Part 4Appeal
Panel
42Right of
appeal
(1)
A person aggrieved by any of the following
decisions of a racing authority has a right of appeal against the decision to
the Appeal Panel—
(a)
a decision to disqualify or warn off any
person,
(b)
a decision to disqualify any
horse,
(c)
a decision to revoke the licence or registration
of any person or suspend (for any period) any such licence or
registration,
(d)
a decision to fine any person a sum of $10 or
more,
(e)
a decision that Racing NSW determines, by order
published in the racing calendar published by Racing NSW, to be a decision
that may be appealed against to the Appeal Panel.
(1A)
Racing NSW has a right of appeal to the Appeal
Panel against the following decisions of a racing authority—
(a)
a decision referred to in subsection (1)
(a)–(d),
(b)
a decision to dismiss a charge against a person
for contravention of the Rules of Racing.
(2)
A racing
authority means—
(a)
the stewards of Racing NSW,
(b)
(c)
the committee or stewards of any race club or
race meeting registered by Racing NSW under the Rules of
Racing,
(d)
a racing association.
(3)
Racing NSW may delegate to a racing association
the function of hearing and determining appeals against decisions of the
committee or stewards of any club over which the association has jurisdiction.
Any such delegation may be general or limited to a particular class or classes
of appeals.
(4)
If an appeal against a decision can be heard by a
racing association by virtue of such a delegation, an appellant against the
decision has the choice of appealing to the Appeal Panel or to the racing
association (but cannot appeal to both).
(5)
A decision of a racing association on an appeal
heard by the racing association by virtue of a delegation under this section,
or on an appeal under the Rules of Racing, cannot be appealed against to the
Appeal Panel.
(6)
If the Rules of Racing confer on a person a right
of appeal against a decision to the principal club for New South Wales, or the
committee of the principal club, and the person has a right of appeal against
the decision under this section, the person does not have a right of appeal to
Racing NSW (despite the provisions of the Rules of Racing). The function of
hearing and determining appeals against decisions that may be appealed against
under this section is to be exercised by the Appeal Panel or by a racing
association to which that function is delegated under this section, and not by
Racing NSW.
(7)
An appeal is to be made in accordance with the
local rules of racing of Racing NSW.
s 42: Am 1997 No 24,
Sch 1 [5] [13] [14]; 1998 No 66, Sch 1 [2]; 2004 No 23, Sch 1
[14].
43Procedure on an
appeal
(1)
An appeal to the Appeal Panel is to be by way of
a new hearing and fresh evidence, or evidence in addition to or in
substitution for the evidence on which the decision appealed against was made,
may be given on the appeal.
(2)
The Appeal Panel may subject to this Act and the
local rules of racing of Racing NSW determine its own
procedure.
(3)
On an appeal the Appeal Panel—
(a)
is not bound to act in a formal manner,
and
(b)
is not bound by the rules of evidence and may
inform itself on any matter in any way that it considers to be just,
and
(c)
is to make its decision on the real merits and
justice of the case and is not bound to follow strict legal
precedent.
(4)
The Appeal Panel is to sit as in open court when
hearing the appeal but may sit in private if the Appeal Panel considers it
necessary to do so in the public interest or to protect the safety of any
person.
(5)
For the purpose of the exercise of the Appeal
Panel’s functions on an appeal, the person presiding at the hearing of
the appeal has the powers, authorities, protections and immunities conferred
by the Royal Commissions Act
1923 on a Commissioner appointed under Division 1 of Part
2 of that Act. That Act (except section 13 and Division 2 of Part 2) applies,
with any necessary modifications, to a witness summoned by, or appearing
before, the Appeal Panel.
(6)
When an appeal is to a racing association
pursuant to a delegation to the association by Racing NSW under this Part, the
following provisions have effect—
(a)
the committee of the association has the function
of hearing and determining the appeal, and
(b)
the members of the committee of the association
and the person presiding at the hearing of the appeal have the same powers,
authorities, protections and immunities as the members of the Appeal Panel and
the person presiding at the hearing of an appeal by the Appeal Panel,
and
(c)
references in this section to the Appeal Panel
and to the person presiding at the hearing of an appeal include a reference to
the committee and to the person presiding at the hearing of the appeal by the
committee, and
(d)
the same right of appeal as exists under the
Racing Appeals Tribunal Act 1983 in
respect of a decision of the Appeal Panel also exists in respect of a decision
of the committee of the association (and for that purpose references in that
Act to a decision of the Appeal Panel are to be read as including a reference
to a decision of the committee of a racing
association).
s 43: Am 1997 No 24,
Sch 1 [5] [15]; 2004 No 23, Sch 1 [15].
44Determination of
appeal
(1)
The Appeal Panel may do any of the following in
respect of an appeal—
(a)
dismiss the appeal,
(b)
confirm the decision appealed against or vary the
decision by substituting any decision that could have been made by the racing
authority,
(c)
refer any matter relating to the decision
appealed against to the racing authority for rehearing (in accordance with
directions given by the Appeal Panel),
(d)
make such other order in relation to the disposal
of the appeal as the Appeal Panel thinks fit.
(2)
The decision of the Appeal Panel is to be given
effect to.
s 44: Am 1997 No 24,
Sch 1 [5]. Subst 1997 No 24, Sch 1 [16]; 2004 No 23, Sch 1
[16].
45Membership of Appeal
Panel
(1)
Racing NSW is to appoint suitably qualified
persons to be members of the Appeal Panel. A member of Racing NSW cannot be a
member of the Appeal Panel.
(2)
Racing NSW is (subject to this section) to
determine the qualifications and disqualifications for membership of the
Appeal Panel and for that purpose is to have particular regard to the need to
minimise conflicts of interest, such as might arise from a
person’s—
(a)
ownership of horses currently in work,
or
(b)
professional involvement in race preparation,
or
(c)
professional or commercial dealings with any
person who holds a licence issued by Racing NSW or by a racing
association.
(3)
At least one member of the Appeal Panel is to be
an Australian lawyer of at least 7 years standing.
(4)
A person is not eligible to be appointed as a
member of the Appeal Panel if the person—
(a)
holds a licence issued by Racing NSW or by a
racing association, or
(b)
is currently warned off or disqualified, or is a
person whose name is currently on the Forfeits List, under the Australian
Rules of Racing, or
(c)
during the previous 10 years has been convicted
in New South Wales of an offence which is punishable by imprisonment for 12
months or more, or convicted elsewhere than in New South Wales of an offence
which, if committed in New South Wales, would be an offence so punishable,
or
(d)
is an undischarged bankrupt or is taking
advantage of the laws in force for the time being relating to bankruptcy,
or
(e)
is a mentally incapacitated
person.
(5)
A member of the Appeal Panel holds office for 4
years from appointment and is eligible (if otherwise qualified) to be
reappointed.
(6)
The office of a member of the Appeal Panel
becomes vacant if the member—
(a)
dies, or
(b)
completes a term of office and is not
reappointed, or
(c)
resigns the office by instrument in writing
addressed to Racing NSW, or
(d)
is removed from office under subsection (7),
or
(e)
becomes a person who is not eligible to be a
member of the Appeal Panel.
(7)
The Governor may, on the recommendation of Racing
NSW, remove a member of the Appeal Panel from office for incapacity,
incompetence or misbehaviour.
s 45: Am 1997 No 24,
Sch 1 [5]; 1999 No 94, Sch 4.165; 2006 No 120, Sch 3.26.
46Appointment of Principal
Member
(1)
Racing NSW is to appoint one of the members of
the Appeal Panel as Principal Member. The person appointed must be an
Australian lawyer of at least 7 years standing.
(2)
The person appointed holds office as Principal
Member for a period of 2 years and is eligible (if otherwise qualified) for
reappointment.
(3)
A person ceases to hold office as Principal
Member if the person ceases to hold office as a member of the Appeal
Panel.
s 46: Am 1997 No 24,
Sch 1 [5]; 2006 No 120, Sch 3.26.
47How Appeal Panel is
constituted for particular appeal
(1)
When the Appeal Panel is required to hear an
appeal, the Principal Member is to establish the Appeal Panel in accordance
with this section. More than one Appeal Panel may be established to exercise
the functions of the Appeal Panel at any one time.
(2)
The Appeal Panel is to be constituted for the
purposes of an appeal by not less than 3 members, one of whom must be the
Principal Member (who is to be Convenor of the Appeal Panel for the purposes
of the appeal).
(3)
If the Principal Member is unavailable to act
(including as a result of being a member of the Appeal Panel for another
appeal), one of the members is to be appointed Convenor by the Principal
Member when the Appeal Panel is established. The member appointed Convenor
must be an Australian lawyer of at least 7 years
standing.
(4)
The Convenor is to preside at the hearing of an
appeal.
(5)
The Principal Member must, if practicable,
consult with the Chief Executive before establishing an Appeal Panel under
this section, or appointing a Convenor when the Principal Member is
unavailable to act.
(6)
The Chief Executive may exercise the functions of
the Principal Member under this section of establishing an Appeal Panel and
appointing a Convenor during any period in which the Principal Member is
unavailable to exercise those functions (for example, because of absence or
incapacity).
s 47: Am 1997 No 24,
Sch 1 [17]–[19]; 2006 No 120, Sch 3.26.
48Remuneration of
members
The members of the Appeal Panel are entitled to
be paid such fees and expenses in connection with the hearing and
determination of an appeal as Racing NSW determines from time to
time.
s 48: Am 1997 No 24,
Sch 1 [5].
49How Appeal Panel makes
decisions
A decision supported by a majority of the members
of the Appeal Panel hearing an appeal is the decision of the Panel. If the
members of the Appeal Panel are evenly split on a question, the decision of
the Convenor of the Panel is the decision of the Panel.
49ALocal rules of racing may
provide for appeals
The local rules of racing of Racing NSW may make
provision for or with respect to appeals under this Part, including the manner
of making an appeal and the procedure for hearing and determining an
appeal.
s 49A: Ins 1997 No
24, Sch 1 [20].