesbury unreasonableness has been raised, to answer the question: does the decision lack an evident and intelligible justification? There can be no doubt that Mr Christie’s submission has a strong initial attractiveness. While the Committee could not impose less than the minimum 12 month suspension under the Rules, it nevertheless appears to be harsh and unfair to have suspended him at all (even when discounted in reality by backdating) when Mr Christie was indisputably ignorant of the administration of the Substances. However, to approach the matter in that way is to slide into merits review or replacing the Decision with what the Court might have thought was the just outcome. All of the relevant authorities makes it clear that such an approach impermissible.

This potential error will be avoided by focusing on the question of whether the Decision lacks an evident and intelligible justification. The Court is clearly of the view that the Decision does not lack an evident and intelligible justification. The scheme of the Rules in a situation such as this is to deem Mr Christie to have been, irrespective of his ignorance of the administration of the Substance, responsible for the breach. In addition to being the rider, he was the trainer. The Committee clearly took the view that he could not avoid responsibility by pleading ignorance. That approach was not outside the permissible range of how the Committee might exercise its discretion in relation to suspending Mr Christie. That conclusion applies whether or not the Committee’s decision in relation to Ms Cullen is also taken into account.

A telling way of testing the Court’s conclusion is by offering an answer to the rhetorical coup de grace posed by Mr Schlicht in his oral submissions in reply for Mr Christie. Mr Schlicht submitted:

It was within the permissible range of decision making for the Committee to have looked at the matter not by reference to Mr Christie’s lack of involvement but rather by reference to the responsibility imposed upon him by the Rules as both the rider and, in practical terms, the trainer. Answering Mr Schlicht’s point one could say Mr Christie might have been less involved had he exercised responsibility by asking Ms Cullen before he rode the Horse whether or not she had administered anything to the Horse in the days leading up to the Show. It was open to him to have done so. The matter might have had a very different outcome if, for example, he had asked Ms Cullen that question and she had not told him the truth. To approach the matter in this way is to do no more than demonstrate what the Committee appears to have taken into account, permissibly, that there may have been other things which Mr Christie could have done reflecting his responsibility for the Horse both under the Rules and in reality.

I should record that while not pleaded, it was faintly submitted in argument that to the extent the Committee had taken into account that Mr Christie was also the Horse’s trainer, it had taken into account an irrelevant matter. The submission was not developed and it is sufficient to say that I do not accept it was an irrelevant consideration, particularly in relation to penalty. It was appropriate to recognise that Mr Christie had a greater connection with and responsibility for the Horse than if he had just been a casual rider.

Question 3 is answered “No”.

This question does not arise.

Paragraph 27 of the amended statement of claim alleged:

Mr Capp’s role in relation to the investigation and the Hearing is set out in paragraph [18] above. There was no dispute that with the exception of taking the swabs and undertaking the laboratory analysis, Mr Capp personally undertook, oversaw or procured every step in the process from selecting the Horse for testing at the Show through to chairing and conducting the Hearing and participating in making the Decision. In considering this part of Mr Christie’s case it is important to record that no submission of actual bias, dishonesty or impropriety was, or could have been, made against Mr Capp. The challenge at this point of the argument depended upon Mr Christie’s submission of apprehended bias on the part of Mr Capp by reason of his omni-competent role.

Mr Christie’s submission was squarely founded on the recent decision of the High Court in Isbester v Knox City Council [2015] HCA 20 (“Isbester”). The issue in that case was whether a decision to destroy a dog taken by a committee of Knox City Council should be quashed because of the substantial involvement of a member of that committee both in the prosecution of civil charges concerning the dog and then in the decision of the committee as to the fate of the dog.

In Isbester, the Council officer concerned was one Ms Hughes, who was the Council’s Co-ordinator of Local Laws. In paragraphs [3] to [10] of the judgment of the plurality, their Honours set out the facts of Ms Hughes’ involvement. In summary, Ms Hughes was clearly the moving force in the preparation and conduct of a prosecution against the dog’s owner in the Magistrate’s Court and the subsequent convening of a Council committee, on which Ms Hughes sat, to determine whether or not the dog should be destroyed. She gave directions concerning the gathering of evidence before the Magistrate’s Court hearing and the provision of further information for the committee hearing. She participated fully in the decision making process of the Council committee and agreed in cross-examination that she had played a major role.

The High Court accepted that the relevant principle for apprehended bias was that stated in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344 (“Ebner”), where it was said that “a judge is disqualified if a fair minded observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.

Their Honours explained how the relevant principle was to be applied (citations omitted):

Having come to the conclusion that Ms Hughes “was certainly the moving force” (at [43]), their Honours went on to discuss the type of interest a participant in a decision might have that would lead to disqualification:

Mr Christie submitted that the level of Mr Capp’s involvement in the ASC’s disciplinary process in this case was indistinguishable from the level of Ms Hughes’ involvement in Isbester which led the High Court to conclude (at [50]) that “a fair minded observer might reasonably apprehend that Ms Hughes might not have brought an impartial mind to the decision …”.

The ASC sought to meet the submission in two ways. First, as a matter of fact it contended that Mr Christie’s characterisation of Mr Capp’s role overstated Mr Capp’s part in the proceedings. It was submitted that Mr Capp’s presence at the Show was a random event and that in everything he did thereafter he was just “doing his job” and that much of what he did was administrative or ministerial. The ASC’s second response was that, as a matter of law, successfully to challenge a decision of a domestic tribunal required actual bias to be demonstrated rather than only a reasonable apprehension of bias.

The ASC’s factual submission can be dealt with in short compass. The fact that Mr Capp was “only doing his job” as chairman of the Committee and that some of what he did was administrative or ministerial in character is not to the point. All of that effort, undoubtedly diligently performed, drove the entire process. There can be no doubt that Mr Capp was the “moving force” and he conceded as much in cross-examination. As the High Court pointed out in paragraph [23] of Isbester (see paragraph [87] above), the hypothetical fair minded observer would be taken to have knowledge of the circumstances leading to the decision including all aspects of Mr Capp’s involvement. The Court agrees that his role is factually and legally indistinguishable from that of Ms Hughes in Isbester.

The High Court dealt with a similar “only doing her job” submission in relation to Ms Hughes:

The same reasoning applies to answer the ASC’s factual response in this case. There is an additional element which fortifies the Court in the conclusion which it has reached on this point. Among the information which the hypothetical fair minded observer would have to take into account would be the fact that, under the Rules, the Committee only had to comprise three members. It was not a situation where Mr Capp had to sit as a member of the Committee. No principle of necessity could be invoked to justify Mr Capp’s participation in the hearing (see the reference to this principle in Isbester (at [35]).

The fact that Mr Capp participated in the Hearing when he did not have to would, when taken with the totality of his other involvement in the matter, only reinforce the fair minded observer’s reasonable apprehension of the possibility of a lack of impartiality. To adopt the High Court’s language of “interest”, Mr Capp’s interest as moving party might be expressed as an interest in seeing the vindication of the process which he had initiated, overseen and procured at every stage. That is sufficient to give rise to “the possibility of a deviation from the true course of decision making” (Isbester at [45]) so as to warrant the Decision being quashed.

The ASC’s legal answer to this part of Mr Christie’s case was to submit that in the case of domestic tribunals actual bias had to be shown rather than merely establishing a reasonable apprehension of bias. The ASC’s written submissions asserted that this proposition was decided in Bowen and had not been overruled by Isbester. Furthermore, it was submitted that Bowen had been applied to this effect in this Court by Ball J in Young v New South Wales Radio Yachting Association Inc [2013] NSWSC 383 (“Young”).

In neither its written submissions nor in the course of Mr Gor’s address was the ASC able to point to a particular passage in Bowen which in terms expressed the proposition that the test for domestic tribunals was one of actual bias. That is unsurprising. As has been demonstrated in the analysis of Bowen set out in paragraphs [47] to [55] above, the case sought to be made in Bowen was one of actual bias or real mala fides. The court was dealing with a submission that apprehended or assumed bias was sufficient. So much is apparent from the judgment of Dixon J, where his Honour said (at 630):

Dixon J disposed of that aspect of Bowen in terms that we would today recognise as encompassing an allegation of actual bias (at 361):

Latham CJ acknowledged the possibility of what his Honour referred to as “probable” bias as a vitiating factor. However his Honour did not decide that part of the case by reference to the concept of bias in terms. His Honour said (at 617), “But on this part of the case I prefer to rest my decision upon the fact that the decision of the learned judge was based, not upon any finding of actual or probable bias, but upon the fact that Dougherty was “prosecutor””.

Williams J, in assessing the application of the principle that it was contrary to natural justice for a person to be both prosecutor and judge at the same time did analyse it in terms of bias and cited authority to the effect that what he described as “assumed bias” extended beyond the judicial setting (at 639):

Just as Bowen does not stand for the proposition for which the ASC contends, neither does Young. Justice Ball’s application of Bowen was, with respect, entirely apt because the allegation in Young was one of actual bias. So much is apparent from his Honour’s description of Mr Young’s complaint (at [50]):

As with Bowen, the case in Young was not framed in terms of reasonable apprehension of bias. Ball J, after citing Bowen and considering the evidence before him, came to the conclusion (at [60]) that he did “not think that the evidence establishes that Mr Jarvis and Mr Bicknell were “invincibly biased” against Mr Young to use the words of Dixon J”. Nothing in Young addresses or supports the ASC’s proposition that only actual bias is sufficient to vitiate the decision of a domestic tribunal. Ball J did not have to consider a case of anything less than actual bias.

Finally, the Court is unable to discern anything in Isbester which supports the ASC’s submission. The judgment of plurality and the concurring judgment of Gageler J addressed the application of the principle concerning reasonable apprehension of bias in entirely general terms. However, in doing so, it should be noted that the plurality made the more nuanced and, with respect, unimpeachable observation at [22] that the content of the test for reasonable apprehension of bias would vary in accordance with the type of the decision and the nature of the decision maker:

Taking this observation of the plurality into account, the Court notes that the ASC’s submission did not go beyond the contention that actual bias was required in the case of domestic tribunals. In the light of the authorities to which the Court has referred, that submission is wrong. The ASC did not go on to develop a submission that there was anything about the particular circumstances of the Committee, the Hearing and the Decision that warranted the content of the test differing in some way so as to minimise the scope for the application of the test of reasonable apprehension of bias.

Since the ASC’s factual and legal challenges to Mr Christie’s reliance on Isbester both fail, question 5 is answered “Yes”.

In Bowen, Latham CJ adverted to the possibility that a party could waive its objection to a decision maker who might otherwise be disqualified (at 618):

The ASC submitted that because Mr Christie had communicated and dealt with Mr Capp throughout the period from the testing of the Horse up to and including the Hearing, Mr Christie had full knowledge and was aware of all the facts upon which an objection to Mr Capp could be based. It said that, in those circumstances, Mr Christie must be taken to have waived any right to object to Mr Capp participating in the Hearing because Mr Christie raised no objection at the time of the hearing.

Mr Christie was correct to take issue with this submission.

The issue of waiving a right to object to a decision maker was recently considered by the New South Wales Court of Appeal in Brown Brothers v Pittwater Council [2015] NSWCA 215. McColl JA (Macfarlan JA and Tobias AJA agreeing) said (emphasis added):

There was no waiver by Mr Christie in this case for three reasons:

Question 6 is answered “No”.

Mr Christie submitted that the transcript disclosed that the Committee had predetermined Mr Christie’s penalty such that the Court would find that the Decision should be vitiated on the ground of there being a reasonable apprehension of bias. Mr Schlicht properly eschewed any suggestion that a submission of actual bias was being made.

The entirety of the transcript of the Hearing in relation to penalty is reproduced in Schedule B to these reasons. However, it is convenient to reproduce here the short exchange at the outset of that part of the Hearing upon which Mr Christie relies:

The ASC submitted that, taking that exchange in context, it is not possible to conclude that there was any predetermination of penalty. The Court accepts the ASC’s submission.

The fundamental reason for accepting the ASC’s submission is that the exchange fastened upon by Mr Christie is remarkably unclear. Mr Cullen’s question “.. is there any discretion in those rules?” comes immediately after Mr Capp’s introduction where he says:

It is not entirely clear whether Mr Cullen’s reference to “discretion in those rules” is limited only to the question about discretion in relation to penalty or also in relation to breach. While a lawyer with an understanding of the Rules would readily appreciate that there was no discretion in relation to breach once it was found that a prohibited substance had been administered to a horse, as is developed further below it must be remembered that everyone involved at the Hearing was not a lawyer. In the Court’s view there is a real possibility that at least the beginning of this exchange was at cross purposes.

Even if that analysis is wrong and the exchange is confined to a discussion of penalty, the alternation between the past and future tense in relation to taking any discretion into consideration only adds to the confusion.

In seeking to understand that exchange in context, it is essential to bear in mind that all those involved were lay people and each of them was in a thoroughly unfamiliar situation. Mr Capp conceded as much a few lines later when he said to Mr Cullen “We are not used to it either”. In making these observations I wish to emphasise that no disrespect is intended to any of the participants. Transcripts regularly disclose that even the submissions of the most eloquent counsel and the observations of experienced judges will fall short of the standard of lapidary perfection. It would be reading far too much into the relevant exchange to make a finding of predetermination of penalty.

Finally, the Court is fortified in its conclusion by a consideration of the whole of the transcript of the Hearing in relation to penalty and the delivery of the ultimate decision. That consideration precludes any finding of predetermination on the question of penalty.

Question 7 is answered “No”.

Question 5 having been answered “Yes” and question 6 having been answered “No”, the answer to this question is “Yes”.

Neither party submitted there was any material difference between an order quashing the Decision or setting it aside. The Court will make an order that the Decision is quashed (see Isbester at [50] and [71]). The parties will be given an opportunity to address on costs. SCHEDULE A - Christie v Agricultural Societies - ASC Rules (17.5 KB, pdf) , SCHEDULE B - Christie v ASC - 2015-98489 (28.2 KB, pdf)