Calvin v Carr

JurisdictionUK Non-devolved
Judgment Date1979
Date1979
CourtPrivy Council
[PRIVY COUNCIL] FERD DAWSON CALVIN APPELLANT AND JOHN HENRY BROWNLOW CARR AND OTHERS RESPONDENTS [APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES]

1978 Oct. 30, 31; Nov. 2, 6; 1979 Jan. 15

Lord Wilberforce, Viscount Dilhorne, Lord Hailsham of St. Marylebone, Lord Keith of Kinkel and Lord Scarman

Natural Justice - Domestic tribunal - Appeal proceedings - Horse-racing - Stewards' inquiry - Disqualification of owner by stewards - Want of natural justice - Appeal to committee of Australian Jockey Club - Whether committee having jurisdiction to hear appeal - Whether defects in stewards' inquiry cured by committee's decision

The plaintiff was part-owner of a horse which failed to win a race. Acting under powers given to them by the Australian Jockey Club Rules of Racing the stewards immediately inquired into the running of the horse and charges were brought against the plaintiff and the jockey. The stewards, after hearing further evidence, ruled that the jockey was guilty of an offence against rule 135 (a) which required every horse to be run on its merits and that the plaintiff was a party to the breach of the rule and they disqualified the plaintiff and the jockey for a year. The plaintiff and the jockey appealed to the committee of the Jockey Club according to the procedure laid down by the Rules of Racing. At the hearing of the appeal the committee had before it a transcript of the stewards' inquiry and films on which the stewards had based their decision. The stewards gave evidence and all others who had given evidence to the stewards were present and available for cross-examination The plaintiff and the jockey gave evidence and were cross-examined. The committee dismissed the appeals. The plaintiff brought an action against the chairman of the Jockey Club, the committee and the stipendiary stewards (the defendants) for a declaration that the disqualification was void and for an injunction restraining the defendants from giving effect to it. The judge held that, although the stewards might have failed to observe the rules of natural justice in certain specified respects, the proceedings before the committee constituted a hearing de novo and cured any defects in the stewards' inquiry and he dismissed the action.

On the plaintiff's appeal to the Judicial Committee: —

Held, dismissing the appeal, (1) that notwithstanding that a decision of an administrative or domestic tribunal which had been reached in breach of the rules of natural justice might for certain purposes be void it was nevertheless susceptible of appeal and that therefore, assuming (without deciding) that there had been a failure of natural justice in the stewards' inquiry, the Jockey Club committee had had jurisdiction to entertain the plaintiff's appeal from the stewards' decision to disqualify him (post, pp. 763B–D, H–764A, C–E).

White v. Kuzych [1951] A.C. 585, P.C. considered.

Denton v. Auckland City [1969] N.Z.L.R. 256 doubted.

(2) That although there was no general rule as to whether appellate proceedings could cure a defect due to a failure of natural justice in original proceedings there was a broad spectrum of domestic proceedings between those where the inquiry stage could be said to have merged in the appellate stage and those where a complainant might be prejudiced unless he had a fair trial at both stages where a person who had joined an organisation or contract was to be taken to have agreed to accept a fair result reached after a consideration of the case on its merits; that the test was whether after both original and appellate stages the complainant had had a fair deal of the kind he had bargained for when joining the organisation or contract; and that, accordingly, since in the case of the Australian Jockey Club disputes and discipline were within the consensual category and those taking part in racing were to be taken to have accepted the club's Rules of Racing and to be bound by the committee's fair decisions and since on the facts the committee had given the plaintiff's case overall a full and fair consideration, any failure of natural justice by the stewards at the inquiry stage was irrelevant and there was no basis on which a court could interfere (post, pp. 765D–H, 766C–H, 767D–G, 769G–770B).

Pillai v. Singapore City Council [1968] 1 W.L.R. 1278, P.C. applied.

Australian Workers' Union v. Bowen (No. 2) (1948) 77 C.L.R. 601; Meyers v. Casey (1913) 17 C.L.R. 90; Reid v. Rowley [1977] 2 N.Z.L.R. 472 and Twist v. Randwick Municipal Council (1976) 51 A.L.J.R. 193 approved.

Annamunthodo v. Oilfields Workers' Trade Union [1961] A.C. 945, P.C., In re Cardinal and Board of Commissioners of Police of City of Cornwall (1974) 42 D.L.R. (3d) 323 and Leary v. National Union of Vehicle Builders [1971] Ch. 34 distinguished.

Hall v. New South Wales Trotting Club Ltd. [1976] 1 N.S.W.L.R. 323; [1977] 1 N.S.W.L.R. 378 and Ethell v. Whalan [1971] 1 N.S.W.L.R. 416 doubted.

Decision of Rath J. affirmed.

The following cases are referred to in the judgment of their Lordships:

Annamunthodo v. Oilfields Workers' Trade Union [1961] A.C. 945; [1961] 3 W.L.R. 650; [1961] 3 All E.R. 621, P.C.

Australian Workers' Union v. Bowen (No. 2) (1948) 77 C.L.R. 601.

Builders Licensing Board (N.S.W.) v. Sperway Constructions (Sydney) Pty. Ltd. (1976) 51 A.L.J.R. 260.

Cardinal and Board of Commissioners of Police of City of Cornwall, In re (1974) 42 D.L.R. (3d) 323.

Chromex Nickel Mines Ltd., In re (1971) 16 D.L.R. (3d) 273.

Clark and Ontario Securities Commission, In re (1966) 56 D.L.R. (3d) 585.

Crane v. Public Prosecutor [1921] 2 A.C. 299, H.L.(E.).

Denton v. Auckland City [1969] N.Z.L.R. 256.

De Verteuil v. Knaggs [1918] A.C. 557, P.C.

Ethell v. Whalan [1971] 1 N.S.W.L.R. 416.

Fagan v. National Coursing Association of S.A. Incorporated (1971) 8 S.A.S.R. 546.

Hall v. New South Wales Trotting Club Ltd. [1976] 1 N.S.W.L.R. 323 [1977] 1 N.S.W.L.R. 378.

King v. University of Saskatchewan (1969) 6 D.L.R. (3d) 120.

Leary v. National Union of Vehicle Builders [1971] Ch. 34; [1970] 3 W.L.R. 434; [1970] 2 All E.R. 713.

Meyers v. Casey (1913) 17 C.L.R. 90.

Pillai v. Singapore City Council [1968] 1 W.L.R. 1278, P.C.

Posluns v. Toronto Stock Exchange and Gardiner (1966) 53 D.L.R. (2d) 193.

Reid v. Rowley [1977] 2 N.Z.L.R. 472.

Ridge v. Baldwin [1964] A.C. 40; [1963] 2 W.L.R. 935; [1963] 2 All E.R. 66, H.L.(E.).

Russell v. Bates (1927) 40 C.L.R. 209.

Twist v. Randwick Municipal Council (1976) 51 A.L.J.R. 193; (1976) 136 C.L.R. 106.

White v. Kuzych [1951] A.C. 585; [1951] 2 All E.R. 435, P.C.

The following additional cases were cited in argument:

Anisminic v. Foreign Compensation Commission [1969] 2 A.C. 147; [1969] 2 W.L.R. 163; [1969] 1 All E.R. 208, H.L.(E.).

Australian Consolidated Press Ltd. v. Uren [1969] 1 A.C. 590; [1967] 3 W.L.R. 1338; [1967] 3 All E.R. 523, P.C.

Bonaker v. Evans (1850) 16 Q.B. 162.

Calder v. Halket (1840) 3 Moore 28.

Capel v. Child (1832) 2 C. & J.Ex. 558.

Cooper v. Wandsworth Board of Works (1863) 14 C.B.N.S. 180.

Corbishley, Ex parte, In re Locke (1967) 67 S.R.(N.S.W.) 396.

Delta Properties Pty. Ltd. v. Brisbane City Council (1955) 95 C.L.R. 11.

Dickason v. Edwards (1910) 10 C.L.R. 1.

Dimes v. Proprietors of the Grand Junction Canal Company (1852) 3 H.L.Cas. 759, H.L.(E.).

Durayappah v. Fernando [1967] 2 A.C. 337; [1967] 3 W.L.R. 289; [1967] 2 All E.R. 152, P.C.

Edwards v. Noble (1971) 125 C.L.R. 296.

Essex Incorporated Congregational Church Union v. Essex County Council [1963] A.C. 808; [1963] 2 W.L.R. 802; [1963] 1 All E.R. 326, H.L.(E.).

Evans v. Bartlam [1937] A.C. 473, H.L.(E.).

Fairmount Investments Ltd. v. Secretary of State for the Environment [1976] 1 W.L.R. 1255; [1976] 2 All E.R. 865, H.L.(E.).

Glynn v. Keele University [1971] 1 W.L.R. 487; [1971] 2 All E.R. 89.

Graham v. Sinclair (1918) 25 C.L.R. 102.

Hoffmann-La Roche (F.) & Co. A.G. v. Secretary of State for Trade and Industry [1975] A.C. 295; [1974] 3 W.L.R. 104; [1974] 2 All E.R. 1128, H.L.(E.).

Hopkins v. Smethwick Local Board of Health (1890) 24 Q.B.D. 712.

Innes v. Wylie (1844) 1 C. & K. 257.

Jacobs v. London County Council [1950] A.C. 361; [1950] 1 All E.R. 737, H.L.(E.).

Kai Nam (A Firm) v. Ma Kam Chan [1956] A.C. 358; [1956] 2 W.L.R. 767; [1956] 1 All E.R. 783n., P.C.

Kemp v. Neville (1861) 10 C.B.N.S. 523.

Lapointe v. L'Association de Bienfaisance et de Retraite de la Police de Montreal [1906] A.C. 535, P.C.

Leigh v. National Union of Railwaymen [1970] Ch. 326; [1970] 2 W.L.R. 60; [1969] 3 All E.R. 1249.

Lissenden v. C. A. V. Bosch Ltd. [1940] A.C. 412, H.L.(E.).

Malouf, Ex parte, In re Gee [1943] 43 S.R.(N.S.W.) 195.

O'Brien v. Warringah Shire Council [1974] 1 N.S.W.L.R. 505.

Painter v. Liverpool Oil Gas Light Company (1836) 3 A. & E. 433.

Reg. v. Aston University Senate, Ex parte Roffey [1969] 2 Q.B. 538; [1969] 2 W.L.R. 1418; [1969] 2 All E.R. 964, D.C.

Reg. v. Canterbury (Archbishop of) (1859) 1 El. & El. 545.

Reg. v. Cheltenham Commissioners (1841) 1 Q.B. 467.

Reg. v. London County Council [1892] 1 Q.B. 190.

Rex v. Cambridge University (1723) 1 Str. 557.

Rex v. Gaskin (1799) 8 T.R. 209.

Rex v. Gee [1936] 2 K.B. 442, C.C.A.

Rex v. Halifax Justices, Ex parte Robinson (1912) 76 J.P. 233, C.A.

Rex v. Martin (1904) 4 S.R.(N.S.W.) 720.

Rex v. Phillips [1939] 1 K.B. 63, C.C.A.

Rex v. Smith (1844) 5 Q.B. 614.

Scadding v. Lorant (1851) 3 H.L.Cas. 418, H.L.(E.).

Smith v. The Queen (1878) 3 App.Cas. 614, P.C.

Stringer v. Minister of Housing and Local Government [1970] 1 W.L.R. 1281; [1971] 1 All E.R. 65.

Sweeney v. Fitzhardinge (1906) 4 C.L.R. 716.

Sydney Corporation v. Harris (1912) 14 C.L.R. 1.

Toronto Railway Company v. Toronto Corporation [1904] A.C. 809, P.C.

Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd. [1921] 2 K.B. 608, C.A.

Viro v. The Queen (1978) 52 A.L.J.R. 418.

Wood v. Woad (1874) L.R. 9 Ex. 190.

APPEAL (No. 5 of 1978) by the plaintiff Ferd Dawson Calvin (registered part-owner of the racehorse Count Mayo), from a judgment of...

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